Judge halts police taser assault case over 'fundamental defect'

A judge has permanently stayed criminal charges against two senior constables accused of assaulting a prisoner, citing a "fundamental defect" in the investigation. Senior constables Andrew David Couchman, 54, and Ulrich Weiss, 45, faced charges including assault and deprivation of liberty for allegedly using capsicum spray, a taser, and force on Charlton Bong, 25, at a Mareeba watch house in January 2024.

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reserved for … exceptional, extreme cases

The officers applied to the District Court in Cairns for the stay, arguing their right to a fair trial had been compromised. Their defense claimed the case was "contaminated" when an investigator from the Queensland Police Service's Ethical Standards Command inserted a paragraph into Mr. Bong's sworn statement. This paragraph asserted Mr. Bong did not consent to being tasered, sprayed, or restrained.

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produced a fundamental defect that no ruling or direction available to a trial judge can cure

Judge Dean Morzone KC acknowledged the court's power to grant a permanent stay is reserved for "exceptional, extreme cases." He noted that Mr. Bong, who has difficulty reading and writing, was the "only witness who can speak personally to the central issue." Evidence presented at a pre-trial hearing established that Mr. Bong had not used the specific words attributed to him and did not understand the meaning of "consent."

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That continuation of proceedings would result in unacceptable unfairness to each applicant and that it would be incompatible with the integrity of this court's processes

"The way his evidence was gathered had produced a fundamental defect that no ruling or direction available to a trial judge can cure," Judge Morzone stated. He concluded that continuing the proceedings would result in "unacceptable unfairness" and be "incompatible with the integrity of this court's processes." The judge emphasized that his decision does not comment on the underlying conduct but solely reflects the impossibility of a fair trial.

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Nothing in these reasons should be understood as a finding as to the merits of the underlying conduct, nor is this order framed to punish or to censure the investigating officer. The order reflects only the court's conclusion that a trial on this indictment cannot now be a fair one and the court should not lend its processes to it.