Wallace v Attorney-General - [2023] NZSC 66

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 90/2022
[2023] NZSC 66

BETWEEN	RAEWYN WALLACE Applicant
AND	ATTORNEY-GENERAL First Respondent COMMISSIONER OF POLICE Second Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	G E Minchin and C J Tennet for Applicant P J Gunn, B M McKenna and N I Dennis-McCarthy for Respondents
Judgment:	6 June 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B There is no order as to costs.

____________________________________________________________________

REASONS

This application for leave relates to the Police shooting of Steven Wallace in 2000. It is brought by his mother, Raewyn Wallace who, in 2014, filed a civil claim alleging that State actors breached Steven’s right to life as protected in s 8 of the New Zealand Bill of Rights Act 1990. Ms Wallace succeeded to a limited extent in the High Court.[1] She appealed in relation to the unsuccessful aspects and the Crown cross‑appealed. The Court of Appeal found for the Crown in both appeals.[2]

Factual and procedural context

[1]Wallace v The Attorney-General [2021] NZHC 1963 (Ellis J) [HC judgment].

[2]Wallace v Attorney-General [2022] NZCA 375, [2022] 3 NZLR 398 (Miller, Gilbert and Goddard JJ) [CA judgment].

In the small hours of 30 April 2000, Steven Wallace went on a rampage in the town of Waitara, smashing the windows of the local Police station, stores and cars (including an occupied Police car) with a baseball bat and a set of golf clubs. He was eventually confronted by Constables Abbott and Dombroski who, by that stage, were armed.[3] According to Constable Abbott’s evidence, Steven advanced on him. Constable Abbott fired a warning shot into the air and told Steven to stop, or he would shoot him. When Steven continued to advance, Constable Abbott shot Steven four times from a distance of four to five metres. All four shots struck him and one of them penetrated his liver, mortally wounding him. Steven died at Taranaki Base Hospital a few hours later.

Investigations and prosecution

[3]Constable Abbott has since retired from the Police force and Constable Dombroski is now Sergeant Dombroski.

An internal Police investigation recommended against prosecuting Constable Abbott. The Solicitor-General separately considered the matter and affirmed the decision. The Police Complaints Authority commenced an investigation and obtained a report by a senior Police officer.[4] Due to the supervening commencement of a coronial inquest, the Authority did not complete its investigation or issue a report.
[4]Now the Independent Police Conduct Authority.
The coronial inquest was also adjourned when Steven’s father indicated he intended to commence a private prosecution against Constable Abbott for murder. Mr Wallace filed an indictment to that effect in 2001. A depositions hearing was held before Justices of the Peace and the parties agreed there was sufficient evidence to commit Constable Abbott for trial. Despite this, the JPs adjudged Constable Abbott to have acted in self-defence and discharged him.
In response, James Wallace filed an application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wallace v Attorney-General

Details

AGLC: Wallace v Attorney-General [2023] NZSC 66
Case: [2023] NZSC 66
Decision Date: 6 June 2023

CaseChat Overview and Summary

Raewyn Wallace, the mother of Steven Wallace who was fatally shot by Constable Abbott in 2000, sought leave to appeal the Court of Appeal's decision that dismissed her civil claim against the Crown. The claim alleged breaches of her son's right to life under section 8 of the New Zealand Bill of Rights Act 1990. Wallace had previously succeeded in part in the High Court but lost on appeal. The key issues were whether the Court of Appeal correctly interpreted the objective standard for self-defence in civil cases, the onus of proof in section 8 claims, and if a private prosecution can satisfy the State's obligation to investigate a death caused by State actors.

The Court found that the application for leave to appeal did not meet the criteria for addressing questions of general importance or those with insufficient prospects of success. The Court noted that the Court of Appeal's findings on self-defence, onus of proof, and the adequacy of the investigation were consistent with concurrent factual findings that Constable Abbott's actions were justified. The Court concluded that this was not an appropriate case for addressing these matters. The application for leave to appeal was dismissed with no order as to costs.

Orders