Judge finds 'fundamental defect' in police taser investigation

Court ends prosecution of Queensland police officers over alleged tasering, assault In short: Two police officers charged with assaulting and unlawfully restraining a prisoner in a Far North Queensland watch house cell have been granted a permanent stay of the criminal charges against them. A court heard senior constables Andrew David Couchman and Ulrich Weiss used force to restrain Charlton Bong, who was experiencing mental health issues. Judge Dean Morzone KC found an investigating officer's decision to insert a paragraph into the complainant's statement created a "fundamental defect" that would prevent a fair trial. A judge has brought an end to a criminal prosecution against two police officers who had been accused of criminally restraining and assaulting a prisoner at a Far North Queensland watch house. Senior constables Andrew David Couchman, 54, and Ulrich Weiss, 45, were charged with criminal offences after they allegedly capsicum sprayed, tasered and forcibly restrained Charlton Bong, 25, at the Mareeba watch house in January 2024. Queensland Police Service's Ethical Standards Command investigated the alleged incident and charged the senior constables with offences including assault and deprivation of liberty. However, both officers applied to the District Court in Cairns for a permanent stay of the charges last week, arguing they could not be assured of a fair trial. At a hearing last Thursday, lawyers for senior constables Couchman and Weiss told the court the case against the officers had been "contaminated" when an Ethical Standards Command investigator inserted a paragraph into the alleged victim's sworn statement. Today, Judge Dean Morzone KC handed down his decision to grant the permanent stay, acknowledging a court's power to do so was "reserved for … exceptional, extreme cases". Detective Senior Sergeant Kim Cavell drafted a statement in Mr Bong's name, including a paragraph asserting that he did not consent to being tasered, sprayed or restrained, the court heard. Mr Bong could not read or write, and Detective Senior Sergeant Cavell told him the statement "was compiled from what he had previously told her", Judge Morzone said. However, it had been established in evidence at a pre-trial hearing that Mr Bong had not used those words and did not know what the word "consent" meant. Judge Morzone said Mr Bong was the "only witness who can speak personally to the central issue" and the way his evidence was gathered had "produced a fundamental defect" that "no ruling or direction available to a trial judge can cure". "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," he said. "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." Left alone in cell The Crown argued there was significant public interest in the case proceeding. In May, Mr Bong gave evidence at a pre-trial hearing, telling the court voices in his head were telling him the "world was ending" and to punch and spit at the officers. The court heard after he was tasered, Mr Bong was restrained and left alone in a padded cell in a prone state for more than two hours. Judge Morzone said the Crown case relied on "the state of mind of a cognitively and emotionally vulnerable witness" who adopted an account from investigators "upon a false representation and without comprehension". Senior constables Couchman and Weiss had been listed to stand trial next month, but that trial has now been delisted. "Each of the defendants are discharged from their bail undertakings, and we will work out what goes from there," Judge Morzone said. The court heard the case could be listed for a mention on a future date. Union backs officers' return Queensland Police Union general president Shane Prior said the ruling "brings to an end more than two years of enormous professional and personal stress for those officers". Senior constables Couchman and Weiss were not in court for today's hearing, which their lawyers joined by video link. However, Mr Prior spoke with the officers shortly after the decision was handed down. "Both these officers will be back at work in the near future, I expect, and today is a day of great relief for them as they can now mix with their families without the stress that has been hanging over their heads," Mr Prior said. Mr Prior said he still had confidence in Ethical Standards Command but said the judge's findings about the integrity of the investigation "cannot be ignored". "I fully expect that to be examined at length by Ethical Standards Command or any other agency, including the CCC." The union provided the officers with legal and welfare support while they were charged, and Mr Prior said they would receive further help to make a safe return to work. The Queensland Police Service has been contacted for comment.