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…
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- AGLC
- Wallace v Attorney-General [2021] NZHC 1963
- Case
- [2021] NZHC 1963
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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