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Wallace v Attorney-General [2021] NZHC 1963 (30 July 2021)

Last Updated: 2 August 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

Approach 8

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]

INTRODUCTION

(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

The evidence and my approach to it

(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

(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





  1. The transcript from the depositions hearing is, itself, some 1,200 pages long. The transcript of the evidence at trial is 440 pages.
  2. 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.

7 Again, subject to any specific relevance or admissibility issues.

  1. 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.
  2. 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.

Why the question of self-defence can be revisited








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

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

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

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.

(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.

Whether Constable Abbott was suffering from PTSD from a prior shoot-out

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.”

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.

Whether Steven was approaching Constable Abbott in threatening manner


  1. 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.

WHO WAS STEVEN WALLACE?

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.

FACTUAL OVERVIEW

Background matters

Policing in Waitara at the relevant time

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

(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”.

(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.

(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.


Any misconception in this regard may precipitate the offending action that a warning shot is trying to prevent.

... if the suspect is acting in a way that makes casualties likely, police must act immediately to prevent this.

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. ...

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


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.

Description is a male 20 years, Māori, dark clothing, pants, jersey. Apparently he was on his own.



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.

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.

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.

This guy is running all around Waitara smashing anything he can find including he’s trying to get taxis.

The shooting

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.

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.


15 The officers did not check the registration number of Steven’s car before they approached.

  1. 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”.



18 This is consistent with the eyewitness account of Mr Luxton.

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.

First contact between Police and the Wallace family

THE INQUIRIES INTO STEVEN’S DEATH


  1. 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



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.

Detective Inspector Pearce takes over

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

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?

  1. 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.

No statements were taken and no businesses identified who had any problems with Steven WALLACE or any of the WALLACE family.

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.






22 Helen Collingwood was Mrs Wallace’s daughter and Steven’s half-sister.

David Toa interview

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

(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.

Ballistics

Autopsy and toxicology

The sequence of shots

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

(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.

Other tactical options

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.

... 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.

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.

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 ...

Compliance with the relevant GIs

Criminal liability







26 Emphasis added.




  1. 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.
  2. Of course, Constable Abbott believed at the time that he was dealing with Mr Toa, who was in his forties.

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.

The decision not to prosecute

Inspector Dunstan’s 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:

4.12 On 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.






29 Emphasis added.

Police media statement

Acting Solicitor-General’s press statement

The available evidence led inevitably to a conclusion that the shooting was done in self-defence.

  1. 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

Opening the inquest






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

Further Police inquiries: Mrs Dombroski’s statement

  1. It seems that the family and Mr Rowan in their media statements had indicated that a private prosecution would be pursued.
fearful of her son, who had threatened to kill them. Mrs Dombroski took notes of all her work calls.

(a) She received a phone call from a woman on 14 April 2000. The woman asked for advice about how she could protect herself and her daughter from her son. The woman told Mrs Dombroski that her son was becoming increasingly violent and had threatened to kill them.

(b) The woman told her that her son was in his twenties, abused drugs and alcohol, and had a criminal history. The woman said her son’s name was “Steven Wallace”.

(c) She told the woman that no one of that name was on the Family Court database. After explaining the basics of protection orders and recommending that the caller talk to a solicitor, the conversation ended.

(d) She takes many phone calls daily at her work. She records their names in her diary. She looked through her diary and found an entry on 14 April 2000 with details about this call. (The diary was apparently taken by Police as an exhibit.)

(e) While she recognised that she was breaching privilege and her work’s code of conduct, she believed that “if there was going to be a trial then the full facts needed to be known”.

I believe evidence relevant to the crime of Threatening to Kill will be found in these records which are held by Telecom NZ. Execution of this warrant will enable the informed compliance by Telecom to reveal this data.

Records of this conversation could corroborate the complainant’s statement by their very existence.

The conversation that took place on 14 April 2000, between a woman who stated her son was Steven WALLACE and a Family Court Co-ordinator could

further indicate the unstable nature of WALLACE’s behaviour at the time of this fatal shooting. I am unsure if the Steven WALLACE’s [sic] concerned are one and the same. By virtue of this search and other enquiries, I am seeking to confirm or refute this.

Depositions hearing

(a) Expert evidence given by three retired Police officers: Mr Wayne Idour, Mr (formerly Superintendent) Bryan Rowe, and Mr Bernard Maubach, who had been a high-ranking Police officer in Germany. Their



35 Although the addresses of counsel have not survived (they do not form part of the record), that this was the theory is confirmed by the analysis of the prosecution case in the later judgment of the Chief Justice, discussed below at [183]–[186].

evidence related primarily to Police procedures and the tactical alternatives open to the officers on the night in question.

(b) The evidence of the forensic pathologist, Dr Kenneth Thomson, whose expert view was that it was the third shot that had been fatal (the first two being to Steven’s arms/upper body and the last to his back).

“Mother, son VIO”, which in my shorthand is violent. “A and D issues”, in my shorthand is alcohol and drug issues. “Daughter involved. Criminal history. Steven Wallace”.

and it was she who had sought to take a protection order out against her son. She said the media reports of the cross-examination of Mr Maubach had prompted her to telephone Raewyn Wallace. This, in turn, led to her making that statement, which then became part of the evidence at the depositions hearing. Police inquiries later confirmed that the call had indeed come from her number.

The defence case will be that, if Mrs Wallace hadn’t aborted that call, but told the Police that Steven was in a rage, that he’d been drinking, that he’d smashed holes in the garage, that he had his golf clubs with him, that she and the kids were going to leave home, then the dogs would have been called out then.

...

... had that information been relayed and had the dogs been called at 3.37, the dogs would have been in Waitara by 4.00 o’clock in the morning, even on your timings, wouldn’t they?

  1. Now the question I put to you Mr Wallace is - have these rows [between Mr Wallace and Raewyn Wallace] become physical?
  1. I will say this that - I myself think that this is irrelevant, and I don’t want to answer that question.

36 I note that this material did not form part of the evidence at the later trial.

  1. So you’re not prepared to answer the question about whether the rows got physical, is that right?

A. That's right.

  1. And are you prepared to answer the question as who’s broken Raewyn’s jaw?

A. I am not prepared to answer that either.

Q. And how did Steven feel about the assaults by you on his mother?

A. I’m not sure.

Q. And you and Raewyn are not together now are you?

A. Yes, we are.

Q. You are still living -

A. Over this trial, yes.

  1. Over the trial? Apart from the period of the trial, when did you last live together as man and wife?

A. We're still man and wife.

The JPs’ decision

Senior Constable Abbott you are charged with the murder of Steven Wallace at Waitara on 30 April 2000 under the Crimes Act 1961, Section 167b and 172.

The preliminary hearing which has just been completed is unusual in a number of ways. Over 1200 pages of detailed evidence plus hand-up material has been heard over 22 days from both the prosecution and defence.

There is no doubt that you shot Steven Wallace on McLean Street in Waitara on the Sunday morning.


37 Defence counsel wanted a committal so that the matter could finally be resolved by way of (what she anticipated would be) a successful application under s 347 of the Crimes Act 1961. Such an application would have constituted an acquittal and ensured that Constable Abbott was not exposed to the risk of further prosecution.

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.

The Chief Justice consents to the filing of the indictment

38 Wallace v Abbott HC New Plymouth T9/02, 16 September 2002 at [16].

39 Wallace v Abbott [2003] NZAR 42 (HC).

40 But she did express her sympathies for the JPs, explaining that they were put in an unenviably difficult position, given the volume of evidence, media attention, and various required rulings. She said that, in hindsight, the hearing ought to have gone to a judge. She also noted that the

proposed to deal with the s 345(3) matter afresh, adopting an approach that was analogous to that taken on an application for discharge under (what was then) s 347 of the CA, by reference to the principles set out in R v Flyger.41

(a) the weapons used;

(b) the degree and immediacy of the danger that Steven Wallace posed to others;

(c) the options available to Constable Abbott;

(d) the manner of Constable Abbott’s approach to Steven Wallace;

(e) the sequence of the shots, and which had proved fatal;

(f) Constable Abbott’s knowledge (if accepted by the jury) of the first two shots to hit Steven Wallace and their effect or likely effect; and

(g) the opportunity available to Constable Abbott to reassess the threat (and move out of harm’s way) after the first two shots were fired.





approaches taken by counsel at the depositions hearing had catalysed the error (for example, she noted that their submissions failed to identify the proper question that the Justices were to answer—their submissions were more akin to a jury address).

41 R v Flyger [2001] 2 NZLR 721 (CA).

42 Wallace, above n 39 at [103].

Further communications with Crown Law

It is accepted that in New Zealand the right to take a private prosecution is a constitutional safeguard for the citizen. However, that does not mean any particular prosecution is of constitutional importance.

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. 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.

Section 322 application for venue change







43 Wallace, above n 38, at [16].

(a) the prosecution was the first occasion in New Zealand that a serving police officer had been charged with murder while in the execution of his duty;

(b) the huge publicity the case had received, particularly in the Taranaki area;

(c) the public interest had been intensified, and the community polarised, by the racial overtones that the case had developed;

(d) there appeared to be considerable local support for Constable Abbott, which had been reported in the press;

(e) These matters caused Chambers J to conclude that:

[12] ... People in Taranaki have identified with the victim or the accused in an almost unprecedented way, and certainly the personal involvement of Taranaki people in the tragedy has been much more significant than has been the involvement of people elsewhere in New Zealand.

[18] ... It is hard to see how such a survey was relevant to the sole issue in this case, whether Constable Abbott acted in self-defence. But the fact that such a widespread survey was carried out will have contributed to an impression that the Wallace family are on trial.

[16] ... How [the JP] could possibly make such a statement in light of the Chief Justice’s decision that he and his colleague had misinterpreted their function is, to say the least, surprising.


44 Wallace v Abbott, above n 38, at [18].

45 At [16].

The private prosecution continues

The High Court trial






46 Mr Rowan referred to a contribution made by the Treasury to the Police Association (which was funding the defence) and to a public statement by the Commissioner of Police that the Police would continue to support Constable Abbott fully.

The Coroner’s inquest resumes

The Coroners Act 1988

15 Purpose of inquests

(1) A coroner holds an inquest for the purpose of—

(a) Establishing, so far as is possible,—

(i) That a person has died; and

(ii) The person's identity; and

(iii) When and where the person died; and

(iv) The causes of the death; and

(v) The circumstances of the death; and

(b) Making any recommendations or comments on the avoidance of circumstances similar to those in which the death occurred, or on the manner in which any persons should act in such circumstances, that, in the opinion of the coroner, may if drawn to public attention reduce the chances of the occurrence of other deaths in such circumstances.

