Steven Wallace : An Analysis of the Police Report
Steven Wallace : An Analysis of the Police Report
An Analysis of the Police Report into the Fatal Wounding of Steven James Wallace at Waitara, Sunday 30 April 2000.
Moana Jackson, August 2000
It reviews the Report and concludes that the grounds upon which it claims that the Police Officer acted in self defence when he fired the fatal shots are at least contestable.
It also maintains that 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 within the community. It is not envisaged that the impending Police Complaints Authority will be any more complete, as it will be bound by similar strictures.
That is unfortunate, because the lessons that need to be learned from this tragedy do not lie solely within a constricted technical analysis to determine criminal culpability. Rather they lie in broader issues that have their origins in the often tense relationship between the Police as a culture and Maori.
Confronting those issues, and learning their lessons, may hopefully draw justice and reconciliation from tragedy. The whanau of both Steven Wallace and the Police Officer require that. The memory of Steven Wallace deserves it.
Broader issues about the "practices, policies, procedures and authorities" of the Police in cases involving the use of potential lethal force in general, and in this case in particular, are to be included in the investigation of the Police Complaints Authority. The Report touches on these issues, but its focus is one of criminal culpability.
There is of course no dispute that the officer shot Steven Wallace, so the Report essentially concentrates on determining whether his criminal liability is excused because he used "reasonable force" in the circumstances that existed in the early morning hours of April 30.
It therefore hinges on a determination of s 48 of the Crimes Act which reads "Everyone is justified in using, in defence of himself or another, such force as in the circumstances as he believes them to be, it is reasonable to use."
That legislative focus set the parameters for the Report. It concludes that the officer is not criminally culpable because his actions satisfy both tests required by s 48. That is, he fired with the reasonable belief that to do so was an act of self defence, and that the use of a firearm was a reasonable use of force in the circumstances.
It is the submission of this Analysis that that conclusion is at least contestable on both grounds.
However it is the broader submission of this Analysis that neither the Homicide Report nor that of the Police Complaints Authority will ease Maori concerns because they are framed within a context that only seeks to determine the culpability of the officer and the accountability of the Police. They do not, and cannot, consider the key Maori concerns of justice and reconciliation for the whanau of Steven Wallace.
The Homicide Report is a legally concise and technically exact response to a very human tragedy. The Police Complaints Authority will give an institutional response. Together they will be inadequate, and provide an unsatisfactory answer to the many questions that Maori have raised and will continue to raise about this incident and indeed the broader implications of Police policy and culture.
This Analysis seeks to address those questions because it considers them to be both legitimate and timely. It does so by considering the incident itself in a broader context that by their nature the Police investigations exclude.
The Analysis has four main Parts.
Part One briefly analyses the question of the officer's criminal culpability. It is understood that the Wallace whanau is considering a private prosecution, and accepts that such matters may be canvassed more fully there.
Part Two discusses the inadequacy of the framework within which the Police investigations take place.
Part Three contextualises that framework, and the incident itself, within the ongoing relationship between Maori and the Police.
Part Four outlines some ideas for change that may be extracted from this tragedy.
1.1 There is no doubt that the person named in the Report as Constable A fired four shots that killed Steven James Wallace.
1.2 The Report concludes
"17.14…I believe that there has been no breach of General (Police) Instructions…(and) that Constable A was justified in terms of Section 48 of the Crimes Act 1961 (self defence) to use a firearm against Wallace in the manner and for the reasons he did..
23.17 That in the circumstances they found themselves in, Constables A and B could not reasonably have adopted a less violent means in self defence, (and)
23.20 That while issues of fact are more properly the domain of a jury, it is considered that no jury properly directed could, beyond reasonable doubt, find that Constable A shot Steven Wallace other than in self defence". (2)
1.3 It is submitted that the conclusion drawn in Paragraph 23.20 is in fact a matter of some very reasonable doubt.
1.4 It is also submitted that indeed matters of fact are "properly the domain of a jury", and that the prudent course, on the facts, would have been to submit the issue for consideration at a jury trial.
1.5 To reach its conclusion the Report outlines in some detail the facts as observed by the Police and various eyewitnesses, and considers whether other options were available to Constable A. It then concludes, on those facts, that the use of a firearm was the only reasonable force available in the circumstances and that both the subjective and objective tests required by s 48 are satisfied.
1.6 The line between fact and assumption is always a thin one, and facts of course are never incontrovertible. They are subject to interpretation, and the Report appears to interpret them in a way that is more subjective than objective as it reaches a conclusion that it knows in law will effectively be definitive. Just one set of interrelated examples will suffice to illustrate this point.
