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Steven Wallace: four years on

30 April 2004

It is now four years since the death of Steven Wallace, shot and killed by a police officer in Waitara on 30 April 2000. There have been no substantive changes in the story of the continuing search for justice by his family and friends, and the official response to it, over the past year - we are therefore re-circulating the update we published on 30 April 2003 below.

Since the first Peace Movement Aotearoa alert which outlined our issues and concerns about Steven’s death, ‘The shooting of Steven Wallace’ on 8 May 2000, we have published a number of updates and articles which contain more detail about the events outlined in this summary. They are available on-line together with links to other commentary and analysis, and web sites.

In that first article on 8 May 2000, we asked a series of immediate questions - why did police officers decide to arm themselves with guns when Steven was obviously not carrying a firearm himself? - why didn't they choose another option to stop him? - why was he shot four times? - why were local people who tried to offer him comfort and assistance as he lay bleeding and dying in the street for 20 minutes prevented by the police from going near him? - why is this young man dead?

We also raised longer term issues which would need to be addressed to ensure this did not happen again, including - reviewing police officers access to, and use of, guns - making sure that existing police procedures about firearms are actually followed - establishing an independent Police Complaints Authority (PCA) - improving the way the criminal justice system relates to Maori.

Have any of these issues been substantively addressed? Read the chronology below, and decide for yourself.

* May 2000 to September 2001

In May 2000, Helen Clark described the shooting as "a tragedy", and said "this is a priority for this government ... we want some action because we can't have communities where this happens". (The Dominion, 5 May 2000)

In June 2000, in response to the lack of public confidence in the ability of the PCA to deliver justice for those who have been harmed by the actions of police officers, Minister of Justice Phil Goff announced a Review of its structure and the manner in which it conducts its operations. Although the Review was in part in response to Steven’s death, the terms of the Review excluded any reference to specific cases.

In August 2000, the report of the police homicide enquiry into Steven’s death was released. It vindicated the actions of the three officers involved, including Constable Abbott who 'fired the fatal shots' and said he had acted in self-defence - but this view was not shared by others who read it:

"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);

"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);

"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 whanau of Steven Wallace and the police officer require that. The memory of Steven Wallace deserves it." ( Moana Jackson, August 2000.)

In September 2000, 'Relationships in Taranaki', the report of the Race Relations Conciliator’s visits to Waitara, New Plymouth, Hawera and Parihaka in May and July 2000, was released. The visits came about because the Race Relations office had received "a number of calls from people asking the Conciliator to intervene because they believed it was a racist shooting, and the "result of long term antagonism between Maori youth and the police in Waitara and Taranaki" rather than an accident."

In December 2000, Justice Gallen’s Report on his Review into the Police Complaints Authority was sent to Phil Goff’s office.

In March 2001, the New Plymouth Coroner announced that the Coroner's Inquest into Steven’s death would begin on 21 May. The lawyer acting for the Police Association and the three police officers involved in the shooting applied for an adjournment of the Inquest.

In May 2001, the Coroner's proceedings were handed over to the Hamilton Coroner, and on 21 May the Inquest was further adjourned until 10 September 2001.

Also in May 2001 Phil Goff issued a press release which gave Cabinet’s position on the recommendations from Justice Gallen’s Review of the PCA, accepting some and rejecting others. Among the recommendations accepted were: that the name of the PCA be changed to reflect its more independent nature; that the PCA should have the ability to employ independent investigators so that their findings are not reliant on police officers investigating other officers; that the Authority should consist of three persons, the Chairperson being someone who holds or has held high judicial office; and that the Authority should have the powers of a Commission of Enquiry.

Among the recommendations rejected by Cabinet were: that the second member of the Authority should represent Maori as a recognition of Treaty responsibilities (and presumably in the hope of improving the way the criminal justice system relates to Maori; an area in which the police themselves have reported a need for action, see for example 'Challenging Perspectives: Police and Maori Attitudes towards one another', April 2000); that the third member of the Authority should represent the lay population; and that the Authority should be an Officer of Parliament, reporting directly to Parliament and directly responsible to it. Justice Gallen’s recommendations that the emphasis should be on conciliation, that staff employed should have the necessary skills to progress this, and that where appropriate the principles of restorative justice should be applied, are operational matters according to Cabinet that are best left to the PCA itself to decide. More detail on the recommendations, and Cabinet’s response to them, is available here.

