In 2018, Byron Bay police struck a teenager 18 times with a baton. Five years later courts are still deciding, was it "reasonable"?
Five years ago, in a back alley in Byron Bay, police encountered a naked drug-affected 16-year-old.
The violent encounter that followed was recorded and later broadcast on national television.
It shocked the local community and has never quite been forgotten.
Background Briefing has, for the first time, spoken to the boy who was on the receiving end of 18 baton strikes that night.
It has also examined the broader culture of policing in the Byron area speaking to a former officer who describes a police force at breaking point in the years preceding the incident.
A leaked 2013 internal police report also shows that, around that time, officers in the Tweed-Byron command were profoundly demoralised.
And a new video of a different incident raises questions about how police use force in the idyllic beach paradise.
Dylan was freaking out.
His vision was blurred, his heart was racing and to top it all off, there were now dragons.
"I was seeing it come out of the wall towards me … I knew it wasn't real, I was just thinking, 'What the hell?'," he says.
It was the very early hours of January 11, 2018.
And things just kept getting worse for Dylan.
Dylan isn't his real name. Prohibitions on the identification of young people involved in court mean he can't be identified.
"I didn't feel like I was in my own body, [it was] like someone else was in control or something," he says.
Dylan was on a family holiday. He was 16 years old and it was his first time in Byron Bay. Earlier that evening, his mother, Katie — not her real name — cautiously allowed him to visit a silent disco next to the beach front.
And it was there that Dylan met some kids, who handed him a beer.
Dylan didn't know it but the drink had been spiked.
Wandering around in a daze, Dylan was trying to get back to his family. In his confusion, he'd stripped off all his clothes.
The manager of a nearby backpackers hostel spotted him and, with some of his guests feeling uncomfortable, made a decision to call the police.
Flashing lights appeared five minutes later as two officers stepped out of a patrol car. But Dylan's vision was blurred. Despite the officers being in uniform, he doesn't initially realise they were police.
What happens next has been endlessly picked over in a police disciplinary hearing, and the actions of one officer continue to be scrutinised in courts.
Police would give evidence that Dylan threw a drunken haymaker punch at police that went nowhere near connecting.
Civilian witnesses in the proceedings, however, don't report seeing any punch.
An officer took out his pepper spray and said something like: "Better calm down mate, or you'll get a gob full of this."
Dylan began walking towards them.
The officer then released the spray, but Dylan remembers having his eyes closed.
A second police car arrives.
Shortly after, he felt a sting, as a taser found its mark.
During the encounter, Dylan was pepper sprayed and tasered twice.
"It was ugly, very painful like your whole body was just, like, in pain and just shaking," he says.
Dylan was struck in the knee with a police baton. He went down and police wrestled him to the ground.
From a nearby balcony, a woman took out her mobile phone and hit record.
WARNING: The following video may be distressing for some viewers.
This recording would form a key piece of evidence in a later criminal court case against one of the officers.
During the almost three-minute recording, Dylan was struck 18 times with a police-issue baton. At one point during the encounter he screamed "I'm not resisting".
At the 54-second mark, Dylan was restrained with a second set of handcuffs so they didn't slip off his sweaty skin. He was on his back, his arms outstretched above his head, lying on the ground.
An officer put his boot on the chain of the handcuffs, as another brought a police car around, which obscures the view in the video.
Then, still on ground, handcuffed, an officer administered six final blows to Dylan, while screaming out for him to "stop resisting".
A witness would later recall — in court testimony — that an officer wandered over to some onlookers and said something like "you better not have f***ing recorded this?"
That same officer would later give evidence that it was "ridiculous" to suggest he told witnesses that. He said he was asking witnesses if they had recorded it, because he was hoping it had been recorded.
When Dylan later woke in a hospital bed, his body was black and blue and one of his ribs had been fractured.
Meanwhile, his mother had been out of her mind with worry. She spent her evening trying to find her son, contacting police and hospitals and also driving around Byron Bay.
Dylan said when he woke up, he had no idea what happened the previous night. But he'll always remember what a hospital staffer said to him.
"She said that I should apologise to police for causing such a problem," Dylan says.
Katie also caught the comment.
"I got angry. Apologise for what exactly? What do you know that I don't know?"