47 That Act was repealed and replaced by the Coroners Act 2006.

(a) Whether or not the causes of the death concerned appear to have been natural; and

(b) In the case of a death that appears to have been unnatural or violent, whether or not it appears to have been due to the actions or inaction of any other person; and

(c) The existence and extent of any allegations, rumours, suspicions, or public concern, about the death; and

(d) The extent to which the drawing of attention to the circumstances of the death may be likely to reduce the chances of the occurrence of other deaths in similar circumstances; and

(e) The desire of any members of the immediate family of the person concerned that an inquest should be held; and

(f) Any other matters the coroner thinks fit.


48 Such persons include the immediate relatives of the person who has died.

49 This can be contrasted with s 57 of the 2006 Act, which does contain such an express prohibition.

coronial process must be focused on fact-finding, rather than on the attribution of blame. That said, the authorities also acknowledged that the implicit attribution of blame may nonetheless be a necessary byproduct of the process.50

The decision to resume

(i) The trial of Constable Abbott was limited in its focus dealing particularly with a 64 second period from the time Constable Abbott left the Waitara Police Station to the time of the shooting.

(ii) An inquest is necessary to consider the actions or inactions of other persons who were involved particularly Sergeant Prestidge and Constable Dombroski.

50 Re Hendrie HC Christchurch CP445/87, 1 December 1988.

51 At this time, the Wallace family was represented by Mr Rowan, but he was later replaced by Mr Mansfield. Constable Abbott did not appear (although he had a right to do so) but was effectively represented by the Police Association, which, in turn, was represented by Constable Abbott’s lawyer at trial, Ms Hughes. There were also appearances by counsel for the Police Commissioner (Ms McDonald QC) and counsel appointed to assist the Court (Mr Gudsell).

52 Hugel v Cooney HC Tauranga CP17/98, 9 April 1999.

(iii) It is submitted that no steps were taken by Constable Abbott or Constable Dombroski to provide immediate first aid care to Mr Wallace.

(iv) The Police relied on ambulance transport when other means were available to transport Mr Wallace quickly to Taranaki Base Hospital.

(v) The administration of intravenous fluids to Mr Wallace by ambulance staff.

(vi) Alleged psychological trauma suffered by Constable Abbott.

(vii) The length of time Police members should remain in the AOS and whether they should be subjected to regular psychological testing.

(a) Police policy and procedure as it applies to general staff (excluding AOS) in dealing with violent offenders in circumstances such as these.

(b) The provision of first aid care, including the actual care provided to Steven Wallace.

Judicial review of the Coroner’s decision

53 Abbott v Coroners Court of New Plymouth, above n 6.

properly restricted to the two issues identified by the Coroner: Police policies for violent offenders and first aid care.

The Coroner’s report

(a) supervision and command;

(b) appreciation technique;

(c) authority to draw firearms and fire orders;

(d) warning shot;

(e) double tap policy; and

(f) first aid.

Supervision and command

(a) Sergeant Prestidge should have exhibited more leadership and control (for instance, by simply asking Constable Dombroski what he was planning to do).

(b) Constables Dombroski and Abbott did not discuss between themselves how they would handle the situation, and they did not seem to be on the same page, evidenced (in the Coroner’s view) by:

(i) Constable Dombroski exiting the vehicle and drawing his firearm and Constable Abbott exiting the vehicle holding his baton;

(ii) Constable Dombroski being the first to speak and act, despite Constable Abbott telling him that he thought the offender was someone he knew; and

(iii) the absence of any decision about cordoning and containing, making a voice appeal, or both.

Appreciation technique

(a) fixing a firm aim or objective;

(b) stating all the factors involved;

(c) considering the different courses open and selecting one that is best and most appropriate to the circumstances; and

(d) making a plan to implement the chosen course.

not need stating”. He gave as an example the fact that Constable Dombroski knew that the Delta (dog) unit was en route, when Constable Abbott did not.

[67] Also under this heading of the appreciation technique fits the hotly debated issue of the use of batons and OC spray as a less violent option. I have taken the view that I cannot consider whether the officers in the circumstances of this case should have used or attempted to use the baton or the OC spray or a combination of the two. To do so would be to stray into the jurisdiction of the High Court. The jury found that the level of force employed by Senior Constable Abbott was justified therefore to suggest that other less violent means should have been attempted is to endeavour to cast doubt on the jury’s verdict. The focus of this court is on the adequacy of the Police policy and procedure and not a reconsideration of the actual force used. ...

Authority to draw firearms and fire orders

Warning shot

Double tap policy

[42] ... The doctors were all in agreement that this injury was quite simply not survivable. I cannot see what is to be gained by making Findings as to whether Dr Thompson’s opinion as to the order of the shots, or Dr Sage’s opinion as to the order of the shots is correct. The High Court jury clearly accepted that the force used was not unreasonable in the circumstances as Senior Constable Abbott believed them to be.

[72] ... I have not been convinced that the police policy is out of line with other countries and should be reviewed. Rather, it is clear from the evidence that the current police policy of shoot for centre body mass, shoot to incapacitate, is the policy which is generally accepted and in use in many other countries.

First aid

(a) an ambulance was called immediately by Constable Herbert;

(b) Constable Dombroski approached Steven Wallace and told him that an ambulance was on its way; and

(c) Sergeant Prestidge briefly examined Steven Wallace and placed a triangle bandage under his shoulder or arm, 10–12 minutes after she arrived at the scene.

54 Emphasis added.

However I would add that it would have been desirable had some attention to Mr Wallace been undertaken. I do believe it wouldn’t have made any difference to survivability, but it would have demonstrated compassion.

[78] ... I am prepared to accept ... that a review was commenced and that I think is a complete answer to Mr Gudsell’s submission but does not answer the need for Police to provide first aid care as a show of compassion. In the circumstances of this case it is more a timing issue. The real complaint is that Steven Wallace could have been approached sooner than he was. There is no deficiency in the Police policy: the policy states that first aid is to be rendered when it is safe to do so.

Formal verdict

Police response to the Coroner’s report

the Police Commissioner issued a media statement dismissing those criticisms and commending the three officers for their professionalism and dedication.

Police Complaints Authority review and reform

Intervening review

1.16 In submissions, the point was made repeatedly that investigation of complaints against the police by members of that service, lacked independence.

...

(a) In small town contexts, it is likely that the parties will be known to witnesses who are questioned. Those witnesses may have sympathies towards the officers they know, and they may have biases against the complainants (particularly if they had bad records).

(b) There had been a suggestion that investigating officers were inevitably entangled in Police culture, resulting in a focus on justifying police actions rather than critically examining them. Put more positively, it was possible that some Police officers preferred to resolve failures behind closed doors.

(c) It had been suggested that Police officers over-relied on previous interactions between a complainant and Police, which could lead to a lower level of scrutiny of the particular complaint. A similar lack of scrutiny may manifest as a reluctance to involve expert witnesses, with different cost considerations being applied when investigating police complaints rather than criminal prosecutions.

(d) There was a risk that investigating officers would be subjected to both direct and indirect peer pressure from other officers.



  1. The change to the law also directly followed the release in 2007 of the report of Commission of Inquiry into Police Conduct.

Independent Police Conduct Authority investigation and report

The scope of the investigation and the report

The trial took place before Justice Chambers and a jury in the Wellington High Court from 18 November to 3 December 2002. The issue at trial was whether the prosecution could exclude beyond reasonable doubt the possibility that Senior Constable Abbott had acted in self-defence when he shot Steven Wallace. During the trial, evidence of an expert nature relating to Police policy, practice and procedure in armed offender situations was given by witnesses for both the prosecution and defence. At the conclusion of the trial Senior Constable Abbott was acquitted by the jury.


56 Under s 12(1)(c) of the Independent Police Conduct Authority Act 1988.

57 Emphasis added.

  1. 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.
  1. 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.
  1. It is not open to the Authority to review the jury’s verdict on those issues. Rather, the Authority’s focus must be on the Police actions up to the 64 second period during which Constable Abbott was confronted by Steven Wallace and the shooting occurred (the timeframe in which the issue of self-defence had to be determined by the jury) and on the Police actions immediately after the shooting and on subsequent interaction between Police and the Wallace family.

(a) Carriage and use of firearms;

(b) Tactical options other than the use of firearms;

(c) Constable Abbott’s fitness for duty;

(d) Supervision and command;

(e) Police actions after the shooting;

(f) The Police homicide investigation;

(g) Police conduct at Senior Constable Abbott’s trial;



58 Emphasis added.

(h) Family concerns; and

(i) Police policy and procedures.

Carriage and use of firearms

(a) Were Police justified in arming themselves in response to Steven’s actions?

(b) Did Police follow proper procedures when issuing themselves with firearms?

(c) Was Senior Constable Abbott justified in firing a warning shot?

(d) Was the shooting justified in law?

Both Senior Constable Abbott and Constable Dombroski had eye-witness evidence of Steven Wallace’s extreme violence directed at persons as well as property. This can have left them in no doubt that they were dealing with an emergency situation, which required the uplifting of firearms from the Waitara Police Station in order to respond to a real threat of death or grievous bodily harm to themselves or to others in the vicinity. The officers were therefore justified in arming themselves.

Senior Constable Abbott complied with required policy, having repeatedly called upon Steven Wallace to surrender his weapons without success and by firing a shot directly into the air without placing anyone at risk.

By his actions Senior Constable Abbott made it clear to Steven Wallace that he was not being shot at, but was receiving a warning.

The jury accepted that at the critical time when Senior Constable Abbott fired his Glock, he genuinely feared for his life and for the life of Constable Dombroski, and had no less violent option immediately available to him to remove this threat.

In accordance with the jury’s verdict, Senior Constable Abbott was lawfully justified in shooting Steven Wallace in self-defence and in the defence of others, within the meaning of section 48 of the Crimes Act 1961.

It is appropriate to reinforce that Steven Wallace was shot, not because he had broken windows, or because he was resisting or escaping from arrest, but because Senior Constable Abbott had reasonable grounds to fear for his own life and for that of Constable Dombroski.

Tactical options other than the use of firearms

Given the limited nature of the available resources and the immediate threat presented by Steven Wallace, no option was available to the officers at the critical time other than use of force.

