Wallace v Commissioner of Police
[2016] NZHC 1338
•20 June 2016
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV 2014-443-066 [2016] NZHC 1338
IN THE MATTER The New Zealand Bill of Rights Act BETWEEN
JAMES HIMONA WALLACE Plaintiff
AND
COMMISSIONER OF POLICE First Defendant
AND
THE ATTORNEY-GENERAL Second Defendant
Hearing: 10 March 2016 Counsel:
G E Minchin for Plaintiff
P Gunn and K Laurenson for DefendantsJudgment:
20 June 2016
JUDGMENT OF BROWN J
WALLACE v COMMISSIONER OF POLICE [2016] NZHC 1338 [20 June 2016]
Contents
Paragraph No.
Introduction [1] The strike out application [5] Strike out principles [7] Section 8 of NZBORA [11] The statement of claim [17] The claim that Steven Wallace was wrongfully deprived of life [26]
The real nature of the claim explained [26] Further submissions on the nature of the claim [34] Section 8 and self defence [41] The different perspectives concerning self defence [47] Discussion [56]
The claim that a proper investigation was not carried out [68] The nature of the obligation to investigate [68] The present case [74] Discussion [88]
Is the proceeding an abuse of process? [96] Delay in bringing the proceeding [102] Security for costs [110] Disposition [122]
Introduction
[1] Steven Wallace was shot and killed in Waitara on 30 April 2000 by a police officer acting in the course of his duty. A police officer, Senior Constable Abbott, was acquitted by a jury of a charge of murder brought by a private prosecution. The killing was separately the subject of a coronial investigation and an Independent Police Conduct Authority (IPCA) investigation.
[2] On 18 September 2014 the father of Steven Wallace, acting as administrator of his estate, commenced this proceeding against the Commissioner of Police and the Attorney-General invoking the New Zealand Bill of Rights Act 1990 (NZBORA). The statement of claim pleaded a single cause of action described as “breach of the right to life including the right to a proper investigation into a police killing”.
[3] The relief originally sought was:
(a) compensation in the amount of $200,000 for the breach of the right to life;
(b) special damages in the amount of $75,000 being the amount the
Wallace family paid for the deposition proceedings in the murder trial.
[4] The defendants seek orders striking out the proceeding or in the alternative security for costs. In the course of argument on that application Mr Minchin advised that the second head of relief would be abandoned. Instead, the prayer for relief would be amended to include a declaratory order in the following terms:
That Steven Wallace was deprived of his life in breach of the New Zealand Bill of Rights Act and that in breach of the Act a proper investigation was not carried out by the requisite authorities.
The strike out application
[5] The defendants seek an order striking out the proceeding in its entirety under r 15.1 of the High Court Rules. The grounds stated in the application are:
2.1The statement of claim discloses no reasonably arguable cause of action under s 8 of the New Zealand Bill of Rights Act 1990 because:
2.1.1There was no known risk for the defendants to investigate in advance of the shooting.
2.1.2If s 8 requires an effective investigation after a death then the investigations in four different fora, namely Police’s own investigation into a possible homicide, the private prosecution against Constable Abbott, the Coroner’s inquest and the investigation by the Independent Police Conduct Authority, were sufficient.
2.1.3The statement of claim alleges errors in the investigation that are minor and not justiciable.
2.1.4In accordance with the jury verdict, Constable Abbott was acting in self-defence and Mr Wallace was therefore shot lawfully. A lawful shooting cannot be a breach of s 8.
2.2The proceedings are an abuse of process in that they seek to undermine the jury verdict in R v Abbott.
2.3The delay in bringing these proceedings is such that they ought not to proceed.
[6] The notice of opposition to the strike out application stated:
2.1 The first defendant, by its own internal investigations into the
‘Motoroa shooting’, was aware that Senior Constable Abbott should
not have been allowed access to firearms.
2.2Section 8 does require a proper investigation after a police killing and the investigations listed by the defendants were deficient, for a variety of reasons, as is implied in the statement of claim.
2.3The errors alleged in the statement of claim are not minor and are justiciable in this forum.
2.4The jury never heard vital evidence, in particular in relation to one David Toa, as elaborated in the statement of claim. Accordingly the jury’s finding was not made on the basis that all relevant facts and issues were before it.
2.5The proceedings do not seek to undermine the jury verdict but seeks consideration of material facts never put before the jury.
2.6A substantial part of the proceedings do not relate to matters that were at issue before the jury.
2.7 The delay in bringing these proceedings is regrettable but not fatal.
2.8The strike out jurisdiction is not appropriate where matters of fact are in issue.
Strike out principles
[7] The principles to be applied in determining the strike out application are well settled.1 The jurisdiction is to be exercised sparingly and the cause of action must be clearly untenable.
[8] Pleaded facts will be assumed to be capable of proof, except where they are entirely speculative and without foundation.2 Hence for the purposes of the strike out application only, the defendants accept such facts as are pleaded by the plaintiff.
[9] In Attorney General v Prince the Court of Appeal summarised the general principles as follows:3
A striking out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (Lucas and (Nelson Mail) Limited v O’Brien Sons [1978] 2 NZLR 289, 294–5; Takaro Properties v Rowling [1978] 2
NZLR 314, 316–7); the jurisdiction is one to be exercised sparingly, and only in a clear case where the court is satisfied it has the requisite material
(Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 45; Electricity
Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641; but the fact that applications to strike out raise difficult questions of law, and require
extensive argument does not exclude jurisdiction (Gartside v Sheffield,
Young & Ellis).
[10] Those principles were endorsed in Couch v Attorney General where Elias CJ
and Anderson J observed:4
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.
1 Attorney-General v Prince [1998] 1 NZLR 262 (CA).
2 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
3 Attorney-General v Prince, above n 1 at 267.
4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
Section 8 of NZBORA
[11] Although the statement of claim does not specifically refer to s 8 of
NZBORA, it is apparent that that section is the basis for the claim. It states:
8 Right not to be deprived of life
No one shall be deprived of life except on such grounds as are
established by law and are consistent with the principles of fundamental justice.
[12] Section 8 states the fundamental principle of the sanctity of human life.5 As the Court of Appeal observed in Shortland v Northland Health Ltd, it is the one right on which all other rights depend.6 The Court there said:
… as this Court has made clear the fundamental rights affirmed in the Bill of Rights are to be given full effect and a generous interpretation, eg Ministry of Transport v Noort [1992] 3 NZLR 260 at pp 268, 277 and 292. As well, we have recently stressed that when questions about the right to life are in issue the consideration of the lawfulness of official action must call for the most anxious scrutiny, Butler v Attorney-General and Refugee Status Appeals Authority (Court of Appeal, Wellington, CA 181/97, 13 October 1997) citing Bugdaycay v Secretary of State for the Home Department [1987] AC 514 at p 531.
[13] The authors of The New Zealand Bill of Rights7 observe that s 8 has not generated a jurisprudence in proportion to its importance and nor is it likely to. Hence the arguments mounted in this application focused on English and European authorities concerned with the equivalent provision in The European Convention of Human Rights:
Article 2
Right to life
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
5 Airedale NHS Trust v Bland [1993] AC 789 (HL) at 863–864 per Lord Goff of Chieveley.
6 Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA) at 444.
7 Paul Rishworth and others, The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at p 220.
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
[14] A dimension of the right to life which has not previously fallen for consideration in New Zealand is what is known in an art 2 context as the procedural obligation. It was explained recently in R (Duggan) v North London Assistant Deputy Coroner in this way:8
The article 2 procedural obligation
48Article 2 of the Convention guarantees the right to life. As Lord Bingham explained in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para I, article 2 imposes positive obligations on states not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will protect life to the greatest extent possible. Additionally, through its jurisprudence, the Strasbourg court had developed a procedural obligation which requires states to initiate an effective public investigation by an independent official body into deaths for which the state may be responsible. Deaths at the hands of police or state forces require such investigations. Amongst the questions considered by the House of Lords in Middleton’s case was what, if anything, article 2 requires by way of outcome of a properly conducted official investigation into a death possibly involving a violation of article 2: see para 4.
