The Extent of Harm when Evil Rises Above Good

Published by Asia Pacific AML – 11 January 2022

(Updated 16 January 2022)

Combatting Corruption

What is Corruption

Wikipedia provides a definition of corruption as a form of dishonesty or a criminal offence which is undertaken by a person or an organisation which is entrusted with a position of authority, in order to acquire illicit benefits or abuse power for one’s personal gain.

New Zealand is indexed to be the least corrupt country in the world. The index is known as the “Corruption Perceptions Index’. It is called the ‘Perception’ index because corruption itself is very hard to measure.

It is the view of Asia Pacific AML that New Zealand’s rank as the least corrupt country is flawed. This is because New Zealand has no dedicated anti-corruption agency. New Zealand has instead used a multi-agency approach and has provided the responsibility of detecting, investigating and prosecuting corruption and bribery to the Serious Fraud Office.

The problem with this, is that the Serious Fraud Office (the SFO) is severely under resourced. Statistics from the SFO’s annual reports reveal the SFO investigate only 1% to 5% of complaints received. Adding on corruption and bribery crimes to the SFO achieves nothing – it is just a title.

Any anti-corruption agency needs to be dedicated to corruption. It cannot be shared with another government department because where does one turn to if the complaint of corruption involves the SFO itself?

To make any impact on deterring and reducing corruption, the starting point is to have adequate resourcing and systems in place.

Party Pills – NZ Ministry of Health Fails to Protect

On 24 November 2006, a research report was sent to New Zealand’s Ministry of Health to warn of the effects of party pills. The report can be accessed at this link: https://risks360.com/ministry-of-health. After reading the report, one will learn why New Zealand has such a high rate of methamphetamine addiction, violence, homicide and mental health problems. 

Findings of the above report are provided below:

Benzylpiperazine is a drug that produces amphetamine-like effects in humans, including an elevated sense of energy and euphoria. Since the mid-1990s the chemical has been reported to have been used as a recreational stimulant. From 1999 to 2008, the drug was legally marketed in New Zealand and was commonly referred to as “party pills”, “herbal highs” and “social tonics”.

At this time New Zealand was leading the world in the legal sale and uncontrolled use of BZP. One survey found that 40% of 18–29-year-olds admitted to using BZP-based party pills while, in another study, 44% of first-year university students had used the drug. During the period that it was legally available for sale, BZP usage in New Zealand far exceeded the usage of any illicit drugs other than cannabis.

In March 2004, the United States Drug Enforcement Administration (DEA) designated BZP a Schedule 1 substance under the Controlled Substances Act. Schedule 1 drugs, which include heroin, LSD and MDMA, have a high potential for abuse and serve no legitimate medical purpose. 

In the same year (2004), New Zealand’s Expert Advisory Committee on Drugs dressed the need for research into the effects of BZP and related substances. 

In June 2005, Parliament imposed an age restriction of 18 years for the purchase of BZP by placing BZP in a new category of restricted but not illegal substances, known as Schedule 4 in The Misuse of Drugs Amendment Act 2005.

Despite these party pills being legal in New Zealand, there had been no clinical trials of BZP party pills which were also being sold with a combination of another chemical known as trifluoromethylphenylpiperazine (TFMPP).

Following clinical testing of party pills containing BZP and TFMPP, on 24 November 2006, the above report was provided to the Ministry of Health. The investigators to the report included the Institute of Environmental Science & Research Ltd (ESR), a government owned entity. The report advised:

  • Over the past six years 20 million doses of these party pills had been sold legally in New Zealand.
  • There was a significant gap in the research on the clinical effects of BZP and TFMPP, with only two small clinical trials on BZP published in the 1970s, and no clinical trials on TFMPP.
  • The clinical trial doses of BZP/TFMPP was 300mg/74mg over a two hour period.
  • Six units of alcohol given was the maximum dose recommended to be taken in a session.
  • BZP was comparable to amphetamine and MDMA (ecstasy).
  • TFMPP produced moderate psychedelic actions.
  • When BZP is used in combination with cannabis, it can cause acute psychosis.
  • A 2004 overseas research found BZP in combination with cannabis and nitrous oxide had caused two deaths.
  • There have been no fatalities reported with BZP or BZP/TFMPP use alone.

[Note from APAML: In order to have a fatality reported, blood tests of a deceased would need to have been carried out and examined for the presence of BZP/TFMPP. If there was no existing research on the effects of BZP/TFMPP, the pathologist and the Coroners Court would not have been informed to examine these issues.]

The report highlighted that in 2005, 61 patients presented on 80 occasions to the Christchurch Hospital Emergency Department, suffering adverse effects from ingestion of party pills. Some toxic reactions included seizure in 15 patients, cardiovascular problems in 32% of patients, hyponatraemia (fluid retention causing symptoms of nausea, headache, confusion and fatigue), agitation, palpitation and panic attacks. Two patients required intensive care treatment.

