The actions of sergeant Timothy Devitt who fired a Taser stun gun at a man as he walked along Sydney's Oxford Street were ''unlawful and improper'', a magistrate has found.
In extraordinary footage of the incident, revealed by The Sun-Herald in June, Sergeant Timothy Devitt is seen twice firing his Taser at Ali Alkan's back, as the 38-year-old walks along the road about 2.30am on March 29.
The officer justified his use of the Taser, claiming Mr Alkan had been ''breaching the peace'' and could have been hit by a car as he weaved through traffic.
Police allegedly found two methamphetamine tablets and GHB on Mr Alkan and charged him with drug possession.
But during a hearing on Friday at the Downing Centre Local Court, Mr Alkan's counsel, Winston Terracini, SC, called for the charge to be dropped, arguing his client's arrest had been unlawful and constituted an ''unprovoked'' assault.
''It seems extraordinary that in order to protect him [the officer] then assaults him by hitting him a number of times with the Taser and then, later on, barbs have to be removed from his body [in hospital],'' Mr Terracini told the court. ''There is no suggestion that [Mr Alkan] was committing an offence ?he was told to get off the road, he is in the process of getting off the road - that is, obeying direction - and he is then struck.''
CCTV footage shows the officer pointing Mr Alkan towards a laneway, then, as Mr Alkan moves towards the footpath, he is shot in the back.
Mr Terracini said it was ''unfortunate'' that additional footage from the Taser was not available because ''for some extraordinary reason the police officer obscured the camera operating on the Taser as he was assaulting my client''.
Police prosecutor Brendan Green argued that Sergeant Devitt had used the Taser due to concerns for Mr Alkan's safety and because he may have pushed others onto the road.
''[Sergeant Devitt] describes the accused's behaviour ?as irrational [and] in some aspects dangerous,'' Sergeant Green said. ''He also describes a suspicion that ?he was either alcohol- or drug-affected.''
Magistrate David Heilpern prompted chuckles in court, quipping that if officers were to adopt the use of Tasers under those circumstances, ''Tasers would be going off on Oxford Street every Saturday night.''
He reserved his judgment on the matter until January but told Mr Alkan he planned to dismiss the charge against him.
''The actions of the officer, I will find, were unlawful and improper,'' he said. ''It was the first time in my 12 years on the bench that I have actually foreshadowed a decision but I believe where possible that a defendant ought to know that he will no longer be facing criminal charges.'' Mr Alkan is suing NSW Police over the arrest.