Wallace v Attorney-General
[2021] NZHC 1963
•30 July 2021
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 at Constable Abbott’s trial 268
Family concerns 269
Police policy and procedures 270
SECTION 8 NZBORA: THE RIGHT TO LIFE 271
The international human rights context 277
UNLAWUL KILLING 287
Is the justification of self-defence established by law and consistent with the
principles of fundamental justice? 288
Self-defence: established by law? 289
Self-defence: consistent with the principles of fundamental justice? 292
Self-defence: an established exception to art 2 296
Conclusion 298
Are the elements of self-defence in a s 8 claim the same as the elements of
self-defence in a criminal proceeding? 299
In a s 8 claim where self-defence is raised, on whom does the burden of
proof lie? 307
HAS THE CROWN ESTABLISHED SELF-DEFENCE HERE? 312
What were the circumstances as Constable Abbott believed them to be? 314
Was his belief as to those circumstances reasonable? 324
Did the use of a firearm constitute reasonable force, given the circumstances? 327
Was firing four shots reasonable, given the circumstances? 334
Shot sequencing and the fatal shot 341
Was the second double tap fired in self-defence? 356
Conclusion 374
DOES S 8 ENCOMPASS AN OBLIGATION TO INVESTIGATE? 375
What is the content of the s 8 investigative obligation? 385
Independence 390
Effectiveness 396
Promptness 402
Accountability 403
Involvement by next of kin 404
HAS THERE BEEN A RIGHTS-COMPLIANT INVESTIGATION INTO
STEVEN’S DEATH? 411
What role can the criminal trial play in meeting the s 8 obligation? 412
The Police homicide inquiry 424
Independence 429
Effectiveness 449
Accountability 470
Timeliness 475
Family involvement 476
Conclusion 478
PCA Inquiry 479
Criminal Trial 480
The Inquest 481
So was the (resumed) inquest in this case “effective” in terms of s 8? 503
The IPCA investigation 507
Independence 507
Effectiveness 509
Accountability 512
Promptness 513
Family involvement 514
Conclusion 515
DOES S 8 IMPOSE PLANNING AND CONTROL OBLIGATIONS? 517
The ECtHR cases 518
The English and Welsh cases 530
Davis 530
DSD 533
Causation? 540
So can planning and control failures constitute a breach of s 8? 547
WAS THE PLANNING AND CONTROL OBLIGATION
BREACHED HERE? 552
The pleadings, and my approach 552
Analysis 556
The initial encounter 557
The decisions that put Steven’s life at risk 559
Command and control 576
Failure to administer first aid 578
THE REFUSAL TO PROSECUTE 580
Refusal to prosecute: the law 584
The Solicitor-General’s 1992 Guidelines 592
Discussion 594
Were reasons required in this case? 603
Were adequate reasons provided? 607
REMEDIES AND RELIEF 617
SUMMARY AND CONCLUSIONS 627
The claims under s 8 628
No breach of the substantive right 635
Obligation to investigate 638
Planning and control 639
Review of the second decision not to prosecute 643
FORMAL RESULT 646
COSTS 649
POSTSCRIPT 652
INTRODUCTION
[1] For reasons that are still not understood today, in the early hours of 30 April 2000 Steven Wallace became extremely angry. He vented his anger by breaking windows at the Waitara Police Station and then along the main street of the town using a set of golf clubs and a baseball bat. When Police arrived at the scene, he struck the windscreen of the patrol car with one of the clubs. Two officers then went to the nearby Police Station. They armed themselves with Police regulation Glock pistols and returned to the scene. Sixty-four seconds later, Steven Wallace had been shot four times and was lying in the middle of the road, mortally wounded. He died on the operating table at 9.05 am, that same morning.
[2] From the first to the last, Steven Wallace’s encounter with Police lasted six minutes. He was 23 years old.
[3] In these proceedings, Steven’s mother, Raewyn Wallace, makes a claim against the Crown relating to his death.1 Mrs Wallace’s principal claim is that the events of 30 April 2000 and their aftermath breached Steven’s right to life under s 8 of the New Zealand Bill of Rights Act 1990 (the NZBORA). This follows a private prosecution brought by the Wallace family against the officer who fired the shots, Constable Keith Abbott,2 that resulted in his acquittal for murder. Mrs Wallace says that despite the acquittal, Steven’s death cannot be justified as a killing in self-defence. Mrs Wallace seeks declarations to these effects and compensation.3
[4] An earlier application by the Crown to strike out Mrs Wallace’s claim did not succeed. Brown J noted that the claim raised difficult and novel issues, which it certainly does.4 The principal of them are:
(a)whether the shooting was in self-defence, and thus a deprivation of life on grounds established by law and consistent with the principles of fundamental justice, in terms of s 8 of the NZBORA;
(b)whether s 8 imposes an obligation on the Crown to investigate Steven’s death;
(c)if so, whether that obligation was met through the various inquiries that did occur into the circumstances of Steven’s death;
1 The proceedings were commenced on 18 September 2014 by Steven’s father, James, acting as administrator of Steven’s estate. After James’s death, Steven’s mother Raewyn took them over. Although the proceedings named both the Commissioner of Police and the Attorney-General as defendants, I agree with the Crown that the Commissioner is not vicariously liable for the acts of omissions of individual officers. The Attorney-General, on behalf of Police, is the only appropriate defendant.
2 Although Constable Abbott is often referred to as “Senior Constable” Abbott, the “Senior” signifies seniority not rank, and was not part of his official designation.
3 She seeks compensation of $200,000 for the right to life breach and $75,000 for the right to justice breach (which is the amount paid by the family to bring the private prosecution against Constable Abbott).
4 Wallace v Commissioner of Police [2016] NZHC 1338.
(d)whether s 8 imposes an obligation on state actors (including Police) to plan and control potentially life-threatening operations in a way that minimises the risk to the life of individuals;
(e)if so, whether that obligation was breached here and;
(f)whether the Solicitor-General’s second decision not to prosecute the officer concerned constituted a breach of s 27 of the NZBORA or was otherwise unlawful.
PRELIMINARY MATTERS
[5] Steven was killed over 20 years ago. The passage of time, the wealth of relevant material and evidence, and the nature of the matters at issue have presented some unique challenges for the Court. As I said on a number of occasions to Mr Minchin (who appeared on behalf of Mrs Wallace) these proceedings are not and cannot be a de facto Commission of Inquiry. That said, aspects of this case seem to have come very close to one.
[6] For those reasons, it seems useful to begin by explaining how I have attempted to tackle those challenges. I explain why the question of self-defence can be revisited in this case. And I also explain why certain matters raised by Mrs Wallace’s claim go beyond what I am prepared to consider in this judgment.
The evidence and my approach to it
[7] By dint of the long history of this matter, which includes a Police investigation, a depositions hearing, a criminal trial, an inquest, and an investigation by the Independent Police Conduct Authority (IPCA), the evidential picture is complex. The Court had before it the following material, all of which I have attempted to review and consider:
(a)the formal written statements made by witnesses soon after Steven’s death;
(b)the notes of evidence from the depositions hearing and criminal trial of the police officer concerned;5
(c)notes of evidence from the Coroner’s inquest;
(d)the various reports that have been written about the circumstances of Steven’s death;
(e)further documentary evidence in the common bundle (some of which is admitted by consent);
(f)DVDs containing (among other things) television footage from both the time of the shooting and the criminal trial;
(g)the oral evidence of five witnesses given in this High Court proceeding; and
(h)a statement of agreed facts dated 20 September 2019.
Approach
[8] Strictly speaking, the record of the evidence given previously, in other forums, is hearsay. But the parties were agreed that—subject to any specific objections—I could accept it as admissible. I agree that such evidence passes the thresholds in s 18 of the Evidence Act 2006 (the EA) in that:
(a)the evidence was given under oath, which, provided the witnesses’ answers under cross-examination are also included, provides a reasonable assurance of reliability; and
(b)undue expense and delay would be caused if the (former) witnesses were required to be witnesses in these proceedings.6
5 The transcript from the depositions hearing is, itself, some 1,200 pages long. The transcript of the evidence at trial is 440 pages.
6 I also note that this was the approach adopted by the Coroner in the 2003 inquest into Steven’s death and accepted by Randerson J in this Court on review in Abbott v Coroners Court of New Plymouth HC New Plymouth CIV-2004-443-660, 20 April 2005.
[9] More difficult, however, are questions of weight and questions of how conflicts in the evidence should be resolved. Although the Crown submitted that the (limited) evidence given in this Court should be given the most weight,7 I am not sure I agree. For example, if something said by a witness in 2020 conflicts with evidence he or she gave at a time much closer to the shooting, there are good reasons for preferring the reliability of the earlier account.8
[10] Similarly, I am not sure why preference should be accorded sworn evidence given in the criminal trial as opposed to sworn evidence given during depositions. The Crown submission that the trial evidence should be preferred because it is later in time is not especially convincing. In a case such as this, it is just as logical that evidence given at a time closer to the events in question would be more reliable.
[11] All that being said, however, I have found in the course of writing this judgment that issues and difficulties of the sort just mentioned have proved more theoretical than real. I therefore do not need to express a concluded view on those issues.
[12] The documentary material that has never been produced through a witness at any of the previous hearings is arguably different. It, too, is hearsay. Some would be admissible by virtue of the business records exception contained in s 19 of the EA. For example, the report prepared by Detective Inspector (DI) Pearce at the conclusion of the Police homicide inquiry (the Pearce report), which is potentially central to both the “investigation” aspect of the s 8 claim arguably falls into this category. But statements made to Police in the course of the homicide inquiry (many of which are repeated verbatim in the Pearce report) are expressly excluded from the EA definition of “business records”.9 Nonetheless, in the circumstances of this case, I consider such formal statements also pass through the s 18 admissibility gateway. Where the makers of such statements went on to give sworn evidence either at depositions or at trial, however, I will (if necessary) afford primacy to that later sworn evidence.
7 Again, subject to any specific relevance or admissibility issues.
8 I am referring to Sergeant Dombroski by way of example only. I am not saying that there were any material conflicts between his various statements.
9 This exception (which was inserted in 2016) seems intended primarily to catch statements made by witnesses to Police officers and written down by the officers in their notebooks.
[13] I do not propose to address specific admissibility challenges at the outset. Rather, I will simply deal with them individually if and when the need arises.
[14] And lastly, it is important to note as a preliminary matter that, as I understand it, Constable Abbott has long since left the Police force. He was not a party to this proceeding and was not called to give evidence at the hearing before me, although the other officer directly involved in the shooting (Constable Jason Dombroski10) was. While there is no claim now made against Constable Abbott personally, there might still have been a natural justice concern if Mrs Wallace had succeeded in her substantive s 8 claim. In light of my conclusion on the question of self-defence, however, the concern does not need to be addressed.
Why the question of self-defence can be revisited
[15] Despite Constable Abbott’s acquittal at trial, the Crown accepts that the question whether he killed Steven in self-defence is at large in these proceedings. That is because the acquittal established only that the jury was not satisfied beyond reasonable doubt that he had not acted in self-defence. Moreover, and as I will explain later, the standard, and the burden, of proof is different (and more favourable to Mrs Wallace) in these proceedings.11
[16] As I will also discuss in more detail later, the post-trial investigations into the incident—by the Coroner and the IPCA—proceeded on the assumption that the jury’s verdict represented a positive finding that the shooting was justified in self-defence. As just noted, that is not the case. The jury would have been bound to acquit Constable Abbott even if they had thought Constable Abbott had probably not acted in self- defence.
