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

The issues were: whether s8 NZBORA extended to indirect actions of State actors, including the planning and control of police operations; whether the State's obligation to investigate potentially unlawful deaths be enforced under s8 NZBORA; whether the investigations satisfied the State's obligation to conduct an investigation and whether the use of lethal force was justified.

The Court held s8 NZBORA extended to indirect actions of State actors. That did not broaden s8 NZBORA beyond its intended scope or open the door to claims of systemic fault because courts must find a causal connection between the acts of State actors and a death and must allow for reasonable mistakes or errors of judgement. Any failure found must have been egregious and substantial to establish liability under s8 NZBORA.

The State must conduct an investigation that complies with NZ's obligations under the International Covenant of Civil and Political Rights (“ICCPR”) when life had been lost at the hands of a State actor. Whether any death had been effectively investigated was a mixed question of law and of law and fact to be answered in context and the possibility that an investigation would fall short of and the possibility that an investigation would fall short of the ICCPR standard could not be excluded. If it did, the obligation may go unmet unless an affected person was able to bring proceedings. Judicial review may not be any not be an adequate response.

The police investigation was not ICCPR compliant because it was not sufficiently independent. The private prosecution constituted an ICCPR compliant investigation; although the State did not initiate the prosecution, the proceeding rested almost entirely on infrastructure provided by the State. The Coroner's inquest and IPCA inquiry also were adequate investigations.

There was sufficient evidence to find the Constable believed his life was in jeopardy and that he had no option but to shoot. Pepper spray and batons were not appropriate alternatives to a firearm. The direct evidence confirmed that the Constable had not thought S had been incapacitated by the first 2 shots and so it was not unreasonable to fire 4 times. S was in a violent destructive rage when the decision was made to uplift firearms and it was reasonable in the circumstances. There was no time to wait for reinforcements. A failure to render first aid when safe to do so might breach s8 NZBORA, but nothing could have been done to save S' life and any omission to offer comfort was not substantial or egregious.

W should not be denied a remedy due to delay in bringing the proceeding. Delay may justify a court in refusing a remedy but it had been reasonable to await the official investigations.

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...