For Dylan and his family, that violent encounter has never left them.
Two court cases and a disciplinary investigation have together failed to reach consensus on the simple question at the heart of the incident that night – was the use of force by police necessary?
Fighting a war on two fronts
When police officer Saul Wiseman arrived in northern New South Wales he thought he was moving to paradise.
But by the time the Lateen Lane incident happened seven years later, Saul was off work on medical leave and questioning the decision to make the move up north.
He'd worked in action-packed Sydney stations and was a highly experienced and well-regarded officer with a swag of commendations. He was sure that nothing could be worse than what he'd already experienced.
"I remember the day that I turned up," says Saul. "I said, 'I don't know why all these people are off sick. Look, there's Coolangatta Beach. You can see it. It's beautiful'."
Saul says the volume of work was similar to a suburban Sydney police station, but with far fewer resources. There were often nights when a single crew car covered an area more than half the size of the ACT.
Saul says stations were undermanned and custody officers were overworked, and that created risks: "One person is asked to do the job of three people, how is that fair?"
He says that when he told his mates in the city about the scarce resources they were working with, they didn't believe him.
Soon after he arrived in Northern NSW, the senior officer responsible for the command's strategy, Shane Diehm, was busted for drug use and suspended, so Saul took over his job.
Suddenly, he was in charge of deciding which kinds of offences Tweed-Byron police would target, and he immediately recognised the pattern of crime bedevilling Byron Bay.
"Picture Darlinghurst Road and what it used to be … on a Friday and Saturday night, that's sort of what it would be like," says Saul. "It's all just problems with alcohol."
Back in 2012, Byron Bay was one of the worst suburbs in New South Wales for alcohol-related assaults. So Saul worked with local licensees and venues to drive down that crime.
"Once you deal with that … everyone has a good time and everyone prospers."
But as the battles on the streets cooled, inside the station houses cops felt under siege. Several former Tweed-Byron officers say that bullying across the command was out of control. In his time as a police officer, Saul had never seen anything like it. "It was really, really rattling," he says.
Saul and other officers say they saw at least one case of serious workplace sexual harassment, and heard claims of many more.
He says another female cop, this time his wife, was stonewalled by other officers while attempting to report a male colleague for misconduct. The colleague had had sex with a woman at the station and used his glock as a sex toy during the liaison.
That colleague has since been dismissed.
Saul says the lack of a "safe place" at work sent officers over the edge psychologically.
"When it's the person who's meant to have your back … when they're the enemy, you're fighting a war on two fronts. No one can do that," he says.
An ominous sign of just how bad things were in the Tweed-Byron command arrived with an internal survey into work culture launched the following year in 2013.
Rumours about this survey floated up and down the NSW North Coast amongst police sources.
Background Briefing has obtained a copy. Inside, the feedback was scathing.
One respondent remarked how staff were spoken to like they were "mangy dogs".
"... the workload is killing me," said another.
There were also claims staffing levels were so minimal officers were being put in extreme danger.
Another defeated cop wrote: "I've recommended other police that were interested in coming to my command to go elsewhere. My command is an embarrassment, and I don't know how we get away with it."
The final note read: "Nothing has changed since the last survey. Don't think many of us can be motivated anymore."
'I was just numb'
It was months after the Byron Bay incident. Dylan's bruises were healed, but he still didn't have answers about what exactly had happened on that night.
When the answers did arrive, they were broadcast across Australia in a three-minute clip on the prime-time TV show, A Current Affair.
"That first time watching it I was like, numb … I remember it was just weird seeing it from that angle and just hearing it like that – strange," says Dylan.
The anger would come later when he found the video on Facebook, and started scrolling through the comments.
"It was like a hundred comments of people saying 'Good on the police,' 'Good job', 'Probably a young junkie'. I remember seeing that comment."
"You just feel angry and upset … and you keep it in and keep it in and keep it in and you just feel like you're going to explode."
His mother, Katie, had a more visceral reaction to watching the video of the arrest for the first time.
"I actually threw up. I couldn't believe what I was watching," she says.
Kids at Dylan's school began to connect the dots, and identify him as the boy screaming on the video.
