Debate rages over 'two laws' on self-defence

Some say all fatal self-defence cases should be decided by the courts. NAOMI LARKIN reports on what often happens when it's left to a judge or jury to decide.

The law on self-defence is clearcut and applies to everyone. But the shooting of Steven Wallace raises the question of whether in practice there is one law for police and another for civilians.

On Wednesday, a police investigation found the constable who shot dead the Taranaki 23-year-old with four rounds from his Glock pistol acted lawfully.

But the verdict has been greeted with outrage in the dead man's home town of Waitara and prompted debate across the country on the defence of self-defence.

The Crimes Act defines it simply: "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."

But the president of the Auckland Council of Civil Liberties, Barry Wilson, said it was highly unlikely that a civilian in the same situation would escape a trial.

The case should have been put before a jury to decide, he said.

"Would a jury accept that the force used was reasonable if they were in the constable's situation? It's highly unlikely in the circumstances of this case that a civilian who shot someone dead at point-blank range would not have faced trial."

Mr Wilson said there had been a number of cases in which civilians had been placed before a jury for killing an unarmed civilian and had been acquitted.

"In many of these cases the attitude of the police has been, place the matter before the court and let the court decide. So ... why not in this case?

"Why shouldn't the constable be examined on factual matters surrounding his credibility, like the number of shots fired, the constable's physical position in relation to Mr Wallace? Why didn't the constable run? He was facing a drunken man. All those questions should be thrashed out properly in a court of law."

Section 347 of the Crimes Act - which enables a judge to evaluate the evidence and decide whether a case is fit to go before a jury - could have been used, Mr Wilson said.

Professor Warren Brookbanks, of the Auckland University Law School, said the question was one of how much force is too much.

"The law allows for people to use reasonable force to protect themselves, but excessive force might allow a verdict of guilty."

One of the headline-grabbing cases involving a member of the public walking free on the self-defence ticket involved Far North farmer Matthew Oates.

In June 1997, Mr Oates returned to his farm near Mangonui after Justice Sian Elias ruled in the High Court at Auckland that the murder case against the 35-year-old should not proceed.

The ruling followed a trial the previous month when a jury failed to agree on whether Mr Oates' shooting of Wayne Phillip Rogers was murder or self-defence.

At the trial, Mr Oates said he shot Rogers in self-defence following a raid on the house he shared with Sheila Barker. Sheila Barker was beaten with a shotgun during the raid and had her nose broken.

Mr Oates said yesterday that he did not want to discuss the issue.

But at the time the charge against him was dropped he said the law should support, not condemn, people who resorted to using firearms to defend themselves. "We need to look at a law change."

Others who have not been convicted after killing someone include Ruatoria farmer Luke Donnelly, who was cleared of the 1990 shooting of Rastafarian sect leader Christopher William Campbell.

He told the court that he feared for his life and that of his wife when Campbell and four others drove to the Donnelly farm.

Mark Williams was not charged with murder or manslaughter after he shot dead a burglar at a vacant apartment next to his Panmure home in September 1989.

Police believed he acted within his rights when he fired at Jimmy Rapata, because he believed he would be killed.

Mr Williams said yesterday that he did not want to comment on the issue. But when the charge against Mr Oates was dropped Mr Williams said the verdict was wonderful.

"He should never have been charged. He did the only thing he could have under the circumstances ... It's only money for the legal system, as far as I'm concerned."

Michael John Donnelly (no relation to Luke) walked free from a murder charge in 1993 after shooting an intruder in the driveway of his West Auckland house.

Six shots were put into his victim's back, but it was argued that the accused pulled the trigger to protect himself.

Auckland lawyer Christopher Harder, who successfully defended both Mr Oates and Michael Donnelly, said last night that the Waitara shooting was clearcut self-defence.

"If the constable had been my client and he had been charged with murder and it went through depositions, I don't think there is any doubt that the judge would dismiss the charge.

"It has all the ingredients. He has fired a warning shot, he's made a significant retreat, he didn't have anywhere else to go, he warned the guy that he was going to shoot him, he was entitled to carry a firearm.

"He was a trained AOS officer ... so he was an experienced officer.

"It was a lottery that he was called to the scene.

"Nobody likes to see the police having to shoot a member of the public. But, on the basis of what the police officer said, did and observed, it really is a clearcut case of self-defence and I doubt that any judge would have let it go to a jury."

A spokeswoman for the Crown Law Office - which reviewed the advice given to police by the Wellington Crown Solicitor not to prosecute - said the decision to seek an opinion from the Solicitor-General was up to police.

Canterbury University sociology lecturer Greg Newbold, a criminologist, said it was "absolutely, bloody ridiculous the way people had been carrying on over the Waitara shooting.

"The facts are clear. Steven Wallace was going berserk, he was causing thousands of dollars of damage, he was drunk and he had a history of going berserk. The police had to do something about it.

"They could not allow him to continue smashing up property like that. Then he attacked the police car with the coppers in it. They retreated. Then they came back with guns. They had to have guns. He was armed with a lethal weapon and that is a baseball bat.

"They told him to stop. He didn't. He advanced towards them with a baseball bat. They had no option but to shoot.

"That's absolutely clear in my mind and ... I would have done exactly the same thing. You can imagine what would have happened if the copper hadn't done it and Steven Wallace had gone and caved his head in with a baseball bat. Everyone would have said: He had a gun. Why didn't he shoot?

"The cops are in a no-win situation here. The police acted in the only reasonable way they could have under the circumstances because their own lives were under imminent threat."

Shooting to wound was not an option, he said.

No on-duty police officer has been prosecuted for shooting a member of the public for 60 years.