49.The requirements of an article 2 compliant investigation were conveniently brought together by the Strasbourg court in Jordan v United Kingdom (2001) 37 EHRR 2. Its essential purpose is to secure the effective implementation of domestic laws and to ensure accountability of state actors for deaths for which they are responsible: para 105. The state must act of its own motion, rather than wait for the family of someone killed to initiate action (para 105) and the investigation must be carried out by persons independent of those responsible for the killing: para 106. The investigation must be capable of leading to a determination whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. “This is not an obligation of result, but of means”: para 107. Comprehensive evidence must be secured and obtained including of the cause of death: para 107. The investigation must be reasonably prompt (para 108), there must be an element of public scrutiny and the next-of-kin must be involved: para 109. These features have been oft repeated in the Strasbourg case law and earned the approbation of
8 R (Duggan) v North London Assistant Deputy Coroner [2014] EWHC 3343 (Admin), [2016] 1
WLR 525.
the Grand Chamber in Ramsahai v The Netherlands (2007) 46
EHRR 43, GC, paras 324 and 325.
[15] While it was reasonably apparent from the brief description of the cause of action,9 the amendment to the prayer for relief to include the declaration makes it quite clear that there are two discrete components to the present claim of a breach of s 8:
(a) that Steven Wallace was wrongfully deprived of life;
(b)that a proper investigation of the circumstances of his death was not carried out by the requisite authorities.
[16] Hence to succeed on their application the defendants must establish that in neither respect is there a reasonably arguable cause of action.
The statement of claim
[17] After reciting the parties, the statement of claim prefaces all the paragraphs which follow with a single heading:
Cause of action breach of the right to life including the right to a proper investigation into a police killing.
Then under the heading “Facts”, the claim comprises 18 primary paragraphs numbered 2.1 to 2.18, all of which, save for the final two, contain various particulars.
[18] Although described as “facts”, there are no formal factual allegations as such. Each of the 18 paragraphs alleges a failure by the Police or some other conduct about which complaint is made. Scattered through those several paragraphs are allegations either incorporating factual statements or from which facts can be inferred. It is appropriate to note that, while properly accepting the facts as pleaded, the defendants made the point that the only pleaded facts were those interspersed with the
allegations of failure by the first defendant.
9 At [2] above.
[19] The subject matter of the 18 primary paragraphs can be divided into five categories of allegations:
(a) matters leading up to the police confrontation with Steven Wallace, involving alleged failures by Sergeant Prestidge (2.1), Constable Dombroski (2.2) and Constable Abbott (2.3);
(b)events at the time of the confrontation, involving alleged failures by Sergeant Prestidge (2.4), Constable Dombroski (2.5) and Constable Abbott (2.6);
(c) events subsequent to the confrontation, involving alleged failures by Sergeant Prestidge (2.7), Constable Dombroski (2.8) and Constable Abbott (2.9);
(d) a failure by the Police to properly investigate the shooting (2.10);
(e) the compilation of a report for IPCA which was said to be deficient in a variety of respects (2.11 to 2.18).
[20] Save for the statement in para 1.1 that Steven Wallace “was killed by police”
in Waitara on the early morning of 30 April 2000 and the references in paras 2.1 to
2.9 (inclusive) to “the police confrontation with Steven Wallace”, the only allegations in the statement of claim specifically concerning the shooting of Mr Wallace are at paras 2.5 and 2.6.
[21] Paragraph 2.6 states the alleged failures by Constable Abbott specific to the firing of shots at Mr Wallace:
2.6At the time of the police confrontation with Steven Wallace constable Abbott failed to follow police procedure and good practice as follows:
(a) Failed to check the registration number of Steven Wallace’s car to check if he was David Toa, the person constable Abbott thought Steven Wallace to be, so as to ascertain risk factors;
(b) Failed to use the public address system in the police car to call upon Steven Wallace to put down his weapons;
(c) Did not adopt cordon and containment measures but instead recklessly and unnecessarily confronted Steven Wallace when there was no immediate threat to himself, constable Dombroski or members of the public;
(d) Fired multiple shots at Steven Wallace when only 64 seconds had elapsed from his first contact with Steven Wallace and there was no immediate danger;
(e) Did not desist from firing at Steven Wallace when his first two shots had removed any threat to himself and constable Dombroski, particularly as he remained covered by constable Dombroski.
[22] At para 25 there is an allegation that Constable Dombroski also fired at
Mr Wallace:
2.5At the time of the police confrontation with Steven Wallace constable Dombroski failed to follow police procedure and good practice as follows:
…
(f) Fired a shot or shots at Steven when only 64 seconds had elapsed from his first contact with Steven Wallace and there was no immediate danger;
[23] So far as Sergeant Prestidge is concerned, the alleged failures by her specific to the incident are:
2.4At the time of the police confrontation with Steven Wallace sergeant Prestidge failed to follow police procedure and good practice as follows:
(a) Failed to monitor the situation and confirm with constable Abbott that he knew the dog unit was on the way, once constable Abbott had become the officer in charge;
(b) As the senior officer in command failed to provide proper direction by ensuring she was in radio contact with all officers involved.
[24] Apart from the allegations in paras 2.7 to 2.9, which are directed at the conduct of the three officers “after the police confrontation” and include allegations of a failure to provide any first aid assistance to Steven Wallace or to show any compassion towards him, the balance of the allegations in paras 2.10 to 2.18 concern
the adequacy of the investigation by the Police and alleged deficiencies in the manner of the compilation of a report for IPCA. The allegation in respect of the Police investigation is particularly detailed, extending to 23 subparagraphs.
[25] I apprehend that the allegations in paras 2.10 to 2.18 comprise the second alleged breach of s 8 at [15] above, namely the failure by the requisite authorities to carry out a proper investigation of the circumstances of Steven Wallace’s death.
The claim that Steven Wallace was wrongfully deprived of life
The real nature of the claim explained
[26] The rationale for the allegation that two different police officers shot Mr Wallace is advanced in the following paragraph of the plaintiff’s written submissions:
15. The criminal proceedings charged Cons. Abbott with murder.
Cons Abbott is not named in the current proceedings. At issue in these proceedings is the entirety of the police conduct and in particular it is the failure of the police to properly investigate the incident and to take appropriate action. Certainly the statement of claim alleges Cons Abbott acted rashly and failed in his duty in important respects. However in regard to the incident itself perhaps of more moment is the allegation that Sgt Pethridge (sic) failed in her duty, as the senior officer in charge, to take proper control of the situation. While it is alleged that Cons. Abbot (sic) opened fire in breach of police guidelines governing use of deadly force, the statement of claim leaves open the possibility that the fatal shot was fired by Cons. Dombroski and hence there is no allegation that Cons. Abbott killed Steven Wallace.
[27] Hence, whereas the private prosecution for murder was based on the footing that it was Constable Abbott who killed Steven Wallace, there is no such allegation, at least explicitly, in the statement of claim.
[28] The suggestion that it was Constable Dombroski who killed Mr Wallace is not only inconsistent with the private prosecution of Constable Abbott for the murder of Mr Wallace but also contradicts the Coroner’s finding as to the cause of Mr Wallace’s death. As the IPCA Report stated:
It is important to record the scope of the Authority’s findings about certain matters. The cause of Steven Wallace’s death is not an issue. As established at trial and found by the Coroner, Steven died as a result of gunshot wounds delivered by Senior Constable Abbott in firing a Glock pistol.