A cross-sectional survey of presenters to the Waikato Hospital Emergency Department revealed 12% of the 1043 people surveyed had used legal party pills (125 patients).

The report concluded that party pills commonly cause severe adverse reactions and have marked cardiovascular effects when taken in similar doses to those recommended by manufacturers.

A Massey University phone survey of 2,010 people aged 13-45 years old, showed that co-ingestion of alcohol with party pills and that taking more than the recommended number of tablets is common.

The dose of BZP products is reported to have steadily increased since their introduction in New Zealand, from a standard dose of 70-80mg to 250mg per session.

Each study capsule (party pill) contained 75.0mg BZP and 18.4mg TFMPP. Each subject was provided two capsules, then after two hours had passed, another two capsules. The total dose given was thus equivalent to 300mg BZP and 74mg TFMPP.

The study had planned to test 64 subjects but was stopped after 35 subjects had been tested due to concerns regarding adverse events. The adverse effects were experienced by 40% of the party pill group and 43% of the combined party pill and alcohol group. The severe adverse events included agitation, anxiety, hallucinations, vomiting and migraine.

16 months following this medical report to New Zealand’s Ministry of Health, on 1 April 2008 BZP and TMPP were classified as a Class C controlled drug under the Misuse of Drugs Act. Class C is comparable to cannabis. The legislation provided a six month amnesty. The amnesty effectively allowed BZP and TMPP to continue to be legal in New Zealand up until 1 October 2008. The law change occurred approximately two years after the Ministry of Health was advised of the severe adverse effects of BZP/TMPP during the clinical trial (the report being dated 24 November 2006).

We have seen that New Zealand government can change legislation fast when they recognise safety risks to its people.  This has occurred with changing firearm laws following the terrorist act in Christchurch.  We have also seen Parliament work fast to change laws regarding harm arising from Covid-19.  Why did Parliament not change laws swiftly following the 24 November 2006 report?  This is not an issue of political party wrongdoing – whether it was National Party in leadership or Labour party in leadership, there is no difference. Ministers are meant to be advised by their department’s executive management.

Why did parliament not swiftly act on these warnings? Why did it take a further two years to outlaw the party pills? Was it through persuasion from important people involved in the party pill business? Or was it material incompetency? Which of the two is the lesser evil? 

All Australian states banned BZP/TFMPP by 1 September 2006. 

New Zealand was on course to ban BZP/TFMPP from 18 December 2007 [1] but relied on Parliament not altering the Bill.  

When government made the decision to ban the substances, why weren’t they taken off the shelves immediately?  Documentation from Parliament confirms the “Expert Advisory Committee on Drugs advised the products pose a “moderate level of harm” and Cabinet has accepted that assessment.  If the assessment had been a high level of harm or a very high level of harm, an immediate recall of the products might well have been deemed appropriate. Legal advice is that this would not be appropriate for products posing less than a high level of harm without going through the appropriate legislative process.” [2]

Why did the EACD consider the harm of BZP/TFMPP  as “moderate” when the 24 November 2006 report to the Ministry of Health provided information that clinical testing had to be abandoned mid-way due to “severe adverse reactions and have marked cardiovascular effects when taken in similar doses to those recommended by manufacturers.”  43% of the subjects suffered these “severe adverse effects”. The report also highlighted there were 80 admissions to Christchurch Hospital Accident and Emergency (A&E) in 2005 which were linked to BZP/TFMPP. There was 15 seizures and two admissions to intensive care. This was results from a single A&E clinic.  What was the totality of admissions throughout the country?

On 1 October 2008 when BZP and TMFPP was finally classified as illegal to have in one’s possession – Parliament elected to have the substances classified as a Class C controlled drug.  This is the same level as Cannabis.  This was despite knowledge that BZP/TMFPP causes psychosis, fits and cardiovascular problems. Why did New Zealand therefore not follow the steps of the United States of America, classifying BZP/TMFPP at the same level as heroin and LSD?

BZP mimics MDMA (ecstasy) and amphetamine. MDMA and amphetamine type substances are categorised as Class B in New Zealand.  The Class category determines harshness of penalties for possession, supplying, manufacturing and importation.

The Death of Stephen Jon Bellingham

This change in the law was 12 months after the police shooting of Stephen Jon Bellingham in Christchurch, New Zealand, on 26 November 2007.  Stephen was fatally shot by Officer A following his actions of smashing his own van windows with a golf club, and then attempting to break into a vehicle that was parked on the street.  It is important to note the police investigation found Stephen had not threatened any person prior to Officer A arriving at the scene. Officer A, despite having two other staff members 60 seconds away, confronted Stephen by standing within 5 metres of him, pointing a loaded Glock handgun in Stephen’s direction.

