"A step towards justice? The Chief Justice's judgment on the shooting of Steven Wallace?"
"A step towards justice? The Chief Justice's judgment on the shooting of Steven Wallace?"
25 June 2002
On 14 June 2002 the Chief Justice, Sian Elias issued her judgment on the private prosecution for murder being brought against Constable Abbott by the family of Steven Wallace. The judgment made "an order consenting to the applicant's filing an indictment in this Court charging William Keith Abbott with the murder of Steven James Wallace on 30 April 2000 at Waitara."
The application for an indictment was issued after the depositions hearing on the private prosecution ended with the dismissal of the murder charge by two New Plymouth Justices of the Peace in February.
In her judgment, the Chief Justice outlines the reasons why the charge should not have been dismissed by the JPs, and states: "I have come to the view, for reasons which are set out in this judgment, that there is sufficient evidential foundation to commit the respondent for trial. In coming to that conclusion, I find that the Justices who discharged the respondent at preliminary hearing did so under a misapprehension as to their proper function." 
Matters of guilt and innocence, the Chief Justice states, are for a jury to decide. In this particular case, while there is some measure of agreement among the evidence of witnesses, the defence and prosecution cases, the inferences drawn are markedly different and those inferences are matters of judgment for a jury.
Both the defence and prosecutions cases are summarised in the judgment. The defence case is that Constable Abbott acted in self-defence at the time of the shooting, it is dangerous to judge his actions in hindsight, and it is irrelevant whether other options were available to him.
The prosecution case is that there is evidence on which a jury could exclude self-defence and the force used in the circumstances was not reasonable - there was no immediate danger to others so the armed approach of police officers was not necessary; Steven Wallace was armed with a non-distance weapon so there were non-lethal options available to the police officers on the scene; the direct approach by Constable Abbott recklessly precipitated the shooting; and that even if the first two shots were fired in self-defence, the firing of the second two shots entailed the excessive unjustifiable use of force.
On considering both cases put forward, the Chief Justice concluded:
"In my view there is clearly sufficient basis for jury determination of whether the prosecution has excluded self-defence. It would be open to a jury, depending on what evidence it accepts, to decide that the force used was not reasonable. It could come to such conclusion drawing on the evidence as to the weapons used; the degree and the immediacy of the danger to others from Steven Wallace; the options available to the constable; the manner of his approach to Steven Wallace; the sequence of the shots; the respondent's knowledge (if accepted by the jury) of the two hits taken by Steven Wallace and their likely effect; the opportunity available to the constable to reassess the threat after the first two shots were fired and to move out of harm's way. The evidence at the preliminary hearing is sufficient to raise an issue for the tribunal of fact, the jury, as to whether the prosecution has established beyond reasonable doubt that the respondent's shooting constituted, in the circumstances, unreasonable force." 
Reactions to the judgment
ACT NZ, National Party, NZ First and the Police Association, immediately put out press releases condemning the judgment.
"I do not believe any jury would convict Constable Keith Abbott of murder." (Richard Prebble, ACT NZ press release, 14 June 2002).
"It's an appalling situation that this case ever got this far" (Tony Ryall, National Party media release, 14 June 2002).
"The decision to send Constable A to trial for murder is an outrage and will seriously impact upon the level of safety and security we all currently feel in New Zealand." (Winston Peters, NZ First media release, 14 June 2002).
"We are bitterly disappointed on behalf of Constable A and his family, at the decision today to proceed to a jury trial, but it is simply another step in what has been a very long process in getting justice for Constable A," Police Association President Greg O'Connor said today. "Immediately our concern is also the implication that this may have on any Police Officer who is unlucky enough to have to use lethal force ...
"We now ask the question of the Solicitor General, Minister of Justice and the Commissioner What are the circumstances where a Police Officer can not be charged publicly or privately, when they have been unlucky enough to have had to use lethal force?' "If there are none, then there clearly need to be and we will be looking for legislative change. Police Officers must be able to protect the public with the knowledge that if they have to use lethal force and have acted legally and in good faith they will not face court action," Mr O'Connor said. ('Police Association Asks: what does this mean for other officers who must use lethal force?', media release, 14 July 2002).
These reactions are somewhat bizarre in their implication that police officers are above the law, and are not to be held accountable for their actions which result in the loss of life - clearly not the opinion held by the Chief Justice. She states: " It should also be said that the application to law enforcement officers of the general criminal law, with its imposition of individual responsibility (as envisaged by the Police Instructions), remains a standard response in other jurisdictions. That approach may be thought to reflect the importance of the right not to be deprived of life recognised by s 8 of the New Zealand Bill of Rights Act 1990." 
The judgment also refers to the Law Commission's reaction to a suggestion that leave of the Court should be required for the private prosecution of a police officer ... [that would be] "incompatible with the main reason for maintaining private prosecutions - they are an important safeguard against misuse of state power, such as a failure or refusal to prosecute a state official."
Given the failure of the state to provide justice for Steven's family, this is a crucial point. In the two years and two months since Steven's death, there has only been the Police Homicide enquiry report (which raised more questions than it answered) - the Police Complaints Authority report remains unpublished and the Coroner's Inquest has still not been held.
The Police Association's reaction - that the law will have to be changed so that a police officer whose actions have caused serious harm, or death, would never face prosecution - is extremely dangerous. Everyone who causes injury or death has to be accountable for their actions; any suggestion that police officers should be exempt is unacceptable, it would establish in effect a police state. The very fact that police officers can use lethal force in extreme life threatening situations means that their actions must be open to public scrutiny, rather then automatically defended regardless of the circumstances.