10 Constable Dombroski has since become Sergeant Dombroski. But for the purposes of consistency with the other inquiries and reports, I will refer to him by his rank at the relevant time.
11 The Crown accepts that the civil standard of proof (the balance of probabilities) applies, but disputes that the burden of proof has shifted away from Mrs Wallace. That issue is discussed later in this judgment.
Issues that will not be further considered
[17] A number of the factual matters raised by Mr Minchin on Mrs Wallace’s behalf have, in my view, been fully ventilated and unassailably determined in the past. As well, there are several other issues raised by Mr Minchin that, while relatively new, simply do not have an adequate evidential foundation. I think it is useful to address these at the beginning of this judgment so that no further time need be spent discussing them.
Whether someone other than Constable Abbott shot Steven (and Exhibit D05)
[18] Mrs Wallace now questions whether it really was Constable Abbott who shot Steven. The suggestion is that it may have been Constable Dombroski who (also or instead) did so.
[19] Mr Minchin submitted that this theory is supported by the location in which Police found a relatively undamaged bullet (in front of the pharmacy, behind and to the left of where Constable Abbott was standing at the time of the shooting). The bullet, labelled by police as Exhibit D05, had fragments on it that matched Steven Wallace’s clothing, indicating that it had hit him. Evidence from Mr Wilson (a forensic scientist) at depositions confirmed that there was no reasonable explanation as to how it had ended up there, with him saying “it is highly unlikely that it has hit the post office and rebounded that far back across the road”. His suggestion was that it must have been moved by a passer-by before it was found.
[20] I am unable to accept this submission. While there were admitted forensic omissions by Police at the beginning of their investigation (the failure to test the guns, or the hands of the officers for gunpowder residue, discussed later) the theory is inconsistent with the location and grouping of the spent cartridges. It is not supported by the ballistics evidence (discussed below), which confirmed that all bullets were fired from the same pistol. Moreover, the proposition that Constable Abbott would accept responsibility for shots he had not fired is deeply counter-intuitive.
Whether Constable Abbott had been drinking on the evening of 29 April
[21] Constable Abbott was awoken at around 3 am on 30 April to attend the incident involving the breaking of the windows. At various points it has been suggested that he might have consumed alcohol only a few hours before the shooting and that he was, accordingly, to some extent impaired.
[22] Inquiries were made as to Constable Abbott’s activities before going to bed on the evening of 29 April during both the initial Police investigation and the later IPCA investigation. In particular, the inquiries focused on rumours that Constable Abbott had attended a private function at the Waitara Fire Station late that night, drinking alcohol while there.
[23] Police interviewed members of the public with whom Constable Abbott had interacted between 3 pm and 11 pm on 29 April (when he was on duty). Also interviewed were his wife and those who had attended the fire station function, who all said he had not been there. That was confirmed by a check of the Waitara Police Station communication devices, which included details of Constable Abbott’s activities. The police investigation concluded that Constable Abbott had not attended a private function that evening.
[24] And in its much later report, the IPCA concluded the same, saying that there was no evidence Constable Abbott had attended the function:
The evidence of both inquiries indicates that Senior Constable Abbott did not attend either function, and that these rumours have no foundation. Rather, the evidence establishes that Senior Constable Abbott worked his rostered shift from 3pm to 11pm on Saturday 29 April 2000 and arrived home at about 11.15pm. After eating a meal and consuming a non-alcoholic drink he watched television and went to bed at about midnight. The next event was his urgent recall to duty at 3.48am on the morning of Sunday 30 April 2000.
[25] Nor is it possible that Constable Abbott attended an Armed Offenders Squad (AOS) farewell function that evening. Although Constable Abbott was a member of the AOS, the function had been in New Plymouth. The evidence summarised above similarly establishes that he did not attend it.
[26] Mr Minchin nonetheless urged me to find otherwise, by drawing an inference from:
(a)the fact that the Fire Station (or the AOS) function was one that Constable Abbott might ordinarily have attended;
(b)Constable Abbott’s mistaking of Steven for an acquaintance of his named David Toa (a point discussed separately later) which,
Mr Minchin says is otherwise “inexplicable”; and
(c)the failure by Police to administer a breath or blood alcohol test to Constable Abbott immediately after the incident.
[27] It is simply not open to me to do as Mr Minchin asks. Even without the other, direct and conflicting evidence referred to by the IPCA, the points just mentioned would be an inadequate evidential basis for such an inference. I take the point no further.
Whether Constable Abbott was suffering from PTSD from a prior shoot-out
[28] Constable Abbott had been a member of the AOS from December 1986 and attended numerous callouts involving armed offenders. In 1991, along with other AOS officers, he was shot at during an attempted aggravated robbery by an armed gang at the TSB Bank in Moturoa near New Plymouth.
[29] Mr Minchin submitted that it is likely (and that the Court can be satisfied) that, as a result of this incident, Constable Abbott was suffering from post-traumatic stress disorder (PTSD) and that his judgement on the morning of 30 April 2000 was affected by it. I believe the basis for this contention was twofold. First, the shoot-out would, undoubtedly, have been extremely frightening. And secondly, it relies on material obtained by the Wallace family’s lawyer (Mr Rowan QC) that was not led in evidence at Mr Abbott’s trial. That material seems to have been derived from a supposedly anonymous interview (the interviewee later being said to be Constable Abbott) with The Daily News about a year after the shootout but republished after the end of Constable Abbott’s 2002 trial, under the banner “Shootout haunted Abbott”. It included the following:
Mr Abbott suffered flashbacks, anxiety attacks, and tearful bouts of depression after the December 1991 shootout at New Plymouth’s Moturoa PostBank. He also declared he would shoot to kill if caught in the same situation again.
Fortunate not to be hit when an armed robber fired at him from close range, Mr Abbott described the ordeal as “the most horrendously mind-shattering experience I had ever encountered”.
He sought help from a psychologist, had trouble sleeping, and temporarily transferred to a desk job at the New Plymouth Police Station.
…
Mr Abbott struggled to cope in the aftermath of the PostBank showdown.
“Coming to terms with how close to death I had come played havoc on [sic] my life,” Mr Abbott said.
“Repeated visits to a psychologist during the first few weeks has failed to clear the problem adequately.
“It has resulted in sleepless nights and, sometimes with no apparent warning, periods of tearful depression have overcome me.” He concluded: “I will be seeking to continue my professional therapy, but see the only cure as time.”
[30] Even assuming that the originally unidentified interviewee was, indeed, Constable Abbott, such reports are not a sufficient evidential basis for concluding that he was suffering from PTSD either at the time of the interview or almost a decade later. Moreover, this issue too was dealt with as fully as possible by the IPCA in 2008, when it went so far as to seek expert advice on the issue. The Authority said in its report:12
Based on the opinion of an expert in PTSD who was consulted by the Authority, given the passage of time it is not possible to conclusively establish whether or not Senior Constable Abbott was suffering from any form of trauma, including post-traumatic stress disorder, on 30 April 2000. However, there is no evidence to indicate that he was.
[31] No expert evidence to the contrary was identified or given before me. There is no possible basis on which I can take this matter further.
Whether Steven was approaching Constable Abbott in threatening manner
[32] Until the hearing before me, it had never been disputed that Steven was walking towards Constable Abbott in a threatening manner (armed with golf club and
12 The IPCA did, however, make a recommendation about how Police policy could be improved in this area, noting that it was already under review.
bat) as he (Constable Abbott) backed down the main street of Waitara. As I understood it, Mr Minchin’s new contention was either that it was Constable Abbott who was pursuing Steven down the street and/or that Steven was not walking directly towards Constable Abbott in a threatening way at the time he was shot. He says that, rather, Steven had simply changed his course slightly in order to avoid the car containing Constable Herbert, which was parked a little further up the road.
[33] Putting to one side the impossibility of interrogating that new theory 20 years after the event, it really makes no difference. As discussed in more detail later, there simply can be no doubt that Constable Abbott perceived that Steven was approaching him menacingly with the bat raised (having already thrown the golf club at him) while threatening to hurt or kill him. The reasonableness of that belief is confirmed by the evidence of the other officers and of bystanders. By way of example only, I note that counsel for the Wallaces at the criminal trial formally accepted that bystanders had heard Steven say “I’m going to fuck you up” a few seconds before the gunshots.
WHO WAS STEVEN WALLACE?
[34] Because of the fraught circumstances of Steven’s death and its aftermath, it is easy to forget that real people were involved, including most centrally, Steven himself. And because aspects of the Police homicide investigation did involve an element of victim blaming (a matter discussed later below), it is important to record that Steven was a young man with many positive attributes, who was much loved by his family. Their determined pursuit of this difficult claim is evidence of that.
[35] Steven James Wallace was the elder child of Mr James Wallace and Mrs Raewyn Wallace, although Raewyn had other children. He was born in New Plymouth and has whakapapa connections to Te Ātiawa. At the time of his death, he was living with his parents and sister at the Wallace family home in Waitara.
[36] At secondary school, Steven had showed real academic promise; he was awarded the Ngahina Okeroa prize for Senior Māori Scholar at Waitara High School in 1994. He received several other accolades including outstanding achievement in mathematics, science, and technical drawing. He had scored in the top five per cent for graphics in New Zealand, and this led him to take architecture papers at university.
His reluctance to take on student debt caused him to leave university to earn money, which he did by working with his father at Taranaki Farm Kill Services.
[37] Steven was also a talented sportsman; in particular, he attained awards for outstanding achievement in rugby. He played softball, a bit of tennis, ran, and lifted weights. I have no doubt that he had the ability and the capacity to make a positive contribution to the community in which he lived.
FACTUAL OVERVIEW
[38] Before turning to a narrative of the relevant events, it is necessary to set out certain matters of context.
Background matters
Policing in Waitara at the relevant time
[39] Waitara is a small town in North Taranaki. In 2000, it had a population of around 6,000. At that time, the Officer in Charge of the Waitara Police Station was an acting sergeant with responsibility for four small outlying stations and 17 staff. Two Police officers were rostered to be working at the station at any given time, but on most occasions only one officer was on duty due to annual leave and other commitments.
[40]The Waitara Police Station closed at 11 pm every night.
[41] The nearest available back-up for the Waitara Police were the officers stationed at New Plymouth, approximately 18 minutes away.
Relevant Police protocols and General Instructions (use of force, firearms)
[42] In 2000, the New Zealand Police Force was generally unarmed. But its Operations Manual recognised that firearms should be available when needed.
[43] The Police General Instructions (GIs) contained several sections dealing with the use by Police of firearms. The GIs refer to provisions of the Crimes Act 1961
(the CA) dealing with justification and the use of force. They emphasise that police are criminally liable for excess force and that “an overriding requirement in law is that minimum force must be applied to effect the purpose”.
[44] GI F059 states that Police firearms are not to be issued except on the authority of a commissioned officer or a supervising non-commissioned officer, unless an emergency situation exists and neither aforementioned officer is available. Certain particulars regarding the issue of firearms and ammunition must be recorded in the Firearms Register, and each staff member is required to have a detailed knowledge of policy and the CA in relation to the use of firearms by Police.