113. As also established, after a warning shot, Senior Constable Abbott fired a total of four shots at Steven, in two double taps. The fatal of those shots pierced Steven’s liver and was not survivable. The Coroner made no specific finding as to which of the four shots was fatal, in light of differing expert opinion given on the topic at trial.
114. The question of the distance between the two men at the time the shots were fired and the order of those shots were key issues for the jury to determine in assessing the reasonableness of Senior Constable Abbott’s response to Steven’s aggression, it being argued by the prosecution that the firing of the third and fourth shots was reckless and entailed excessive use of force. As is clear from the verdict of acquittal, however, the jury did not find the Senior Constable’s action in firing the four shots unreasonable, in the circumstances as he perceived them to be, and at the point he fired his pistol.
115. It is not open to the Authority to review the jury’s verdict on those issues. ….
[29] Indeed the IPCA Report specifically addressed the Wallace family’s
suggestion that Constable Dombroski had shot Mr Wallace:
207.The family suggested that the wounds inflicted on Steven Wallace were the result of him being shot in the back by Constable Dombroski.
…
209.Any suggestion that the wounds inflicted on Steven Wallace were the result of him being shot in the back by Constable Dombroski while Steven Wallace was on the ground is totally unfounded. All available evidence confirms that (a) Constable Dombroski did not fire his pistol, and (b) the final shot fired by Senior Constable Abbott struck Steven Wallace in the shoulder area as he was already falling to the ground, not as a deliberate shot to the back.
210. In response to the family’s specific questions:
i) All shell cases were recovered from the scene in McLean
Street.
ii) The process used to determine which firearm the shells came from was outlined in expert evidence given by the ESR scientist who examined both pistols and the Police Armourer who conducted a similar examination. Both examinations, which included ballistics testing, confirmed that all bullets
and shell cases came from the Glock pistol used by Senior
Constable Abbott.
iii) The possibility that other armed Police at the scene (including Constable Dombroski) could have fired one or more shots at Steven Wallace was excluded by the expert examination and testimony outlined above. Constable Herbert was unarmed.
iv) The scientific tests carried out by Police, the pathologist and ESR included an examination of Steven Wallace’s clothing and body to determine exactly what path each of the four shots fired followed and where bullets or bullet fragments came to rest. These tests and the evidence given were in accordance with the best practice. No residue (gunshot) tests were carried out; these tests should have been carried out.
v) Five shots were fired, which included one warning shot. Of those, four shots hit Steven Wallace. The process used to determine that they all came from the same weapon is explained above.
vi) There was no suggestion at Senior Constable Abbott’s trial that anyone other than Senior Constable Abbott shot at Steven Wallace.
[30] However only a relatively small part of the statement of claim focuses on the actual shooting. Paragraph 2.6 of the notice of application made the point that a substantial part of the claim does not relate to matters that were at issue before the jury but rather canvasses an extensive review of alleged failures to follow police procedure and good practice, eg failing to uplift helmets and shields for protection and failing to sign out and sign back in a firearm.
[31] Indeed as the plaintiff explained in the course of the introduction to his written submissions:
1.The plaintiff’s primary submission is that the public interest in the administration of justice is at issue. This issue is raised not by what happened on the night of the incident but by the subsequent conduct of the police, which resulted in a miscarriage of justice.
…
6.It is submitted that it was the police failure to properly investigate and indeed their presentation of a false picture of events to the public that propelled the family into making the ill advised decision to proceed with a criminal trial.
[32] Significantly Mr Minchin observed in the course of argument that it had been a “profound mistake to go down that track [of a criminal trial]” and that there was no intention in the instant proceeding to bring any case against Constable Abbott. Rather, the flavour of the present claim is reflected in the following description in the plaintiff’s submissions:
18.The civil claim alleges a failure of the Police as a whole in avoiding an unnecessary death, and in making an effective investigation into the matter, following the death of Steven James Wallace. It is conceded that Cons. Abbott has a right to finality but it is submitted that this is out weighted where there is a viable concern that there has been a miscarriage of justice, for the reasons discussed by Dunningham J in Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227. …
[33] What emerged is that the present claim consciously endeavours to chart a distinctly different course from the contention placed before the jury at Constable Abbott’s criminal trial. The claim lists, apparently comprehensively, instances of alleged departures from police procedure and good practice throughout the period from immediately prior to the incident until the completion of the investigation.
Further submissions on the nature of the claim
[34] Having reflected on the way in which the argument developed at the hearing, on 5 April 2016 I released a Minute which invited further comment from the parties on particular aspects of the argument. Noting the content of paras 15 and 18 of the plaintiff’s submissions10 I recorded my perception that the first breach of s 8 was said to have occurred as a consequence of a systemic failure by the Police at large. I sought from the plaintiff confirmation (or otherwise) of the characterisation of the claim as one of systemic failure.
[35] The plaintiff’s further submission dated 10 April 2016 succinctly stated:
Characterisation of the claim
1. Counsel confirms that the claim is properly characterised as one of systemic failure. The actions and omissions of Constable Abbott, as set out in the statement of claim, are only one component of the alleged systemic failure.
10 At [26] and [32] above.
[36] In their submissions in response dated 22 April 2016 the defendants accepted that much of the statement of claim rests on allegations that could be viewed as allegations of systemic failure. They made the point that the statement of claim also contained an allegation that Constable Abbott shot Steven Wallace and did not do so in self defence, an allegation which they viewed as an abuse of process. However their criticism on that account is discretely addressed in ground 2.2 of their
application11 which I consider below.
[37] The defendants proceeded to contend that no systemic failure was established, stating:
4.As was addressed in written and oral submissions at the hearing, the defendants’ position is that the plaintiff could not succeed in establishing a systemic failure amounting to a breach of s 8 of the Bill of Rights Act. Even accepting, for the purposes of the strikeout, the systemic failings alleged in the statement of claim are correct, the defendants’ submission, in reliance on numerous overseas authorities cited at the hearing, is that those allegations fall well short of the standard the plaintiff would need to meet in order to succeed in any such claim in relation to the events before the shooting.
5.Counsel pointed to McCann v United Kingdom as an example of a case where the European Court of Human Rights concluded that Police knew of certain risks well in advance and took no or inadequate steps to address them. In contrast, the Court observed in Bubbins that events happened quickly and considered the Police response in that light. This is clearly a case falling into the Bubbins category.
[38] However at the hearing, where as applicants the defendants’ submissions were presented first, the notion of a systemic failure as the foundation for the first limb of the claim had not materialised. The defendants’ reference to McCann v United Kingdom in the context of the first limb was in support of their rejection of
the claim on the basis that the shooting of Steven Wallace was in self defence.12 The
submission stated:
22.In McCann v United Kingdom, the European Court of Human Rights found that soldiers, who had shot dead three alleged terrorists, honestly believed, on the basis of information given to them by the state, that it was absolutely necessary to kill the alleged terrorists to safeguard the lives of others. However, a breach of article 2 was
11 At [5] above.
12 McCann v United Kingdom (1995) 21 EHRR 97 (ECHR).
found on the basis that the state should have arrested the alleged terrorists at an earlier stage and placed too much emphasis on limited intelligence information.
23.In this case, there is no similar factual basis which could underpin such a finding here, and no pleading that Police had advance warning of the actions Mr Wallace took that evening. The statement of claim does not allege any prior knowledge by Police of a particular risk being posed by Mr Wallace at the time.
[39] The defendants proceeded to make the point that the European authorities were of limited assistance in any event, given the differences between art 2 and s 8, pointing out that the European requirement, that the force used be no more than absolutely necessary, is not found in s 8.