Stephen had no history of violence. The Coroner’s Court found he was known to be a peacemaker, with people describing him as friendly and well liked. He had no run-ins with law enforcement and no criminal history or psychiatric history.

Following the police shooting of Stephen, the police conducted their own homicide investigation and eventually prepared a report to the Coroner. The police members who investigated this homicide (to see if Officer A was culpable of manslaughter), were colleagues of Officer A.  By not using staff who had no relationship with Officer A, the police breached Police Commissioner’s policy.

The police homicide investigation found that a flatmate had moved into Stephen’s flat one week prior to the shooting incident. This flatmate had met Stephen a week earlier after she heard Stephen was advertising a bedroom for rent. She admitted that she provided Stephen BZP/TFMPP party pills, as she got them free, direct from the manufacturer. The flatmate had also offered these party pills to others, without cost. Prior to the flatmate moving in, there was no evidence suggesting at that time Stephen was using party pills. He was known to be a recreational cannabis user.

The flatmate advised police the party pills she received are “a lot stronger” than what you buy at the shops. She also told police she was aware Stephen had not been able to sleep for three days and that he seemed agitated. She gave him more pills on the same day that his behaviour was reported to police of smashing windows of his van.

Police tracked down the manufacturer of the party pills who was co-operative with the police investigation (the party pills were legal at this time). He advised police he had known the flatmate for about 6 or 7 years. The manufacturer of these party pills owned massage parlours. He last saw her about “a week or a few days before the shooting” and provided her two packets containing pills with 200 milligrams of BZP and two packets containing a combination of BZP/TFMPP (200mg/50mg). He advised police ordinarily the packets would sell for $40.

The flatmate advised she had given Stephen both types of pills – the BZP and also the combination BZP/TFMPP.

The police sent these pills to the ESR for analysis. Surprisingly the Coroner’s report did not advise the results of ESR’s testing and surprisingly, the Coroner did not seek medical reports on the effects that BZP may have had upon Stephen. Despite the pathologist’s report identifying BZP was found in Stephen’s blood, there was no enquiry by the Coroner to understand the effects BZP would have had upon Stephen. This was unusual – especially that Stephen’s behaviour was described as erratic and completely out of character.

The role of a Coroner’s court is to provide information that may prevent a death re-occurring. It is the opinion of APAML that the Coroner did not fulfil this function. If the Coroner’s Report had advised the need to ensure the sale of any recreational substances or ‘legal highs’ must first have clinical testing, this could have prevented the deaths of 40-45 persons that were linked to synthetic cannabis (Reference). This is because once BZP/TFMPP was made illegal, the industry moved to synthetic cannabis (2008/2009). 

Returning to the Coroner’s inquest in 2008 into Stephen Bellingham’s death, though the ESR provided evidence at the Coroner’s hearing in regards to forensic firearms analysis, there was no evidence of ESR’s clinical testing report sent to the Ministry of Health on 24 November 2006. This report described the severe adverse effects of BZP/TFMPP, which was obviously relevant to the circumstances of Stephen’s death.  Was the failure of ESR to inform the Coroner intentional, or was it simply an oversight?  Did the government not want to draw attention to the fact that their lack of action in banning BZP/TMFPP, potentially contributed to the death of Stephen Bellingham?

Police Homicide Investigation

It was not only the Coroner’s Court that failed to properly examine the circumstances leading up to Stephen’s death. The police investigation into Officer A’s actions included statements from witnesses who stated that after Officer A had shot and killed Stephen, he then removed the hammer from Stephen’s hand and kicked it along the road.  Officer A then told his police colleagues, including the Communications Inspector, that he shot Stephen after Stephen threw the hammer. 

One witness described seeing Officer A flick the hammer out of Stephen’s hand when Stephen fell onto the road. Another witness described Officer A kicking the hammer behind him. She could see his body movements of scuffing his boots on the road and hearing the sound of the hammer sliding on the road.

Though there were a number of witnesses to the event, there were no witnesses who described Stephen as throwing the hammer. When the Coroner stated in his report and named two witnesses who had indicated the hammer was thrown, the Coroner was mistaken.  No witness had seen Stephen throw the hammer.  All witnesses stated Stephen had the hammer in his hand at the time he was shot.  The only person that claimed Stephen threw the hammer was Officer A.   

The only finding in the investigation that the hammer was thrown was from the ESR scientist who based his evidence on the position of where the hammer was found at the scene. The ESR scientist provided in his statement – “The presence of the hammer in the middle of Stanmore Road, in a position beyond Officer A’s car and beyond the position of the fired cartridge cases, very strongly supports the proposition that the hammer has been thrown by Mr Bellingham in the direction of Officer A.”