[45] GI F060(6) authorises the issue of firearms to members in any of the circumstances prescribed in GI F061(2), which prohibits the use of firearms by Police except:
(a)To defend themselves or others (Section 48 Crimes Act 1961) if they fear death or grievous bodily harm to themselves or others, and they cannot reasonably protect themselves, or others, in a less violent manner.
(b)To ARREST an offender (Section 39 Crimes Act 1961) if they believe on reasonable grounds that the offender poses a threat of death or grievous bodily harm in resisting his arrest;
AND
the arrest cannot be carried out in a less violent manner; AND
the arrest cannot be delayed without danger to others.
(c)To PREVENT THE ESCAPE of an offender (Section 40 Crimes Act 1961) if it is believed on reasonable grounds that the offender poses a threat of death or grievous bodily harm to any person (whether an identifiable individual or the public at large);
AND
he takes flight to avoid arrest or escapes after arrest; AND
such flight or escape cannot reasonably be prevented in a less violent manner.
[46]GI F061(3) directs that an offender is not to be shot:
(a)until he or she has first been called upon to surrender, unless in the circumstances it is impracticable and unsafe to do so;
AND
(b)it is clear that he or she cannot be disarmed or arrested without first being shot;
AND
(c)in the circumstances further delay in apprehending him or her would be dangerous or impracticable.
[47] GI F064 discourages the firing of warning shots because of the difficulty in making it clear to an offender that “he is in fact receiving a warning and not being shot at”. The instructions note:
Any misconception in this regard may precipitate the offending action that a warning shot is trying to prevent.
[48] But warning shots are recognised as potentially appropriate in circumstances where there is no danger to bystanders and the offender has been called upon to surrender and has failed to do so.
[49] GI F066 authorises the deliberate discharging of a firearm in any of the circumstances in GI F061.
[50] As well, the Police Manual of Best Practice reinforces that a shooting must be both necessary and justified in law at the time of the shooting. The Manual reminds officers that there is no legal justification for shooting a person when he or she is no longer a threat to life, irrespective of his or her previous actions. It also reiterates that officers may be criminally liable if the force used is excessive.
[51] Officers are required to evaluate the prevailing circumstances before firing a shot. The onus of assessing the situation at the time of firing is on the Police officer pulling the trigger unless another officer giving the order can make the assessment at the time he or she orders the shot to be fired.
[52] The Manual emphasises in its “Basic Principles” section that Police procedures governing the use of firearms call for caution. When the actions of the suspect permit, the Manual counsels that time should be taken to cordon the area and that a “wait and appeal” role should be adopted in order to negotiate a surrender. But the Manual also stresses:
… if the suspect is acting in a way that makes casualties likely, police must act immediately to prevent this.
[53] The New Zealand Police Firearms Instructors Manual contains a section on when multiple shots are appropriate. It notes that while the starting point may be a standard double tap, that is not always sufficient. Indeed, the training module on multiple shots notes:
In general, multiple shot techniques (all of them, regardless of how many rounds are fired) best lend themselves to close confrontational situations where the immediate stoppage of any adversary is the primary concern.
… the outermost bound for many of these drills should be limited to three or five metres. We also believe that the closer the adversary is, the more important his “immediate stoppage” is.
…
Two shots, while often better than one, might not create the “immediate stoppage” we require. If the shooter has become programmed to fire two rounds and to then move on to another target or reassess the hits on the first, the shooter might well die as a result.
The shooter must be taught to judge the severity of each threat faced, based on a number of factors (we feel distance is the key) and to fire as many rounds as is necessary until the threat is negated. …
[54] Police training in the use of firearms is always to shoot for the greatest body mass and to shoot until the suspect is stopped. The training module produced in evidence at trial includes a multiple shot drill, which states the technique is “designed to be used against [an adversary] who poses an immediate life-threatening situation inside five metres”. It emphasises that it must only be used when department policy and law justify the use of lethal force and immediate stoppage is necessary to prevent the adversary from gravely injuring or killing another.
[55]The module goes on to define “dangerous space”, noting that it only takes
1.5 seconds for an adversary to cover five metres, leaving only one second (accounting
for reaction time) for an officer to incapacitate the threat. It states that once the decision is made to employ the multiple shot technique, the procedure is extremely fast. The first shots are to hit upper centre mass, with the pattern then tracking vertically upwards to increase chance of incapacitation. It notes that the “number of rounds fired depends on the shooter, but four to five seems to be the norm”.
The events of 30 April 2000
[56] The narrative that follows is largely based on the evidence at the criminal trial. In terms of timings, the most reliable record is the transcript of the Communications (Comms) made over the Police radio at the time and, when possible, I refer to it.13 Cell phones were, of course, much less commonplace at this time and data from them do not feature in the evidence.
[57] On the evening of 29 April 2000, after cooking for his family and eating dinner with them, Steven went to a night club in New Plymouth. He stayed there, drinking and socialising, into the early hours of the following morning. Witnesses from the night club, both those who knew Steven before and those who did not, described him as acting normally, albeit a little quiet. Witnesses who knew Steven said that he was there by himself but was mixing with others and did not appear angry or agitated—he seemed relaxed and in a good mood.
[58] By the time Steven arrived back at his family home in Waitara, at some time after 3 am, his mood had changed. Family members were awakened by the screeching of his tyres. His father and sister went outside to meet him. Steven was yelling and swearing. When asked why he was upset, Steven is reported to have told his sister, “You know what it’s like”. They told him to come inside, but after visiting the garage Steven got back into his car, taking off at speed.
[59] Raewyn Wallace was sufficiently concerned about Steven’s behaviour to call 111, which she did at 3.37 am. She terminated the call before it was answered. She
13 The recollection of individual witnesses as to precise times is very variable and, when judged against the Comms recording, almost wholly unreliable. That is not a criticism of the witnesses themselves but largely (I would think) a function of the fact that the events occurred in the early hours of the morning, when a number of witnesses had been roused from their sleep.
and her daughter then walked with her three grandchildren to another daughter’s house, nearby. James Wallace, Steven’s father, stayed at home.
[60] At some point before 3.45 am, Steven started smashing the windows of the Waitara Police Station in Domett Street, which was—at that time of night—deserted. He yelled to Police to come outside. Neighbours eventually called 111.
[61] At 3:46:06, Comms notified Sergeant Fiona Prestidge (who was at that point at the New Plymouth Police Station) of the call, reporting that the neighbour had reported someone breaking windows at the Station. A police patrol car containing Constable Jason Dombroski and Constable Jillian Herbert14 (who were in New Plymouth on duty) were directed to drive to Waitara. Constable Dombroski asked the Police controller to call out Constable Abbott to assist.
[62] Comms reported that there had been further calls from different informants about someone breaking windows and vandalising the phone at the Waitara station. The advice was:
Description is a male 20 years, Māori, dark clothing, pants, jersey. Apparently he was on his own.
[63] It seems that at some point between around 3.45 am and 3.50 am, Steven returned briefly to the family home. The evidence was that he continued to curse and went into the shed, before jumping back in his car and speeding off. By this point it appears that he had blown the front tyre of his car, as a number of witnesses (including his father, James) commented on the flapping noise it was making.
[64] Next, at 3:56:54, there was a call reporting that the window detector alarm had gone off at the New World supermarket on Queen Street. That was caused by Steven breaking windows there.
[65] It seems Steven then drove to the main street of Waitara. He drove his car round the wrong side of the roundabout on Queen and McLean Streets (narrowly missing a
14 Constable Herbert was, at that time, known by her maiden name of “Curtin”.
taxi) then up on to the footpath, at the intersection of McLean and Domett Streets. He began smashing the windows of a chemist shop.
[66] When the taxi passed on its return trip, Steven crossed the road swinging a baseball bat. He smashed the driver’s window, although the driver had the impression that he was aiming for the windscreen. The driver went into a nearby petrol station and also rang Police.
[67] Steven twice moved aggressively towards a Holden driven by some young people who knew him and had attempted to intervene. The driver left in a hurry each time, afraid that Steven would damage his car.
[68] In the meantime, the patrol car containing the two officers from New Plymouth pull up beside Steven’s car. Steven then hit the front windscreen with a golf club, causing it partially to shatter. He also smashed the driver’s window. This caused Constable Dombroski to report to Comms (at 3:57:08):
Oh someone’s just attacked us with those, … has smashed our window of the car. Call Keith Abbott this guy’s really fucked off. He’s smashing all the windows in town. He’s got a, ah, golf club. He’s going nuts. Call Keith, let him know.
[69] Thirty seconds later Constable Dombroski told Comms to “Phone the Waitara Police Station and tell Keith to bring a gun out”.
[70] As it transpired, Constable Abbott had by then left the empty Police station and gone up to McLean Street to see what was happening. It was from there that he saw Steven break the windows of the patrol car. He returned to the station of his own accord, having decided independently that a firearm would be required.
[71] The patrol car met up with Constable Abbott at the Police Station. Constable Dombroski remained with Constable Abbott and Constable Herbert was sent back to McLean Street in the damaged patrol car to observe. While there, the two officers armed themselves with Glock pistols, loading them with magazines containing 17 rounds. They took extra magazines with them. They agreed between themselves that the offender was a “nutcase”. Neither put on helmets or body armour, the latter
of which was designed only to protect against bullets, not blunt weapons. Constable Dombroski had left his PR24 baton in the patrol car and did not take another one. Constable Abbott had his baton with him. Both officers had OC (pepper) spray. Neither Constable Dombroski nor Constable Abbott signed the Firearms Register at that time.
[72]At 3:58:44 Constable Herbert reported to Comms that:
This guy is running all around Waitara smashing anything he can find including he’s trying to get taxis.
[73] At 3:59:16 a decision was made by Sergeant Prestidge to call out the dog handler (Delta Unit) from New Plymouth, and at 4:00:00 there was confirmation that this had occurred. Constable Dombroski and Constable Herbert were aware of this, but Constable Abbott later said that he was not.
[74] At 4:00:38 there was a decision made that another local officer, Sergeant O’Keefe, should be called to the scene.
[75] At 4:01:07 Constable Herbert, watching from her car, advised that Steven had moved up the street and was smashing more windows there. She said that he was getting back in his car and then that he had driven to the Major Decorating shop, beyond the intersection of McLean and Grey Streets. Constable Herbert remained parked near the intersection of McLean and Domett Streets. Constable Dombroski told Constable Herbert to stay where she was.
The shooting
[76] The two armed officers drove past Constable Herbert and parked just before the intersection of McLean and Grey Street, on the (Northern) Waitara side. At that stage Steven Wallace was beside his car, which was parked outside the Major Decorating shop, on the New Plymouth (Southern) side of the intersection.
[77] Constable Abbott and Constable Dombroski got out of their car. Constable Dombroski drew his gun and shouted that they were armed police and that Steven should drop his weapons. Constable Abbott, mistakenly believing that he was dealing
with his former neighbour David Toa, attempted to talk to Steven, addressing him as “David” or “Dave”.15 This caused Steven to turn his attention away from Constable Dombroski and towards Constable Abbott. At that point Constable Abbott had his baton in his hand; his gun remained holstered. Constable Herbert reported at 4:02:48:
[Dombroski] and Abbott are out there with firearms and this guy is just mouthing off at them at the moment. He’s just walking along. He’s got this big bar, but they’re staying quite a way back.