(a) Cordon and containment was not a viable option in terms of the guidance contained in the Police Manual of Best Practice, which

warned that it is better to take a matter too seriously than too lightly and that every effort must be made to prevent casualties, and that:

... if the suspect is acting in a way that makes casualties likely,

Police must act immediately to prevent this ...

(b) On the basis of the expert evidence at trial, retreat would have exposed members of the public to danger and was not a viable option;

(c) OC spray was not viable in terms of the Manual, which noted that its use on an armed offender carried some risk and would likely have been ineffective against a “goal-oriented” attacker;

(d) The PR24 baton was primarily a blocking tool and the expert evidence was that it would have been of limited (if any) use in relation to an assailant with a baseball bat;

(a) the mistake was a genuine one, and had caused Constable Abbott to think he might be able to calm Steven by way of personal appeal; and

(b) it was improbable that either the officers’ actions or the outcome wold have been different had they first checked the number plate of Steven’s car and been able to ascertain his true identity.

Constable Abbott’s fitness for duty

arrived home at about 11.15pm, consumed a meal and a non-alcoholic drink, watched television and gone to bed at about midnight.

In the Authority’s view, mandatory drug and alcohol testing following critical incidents would be of considerable benefit to Police and should be introduced. It would indicate a willingness on the part of Police to ensure accountability within its own ranks. And it would protect individual officers from false allegations that they were or may have been impaired by alcohol and/or drugs. The Authority’s view is that Police should urgently develop policy and procedures for compulsory alcohol and drug testing ...). The Police accept this and have advised the Authority that the policy is under review, and that the review is well advanced.

Supervision and command

Senior Constable Abbott and Constable Dombroski should have briefly discussed control of the situation while they were at the Waitara Police Station. Clearer communication may at least have acquainted Senior Constable Abbott with the fact that Constable Herbert was also in attendance. However, this reflects the reality that Constable Dombroski and Senior Constable Abbott were responding as quickly as they could to an immediate and serious threat.

As she travelled to Waitara, Sergeant Prestidge was clearly aware of the seriousness of the incident and of the capabilities of the officers involved. She was also aware that firearms were being drawn and was comfortable with that course of action under the circumstances. Any input she might have had before arriving at the scene could only have been general in nature, and to have interjected at that time would have distracted the

members from their primary task. Clearly, if Sergeant Prestidge had not been happy with the members arming themselves, she was under an obligation to give appropriate directions; the fact that she did not is not grounds for criticism of her command and control of the situation. Indeed, she made a perfectly reasonable decision to rely on the officers at the scene, including an experienced member of the AOS, to respond appropriately to a dangerous offender.

The lack of communication between Constable Dombroski and Senior Constable Abbott reflected the urgency of the situation they faced. In the Authority’s view, Sergeant Prestidge’s leadership was reasonable and appropriate under the circumstances.

Police actions after the shooting

Notwithstanding the traumatic effect of the incident on the officers concerned, more should have been done to show compassion and concern for Steven Wallace, once it was ascertained he was no longer a threat. However, even if first aid had been provided immediately, this would not have saved Steven Wallace’s life.

Police have recognised that their performance in terms of managing appropriate release of information to the public and news media could have been better in this case, and have taken steps to remedy the shortcomings apparent at Waitara.




  1. The only finding was that “[a]lthough some time was taken to positively confirm Steven’s identity, the proper process in terms of family liaison was followed as soon as it was confirmed.”

Police homicide investigation

Operation Mclean was well-led and, in most respects, met high standards of professionalism and integrity. Some aspects of the investigation did not meet best practice.

Police conduct at Constable Abbott’s trial

There is no evidence that the Police officers concerned wore their uniforms to court in a deliberate attempt to influence the jurors or to intimidate the Wallace family.

However, the wearing of uniform to court when attending to support a colleague and while not on duty is a breach of the relevant policy. It also gives an impression of solidarity and thus risks creating the impression that the officers concerned hope to influence the jury.

Family concerns

Police policy and procedures

SECTION 8 NZBORA: THE RIGHT TO LIFE

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.

... 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, ... 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, ...


60 As initially proposed in the 1988 White Paper, the right was (again) phrased slightly differently: “No one shall be deprived of life except on such grounds, and, where applicable, in accordance with such procedures, as are established by law and are consistent with the principles of fundamental justice.”

61 Wallace v Commissioner of Police, above n 4, at [12].

62 At [12], citing Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA) (citations omitted).

questions of law raised by the present claim are novel, at least in a domestic context. And those questions must all be answered before any assessment of the facts, and any potential liability arising.

(a) Is the justification of self-defence established by law and consistent with the principles of fundamental justice?

(b) In a s 8 claim where self-defence is raised, on whom does the burden of proof lie?

(c) Are the elements of self-defence raised in a s 8 claim the same as the elements of self-defence in a criminal proceeding?

(a) In a case involving the killing of an individual by a state actor, does s 8 impose an obligation on the state to investigate?

(b) If so, then what is the content of the obligation to investigate?

(c) Does s 8 require those in charge of state operations potentially involving lethal force to plan and control those operations in a way that minimises the risk of harm to individuals?

(d) If so, then what is the precise ambit of such an obligation?

The international human rights context

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The New Zealand Bill of Rights, that:65

Not too much should be made of that distinction, however. The ‘right to life’ is really only a succinct way of affirming a right not to be wrongly deprived of life. Indeed, since death is inevitable for all persons, that is all a ‘right to life’ can mean.

63 See the discussion in R Clayton and H Tomlinson The Law of Human Rights (2nd ed, Oxford University Press, Oxford, 2009) at [7.159]–[7.162].

64 Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” (1985) AJHR A6. The only comparison made in the commentary is with s 7 of the Canadian Charter, the point being that the New Zealand right was framed to make it clear that the reference to “fundamental justice” was not just a synonym for natural justice but had substantive heft. (At that point, the articulation of the right to life was slightly different: “No one shall be deprived of life except on such grounds, and, where applicable, in accordance with such procedures, as are established by law and are consistent with the principles of fundamental justice”).

65 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, New York, 2003) at 220.

  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.
  1. 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:
  1. in defence of any person from unlawful violence;
  1. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
  1. in action lawfully taken for the purpose of quelling a riot or insurrection.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.


66 Article 3 of which provides: “Everyone has the right to life, liberty and the security of person.”

67 Kris Gledhill Human Rights Acts: The Mechanisms Compared (Hart Publishing, Oxford, 2015) at 213.

68 See for example the 2004 discussion of the rule by the Albertan Court of Appeal in Ferraiuolo v Olson (2004) 246 DLR (4d) 225 (CA). It seems that in the various Canadian provinces the common law rule has only partially been abrogated by statute.

occurred, have entitled the party to bring an action and recover damages, the person who would have been liable to the deceased is liable to an action in damages.69

UNLAWUL KILLING

(a) whether the justification of self-defence established by law and consistent with the principles of fundamental justice;

(b) whether the elements of self-defence in a s 8 claim the same as the elements of self-defence in a criminal proceeding;

(c) on whom the burden of proof lies; and

(d) whether the elements of self-defence are established (to the requisite standard) here.













  1. Provide the accident compensation legislation does not apply (which it does not, in relation to a NZBORA claim).

Is the justification of self-defence established by law and consistent with the principles of fundamental justice?

Self-defence: established by law?

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

The policy of the common law, encapsulated in s 48 was explained in the 1879 Report of the Royal Commission appointed to consider The Law Relating to Indictable Offences (C 2345):

We take one great principle of the common law to be, that though it sanctions the defence of a man’s person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. (p 11)


70 Seales v Attorney-General [2015] NZHC 1239; [2015] 3 NZLR 556 (HC).

71 At [167]. Following the Canadian case of Carter v Canada (Attorney-General) [2015] SCC 5, Collins J said that determining whether the law was consistent with the principles of fundamental justice required analysis of:

... whether the law was arbitrary and had no rational connection to its objective; whether the law went further than necessary or is overbroad; and whether the impact of the law is grossly disproportionate to the purpose of the law.

72 Wallace v Abbott, above n 39, at [99].

that those italicised words mean what they say was confirmed in Leason v Attorney-

General, where the Court of Appeal said:73

[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 ...

Self-defence: consistent with the principles of fundamental justice?

73 Leason v Attorney-General [2013] NZCA 509, [2014] 2 NZLR 224.

74 And at a theoretical level, the moral reasoning underlying the justification is complex: see for example the discussion by Shlomit Wallerstein in her article Justifying the Right to Self-Defense: a Theory of Forced Consequences (2005) 91 Va L Rev at 999.

justification, itself, constitutes a balancing exercise between competing—but equally fundamental—rights.

Self-defence: an established exception to art 2

It is ... clear that the European Court of Human Rights has considered what English law requires for self-defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann.



75 Which finds codified form in s 48 of the CA.

76 See for example the discussion in Da Silva v United Kingdom (2016) 63 EHRR 12 at 250–252.

77 Bennett v HM Coroner for Inner South London [2006] EWHC 196 (Admin) at [25].

Conclusion

Are the elements of self-defence in a s 8 claim the same as the elements of self- defence in a criminal proceeding?

(a) the defendant was not acting in self-defence at the time he killed the victim; and

(b) the force the defendant used was not reasonable, having regard to the circumstances as he honestly but subjectively believed them to be.

... it is axiomatic that ... under s 48, a person is justified in using force only if it is reasonable in the circumstances. In a civil law context, an objectively unreasonable belief, no matter how genuinely held, would not be sufficient to establish self-defence or defence of another.


78 Leason, above n 73, at [64].

79 Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962.

acquitted by a criminal court of murder. The chief constable appealed a finding that the officer might nevertheless be liable in a civil court. The House of Lords noted that in a criminal context, self-defence had a subjective element: the reasonableness of the defensive act was to be assessed against the circumstances as the defendant honestly and genuine believed them to be. But in a tortious claim, the defendant’s belief needed to be both honest and reasonable. As Lord Scott explained:80

The function of the civil law of tort is ... to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights.

...

As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self- defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non-existent facts that are honestly but unreasonably believed to exist must fail. ...

80 At [18] (emphasis added).

defence is in issue. Sometimes the requirement is expressed baldly: that the relevant belief in the need for defensive force must be honestly and reasonably held. But other cases make it clear that not only is the existence of “good reasons” for the honest belief to be determined subjectively but also:81

... in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held.

Section 76(4) of the Criminal Justice and Immigration Act 2008 requires a court to determine the genuinely held belief of the individual in question, as to the circumstances when considering whether the degree of force used was reasonable, whether or not the belief in question was mistaken, or (if it was mistaken) whether it was reasonable. The reasonableness or otherwise of a belief is only relevant to the question whether it was genuinely held. This inevitably requires consideration of the dynamic situation and militates against an analysis by fractions of a second.