* September 2001 to November 2002

On 6 September 2001, more than sixteen months after Steven's death, with neither the PCA investigation nor Coroner's Inquest completed, Steven’s father Jim Wallace began a private prosecution against Constable Abbott - the first private prosecution for murder brought against a serving police officer.

On 10 September, Gordon Matenga (Hamilton Coroner) announced that the Inquest would be further adjourned pending the outcome of the prosecution.

On 14 December 2001 the report by Assistant Commissioner Shuey ‘A Strategic Evaluation of the NZ Police Position Concerning the Use of Force When Responding to Potentially Violent Situations: A review of Best Practice, Policy and Training’ was released. The police files relating to Steven’s death were amongst those reviewed when the report was being put together; although there are no specific recommendations about that, or any other case, in the version of the Shuey report which was released publicly.

In February 2002, the depositions hearing on the private prosecution ended with the dismissal of the murder charge by two New Plymouth JPs.

"according to media reports they chose not to send the case to the High Court for trial because they were satisfied Constable Abbott had acted in self defence and in line with police procedure. Their decision was surprising because our understanding of the role of a depositions hearing is that it is to decide whether or not there is sufficient evidence for a trial to proceed, not to decide whether or not an accused person is innocent or guilty." (Peace Movement Aotearoa, 20 February 2002).

The dismissal was appealed, and on 14 June 2002 the Chief Justice Sian Elias issued a judgment making "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."

Commenting on this, we wrote at the time:

"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." (‘A step towards justice? The Chief Justice’s judgment on the shooting of Steven Wallace’, 25 June 2002).

Immediately following this judgment, Susan Hughes, Constable Abbott’s lawyer, announced that she would file an application to have her client discharged from facing trial.

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.

On 20 June, Helen Clark was reported to have commented on the government payout, and the fact that the Wallace family were not receiving any legal aid for the private prosecution, 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).

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?". (‘A step towards justice? The Chief Justice’s judgment on the shooting of Steven Wallace’, 25 June 2002).

On 30 July 2002 Constable Abbott appeared in the New Plymouth High Court and entered a plea of not guilty to the murder or manslaughter of Steven Wallace on 30 April 2000. He was granted bail with the condition that he surrender his passport, his firearms, and firearms' licence; and remanded until 9 September. That was the tentative date set for the hearing of two pre-trial applications: one from Susan Hughes asking for all evidence from the prosecution's expert witnesses, except one, to be excluded; and one from John Rowan, prosecution lawyer on behalf of the Wallace family, applying to have the trial moved away from New Plymouth. Susan Hughes opposed that application.

On 16 September 2002, Susan Hughes confirmed that she had received a copy of Justice Priestley's decisions on the two pre-trial applications and that the trial would proceed in the Wellington High Court on 18 November. The evidence heard at the application hearing was suppressed, as were the reasons for moving the trial.

* November 2002 to 3 December 2002

On 18 November 2002, Constable Abbott’s trial opened in Wellington where he faced a charge of murder, and an alternative charge of manslaughter.

In his opening instructions to the jury, Justice Chambers said that although the case was a private prosecution, it should be treated by the jury the same as if it had been brought by the Crown. An interesting instruction - the fact that it was not the Crown bringing the prosecution would obviously not be far from any jury’s consciousness. In addition, it should be noted that because of the costs already incurred in bringing the private prosecution, the Wallace family was not in a position to pay for the jury to go to Waitara to see for themselves the street where Steven was shot, nor the other places where critical events relating to the shooting took place. The imbalance between the resources available to a private prosecution and a Crown prosecution was not apparently an issue for jurors to consider.

John Rowan, QC, outlined the prosecution’s case in his opening address. He said that it was unnecessary for Constable Abbott to have shot Steven as there were alternatives available. Steven had a baseball bat - a non-distance weapon - so was no danger to anyone beyond his immediate vicinity. Rowan pointed out that there were three police officers present at the scene on the night, and a police dog unit was on its way. The officers had batons and OC (pepper) spray with them. The police training video for the use of OC spray shows an angry man armed with a baseball bat being incapacitated by the spray. When two of the officers went to Waitara police station to get guns, they also had access to riot gear - protective helmets and body armour - which was stored in the gun room.

Rowan said that Constable Abbott chose to use lethal force - what would usually be the final option for dealing with an offender armed with a distance weapon. In this case it was used as the first option on someone with a non-distance weapon, and no other option appeared to have been explored. Abbott was the senior officer present, and was therefore responsible for directing all the officers at the scene in accordance with police regulations. However, there was no plan formulated as to how they would approach Steven.