[78] Eyewitnesses also gave evidence of shouting, and several heard Steven swearing and saying things like, “Fuck you I’m going to fuck you up” and, “You’ve pushed me too far” and “Who’s gonna make me?”.
[79] Steven advanced on Constable Abbott, who began backing away, moving northeast down the street. Constable Abbott continued to speak to Steven, saying things like, “David, David, what’s going on, what are you doing, it’s me, Keith Abbott”. Steven threw a golf club in his direction; Constable Abbott ducked, and the club flew either over or past him.16
[80] Constable Abbott then holstered his baton and then drew and racked17 his pistol, saying to Steven that he was armed. He said Steven was holding the baseball bat over his shoulder in an “axe grip”. Constable Abbott said that he was convinced Steven would attempt to hit him with the bat and that he feared for his life. After retreating about half of the block, he fired a warning shot into the air at a 45-degree angle, when the gap between him and Steven was about half the width of the road.
[81]At 4:03:06 Constable Herbert reported:
He’s about 20 metres up towards New Plymouth from the Post Shop and he’s, he’s um, really amped up. He’s heading down the road towards Keith. They might have to take him down. Here he comes.
[82] Constable Abbott’s evidence at trial was that after the warning shot, Steven changed his angle slightly in what he thought was an attempt to block his escape
15 The officers did not check the registration number of Steven’s car before they approached.
16 That the golf club was thrown in the direction of Constable Abbott was also confirmed by an eyewitness, Mr Atkinson.
17 Evidence at the criminal trial confirmed that racking the pistol makes a distinctive noise.
(which would have been to turn west into Domett Street, about 20 metres to Constable Abbott’s left).18 Steven continued to advance in a determined manner. Constable Abbott says he warned Steven that he would shoot if he came any closer. His evidence was that he could not continue retreating backwards because he was running out of room: he knew he was getting close to the gutter but could not see it. He was concerned that accidentally backing into or onto the gutter might cause him to trip, leaving him vulnerable to an attack. The three officers’ evidence was that Steven was yelling constantly words to the effect of: “I’m going to fucking kill you, you fucking arsehole”.
[83] Once Steven was within four or five metres of him, Constable Abbott fired four shots (two double taps) in rapid succession. All four bullets hit Steven, who stumbled and then fell to the ground slowly, dropping the bat. The officers’ evidence was that even after being shot, Steven tried to stand up and continued to yell abuse, an account supported by eyewitnesses. After Steven was on the ground, Constable Abbott said he stayed in place so that his position could be fixed. While waiting for Constable Dombroski to find some tape for that purpose, he rang two colleagues, including Detective Senior Sergeant Grant Coward, for support.
[84] At 4:03:33, Constable Herbert reported: “Yeah he’s down. Can we get an ambulance out there?” At 4:03:59, Constable Dombroski confirmed, “Yeah we’ve got one down.” And at 4:04:18, Constable Herbert advised, “Yeah, he’s no longer a threat”. Shortly after that, Constable Dombroski approached Steven and told him that an ambulance was on the way. The constable’s assessment was that little first aid could be administered.
[85]At 4:07:35 the dog handler was advised that he was no longer needed.
[86] Upon her arrival at about this time, Sergeant Prestidge visually examined Steven and observed that there appeared to be minimal bleeding and that compression bandages were not required.
18 This is consistent with the eyewitness account of Mr Luxton.
[87] A bystander offered a blanket to Constable Dombroski to place over Steven. According to that bystander, this was initially refused but later accepted, and, at around
4.12 am, Constable Dombroski placed the blanket over Steven’s legs. Shortly afterwards, Sergeant Prestidge examined Steven a little more closely and applied a sling bandage to his body, again after an examination that revealed minimal bleeding.
[88] Steven was still breathing at this point, but his condition appeared to be deteriorating. Sergeant Prestidge remained with him from 4.14 am until 4.20 am, when the ambulance arrived. She then assisted the ambulance crew with on-site treatment and with preparing Steven for transport to Taranaki Base Hospital. Constable Herbert travelled with Steven in the ambulance and arrived at the hospital at 5.07 am.
First contact between Police and the Wallace family
[89] Because of Constable Abbott’s misidentification of Steven, his identity was not immediately known. But at 6.15 am Police arrived at the Wallace family home and told Mr Wallace that Steven had been shot and was in hospital. At around 6.30 am, Mr Wallace went with Police to tell the rest of the family, at his stepdaughter’s place.
[90] Most of the family immediately headed to the intensive care unit (ICU) at Taranaki Base Hospital. Police officers were also there. An impartial narrative of what then transpired is difficult to discern, as the accounts from the family and Police are rather distinct in tone.
[91] While the Wallace family sat in the ICU waiting room, a detective sought to obtain a statement from Mrs Wallace as to how Steven had been behaving before he left home. Mrs Wallace began speaking but then told the detective that she would not be making a statement before knowing how her son was doing. She said that the detective replied something to the effect of, “If you don’t make a statement now, you’ll be making one later”.
[92] Steven died at 9.05 am, while still in the operating theatre. The attending physicians were unable to stop the bleeding caused by a shot that had pierced his liver.
[93] The news was broken to the Wallace family. Mrs Wallace fell to the ground, distraught. Police say she then got to her feet and leapt at one of the attending detectives, swinging at her face, landing a glancing blow.
[94] It seems a number of members of the Wallace family made no efforts to conceal their feelings towards the officers present. According to Police statements, several of the family yelled at attending officers things like, “You fucken pig cunts shot him”, and, “fucken murdering pigs”. It is said they kicked doors and walls. One of Steven’s sisters, in particular, went so far as to yell, “I’m going to get a gun and fucken kill you, then I’m going to fucken kill you, and you”, pointing at each attending officer. Police took her threats seriously and, after she had left the hospital, they took steps to address the possibility of her obtaining a firearm. It is also said that two of the young children present, aged around 11 and seven, were encouraged to abuse the police present, with one walking up to an officer and saying, “I’ll get a gun and shoot you, you didn’t have to shoot him”. Further officers were requested to attend at the hospital to assist.
[95] It seems Mr Wallace and one of Steven’s sisters, Kelly, remained calm and tried to keep the peace. They were asked to identify Steven’s body around midday.
[96] After calming down, Mrs Wallace also asked to see Steven, but she was told that only one person would be allowed to identify him. When Mr Wallace and Kelly returned, Mrs Wallace again asked to see him. She was told that to do so would delay the autopsy (and so his return to the family), so she did not insist. Despite this, the autopsy was not started for several hours, beginning at around 3 pm. Steven did not arrive home until shortly after midnight, according to Kelly Wallace’s later statement.19
THE INQUIRIES INTO STEVEN’S DEATH
[97] Because the s 8 claim brought by Mrs Wallace encompasses an attack on the investigatory processes that followed Steven’s death, it is necessary to set out those processes at some length here.
19 The IPCA report, however, records that Steven was returned home at 7.30 pm that night. The reason for this discrepancy is unclear.
Operation McLean
[98] Police began an investigation—styled Operation McLean—on the morning of the shooting. The investigation was initially led by DS Coward, who was stationed at New Plymouth. DS Coward had been a friend of Constable Abbott’s for over 15 years. As noted earlier, DS Coward was one of the two men telephoned by Constable Abbott for support while he was still at the scene of the shooting.
[99] Neither Constable Abbott nor Constable Dombroski were breath tested or blood tested for the presence of alcohol or drugs after the shooting.20 No residue testing was carried out on either Constable Abbott or Constable Dombroski, despite that being standard practice. Later, at the depositions hearing, DS Coward explained that because Steven was (at that point) still alive, it was not yet being treated as a homicide. He said he accepted Constable Abbott’s word that it was he who had fired the shots.
[100] All three police officers made and signed narrative statements about what had occurred. Constable Dombroski’s statement records that it was begun at 6.38 am and completed at 11.40 am. Constable Herbert began her statement on her return from the hospital at 7.31 am and completed it at 11.11 am.
[101] At around 8.50 am—after being taken home to change his clothes—Constable Abbott also began making a statement, in the presence of his lawyer, Ms Susan Hughes. His statement records that he had been read his rights by Detective Sergeant Bryan, the interviewing officer.
[102] As noted earlier, Steven Wallace died at 9.05 am that morning. Operation McLean then became a homicide investigation.
[103] From the outset, of course, Police proceeded on the basis that Constable Abbott had shot and killed Steven. So the principal inquiry was whether, based on the
20 The Police did not at the time have a policy requiring such testing after a critical incident, but this was later recommended by the Independent Police Conduct Authority (IPCA) in its report—see below at [259].
evidence, criminal liability might attach. In turn, that depended on whether there was evidence that the killing had been in self-defence and, so, justified in law.
[104] Statements from a number of key witnesses were taken during the course of Sunday, 30 April.
Detective Inspector Pearce takes over
[105] On 2 May, command of the investigation was formally transferred to Detective Inspector Pearce, who had been in Christchurch. The intention was that the investigation be led by someone with no connection to the New Plymouth policing area.21 DI Pearce reported directly to the District Commander (Central Police District), Superintendent Mark Lammas, and to the Acting Deputy Commissioner (Operations) at Police National Headquarters. Inevitably, however, DI Pearce was assisted in his inquiry by local officers.
Inquiries related to Steven Wallace’s character and the Wallace family
[106] It seems that from an early point in the investigation there was some focus on Steven Wallace himself and on the Wallace family.
[107] For example, in early May, a questionnaire was prepared and given to the owners of 77 local businesses. The questionnaire sought answers to the following questions:
DO YOU KNOW STEVEN WALLACE?
IF YES – HOW DO YOU KNOW HIM AND WHAT IS YOUR RELATIONSHIP WITH HIM
HAS STEVEN WALLACE OR THE WALLACE FAMILY EVER HAD ANY REASONS TO HAVE ANY ANIMOSITY TOWARDS YOU OR YOUR BUSINESS?
IF YES WHAT WERE THE CIRCUMSTANCES SURROUNDING ANY ANIMOSITY?
HAS STEVEN WALLACE EVER CAUSED ANY DAMAGE TO YOUR PROPERTY OF BUSINESS?
21 DI Pearce confirmed in his report that, except for two members he had briefly met in 1986, the New Plymouth Police staff were strangers to him.
[108] On 10 May Detective Tunley reported on the results of the questionnaire to DI Pearce, noting that:
No statements were taken and no businesses identified who had any problems with Steven WALLACE or any of the WALLACE family.
[109] Police also obtained warrants permitting them to access Steven’s bank, school and university records. They visited the local golf club, which confirmed that Steven had not ever been a member. Households in the Wallace family’s neighbourhood were spoken to by Police. So too were people known to be associates of Steven. Police also spoke to Steven’s former high school PE teacher.
[110] Police attempts to interview members of the Wallace family were initially resisted, despite approaches made by Police Iwi Liaison Officers. This caused DI Pearce to say in his final report:
In my experience I have never encountered a homicide investigation where the victim family has adopted such a position. I anticipated that a day or so after the tangi family members would make themselves available to be interviewed, but this was not the case.
[111] Eventually, however, some 20 days into the investigation, Mr Rowan QC— who was by then acting for the Wallaces—facilitated interviews with five family members. The subject matter of the interviews was expressly confined to the 30 minute period during which Steven Wallace was at home between 3.15 and 3.45 am on 30 April 2000.