[40] The defendants’ stance, as I understand it from their submissions, was that the fact that the shooting was in self defence is an answer to the claim. As their submission succinctly stated:
25.If a shooting occurs on grounds established in law and consistently with principles of fundamental justice, which must include self-defence under s 48, then it cannot be a breach of s 8.
Section 8 and self defence
[41] The defendants accepted (for the purpose of this proceeding) that an intentional killing by Police in the absence of self-defence or defence of another could amount to a breach of s 8. Attention was drawn to the following discussion in The New Zealand Bill of Rights:13
In the absence of capital punishment, the principal circumstance in which public officials subject to the Bill of Rights will directly deprive a person of life is when police officers shoot a person in self-defence, or to defend others, in the course of a violent confrontation. They may not intend to kill, but will certainly intend to disable, and death may result. Police officers in these circumstances are subject to ordinary criminal law, and will generally have the defence of self-defence (which includes defence of others) under s 48 of the Crimes Act 1961. The contribution of the Bill of Rights will be to require that that defence be interpreted and applied so that the victim may be said to have been deprived of his or her life on grounds established by law and consistent with fundamental justice. If it be held that the defence does not apply, the result is criminal liability for the police officer. It is likely that the killing would then count as a breach of s 8 as well, since a non-justified killing would not be on grounds established by law.
13 Above n 7, at p 230.
[42] Section 48 of the Crimes Act 1961 states:
Everyone is justified in using, in the defence of himself or another, such force, as, in the circumstance as he believes them to be, it is reasonable to use.
[43] As the Chief Justice explained in Wallace v Abbott at a much earlier stage of this matter:14
The circumstances must be as the person using force believes them to be. That is a subjective inquiry. But the force must be no more than is reasonable in those circumstances. That is an objective inquiry, which assumes the circumstances as they were believed to be by the person using force. Section 48 makes it clear that the use of force which is reasonable in the circumstances is always justified. The person using such force is not criminally responsible.
[44] In my Minute of 5 April 2016 I invited Mr Minchin to indicate from the plaintiff’s perspective what relevance (if any) a defence of self defence on the part of Constable Abbott would or could have in relation to the claim as characterised as one of systemic failure. He responded as follows:
Relevance of self defence
2. As characterised the claim does not founder if self defence is found.
As a public law claim it is not so much what happened in Waitara on the night which is at issue, but the manner in which the Police
responded to it, which is of more moment.
3.If self defence on the part of Constable Abbott was found in these proceedings it would obviate or mitigate the allegations in regard to parts of the claim which relate to Constable Abbott’s actions. It must be said that it would take some of the ‘heat’ out of the claim but it is a central allegation that the police took the position that it was a self defence situation, as exemplified by Superintendent Lammas’ press release, before their investigation had begun.
[45] Still a further issue which came into sharper focus subsequent to the oral argument was the burden of proof with reference to self defence in a s 8 claim. The defendants’ submission proceeded on the footing that in a NZBORA claim the imposition of the burden of proof aligned with the criminal law. That stance was reflected in the defendants’ second strike out ground that the proceeding was an
abuse of process in seeking to undermine the jury verdict.
14 Wallace v Abbott (2002) 19 CRNZ 585 (HC) at [18].
[46] However my reading of Duggan15 suggested that there was room for debate on that issue. Hence in my Minute of 5 April 2016 I invited further submissions from both sides on the following questions:
(a) In relation to the exception in s 8 (namely “except on such grounds as are established by law and are consistent with the principles of fundamental justice”), would the burden fall on the plaintiff to prove the absence of the exception or on the defendants to prove the existence of the exception?
(b) Assuming that a defence of self defence could be potentially relevant to the plaintiff’s claim, would the ingredients of the defence be the same as in a criminal context: compare the difference in the ingredients of self defence between the criminal and civil jurisdictions in England referred to in R (Duggan) v North London Assistant Deputy Coroner?
(c) What would be the status (if any) in the s 8 claim of the earlier acquittal of Senior Constable Abbott on the charge of murder? For the avoidance of doubt, that question is directed to the issue of proof of the defence of self defence, not to the second strike out ground of abuse of process.
The helpful submissions received in response are too extensive to set out in full.
The different perspectives concerning self defence
[47] On the first issue the plaintiff submitted that it is settled law that in civil proceedings where self defence is an issue the burden lies on the defendant, citing Ashley v Chief Constable of Sussex Police16 and Duggan.17 The defendants maintained that neither of those authorities is helpful on the question of who bears the s 8 burden, pointing out that Duggan involved a jury inquest and Ashley concerned a tort claim for battery.
[48] After referring to the passage from The New Zealand Bill of Rights18 and Seales v Attorney-General, where Collins J noted that in Canada the onus of establishing a breach of the Canadian equivalent of s 8 of the NZBORA rests with
the plaintiff,19 the defendants contended that the issue is helpfully summarised in
15 R (Duggan) v North London Assistant Deputy Coroner, above n 8.
16 Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 (HL).
17 R (Duggan) v North London Assistant Deputy Coroner, above n 8.
18 At [41] above.
19 Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556.
terms of the similar Canadian Charter in two extracts from Constitutional Law of
Canada:20
Who bears the burden of proof of factual issues in Charter litigation? At the first stage of Charter review, the court must decide whether a Charter right has been infringed. This issue is subject to the normal rules as to burden of proof, which means that the burden of proving all elements of the breach of a Charter right rests on the person asserting the breach. In the case of those rights that are qualified by their own terms, for example, by requirements of unreasonableness or arbitrariness, the burden of proving the facts that establish unreasonableness or arbitrariness, or whatever else is part of the definition of the right, rests on the person asserting the breach.
…
The better view is that s. 7 confers only one right, namely, the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. The cases generally assume that the single-right interpretation is the correct one, so that there is no breach of s. 7 unless there has been a failure to comply with the principles of fundamental justice.
[49] Hence the defendants submitted that to demonstrate, on the balance of probabilities, that the killing of Steven Wallace was not on a basis established by law and not consistent with the principles of fundamental justice, it would be for the plaintiff to exclude self defence in order to establish that legally and factually Steven Wallace’s death was not within the exception built into s 8.
[50] On the second question Mr Minchin submitted that the ingredients of the defence were not the same in the criminal and civil contexts, relying again on the analysis in Duggan.
[51] While making the point that it is not self defence as such that forms the exception to s 8, the defendants accepted that their central argument at trial would be that Mr Wallace was killed in self defence. They drew attention to the recent decision Leason v Attorney-General where the Court of Appeal accepted that the
defence in s 48 applies in civil proceedings, stating:21
20 Constitutional Law of Canada (Thomson Reuters, Toronto, 2007) at [38.4] and [47.2].
21 Leason v Attorney-General [2013] NZCA 509, [2014] 2 NZLR 224.
[51] We accept that the s 48 defence may have application in the context of civil proceedings. This is because the word “justified” as used in s 48 is a defined term in the Crimes Act and provides:
justified, in relation to any person, means not guilty of an offence and not liable to any civil proceeding.
[52] Hence on the basis of Leason the defendants submitted that no distinction exists in New Zealand as to the manner in which self defence operates in the civil and criminal jurisdictions.
