Officer loses name suppression battle

By TONY STICKLEY

Two High Court judges have ruled that a police officer who shot and killed Waitara man Steven Wallace should not have his name suppressed as he goes through the courts on a private prosecution for murder.

William Keith Abbott had been exonerated by an internal police inquiry and the Crown Law Office of any wrongdoing in the killing of Mr Wallace on April 30 last year.

But the Wallace family were unhappy that Constable Abbott, in his mid-40s, had not been charged over the incident and mounted their own private prosecution for murder.

Judge Christopher Harding declined to grant name suppression last week in the New Plymouth District Court, prompting the officer to appeal to the High Court at Auckland.

Yesterday, Justices Peter Salmon and Judith Potter dismissed the appeal.

"We consider that it remains relevant that the appellant's action was that of a public officer in the course of his public duties in a public street. We do not consider that such circumstances can justify suppression of name," they said.

But the judges said Judge Harding may have erred in ruling that existing publicity in the National Business Review and three websites made suppression futile.

In considering the issue afresh, they said Constable Abbott, represented by Susan Hughes, sought name suppression because of risk to his family, risk to his future career, the presumption of innocence and the apparent weakness of the case.

The judges said the Wallaces' lawyer, John Rowan, QC, argued that it was a case about openness and dealing evenly with people coming before the court. The starting point was freedom of speech and the importance of open judicial proceedings and the right of the media to report court proceedings.

The presumption of innocence before trial was a factor to be taken into consideration, which in this case deserved full weight.

While it would be inappropriate to express a view on the strength of the case against the officer, as they had not seen the evidence, the judges remarked: "This is not one of those cases where it can be said unequivocally, on the basis of the material before the court, that there is a strong case against the accused."

The judges said factors to be taken into account in the balance against open reporting were the risks to Constable Abbott and his family, the risk to his future career and the presumption of innocence.

But they ruled that the balance did not come down clearly in favour of suppression and the presumption in favour of open reporting was not overcome.

Immediately after the killing in May last year, lawyers for Constable Abbott tried to secure a High Court injunction preventing publication of his identity.

At that time the Herald, named as a party to the case, rejected the police assumption that the department had an automatic right to expect suppression of an officer's name in such circumstances.

Despite establishing that principle, the Herald and most media organisations accepted at that time suggestions that the constable and his family could face acute danger.

Affidavits had been supplied to the court by officers forced to shoot in the course of their duty about the trauma they suffered and the effect on them and their families of threats when their names became public.

Threats had been made against the officer and his family by members of the Wallace family.

"We have the utmost sympathy for people in the position of the appellant ... " the judges said.

Judge Harding has suppressed details of the officer's location.

After the release of the decision, Police Commissioner Rob Robinson said he reaffirmed his advocacy for legislative protection of officers prosecuted in the line of duty.

He hoped that anonymity could be preserved to the point where officers were before the court and could argue a case in the circumstances pertaining at the time.

Police Association president Greg O'Connor appealed for the media to continue its voluntary policy until now of not naming Constable Abbott.

Anonymity was the best protection against the "disaffected and anti-police element" who represented the greatest potential threat to the officer and his family.