Investigation Report from the Independent Police Conduct Authority

Though the Coroner stated he – “acknowledged the Independent Police Conduct Authority [“IPCA’] has carried out an extensive investigation and have reported their findings, Conclusions and Recommendations” – he failed to acknowledge the following findings and observations that were contained in the IPCA investigation report – (Ref: https://risks360.com/obt)

  • Before removing the firearm from the safe at the commencement of his shift, Officer A failed to note the removal of the pistol in the arms register (IPCAR, Para 184).
  • Officer A took it upon himself to attend the incident (Refer IPCAR para 81 and Integrated Timeline pgs 17-18, – 8.36:28pm). SouthComms had not requested Officer A to attend.
  • Before leaving the police station Officer A premeditated the potential for him to present a firearm. In doing so he armed himself with a Glock pistol that he had stored in the glovebox of his vehicle (IPCAR, para 27 & 86).
  • Unsafe storage of Officer A’s pistol in this manner was not only a breach of section 28 of the Arms Regulations 1992 but also a breach of police policy GIF059 and GIF060 (IPCAR, para 182).
  • After placing his Glock pistol in his hip holster, Officer A then travelled to the incident but failed to advise his Command Centre (SouthComms) that he was armed and in attendance (IPCAR, para’s 21 & 197).
  • Serious incidents, such as those requiring an armed response, are escalated to a Comms Supervisor (usually an inspector) and may also be passed to an incident controller at the scene. For this to occur the Comms Centre must be advised that an officer in the field is available to take command (para 75, IPCA report). The IPCA found Officer A did not advise SouthComms he was attending, nor did he advise SouthComms that he was armed (IPCA report, para’s 21 & 197).
  • The IPCA investigation concluded that Officer A had the opportunity to advise SouthComms that he was on his way to the scene, and to obtain additional information while enroute but did not do so (IPCAR, Para 78).
  • Officer A was asked whether he was aware of the requirement to advise the Communications Supervisor that he had armed himself. He said he was “not aware of any policy that I have to advise Comms”… (IPCAR, Para 197).
  • Officer A took it upon himself to deal with the incident as he chose to. Each of his decisions were outside of police best practice and policy. His decisions and actions were conducted outside the lawful execution of his duties. (Refer IPCA report, para 75).
  • The Police Command Centre (SouthComms) had directed Officers B & C to attend the incident. Officers B & C confirmed when they arrived at the scene, they found Officer A firing his pistol. They radioed this back to SouthComms.
  • As Senior Field Supervisor, Officer A would have been advised of any serious incident requiring him to take command and control. This did not happen (IPCAR, Para 24). Command of the incident was assigned to the Police Communications dispatcher, known as SouthComms (IPCAR, Para 75). Officer A was not therefore authorised to take control and command.
  • It was the view of the IPCA that had Officer A provided instructions to Officers B&C who were attending the incident, the potential existed for Stephen to have been contained without the use of a firearm (IPCAR para 149). Having made a decision to approach Stephen at close quarters without support, Officer A limited his options and effectively negated the opportunity to tactically deploy Officers B&C to contain the situation and await assistance (IPCAR para 150).
  • The IPCA investigation found that Officer A had failed to comply with the police ‘best practice’ approach of ‘cordon and containment’ (IPCAR para’s 147 & 148).
  • Despite the Dog Handler being approximately 2.5km and en-route to the incident (IPCAR, para 154), Officer A rushed to the scene and confronted Stephen with a firearm (IPCAR para’s 147, 148, 218).
  • The IPCA found, “The use of the police dog clearly would have been a viable option in the circumstances”.
  • Officer A made decisions that placed him in a confrontational position. Officer A’s confrontational approach reduced other options available to him (IPCAR para 218).
  • Despite officers being in the immediate vicinity and only seconds from arriving at the scene, Officer A did not apply police best practice of Cordon and Containment. In doing so he failed to follow best practice guidelines (IPCAR, Para 147).
  • The Crown Solicitor found that Officer A’s decision to confront Stephen with a firearm left Officer A with only one option and that was to use lethal force.
  • The IPCA found Officer A should have communicated his intentions to SouthComms including the fact he was armed. Officer A did not do so. Officer A also failed to utilise available resources and failed to communicate any plan of action to attending Officers B&C. These options and resources included containment (IPCAR para 217).
  • Officer A did not have authority to control and co-ordinate the incident. SouthComms had authorised control in handling the incident (IPCAR, Paras 20 & 21).

It is the view of APAML (the author of this article), that as Officer A was not acting under a lawful command and by arming himself in breach of police policy, he was not acting in the lawful execution of his duty.

