New Zealand Bill of Rights Act 1990 (BORA), s 8 (right to life) – civil proceedings against the Crown – self-defence (Crimes Act 1961, s 48) in civil context – burden of proof in s 8 BORA proceedings where self-defence raised – State obligation to investigate the taking of life in its name
Wallace v Attorney-General  NZSC 66
In 2000, Steven Wallace was shot dead by Constable Abbott whilst on a rampage in Waitara. There was no police or Crown prosecution.
In 2001, Wallace’s father, James Wallace, commenced a private prosecution against Constable Abbott for murder. After obtaining consent from the High Court to file an indictment, James Wallace invited the Crown to take charge of the prosecution or fund his conduct of it. The Solicitor-General declined.
At trial, Constable Abbott’s defence was the justification of self-defence, on the basis he had used such force, in the circumstances that he believed them to be, that was reasonable to use (s 48(1) Crimes Act 1961). The jury found him not guilty.
In 2014, Wallace’s mother, Raewyn Wallace, commenced civil proceedings against the Crown, alleging breach of the right to life, protected by s 8 of the New Zealand Bill of Rights Act 1990 (BORA). Raewyn Wallace also challenged the efficacy of subsequent investigations (by the Coroner and Independent Police Conduct Authority (IPCA), which did not revisit the issue of self-defence) and the legality of the Solicitor-General’s refusal to take control of the prosecutions.
The High Court held self-defence in a civil context involves an additional objective requirement (the understanding of the relevant circumstances must be honestly held and reasonable), and the onus was on the defendant to make out self-defence on the balance of probabilities.
The court found Constable Abbott had acted in self-defence throughout. It was accepted s 8 of BORA implied a State obligation to investigate the taking of a life in its name. Raewyn Wallace was successful in obtaining declarations that there had not been an investigation into Steven’s death (the privately prosecuted trial could not satisfy the State’s obligation) that complied with s 8, and that the Solicitor-General failed to give adequate reasons for the refusal to take over the private prosecution.
Raewyn Wallace appealed and the Crown cross-appealed. The Court of Appeal found for the Crown in all matters. It rejected the High Court’s introduction of an additional objective requirement into self-defence and the reversal of the onus of proof. The court found the criminal trial, the Coroner’s inquest and the IPCA investigation combined adequately met the s 8 BORA obligation to investigate. It was not open to the High Court to reach any findings on the adequacy of the Solicitor-General’s reasons as it was not pleaded and properly before the court.
Raewyn Wallace applied for leave to appeal to the Supreme Court.
Applicable principles: Senior Courts Act 2016, s 74(2)(a) – questions of general importance – s 8 BORA (right to life) – obligation on State to investigate taking of life in its name – Crimes Act 1961. s 48 (self-defence) in civil context – burden of proof.
Held: The application for leave to appeal is dismissed. Only three appeal grounds raise questions of general importance: the additional objective element in self-defence, the reverse onus under s 8 BORA and whether a private prosecution can ever satisfy the s 8 BORA investigation obligation. The court is not satisfied this is an appropriate case to address them. The appeal is unlikely to turn on the first two grounds, given the consistent factual findings in the courts below. There is insufficient merit in the challenge to the Court of Appeal’s conclusions in relation to the s 8 BORA investigation obligation to warrant the grant of leave.