In a s 8 claim where self-defence is raised, on whom does the burden of proof lie?


81 Da Silva, above n 76, at 245. Da Silva was an unsuccessful art 2 claim brought by the family of the Brazilian national shot and killed by two special firearms officers at Stockwell station, following the terror attacks in London in July 2005.

82 E7 v Holland [2014] EWHC 452.

to the decision in Carter v Canada (Attorney-General) where the Supreme Court said:83

A claimant under s 7 [of the Canadian Charter] must show that the state has deprived them of their life, liberty or security of the person and that the deprivation is not in accordance with the principles of fundamental justice.

In the light of the importance of the protection afforded by Art.2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.





83 Carter, above n 71, at [80].

  1. See for example Ashley, above n 79, at [14] and R (Davis) v Commissioner of Police of the Metropolis [2016] EWHC 38 (QB) at [29].

85 Jordan v United Kingdom [2001] ECHR 327 at [103] (emphases added).

HAS THE CROWN ESTABLISHED SELF-DEFENCE HERE?

(a) In shooting Steven, was Constable Abbott using force to defend himself or another?

(b) What were the circumstances Constable Abbott believed to exist at that time?

(c) Was that belief reasonable?

(d) Was the force used by Constable Abbott reasonable in the circumstances as he (reasonably) believed them to be?

What were the circumstances as Constable Abbott believed them to be?

one occasion. His doing so makes no sense whatsoever in the absence of a mistaken belief.

Was his belief as to those circumstances reasonable?

(a) Constable Abbott was awakened at around 3.48 am and instructed to assist Constable Dombroski to deal with a person who had been seen smashing windows.

  1. I also discuss below the (un)viability of a physical confrontation with Steven at that point, even if the Constables were to have used their PR24 batons.

(b) When Constable Abbott arrived at the Police Station, he saw that the windows had been broken. This might logically suggest that the person was both targeting, and potentially seeking an encounter with, the Police.

(c) Constable Abbott then witnessed the Police patrol car pull up near Steven. He saw Steven attack the patrol car with force, smashing both the windscreen and the driver’s side window. Again, this would logically reinforce any belief that the offender was targeting, and unafraid to encounter, the Police.

(d) When Constable Abbott went to the Police Station to arm himself he met Constable Dombroski, who had himself independently decided to do the same. This would reasonably have reinforced Constable Abbott’s own assessment of Steven as a threat warranting an armed response.

(e) Constable Dombroski, who, at that point, had had a closer encounter with Steven, told Constable Abbott that Steven was a “nutcase”.

(f) When the two constables confronted Steven, he was holding a golf club and a baseball bat. Either was a potentially lethal weapon.

(g) When Constable Dombroski drew his gun and yelled, “armed police, drop your weapons” Steven did not back down. Rather, he began to advance on Constable Abbott, who was forced to retreat, moving backwards. At that point, a reasonable person would assume that Steven was undeterred by either the Police presence or a loaded gun.

(h) Steven threw the golf club at Constable Abbott, which a reasonable person would take to be a specific act of targeted (and objectively dangerous) aggression. The evidence of eyewitnesses does not support Mr Minchin’s submission that the golf club was not thrown at, or in the direction of, Constable Abbott.

(i) Steven did not positively respond to, or back down following, Constable Abbott’s attempts to talk to him.

(j) Steven was yelling threats, saying things like, “you’ve pushed me too far” and, “I’m going to fucking kill you” as he advanced towards Constable Abbott.

(k) It was reasonable for Constable Abbott to keep his eyes trained on Steven and not to check Constable Dombroski’s precise position.

(l) There was, in fact, little in the way of clear space behind Constable Abbott and—given that he was moving backwards—there was a real possibility that he might trip if he hit the gutter. The consequences of tripping in that situation were potentially life- threatening.

(m) Steven did not back down after Constable Abbott fired the warning shot but instead continued to advance, at a slightly altered angle. There was a reason for Constable Abbott to believe that Steven might be trying to cut off his escape.

(n) Steven continued to advance determinedly and angrily on Constable Abbott, yelling threats. The distance between them closed to between 4–5 metres. Steven continued to shout threats. He was holding the bat in an axe grip.

(a) Constable Dombroski’s evidence was that if Constable Abbott had not shot Steven, he would have done so himself.

(b) The play-by-play account given by Constable Herbert over Comms further reinforces such an assessment. She expressly reported moments before the shooting: “Here he comes. They might have to take him down”.

Did the use of a firearm constitute reasonable force, given the circumstances?


  1. I note that both prosecution and defence relied on them for that reason at the depositions hearing and at trial, although the inferences they sought to draw were very different.

(a) Retreat was not a reasonable option. To turn and run would give rise to an extraordinary risk in such a situation. It would have required either that Constable Abbott holster his gun (rendering him momentarily vulnerable) or to have run with a loaded gun in his hand (also rendering him and any bystanders vulnerable). It would also have meant abandoning Constable Dombroski. It would have risked Steven catching up and attacking him with the bat from behind. So while a “tactical withdrawal” might have been possible at an earlier stage, I cannot accept that it was feasible at the relevant time.

(b) The use of the PR24 baton was not a reasonable available option. Evidence was given at trial that engaging an offender armed with a bat with only a PR24 baton would be highly dangerous, even for someone trained for such a confrontation (which Constable Abbott, and almost all of the police force, were not). Again, it would have required Constable Abbott to holster his gun and reach for his baton, making him momentarily very vulnerable.

(c) The use of or the OC (pepper) spray was similarly a dangerous and untenable option. The evidence was that it does not reliably stop a “goal driven” or amped-up offender. And this option, too, would have required Constable Abbott to put himself in harm’s way by first holstering his pistol and then finding and activating the spray cannister.

For the reasons given in the IPCA report, I do not consider that the warning shot would have further inflamed the situation in any relevant way.

Was firing four shots reasonable, given the circumstances?

(a) the fact that the second double tap followed immediately upon on the first (defensive) double tap by and of itself meant that the second constituted excessive force; or





88 Excluding the warning shot.

  1. Rather, it was said that Police are trained to shoot instinctively in such a situation, as the mind has become so fixated on a target by that point that the aim is effectively automatic.

(b) at the time of the second double tap there was no longer an imminent threat to Constable Abbott’s life and so the later shots are either to be regarded as excessive or, more properly, cannot reasonably be seen as defensive at all.

(a) Which of the four shots was the fatal one?

(b) Was it reasonable for Constable Abbott to fire the second double tap?







90 By way of example only, in Andronicou and Constantinou v Cyprus [1997] ECHR 80 the ECtHR found that Police shooting Mr Andronicou 27 times with a machine gun was not excessive, in the circumstances.

Shot sequencing and the fatal shot

... it is difficult to be definite about the sequence. It is highly likely that the last shot was the one that went up through the back, the body having turned. The two that have gone – one into the left upper arm one into the left wrist area which could well have been the first and 2nd shot, no way of saying whether the first shot went into the left upper arm or whether it went into the left wrist. At this point if the arms were raised or if they were dropped it could expose the sternum area, the chest to a third shot. However, I must add that it is difficult to determine the actual sequence of shots.

The shot into the left arm and the shot into the wrist appear to follow a similar trajectory which indicate that they may have been fired from a similar position and may be at a similar time. ... As to the one below the sternum, depending on the stance of Mr Wallace, the area below the sternum may have been protected in some way by the arms and if the arms were dropped or lifted it may expose the area if the body was turned it may expose the area below the sternum for a shot to have gone into it. But I cannot be dogmatic about whether the two in the arm occurred before the one below the sternum though it does appear that the two through the arm may have occurred one after the other.




91 Emphasis added.

  1. Described as the shot “that entered the central body mass just to the left of the sternum and just below the sternum”.

93 Emphasis added.

“literature” recorded that it was possible for a person who had been shot several times to continue advancing “on people”.

Consideration of the direction of the shots suggested that the first three shots described above were fired while Mr Wallace was upright, with his left shoulder advanced towards the shooter and possibly his hands close together in front of the right shoulder. In my view there was a delay before the last shot. If the shots were fired in quick succession I do not believe Steven Wallace could have turned around fast enough to receive the final one in the back.

... The issue is the order of shots that were fired entering the front of the body. From Dr Hunt’s94 description and from a reconstruction of the passage of the bullets through the body there are two shots which were very close together in terms of both their entry point and the direction in which they were travelling.

... It’s my belief that those two shots were fired in rapid succession with very little change in the position of Mr Wallace in relation to Constable Abbott. The third bullet wound entered there and laid under the skin in the middle of the back just to the right of the midline so the direction that it was coming towards the body was from just to the left of front rather than from the direction of the left shoulder. This suggests that there had been a change in position of either Mr Abbott or Mr Wallace prior to that shot being fired. I believe it is likely that that was due to Mr Wallace rotating had he been in a position of readiness to strike received two bullet wounds to his arms which would certainly have made it less comfortable for him to hold the weapon up. I believe he rotated more towards Constable Abbott at the time the third shot as I see it was fired. The fourth shot I believe occurred as Mr Wallace continued to rotate and presumably turned away from the direction of the gun fire.


94 Dr Hunt was the pathologist who had conducted the autopsy.

Q: You’ve said it’s not possible for you to say with any certainty the order of the shots other than the back shot is certainly the last shot?

A: ... I think that would be accepted but there is certainly no pathology test that would assist in determining the order of shots in this case. Sometimes there is but not in this case.

Q: So you cannot exclude the possibility that the first shot was the liver shot?

A: I cannot completely exclude it. In my view it is unlikely but I certainly can’t exclude it.

...I can recall an individual who sustained a bullet wound to the head during a homicide and survived two hours after committing the homicide and certainly with severe and absolutely lethal knife injuries it’s not uncommon for people to survive for several minutes rather than collapse as one would imagine immediately after the injury. I think every forensic pathologist has cases where people have survived surprisingly beyond the odds.

I would suspect that the impact of a bullet into the abdominal wall and liver would certainly slow him down. The impact and the damage caused by the bullet wounds to the left upper arm left forearm and right upper arm would certainly make him lower the weapon fairly quickly but none of those injuries is going to make him collapse unconscious to the ground.

In my view, the most likely and logical sequence is as I’ve shown here with the first shot entered the left side of the upper chest, the one that’s called wound No. 2 in Dr Hunt’s report and from here it passed through the liver and this is the fatal shot.