Tampering with Evidence

In December 2021, an investigator acting on behalf of the parents of Stephen, accessed the police investigation file and discovered new evidence that police had not previously made known.  This new evidence is that witnesses describe Officer A moving the hammer from Stephen’s hand immediately after Stephen was shot, then kicked the hammer across the road.  There is also evidence of bullet shell casings going “missing” following forensic analysis and Officer A’s Glock not being kept as an exhibit, despite the Coroner’s hearing and the Independent Police Conduct Authority’s investigation yet to be concluded. 

Though the Officer in Charge of the Scene arrived almost immediately following the shooting, the Glock was not seized as an exhibit from Officer A.  Instead Officer A kept it on his person and travelled back to the police station.

Finally, new evidence not previously highlighted to the Coroner is from a firearms forensic report which shows the description of ammunition retrieved from the scene was different to the ammunition that police sent to forensics.  The differences in description are that the bullets and shell casings found at the scene were not the type used by law enforcement.  This indicates Officer A was not using a police issued firearm and was most likely his personal handgun.  Despite the firearms forensic specialist requesting that all firearm exhibits be sent to him “as soon as practicable”, the police instead sent all exhibits to their police armourer for examination. After examining the exhibits, the police armourer then forwarded the exhibits to the firearms forensic specialist.   

Falsifying Witness Testimony

There is a lot of information in the homicide police investigation file to show that police have covered-up the wrongdoing of Officer A and the investigating police officers have collaborated to discredit witnesses and side with Officer A. Witnesses advised the Independent Police Conduct Authority that interviewing officers would not record their comments correctly when taking their witness statements and that they (the witnesses) had not provided some comments contained in their statement. 

The constable who was assigned Officer in Charge of Exhibits, spent two hours in Officer A’s presence following the shooting.  Within half an hour of leaving Officer A’s presence, the constable was assigned to take a witness statement from one of the primary witnesses who was standing a short distance from Officer A.  When spoken to by the Independent Police Conduct Authority (IPCA) this witness advised the IPCA that she had not stated in her statement “and he suddenly launched himself (at the Policeman)”. This witness also advised police who reinterviewed her, that when her original statement was being taken by the constable, the constable was typing a page whilst the witness was reading her statement and that the constable was putting some pages of the statement into a rubbish bin.

There are also significant credibility issues within Officer A’s statement. 

When questioned on where he uplifted the firearm from, Officer A stated it was “lying loose” – “the CRN Glock which was just lying loose. I took that out, checked and cleared it, retrieved the two magazines and took the rounds out of it and put it in my empty magazine, …”

It is highly unlikely the Glock was just “lying loose” in the rear of the ‘reserve resource’ vehicle. If the Glock firearm was “lying loose”, it would be another breach of police policy. The police interviewer did not question Officer A further on this point.

Officer A also refers at least twice to carrying what appears to be his personal Glock magazine. He described that he uses an additional magazine and removes the ammunition to reload into “my empty magazine”, in case the springs are faulty on the other magazines. Does this mean he personally owned a Glock at the time of shooting Stephen?  The police interviewer did not question Officer A further on this point.

Officer A claimed he was at the scene in a “reserve resource” vehicle which contains firearms, batons, helmets and shields. He claims this was where he obtained the Glock which was “lying loose” in the rear of the vehicle.  When the police interviewer asked Officer A, why did he not use a shield, Officer A replied, “I don’t think there was any in there”.  This is despite Officer A earlier in his statement advising he had checked the resourcing equipment at the commencement of his shift.  Again, the police interviewer did not question Officer A further on this contradictory point.

The ESR firearms forensic specialist attended the scene. When he left he made a request that Officer A’s Glock, magazine, spare magazine, the four spent cartridges at the scene and additional ammunition for firearm testing be sent to him at the ESR for analysis.  He asked for this to be done “as soon as practicable”. The police investigation report shows that instead of complying with that request, the Officer in Charge of Exhibits and the Officer in Charge of the homicide investigation, first sent all of those exhibits to the NZ Police Armourer in Wellington, requesting – (see: Police Document 10461).

“PURPOSE OF EXAMINATION

The purpose of this examination is to determine;

  • whether the Glock 9mm pistol is operationally sound and in good order
  • whether the ammunition in the magazine is suitable for the firearm

EXHIBITS

The following exhibits have been submitted for examination;

POAOI0 Glock 9mm pistol (BME937)

POAO11 Glock 9mm magazine (containing 10 live 9mm cartridges)

POAO12 9mm cartridge (live)

STE011 spent 9mm cartridge

STE012 spent 9mm cartridge

STE013 spent 9mm cartridge

STE014 spent 9mm cartridge

UPON COMPLETION OF EXAMINATION

Upon completion of your examination, all the exhibits and a copy of your report need to be forwarded on to Kevin WALSH at ESR Auckland in order for him to complete a forensic examination of the exhibits.