His academic performance began to suffer and soon Dylan dropped out of school.
Night brought terrifying nightmares, and during the day Dylan would experience random flashbacks. Then, Katie learnt through Dylan's mates that things were even worse than she thought.
"He would never have considered taking his own life, but by the time he was 18, there were plenty of times that he told people close to him that he no longer wants to be in this world," she says.
"In our faith we are taught that if you take your own life, you don't go to heaven."
The lighthouse man
Four weeks before Dylan wandered down Lateen Lane, officers from the same district attended a call out which shook the local force.
It was around 11pm on December 25, 2017 – Christmas Day.
Police were called to the southern car park of the Cape Byron Lighthouse after reports that a 23-year-old man was threatening to kill himself.
When they spotted the man he turned and ran at them at full speed, and leapt onto the bonnet of the car.
"He had dove head first into a police car, smashed the window and then went across to the passenger side, head butted that window and then dragged the passenger out of that vehicle," a police officer involved in the incident later recounted.
The man then opened the passenger door and stood there in an apparent "possessed state" spitting and frothing at the mouth.
The man then lunged at one of the police officers who used his taser. The man was wrestled into the police car with the help of four bystanders.
The incident spread fear among the local police.
So when Dylan's incident came over the radio two weeks later — reports of a drug-affected, naked man wandering down Lateen Lane — two extra officers just finishing their shift tagged along.
One of the officers involved in Dylan's arrest had been involved in the Lighthouse incident.
He told a police disciplinary investigation that when he saw Dylan standing naked and screaming, he thought he knew what was coming next.
"I thought, the minute the clothes come off, you've got about a 15-minute window before the body overheats and that drug's peaking," he later said.
That officer would later say that lighthouse incident was front of mind when he arrived at Lateen Lane and saw Dylan that night.
But there were key differences between Dylan's situation and the lighthouse man.
Witnesses reported that, before police arrived, despite being loud and "acting strangely", Dylan wasn't being violent to anyone.
He was a 16-year-old autistic boy, who had had his drink spiked, desperately trying to retrace his steps back to his hotel room.
A growing toll
In 2017, the year before the Lateen Lane and Lighthouse incidents, Saul says the workload for the Tweed-Byron command was becoming unbearable for its officers.
When he started looking at other districts he discovered that detectives across the state were handling around two cases on average. At Tweed-Byron each investigator was juggling nine.
"I think there was seven of us that fell off the perch due to stress and stress-related injuries and none of us wanted to leave," says Saul.
"I didn't think I was sick. That wasn't until I had a breakdown at home and punched a hole in a wall and was in a blubbering heap."
Saul tried to return to work months later, but his brain was shot. Prior to going on sick leave, he'd been doing a Master of Business Administration (MBA) on top of full-time work, and scoring High Distinctions.
But after his breakdown, his mind was so scrambled he could barely make sense of a basic police facts sheet.
He was medically discharged in 2018.
"Our New South Wales Police Force is one of the best police forces in the world with the most tenacious investigators in the world. And yet we can't figure out why we've got so many police going off sick or getting injured in a particular area. It's a joke," he says.
By 2018, the Tweed area was climbing towards the top of the state's league tables for methamphetamine use placing additional pressure on police resources.
Meanwhile, police advocates were claiming staffing levels had reached "crisis levels", with record numbers of police officers on mental health leave. Officers resorted to a Change.org petition demanding more officers be sent to the region. Hard copy petitions were removed from stations however.
By September 2018, staffing levels had become such an issue the police union was warning that paedophiles and child abusers were not being monitored.
When asked recently about police resources in the area, a spokesperson for Deputy Premier and Police Minister Paul Toole says that over the past four years, the Tweed Byron command has been allocated 11 extra police positions.
But back in 2018, assaults on police were also climbing. In a single year they had leapt 45 per cent.
Byron Bay psychologist Jane Enter knows all about what cops like Saul and his colleagues were going through. She's been counselling police in the area since 2004, and she describes the work culture inside NSW Police as "bloody terrible", "brutal", and "nasty".
She also sees the toll of frontline police work.
"Often they are unaware of how impacted they are because they become inured to it," says Jane. "They don't even realise how traumatised they are and how much they're shaking internally until one day they can't get out of bed."