1.6.1 Options And The Test Of Reasonableness-
(a) Constable A may have had a reasonable personal fear of harm, but the step from that fear to the objective assessment of whether a firearm was the reasonable force to be used is too easily made in the Report.
(b) The possibility of other options such as withdrawal of the officers or the use of batons and capsicum spray are considered in the context of a detailed description of Police policies and circumstances at the time. Each is dismissed with the conclusion that " objectively assessed Constable A's assessment, and the means he used, was reasonable in the circumstances". (3)
(c) However that "objective assessment" is open to challenge. Indeed while many may accept that the Constable's subjective assessment of his own fear was reasonable, they have considerable difficulty accepting that firearm use was a reasonable response. Even "in the circumstances" there is at least an alternative and equally valid sense of reasonableness that other options were available.
(d) The Report's dismissal of the withdrawal option on the grounds that Steven Wallace might cause future damage is particularly tenuous in light of the early morning circumstances and the possibility of containment of both the person and his vehicle.
(e) The Report mockingly notes that "the luxury of hindsight is a wonderful thing" when discussing the possibility of using Police dogs, but is prepared to use foresight to predict possible future action as a reason for dismissing the option of withdrawal. That is both unfortunate and subjective. (4)
(e) The option of using capsicum spray instead of the firearm is dismissed on various operational grounds, but many reasonable people would contend that "in the circumstances" its use may have been both reasonable and appropriate. Factors such as distance (Constable A could smell alcohol on Steven Wallace's breath) and the fact that Constable A had already drawn his firearm indicate at least a reasonable doubt about whether the spray should have been considered as a first option.
1.7 The Objectivity Of The Report-
1.7.1 This Analysis would be remiss if it did not make reference to the language and tone of the Report. Indeed it is submitted that the Report's language betrays a lack of sensitivity as well as objectivity that does a disservice to the whanau of Steven Wallace and casts a reasonable doubt on the efficacy of its conclusions. Again just one interrelated set of examples will suffice.
1.7.2 The use and relevance of Steven Wallace's criminal offending in the Report is questionable.
(a) The purpose of the Report was ostensibly to determine the reasonableness of Constable A's actions "in the circumstances", yet Constable A admits that he thought the offender was somebody else "I still believed it was Witness 2 approaching me" (5) In that "circumstance" the only relevant criminal offending would have been that of Witness 2, as that may have engendered a "reasonable fear" in Constable A.
(b) It seems both gratuitous and irrelevant that Steven Wallace's criminal record is included in the Report.
(c) It also seems gratuitous that terms like "a rampage of destruction" and repetitive adjectives such as "irrational, destructive, threatening and dangerous" are used to compound the nature of the circumstances. It was clearly a difficult situation, but the language used in the Report betrays less an objective reportage and more a deliberate demonising of Steven Wallace. (6)
(d) It is particularly unfortunate that the Report chose to comment in the way it did on the reluctance of the Wallace whanau to meet with the Police. The relevant section of the Report reads " ..considerable difficulty has been experienced in communicating directly with the family…In my experience I have never encountered a homicide investigation where the victim family has adopted such a position. I anticipated that a day or so after the tangi family members would make themselves available". (7)
(e) It is apparent that the depth of concern, the extent of grief, and indeed the anger experienced by the whanau, and many other Maori, is still not comprehended by the Police. That does not bode well for the eventual resolution of this issue.
2.1. There is considerable unease among Maori, and indeed many in the wider community, about the way in which investigations are conducted in such matters. It is submitted that the Report will increase that unease.
2.2 The unease itself is not a reflection upon individuals involved in the process, but rather upon the systemic failures that allow the Police to investigate its own actions and restrict the Police Complaints Authority to narrow and essentially procedural matters.
2.3 For Maori the unease is compounded by the issues canvassed later in the Report, but they too are sourced within doubts about whether an agency to which an alleged wrongdoer belongs should be entrusted with the investigation of the wrongdoers' action. It is compounded further when, as in this case, the taking of a life is admitted and the issue is solely whether the perpetrator should be liable at law for his actions.
2.4 It is an axiom of the common law, and indeed of Maori law, that wrongdoers should not be "judge and jury" in their own cause. Clearly in this case there is a justifiable perception that that has occurred. Members of an Iwi authority, or even members of another government department, are not entrusted with the powers that the Police have in circumstances such as this. A Crown entity may investigate the activities of an employee, but the decision of criminal culpability is left to another agency, the Police.
2.6 It is submitted that had the investigative Report here under consideration been compiled by another agency there would have been less scepticism and concern about its findings. Indeed the findings themselves may well have been different.