[53] Again with reference to the third question the parties’ positions were diametrically opposed. Although it is a lengthy passage, I set out Mr Minchin’s submission in full as it captures several aspects of the plaintiff’s argument:
Acquittal
8.It is submitted that the acquittal has no bearing on the s 8 claim, for the following reasons:
(a) a central submission here is that the jury’s finding in regard to self defence cannot frustrate civil proceedings in the circumstances that an issue of motive, in regard to an alleged hostile animus towards David Toa, the person Constable Abbott thought he was confronting, was not before the jury. It is alleged that the police were aware of this hostility and it is submitted that it should have formed part of a police prosecution. It is further submitted that failure to put this issue in the private prosecution, amounted to counsel error. This meant that it was not a fair trial. It is submitted that ‘fairness’ is the touchstone and it applies equally to prosecution and accused. The right to a fair trial inheres in the accused but balanced against this right is the societal interest in ensuring that wrongs are adequately addressed. It is for this reason that where there is error the default response is for matters to be reheard, as matters are in other circumstances, such as where there are hung juries. Of course a criminal rehearing is not sought here but it is submitted that this means that there is no double jeopardy or issue estoppel.
(b) the question before the jury was whether the prosecution had negated the ingredients of self defence, as applicable in a criminal trial, beyond reasonable doubt. As submitted above the civil burden applies in this matter and so there is a different threshold to be met. Further as set out above reasonableness was not an ingredient to be considered in the criminal proceeding. In contradistinction to the criminal proceeding, in these proceedings a finding that self defence
did not apply, would result in no legal sanction for
Constable Abbott.
[54] The starting point for the defendants was that Constable Abbott was acquitted at trial having raised self defence, a defence which is established by law and is consistent with fundamental justice. They maintained that the jury could have convicted Constable Abbott only if they were sure that, in the circumstances as Constable Abbott believed them to be, his actions were not undertaken in self defence or that the force used was not reasonable.
[55] They say that in resisting the present claim it is sufficient for the defendants to point to the acquittal and the circumstances of it. They submit that no need arises, nor is it legitimate, to inquire afresh into the factual circumstances of the shooting, still less by reference to the civil standard. They emphasise the plaintiff’s acknowledgement that Constable Abbott is not being sued in this proceeding.
Discussion
[56] Although concerned with the different context of the consideration of an English inquest, the concluding paragraph of Duggan usefully highlights the flavour of questions which the present proceeding appears to raise:
91We conclude this judgment by recognising the tragedy that is the loss of Mr Duggan’s life. In that context, we must emphasise what these verdicts do not mean. Although they exonerate the police on the criminal and civil standard of proof in relation to unlawful killing on the criminal test for such liability, they provide no support for the proposition that they relieve the Commissioner of Police of the Metropolis or his officers from any liability in tort. As we have sought to make clear, it was not the purpose of the inquest to determine civil liability: in civil proceedings the burden of proof and the ingredients are different and may (we do not say must or will) provide a different answer to the very difficult questions posed by this case.
[57] After discussing Duggan, the authors of The New Zealand Bill of Rights Act:
a Commentary22 state:
9.5.18 Similarly, s 8 of BORA might be of relevance in determining the boundaries of common law defences in criminal matters, such as self-defence and necessity. The word “might” is deliberate; it could be argued that just because criminal law does not punish certain types of deprivation of life, this does not mean that those acts cannot be, and are not, rendered unlawful through other means. The interrelationship between the definition of these criminal defences and immunity from liability in the civil arena is something that would require to be explored whenever the matter would arise.
[58] Hence, while the parties present their positions with conviction, the reality is that this claim raises a number of important and, in some respects, subtle questions which are unlikely to be resolved finally at first instance.
[59] The overseas authorities addressing art 2 claims recognise that the inquiry extends beyond what might be described as the operative act of killing to include the broader context of the conduct of a police operation. A useful example which notes the wider perspective is found in the recent judgement of Nicol J in Davis v
Commissioner of Police of the Metropolis:23
153. I can now apply the law on Article 2 to the facts of Mr Davis’ claim.
I have found that Z32 honestly and reasonably believed that he was about to be shot. In those circumstances, the shooting itself did not
amount to a breach of Article 2.
154.I have also found that there was no material negligence by the police. In those circumstances, the planning and conduct of the operation did not amount to a breach of Article 2. I note as well that in this context, the Strasbourg Court looks more widely at the way in which firearms officers are trained, the control structure under which they operate and the briefings which they received as to the circumstances in which force could be used. As the Grand Chamber said in Nachova v Bulgaria Application Nos 43577/98 and 43579/98 (2006) 42 EHRR 43 at [97],
‘Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accidents. In particular, law enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms not only on the basis of the letter of
22 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a Commentary (Lexis
Nexis NZ Limited, Wellington, 2015) para [9.5.18].
23 Davis v Commissioner of Police of the Metropolis [2016] EWHC 38 (QB).
the relevant regulations but also with regard to the pre-eminence of respect for human life as a fundamental value.’
[60] Other authorities demonstrate the application of a similar approach, albeit the conclusions arrived at with reference to the broader context differ, as illustrated by a comparison of McCann24 and Bubbins v United Kingdom.25 In the latter case the European Court of Human Rights concluded:
149The Court cannot agree with the applicant’s submission that the manner in which the operation was planned and conducted inevitably led to the fatal shooting of Michael Fitzgerald. It must be recalled that the incident was relatively brief in duration and was fraught with risk. During that time operational decisions had to be made as the situation evolved and more information became available. The incident ended abruptly and tragically.
[61] The defendants contend that the present case falls into what they describe as “the Bubbins category”. However the notion of categorisation is illusory. Whether any given case is compliant with the art 2 criteria will be fact dependent.
[62] The several cases cited in argument, including Davis, McCann and Bubbins, involved substantive inquiries, not threshold applications. By contrast, the application before me seeks a strike out where the facts are deemed to be admitted and the hurdle is set high by requiring the defendants to demonstrate that the claim cannot succeed.
[63] Contrasting McCann, the defendants observe that there is no pleading in the present case that Police had advance warning of the actions that Steven Wallace took on the early morning of 30 April 2000. They point out that the statement of claim does not allege prior knowledge by Police of a particular risk being posed by Steven Wallace at the time.
[64] However the defendants accept that much of the statement of claim could be viewed as comprising allegations of systemic failure. In Couch the Court noted that
it is a commonplace of the strike-out jurisdiction that the Court will consider not
24 McCann v United Kingdom, above n 12.
25 Bubbins v United Kingdom (2005) 41 EHRR 458 (section III ECHR).
only the basis upon which the claim is currently pleaded but also any other basis upon which the claim might be pleaded.26
[65] Mr Minchin indicated a willingness to revisit the pleadings, even to the point of stating that any direction of the Court would be complied with. While as indicated in Couch it is not the Court’s role to reformulate a claim,27 it is appropriate in my view to proceed on the footing that certain of the criticisms levelled at the pleading by the defendants may be able to be satisfactorily addressed by amendment.
[66] This proceeding has a parallel with Couch in that the claim is barely developed. Also like Couch, the field of law, here the NZBORA and s 8 in particular, is in a state of early development.
[67] Whatever one’s views might be concerning the merits of the claim, having regard to the considerations discussed in [61] to [66] above, together with the fact that a number of contestable legal issues concerning the law relating to self defence are in play,28 I have reached the clear view that this is not an appropriate case for the exercise of the power to strike out this first limb of the claim on r 15.1(1)(a) grounds.
The claim that a proper investigation was not carried out
The nature of the obligation to investigate
[68] As earlier noted29 authorities considering art 2 of the European Convention on Human Rights have recognised an implied procedural obligation to conduct an investigation into a death resulting from the use of force. In Jordan v United Kingdom the European Court of Human Rights described the obligation as follows:30
105The obligation to protect the right to life under Art.2 of the Convention, read in conjunction with the State’s general duty under Art.1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as
26 Couch v Attorney-General, above n [4], at [123] per Tipping J.
27 Couch v Attorney-General, above n [4], at [125].
28 See [47] to [55] above.
29 At [14] above.
30 Jordan v United Kingdom (2003) 37 EHRR 2 (section III ECHR).
a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.