...

You can’t get a shot to pass in through here and backwards towards the liver when somebody is standing side on and for this shot to pass this way they have to be standing effectively side on. This is why it is my contention that this

[the liver shot] is the first shot then there is a continuous rotation of the body resulting in the other three.

Was the second double tap fired in self-defence?

[The first] six shots had been fired less than 1.5 seconds after the Bravo car stopped by the Golf. In our judgment, there is considerable force in the expressed concern that minute dissection of fractions of a second with the benefit of hindsight will discourage an appropriate response, in real time, to threats thereby resulting in potentially increased danger to those involved in (or likely to be affected by) these exceedingly difficult operations. ... The

95 E7 v Holland, above n 82. The Commission of Inquiry into the shooting conducted by Sir Patrick Holland (which followed a decision not to prosecute) had, in fact, concluded that none of the shots fired were in self-defence.

96 At [54] (emphasis added).

reasonableness or otherwise of a belief is only relevant to the question whether it was genuinely held. This inevitably requires consideration of the dynamic situation and militates against an analysis by fractions of a second.

Tim said to hm he didn’t have to shoot the poor cunt 4 or 5 times and... he [Constable Abbott] said you want to go back to school and learn how to count.



97 Rather oddly, both Constable Dombroski and Constable Herbert also said they had heard only three shots. All, or almost all, of the other bystanders heard four or five (counting the warning shot).

Constable Abbott continued firing after it had become clear that the immediate threat posed to him by Steven had been either averted or materially diminished.

I continued to shoot until the threat was averted. Mr Wallace never stopped advancing on me until after the last shot was fired.

After the final shot [Steven] dropped, he just stood still, dropped his bat, went down onto his knees and onto the ground.

  1. A distance of 5 m in 1.5 seconds was suggested. Given a reaction time of around 0.5 seconds, it was said that the shooter would have only a second to reassess the threat.
had effectively been disarmed, then—theoretically at least—he was no longer a significant threat.

The weapon, baseball bat, I remember flew out of his arms at about chest level as he was shot. This was still while he was standing.

I couldn’t tell you at which shot of the final shots that the baseball bat left his hands.

When [Steven] was actually shot and I saw his body jerking he was definitely holding the bat with both hands around the bat, which was raised about his right shoulder. [Steven] did not drop the bat the instant he was shot, he dropped it before he fell to the ground.

...

I heard another two shots and at that stage when he’d been after the two shots I saw Steven fall forward and as he fell he dropped when he was just about at the ground the dropped the baseball bat and it dropped into the gutter.

  1. For reasons of the kind given earlier, I suspect there was no real time to consider the number or spacing of shots until Steven was “down”.
double tap was justified in self-defence. It therefore does not matter which of the four shots was the fatal one.

Conclusion

DOES S 8 ENCOMPASS AN OBLIGATION TO INVESTIGATE?

... to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.


100 See for example Assenov v Bulgaria [1998] ECHR 98.

101 R v Secretary of State for the Home Department, ex parte Amin [2003] UKHL 51; [2004] 1 AC 653 (HL) at [31].

102 Ramsahai v the Netherlands [2007] ECHR 393 (Grand Chamber) at 322.

because, in New Zealand, there are a number of statutory mechanisms aimed at ensuring such investigations will occur. I do not agree with those submissions.

(a) How would the right be vindicated if (for whatever reason) the statutory processes were repealed?

(b) How would the right be vindicated if the statutory processes were not followed?

(c) How would the right be vindicated if the statutory processes proved inadequate, by reference to the standards espoused in the art 2 cases?

... The material part of article 2.1 reads as follows: “Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally ...” It is now well established that this imposes three different duties upon the state. The first is the negative duty to refrain from taking life, save in the exceptional circumstances catered for by article 2.2.

The second is an implied positive duty properly and openly to investigate deaths for which the state might bear some responsibility. There is not much point in prohibiting police and prison officers, for example, from taking life if


103 Menson v United Kingdom [1998] ECHR 107 at 13–14; and Amin, above n 101, at [31].

104 Savage v South Essex NHS Trust [2008] UKHL 74, [2009] 2 WLR 115 at [76] (emphasis added). Precisely the same point was made in the art 3 context by the ECtHR in Assenov, above n 100, at [102].

there is no independent investigation of how a person in their charge came by her death. ...

... It must often be the case where State agents have used lethal force against an individual that the factual circumstances and the motivation for the killing lie largely, if not wholly, within the knowledge of the State authorities and that the victim’s families are unlikely to be in a position to assess whether the use of force was in fact justified. It is essential both for the relatives and for public confidence in the administration of justice and in the State’s adherence to the principles of the rule of law that a killing by the State is subject to some form of open and objective oversight.





105 McCann v United Kingdom [1995] ECHR 31 (Grand Chamber) at [192].

  1. At [146]; Salman v Turkey [2000] ECHR 357 (Grand Chamber) at [97]; and Jordan, above n 85, at [102].

107 See for example Mist v R [2005] NZSC 77; [2006] 3 NZLR 145 (SC) at [45].

  1. Ministry of Transport v Noort: Police v Curran [1992] 3 NZLR 262 (CA) at 276–277 per Richardson J. See also the observations of Cooke P at 268 and Gault J at 292.

What is the content of the s 8 investigative obligation?

A State may clearly discharge its procedural obligation under article 2 in different ways. The fact-finding and accountability components of the investigative obligation may be shared between authorities, including coronial and criminal authorities, provided they are procedurally effective in totality.

(a) be independent;114

(b) be effective;115




109 Jordan, above n 85, at [105]; and Da Silva, above n 76, at [230].

  1. R (L(A Patient)) v Secretary of State for Home Department [2008] UKHL 68, [2008] 3 WLR 1325 at [79].

111 At [31].

112 R (Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWHC 56 (Admin) at [50].

113 Jordan, above n 85.

114 At [106].

115 At [107].

(c) be reasonably prompt;116

(d) have a sufficient element of public scrutiny;117 and

(e) “in all cases” involve the next of kin “to the extent necessary to safeguard his or her legitimate interests”.118

Independence

(a) Jordan itself, which concerned the shooting of an unarmed man in Belfast by members of the Royal Ulster Constabulary (RUC). The Police investigation was headed by a deputy superintendent of the RUC from outside Belfast, supervised by the Independent Commission for Police Complaints. The investigation was found not to be independent.119 The fact that the decision whether to prosecute was then made by the DPP (accepted by the Court to be an independent functionary) did not alter that conclusion, because the prosecution



116 At [108].

117 At [109] and [121].

  1. At [109]. For reasons that are not quite clear to me, the Crown omitted this last requirement from its list of necessary features.

119 At [120].

decision was based on (and so tainted by) the non-independent RUC report.

(b) McKerr v United Kingdom, where members of the RUC were again involved in the fatal shooting of three unarmed men. And again the Court similarly held that the RUC investigation was not independent.120

(c) Giuliani and Gaggio v Italy concerned the Police shooting of a protestor. Even though the investigation it involved Police officers from the same branch as those involved in the shooting the Court found it had been adequately independent. But that was because those officers had only been entrusted to investigate matters of a technical nature, such as seizing weapons and vehicles, compiling photographic evidence, and acquiring audio-visual materials.121

(d) And finally, Al-Skeini v United Kingdom related to the killing of Iraqi civilians by British soldiers. An inquiry by the Royal Military Police (RMP) investigators was found to be institutionally, but not operationally, independent of the armed forces.122 Although the chains of command were different, it was up to the armed forces’ chain of command whether the RMP should be involved at all (and whether its involvement should, at any point, cease). The Court noted that certain circumstances require that particular attention be paid to perceptions of independence:123

... the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command.




120 McKerr v United Kingdom [2001] ECHR 329 at [140]. A later investigation into particular claims (of concealing evidence and of perverting the course of justice) led by Police officers in England was held by the Court to meet the independence requirement.

121 Giuliani and Gaggio v Italy [2011] ECHR 513 (Grand Chamber).

122 Al-Skeini v United Kingdom (2011) 53 EHRR 589 (GC) at [172].

123 At [169].

  1. After the State Criminal Investigation Department took over, further investigations were undertaken by the Amsterdam/Amstelland police force, although at the State Criminal Investigation Department's behest and under its responsibility ....
  1. The Court has had occasion to find a violation of Article 2 in its procedural aspect in that an investigation into a death in circumstances engaging the responsibility of a public authority was carried out by direct colleagues of the persons allegedly involved .... Supervision by another authority, however independent, has been found not to be a sufficient safeguard for the independence of the investigation ...
  1. Whilst it is true that to oblige the local police to remain passive until independent investigators arrive may result in the loss or destruction
  1. Ramsahai, above n 102. The decision was referred to in the closing submissions of both parties, although not in relation to the matters I am dealing with here.

125 Citations omitted.

of important evidence, the Government have not pointed to any special circumstances that necessitated immediate action by the local police force in the present case going beyond the securing of the area in question; there is no need for the Court to consider this question in the abstract.

  1. On these grounds alone the Court therefore finds that there has been a violation of Article 2 of the Convention in that the police investigation was not sufficiently independent.

Effectiveness

... capable of leading to a determination of 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. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing 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 ....








126 At [337]–[341] (citations omitted).

127 Ramsahai, above n 102, at [325].

128 Edwards v UK (2002) 35 EHRR 487 at [71] (citations omitted; emphasis added).

It 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 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.


129 In R (da Silva) v Director of Public Prosecutions [2006] EWHC 3204 (Admin), the High Court of England and Wales held that art 2 effectively added nothing to the ordinary grounds of review in a refusal to prosecute case.

130 In re Finucane’s Application for Judicial Review [2019] UKSC 7, at [127].

131 R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 at [16] (emphasis added).

132 At [18].

133 At [19].

134 Nachova and Others v Bulgaria [2005] ECHR 465 (Grand Chamber).

113. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the ‘no more than absolutely necessary’ standard required by Article 2 § 2 of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness (...).”

Promptness

Accountability

Involvement by next of kin

135 Edwards, above n 128, at [69].

136 At [73].

137 Edwards, above n 128; and Amin, above n 101.

the part of any State official or agency involved in the matter, but also that there was to be a further inquiry.