Having made the decision to shoot, Rowan said that Constable Abbott, a highly trained marksman, used excessive force by not assessing the impact of each shot he fired. The legal test for self-defence is reasonableness of the force used. If it was shown that Steven was incapacitated after the first or second shot, then the third and fourth shots would be considered unreasonable force.

Witnesses for the prosecution would testify that the first two shots which struck Steven were non-fatal. Based on forensic evidence, it appears that the first shot hit Steven side on while he was standing holding a bat over his right shoulder, shattering the bones in his left wrist and passing through into the bicep of his right arm. The second shot passed through his outside left elbow, then through the front of his body.

The third shot, which the prosecution contended was the fatal shot, entered Steven’s body just below and to the left of the sternum at a slightly upward angle, indicating that Steven was falling forward at the time, and ripped through his spleen. The fourth bullet entered through his back and exited intact through his right shoulder - the path of that bullet indicates that Steven was bent parallel to the ground with his body turned 180 degrees from the original position.

After he was shot, Steven lay in the street with no medical attention for around seventeen minutes.

In response one of the defence lawyers, Patrick Mooney opened the defence case by saying that Constable Abbott was acting in self-defence and the shooting was therefore justified.

The trial raised a number of issues regarding the circumstances around the shooting and relevant police procedures, but many of these were not then adequately addressed. It was clear from the evidence presented by expert and eye witnesses, and indeed by police officers involved in the shooting, that correct procedures relating to police use of firearms were not followed. While giving evidence, the police sergeant in charge of the New Plymouth area on the night of the shooting made extremely disturbing remarks to the effect that while police procedures, General Instructions, and best practice guidelines are covered in training, the manuals are then placed on a shelf and not referred to (nor apparently adhered to in this case) during the course of day to day policing. Constables Dombrowski and Abbott both gave evidence that they had not discussed how they were going to approach Steven.

The Executive Summary of the Shuey Report states: "Command and control issues will be very apparent in the event of lethal force being used by Police. To that end there needs to be a very high level of accountability before, during and after critical incidents. Command and control needs to be concise, clear and unambiguous."

Not only was there apparently no command or control around the shooting; it was also clear that no alternative option to apprehend Steven was explored. As John Rowan pointed out in his opening remarks, what should have been the final option, the last resort, was the only option which was used.

In connection with this issue, in Section 9 ‘Policies, Procedures and Guidelines’ of the Shuey Report says: "It is submitted that in NZ the justification for the use of firearms could be simplified and as specific as a "defence of life" philosophy and then "only as a last resort". As a matter of principle, firearms use, because of the lethal consequences should, in the main, be REACTIVE rather than being aggressive." (emphasis in Report).

Constable Abbott himself stated when giving evidence at the trial that he had not considered any other option.

On 27 November, the seventh day of the trial, Justice Chambers dismissed one of the jurors because of his family relationship to a high ranking police officer. It was reported that the judge had "said a fair-minded and informed member of the public may have a reasonable apprehension that the juror might be inclined to favour the defence." (Dominion Post, 6 December 2002)

As the court case drew to a close with the defence witnesses giving evidence, the jury was asked to focus on the final 64 seconds, for more information on this see ‘Abbott Murder Trial: Sixty Four Seconds'. That was the time between Constables Dombrowski and Abbott getting out of their police car and confronting Steven - Dombrowski with his gun drawn, and Abbott (not in uniform) initially holding a PR 24 baton, then with his gun drawn - although at that time, and for some time after the shooting, both believed Steven was someone else, and Abbott called him ‘David’ when approaching him.

The evidence for the jury to deliberate, when giving its verdict, narrowed down to the state of Constable Abbott’s mind during those 64 seconds - did he fear for his life as he pulled the trigger? Did he think he had any other option available at the precise moment he fired? These would be the questions on which the defence of ‘self-defence’ would be decided.

In his evidence, Constable Abbott said that he had no choice but to shoot as he was trapped against the kerb, and could not move out of Steven’s way. Waitara’s main street is four lanes wide, with a median strip of approximately one lane width, total width approximately 17 meters. When questioned about two eye-witness accounts previously related in court, Constable Abbott did concede that as Steven’s body had fallen in the middle of the median strip, he had in fact not crossed to the same side of the road as Abbott had claimed he did during the final moments. The jury did not have the opportunity to go and see the street for themselves.

