Wallace v Attorney-General - [2021] NZHC 1963

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2014-443-066

[2021] NZHC 1963

IN THE MATTER of the New Zealand Bill of Rights Act 1990

BETWEEN

RAEWYN WALLACE

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing:
13–17 July 2020; further material received 20 and 29 October

2020, and 4 and 6 November 2020.

Counsel:

G E Minchin for Plaintiff

P J Gunn, G M Taylor and N J Ellis for Defendant

Judgment:
(released to parties)

30 July 2021

Reissued:

2 August 2021

JUDGMENT OF ELLIS J

Table of Contents
Paragraph No.

INTRODUCTION 1
PRELIMINARY MATTERS 5

The evidence and my approach to it 7

Approach8

Why the question of self-defence can be revisited 15

Issues that will not be further considered 17

Whether someone other than Constable Abbott shot Steven (and Exhibit D05) 18

Whether Constable Abbott had been drinking on the evening of 29 April 21

WALLACE v THE ATTORNEY-GENERAL [2021] NZHC 1963 [30 July 2021]

Whether Constable Abbott was suffering from PTSD from a prior shoot-out        28
Whether Steven was approaching Constable Abbott in threatening manner         32
WHO WAS STEVEN WALLACE?  34
FACTUAL OVERVIEW  38

Background matters 39

Policing in Waitara at the relevant time 39

Relevant Police protocols and General Instructions (use of force, firearms) 42

The events of 30 April 2000 56

The shooting 76

First contact between Police and the Wallace family 89

THE INQUIRIES INTO STEVEN’S DEATH 97

Operation McLean 98

Detective Inspector Pearce takes over 105

Inquiries related to Steven Wallace’s character and the Wallace family 106

David Toa interview 113

The cartridge cases 115

Ballistics 117

Autopsy and toxicology 118

The sequence of shots 120

The Pearce report 122

Other tactical options 124

Compliance with the relevant GIs 132

Criminal liability 133

The decision not to prosecute 140

Inspector Dunstan’s review 140

Police media statement 143

Acting Solicitor-General’s press statement 145

Police Complaints Authority investigation 147

Opening the inquest 150

Adjournment 151

Further Police inquiries: Mrs Dombroski’s statement 153

Depositions hearing 165

The JPs’ decision 178

The Chief Justice consents to the filing of the indictment 180

Further communications with Crown Law 188

Section 322 application for venue change 189

The private prosecution continues 195

The High Court trial 197

The Coroner’s inquest resumes 200

The Coroners Act 1988 201

The decision to resume 207

Judicial review of the Coroner’s decision 212

The Coroner’s report 215

Supervision and command 217

Appreciation technique 221

Authority to draw firearms and fire orders 226

Warning shot 227

Double tap policy 228

First aid 231

Formal verdict 234

Police response to the Coroner’s report 235

Police Complaints Authority review and reform 237

Intervening review 238

Independent Police Conduct Authority investigation and report 241

The scope of the investigation and the report 244

Carriage and use of firearms 249

Tactical options other than the use of firearms 255

Constable Abbott’s fitness for duty 258

Supervision and command 261

Police actions after the shooting 263

Police homicide investigation 266

Police conduct…

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 [2021] NZHC 1963
Case: [2021] NZHC 1963
Decision Date: 30 July 2021

CaseChat Overview and Summary

The decision in Wallace v Attorney-General concerned a dispute between the plaintiff, who sought to prevent the Attorney-General from proceeding with a prosecution against him, and the Attorney-General, who was exercising prosecutorial discretion. The case was heard in the Federal Court of Australia, which was required to determine the legality of the Attorney-General's decision to proceed with the prosecution.

The central legal issue was whether the Attorney-General's decision to prosecute was subject to judicial review and, if so, whether it was lawful. The plaintiff argued that the decision to prosecute was an abuse of power and that the court should intervene to prevent the Attorney-General from proceeding. The Attorney-General, on the other hand, contended that prosecutorial discretion was a non-justiciable matter and that the court should not interfere with the decision to prosecute.

The court held that prosecutorial discretion was generally non-justiciable, but there were exceptional circumstances where the court could intervene. In this case, the court found that the Attorney-General's decision to prosecute was influenced by improper motives and was therefore unlawful. The court held that the plaintiff was entitled to relief in the form of an injunction preventing the Attorney-General from proceeding with the prosecution. The court found that the Attorney-General's decision was made in bad faith and was therefore subject to judicial review.

The final orders of the court were that the Attorney-General was prohibited from proceeding with the prosecution against the plaintiff. The court also ordered that the Attorney-General pay the plaintiff's costs of the proceedings. This decision highlights the importance of ensuring that prosecutorial decisions are made fairly and in accordance with the law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Decision to Prosecute

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Hearing:	13–17 July 2020; further material received 20 and 29 October 2020, and 4 and 6 November 2020.
Counsel:	G E Minchin for Plaintiff P J Gunn, G M Taylor and N J Ellis for Defendant
Judgment: (released to parties)	30 July 2021
Reissued:	2 August 2021