3.1 The Report was of course bound by the strictures of the legislation under which it was produced. That has resulted in quite specific shortcomings, some of which are referred to above. However it was also bound by a much wider set of strictures that are unacknowledged but which are crucial to a longer term resolution of the issues arising from the fatal wounding of Steven Wallace.
3.2 Some of these issues go the heart of the historic relationship between Maori and the Police, particularly in Taranaki. Others relate to the current Maori perceptions of the Police that are shaped both by that history and contemporary experience, and by the culture of the Police organisation.
3.3 It is an unwise person who attempts to discount the continuity between past and present, and in the Maori context it would be culturally impossible and intellectually incomprehensible to do so.
3.4 The events in Waitara therefore need to be seen in the light of a history that the Waitangi Tribunal has labeled in Taranaki as a "holocaust". Because the Report was unable (some may say unwilling) to consider that history, it is decontextualised in a Maori sense. It produces a technical finding, itself liable to challenge, but it does not and cannot provide a path that may lead to a just resolution.
3.5 The key to that historic context is that the Police exist to enforce the will of the State, and that when the Force was established in this country that will was to dispossess Maori. The Police culture that developed in that context therefore saw Maori not just as criminals, but as enemies of the State.
3.6 The will of the State was particularly enforced in Taranaki, and the sacking of Parihaka was carried out by the "armed constabulary" as part of a process to subordinate Maori to the authority of the Crown. That will was obviously political, but it was also cultural because it was sourced in an essentially racist view that Maori needed to be made subject to the values and institutions of a "superior" people. The Police as an organisation helped shape, and was shaped by, that culture.
3.7 As a result a tension was established between the Police and Maori that was exacerbated rather than minimised when the State withdrew from military conflict with Maori. Indeed as Maori society was impoverished by the consequences of colonial dispossession Maori ceased to be the "rebels" and became instead the poor who seemed to fill the jails as criminals. The tensions between the Police and Maori took on a new form, but they remained.
3.8 There is of course ample, and recent, research to show that Maori attitudes towards the Police continue to be at best suspicious and wary. Indeed it is sad to record that the views summarised in a Report over a decade ago remain true, and that Maori continue to be critical of the Police and express "a level of disillusionment which has grave portents for Maori/Police relations". (8)
3.9 The Report is also still regrettably relevant in its comment that "Maori people accept that the job of the Police is often violent, frequently distasteful, and always stressful. However…a long-running series of personal and frequently traumatic experiences have been shared by people from all sections of the Maori community - not just the allegedly disaffected young, but parents and elders as well…They were detailed in words of frustration and bitter sadness". (9)
3.10 Police attitudes engendered by the history and the tension also remain, and they are clearly evidenced by recent research as well. They reside not necessarily at an individual level, although clearly some Police Officers have been shown to be unacceptably prejudiced and even racist. Rather the systemic culture of the Police remains a product of its oppressive history. (10)
3.11 This does not mean that the Police culture has remained frozen in some pre-Parihaka intolerance. Clearly it has changed, and many members of the Force work hard to improve their knowledge of Maori cultural rituals and history. However that work normally occurs in a historical vacuum in which racism tends to be seen as an individual failing rather than the cultural imperative that still lingers within the institutional framework of this society.
3.12 The result is often an "indigenising" of the Police based on cultural sensitivity or an increasing numbers of Maori recruits. Those moves are not unimportant, but the very process of "indigenisation" has been criticised because it simply indicates the "move from coercive to consensus state control initiatives that has characterised State/indigenous relations for much of the twentieth century". (11)
It does not necessarily change the source of tension between Maori and the Police, nor the institutional culture. Instead as the late John Rangihau once commented, it merely "places a carving above the door while the inside remains the same". (12)
3.13 Taking the steps necessary to remedy that situation often calls for policy changes beyond the authority of a single agency, and that is the case with the Police. The responsibility rests with the Crown, and the need for this country to deal with the continuing consequences of its past. Nevertheless there are specific steps that can be taken which are outlined in the final Part of this Report.
3.14 However the origins of the Police culture, and its continuing role in enforcing the will of the State remain important in a general sense that impacts upon this Report and the reaction of the Police as an institution to allegations that the death of Steven Wallace resulted from a racist act.
3.15 The most prompt Police reaction to the allegations has been to point out that the shooting could not have been racist because Constable A is himself Maori. This is an unfortunate response that seeks to isolate this incident from the ongoing history of which it is a part.
3.16 It thus ignores the fact that the Police culture is the product of its past, and that its underlying ethos continues to be shaped by it. As with all cultures, that of the Police imbues the individuals within it with its core values and its historic ethic. Because of that the behaviour of an individual Police Officer cannot be separated from that of the culture. If the culture is based upon the institutionalised racism of colonisation, then its members will be imbued with, and may even manifest, that racism.