[112] The family maintained they had no idea what had caused Steven to become so agitated. Some said they had concerns at the time that Steven had been drinking and ought not to drive, and at one point that was suggested as the reason for Mrs Wallace’s 111 call. But as DI Pearce’s report later noted, that was at odds with the fact that Steven’s behaviour had been sufficiently threatening for Raewyn and Kelly to wake the children and walk them to Helen Collingwood’s house at around 3.40 am.22
22 Helen Collingwood was Mrs Wallace’s daughter and Steven’s half-sister.
David Toa interview
[113] On 9 May, Police interviewed David Toa, the man Constable Abbott believed he was confronting that night. It was not disclosed to Mr Toa at the time of interview that Constable Abbott had mistaken Steven for him. Mr Toa said that there was no animosity between the two of them and that, before his recent move, he would see and wave to Constable Abbott daily.23 This was consistent with Constable Abbott’s statement.
[114] The inquiry team prepared a document that enabled a side by side photographic comparison of the two men. Despite the 14-year age difference between Mr Toa and Steven, the investigators noted physical similarities that—they believed—might explain the mistaken identity: both were of Māori descent and had similar heights and builds.24 The inquiry concluded:
Clearly this is a genuine case of mistaken identity on the part of Constable [Abbott]. There is no evidence that any animosity exists between Constable [Abbott] and [David Toa] and certainly nothing to support the view that Steven Wallace was shot because of any act of transferred malice by Constable [Abbott].
The cartridge cases
[115] The Police inquiry ascertained that the position of the five expended cartridge cases did not seem to accord with Constable Abbott’s statement that he had remained where he had been standing when he shot Steven (until it was marked 10 minutes later by Constable Dombroski). The cases were found to the left of where they would be expected if he had remained in that spot. Ultimately, two possible explanations were given for this inconsistency:
(a)The cartridge cases were moved by the ambulance driving over them;25 or
23 Although Mr Toa read his statement and acknowledged its correctness, he ultimately refused to sign it.
24 The quality and age of the photos used, and the conclusion that there were meaningful similarities, are matters of some concern to Mrs Wallace. The suggestion is that the comparison was a partisan attempt by Police to justify Constable Abbott’s mistake.
25 The ambulance did drive directly over the relevant area, and one of the cartridge cases had obviously been squashed by something or someone.
(b)Constable Abbott was mistaken as to his position and may have moved approximately two metres to his right, in order to cover Steven, while he was still moving after being shot.
[116] The inquiry concluded that it was unlikely that all of the cases would have been moved as a group by the ambulance; the latter explanation was preferred.
Ballistics
[117] Ballistics analysis confirmed that both firearms were fully functional and within appropriate specifications. One forensic scientist’s report suggested that Constable Abbott had fired from a position to the left of where he ultimately marked (as discussed above). The forensic report concluded that all five of the cartridge cases were fired from the same pistol.
Autopsy and toxicology
[118] The autopsy report concluded that Steven died as a result of an un-survivable gunshot wound to his liver. The pathologist opined that neither first aid nor earlier surgical intervention could have prevented his death.
[119] The toxicology report recorded that Steven’s blood alcohol level was approximately 2.5 times the legal driving limit. No evidence was found of other drugs such as amphetamines or hallucinogens.
The sequence of shots
[120] An ESR forensic scientist, Mr Peter Wilson, was involved in the investigation from day one. Among other things, he attended and reported on the post-mortem, the examination of vehicles, and the tests of the Glock pistol ejection patterns (discussed earlier).
[121] In June 2000, Mr Wilson made a formal statement addressing all these matters, and opining on Steven’s position when each of the four shots were fired. He explained how Steven’s position when shot was able to be discerned by the wound patterns:
The damage to the shirt confirms the findings made at the post mortem with regard to the number and direction of shots that hit Mr Wallace. At the time the shots to the chest and left arm were fired, Mr Wallace would be standing at an angle to the shooter with his left side more forward than his right. The trajectory of the bullets that entered the left forearm and left upper arm, and the trajectory of fragments that resulted from the bullets breaking up, indicate that Mr Wallace’s hands were in the area of his right shoulder at the time these shots were fired. The shot in the back is consistent with Mr Wallace turning and bending to the right and thereby presenting his back to the shooter.
The Pearce report
[122] DI Pearce’s final report on the investigation is dated 23 June 2000. It is 185 pages long, although much of it comprises replicating the various witness statements taken by Police. Many of the matters discussed above were recorded in it. The other relevant matters canvassed are:
(a)the tenability of other tactical options available to the officers that night;
(b)compliance by the officers with the relevant GIs; and
(c)potential criminal liability.
[123]It is necessary to say a little about each, in turn.
Other tactical options
[124] The report notes the opinions of some observers that the three officers should have adopted a “wait and see” approach, pending further back-up from New Plymouth—in other words, cordon and contain.
[125] But the report expresses the view that, given the limited available resources, the officers would not have been able to contain Steven safely. It emphasises that Steven was mobile, with ready access to his car. It concludes that the officers were justified in uplifting firearms and confronting him; they had seen and experienced first-hand the damage that Steven was capable of causing.
[126]As to the need for a plan, the report said:
There is no evidence that Constables A or B were intending to effect the arrest of WALLACE immediately prior to the shooting although that objective may well have been in their minds. They did not have time to formulate a plan in the short (140 metre) distance they travelled from the Police Station.
[127] The report then addresses in more detail whether a less violent option was available to Constable Abbott. Deployment of a Police dog—preferably two dogs, in a coordinated two-dog attack—was recorded as a viable tactical option in circumstances of this kind. But the report notes that on the night Steven was killed, only one Police dog and handler were available, and they were off-duty and not in the immediate area. The report notes that the events “very quickly overcame [the] Constables … and moved far too quickly for them to effectively utilise the dog patrol”.
[128] Both OC spray and batons were considered unviable—and dangerous— tactical options in dealing with an offender armed with a blunt-edged weapon. The report noted that, the Police guidelines for the use of OC spray advise of its limited effectiveness:
… Studies have shown that a goal-driven person can fight the effects of OC Spray in order to achieve their objective. There is nothing stronger than the human will to accomplish a specific goal.
…
Extreme caution should be exercised where the subject is armed with a blunt edged weapon, or knife, as the distance required to deploy the spray effectively could expose members to unnecessary risk.
… The use of OC Spray in these situations may be an unnecessary risk as the member is required to get within 3.5 metres of the subject for the spray to work effectively.
[129] As for the use of a PR24 baton (bearing in mind that only Constable Abbott had one with him) DI Pearce had sought the opinion of a Police advanced baton instructor. His report records that using a PR24 to defend against a baseball bat would be highly dangerous:
In summary, [the instructor] records that Police Officers would place themselves at high risk of serious or mortal injuries if they attempted to block a swinging baseball bat with a PR24 and that to successfully do so would “require a very high level of skill to execute”.
[The instructor] observes that the impact absorbed by the baton in blocking a baseball bat swung forcibl[y] could be sufficient to break the officer’s arms or
hands and that while he/she might successfully block the first blow, the officer has still not diminished the threat of further attack.
[130] DI Pearce also made further inquiries with Police officers who frequently used the PR24 baton during the 1981 Springbok Tour to determine whether the PR24 baton provided a realistic defence option against an offender wielding a baseball bat, noting:26
The unanimous opinion being that a Police Officer would have to be extremely confident and proficient in his ability to contemplate using the PR24 defensively against a baseball bat and that to reach the required level of confidence and skill, weeks of training and consistent use of the PR24 would be required. Such levels of skill and confidence are unlikely to be found in the average frontline Police Officer …
[131] The report concludes that there was no tenable tactical alternative available to Constable Abbott when he decided to discharge his firearm.
Compliance with the relevant GIs
[132] The Pearce report also concludes that the officers followed the relevant GI guidelines and that Constable Abbott’s decision to shoot Steven was made in the genuine and reasonable belief that failing to apprehend him by use of force was dangerous and impracticable. The report notes that the significant consistencies between the accounts of the three Constables and other key witnesses supported this version of events.
Criminal liability
[133] Finally, there was the question of Constable Abbott’s criminal liability. The report emphasised that criminal liability must be assessed based on the circumstances that existed at the time Constable Abbott decided to shoot—it could not be assessed with speculation about what might have happened had different steps been taken earlier.
26 Emphasis added.
[134] The report found that Constables Abbott and Dombroski had chosen to uplift firearms in order to protect themselves, not to arrest or kill Steven Wallace.27 And it notes that the decision to arm themselves with guns was made by each of the officers separately.
[135] The report then observes that Constable Abbott did not immediately draw his firearm; he instead tried to negotiate with Steven, mistakenly believing that he was dealing with someone whom he knew. It was only after Steven had thrown the golf club and advanced towards him that Constable Abbott drew his gun.
[136] DI Pearce concludes that, once Steven had begun advancing on Constable Abbott in this way, he was left with no viable choice but to shoot. Physically wrestling him, even with the assistance of Constable Dombroski, would have been extremely dangerous given Steven’s weapon and given that both officers’ firearms were loaded. Attempting to retreat was similarly unviable: even apart from the fact that it would have entailed abandoning Constable Dombroski, it “would take a 44-year-old of considerable physical agility and confidence to back himself against a fit athletic 23-year-old”.28
[137]I set the report’s conclusion on the question of self-defence in full:
23.13That having drawn his firearm in self-defence, Constable A had no opportunity to adopt a less violent means even had he considered that to be an option.
23.14That in the face of what appeared to be an imminent physical attack involving a baseball bat, Constable A had to take a positive action or risk losing control of his own weapon and serious injury to himself.
23.15That Constable A genuinely feared for his own life and shot WALLACE in an act of self-defence.
23.16That Constable B also genuinely feared for Constable A’s life and seriously contemplated shooting WALLACE in self-defence of Constable A and himself.
27 It makes the point that if Constable Abbott believed in advance that he would likely have to shoot, then, as a highly trained sniper, he might well have chosen to uplift a rifle rather than a pistol.
28 Of course, Constable Abbott believed at the time that he was dealing with Mr Toa, who was in his forties.
23.17That in the circumstances they found themselves in, Constables A and B could not reasonably have adopted a less violent means in self- defence.
23.18That Constables A and B conformed with Police General Instructions and relevant sections of the Crimes Act 1961 relating to the carriage and use of firearms. General Instructions F60, F61 and F64 and S48 (self-defence) Crimes Act 1961.
23.19That on the facts Constable A is not culpable for the death of Steven WALLACE. Neither is Constable B as a party, ie Section 66 Crimes Act 1961.
23.20That while issues of fact are more properly the domain of a jury, it is considered that no jury properly directed could, beyond reasonable doubt, find that Constable A shot Steven WALLACE other than in self-defence.
[138]The report also recorded the finding:
Steven WALLACE died as a direct result of an unsurvivable gunshot wound to his liver and that no act or omission by any person to render first aid or other emergency treatment could have saved his life.
[139]And the report concluded with four recommendations:
24.1That no criminal charges be preferred as a consequence of Steven WALLACE’s death.
24.2That this report and the investigation file be submitted for an independent legal opinion.