84. The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to the witnesses, whether through their own counsel or, for example, through the inquiry panel. They had to wait until the publication of the final version of the inquiry report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject matter of the inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.

participation by the family.138 But the investigation by the Prison Service and the resulting report (on which advice not to prosecute was based) was found not to discharge the State’s investigative duty. As well as having problems with independence (because the report had been written by a serving official in the Prison Service) and accountability (because the investigation was conducted in private and the report was not published), the family had been unable to play any meaningful part.139 And although a later inquiry had brought additional facts to light, it was confined to race-related issues and it, too, had been conducted in private and without effective involvement by the family. The Court concluded:

37. ... Whether assessed singly or together, the investigations conducted in this case are much less satisfactory than the long and thorough investigation conducted by independent Queen’s Counsel in Edwards’ case, but even that was held inadequate to satisfy article 2(1) because it was held in private, with no opportunity for the family to attend save when giving evidence themselves and without the power to obtain all relevant evidence.

HAS THERE BEEN A RIGHTS-COMPLIANT INVESTIGATION INTO STEVEN’S DEATH?

What role can the criminal trial play in meeting the s 8 obligation?

[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.




  1. Here, “properly” means appropriately for an investigation of that kind. It did not mean that the investigation was art 2 compliant.

139 At [36].

140 Wallace, above n 4.

[92] ... 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 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.

effective procedure for finding relevant facts and (if proven) attributing criminal responsibility.141 But a private prosecution does not constitute such a “normal course”.

141. ... civil proceedings would provide a judicial fact-finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is however a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Art.2 of the Convention.



141 McKerr, above n 120, at [134].

142 This was a matter eventually considered by the IPCA.

143 Jordan, above n 85 (emphasis added).

144 R (Wright) v Secretary of State for the Home Department [2001] EWHC 520; [2002] HRLR 1 at [61].

The civil proceedings in this case are irrelevant to the defendant’s procedural145 obligations under articles 2 and 3 of the Convention.

(a) independence;

(b) effectiveness;

(c) accountability;

(d) timeliness; and

(e) family involvement.

The Police homicide inquiry




145 The obligation to investigate is commonly referred to as a procedural obligation.

The shooting of Steven Wallace by the Police in Waitara unleashed a storm of protest locally, and generated extensive national debate, about the shooting being an act of racism. A focus on racism in the New Zealand Police Force was given greater impetus by the publicity concerning two 1998 pieces of research into “Maori Perception of the Police” and “Police Perceptions of Maori”. These reports had provided some evidence of racism in the New Zealand Police Force and confirmed that Maori perceived the Police as a racist organisation. A subsequent Police investigation recommended that no criminal charges be laid against the Officer responsible for the shooting.

...

The report, which is written from a race relations perspective, found that there was intense interest in the incident as well as in the historical and present day relationships between Maori and Pakeha in Taranaki. At every consultation on the matters surrounding the death of Steven Wallace, there was extensive discussion on Taranaki history, the historical experiences of Maori and their present day frustrations and aspirations.




146 It is important to note—and I will attempt to keep noting throughout this section of the judgment— that the Police inquiry’s lack of independence is not a criticism of the inquiry or the personnel involved in it. It is a function of the fundamental difficulty posed by any internal investigations of this kind and also of the inevitable perceptions of partiality (regardless of whether there is any basis in reality for those perceptions).

147 Rajen Prasad Relationships in Taranaki (Office of the Race Relations Conciliator, September 2000).

Steven Wallace’s death had propelled Waitara and other Taranaki communities to reflect on historical Maori/Pakeha relationships, on the level of Maori under achievement, unemployment, poor health, and disproportionate participation in negative social statistics. ·

The death of Steven Wallace became a rallying point for Maori calls to hasten the resolution of historical issues, for opportunities to participate meaningfully in matters that affected their whanau, hapu and iwi, for urgent attention to be given to the development of their economic base, and for the mana of kaumatua to be effective once again in providing leadership of Maori.

Independence





148 See Al-Skeini, above n 122, at [169].

That 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.

149 I acknowledge that the Police Association was, as a matter of fact, independent of the New Zealand Police as an organisation and played no part in the investigation. As noted, however, it is the optics that are important.

Constable Abbott. That is confirmed by the later account given by David Toa of the way in which he had been interviewed, on 9 May. In 2001, Mr Toa told both a Sunday Star Times journalist and the Wallace family’s private investigator, Mr Paul Bass, that the Police officer who interviewed him constantly referred to Constable Abbott as “Abbo” and “talked to me like [Abbott] was her friend”.150


150 The Crown says, and I accept, that this evidence is hearsay, but I am prepared to admit this part of Mr Toa’s statements (recorded in the affidavit of Mr Bass) as truth of their contents under s 18 of the Evidence Act. I consider there is a reasonable assurance of reliability because Mr Toa said the same thing to both the press and Mr Bass (who recorded the statements at the time) within a year of Steven’s death. I also consider that undue expense or delay would be caused if Mr Toa were to be called as a witness.

151 I acknowledge that the report was not written with a view to public dissemination, but DI Pearce’s recommendation 24.3 (set out at [139] above) suggests that it was intended to provide the Wallace family with a copy, if a decision not to prosecute was made.


152 There was, from the outset, substantial evidence suggesting that Steven was motivated by anti- Police feelings: his first stop had been the Police Station, where he pounded on the door (and, according to neighbours, yelled things like “Where are you, fucking bastards, come out here” and “You Pigs”) and broke the Station windows. Even if a specific animus could not be firmly established, there was hardly a dispute about what Steven was doing and saying in the moments before he was shot; the Police officers were not the only witnesses to describe just how amped up and angry he was. It was never going to be disputed that he had broken many windows or that he had just attacked the Police car.

Effectiveness

him. As a matter of criminal law, that required Police to ask whether, on the evidence gathered, the Crown would be able to disprove self-defence beyond reasonable doubt. That is made clear by DI Pearce’s principal conclusion:153

That 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.

requirement for a firm finding on the central issue of responsibility.

(a) the failure to test Constables Abbott and Dombroski for gunpowder residue;

(b) the failure to breath test them for alcohol consumption;

(c) the failure to keep the officers separated prior to interview; and

(d) in relation to Constable Abbott (as the “suspect”) the mode of interview itself.



153 A reading of the preceding paragraphs in the report, however, makes it tolerably clear that this conclusion was based on DI Pearce’s positive view that (on the evidence) Constable Abbott did shoot Steven in self-defence because (a) in the moments immediately prior to the shooting, and in the circumstances as Constable Abbott perceived them to be, he genuinely feared for his life; (b) Constable Abbott shot Steven to defend himself; and (c) shooting Steven was a reasonable and proportionate use of force in the circumstances as Constable Abbott believed them to be.

154 Looked at another way, the lack of independence simply means that the inquiry cannot be rights- compliant, making it unnecessary to consider the other requirements.

noted that it fell short of best practice. The failure to breath test was also the subject of a specific recommendation by the IPCA.

Constable Abbott, Constable Dombroski, Grant Coward, Vaughan Watson, Robbie O’Keefe, and Anne O’Keefe were all in the Station.

Vaughan, Constable Abbott and Grant were in the meal room together. They were just milling around.

Constable Dombroski and Anne O’Keefe were in the Watch House. I was briefed by Grant Coward as to what had happened. I think we then had a coffee in the meal room. Constable Dombroski came down as well.


155 In fact, all of Constable Abbott’s statements take this form.

  1. It is clear that a typist (Ms Booker) was present and typed the statement as Constable Abbott went along.
  2. Steven died before the end of the interview, but, at the request of his lawyer, Constable Abbott was not told of this until he had completed his statement.
Practice Note on Police Questioning, there is nothing in the Rules about the desirability of video (or audio) recording interviews—at least of those in custody or who have been charged.158 Nonetheless, the Courts had been saying for some time that video or audio recording—where practicable—constituted best Police practice. In 1988, for example, McMullin J in the Court of Appeal had said:159

A different but related issue is whether police interviews with suspects and arrested persons should be recorded on tape or video. The view which I believe to be widely held by Judges is that, while it has to be recognised that cost is a factor, this should be aimed at as a goal as soon as reasonably practicable. As well as being a safeguard for the person questioned, the taking of a reliable record cannot infrequently be advantageous to the police. The present case, where there is an incidental dispute about the editing of the constable's evidence, is a typical illustration of the desirability of recording. A balanced discussion of the issues of tape and video recording as at 1981 will be found in the English Royal Commission’s Report, already cited, para 4.16 to 4.31.

The second burden was the decision to conduct certain interviews off-camera as a prelude to video-recording. Video-recording is both a disincentive against impropriety and a powerful protection to the police. Once a suspect lays an evidentiary foundation for an allegation of police misconduct the onus lies on the police to refute it. A video-tape usually puts the matter beyond doubt. There will be many situations in which it is not practicable to record on video - lack of facilities, pressure of events, the inconsequential nature of the discussion, or lack of warning that something significant might be said. But where a video facility is available, and a significant interview with a suspect is contemplated, it is folly not to use it. The proper practice was exemplified



  1. The Practice Note states that audio recording or recording the interview in writing is acceptable where video is impractical or where the person declined to be recorded in that way.

159 R v Admore [1989] 2 NZLR 210 (CA) at 553–554.

160 R v Dacombe HC Whangarei T990189, 1 April 1999.

161 At 12.

by Constable Candy. As soon as it emerged that Mr Harris might be implicated he stopped the off-camera interview and continued on video.

The applicants correctly pointed out that several forensic examinations which one would normally expect in a case such as the present had not been carried

  1. Because Constable Abbott always accepted, for example, that it was he who had fired the shots, and because there was no evidence that he had been drinking.

out: thus, no attempt had been made to determine the precise trajectory of the bullet (which the applicants submitted would have been possible); the hands of Officers Brons and Bultstra had not been tested for gunshot residue; no report of any examination of Officer Brons’s service weapon and ammunition or of the spent cartridge was contained in the investigation file; the autopsy report, as filed, did not comprise any drawings or photographs showing the entry and exit wounds caused by the fatal bullet; and there had been no reconstruction of the incident. Lastly, Officers Brons and Bultstra had not been questioned until several days after the fatal shooting, during which time they had had the opportunity to discuss the incident with others and with each other.

It is true that no attempt was made to establish the trajectory of the bullet. It may be questioned whether this could have been determined on the basis of the information available, since after hitting Moravia Ramsahai, the bullet left no trace apart from a shattered pane of glass ...

However, the Court considers that the other failings pointed out by the applicants impaired the adequacy of the investigation. On this point its findings differ from those of the Chamber.

The failure to test the hands of the two officers for gunshot residue and to stage a reconstruction of the incident, as well as the apparent absence of any examination of their weapons ... or ammunition and the lack of an adequate pictorial record of the trauma caused to Moravia Ramsahai’s body by the bullet ... , have not been explained.

