Pere v Attorney-General

• Jurisdiction: New Zealand
• Judge: Cooke J
• Judgment Date: 16 May 2022
• Neutral Citation: [2022] NZHC 1069
• Docket Number: CIV-2019-485-1
• Court: High Court

Between

Iriheke Te Kani Manu Pere

Plaintiff

and

Attorney-General

Defendant

[2022] NZHC 1069

Cooke J

CIV-2019-485-1

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Bill of Rights — application for compensation for a breach of the plaintiff's right to be treated with humanity and with respect for the inherent dignity of the person — rights of persons arrested or detained — the plaintiff was accidently shot by a member of the New Zealand Armed Offenders Squad while he was detained in their custody — New Zealand Bill of Rights Act 1990 — International Covenant on Civil and Political Rights

Appearances:

E M Forster and H A Neumegen for the Plaintiff

A M Powell, H M Carrad and C N Tocher for the Defendant

JUDGMENT OF Cooke J

Table of Contents

The facts	[3]
Impacts on Mr Pere	[17]
Firearms safety	[20]
Officer Z4's training and qualifications	[25]
Other prosecutions/investigations	[29]
Was s 23(5) of the Bill of Rights breached?	[31]
Arguments	[31]
Analysis	[33]
Nature and circumstances of the breach	[44]
Level of compensation	[48]
Conclusion and result	[57]

1 On 16 August 2013 the plaintiff was accidently shot by a member of the New Zealand Armed Offenders Squad while he was detained in their custody. He brings these proceedings seeking compensation for a breach of his right under s 23(5) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). This provides:

Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

2 The key issues in this case are whether the facts which are agreed between the parties give rise to a breach of this right, and if so, what compensation should be awarded for that breach.

The facts

3 As indicated the relevant facts have been agreed between the parties in the form of an agreed statement of facts admitted under s 9 of the Evidence Act 2006. The parties and their counsel are to be commended for reaching this agreement, not only because it has allowed for an efficient hearing, but also because it has removed the further stress for the participants yet again giving evidence about these events.

4 Mr Pere was aged 33 at the time of the accidental shooting. He was living with his mother in Hastings.

5 He has a complex medical health history and has been diagnosed with depression and social bi-polar disorder. He had suffered previously from psychotic episodes. He was known to police having accrued 41 convictions between April 2000 and April 2003 including for violent offending. He was the subject of an Armed Offender Squad callout in 2009. From August 2011 he was a compulsory patient under the Mental Health (Compulsory Assessment and Treatment) Act 2002 and was subject to an indefinite community treatment order. The order was discharged in July 2013. From this time Mr Pere was a voluntary patient.

6 The relevant events occurred on 16 August 2013. Mr Pere had ceased taking his medication regularly at this time. He was consuming recreational drugs and experiencing a deterioration in his mental health. Mr Pere's mother rang the Hawkes Bay District Health Board's mental health unit seeking assistance. She then attended the Napier Health Centre and spoke to Ms Joanne Wainwright, an employee of the Hawkes Bay District Health Board Mental Health Unit who was the case worker assigned to Mr Pere. Mrs Pere informed Ms Wainwright that Mr Pere appeared to be having a psychotic episode. She said that two days earlier he had waived what she believed was a BB-gun around, including pointing it in her direction, and that Mr Pere had subsequently stowed the BB-gun in his bedroom. A BB-gun is a type of air gun designed to shoot metallic spherical projectiles called BBs. BB-guns are classified as airguns under the Arms Act 1993. Anyone over the age of 18 may use an airgun without a firearms licence, but it is an offence to possess an airgun other than for lawful, proper and sufficient purpose.

7 At about 2.26 pm that day Ms Wainwright rang the New Zealand Police and informed them of the content of her conversation with Mrs Pere. Following that call police made an operational decision to activate the Hawkes Bay Armed Offenders Squad to apprehend Mr Pere. Police knew of Mr Pere's mental illness because of the information supplied by Ms Wainwright and from the police's prior dealings with Mr Pere.

8 At 3.26 pm following a briefing at Hastings Police Station Armed Offenders Squad officers including Officer Z4, a dog unit, and a police negotiation team were despatched to set up an outer cordon around the address where Mr Pere lived with his mother. At 4.03 pm the officers, including the police dog unit, established a command vehicle base at a designated safe forward point. At 4.46 pm police established road blocks. The Armed Offenders Squad, including Officer Z4 then deployed forward to the address.