3.17 In a similar way, if the behaviour of a particular officer is seen as unfair or prejudicial, such behaviour may be declared aberrational in terms of policy or publicly declared aims. However they will not necessarily be aberrational or contrary to the context of institutional racism in which the organisation functions. To claim impartiality does not prove that it exists. To deny racism does not prove that is non-existent.
3.18 The history and continuing role of the Police as the enforcement arm of the State is also relevant in terms of this Analysis because it has impacted upon both the Maori and the political reaction to the Report under consideration. The Maori scepticism and even anger was understandable, the acceptance by many politicians of its findings as an objective and definitive conclusion was sadly predictable.
3.19 The findings of course are not definitive. However they do sustain the tensions in the Maori/Police relationship, and they point to major systemic issues that need to be addressed.
4.1 Whatever course of action the Wallace whanau pursue in the future, and whatever findings may come from the Police Complaints Authority or the independent report by John Rowan QC, the tragedy of Steven Wallace's death (and indeed the still questioned deaths of other young Maori killed by the Police) requires a brave commitment to change. It certainly requires more than the current Police investigative mechanisms can provide.
4.2 There is clearly a need for changes to the training and procedures used in such incidents. An almost immediate recourse to firearms, as occurred in this instance, seems as much a product of the training ethic as the circumstance. It is submitted it was an inappropriate response to the smashing of windows. New procedures and training might avert a "gun first" response in the future.
4.3 There is also a need for changes which accept that the historic development of the Police ethos has shaped an organisation that manifests the broader inequities of the culture of colonisation. The ability to effect substantive change in that context is the responsibility of the Crown, and it will be achieved through the ongoing process of Treaty settlements and eventual constitutional change.
4.4 However the Crown could also act in a more specific sense and institute policy changes in the way that the investigations into Police shootings are conducted.
4.5 One change that is currently discussed would see greater resourcing being given to the Police Complaints Authority so that it could conduct both its current policy inquiry plus the homicide investigation. This would do much to remove the perception that the Police can act as both judge and jury.
4.6 However it is submitted that it would do little to remove Maori suspicion or engender confidence that a Crown agency could properly address Maori concerns. To paraphrase an old judicial axiom, independence would not only have to be done, it would also have to be seen to be done.
4.7 It is therefore submitted that a new investigative regime be established to deal with issues that arise whenever death occurs as a result of the Police use of lethal force. It is further submitted that this new regime must include changes to meet the specific concerns of Maori.
4.7.1 It is therefore contemplated that that this new regime would incorporate three changes.
(a) The removal of the right of the Police to conduct their own investigation into any death caused by the action or inaction of a Police Officer.
(b) The restructuring of a Police Complaints Authority as a truly independent body resourced to undertake both substantive investigations as well as its current policy enquiries.
(c) The establishment of an autonomous Maori investigative branch as part of the new Police Complaints authority to review Maori complaints against, and Maori relationships with, the Police.
4.7.2 It is recognised however that if the Police Complaints authority assumes a broader investigative role there would need to be an appeal or review body to consider its activities. This would be particularly important for Maori.
4.8 One possible model for such an appeal and oversight body is the Waitangi Tribunal. It continues to struggle with inadequate funding, and there remain Maori concerns about its effective as distinct from its recommendatory power (and indeed some of its jurisprudence). However it does engender more Maori trust than any other part of the judiciary. It is seen to be a judicial body that has developed a new culture.
4.9 It is therefore submitted that a similar body should be established to meet the obvious need for a new culture to deal with the use of Police lethal force in particular, and the ongoing Maori/Police relationship in general. It could be both an appeal body and an Ombudsman for Maori in their dealings with the Police.
4.10 An ongoing process of change is also required within the Police as a culture. Marae visits and current Maori cultural or Treaty training are important, but there needs to be an awareness by the Police that it is essential for them to critique their own history and culture if they are to be truly sensitive to that of others.
4.11 That work needs to be continually monitored in a systemic as well as an attitudinal sense, a task that the proposed oversight body could undertake.
The institutional response to the fatal wounding of Steven Wallace has to date been inadequate and at times insensitive.
It is submitted that there is a clear need to extract from this tragedy a commitment to major systemic change within the culture of the Police in general, and in the specific manner that incidents such as this are dealt with.
It would be wrong to suggest that the Police have not endeavoured to make change in recent years - they clearly have. However it is equally clear that more needs to be done, and that the response to the death of Steven Wallace merely indicates how difficult that task may be.
The Report into The Fatal Wounding Of Steven Wallace is referred to as 'the Report'.
1. The Report, p176.