Accompanying this report is a copy of the report to be forwarded on to ESR along with the Glock, magazine, ammunition and spent casings.”

Findings of ESR Forensic Firearms Specialist

The resulting ESR report made no mention of the markings on the casings from the tested rounds matching the markings on the spent shell casings found at the scene. Though the ESR firearms specialist had test fired five live rounds that were from the magazine that Officer A allegedly had at the scene, the five tested shells went “missing” from the police investigation file.

The ESR report also found there was a difference between the ammunition in the Glock magazine sent to ESR, and ammunition casings found at the scene.  The cartridges at the scene were not described as Hydrashok.  Hydrashok is ammunition used for law enforcement purposes.  (See Police Document 10595).

Were the differences in these cartridges simply a typo by the ESR firearms forensic analyst, or was it a fact that the ammunition in the Glock magazine were different to the ammunition found at the scene?  Was this why the exhibits were first sent to the Police Armourer before being sent to the ESR forensic specialist?  Was this also the reason why there was no description by the ESR specialist on the markings of the shell casings? Was it also the reason why the five tested shells undertaken by the ESR forensic specialist went missing? (Refer Police Document 10591).

The bullet that was retrieved from Stephen’s body during the pathologist examination was not included in the ESR’s report under ‘Examination of Firearm and Ammunition’.  The ESR forensic specialist gave no detail of this bullet. Why not? Of all the ammunition examined, this was the most important ammunition for the ESR scientist to examine and to comment on. This is because it was the bullet that caused the death of Stephen. Why did the ESR scientist exclude this bullet from the detail of his examination?

The ricochet bullet located at the scene 47.5 metres from the shooting was also not detailed in the ESR forensic report under the heading ‘Examination of Firearm and Ammunition’. Why not?

Why did the Coroner not identify the omission of these material aspects from the ESR forensic report?

There is certainly a lot of discrepancy that is yet to be explained.

Failing to Maintain Exhibits

When the Glock and magazine exhibits were returned from ESR, the Officer in Charge of the homicide investigation failed to maintain the Glock and magazine as exhibits. He simply handed them to a sergeant for availability for police operational use. This was despite the Coroner’s hearing yet to be held and the IPCA investigation yet to be concluded. Why did the Officer in Charge of the homicide investigation fail to maintain the firearm and magazine as an exhibit? (See Police Document 10591).

What was the State of Mind of Officer A?

On 25 September 2007, a day before the shooting, the front page of the Christchurch Press detailed an article with a headline ‘”Shoot ’em”, says police email’.  The news report stated Christchurch Police Officers were circulating an email with gory photos of injuries suffered by a police officer from the United States. The US officer had attempted to disarm a person with a knife. The photos were not included in the Christchurch Press article but were circulated amongst the Christchurch police officers. The email included the comments – “To all the idiots out there who always say, ‘Why did the cops have to shoot him’? He only had a (insert your choice of weapons here ie, knife, bat, club whatever). He didn’t have to be shot’ To that, I respond, ‘Tough crap, shoot ‘em’”. Officer A at the time of the shooting held the rank of senior sergeant. The article refers to a senior sergeant being involved in the email chain.  (See Christchurch Press Article). Was there any connection between this article and Officer A? During Officer A’s statement, the police interviewer never raised the question.

Miscarriage of Justice

When Stephen’s parents were first spoken to by a senior member of the IPCA and asked, “What do you want out of this”? – the mother responded, “All we want is the truth”.  The IPCA member responded, “That is an old fashioned way of looking at things”. 

Documents 10461, 10591 and 10595 were obtained from the original police investigation file.    

They have now been forwarded back to the NZ Police, along with references to the eye-witness statements describing Officer A removing the hammer from Stephen’s hand and kicking it across the road.

The police have also been referred to the material discrepancies of what eye witnesses advised police in their original statements and what police officers recorded. 

The Right to Life

On a separate police shooting, known as the ‘shooting of Steven Wallace’, a significant High Court finding was made in August 2021.  The finding (https://risks360.com/Wallace-HighCourt-Finding) determined that when a person’s life is taken by a state agency, there is an implied duty to properly and openly investigate the death for which the state might bear some responsibility. This was considered to be essential for relatives of the deceased, as well as ensuring public confidence in the administration of justice.  The Court referred to the need for an investigation to have objective oversight. 

The judgement relied on overseas cases, noting that the cases recognised that if an investigation is not independent in the required sense, then it will also not be regarded as effective. That is because what is at stake is “nothing less than public confidence in the state’s monopoly on the use of force”.   