24.3That if the above recommendation (24.1) is upheld, an early pragmatic response to the WALLACE family's request for full disclosure be acceded to.
24.4That in the public interest the New Plymouth Coroner be encouraged to conduct a comprehensive hearing into the death of Steven WALLACE, so that the facts relating to this death are established in an open transparent manner.
The decision not to prosecute
Inspector Dunstan’s review
[140] DI Pearce’s report was referred to another senior police officer (Inspector Bruce Dunstan of Lower Hutt) to review its findings and, in particular, to assess whether Constable Abbott had made the right tactical choices. His careful review
(recorded in a letter to the Commissioner dated 8 August) was based solely on the information contained in the Pearce report. Of some note is the following observation:
4.12On a strictly tactical point of view, the safest action would have been for Constable A to use his car as cover and call upon Wallace from a position of safety and concealment. This is standard AOS procedure, however I do not raise this as criticism only as the safest option. Obviously from the facts available to me, I do not know whether Constable A had the time or opportunity to take this action and had he done so it would have accelerated events.
[141] And in his conclusions, Inspector Dunstan explained why alternative options were unavailable and why the outcome was largely inevitable:29
5.2The safest tactical option on the night would have been for Constables A, B and C to observe and contain until reinforcements arrived.
5.3This option was never really a feasible achievable option due to the fact that there were only three of them, so they attempted to do the best they could. This had to be undertaken and no criticism should be levelled at their attempts to do so.
5.4Having attempted this, events overtook them once Wallace observed them.
5.5As mentioned in 4.12 the correct tactical option would have been to take cover behind their vehicles and challenge him. While this would have provided the greatest level of protection to Constables A and B, it would have accelerated events with the same outcome, just earlier. It is unfortunate that dogs were not available, as the perfect solution would have been to take cover, challenge and then disarmed utilising dogs. They were not available and ultimately led to Constable A’s final option.
5.6Constables A and B chose to withdraw maintaining a semi cordon and continuing to negotiate. Taking this action Constable A has allowed himself more time and provided Wallace with ample opportunity to surrender. In doing so though he has put himself at risk by being exposed from cover. As Constables A and B have withdrawn tactically they have maintained fire cover for each other and considered fire angles, being careful not to create a cross-fire situation.
5.7Once faced with a situation whereby Constable A could not withdraw further in order to protect himself, he had no other option but to shoot. He had exhausted all other options. Ultimately in these types of situations it is the offender who dictates the tactics and the outcomes.
29 Emphasis added.
[142] Inspector Dunstan ultimately agreed with the views expressed by DI Pearce in his report on the tactical options question.
Police media statement
[143] On 16 August 2000, the Police released a media statement on the shooting. In it, the Police explained that the outcome of their investigation was that Constable Abbott (unnamed in the statement) had acted lawfully.
[144] The media statement also made clear that there were two other ongoing inquiries: the Coroner’s Inquest and the PCA investigation. The former was to consider how Steven Wallace died and the circumstances surrounding his death. The latter would review the findings of the homicide investigation to consider the police procedures and policies involved, and to consider the actions of the police staff involved in the incident.
Acting Solicitor-General’s press statement
[145] On that same day, the Acting Solicitor-General also released a press statement. It recorded that Police had received legal advice from the Wellington Crown Solicitor’s office about laying criminal charges relating to Steven death. The Acting Solicitor-General’s statement explained that the Police had then also asked Crown Law to review that advice.30
[146] The statement recorded that the review by Crown Law was conducted in accordance with the Solicitor-General’s Prosecution Guidelines31 and was aimed at objectively and independently examining both the Police investigation and the legal decision made. Its review considered DI Pearce’s report, the Crown Solicitor’s opinion, and additional materials provided by Mr Rowan on behalf of the family. It recorded that Crown Law agreed with the decision not to lay charges over the shooting, because:
The available evidence led inevitably to a conclusion that the shooting was done in self-defence.
30 Such a review is not uncommon; one would be requested in cases of medical or vehicular manslaughter, for example.
31 These are set out later in this judgment, at [592] below.
Self-defence provides a complete legal justification for the shooting.
As a result, in terms of the Prosecution Guidelines, there was not sufficient evidence to charge any person in relation to the shooting.
Police Complaints Authority investigation
[147] As required by law, the Commissioner of Police had reported the shooting to the Police Complaints Authority (PCA) under s 13 of the Police Complaints Authority Act 1988.32 On 9 May 2000, Judge Jaine (who was the Authority) and Judge Borrin (the Deputy Authority) travelled to Waitara to be briefed by Police and to visit both the scene and the Wallace family.
[148] At this time, the PCA did not have its own investigators. Rather, it relied on Police resources. In this case Detective Inspector Brew (DI Brew) from Palmerston North was appointed to assist. The PCA’s investigation nevertheless remained separate from the homicide investigation, focusing instead on Police policy, practice, and procedure (rather than on issues of criminal liability).
[149] DI Brew completed his tasks in August 2000 and provided a preliminary report to the PCA, which has since been lost.33 But the Authority did not then prepare its full report, or release DI Brew’s, because of its public commitment not to comment on the shooting until the end of any coronial hearing.
Opening the inquest
[150] Although the precise date is not clear from the material before me, at around the same time as these other investigations Steven’s death was reported to Coroner Mori, who opened an inquest. On 9 May 2001, that inquest was transferred to Coroner Matenga.
32 That Act has since been renamed the Independent Police Conduct Authority Act 1988. The section imposes a duty on the Commissioner to notify the Authority where a Police employee appears to have, in the execution of their duties, caused death or serious bodily harm to any person.
33 From a much later (2007) document authored by DI Brew, it appears his preliminary report may have made recommendations around the provision of first aid.
Adjournment
[151] Due to the prospect of the Wallace family bringing a private prosecution,34 Ms Hughes (representing Constable Abbott) applied for an adjournment of the inquest. Coroner Matenga met with counsel on 21 May. Ms Hughes argued that the inquest should adjourn until the private prosecution was at an end. She made the orthodox (and legally correct argument) that the Police officers would be prejudiced by the inquest proceeding. That is because they would be compelled to give evidence at the inquest on oath but then face the possibility of having that evidence used against them at trial.
Refusal to prosecute: the law
[584] Osborne v Worksafe New Zealand is the leading New Zealand authority dealing with review of a refusal to prosecute (or, in that case, a decision to discontinue a prosecution).211 It contains a useful overview of the relevant law. The Court began by noting that there was a material difference between a review of a positive decision to prosecute and a decision not to prosecute (or to discontinue a prosecution) because:
… a challenge of the latter kind involves no collateral challenge to an active criminal proceeding. Culpability for an alleged crime will not be established at all unless review is successful. The factors noted above at [34](c)–(e) are absent.212 The costs and risks of private prosecution place that mechanism beyond the reach of most concerned citizens. There may be, as in this case, a statutory bar on private prosecution.
[585]The Court then discussed the relevant English authorities, saying:
210 R (da Silva), above n 129. The Court accepted that it might certainly be relevant to ask whether the prosecution guidelines themselves were compatible with the obligation under art 2 to “put in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions,” (the formulation in Osman, above n 196). But the Court found that the UK guidelines were compatible. No issue has been raised—in my view quite rightly—in the present case about whether the New Zealand Prosecution Guidelines comply with s 8.
211 Osborne v Worksafe New Zealand [2017] NZCA 11. The decision was overturned by the Supreme Court (Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447) but on other grounds.
212 These were factors favouring restraint on review of a positive prosecution decision: the undesirability of collateral challenges to criminal proceedings which may disrupt due process; the High Court’s inherent power to stay or dismiss a prosecution for abuse of process; the opportunity to challenge a prosecutor’s opinion that an offence has been committed—either summarily, by applying for a discharge under s 147 of the Criminal Procedure Act 2011, or at trial.
[38] … the Divisional Court (Richards LJ, Forbes and MacKay JJ) in R (on the application of da Silva) v Director of Public Prosecutions considered an application for judicial review of a decision not to prosecute a police officer for shooting a commuter who was mistaken for a suicide bomber. The Court said it was well established that a decision not to prosecute is susceptible to judicial review, and that different considerations apply in such a case than to decisions to prosecute. Further, in Marshall v Director of Public Prosecutions the Privy Council said the threshold for review may be “to some extent lower” for decisions not to prosecute than for decisions to prosecute.
[586] The Court agreed with Marshall “so far as it relates to intensity of review and remedial response” but noted that there could be no jurisdictional distinction between decisions to prosecute and decisions not to prosecute: if the decision is reviewable, then logically it must be so regardless of whether it was positive or negative.213
[587] A lengthy discussion of possible grounds on which prosecution decisions could be reviewed, by reference to a number of decided cases, then followed. The review essentially confirmed that, in appropriate circumstances, all the standard bases for review (abdication of discretion, failure to follow established guidelines, taking into account irrelevant considerations, failure to take into account relevant ones, unlawfulness and unreasonableness) might be available.
[588] Of particular relevance here, however, is the reference to the decision in R v Director of Public Prosecutions, ex parte Manning.214 In that case a prisoner had died in custody while under restraint following an altercation with two prison officers. A coronial inquest found this was an unlawful killing caused by the application of excessive force to the prisoner’s neck by a prison officer. But the prosecutor declined to lay charges. The prisoner’s family was told there was insufficient evidence to justify a prosecution or establish a realistic prospect of conviction.
[589] On an application for review of that decision, the Divisional Court (Lord Bingham CJ and Morison J) held the while the power to review a decision not to prosecute was to be sparingly exercised: “the standard of review should not be too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy
213 At [38].
214 Manning, above n 164.
would be denied”. And in that case, the Court found there had been a duty to give reasons for the declinature: it was a death in custody case, there had been a verdict of unlawful killing by the coronial inquest, and there was credible evidence identifying the responsible prison officer. Because the reasons given to the family were inadequate (and because the Court identified a failure to consider important evidential matters) the prosecution decision was remitted for reconsideration.
I will return to Manning shortly.
[591] In Osborne itself, the Court concluded that all the grounds of review pleaded by the appellants were justiciable. The justiciability of any particular ground depended on:
(a)the existence of some legal yardstick against which the impugned decision could be tested; and
(b)the absence of engagement with “an area it would be constitutionally inappropriate for the Court to go”.
The Solicitor-General’s 1992 Guidelines
[592] Both the original decision not to prosecute and the second decision (after the release of the Chief Justice’s judgment) were made by reference to the Solicitor- General’s 1992 Prosecution Guidelines (the 1992 Guidelines).215 The 1992 Guidelines relevantly stated:
The Decision to Prosecute
In making the decision to initiate a prosecution there are two major factors to be considered; evidential sufficiency and the public interest.
3.1Evidential Sufficiency
The first question always to be considered under this head is whether the prosecutor is satisfied that there is admissible and reliable evidence that an offence has been committed by an identifiable person.
215 These have since been replaced by the Solicitor-General’s 2013 Prosecution Guidelines.
The second question is whether that evidence is sufficiently strong to establish a prima facie case; that is, if that evidence is accepted as credible by a properly directed jury it could find guilt proved beyond reasonable doubt.
