Raewyn Wallace v Attorney-General

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 15 August 2022
• Neutral Citation: [2022] NZCA 375
• Docket Number: CA534/2021
• Court: Court of Appeal

Between

Raewyn Wallace

Appellant

and

Attorney-General

First Respondent

Commissioner of Police

Second Respondent

[2022] NZCA 375

Court:

Miller, Gilbert and Goddard JJ

CA534/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Constitutional law — appeal against a decision which declined to make declarations that the actions of a Constable in fatally shooting the appellant's son was not in self-defence — whether the right not to be deprived of life under the New Zealand Bill of Rights Act 1990 applied to actions by State actors — International Covenant of Civil and Political Rights

Counsel:

G E Minchin and C J Tennet for Appellant

P J Gunn, N J Ellis and B M McKenna for Respondents

The appeal was dismissed. The cross-appeal was allowed.

• A The appeal is dismissed.

• B The cross-appeal is allowed. The declarations made in Wallace v Attorney-General [2021] NZHC 1963 at [646] and [647] are set aside.

• C No order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

Table of Contents

Introduction	[1]
Narrative	[18]
The events of 30 April 2000	[19]
Investigations following Mr Wallace's death	[31]
(a) The police homicide investigation	[31]
(b) The Crown decision not to prosecute	[34]
(c) The initial Police Complaints Authority and Coroner's investigations	[35]
(d) The private prosecution	[36]
(e) The trial	[42]
(f) The inquest	[49]
(g) The IPCA investigation	[51]
The pleadings	[54]
The trial before Ellis J	[61]
The evidence	[61]
The submissions	[62]
The judgment	[67]
The appeal and cross-appeal	[76]
The right not to be deprived of life	[85]
Does s 8 extend to indirect actions of State actors?	[93]
The elements of self-defence in a claim under s 8	[100]
The burden of excluding or proving justification under s 8	[102]
Can the State's obligation to investigate potentially unlawful deaths be enforced under s 8?	[106]
The ICCPR obligation to investigate	[108]
Section 8 and the obligation to investigate	[111]
The qualities of an ICCPR-compliant investigation	[118]
Do existing processes oblige the State to conduct an ICCPR-compliant investigation?	[122]
(a) Police investigations	[123]
(b) IPCA investigations	[125]
(c) Coroners' investigations	[126]
Conclusion	[128]
Did the criminal trial and the police, Coroner's and IPCA investigations satisfy the art 6 obligation in fact?	[133]
(a) The police investigation	[134]
(b) The criminal trial	[136]
(c) The Coroner's investigation	[144]
(d) The IPCA investigation	[147]
(e) The investigations overall	[148]
Was the use of lethal force justified?	[149]
Limitations of the evidence	[150]
Did the Constable act in self-defence?	[159]
Was it reasonable to use a firearm in self-defence?	[162]
Was it reasonable to fire four shots in self-defence?	[167]
Did the planning and control of the operation contravene s 8? [171] The decision to uplift firearms from the police station	[172]
Cordon and contain	[179]
Waiting for reinforcements	[182]
Provision of first aid	[183]
The decision not to assume control of the private prosecution	[190]
Limitation	[199]
Result	[200]

Introduction

1 On 30 April 2000 Steven Wallace went on a violent rampage in the town of Waitara, attacking the police station, a patrol car and numerous retail premises, and threatening bystanders. That led to two armed police officers approaching and attempting to reason with him. Mr Wallace advanced on one of the officers, Constable Keith Abbott, with a baseball bat. Constable Abbott shot and killed him.

2 The Crown decided not to prosecute Constable Abbott, the Solicitor-General having concluded that he acted in self-defence.

3 Mr Wallace's parents, James and Raewyn Wallace, believed the Constable did not act in self-defence, and if he did his actions were not reasonable. They also believed the police homicide investigation that followed was not independent or impartial. They obtained consent of the High Court to lay an indictment charging the Constable with murder. The Solicitor-General declined to take over the conduct of the prosecution or to fund its conduct by counsel briefed by the Wallaces. The Constable was acquitted. The jury must have decided, at minimum, that the prosecution failed to exclude the reasonable possibility that he acted reasonably in self-defence in the circumstances as he understood them to be.