What is more, Officers Brons and Bultstra were not kept separated after the incident and were not questioned until nearly three days later ... Although, as already noted, there is no evidence that they colluded with each other or with their colleagues on the Amsterdam/Amstelland police force, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounts to a significant shortcoming in the adequacy of the investigation.

These lacunae in the investigation are all the more regrettable in that there were no witnesses who saw the fatal shot fired from close by, except for Officers Brons and Bultstra themselves. The Court has already drawn attention to the inconsistency between their statements to the effect that the fatal shot was fired by Officer Brons and those of Officers Braam and Van Daal, who both stated that they had heard Officer Bultstra report that he had fired and call for an ambulance ... .

Accountability

Timeliness

Family involvement

Conclusion

PCA Inquiry

Criminal Trial

The Inquest




163 McCann, above n 105.

  1. R v DPP, ex parte Manning [2000] EWHC 562; [2001] QB 330, [2001] HRLR 3; Salman, above n 106; Jordan, above n 85; and R (Wright), above n 144.

Coronial inquiries which overlap with criminal proceedings, or where the deceased may have died as a result of unlawful conduct, already present special challenges for coroners. If charges have been laid, or are likely, the first step is easy enough – under s 68 of the Coroners Act 2006 the coronial inquiry will be adjourned until after trial, by which time, with any luck, all the relevant issues will have taken care of themselves.

But what if they do not? What if criminal charges, for one reason or another, never materialise? And what should a coroner do if a suspect is charged with murder or manslaughter, and acquitted?

... Given that even those who are probably guilty are entitled to be acquitted, what should coroners make of a verdict of not guilty – when they re-open their inquiry under s 68 (5)? How can coroners respect the integrity of the criminal process while also acknowledging that – outside the walls of a criminal courtroom – an acquittal establishes nothing at all?

Often of course, and despite the fundamental differences between the two procedures, a criminal trial will tell a coroner everything he or she needs to know. Where the defendant is convicted there will usually be no difficulty in concluding that the circumstances of death have been well and truly established. That will sometimes be the case even where there is an acquittal; where the defence was self-defence, insanity or lack of intent, a trial may still provide enough information for coroners to proceed directly to their findings. The same may apply if there was clear evidence the death was not a homicide at all.


165 David Boldt “The coroner as judge and jury” [2020] NZLJ 246.

166 Although Boldt is dealing with the position under Coroners Act 2006, many of the examples he discussed relate to the 1988 Act. For the purposes of the present discussion, there is no material difference between the two.

On the other hand, given the narrow focus of a criminal trial, the unique rules under which it operates and the inconclusive nature of most acquittals, a not guilty verdict will sometimes be of little help to a coroner who returns to a file after trial. ...




167 Although the wider issues with which Mr Boldt is concerned might still be at large.

168 The duty to investigate is sometimes referred to as an adjectival obligation.

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), or the issue at trial is the mental state of the defendant (as in Amin), because in such cases the wider issues will probably not be explored.

For the Secretary of State, it was argued that what is required ... is a full, thorough, independent and public investigation of the facts surrounding and leading to the death but not necessarily culminating in any decision on whether

169 Middleton, above n 131, at [30].

170 The coroner had received a note from the inquest jury expressing that view.

171 At [28].

172 R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1.

the state or any individual is responsible. The duty is to investigate, no more. If the investigation yields evidence of delinquency on the part of the state or its agents, then the victim must have a remedy. But that is a requirement of article 13, not of the procedural obligation under article 2.

If an investigation is to ensure the accountability of state agents or bodies for deaths occurring under their responsibility ... and be capable of leading to a determination of whether the force used had been justified ... and to establish the cause of death or the person or persons responsible ..., then it must culminate in a finding which, while it need not convict any person of crime nor constitute an enforceable civil judgment against any party, must express the fact-finding body’s judgment on the cardinal issues concerning the death.

The central question was whether the soldiers had been justified in shooting and killing the deceased. On this issue the coroner directed the jury in some detail, giving illustrations of conduct which would amount to unlawful killing, and leaving to the jury three verdicts which he regarded as reasonably open to them ...: these were unlawful killing (unlawful homicide), lawful killing (justifiable reasonable homicide) or an open verdict. The jury could thus indicate, by returning an open verdict, their inability to decide or, by choosing one or other of the remaining verdicts, express their judgment on the central, and very important, issue. ...

... the jury were only permitted in their verdict to give the identity of the deceased and the date, place and cause of death and not, as in England, Wales and Gibraltar, to return any one of several verdicts including “unlawful death”. A verdict in the permitted form would not, the Court held, operate to trigger criminal prosecution. In a situation where the Director of Public Prosecutions of Northern Ireland had decided not to prosecute, with no reasons given, and with no effective means of requiring reasons to be given ..., the Court regarded the inquest as inadequate to investigate the possible breach of the state's substantive obligation under article 2.





173 At [14].

174 At [15]. The ECtHR in Jordan had held that the inquest procedure fell short of what art 2 required because (among other shortcomings) it “... did not allow any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed.” The Court also criticised the coronial process due to the lack of independence of the police officers investigating the incident from those implicated in it, the lack of public scrutiny, the failure to transmit information to the victim’s family, and the absence of legal aid for the family in relation to the inquest.

... There was no dispute at this inquest whether the deceased had taken his own life. He had left a suicide note, and it was plain that he had. The crux of the argument was whether he should have been recognised as a suicide risk and whether appropriate precautions should have been taken to prevent him taking his own life. The jury’s verdict, although strictly in accordance with the guidance in Ex p Jamieson, did not express the jury’s conclusion on these crucial facts. This might have been done by a short and simple verdict (eg “The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so”). Or it could have been done by a narrative verdict or a verdict given in answer to the coroner’s questions. By one means or another the jury should, to meet the procedural obligation in article 2, have been permitted to express their conclusion on the central facts explored before them.

In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2.

So was the (resumed) inquest in this case “effective” in terms of s 8?




175 At [32] (citations omitted). The House noted that the problem could easily be rectified: by interpreting the word “how” in the Coroners Act 1988 (UK) to mean not just “by what means” but “by what means and in what circumstances”.











176 For the simple reasons that this, the first case to have considered the nature and extent of the Crown’s obligations under s 8, is not being decided until 13 years later. Moreover, at the time of the resumed inquest, the Wallace family did not contend that self-defence should be considered by the Coroner. Self-defence was not included in the matters included by Mr Rowan in his list of “circumstances” requiring coronial investigation (recorded in the Coroner’s resumption decision and set out at [210] above). Similarly, Randerson J’s judgment contains no suggestion that the Wallaces wished the question of self-defence to be considered as part of the “circumstances” of Steven’s death.

The IPCA investigation

Independence

Effectiveness




177 See, for example, its 2017 report entitled Fatal Police shooting of Shargin Stephens in Rotorua, in which the IPCA makes a firm finding that Officer G was justified in shooting Mr Stephens in self-defence.

Accountability

Promptness

Family involvement

Conclusion

(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 appropriate family involvement.

(b) The private prosecution (and so 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 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.

DOES S 8 IMPOSE PLANNING AND CONTROL OBLIGATIONS?

encompassed by art 2.178 It is not necessary, however, to consider those other protective duties in this judgment.

The ECtHR cases

  1. The Court’s approach to the interpretation of Article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.
  1. It must also be borne in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention – indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed.
  1. The Court considers that the exceptions delineated in paragraph 2 indicate that this provision extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).

178 By which I mean either the positive obligation to have legal and administrative frameworks that are protective of life (see cases such as Keenan v United Kingdom [2001] ECHR 242; Oneryildiz v Turkey [2004] ECHR 657 (Grand Chamber); and Makaratzis v Greece [2004] ECHR 694 (Grand Chamber)) or positive obligations to take operational measures to protect an individual whose life is at risk from the criminal acts of a third party (such as Osman v the United Kingdom [1998] ECHR 101 (Grand Chamber)).

179 McCann, above n 105.

  1. In this respect the use of the term “absolutely necessary” in Article 2(2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2(a),

(b) and (c) of Article 2.

  1. In keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.

194. Against this background, in determining whether the force used was compatible with Article 2, the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.

213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2(2)(a) of the Convention.




180 The majority comprised 10 judges and the minority, nine.




181 Ergi v Turkey RJD 1998-IV 1751, 28 July 1998. A number of villagers had been killed.

182 Andronicou, above n 90, at [183].

183 Brady v United Kingdom App 55151/00, 3 April 2001 (ECHR).

honestly believed the shooting was necessary in self-defence. As to prior planning and control, the Court said:184

Nor is the Court persuaded that the plan in itself rendered the use of lethal force either inevitable or highly probable. In any circumstances, an arrest planned against robbers who are armed or suspected of being armed will involve some risk that shooting will take place or that police officers will find themselves in a position in which they believe that their lives are in danger.

While it appears that the team leader called for the arrest at an earlier moment than planned and before the others were in position, the Court does not find that this rendered the execution of the operation incompatible with the requirements of the Convention. Operations of this kind inevitably require a certain amount of flexibility of response to evolving circumstances. Errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention.

...

Notwithstanding therefore that the operation could have been executed more efficiently at least in theory, the Court considers that the main causative factor in lethal force being used against James Brady was Officer A’s belief that the deceased was pointing a gun at him. No element of planning or control has been identified as responsible for Officer A’s actions in that respect. This case must be distinguished from the McCann case, where the soldiers had been given erroneous information which led them to believe that the three IRA suspects were about to detonate a bomb, where the soldiers’ automatic recourse by training was to rapid, intense firing and where there had been a decision by the authorities to allow this apparently highly dangerous situation to develop by permitting the suspects to enter a densely populated area with a suspected explosive device ...

149. The Court cannot agree with the applicant’s submission that the manner in which the operation was planned and conducted inevitably led to

184 At 9 (emphasis added).

185 Bubbins v United Kingdom [2005] ECHR 159.

186 Emphasis added.

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.

151. It would further observe, and no submissions have been made to the contrary, that the use of firearms by the police as well as the conduct of police operations of the kind at issue were regulated by domestic law and that a system of adequate and effective safeguards exists to prevent arbitrary use of lethal force. In the instant case, none of the key officers concerned operated in a vacuum. They were all trained in the use of firearms and their movements and actions were subject to the control and supervision of experienced senior officers.