Jane says this is particularly true for officers who are involved in a high number of volatile and unpredictable situations. She says that police get anxious, just like the rest of us.
"Then things do go wrong. People shoot the wrong people," she says.
'Reasonable force'
After the footage of Dylan's incident was aired by A Current Affair, NSW Police began receiving complaints and the matter was referred to NSW's Law Enforcement Conduct Commission (LECC), a body responsible for investigating police disciplinary matters.
Under NSW law, police officers are allowed to use force to keep themselves and the public safe, but that doesn't mean they can do whatever they want. They can only use "reasonable force".
The commission focused on the final six strikes, when Dylan was flat on his back, with an officer's boot on the chain of his handcuffs.
One officer told the commission the strikes were "unnecessary" and a "bit over the top".
But the officer behind those final six strikes says they were necessary to get Dylan restrained as he continued to struggle.
The final report was released seven months later, and its findings – when it came to those final six blows – were brutal.
"It is obvious that [the] intention was to beat [Dylan] until he complied and, even when he was handcuffed, [the officer] did not desist," it said.
"The commission finds that [the] use of his baton represented a use of grossly excessive force for which there was no justification."
The commissioner said those final six strikes were "unreasonable, deliberate, grossly excessive and significantly beyond a mere error of judgement".
The commission recommended that consideration be given to prosecuting one officer with assault.
In October 2019, a charge of common assault was laid against the officer behind those final baton strikes: Senior Constable Michial Greenhalgh.
He's not the officer who attended the Lighthouse incident, but he did administer the final six strikes.
Hearings began in November the following year, during which Greenhalgh categorically denied that the last six strikes were excessive. He said that despite the fact Dylan was unarmed, he was violent and continued to struggle and kick out even after police handcuffed him.
Other officers agreed, testifying that Dylan resisted with "extraordinary physical strength".
When Magistrate Michael Dakin gave his verdict, he said he preferred the officers' version of events, including the difficulties they said they had in subduing Dylan.
He also noted that five people had attested to Greenhalgh's good character, four of whom were senior police officers who knew him through his service.
He also took into account what happened after the video ended when Dylan was taken back to the police station, where officers wrestled him onto an ambulance stretcher, which he said is evidence that Dylan was not complying with police orders.
He rejected evidence by civilian witnesses, which he said had been contaminated by repeat viewings of the video before the trial.
He also highlighted the time gap between the baton strikes by Greenhalgh, which he said proved the officer's actions were measured and not reckless.
"The telling part of the evidence, to my mind, is the video evidence of these baton strikes ... If it were, in my view, the case that the defendant had acted in the red fog, or red mist … there would not be any gap between the strikes," he said.
The case was appealed to the NSW Supreme Court in July 2022.
Prosecutors argued that the magistrate didn't apply the correct legal test when deciding whether force was reasonably necessary.
NSW Supreme Court Justice Mark Ierace upheld the appeal and found there was a key error of law.
He said that while the lower court considered whether Greenhalgh himself felt like the strikes were necessary, it failed to consider whether a reasonable person may have felt the same.
The case has now been sent back to Magistrate Dakin in Lismore court to be redetermined, and is scheduled for a judge-alone summary hearing in February 2023.
Seventeen seconds
When Nicqui Yazdi moved to the area 25 years ago, she was a single mum looking to move away from the big smoke.
Back then, Byron Bay was the sort of place to take your kids on holiday, and not the international blockbuster destination it is today.
"It's a 24-hour party town now, and that's Byron, and it is having an effect across the whole of the Shire. We've got 40 per cent of the homes listed on … holiday platforms," she says.
Nicqui works as a youth worker and also happens to be a one-time Byron Shire citizen of the year.
Over those 25 years, she has also watched the police culture in the area change and a divide emerge between young people and police.
Nicqui has become a local advocate for young people and runs a group of community pages.
It was around May 2018 that she received a message from a community member that caught her eye. Attached was a 17-second video.
The video was filmed on the night of May 18, 2018, when Gold Coast band, Electrik Lemonade, were busting out their unique brand of laid-back summer funk at the Byron Bay Beach Hotel.
