When the man on the street is out for justice

Reverberations from the shooting of Waitara man Steven Wallace by Senior Constable Keith Abbott go to the heart of the justice system. WARREN GAMBLE looks at the arguments over the private prosecution of police officers.

Police Association president Greg O'Connor and Queen's Counsel John Rowan share the same passion for the legal issues at the centre of the landmark Waitara shooting trial.

O'Connor, whose association defended Senior Constable Keith Abbott, insists similar private prosecutions of police officers for murder should not be allowed to happen again.

Rowan, who ran the prosecution case for the father of 23-year-old Steven Wallace, shot by Abbott, is adamant that the ability to take such cases is a fundamental part of the justice system.

Wallace was shot four times after approaching the constable with a softball bat following a window-breaking rampage in the small Taranaki town.

Abbott's acquittal this week after an historic High Court trial may have closed one chapter of distress and grief for the two families involved in the aftermath of the 64-second confrontation in April, 2000.

But the case has opened new volumes of debate over the balance between protections for police officers doing their duty and protections for citizens against the state.

O'Connor sat through the preliminary hearing and the Wellington trial, and says he has never felt such a strong sense of injustice as at Constable Abbott having to face a murder charge.

"Why should an officer doing their job, just because they are unfortunate enough to be in a position to pull the trigger, why should their life and their family's life go on hold for two years?

"It's too high a price to pay."

Rowan, who is on a senior panel for Crown prosecutors, did not charge for his trial services to the Wallaces. He believes the police did not conduct a proper investigation, and the principle was too important to ignore.

"Justice is about even-handedness, and special categories of people don't get special treatment," he says.

"At the end of the day in rare and proper cases, police have got to know they are accountable like every citizen."

Rowan says his research shows private prosecutions date back to ancient Greece when only the families of murder victims could go before the courts.

That changed when a childless Athenian widow was slain and there was no one to take her case. The public debate which followed led to the state prosecuting serious crimes on behalf of the community.

As legal systems evolved, state prosecutors and - for less serious offences - police took over the costly and increasingly complex task of prosecution. But the right of anyone to take their own action has been preserved in Western democracies, including New Zealand.

In practice, private prosecutions for serious criminal offences are rare - the Abbott case is believed to be the first involving murder and there are only a handful of other private prosecutions which reach court each year.

For a start, it is rare for the Crown to decide against prosecution in serious cases. (A private prosecutor cannot take a case which the Crown has already taken to trial, because the double-jeopardy principle prevents someone being tried twice on the same charge.)

Secondly, the cost of private prosecutions using expert investigators and lawyers - legal aid is not given for private criminal prosecutions - is often an insurmountable barrier.

But the option remains, and as recently as two years ago was endorsed by the independent Law Commission.

Under the Summary Proceedings Act anyone can lay an information for a criminal offence in the district court. The Crimes Act allows a private prosecutor to lay an indictable charge for serious crimes, including murder.

The act includes a section, used in the Abbott case, allowing indictable charges to proceed with the consent of a High Court judge, if a depositions hearing does not commit the accused person for trial.

Rowan relied on this rarely used clause after two Justices of the Peace in New Plymouth discharged Abbott in February, after finding that Abbott shot Wallace in self-defence. In June, Chief Justice Dame Sian Elias overturned that decision and sent the case to the High Court, ruling the JPs were "under a misapprehension".

Their job was to consider whether there was sufficient evidence for the case to go to trial, not to decide the jury question of guilt or innocence involving self-defence.

In her decision Dame Sian said the Law Commission had considered reforming private prosecutions in an October 2000 report.

The independent commission recommended keeping private prosecutions because of their "important constitutional and theoretical place" in the justice system.

It rejected a proposal from the Crown Solicitor that leave of the court should be sought for private prosecutions of public officers. The commission said that was not compatible with the main reason for maintaining private prosecutions - "they are an important safeguard against the misuse of state power, such as a failure or refusal to prosecute a state official".

The commission considered Canadian, British and some Australian state legislation requiring court leave to bring private prosecutions, or allowing state prosecutors to take over private cases, but did not propose changes in New Zealand.

It said there were dangers of unduly vengeful or vexatious private prosecutions, but there were arguably enough safeguards, including the Attorney-General's power to stay proceedings.

O'Connor believes because of the publicity over the Wallace case, fanned by what he says is a vocal liberal minority, the option to stop the case was not used.

He says the Chief Justice's ruling will mean any similar cases will go to a High Court trial, because all would involve the issue of self-defence.

Constable Abbott's ordeal, including having to leave his home province after threats, could have repercussions for other officers in the same position. Some might not want to pull the trigger in dangerous situations because of the consequences.

"We give police officers the power of arrest and expect them to go to dangerous situations, so you have got to give them protections to do their job."

O'Connor says the Police Complaints Authority provided adequate safeguards for the public.

A new law passed this week putting Independent before the authority's name, and giving it six new investigators to examine serious crimes, including police shootings, would enhance that check, he says.

Law experts spoken to by the Weekend Herald say private prosecutions are a valuable constitutional right, but some believe the Abbott case could have been rightly discharged at depositions, or stayed by the Attorney-General.

A senior law lecturer at Victoria University, Professor John Miller, says taking another person's life is obviously one of the most serious actions, and it's "not unreasonable to bring court proceedings".

He believes police officers faced with a similar situation will still act in a professional capacity, and take the necessary action.

It was possible the Abbott case could provide more impetus for police to examine non-lethal forms of restraint.

Professor Miller says the "nightmare" of investigative and legal hurdles needed to prove a case beyond reasonable doubt means private prosecutions will continue to be rare.

Auckland University law professor Bill Hodge wants private prosecutions retained, although he does not believe the Abbott case was a good example.

He is puzzled why the Solicitor General, who had first advised against prosecuting Abbott following the police investigation, then did not stay the private prosecution.

But Dr Hodge does not believe prosecution for serious cases should be left only to the "priesthood of the legal system" involving Crown solicitors who were not elected, but appointed through a mysterious process.

Auckland barrister Richard Earwaker, who has defended clients, including police officers, from private prosecutions, says there are dangers when someone sets out to victimise another through the courts.

The Law Commission highlighted the case of convicted stalker Glenn Holden who took private prosecutions, using a forged JP's signature, against two women he alleged had perjured themselves to get protection orders against him.

Earwaker says the system could be improved to allow defendants earlier opportunities to convince a court that a private prosecution with no merit should not proceed. But on balance, he believed the safeguard of having of private actions outweighed the dangers.

Rowan argues the police already have special powers in the Crimes Act, including the use of necessary force, even if it is likely to cause death, during arrests.

There is also the provision applying to anyone which allows the use of reasonable force in self-defence.

But the act also says anyone authorised by law to use force is criminally responsible for any excess, the case the prosecution argued and lost in Abbott's trial.

Rowan says he can accept the verdict, but believes it was important to test the issues properly in court.

He says he has no trouble with the Police Association protecting its members, "but what they are trying to do is to set up a special regime where they are treated differently from you and me".

"It would be wrong to create special powers for the police on one case that may not happen for 20 or 30 years."