For an independent investigation to be effective, this means “…capable of leading to a determination of whether the force used was or was not justified in the circumstances … and to the identification and punishment of those responsible …. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death … Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible, will risk falling foul of this standard.

This finding means all investigations of police shootings undertaken by police have been a breach of New Zealand’s Bill of Rights, with the breaches consistently occurring over a 30-year period.  The breaches relate to Section 8 of the Bill of Rights Act 1990 namely the “Right not to be Deprived of Life”. In regards to the police shooting of Steven Wallace, which occurred 20 years earlier, the High Court finding was – “The Police homicide investigation was not (and could not be) sufficiently independent and so, was not effective or accountable.”

The mother of Steven Wallace pursued a private prosecution against the police officer who fired the fatal shots.  The High Court finding was that because the Crown did not instigate or support the private prosecution, the IPCA investigation and the Coroner’s Inquest were similarly not effective as they had relied on the findings of the private prosecution. At paragraph 638 of the finding – “Both the subsequent inquest and the IPCA investigation were, similarly, not effective because both had proceeded—on the question of self defence—on the basis of the verdict returned at the criminal trial …”

 

The Crown’s Duty of Protection

The Crown knew, or should have known, when police conduct their own investigation into a police shooting, it was a breach of Section 8 of the Bill of Rights – The Right not to be Deprived of Life – which requires, “No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.”

It should not have required the mother of Steven Wallace to seek a High Court finding to make these observations. When a state agency takes the life of another, of course the investigation should be objectively independent. It is common sense and is a principle of natural justice.

Denying the principles of natural or fundamental justice is, in itself, a miscarriage of justice.

Lawyer Grant Illingworth QC has previously provided commentary on the role of the Crown [3] – It is a fundamental obligation of the government to protect us all. In law, we are all – even visitors and those who do not have the right to live here are subjects of the Crown. This principle, concerning the responsibility of government, was established in 1608 in a famous decision known as Calvin’s case. One of the most important aspects of that case was that it identified the essential features of the relationship between the individual and the sovereign.

The individual, whether resident or visitor, owes allegiance to the sovereign; the sovereign owes a reciprocal obligation, which is to govern and protect the Crown’s subjects.  The judgement in Calvin’s case says this: “But between the Sovereign and the subject there is without comparison a higher and greater connexion; for as the subject oweth to the King his true and faith ligeance and obedience, so the Sovereign is to govern and protect his subjects.”

The Crown’s duty to protect its subjects applies to everyone, but it is naturally most relevant to the weak, the vulnerable and the defenceless, including the elderly, those suffering serious illness and those who have lost the ability to think clearly and make informed decisions for themselves. 

Sir Geoffrey Palmer has also commented on the role of the Crown:

Rt Hon Sir Geoffrey Palmer: One of the complexities of New Zealand relates to the expression, the Crown, well the Crown is a very complicated entity, the Crown wears many hats, its not just the crown on the head of the Queen, it is in a sense the government and how do you distinguish the crown from the government. Where does one start and the other end.

Rt Hon Dame Sian Elias: Well the Crown is the successor of the British Crown and the Queen Victoria, was of course a party to the treaty. So the Crown, the executive in New Zealand if you like is the inheritor of the obligations that the Queen took on in 1840.

Rt Hon Sir Geoffrey Palmer: The Crown is also the the principle part of the justice system, the judges are Her Majestys judges, the Queen is the fountainhead of justice. Ah, the public service operates in the name of The Crown and so The Crown is the head of state as well.

Rt Hon Dame Sian Elias: When I use the Crown, I’m really talking about the executive government but, that, that’s perhaps a technical use and maybe people use the Crown to mean the state, because that’s also possible. In which case it would embrace all branches of government, legislative, executive and judicial.

Rt Hon Sir Geoffrey Palmer: So you see, these ideas merge together, they become quite complicated and people don’t understand them. It’s, it’s not surprising.

(Reference: https://risks360.com/the-crown-nz)

The comment from Dame Sian Elias that the Crown “would embrace all branches of government, legislative, executive and judicial” is where the problem exists for New Zealanders struggling to fight for justice and/or bring cases against the Crown for injustices. 

As the Crown holds the status of legislative, executive and judicial – this is the same as one holding the status of ‘judge, jury and executioner’. There is no separation of powers. 

In 2015 the parents of Stephen Bellingham sought legal aid to bring a claim that Officer A failed to follow police policy and best practice which consequently deprived Stephen of his life. In essence, a breach of section 8 of the Bill of Rights – the Right to Life. The Crown considered the request and denied it.

Given that the Crown had access to the investigation report from the Independent Police Conduct Authority which revealed many breaches of policy by Officer A, did the Crown consider the fundamental principles of justice when it denied Stephen’s parents their pursuit for justice? Given the recent High Court finding, obviously not.