They'd just started playing one of their slower numbers, Daisy Rover, when a commotion attracts the attention of some in the crowd.
There was a scuffle on the street front, and a police car had pulled up.
In the short video – which runs for 17 seconds – a police officer seemingly wrestles with a man on the ground. He appears to punch the person three times, before giving the offender a sharp whack to the head.
When Nicqui watched the clip, she gasped. She thought she recognised the officer.
The video made its way to the NSW Police, who referred the matter to the Law Enforcement Conduct Commission (LECC).
But when the man being arrested is brought before court, documents show that the officer behind the arrest was the same one involved in Dylan's incident: Senior Constable Michial Greenhalgh.
Assessing videos of police actions can be a tedious, painstaking process, and videos, while useful, only tell part of the story. In this incident, the video captured only a small part of an hours-long arrest of a violent man.
During the encounter, police said the offender tried to attack the officers including trying to eye-gouge, bite and scratch the police, while also assaulting a passerby and reaching for an officer's gun.
The offender later had charges dismissed on mental health grounds.
Samantha Lee leads the police accountability section of the Redfern Legal Centre. She says courts are often reluctant to second-guess police decisions made in the heat of the moment.
"The court certainly, when looking at these matters, won't just look at a snippet of a video, the court would look at all the surrounding circumstances. And yes, you can't make fly-by decisions about some of these incidents," she says.
When she looks at the video however, she says it raises genuine questions about police actions.
"Obviously, there is the pub test and when I watch that video and I see that the person appears to be already restrained and under a level of control, there is concern that ... force continued to be used and it's at that point that the question arises whether that force was necessary."
Former Detective Sergeant Saul Wiseman says you shouldn't judge an incident from a video alone.
When he watches the video of Dylan's Lateen Lane encounter, he's not shocked. "From my view he doesn't seem compliant," he says. "To me, it looks like the police are trying to control the person … but I can't see the person, so I don't know."
Senior Constable Greenhalgh is no longer employed with NSW Police.
There's no evidence or suggestion that he left due to his involvement in either Dylan's incident or the later May 18 incident in front of the Byron Bay Beach Hotel.
He did not respond to questions and declined an interview request.
Those who knew Greenhalgh as a police officer, say he was professional, friendly, and would help young people.
The New South Wales police union, the Police Association, which supported Greenhalgh during his case and has advocated for police in the region more generally, also declined to answer questions or take part in an interview for this story. The body said it did not want to be perceived as trying to influence the outcome of Greenhalgh's ongoing case.
NSW Police declined to comment citing its referral of the Byron Bay Beach Hotel incident to LECC.
A messy job
David Heilpern, now retired from the bench, is enjoying post-court life in the community he once served. As a former magistrate, he oversaw thousands of cases, and he concedes that policing is a difficult job.
"They're dealing with people who are at their worst, often their most obnoxious, their most violent, their most intoxicated," he says.
Now the Dean of Law at Southern Cross University, Mr Heilpern says that while policing can be "messy", there still needs to be accountability.
"We're all capable of making mistakes, but where there's a significant crossing of the line, then I think we're in a different territory," he says.
Mr Heilpern was speaking generally and there is no suggestion that he is commenting directly on the Lateen Lane incident.
Parallel lines
Two parallel white scar lines on the underside of Dylan's wrist mark the point where police fastened the handcuffs on him almost five years ago on Lateen Lane.
Dylan will carry the scars, like little reminders, forever.
He says while he understands that police have a tough job, he has little sympathy for the way they acted that night.
"I know … they have a lot to deal with and it can sometimes be life or death situations," he says.
"But my situation — what happened to me — wasn't a life or death situation at all. It's not like I was an imminent threat of violence."
His mother, Katie, is even less forgiving.
"Who is anybody else to judge how I feel about the police?" she says.
"They haven't gone through what I've gone through or my son's gone through, so I really don't care what they say.
"Walk my walk, see what I've been through and then judge."
If this story has raised concerns for you or someone you know, you can contact Lifeline on 13 11 14, Beyond Blue on 1300 22 4636.
Credits
- Reporters: Mario Christodoulou and Mayeta Clark
- Photographer: Natalie Grono
- Executive producer: Fanou Filali
- Digital producer: Sam Nichols