9 All Armed Offenders Squad officers were armed with .223 Calibre M4 Bushmaster rifles. They wore standard issue uniforms that included a tactical vest and a sling for holding the rifles. Some of the rifles were mistakenly loaded with Remington .223 training rounds, including Officer Z4's rifle. This was because, contrary to protocol, the training rounds had not been replaced with standard rounds after the last training exercise. A training round is a live frangible bullet that is designed so that when it hits a solid surface it disintegrates into tiny pieces to minimise the bullet's penetration into the object it has hit. A standard hollow point round is designed to penetrate its target and disintegrate after impact.

10 At 5.23 pm police requested Mr Pere to surrender to police for arrest upon suspicion of possession of a pistol without lawful or sufficient purpose contrary to s 45 of the Arms Act. Mr Pere duly surrendered himself and acquiesced in the arrest by police.

11 As part of his arrest Mr Pere was lain prone face down on the ground outside the address. When Officer Z3 undertook the arrest he first gave his Bushmaster rifle to another police officer. Mr Pere was then handcuffed behind his back with plastic handcuffs by Officer Z3. Officer Z4 was then tasked with assisting with the detention of Mr Pere while other Armed Offenders Squad officers entered the address to search it. Officer Z4 checked that that the safety catch on his Bushmaster rifle was in the safe position before doing so. He also made sure that the rifle, which was held in a sling, had its muzzle pointing away from Mr Pere as he approached. He knelt beside Mr Pere with one knee on the ground and the other on Mr Pere's back. He informed Mr Pere of his arrest rights under the Bill of Rights. Mr Pere was cooperative throughout the arrest. After Mr Pere was arrested Officer Z4 stood up and moved his Bushmaster rifle to the front of his body and stepped back one or two metres.

12 There was no other apparent danger to the public or police officers at the scene. Other uniformed police then arrived at the address to take Mr Pere to the police station for processing. A request was given to the attending officers to replace the plastic handcuffs with metal handcuffs to enable his transfer into custody of the uniformed officers.

13 Officer Z4 had his Bushmaster rifle suspended in front of him from a sling. He then moved forward to assist other officers to change the handcuffs on Mr Pere. Before doing so Officer Z4 did not remove the round in the chamber of the Bushmaster rifle. He did not remove his Bushmaster rifle and put it in the custody of another officer or in another safe place. Nor did he check that the safety catch on the Bushmaster rifle was in the safe position so that it could not fire.

14 While the handcuffs were being replaced Officer Z4 bent over to assist other officers to lift Mr Pere to his feet. When doing so he did not ensure that the muzzle of his Bushmaster rifle pointed away from anywhere that if it fired would cause harm. The muzzle of the Bushmaster rifle was pointing directly at the central upper area of Mr Pere's back while Mr Pere was lying prone face down on the ground outside the address. The muzzle of the rifle was near Mr Pere's back.

15 The way Officer Z4 had set up his vest on his uniform meant that when he shifted his Bushmaster rifle across to the right side of his body the safety catch of the Bushmaster rifle brushed against the stiff fabric holster for his Glock pistol. This contact is likely to have caused the safety catch on the Bushmaster to have shifted from the safe position to a position that enabled the Bushmaster rifle to fire without Officer Z4 knowing it.

16 As Officer Z4 bent down to help lift Mr Pere to his feet with the Bushmaster rifle suspended in the sling, the lower buckle on his vest entered the trigger guard of the rifle and caught on the trigger. The weight of the rifle moving in the sling against the buckle was sufficient to pull the trigger. The rifle discharged a single frangible bullet at close range into the central/upper area of Mr Pere's back. Officer Z4 did not intend to fire his rifle and did not depress the trigger with his finger.

Impacts on Mr Pere

17 Mr Pere was taken to hospital suffering from blood loss, a collapsed lung, injury to blood vessels and had shrapnel from the frangible bullet lodged in his upper back and spread through his chest area and neck areas. He required extensive medical treatment but not surgery. He was in hospital for a month.

18 Mr Pere had experienced acute mental health events in the past but suffered further shock and distress and complications with his mental illness because of what happened during his arrest.

19 Had Officer Z4's Bushmaster rifle been armed with standard life ammunition as intended for armed offenders squad deployment, Mr Pere's physical...