151. Having regard to the above considerations, the Court is of the view that it has not been shown that the operation at issue was not planned and organised in a way which minimised to the greatest extent possible any risk to the life of Michael Fitzgerald.

The English and Welsh cases

Davis

187 Giuliani, above n 121.

188 The Italian military police.

189 R (Davis), above n 84.

gun. A team of specialist firearms officers was told, wrongly, that he had fired at police during earlier offending, for which he had been imprisoned. Mr Davis was placed under surveillance by the team, during which one of the officers observed him in a car with three others, fiddling with what appeared (to the officer) to be a gun in his waistband. An armed officer approached the car and said that he saw Mr Davis holding a small black object with a square end. The officer believed that it was a gun pointing at him and that he would be shot. Instead, the officer shot Mr Davis, albeit not fatally. No gun was found in the car and it appeared that Mr Davis had, in fact, been fiddling with some jumper leads.

DSD





190 Commissioner of Police for the Metropolis v DSD [2018] UKSC 11.

allegations of sexual offending.191 The Supreme Court’s decision (unanimously upholding the findings in the lower Courts) is notable in two respects.

29. I cannot accept a suggestion that, to give rise to a breach of article 3, deficiencies in investigation had to be part and parcel of a flawed approach of the system generally. I accept, however, that simple errors or isolated omissions will not give rise to a violation of article 3 at the supra-national and the national levels. That is why, as I point out below, only conspicuous or substantial errors in investigation would qualify. The Strasbourg court disavowed any close examination of the errors in investigation because it was a supra-national court. It left that to national courts. But, my reference to ECtHR’s disinclination to conduct such a close examination is not intended to suggest that minor errors in investigation will give rise to a breach of the Convention right on the national plane. To the contrary, as I make clear in paras 53 and 72 below, errors in investigation, to give rise to a breach of article 3, must be egregious and significant.

53. ... All of the cases in this area involve conspicuous and substantial shortcomings in the conduct of the police and prosecutorial investigation. And, as this case illustrates, frequently, operational failures will be accompanied by systemic defects. The recognition that really serious operational failures by police in the investigation of offences can give rise to

  1. The failings at issue were longstanding ones, encompassing almost the entirety of the Police investigation.
  2. Ultimately, however, the divergence of view made no difference because Lord Hope found all the errors (categorised as operational by the majority) were properly viewed as systemic.

193 Emphases added.

194 Emphases added.

a breach of article 3 cannot realistically be said to herald an avalanche of claims for every retrospectively detected error in police investigations of minor crime.

...

72. ... Nothing in [the ECtHR’s] case law supports the notion that charter has been created for the examination of every judgment or choice of strategy made. As I have said, only obvious and significant shortcomings in the conduct of the police and prosecutorial investigation will give rise to the possibility of a claim. There is no reason to suppose that courts will not be able to forestall challenges to police inquiries based on spurious or speculative claims.

Causation?

195 Sarjanston v Chief Constable of Humberside Police [2013] EWCA Civ 1252; [2014] QB 411 (CA).

196 Osman v United Kingdom [1998] ECHR 101 (Grand Chamber). Osman was about the duty of the state under art 2 to take reasonable steps to provide protection in response to a real and immediate threat to life. The English and Welsh Court of Appeal has held that liability in those cases is not

150. ... it would have been unnecessary for the Court in Bubbins or Andronicou and Constantinou to consider whether the death in question would have occurred notwithstanding the flaws in the planning or conduct of the operations which it identified.

138. Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses. Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights.


judged by reference to what actually happened afterwards, although (for example if a timely response would have made no difference to the outcome) it is relevant to the quantum of damages: Sarjanston, above n 195.

197 Chief Constable of Hertfordshire v Van Colle [2008] UKHL 50, [2009] 1 AC 225 at [138]. But I acknowledge that some disquiet over the suggestion that an art 3 claim did not require satisfaction of the but-for test was expressed by Lady Hale in Re E (A Child) [2008] UKHL 66, [2009] 1 AC 536.

198 Gemma Turton Causation and Risk in Negligence and Human Rights Law [2020] Camb Law J 148.

199 As the Davis case itself demonstrates.

200 Turton, above n 198, quoting Van Colle, above n 197, at [66].

So can planning and control failures constitute a breach of s 8?

To hold Police liable under s 8 for a broader range of acts or omissions, such as the planning and conduct of the operation as a whole, and leadership and command issues, or systemic failings would be to broaden s 8 beyond its intended scope.

Defendants submit s 8 should be construed so that it protects individuals from state action or omission which deprives them of life – such that the focus is on the actions of the individual(s) responsible for depriving a person of life.

The defendants submit that this Court should not follow the jurisprudence of the European Court of Human Rights in its interpretation of the positively framed “right to life” in Article 2 of the European Convention ...

WAS THE PLANNING AND CONTROL OBLIGATION BREACHED HERE?

The pleadings, and my approach

(a) the failure to adopt a cordon and contain approach (including issues around the possible use of the patrol car’s public address system);

(b) the failure to wait for, or utilise, Delta Unit (including the issues around Constable Abbott’s knowledge that Delta had been called out);

(c) the absence of overall planning and control; and

(d) the failure to attend to Steven after the shooting or to administer first aid.

(a) allegations for which I have found there is no evidential support, namely those predicated on:

(i) Constable Dombroski having fired all or any shots;

(ii) Constable Abbott’s consumption of alcohol during the evening of 29 April;

(iii) the existence of any kind of animus between Constable Abbott and David Toa (which also renders it unnecessary to consider

the alleged failure of the officers to identify Steven by checking the registration of his car);

(b) those allegations involving technical breaches of relevant Police practice and procedure (for example, the failure to sign the firearms register), which could not, on any analysis, have increased the risk to Steven’s life;

(c) those allegations relating to the alleged failures to:

(i) use OC spray and/or batons, which I consider were not tenable or reasonable options, for the reasons given by the Coroner and the IPCA;

(ii) use shields and helmets, which I similarly regard as untenable and unreasonable options.201

(d) those allegations that have been dealt with in the context of my finding that the shooting of Steven was in self-defence, namely that:

(i) there was no immediate danger posed by Steven to Constable Abbott; and

(ii) the second double tap was unnecessary.


Analysis


201 Putting to one side the evidence at trial that suggested that protective equipment was not a viable option, they would have been little use had there been an attack not on the officers themselves, but on a member of the public.

The initial encounter

The decisions that put Steven’s life at risk



202 To the extent it matters, I am also unable to see anything in the least unreasonable or improper in the decision made by the officers to stop their car near Steven’s (which had been driven up onto the footpath) in order to ascertain both whether it was he who had been breaking windows and (more generally) what he was doing. I disagree with Mr Minchin that the advice received by Constable Dombroski through Comms that Constable Abbott would meet him at the Police Station can reasonably be interpreted as some kind of “order”, and/or that it meant that the officers could not stop to investigate anything they saw of relevance on the way.

alternative and possibly less life-threatening alternatives that might have been open to the officers, namely:

(a) the possibility of a cordon and contain approach;

(b) the possibility of waiting for Delta Unit; and

(c) the possibility of calling and waiting for the AOS.

inside, and the potential danger Steven appeared to pose to the lives of others would have been at the forefront of their minds.

The best non-lethal tactical option available once confronted with Wallace was negotiation. Challenge the offender and then attempt to negotiate with him. Constable A actually attempted to do this without success believing Wallace to be a David Toa whom he believed he could establish rapport with.

04:00:11 He’s heading down towards New Plymouth on, through the main street.

...

04:01:06 Yeah, he’s just gone up. He’s smashing all the windows up at the next block now.


And then, immediately after Constable Dombroski responds “Roger we’ll be there shortly”, Constable Herbert reports:

04:01:24 He’s now getting back in his car and I think he’s going to head down this way.

...

04:01:42 He’s now going Post Office, ah nah the Major Decorating shop.

could be any effective cordoning or containment.203 And for the reasons I have already given, I do not regard waiting for “reinforcements” (such that the area could, perhaps, be effectively cordoned and contained) was a viable option. As Inspector Dunstan said:

The immediate and foremost tactical consideration would be to observe, cordon and contain. The limiting factor facing Constables A, B and C was that there was no immediate backup available, the area of operations was wide and the offender was mobile. The other consideration hand in hand with that was the officers’ personal safety.




203 This issue was explored extensively at trial.

204 The Police Manual of Best Practice stated that, when responding to an armed offender, Police should, if possible, cordon the area and take a “wait and appeal” approach. But it went on to advise: “if the suspect is acting in a way that makes casualties likely, Police must act immediately to prevent this”.

205 Permitting Steven to get behind the wheel in the state he was in does not strike me as a reasonable option for the officers.

206 For completeness, I record that I do not accept Mr Minchin’s submission that the evidence suggests that Delta Unit had begun travelling to Waitara in the van at the time Constable Sandle was told to stand down and in fact arrived at the scene a little time after the shooting. And even if true, those matters would not affect my conclusion.

207 At [155].

Given the limited nature of the available resources and the immediate threat presented by Steven Wallace, no option was available to the officers at the critical time other than use of force.

Command and control

Failure to administer first aid

officers at the time, the failure to render first aid did not take sufficient account of the (obvious) jeopardy his life was in.208 The fact that first aid would not have made a difference becomes relevant only to remedy.

THE REFUSAL TO PROSECUTE

  1. I put the question of compassion, however, to one side. That does not engage directly with the relevant risk and has been adequately addressed elsewhere.

209 Again, aside from showing more compassion to Steven.

ordinary grounds of review in such a case.210 The Court accepted, however, that the requirement in an art 2 context to submit the case to “careful scrutiny” on review was entirely consistent with the general approach in cases involving fundamental human rights.

Refusal to prosecute: the law

... 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.



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.


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.

(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

  1. 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.

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.

...

(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.

(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.

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

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.







  1. Crown Prosecution Service (UK) “The Code for Crown Prosecutors: Private Prosecutions” (October 2019) <www.cps.gov.uk>.
  2. By “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.

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. ...

[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.





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?

Were adequate reasons provided?


  1. 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”.
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.

(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

REMEDIES AND RELIEF

...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

  1. 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 [2007] NZSC 70; [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....



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].

SUMMARY AND CONCLUSIONS

The claims under s 8

No breach of the substantive right

Obligation to investigate

(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

Review of the second decision not to prosecute

FORMAL RESULT

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.
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.

COSTS

POSTSCRIPT







Rebecca Ellis J

Solicitors:

Thomas & Co, Auckland for Plaintiff Crown Law, Wellington for Defendant

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