106For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.
107The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
108A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
109For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.
[69] The defendants noted that there is no New Zealand authority recognising an obligation under s 8 to conduct an ex post facto investigation into a death. However they did not advance their strike out application on the basis that no such duty exists
in New Zealand law. Instead, they put their case on the basis that, assuming (but without conceding) such a duty exists, there could not be found to have been any breach of such a duty on the facts of this case.
[70] Given that assumption, it is unnecessary in this case to explore further the source within s 8 of the obligation to investigate. However, in the event that it might later assume some significance, it is appropriate that I record that subsequent to the hearing Mr Minchin filed a memorandum which recorded a change in the plaintiff’s stance on that question. Whereas in the course of argument he considered that the obligation attached to the first phrase in s 8, on further reflection he advised that the obligation attaches to the second phrase. His memorandum stated that the right to an investigation arises from the second part of the provision setting out the exceptions, because to determine whether or not the exceptions apply necessarily implies an investigation.
[71] However even if the existence of a duty and its source are not in issue, the question remains as to the precise ambit of the duty. In R (Middleton) v West Somerset Coroner the House of Lords addressed the question: what, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations of a properly conducted investigation into a death involving or possibly involving a violation of art 2?31 Lord Bingham noted that the European Court has never expressly ruled what the final product of an official investigation, to satisfy the procedural allegation imposed by art 2, should be. The reasons, he
explained, are because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it, and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures.
[72] In the course of considering how far the then regime for conducting inquests in England and Wales matched up to the investigation obligation imposed by art 2, Lord Bingham said:
16It seems safe to infer that the state’s procedural obligation to investigate is unlikely to be met if it is plausibly alleged that agents of the state have used lethal force without justification, if an
31 R (Middleton) v West Somerset Coroner [2004] 2 AC 182 (HL).
effectively unchallengeable decision has been taken not to prosecute and if the fact-finding body cannot express its conclusion on whether unjustifiable force has been used or not, so as to prompt reconsideration of the decision not to prosecute. Where, in such a case, an inquest is the instrument by which the state seeks to discharge its investigative obligation, it seems that an explicit statement, however brief, of the jury’s conclusion on the central issue is required.
…
30In some cases the state’s procedural obligation may be discharged by criminal proceedings. This is most likely to be so where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death. It is unlikely to be so if the defendant’s plea of guilty is accepted (as in Edwards 35 EHRR 487), or the issue at trial is the mental state of the defendant (as in Amin [2003] 3 WLR
1169), because in such cases the wider issues will probably not be explored.
31In some other cases, short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest. McCann 21 EHRR 97 has already been given as an example: see para 14 above … But it is plain that in other cases a strict Ex p Jamieson [1995] QB approach will not meet what has been identified above as the Convention requirement. …
32The conclusion is inescapable that there are some cases in which the current regime for conducting inquests in England and Wales, as hitherto understood and followed, does not meet the requirements of the Convention.
[73] The European Court in McCann concluded that there had been no breach of art 2 having regard to the nature of the inquiry in that case:32
162However, it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented and which involved the hearing of seventy-nine witnesses, did in fact take place. Moreover, the proceedings lasted nineteen days and, as is evident from the inquest’s voluminous transcript, involved a detailed review of the events surrounding the killings. Furthermore, it appears from the transcript, including the Coroner’s summing-up to the jury, that the lawyers acting on behalf of the applicants were able to examine and cross examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings.
32 McCann v United Kingdom, above n 12.
163In light of the above, the Court does not consider that the alleged various shortcomings in the inquest proceedings, to which reference has been made by both the applicants and the intervenors, substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings.
The present case
[74] After an investigation conducted by the Police and a review by the Deputy Solicitor-General, a decision was made not to charge Constable Abbott. However Mr James Wallace, representing the Wallace family, swore an information charging Constable Abbott with murder.
[75] The information was considered at a preliminary hearing over 20 days before two Justices of the Peace in January and February 2002. On 20 February 2002 the Justices discharged Constable Abbott on the basis that the evidence was insufficient to put him on trial. The reasons given were recorded as follows:
Senior Constable Abbott you are charged with the murder of Steven Wallace at Waitara on 30 April 2000 under the Crimes Act 1961, s 167(b) and 172.
The preliminary hearing which has just been completed is unusual in a number of ways. Over 1200 pages of detailed evidence plus handup material has been heard over 22 days from both the prosecution and the defence.
There is no doubt that you shot Steven Wallace at McLean Street in Waitara on Sunday morning.
The Court has decided that you shot Steven Wallace in self-defence in line with the policy and operational procedures of the New Zealand Police.
The defendant is discharged.
[76] Mr Wallace then applied under s 345(3) of the Crimes Act for the written consent of a Judge of the High Court to file an indictment charging Constable Abbott with the murder of Mr Wallace. In a judgment dated 14 June 2002 the Chief Justice granted the application, being of the view that there was clearly sufficient basis for jury determination of whether the prosecution had excluded self defence.33
[77] Constable Abbott was subsequently tried before Chambers J and a jury in the
High Court at Wellington. Constable Abbott contended that he had acted in self
33 Wallace v Abbott, above n 14.
defence and, after a trial occupying some 11 court sitting days, on 3 December 2002 the jury acquitted him of the charge of murder.
[78] Shortly after Mr Wallace’s death an inquest was opened in the Coroner’s Court at New Plymouth under the Coroners Act 1988. After opening the inquest the Coroner adjourned it until the conclusion of the criminal trial. Following the conclusion of the trial the Coroner released a decision on 8 July 2003 resuming the inquest into the death of Mr Wallace, but limiting that inquest to consider only the following issues:
(a) to examine Police policy and procedure as it applied to general staff (excluding AOS) in dealing with violent offenders in circumstances such as the instant case;
(b) the provision of first aid care, including the actual care provided to
Steven Wallace.34
[79] Evidence was heard by the Coroner in New Plymouth from
12-16 December 2005 followed by the filing of written closing submissions. In his decision dated 3 August 2007 the Coroner described his role as follows:
[14] There is clear authority that I must investigate the circumstances surrounding the death, which must necessarily involve not only a determination of the procedures that were employed, but also a determination as to whether the correct procedures were employed. Clearly, if the evidence does not enable me to determine that, then I must not do so. I must also exercise caution however, to avoid if possible the allocation of blame. It is wrong for an inquest to become a civil or disciplinary trial but if, in order to ascertain or explain how death occurred in the widest sense of the events the implicit attribution of blame is unavoidable, then so be it. …
[80] The formal verdict at the conclusion of his decision stated:
Formal Verdict
[79] In conclusion then, I find that Steven James Wallace, late of Waitara, died at New Plymouth Hospital on the 30th day of April 2000
34 That decision was the subject of an application for judicial review which was determined in the judgment of Randerson J dated 20 April 2005 in Abbott v Coroner’s Court at New Plymouth CIV-2004-443-660.
following an incident on the streets if Waitara where he was shot by armed Police. Steven James Wallace died as a result of the gunshot wounds he received.
[80] I recommend pursuant to s 15(1)(b) of the Coroner’s Act 1988 that the police review the Police Dog Deployment guidelines with a view to providing guidance to general duties staff as to when to call out a dog team to assist general duties staff in the execution of their duties.
[81] The Independent Police Conduct Authority was established under s 4 of the Police Complaints Authority Act 1988. The functions of the Authority provided in s 12 of the Act are:
12 Functions of Authority
(1) The functions of the Authority shall be—
(a) to receive complaints—
(i) alleging any misconduct or neglect of duty by any
[Police employee]; or
(ii) concerning any practice, policy, or procedure of the Police affecting the person or body of persons making the complaint in a personal capacity:
(b) to investigate of its own motion, where it is satisfied that there are reasonable grounds to carry out an investigation in the public interest, any incident involving death or serious bodily harm notified to the Authority by the Commissioner under section 13 of this Act:
(c) to take such action in respect of complaints, incidents, and other matters as is contemplated by this Act.