4 Subsequent investigations by a Coroner and the Independent Police Complaints Authority (IPCA) identified deficiencies in police handling of the incident that ended in Mr Wallace's death, but they took it as settled that Constable Abbott acted in self-defence.

5 In this proceeding, brought 14 years after Steven died and almost six years after the IPCA investigation concluded, Mrs Wallace sued for vindication, in the form of declarations and damages. 1 The claim rested principally on s 8 of the New Zealand Bill of Rights Act 1990, which provides that “[n]o one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”.

6 Mrs Wallace contends that s 8 was breached for two reasons. First, she says that Mr Wallace lost his life unlawfully because the Constable did not act in self-defence. As will be seen, the pleading and conduct at trial of this part of the claim have caused serious difficulty. The parties had agreed that the documentary record of the criminal trial and investigations were admissible as evidence. This included the police statements, depositions or trial evidence of many witnesses, including Constable Abbott. The substance of this evidence was that, as Mr Minchin acknowledged before us, Mr Wallace “had been on a destructive rampage and was advancing with a baseball bat on [Constable] Abbott”. Very few witnesses were called before Ellis J, the trial Judge in this proceeding. The Judge was asked to make certain findings which had not been pleaded. The substance of those findings was that, contrary to the approach taken in the criminal proceedings, Constable Abbott was the aggressor and was not acting in self-defence in the circumstances as he understood them to be when he killed Mr Wallace. Some of the allegations the Judge was asked to accept had never been put to Constable Abbott or any other witness. In these circumstances she found it impossible to make some findings requested of her. She felt able to and did find that the Crown had proved Constable Abbott acted in self-defence and reasonably. 2 On appeal, Mrs Wallace says the Judge was duty-bound to make the factual findings requested and wrong to find self-defence was made out.

7 Second, Mrs Wallace says that s 8 was breached because the police did not conduct the operation that ended in Mr Wallace's death in accordance with their own procedures and good practice: had they complied, the officers would not have carried firearms; alternatively, they would not have used the firearms. The Attorney-General, who is a necessary and sufficient defendant, 3 does not accept that the s 8 right extends

to planning and control of police operations. Ellis J found that the right does extend so far but was not breached on the facts. 4

8 Mrs Wallace further contended that implicit in s 8 is a further right, to an investigation into Steven's death that is independent, impartial, prompt, thorough, effective, credible and transparent. Because the obligation is derived from art 6 of the International Covenant on Civil and Political Rights, we will call this an “ICCPR-compliant investigation”.

9 Ellis J held that such obligation is inherent in s 8 and found that it was breached. 5 The original police investigation was not independent, 6 the criminal trial was not ICCPR-compliant because it was not instigated or supported by the Crown, 7 the jury's verdict did not result from a compliant investigation, 8 and the IPCA and coronial investigations, while independent, failed to investigate self-defence but took the jury verdict to be conclusive. 9 She declared accordingly that there had not been an inquiry that complied with the investigative obligation inherent in s 8. 10 She declined to award compensation. 11

10 The Attorney accepts that under international law the State must establish mechanisms to ensure ICCPR-compliant investigations into potentially unlawful deprivations of life by State actors, but says that it has done so through other means, including criminal trials, police investigation, complaints processes, and coronial investigations. He says there is no justification for reading a positive obligation to investigate into s 8, and he further maintains that the several investigations separately and collectively met the State's obligation in this case.

purposes of the first two causes of action. We agree that it is not necessary to do so. The Attorney is appropriately sued for the Crown on all three causes of action. The Crown accepted in the High Court that it is liable for the actions of police officers as its servants or agents and the Attorney-General is the correct defendant. For this reason it is usually convenient to speak of “the Attorney” when referring to the respondents in this judgment.

11 Mrs Wallace challenged the decision of the Solicitor-General to refuse to take over the private prosecution. Again, the pleading has caused difficulty. She pleaded that the Crown acted in breach of the right to justice by failing to direct a Crown prosecution. Ellis J dismissed that claim, but she accepted an alternative claim, advanced for the first time at trial, that the Solicitor-General had...