Given Greg O'Connor's concerns about the stress caused to Constable Abbott and his family because of the "very long process", it would be more appropriate for the Police Association to be calling for a law change so that police officers who cause serious harm or death appear in court immediately (as does anyone else in this situation) so that the circumstances can be swiftly examined and a decision made as to the appropriateness of their actions. Such a course of action would have reduced the stress and distress for everyone affected by this untimely death.
In contrast to the reactions above, the 'Taranaki Daily News' published an Opinion piece which began: "The decision to rehear the evidence surrounding the police's fatal shooting of Steven Wallace in Waitara on April 30, 2000, has one over-arching redeeming feature: it offers the best chance of telling the full story and settling the issue once and for all, says The Daily News." ('Judge's ruling a vote of faith in jury system', Opinion, The Daily News, 18 July 2002).
'Telling the full story' is exactly the point - the official inaction and apparent lack of concern about justice for, or even an adequate explanation to, the Wallace family for the loss of their son and brother twenty six months ago is precisely why the private prosecution came about - in the hope that the full story will finally be told.
As we have pointed out in previous updates about the shooting, this is something which has not happened to date. The only official report released, that of the Police Homicide enquiry, vindicated the actions of the three officers involved, including Constable Abbott who 'fired the fatal shots'; but as we said at the time: "although it contains a lot of detail, it leaves too many basic questions unanswered. The report could have been a step towards justice, but it is not" (Peace Movement Aotearoa, August 2000).
Others shared that view: "Every time the police exonerate themselves over fatalities such as this, it becomes harder to accept that they should sit in judgment of themselves. The questions raised about this case will not go away unless they are put to a panel more impartial" (NZ Herald Editorial, 17 August 2000); and "the narrow framework within which the Report was written has produced not just a technically questionable conclusion but an inadequate response to the concerns expressed over the affair by many in the community ... confronting the broader issues, and learning their lessons, may hopefully draw justice and reconciliation from tragedy. The whänau of Steven Wallace and the police officer require that. The memory of Steven Wallace deserves it." (Moana Jackson, August 2000).
While there was no public statement from the government about Sian Elias's judgment, on 15 June (the day after the judgment was released) TV One News revealed that a decision had been made by Cabinet on 13 June to pay around $130,000 to the Police Association for the cost of Constable Abbott's defence to date. While it is admirable in principle for any employer to assist their employee's union in meeting the costs of legal action which arises from an employee's work duties, it is in practice rather unusual. The rarity of the use of public money for such assistance, the subsequent statements that further government funding may be made available for Constable Abbott's defence, and the fact that the Wallace family are not receiving any legal aid for the private prosecution, has increased the uneasiness about the lack of balance in the government's reaction to Steven Wallace's death.
On 20 June, Helen Clark was reported to have commented on the government payout as follows: "... Miss Clark said the Government was standing behind Mr Abbott's legal costs because it was his employer and because the Crown had already decided against prosecution.
"This is a private prosecution and there is no legal aid for private prosecutions.
"If there was, you would lift the lid off and you would never get the lid back on. It would be fair game for anyone to lodge a private prosecution." ('Clark hears of Taranaki issues', Lyn Humphreys, INL News, 20 June 2002).
Given that this is the first private prosecution brought against a serving police officer, it is hardly a question of lifting the lid off. There is a disturbing implication in these comments that a private prosecution is something which is determined by the ability to pay for it - surely a private prosecution should proceed on the merits of the case, rather than whether or not a complainant has the financial resources to fund it. One law for the rich and another for the poor?
The same INL report also says: "In the meantime, Miss Clark said, there was clearly a very serious issue about how police officers felt they could react in a life-threatening situation."
Indeed there is - there are also very serious issues about when and how police officers use lethal force, and whether or not they are held accountable for the loss of life when they do.
The Chief Justice's ruling indicates that the use of lethal force by police officers is not something which should simply be accepted regardless of the circumstances in which is occurs.
Her determination that there is sufficient evidence to commit Constable Abbott to trial for murder is a step towards justice for the Wallace family, although of course there is no guarantee that a jury trial will result in a just verdict. Whether or not a trial is the best way to achieve justice and begin healing in the face of such irreversible loss is always debatable. Regrettably in this instance, because of the lack of official acknowledgement that harm was done, it seems it is the only option available.
Sian Elias's determination must surely be supported by everyone who believes that police officers who are paid to uphold the law, should also act within it. However, there is still no certainty that the case will go to trial by jury. On 21 June Susan Hughes, Constable Abbott's lawyer, announced that she was filing an application to get her client discharged. It is probable that this application will be considered at the New Plymouth High Court on 29 July.
Where you can get more information
For background information, check out the series of Peace Movement Aotearoa alerts and updates about the shooting which are all available on-line on this page - they include ideas about what you can do, as well as contact details for the media and government politicians.
Moana Jackson's analysis of the police homicide enquiry report is available online.
Aotearoa Educators' articles about Steven Wallace's death are available online at http://aotearoa.wellington.net.nz
Support the Steven Wallace Trust Fund for Justice
The fund was established to help with legal costs and expenses incurred by Steven's family, and to campaign for possible changes to the law and to police procedures - any funds not required for these purposes will be placed in a permanent trust fund for the use of persons finding themselves victims of similar injustices. If you wish to make a contribution to the fund, please refer to the updated details on this page.
"This is not just a Waitara tragedy, it was a national tragedy and one we must never allow to occur again" (from the Wallace Whänau Committee statement, June 2000)
[ ] the numbers in square brackets in the text above refer to the paragraph number in 'Judgment of Elias CJ', 14 June 2002.