[82] Where a Police employee acting in the execution of his or her duty causes or appears to have caused death or serious bodily injury to any person, the Commissioner of Police shall as soon as practicable give to the Authority written notice setting out particulars of the incident in which the death or serious bodily harm was caused.
[83] The shooting of Mr Wallace was reported by the Commissioner of Police to the Authority pursuant to s 13 and a Police investigator was assigned to carry out an investigation on the Authority’s behalf. This was a separate investigation from the Police’s homicide investigation. At the time the Authority made a commitment not
to issue any public report until a Coroner’s inquest had been conducted and the
findings had been released.
[84] After delivery of the Coroner’s verdict the Authority recommenced its independent investigation under s 12(1)(c). Its report records that during the investigation the Authority interviewed more than 50 people including Police officers, civilian witnesses and expert witnesses. The Authority’s investigators also examined the Police criminal investigation files, the transcripts of evidence from the depositions hearing and the trial of Senior Constable Abbott and the Coroner’s findings.
[85] The Authority’s report records that it did not have its own investigators in
2000 but at that time was reliant on Police resources to carry out investigations. The report explains:
102. … Detective Inspector Brew, the Central Police District Crime Services Manager based in Palmerston North, was assigned the responsibility of conducting an investigation on the Authority’s behalf. 103.
In addition, on 1 May 2000 the then Deputy Authority, Judge Ian Borrin, travelled to Waitara to visit the scene, receive a briefing from Police, and visit the Wallace family. The Authority and Deputy Authority also travelled to Waitara later that month for a further Police briefing.
104.
This Authority’s investigation was separate from the Police investigation referred to in paragraphs 81 to 85. The Authority’s investigation focused on Police policy, practice, and procedure, as distinct from issues of criminal liability which were central to the Police investigation.
105.
Detective Inspector Brew completed his investigation on behalf of the Authority in August 2000 and reported to the Authority.
[86]
After
the Coroner’s report was released the Authority resumed
its
investigation as recorded in the Report:
107.After the Coroner reported in September 2007, the Wallace family contacted the (now) Independent Police Conduct Authority advising that there were issues they wished to have investigated and addressed before the Authority reported. Authority Chair Justice Lowell Goddard and investigators met the family. The issues they raised are addressed in paragraphs 196 to 228.
108. Justice Goddard then notified the Commissioner of Police on
11 February 2008 of her intention to independently conduct a number of further enquiries pursuant to section 12(1)(c) of the
Independent Police Conduct Authority Act 1988 before reporting.
109.In particular, the Commissioner was notified of the Authority’s intention to interview a number of serving and retired members of Police involved directly or indirectly in the case, as well as a number of civilian witnesses.
110. The Authority’s investigation considered the Police actions in Waitara on 30 April 2000 benchmarked against the New Zealand Police Manual of Best Practice, all relevant Police General Instructions, the relevant provisions of the Crimes Act 1961, and the local District Orders. The Authority also considered the efficacy and integrity of the subsequent Police criminal investigation (Operation McLean), as benchmarked against the Police Manual of Best Practice.
111. In the course of its investigation, the Authority considered the evidence given during the trial of Senior Constable Abbott, and at the Coroner’s inquest. The Authority also considered the Coroner’s findings. The Authority’s investigators interviewed more than 50 people, including: the Police officers either directly involved in the incident or involved in the subsequent Police investigations; civilian witnesses from Waitara; and expert witnesses.
[87] The Authority’s substantial report proceeded to address the relevant Police
policies, practices and procedures under the following headings: (a) carriage and use of firearms;
(b) tactical options other than use of firearms; (c) Senior Constable Abbott’s fitness for duty; (d) supervision and command;
(e) Police actions after the shooting;
(f) the Police homicide investigation (Operation McLean); (g) Police conduct at Senior Constable Abbott’s trial;
(h) [Wallace] family concerns; and
(i) Police policy and procedures.
Discussion
[88] There can be no doubt that the circumstances of Steven Wallace’s death have been the subject of thorough review as a consequence of the three different investigations which have been undertaken – the criminal trial, the Coroner’s inquest and the IPCA inquiry. Short of a full commission of inquiry, it is difficult to envisage what further investigating steps could have been undertaken.
[89] However for several reasons I do not consider that it is appropriate to grant the defendants’ application under r 15.1(1)(a) in respect of this second limb of the claim.
[90] First, I understand that this case is the first in New Zealand to allege a failure to discharge the obligation to investigate said to be implicit in s 8. However thorough the multiple inquiries that have been undertaken may have been, I consider that it is undesirable for a court to make a finding, whether positive or negative, on the basis of both an assumed obligation to investigate and facts assumed to be proved. Proceeding on an assumption as to the existence of an implied duty has disadvantages in that the ambit or precise incidents of the duty remain undefined.
[91] Especially in an area of the law where there are unlikely to be many precedents, there is a risk that a decision reached on such assumptions could provide erroneous guidance. I am mindful of the warning in Couch35 in the context of consideration of the existence of a duty of care:
[32] … Caution in disposing of such cases on a summary basis is necessary both to prevent injustice to claimants and to avoid skewing the law with confident propositions of legal principle or assumptions about policy considerations, undisciplined by facts.
[92] Secondly, while it may well prove to be the case that the facts have been exhaustively reviewed in the course of the three different inquiries, the impression
which I gained was that both the second and third inquiries proceeded on the basis
35 Couch v Attorney General, above n 4 at [32].
that the conclusion inferred from the outcome of the criminal trial was in a sense “binding”. Furthermore Mr Minchin has advocated strongly that there were in fact some matters which were not fully or adequately explored at the criminal trial, which was a private prosecution.
[93] Thirdly, I have already declined to make an order for strike out in relation to the first limb of the s 8 claim. If that part of the claim is destined for trial, I am of the view that it is not appropriate to make what would be, in effect, a partial strike out order relating to part only of the s 8 claim.
[94] Finally I am mindful of the caution in Couch that particular care is required in developing areas of the law. In a New Zealand context, the procedural dimension of s 8 is in its infancy.
[95] For those reasons I decline in my discretion to make an order striking out the
second limb of the plaintiff’s claim.
Is the proceeding an abuse of process?
[96] Noting the general rule that it is an abuse of process to use a civil proceeding to collaterally challenge a criminal conviction, the defendants contend that in certain circumstances it can also be an abuse of process to attempt in the same way to challenge an acquittal.
[97] Given that it was contended at the criminal trial that Constable Abbott fired the shot that killed Steven Wallace, they argue that self defence can have been the only basis for the acquittal. Hence they submit that the present proceeding is an abuse of process in that it seeks to call into question the jury’s acquittal in Wallace v Abbott.
[98] There are a number of answers to that contention. First, in his claim the plaintiff proceeds on a different footing, specifically contemplating the possibility that the fatal shot was fired by someone other than Constable Abbott.
[99] Secondly, as explored above36 the basis of the civil claim is substantially broader, alleging a systemic failure. That state of affairs distinguishes the present case from Z v Dental Complaints Assessment Committee where the Supreme Court held that it was not appropriate for a disciplinary body to consider allegations that went no wider in their significance than the criminal allegations decided in the defendant’s favour.37
[100] Irrespective of the width of the current pleading, the defendants then contended that the particular allegations in the statement of claim concerning the Police actions or inactions, before and during the shooting itself and which relate to whether the shooting of Mr Wallace was necessary in self defence, are an abuse of process. However, even if the present matter was confined to the self defence issue, the three questions concerning self defence in a civil context raised in my Minute of
5 April 201638 would still be engaged. In my view it could not be concluded at this
stage of the matter that the proceeding, even when confined to the issue of self defence, would clearly amount to an abuse of process.
