KEY POINTS:
Since speaking out on the issue of the police shooting and killing an innocent man, I have received calls of endorsement and abuse. And some questioning why I have the temerity to comment when I don't live in New Zealand.
As a former MP and a former commissioned
officer in the police with a tertiary qualification in politics and public law, I suggest I am well qualified to comment.
It would be a simple matter for me to ignore what happens in my homeland. But having witnessed first-hand the perilous nature of the "rule of law" that exists in some of the Eastern European and Middle East countries I operate in, it concerns me when I see what I believe to be a trend in my country which, if it is not acknowledged, could result in significant erosion of the foundations of what too many New Zealanders seem to take for granted - separation of powers.
In New Zealand, Parliament (the legislature) makes the laws. The Government implements (via government departments, for example) the laws. The judiciary (the courts) rules on the legality of the application of those laws.
This is a simple but precious component in any democracy as we in New Zealand understand the concept. Thus, where the police as part of the government implement the powers Parliament gave them, it is for the judiciary to decide whether they exercised those powers legally.
In October 2007 the police, in a bizarre initiative in my view, under the ruse of "terrorists in our midst" abrogated the basic rights of "no detention without charge" and "to be taken before a court as soon as possible".
I was concerned that the hysteria generated by former President George W. Bush had taken hold of people in decision-making roles in my country. Rather than use powers of seizure and arrest which exist in the Arms Act and the Crimes Act, the police elected to strip, from every New Zealander, basic rights they have had since the Magna Carta. This was a regrettable and dangerous step which needed to be challenged.
I spoke out against the police actions during their "terror alert" because I believe they were excessive and, at the juncture where police peer-reviewed their own "criminal intelligence" before launching into a "terror alert", there was no independent objective test applied to the efficacy of the police decision-making.
The police had merely self-reviewed the information they had before placing that information before a judge to secure assent to their intentions. Objectivity was excluded.
At the time I also referred to a recent shooting and killing of a man by police in Christchurch where the person shot was attacking cars with a hammer. Based on what I knew of the incident I do not believe police were justified in shooting to kill.
Yet a police representative insisted the killing was justified. In fact, neither that police spokesman nor I were qualified to make a determination on the killing. We may have opinions but, as I understand and prefer, final determination of culpability can be delivered only by a court of law which has objectively reviewed all the evidence available.
My principal concern over the Christchurch shooting was that the police seemed to be trying to influence the legal process to avoid having to put the police officer who fired the fatal shots before a court. In my view the police sought to win the minds of the people through a public relations exercise at the expense of proper judicial review.
As far as I am concerned, the day culpability is decided by a television spectacular will be a very sad day.
As I read about last week's shooting I also saw that a police spokesperson was saying: "They [the police] were only doing their duty." Once again the spectre of deliberate interference in the due process of law seemed to me to be manifest.
The law is very clear when police may kill a human being. They must fear, on reasonable grounds, death or grievous bodily injury to themselves or a third person and that the death or grievous injury cannot otherwise be avoided than by killing the offender.
I do not pre-judge the lawfulness of the police action on that fateful day. It is for a court to decide whether the police shooting was lawful and justifiable.
The fact that the police actually missed the "offender" and hit an innocent person introduces the question of whether or not they were reckless or negligent in their use of firearms. There is no question of the police deliberately hitting the wrong person - that would be an absurd assumption. But negligent and/or reckless use of a firearm is axiomatic and these elements form the basis of manslaughter.
Often we read where a hunter has failed to identify his target and has shot his mate. Inevitably the sequel is in court, where the issues of negligence and/or recklessness are addressed. In West Auckland, assuming the conditions existed to justify police shooting to kill, the police fired more than one shot and none hit the intended target.
The fact that an innocent bystander was shot must raise concern that the shooter failed to identify the target or was a poor shot. The "miss" factor must be a concern and juxtaposed against the police in the Christchurch situation two years earlier, when 13 shots fired at a dog all missed. Alarm bells should be sounding somewhere.
The sole purpose of my speaking out on this occasion is to bring into focus in the public mind the absolute necessity, in my view, of this case being judged in a court of law and not played out by police public relations people through the media.
Preservation of the rule of law is far more important than preservation of the police.
The place for the questions of culpability to be determined must be in a court of law.
This embraces the concept of separation of powers. It is fundamental to our democracy. Only then can the public have confidence in their police and only then can the police hold their heads high.