The establishment of a dedicated and independent anti-corruption agency for New Zealand would provide its people better protection from oppressive actions by the state’s agencies and/or agents and Crown.

Formalising the Complaint of Miscarriage of Justice

On 7 January 2022, the family’s investigator walked into a police station and provided a video statement of complaint, describing the new evidence.  The evidence having originated in the original police homicide investigation file.  At the end of the interview/discussion with a detective, the investigator had asked for a copy of the video statement and though a DVD was provided, the DVD was later found to be blank.  Though the investigator provided the detective a copy of the evidential records, the police failed to provide a receipt.  

One week has passed and there has been no contact by police to inform Stephen’s parents of their intended actions.

The family continue to patiently wait for some type of acknowledgement.

Denying New Zealanders a Dedicated Anti-Corruption Agency

Is a government more concerned for its reputation, as opposed to the harm it may cause to its people?

By not resourcing a dedicated anti-corruption agency, there is no identifying, measuring, reporting or prosecuting of corruption. There is therefore no deterrent, leading to material acts of corruption to go undetected.

By not having a dedicated anti-corruption agency to identify, measure and report acts of corruption, it is no surprise that New Zealand represents as the least corrupt country in the world. [4]

Operating without a dedicated anti-corruption agency presents high risk of people being subject to oppressive actions by government officials. 

The people of New Zealand need to have greater confidence in government accountability.  

If New Zealand wants to objectively convince the world it is one of the least corrupt countries, it has to do more than add a title ‘anti corruption agency’ to the existing Serious Fraud Office (the SFO).  The SFO are already under-resourced in managing serious fraud, investigating a mere 1% to 5% of complaints received. These statistics are verified from the SFO’s annual reports. Adding the title “& Bribery and Corruption” to the SFO’s responsibilities does nothing in tackling the issues of corruption. It just gives a perception that New Zealand has resources and systems in place.

The way forward for the Independent Police Conduct Authority

Over the past 30 years, when a police shooting has occurred, the IPCA have always allowed police to lead investigations.  Now that this High Court finding in regards to New Zealand’s Bill of Rights and the Right to Life have been published, how will the Independent Police Conduct Authority address these serious issues? The issues are that for over 30 years the police have been investigating their fatal police shootings which have been ruled by the High Court as not meeting requirements of “effectively independent”

What has the IPCA already actioned to ensure breaches of the Bill of Rights do not continue? 

What other police shootings have been questionable in investigation findings?  

Will we see the formation of a dedicated anti-corruption agency in New Zealand, or will we see the Independent Police Conduct Authority once again tell New Zealanders they will restructure and get it right this time. Such a statement would be turning the clock back 20 years which was when the Gallen Review was undertaken (referenced below).  

Following the Gallen Review New Zealand saw the Police Conduct Authority add the word ‘Independent’ to its title, which resulted in no material change. An opportunity to address the real issues that the people of New Zealand complained of, was lost. 

Twenty years later New Zealand will witness another attempt for the IPCA to understand the meaning of ‘independency’ and operate with policies, procedures and practices considered to be objectively independent.

Safer-Communities-Together

Everyone needs to be safe on the street – police officers and members of the public. 

The public need to have trust in the integrity of the police and the police need to rely on the public as their eyes and ears.  

In the Bellingham shooting those who were at risk from Officer A’s actions included Officer A, Stephen Bellingham and the innocent bystanders (children and adults) who witnessed the events unfold.

Some witnesses were standing 10-20 metres from Officer A’s position. It was extremely fortunate no innocent bystanders suffered death or serious bodily injury resulting from ricochets.  Of the four shots fired, two bullets were never located and one was found 47.5 metres away, lying in the middle of Stanmore Road.

An Inconvenient Truth

What will be the general reaction to this article?  A “shoot the messenger” response?  Discredit the voice maker? 

An inconvenient truth about corruption is that it is a symptom of existing problems, not a cause of poverty or slow development. Typically these underlying issues are political in nature. They are related to lack of incentives, lack of programmatic (rather than patronage) politics and/or lack of checks and balances on politicians who, faced with a choice, continue to protect their own interests and those of the elites who support them, in the absence of any good reason to do anything different. [5].  

Our greatest glory is not in never fallingbut in rising every time we fall. — Confucius.

References

NZ IPCA Report on the shooting of Stephen Bellingham – https://risks360.com/obt

High Court finding that Police breach Bill of Rights ‘Right to Life’, when investigating their own shootings. – https://risks360.com/Wallace-HighCourt-Finding

Gallen Review into Independent Police Conduct Authority – https://risks360.com/gallen-enquiry-IPCA

For further information contact: media@apaml.com or phone +64 9 889 0883.