…
3.3The Public Interest
3.3.1The second major consideration is whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed. Factors which can lead to a decision to prosecute or not, will vary infinitely and from case to case. Generally, the more serious the charge and the stronger the evidence to support it, the less likely it will be that it can properly be disposed of other than by prosecution. A dominant factor is that ordinarily the public interest will not require a prosecution to proceed unless it is more likely than not that it will result in a conviction. This assessment will often be a difficult one to make and in some cases it may not be possible to say with any confidence that either a conviction or an acquittal is the more likely result. In cases of such doubt it may be appropriate to proceed with the prosecution as, if the balance is so even, it could probably be said that the final arbiter should be a Court. It needs to be said also that the public interest may indicate that some classes of offending, eg driving with excess breath or blood alcohol levels, may require that prosecution will almost invariably follow if the necessary evidence is available.
3.3.2Other factors which may arise for consideration in determining whether the public interest requires a prosecution include:
(a)the seriousness or, conversely, the triviality of the alleged offence; ie whether the conduct really warrants the intervention of the criminal law;
(b)all mitigating or aggravating circumstances;
(c)the youth, old age, physical or mental health of the alleged offender;
(d)the staleness of the alleged offence;
(e)the degree of culpability of the alleged offender;
(f)the effect of a decision not to prosecute on public opinion;
(g)the obsolescence or obscurity of the law;
(h)whether the prosecution might be counter-productive; for example by enabling an accused to be seen as a martyr;
(i)the availability of any proper alternatives to prosecution;
(j)the prevalence of the alleged offence and the need for deterrence;
(k)whether the consequences of any resulting conviction would be unduly harsh and oppressive;
(l)the entitlement of the Crown or any other person to compensation, reparation or forfeiture as a consequence of conviction;
(m)the attitude of the victim of the alleged offence to a prosecution;
(n)the likely length and expense of the trial;
(o)whether the accused is willing to co-operate in the investigation or prosecution of others or the extent to which the accused has already done so;
(p)the likely sentence imposed in the event of conviction having regard to the sentencing options available to the Court.
3.3.3None of these factors, or indeed any others which may arise in particular cases, will necessarily be determinative in themselves; all relevant factors must be balanced.
3.3.4A decision whether or not to prosecute must clearly not be influenced by:
(a)the colour, race, ethnic or national origins, sex, marital status or religious, ethical or political beliefs of the accused;
(b)the prosecutor’s personal views concerning the accused or the victim;
(c)possible political advantage or disadvantage to the Government or any political organisation;
(d)the possible effect on the personal or professional reputation or prospects of those responsible for the prosecution decision.
[593] The 1992 Guidelines did not expressly address decisions to assume carriage of a private prosecution. But Mr Gunn suggested useful reference could be made to the
guidance contained in the United Kingdom Crown Prosecution Guidelines, which state that a private prosecution should be taken over where:216
(a)there is evidential sufficiency;
(b)the public interest test is met; and
(c)there is a particular need for the Crown prosecution service to take over the prosecution.
Discussion
[594] It is convenient to begin my analysis by setting out the relevant parts of the Deputy Solicitor-General’s 16 July 2002 letter declining to take over the prosecution again. She said:
In [the Solicitor-General’s] view this is a classic private prosecution. The Police have investigated and after taking legal advice, including a review of that advice by the Crown Law Office, decided not to prosecute Mr Abbott.
…
It is accepted that in New Zealand the right to take a private prosecution is a constitutional safe guard for the citizen. However, that does not mean any particular prosecution is of constitutional significance.
The Solicitor-General is of the view that the public interest factors here should operate to leave the prosecution of Mr Abbott at trial as a private prosecution. It follows that costs of such prosecution should not be borne by the Crown.
On the Solicitor-General’s behalf I have reviewed the ruling of the Chief Justice in the light of the specific provisions you have referred to in your letter.217 It is considered that they are all matters that the Chief Justice thought should be left to the tribunal of fact; the jury. None of them operate to elevate the matter to such a degree that the Crown should intervene to take over the trial.
216 Crown Prosecution Service (UK) “The Code for Crown Prosecutors: Private Prosecutions” (October 2019) < “provisions” it appears the Deputy Solicitor-General meant the particular paragraphs of the Chief Justice’s decision to which her attention had been drawn by Mr Rowan.
[595] As noted earlier, this cause of action was originally focused on the contention that the Chief Justice’s judgment required the Crown to then take the prosecution over or (at least) to assist with its funding.
[596]In my view, that contention is wrong.
[597] The Solicitor-General’s refusal to prosecute is not inconsistent with the Chief Justice’s decision; the refusal does not amount to an executive override or a failure to comply with that decision. The authority relied on by Mr Minchin—R (on the application of Evans) and another v Attorney-General—is not analogous.218 As Mr Gunn submitted, there is an important difference between the standard the Chief Justice was applying and the test under the 1992 Guidelines. The Chief Justice determined that (taking the prosecution case at its highest and resolving credibility issues in the prosecution’s favour) there was evidence on which a jury could reasonably convict. But as the 1992 Guidelines make clear, the existence of a prima facie case is only the first part of the required analysis. What the Chief Justice did not—and could not—address is the second part: whether a prosecution would be in the public interest.
[598] For essentially the same reasons, there can be no constitutional principle or reason of comity that required the Crown to take over the private prosecution.
[599] But a potentially more fruitful line of argument was also developed by Mr Minchin: that the Deputy Solicitor-General’s letter of 16 July 2002 did not contain any (or, alternatively, adequate) reasons. Although she referred to a Crown prosecution not being in the public interest, she gave no indication of why that was so, or what factors were regarded as relevant to her assessment.
[600] As the Court of Appeal’s review of the authorities in Osborne indicates, the judicial high watermark on this point is undoubtedly the decision in Manning.219 I have summarised the facts and key findings above. As indicated there, it is what the Court had to say about the obligation to give reasons that is of particular interest in
218 R (on the application of Evans) and another v Attorney-General [2015] UKSC 21.
219 Manning, above n 164.
this case. In that regard Lord Bingham place particular emphasis on the “right to life” context:220
[33] It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, … and if the death resulted from violence inflicted by agents of the State that concern must be profound. …
[601] In Manning, there had been an inquest that qualified, in art 2 terms, as a full and effective inquiry. And because the inquest had culminated in a verdict of unlawful killing (implicating an identifiable person) the Court considered that the ordinary expectation would be that a prosecution would follow. Moreover:221
[33] … In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. … We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases … is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.
[602] The Court was therefore prepared to consider whether the reasons given by the DPP were capable of supporting a decision not to prosecute, in light of the Code for
220 Emphasis added.
221 Emphasis added.
Crown Prosecutors.222 Having done so, it held that the DPP had failed to take certain relevant factual and evidential matters into account, and quashed the decision.
Were reasons required in this case?
[603] In my view, there are several matters that suggest reasons were required in the present case.
[604] First, like Manning, the case involves the death of an individual at the hands of an agent of the state, which directly engages the right to life.
[605] Secondly, the starting point was (or should have been) that the Chief Justice’s judgment meant that the basis for the Solicitor-General’s earlier decision not to prosecute was wrong. Not only had the Wallace family already spent considerable time and money in establishing this, but reliance could no longer be placed on the absence of evidential sufficiency, which was the sole reason given for declining to prosecute in the Solicitor-General’s press statement in 2000.
[606] And finally, the focus of the proposed prosecution had changed. One of the key questions was whether the number of shots fired suggested that Constable Abbott may not (when the later shots were fired) have been acting in self-defence. And there was also the new expert evidence given at depositions by Messrs Rowe and Maubach in relation to the appropriateness of the Police response and, in particular, whether (in the moment) Constable Abbott had viable alternative options other than shooting.
Were adequate reasons provided?
[607] The next question is whether the Deputy Solicitor-General’s letter July 2002 letter in fact contains adequate reasons. Notwithstanding the Crown’s submission to the contrary, I do not think it does.
[608] In light of the fact that the reasons given for the first refusal no longer pertained, the new decision could—in terms of the 1992 Guidelines—only turn on the
222 The reasons there were not contained in the decision itself but rather in a review note (and only cursorily explained to the applicants in two letters written to them).
question of the public interest. The letter recognises this, but only in a conclusory way. There is no elaboration. Nor does the letter explain what is meant by the case being “a classic private prosecution”.
[609] It is, I suppose, possible to surmise from the last paragraph (where the Deputy Solicitor-General said she had reviewed the Chief Justice’s decision but that none of the matters raised in it “operate to elevate the matter to such a degree that the Crown should … take over the trial”) that reliance was placed on her assessment that it was more likely than not that a prosecution would not result in a conviction. As will be evident from the excerpt from the 1992 Guidelines set out above, this is commonly regarded as a “dominant” consideration. And with the benefit of hindsight, such a view (if indeed it was held) proved to be correct.
[610] But even so, there is no recognition in the letter of the fact that the prosecution case as put before the Chief Justice was different from the case first presented by Police, which the Solicitor-General had previously decided did not warrant prosecution. In particular, there is no acknowledgement of the new prosecution focus on the sequence (and number) of shots, a matter expressly drawn to the attention of the Solicitor-General by Mr Rowan in his 19 June 2002 letter. There is no recognition of the new evidence referred to earlier. Although I do not think this new focus (and the Chief Justice’s decision) makes this case completely on all fours with the inquest jury’s “unlawful killing” finding in Manning, it gets tolerably close.
[611] As well, the new focus (and the Chief Justice’s decision) is a complete answer to Mr Gunn’s submission that the (slightly fuller) reasons given for the initial Police decision not to prosecute can somehow be transmogrified into reasons for the second decision here.
[612] Even proceeding on the basis that the Deputy Solicitor-General believed that a prosecution on these modified bases was unlikely to succeed, it is difficult to accept there were not other relevant matters referred to in the 1992 Guidelines that should have been weighed in the mix. For example, the seriousness of the offence and the fact that s 8 was plainly engaged might be thought to favour taking over the prosecution. Public opinion on the matter (which was strong, but not necessarily all
in one direction) might, understandably, be thought relevant. And a further (and also relevant) consideration might be the fact that the inquest was yet to come, and that the coronial process might (or might not) be thought to be a “proper alternative” to prosecution. While such matters might well have been considered, there is nothing on the face of the letter to suggest that they were.
[613] The short point is that, in the circumstances of this case, more was required. I accept entirely that—assuming that the decision itself remained the same—“more” would not have satisfied the Wallaces. But in a case where it was very important that the decisions made be transparent and the decision-makers potentially accountable, a bland reference to the “public interest” did not meet the required standard.
[614] The absence of reasons necessarily makes other potential grounds of review more difficult. For example, it is not possible to say whether the Deputy Solicitor- General took into account relevant considerations or failed to take into account irrelevant ones, or whether the decision somehow strayed beyond the 1992 Guidelines. I doubt, however, that it could be said (particularly in light of the outcome of the trial) that the decision was Wednesbury unreasonable. But without reasons, it is simply not possible to take the failure to prosecute ground of review much further.
[615] Out of an abundance of caution, however, I end by recording that my conclusion that reasons were required in the (possibly unique) circumstances of this case does not mean that:
(a)there is a duty to give reasons for all (or even most) decisions not to prosecute;
(b)in cases where reasons are required, those reasons need to be made public (here, I am saying that reasons should have been made available to the Wallace family); or
(c)if such reasons had been given, the Solicitor-General’s assessment of where the public interest lay could then have been second-guessed on review.223
[616] As well, there is, of course, no possibility of the decision being made again. Constable Abbott has been tried and he has been acquitted. Double jeopardy applies. So although I have found for Mrs Wallace on this ground, a declaration will have to stand alone as the relevant relief.
