Abbott Murder Trial: Police Used Excessive Force

The trial of Senior Constable Keith Abbott, who shot dead 23 year old Steven Wallace in Waitara on 30 April 2000, opened before Justice Chambers and a packed Courtroom 3 at the High Court in Wellington today. Security was tight, with members of the public and press screened with metal detectors as they filed into the courtroom, and a heavy police presence.

Members of Wallace’s family sat in the cramped public gallery to hear the first day of evidence. After an internal police investigation cleared Abbott, Wallace’s family brought a private prosecution against the police officer, the first of its kind in New Zealand.

Constable Abbott faces charges of murder and manslaughter in connection with Wallace’s shooting. Abbott, after entering not guilty pleas to both charges against him, sat impassively behind defence barristers Susan Hughes and Patrick Mooney, as the prosecution began its case.

The prosecution team, led by John Rowan QC assisted by Michael Behrens QC and Debbie Godlet, opened its case by recounting its version of the events of the early morning of 30 April 2000.

Rowan told the Court how a man the police identified after the shooting as Wallace had been reported smashing windows at the Waitara Police Station on Dommett Street at around 3.45am. Wallace then proceeded to McLean Street where he smashed shop windows with a baseball bat and a golf club, and the windows of a police car (containing Constables Dombroski and Herbert) dispatched from New Plymouth to apprehend him.

Abbott had witnessed this incident from his car. Dombroski, who left Herbert in the police car after they reversed away from Wallace, then met Abbott at Waitara Police Station where the two men picked up Glock 9mm semi automatic pistols and ammunition before driving together to intercept Wallace at the intersection of McLean and Grey streets. It was here that Abbott fatally shot Wallace 4 times shortly after 4am.

John Rowan QC showed the jury where each of the 4 hollow-nosed bullets had struck Wallace’s body. The first two, fired almost simultaneously from a distance of about 5 metres, had shattered Wallace’s forearm. The third shot, which in the prosecution’s case is the fatal wound, had entered Wallace’s sternum angling upwards. The prosecution asserts that the fourth and final shot could only have been fired from behind Wallace when he was bent over facing away from Abbott.

Central to the prosecution’s case is the allegation that Abbott’s response, in shooting a man armed with a “non distance weapon” like a baseball bat, was unreasonable and excessive given the extent of the threat posed by Wallace. The prosecution claims that Abbott had no justification for firing at Wallace at all. Instead, Abbott fired 4 times at Wallace with the threat posed diminishing with every shot, although the lethal force used remained the same.

The Court was told that Abbott was an experienced police officer of 15 years standing, a skilled marksman, a member of the Armed Offenders Squad (AOS) for 13 years, and a brown belt in karate who was extremely fit for his age.

The prosecution raised the question of why Abbott, as the senior officer on the scene, did not coordinate a plan to contain Wallace until the imminent arrival of a police dog handler and backup from New Plymouth.

In addition to their pistols, Abbott had a long handled baton, and both Abbott and Dombroski were carrying pepper spray and handcuffs. Rowan told the jury that police training videos show two constables subduing a man armed with a baseball bat with pepper spray.

There were also riot shields, helmets and body armour at the police station, which were left untouched by Abbott and Dombroski, Rowan claimed. In short, the prosecution suggests that Abbott had a number of alternative options in containing any threat posed by Wallace: instead, the last and lethal option was the first and only one used by Abbott, said Rowan.

After the shooting, Rowan told the jury how the police waited for 17 minutes before attempting to administer any first aid to Wallace. Steven Wallace was taken by ambulance to Taranaki Base Hospital where he died of his injuries at approximately 9.15 am.

Earlier in the day, the jury of 8 men and 4 women who will decide the charges against Abbott was sworn in. The prosecution intends to call almost 50 witnesses including expert evidence on forensics, which will examine the bulletholes in Wallace’s sweatshirt. It appears that the prosecution will also put police practice and procedure in similar circumstances under the microscope, in calling expert witnesses on police policy and training.

After the prosecution’s opening statement, Patrick Mooney for the defence made a brief submission focussing on the nature of the self-defence plea, which Abbott intends to rely upon to justify the shooting. In particular, Mooney reminded the jury that the prosecution retained the burden of showing beyond reasonable doubt that Abbott had not been acting in self defence at the time he shot Wallace. If the prosecution could not discharge this burden, then the charges against Constable Abbott must fail.

The prosecution began its evidence by showing the Court a video of Waitara and various views of the streets and buildings, which provide the backdrop to the shooting.

The prosecution then called Detective Keith Borrell, who took charge of the exhibits secured at the scene of the shooting, and had executed a search warrant to secure the telephone records of Abbott’s mobile phone.

Susan Hughes, cross-examining for the defence, probed a warning shot which the defence claims was fired into the air by Abbott before he first fired at Wallace’s body. Under cross-examination, Borrell admitted that the fact that a fifth bullet had not been recovered at the scene did not conclusively demonstrate that Abbott had not fired a warning shot.

The defence then sought to establish that the police had no general policy of “shoot to kill” or “shoot to wound”: Hughes suggested that police policy was “shoot to stop” which involved shooting multiple shots at the target’s upper body, to minimise the risk of hitting bystanders.

Borrell described the “shoot, don’t shoot” drills practiced by police during training, and the factors such as locality and danger to self and others which are typically taken into account by police before making the decision to shoot. The tenor of the defence’s questions appears to be directed to show that Wallace posed a danger to Waitara residents, and that this was a reasonable factor for Abbott to consider in deciding whether to shoot. Despite the fact that it was 4am, Waitara’s main street was a mixed residential and business area, and it was conceivable that spectators could have been drawn to see what was going on.

The prosecution case is expected to last for two weeks, with the trial estimated to run for 3 weeks in total. The defence’s cross-examination of Detective Borrell will continue at 10am tomorrow (Tuesday) morning.

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