[101] Finally there is no suggestion that the second limb of the s 8 claim is an abuse of process. I consider that the concern which I registered about a partial strike out order in the context of the first strike out ground39 similarly applies in relation to this ground.
Delay in bringing the proceeding
[102] Sixteen years have elapsed since the death of Steven Wallace. The outcome of the third of the enquiries, the IPCA report, was released over seven years ago. The defendants argue that, while there is no statutory limitation for NZBORA claims under the Limitation Act 1950, it does not follow that such claims can be brought at any time.
[103] The defendants referred to Attorney-General v P F Sugrue Ltd where the
Court of Appeal said that, as with equitable awards, the Court should be able to
36 [34]–[35].
37 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [125].
38 At [46] above.
39 At [93] above.
refuse monetary relief if a plaintiff delays too long in bringing a Baigent claim.40
The Court identified a number of factors that need to be taken into account when considering if a limitation argument should succeed:41
All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff’s rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the Court will still be guided to an extent by the periods set for bringing of common law and statutory claims in the Liquidation Act, just as it is when there has been delay in commencing a claim in equity …
(footnote omitted)
[104] Reliance was also placed on Marsh v Attorney-General42 where the defendant’s limitation argument was upheld. Wild J cited the European Court of Human Rights in Stubbings v United Kingdom where limitation periods were upheld as consistent with human rights protections because they:43
… serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from the stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time …
(footnote omitted)
[105] Mr Minchin accepted that there has been delay in bringing the proceeding but pointed to the sequence of legal and quasi-legal proceedings which have accounted for significant passages of time. He also noted that the present litigation has been in contemplation since May 2012 when an application for legal aid was filed. The fact that legal aid has been approved but withdrawn twice has had implications for the expeditious progression of the claim.
[106] While I consider that the length of time that has passed is regrettable, given my conclusion that the claim survives the other grounds of attack I do not consider
40 Attorney-General v P F Sugrue Ltd [2004] 1 NZLR 207 (CA).
41 At [70].
42 Marsh v Attorney-General [2010] 2 NZLR 683 (HC).
43 Stubbings v United Kingdom (1996) 23 EHRR 213 (ECHR).
that it is appropriate at this point in time to dismiss this claim for delay having regard to the several legal processes which have previously been engaged.
[107] However, I emphasise the phrase “at this point in time”. If this claim is to continue then it must be pursued expeditiously. Constable Abbott must be free to get on with his life and similarly the relations of Mr Wallace who assume responsibility for pursuing the claim need to obtain closure. The claim will be case managed to ensure that it is resolved as promptly as possible.
[108] I consider it appropriate to add that those responsible for pursuing the claim, possibly by resort to their personal resources, need to appreciate that the defendants’ strike out applications have been unsuccessful principally because of the very high threshold of certainty required on such applications and the practice whereby the
pleaded facts are assumed to be true.44 As was said in Couch45 a decision that a
claim is not so clearly bad that it should be struck out says little about its eventual merit.
[109] This is not a case where there has been scant inquiry of the circumstances concerning the death of Steven Wallace. Furthermore on the basis of the three different inquiries which have already been undertaken by a jury, a Coroner and IPCA, the proposition in the present claim that Mr Wallace was killed by someone other than Constable Abbott must be seriously questioned. Hence it would be erroneous to infer simply from the result of this decision that the claim based on s 8 has good prospects of ultimate success.
Security for costs
[110] The defendants seek an order for security for costs under r 5.45(1)(b) on the ground that there is reason to believe that the plaintiff will be unable to pay the costs of the defendants if the plaintiff is unsuccessful in the proceeding.
[111] In his submission Mr Minchin acknowledges that the plaintiff will face some difficulty if his claim is unsuccessful and costs are awarded against him. Indeed he
44 See [7]–[10] above.
45 Couch v Attorney-General, above n4 at [37].
submits that requiring security for costs will force the plaintiff to discontinue the proceeding due to an inability to meet the financial burden.
[112] This case highlights the conundrum for the courts identified by the Supreme Court in Reekie v Attorney-General that the poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security.46
At the same time, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled. The Court observed that applications for security for first instance proceedings call for careful consideration and that judges are slow to make an order for security which will stifle a claim, noting the review of the jurisdiction by the Court of Appeal in McLachlan v MEL Network Ltd.47
[113] The Court of Appeal there stated that whether or not to order security, and if so the quantum, are discretionary matters for the Judge and that the discretion is not to be fettered by constructing “principles” from the facts of previous cases. The Court said:
[14] … It is not a matter of going through a checklist of so-called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a requirement for the making or refusing of an order, in quite different circumstances.
[15] The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse awards of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16] Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.
So far as the significance of the merits of a claim is concerned, the Court stated that at best in a complex matter assessment at the interlocutory stage can be no more than
impression and cannot be a definite indicator of the ultimate outcome after trial.
46 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
47 McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
[114] The general approach to an application for security for costs involves four steps:
(a) Has the applicant satisfied the Court of the threshold under r 5.45(1)? (b) How should the Court exercise its discretion under r 5.45(2)?
(c) What amount should security for costs be fixed at? (d) Should a stay be ordered?
[115] There is no dispute that the threshold requirement in r 5.45(1)(b) is satisfied.
[116] As earlier noted,48 the subject matter of this claim concerns the most fundamental of the rights recognised in NZBORA. In the normal course the Court would be most reluctant to make an order which stifled a bona fide claim relating to such a matter, particularly if the matters of which complaint are made have not been previously explored to any significant extent.
[117] On the other hand the present case is one where there is no room for any real doubt as to the circumstances of the incident and where there has been previously a thorough review of the circumstances through the sequence of the criminal trial, the Coroner’s enquiry and the IPCA investigation.
[118] As earlier noted, the case concerns a developing area of the law. While there ought not to be a serious contest as to the facts, it is fair to say that the plaintiff’s submissions suggest a contrary view and confirm my perception that, no matter how thorough-going an enquiry may be, the plaintiff in this case will have difficulty in accepting a finality of outcome. In my view an order for security is appropriate in the circumstances of this case but those circumstances justify a lesser amount of
security than otherwise would be the case.
48 At [12] above.
[119] The defendants submit that costs on a 2B basis can be broadly estimated at
$48,483.50, based on a two week trial. However, recognising the importance of access to justice and the need not to prevent impecunious plaintiffs from bringing claims which may have some merit, the defendants seek security at what they describe as the significantly lower sum of $20,000. The defendants are to be commended for their approach. In my view a figure of $20,000 is the appropriate direction in this case.
[120] The proceeding is stayed pending the plaintiff satisfying the Registrar as to the provision of security in the amount ordered. However, notwithstanding the stay, the plaintiff is at liberty to revisit his pleading and file an amended statement of claim which more accurately reflects the basis of the claim as has been expounded in the course of the presentation of submissions on the strike out application.
[121] Once an amended statement of claim has been filed and satisfactory arrangements for security have been made, a case management conference will be convened at which a timetable will be set for the filing of defences and the identification of issues on which discovery may be required.
Disposition
[122] The defendants’ application to strike out the claim is dismissed.
[123] Security for costs in the sum of $20,000 is ordered. Although the proceeding is stayed pending arrangements being made for the provision of security, the plaintiff is at liberty to file an amended statement of claim for the reasons stated at [120] above. I direct that costs in relation to both the defendants’ applications are to be
addressed as part of the costs in the substantive hearing.
Brown J
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