REMEDIES AND RELIEF
[617] I have found for Mrs Wallace on two fronts. I have found a breach of s 8 of the NZBORA because there has been no (s 8) rights-compliant inquiry into the death of her son, Steven. And I have found that the Solicitor-General should have given reasons for declining to prosecute following the Chief Justice’s decision that there was a case to answer in June 2002. The question now is what, if any, relief should follow.
[618] As regards the failure to give reasons, I have already expressed the view that nothing other than declaratory relief is available. In the form in which the claim succeeded, it did not engage the NZBORA. As an “ordinary” claim for judicial review, damages are not an option. And given that Constable Abbott was subsequently prosecuted and acquitted there is no possibility of the decision being made again.
[619] As regards the breach of the procedural obligation in s 8, Mrs Wallace seeks both declaratory relief and damages.
[620] As the Crown submitted, however, public law damages are discretionary and not always awarded for breach of a right. In Taunoa v Attorney-General Blanchard J said:224
…a Court… must begin by considering the non-monetary relief which should be given, and having done so, it should ask whether that is enough to address the breach and the consequent inquiry to the rights of the plaintiff in the particular circumstances…It is only if the Court concludes that just
223 I note, in particular, what this Court said about matters of that kind in Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [82].
224 Taunoa v Attorney-General [2008] 1 NZLR 429 (SC) at [258].
satisfaction is not thereby being achieved that it should consider an award of Bill of Rights Act damages….
[621] Taunoa also makes it clear that, when considering whether damages should be awarded at all, the Court should consider the nature of the right breached, the circumstances and seriousness of the breach, the seriousness of the consequences of the breach, the response of the defendant to the breach and any relief awarded on a related cause of action.225 When damages for breach of the NZBORA are awarded, they are at modest levels.226
[622] The purpose of any award damages is vindication of the right—the need to uphold the right in the face of the state’s infringement.227 This is both for the benefit of the individual victim(s) themselves and also in order to protect the important values underlying the right, which is in the interests of society as a whole.228 The purpose is not to compensate for loss.
[623] Here, the Crown accepted that due to the importance of the right at issue, if a substantive breach of s 8 was found to have occurred, damages would be a necessary response. But in the event of a procedural breach (such as a breach of the investigative obligation) the Crown says that a declaration is appropriate. This was, for example, the outcome in the recent decision of the UK Supreme Court in In re Finucane’s Application for Judicial Review.229
[624] I am satisfied that a declaration is the appropriate remedial response here. Although any breach of s 8 is a far from trivial matter, the breach in this case has occurred largely as a consequence of the rather unusual course this matter has taken. For the reasons I have explained, the fact that the Police homicide inquiry was not rights-compliant is as much a function of the inherent nature of such inquiries as a result of defects in the inquiry itself. And had there been a Crown prosecution of Constable Abbott, the investigatory requirements of s 8 would have been met.
225 At [306], per Tipping J.
226 For example, awards of $25,000 and $35,000 were made in Taunoa, for breach of s 9.
227 At [366] per McGrath J.
228 At [317], per Tipping J and [367], per McGrath J.
229 Above, n 130 at [153].
[625] On the other hand, if there had been no Crown prosecution and no private prosecution, then I am sure that either the Coroner or the IPCA would have considered and reached their own conclusion on the question of self-defence, as (in my view) the investigative obligation under s 8 requires. As well, the s 8 issues raised by this case (including the existence of an investigative obligation) are novel in this country and— on any analysis—quite difficult. Given the undeveloped state of the s 8 jurisprudence at the time it is difficult to conclude that either the Coroner nor the IPCA should reasonably have been aware of the relevant requirement at the time of their inquiries.
[626] And lastly, in making a declaration that there has been no s 8 compliant investigation here, it is important to record that I should not be taken as suggesting that there should now be a further inquiry into Steven’s death. While I acknowledge that that is not ultimately a question for me, that is not my view. In truth, the circumstances of his death have been fully and independently ventilated in these proceedings. It is my sincere hope that matters can end here.
SUMMARY AND CONCLUSIONS
[627] I attempt to summarise my key legal and factual findings and conclusions, below.
The claims under s 8
[628] Steven Wallace was shot and killed by Police on 30 April 2000. His death engaged his right not to be unlawfully deprived of life under s 8 of the NZBORA.
[629] In a claim for breach of the substantive s 8 right, the onus is on the defendant to establish that the killing is on grounds that are established by law and in accordance with the principles of fundamental justice.
[630] As well as confirming Steven’s substantive right not to be unlawfully deprived of life, s 8 incorporates an obligation on the Crown to conduct a rights-compliant investigation into Steven’s death. A rights-compliant investigation must be independent, effective, conducted in public and accountable. It must afford an opportunity for Steven’s family to be appropriately involved.
[631] That s 8 incorporates this investigative obligation is the necessary result of a purposive reading of s 8 and is supported by a wealth of international authority relating to the cognate right to life enshrined in art 2 of the European Convention in Human Rights.
[632] The s 8 right also incorporates an obligation on state actors (such as Police officers) to plan and control potentially lethal operations in a way that does not unreasonably place individuals’ lives at risk. That it does so is also supported by a purposive reading of s 8 and the international authorities.
[633] In order to breach this obligation, however, any alleged operational failing must be significant and egregious. It is also an obligation that is unlikely to be breached in cases where the relevant operational decisions are made over a short period of time, in situations of urgency.
[634] Adopting a tortious approach to causation in this context is inapt; there need not be a causal connection between the alleged operational failing and the outcome (here, Steven’s death). Rather, the relevant focus is on the risk to life posed by those alleged failings, and what could reasonably be expected to have been done in the circumstances to mitigate that risk.
No breach of the substantive right
[635] On the balance of probabilities, I have found that the officer who shot Steven did so in self-defence. That is because, at the time of the shooting the officer genuinely and reasonably believed that his life was in immediate danger. In the circumstances as the officer honestly and reasonably believed them to be, shooting Steven four times did not constitute unreasonable or excessive force.
[636] A killing in self-defence is regarded as justified, both as a matter of criminal and civil law. In terms of s 8, self-defence is properly regarded as an exception that is “established by law” and that is “consistent with the principles of fundamental justice”.
[637] There has therefore been no breach of Steven’s substantive s 8 right not to be deprived of life.
Obligation to investigate
[638] Notwithstanding the number of investigations since 2000 into the circumstances surrounding Steven’s death, there has been a breach of the Crown’s procedural s 8 obligation to conduct a rights-compliant inquiry into his killing. That is because:
(a)The Police homicide investigation was not (and could not be) sufficiently independent and so, was not effective or accountable. Nor could it meet the requirement for rights-compliant family involvement.
(b)The private prosecution and the criminal trial was not effective for s 8 purposes because it was not instigated or supported by the Crown.
(c)While the jury’s verdict was a formal and lawful finding that Constable Abbott was not criminally liable for Steven’s death, it was not a finding resulting from, or that was part of, an investigation that complied with s 8.
(d)Both the subsequent inquest and the IPCA investigation were, similarly, not effective because both had proceeded—on the question of self- defence—on the basis of the verdict returned at the criminal trial which:
(i)was itself not relevantly effective; and
(ii)could not properly be seen as constituting a positive finding that Constable Abbott had killed Steven in self-defence.
(e)Even viewed collectively, the inquiries cannot be viewed as rights- compliant because none of them can be said to be relevantly effective.
Planning and control
[639] I have found that there has been no breach of this aspect of the s 8 obligation. The operational acts or omissions complained of either did not put Steven’s life at risk or were reasonable in the circumstances.
[640] In particular, given the officers’ reasonable view that Steven posed an immediate risk to the lives of others they could not reasonably be expected to have considered options that might have posed less risk to Steven’s life, such as waiting for the arrival of the dog unit or calling out the AOS. Whether or not those options would in fact have posed less risk is, in any event, contestable.
[641] As well, given the urgency, the limited Police resources immediately available and the wider circumstances, a cordon and contain approach was not an option reasonably available to the officers.
[642] Issues going to the appropriate chain of command (considered by both the Coroner and the IPCA) have little relevance to this cause of action because the focus is on the risk posed by the decisions made (or not made) not the identity of the decision-maker.
Review of the second decision not to prosecute
[643] Decisions by the Crown not to prosecute are susceptible to the normal grounds of review.
[644] The first decision not to prosecute had been made on the ground that the evidence was insufficient to support a conviction. Following the release of the Chief Justice’s decision in June 2002 that—taking the evidence at its highest—there was a case to answer, that ground no longer pertained.
[645] In light of that, and the wider circumstances at play, the Solicitor-General should have provided the Wallace family with reasons when he made his second decision not to prosecute. In particular, the reasons should have explained why it was thought that the public interest did not warrant prosecution.
FORMAL RESULT
[646] Mrs Wallace’s claim that there has not been a rights-compliant investigation into Steven’s death succeeds. I make the following declaration:
At the date these proceedings were filed, there had not been an inquiry into the death of Steven Wallace that complied with the investigative obligation inherent in s 8 of the New Zealand Bill of Rights Act 1990.
[647] Mrs Wallace’s application for judicial review of the Solicitor-General’s second (2002) refusal to prosecute Constable Abbott also succeeds. I make the following declaration:
The Solicitor-General should have given reasons for declining to prosecute Constable Abbott in relation to Steven Wallace’s death, following release of the Chief Justice’s judgment in June 2002.
[648] The remainder of Mrs Wallace’s claims are dismissed. In particular, I find on the balance of probabilities that Constable Abbott shot and killed Steven in self- defence.
COSTS
[649] I have not heard from the parties on costs. I am not certain whether Mrs Wallace is legally aided or, if she is, what effect that might have on the issue.
[650] But putting that point to one side, my own preliminary inclination would be to award costs to Mrs Wallace. I say that because she has wholly succeeded on two causes of action and she has succeeded—against opposition from the Crown—on almost all the novel and important legal issues raised by her claims.
[651] And while the Crown succeeded in its defence of the substantive s 8 claim, it is relevant to note that that claim was not precluded by the various other inquiries into Steven’s death. On the contrary—as Mrs Wallace’s success on the investigative aspect of s 8 shows—none of those inquiries met the requirements of s 8; it was important that this aspect of her claim be heard, regardless of the outcome.
[652] As I have said, however, these are only my preliminary views and the legal aid position is also unknown.
[653] I would therefore be grateful if counsel could confer on these matters and attempt to arrive at an agreed position. If that is not possible, then memoranda are to be filed within 15 working days of the date of this judgment.
[654] I also note that Brown J also left costs in the two matters dealt with by him in 2016 (the strike out and an application for security for costs) to be dealt with as part of the costs in the substantive matter. Any discussions between counsel (and any memoranda filed) should also address the question of those costs.
POSTSCRIPT
[655] By way of addendum I record my view that Mrs Wallace owes a significant debt of gratitude to Mr Minchin. My perception is that he left no stone unturned to help her advance her position in this proceeding. He has partly—and in some quite legally notable ways—succeeded in that endeavour.
Rebecca Ellis J
Solicitors:
Thomas & Co, Auckland for Plaintiff Crown Law, Wellington for Defendant
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