With the focus on the final 64 seconds, the wider issues would not, it seemed, be relevant to the verdict. These include: the wisdom of two of the three police officers present confronting Steven when a dog unit with handler was a few minutes away from the scene; that police procedures had not been followed - in particular those requirements to ‘cordon and contain’, ‘wait and negotiate’ when dealing with an ‘armed’ offender, and the use of firearms as a last option or resort; how the belief that Steven was someone else might have affected the way the situation was handled; that the three officers on the scene apparently could not come up with a plan to deal with a drunk and angry person (far from an unusual situation in policing); that despite the number of windows Steven had smashed he had not threatened or attacked any person that night ...

* 4 December 2002 to April 2003

On 4 December 2002, after less than three hours deliberation, the jury of ten (one of the remaining jurors being absent because of illness on the final day) delivered a verdict of not guilty. Justice Chambers (and later that day Minister of Police, George Hawkins, in a press release) advised the Wallace family to put the tragedy behind them and move forward with their lives.

Also on 4 December 2002, Phil Goff tabled the Independent Police Complaints Authority Amendment Bill (the proposed legislation to change the PCA) in parliament. The proposed legislation begins with the explanation that the Bill "changes the name of the Police Complaints Authority to the Independent Police Complaints Authority"; and goes on to describe the changes as designed to give the Authority "enhanced independence" - interesting wording, actual independence would be more reassuring. The Bill is currently before the Law and Order Select Committee which is due to report back to parliament on it in August 2003.

On 5 December 2002, National MP Paul Hutchison’s private members Bill which would "fine media up to $20,000 for publishing the names of any officers being investigated by the Police Complaints Authority for shooting someone" was drawn from the parliamentary ballot. It is not yet known when it will be considered by parliament.

Also on 5 December, the NZ Herald reported that George Hawkins, Minister of Police, would discuss with Phil Goff whether police officers should have immunity from private prosecutions. Police Commissioner Rob Robson was quoted as saying "he hoped the prosecution against Mr Abbott would be the last." (‘Ministers to discuss immunity for police’, NZPA, 5 December 2003).

A series of newspaper reports in December 2002 pointed out that the Wallace family faced "crippling costs" as a result of the private prosecution, estimated at around $120,000.

On 3 February 2003 The Daily News reported that court had awarded the Wallace family $9,168 towards witness costs. It further revealed that the Police Association had spent $612,000 in legal fees defending Constable Abbott, and according to Police Association President Greg O’Connor that money was likely to be reimbursed by the Crown via the police department.

On 5 February 2003 a Dominion Post article quoted Steven’s mother Raewyn Wallace as saying that Susan Hughes had asked Gordon Matenga, the Hamilton Coroner, not to go ahead with the Inquest into Steven’s death. According to the same article, Susan Hughes declined to comment on this; but Greg O’Connor denied there was was a cover up, and said that Constable Abbott should be "allowed to get on with his life".

On 10 February, it was reported that Gordon Matenga had said that "he had recently sent a note to the parties involved advising he had read their submissions and that he had requested a transcript of the evidence presented in last year’s trial. He said he could not make a decision on whether or not an Inquest would be held until he had read the transcript - he did not know how long it would take for the transcript to arrive." (‘Wallace inquest decision depends on transcript’, The Daily News, 10 February 2003).

The purpose of an Inquest is defined in the Coroners Act (1988), Section 15: "1) - the coroner holds an Inquest for the purpose of - a) Establishing, as 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."

Given the wider issues which apparently were not taken into consideration in reaching the verdict in the court case, and the perception by some that police conduct on the night Steven was shot was somehow vindicated by the verdict, point b) as described above would surely provide an opportunity to make recommendations which might go some way towards ensuring that such a death did not occur again.

Similarly, the Police Complaints Authority inquiry with its emphasis on "any apparent misconduct or neglect of duty by a member of the Police, or any Police practice, policy, or procedure" (‘Functions of Authority’, Section 12:2, Police Complaints Authority Act 1988) could make a potentially useful contribution.

However, as with the Inquest, there has been no date set for the release of the Police Complaints Authority inquiry into Steven’s death.

And so the search for justice goes on ...

* What you can do

If you wish to support the Steven Wallace Trust Fund for Justice - 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 - 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 Whanau Committee statement, June 2000)

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