Hearing:	31 May 2022 – 1 June 2022
Court:	Miller, Gilbert and Goddard JJ
Counsel:	G E Minchin and C J Tennet for Appellant P J Gunn, N J Ellis and B M McKenna for Respondents
Judgment:	15 August 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe cross-appeal is allowed. The declarations made in Wallace v Attorney-General [2021] NZHC 1963 at [646] and [647] are set aside.
CNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Table of Contents

Introduction [1]
Narrative [18]

The events of 30 April 2000 [19]
Investigations following Mr Wallace’s death [31]

(a)       The police homicide investigation  [31]
(b)       The Crown decision not to prosecute  [34]
(c)       The initial Police Complaints Authority and Coroner’s investigations [35]
(d)      The private prosecution  [36]
(e)       The trial  [42]
(f)       The inquest  [49]
(g)       The IPCA investigation  [51]

The pleadings [54]
The trial before Ellis J [61]

The evidence  [61]
The submissions  [62]
The judgment  [67]

The appeal and cross-appeal [76]
The right not to be deprived of life [85]

Does s 8 extend to indirect actions of State actors?  [93]
The elements of self-defence in a claim under s 8  [100]
The burden of excluding or proving justification under s 8  [102]

Can the State’s obligation to investigate potentially unlawful deaths be enforced under s 8? [106]

The ICCPR obligation to investigate  [108]
Section 8 and the obligation to investigate  [111]
The qualities of an ICCPR-compliant investigation  [118]
Do existing processes oblige the State to conduct an ICCPR-compliant investigation?    [122]

(a)       Police investigations  [123]
(b)       IPCA investigations  [125]
(c)       Coroners’ investigations  [126]

Conclusion [128]

Did the criminal trial and the police, Coroner’s and IPCA investigations satisfy the art 6 obligation in fact? [133]

(a)       The police investigation  [134]
(b)       The criminal trial  [136]
(c)       The Coroner’s investigation  [144]
(d)      The IPCA investigation  [147]
(e)       The investigations overall  [148]

Was the use of lethal force justified? [149]

Limitations of the evidence  [150]
Did the Constable act in self-defence?  [159]
Was it reasonable to use a firearm in self-defence?  [162]
Was it reasonable to fire four shots in self-defence?  [167]

Did the planning and control of the operation contravene s 8? [171]

The decision to uplift firearms from the police station  [172]
Cordon and contain  [179]
Waiting for reinforcements  [182]
Provision of first aid  [183]

The decision not to assume control of the private prosecution  [190]
Limitation  [199]
Result  [200]

Introduction

On 30 April 2000 Steven Wallace went on a violent rampage in the town of Waitara, attacking the police station, a patrol car and numerous retail premises, and threatening bystanders. That led to two armed police officers approaching and attempting to reason with him. Mr Wallace advanced on one of the officers, Constable Keith Abbott, with a baseball…

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 [2022] NZCA 375
Case: [2022] NZCA 375
Decision Date: 15 August 2022 at 11.30 am

CaseChat Overview and Summary

Raewyn Wallace appealed against the decision of the High Court, which dismissed her claim for damages and declarations against the Attorney-General and the Commissioner of Police, arising out of the death of her son, Steven Wallace, in a confrontation with Constable Keith Abbott. The Attorney-General cross-appealed, contending that the High Court was wrong to find that Mrs Wallace’s right under s 8 of the New Zealand Bill of Rights Act 1990 had been breached. The Court of Appeal dismissed the appeal and allowed the cross-appeal. Mrs Wallace contended that s 8 of the New Zealand Bill of Rights Act 1990 was breached in two ways. First, she said that Steven Wallace lost his life unlawfully because Constable Abbott did not act in self-defence. Second, she argued that s 8 was breached because the police did not conduct the operation that ended in Steven Wallace’s death in accordance with their own procedures and good practice: had they complied, the officers would not have carried firearms or they would not have used the firearms. The Court held that Mrs Wallace’s appeal against the decision of the High Court must be dismissed. The Court held that the High Court was correct to find that Constable Abbott had acted in self-defence and that the use of lethal force was reasonable in the circumstances as the Constable understood them to be. The Court of Appeal also held that the High Court was correct to find that the failure of the police to implement a cordon and contain strategy, wait for the dog unit or provide first aid did not breach s 8 of the New Zealand Bill of Rights Act 1990. The Court held that the Attorney-General’s cross-appeal should be allowed. The Court found that the High Court was wrong to find that Mrs Wallace’s right under s 8 of the New Zealand Bill of Rights Act 1990 was breached.

Orders