The Extent of Harm when Evil Rises Above Good

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].