At the conclusion of yesterday’s evidence in the trial of Senior Constable Keith Abbott for the murder of Steven Wallace the difficulty of the jury’s task was shown in sharp relief through the eyes and ears of almost-eye-witness Todd Wilson.
Senior Constable Abbott stands accused of the murder of 23 year old Steven Wallace, whom he shot in Waitara, Taranaki in April 2000. Abbott pleads not guilty to the charges against him, claiming that he acted in self-defence.
Wilson had met Wallace earlier in the evening of the fateful night in The Mill night-club in New Plymouth. Then Wallace had seemed fine he said. After returning to Waitara in the early hours Wilson and four friends, in his Holden Kingswood, came across Wallace in the midst of an attack on an ATM machine. Wallace told them to “fuck off”.
Wilson saw Wallace twice more before he died. Firstly he saw him briefly in McLean St smashing windows. And then later – after dropping off a passenger - Wilson pulled into a side-street, just as Wallace’s sixty four second walk down Mclean Street to his death began.
During Constable Abbott’s evidence in the morning these sixty-four seconds - between the policemen alighting from their patrol car and the volley of fatal shots - seemed to those in the court to have taken an eternity.
Through both examination in chief and cross-examination the jury heard in minute detail about these sixty-four seconds, as it is on these seconds that the trial rests. The Jury is being asked to put itself into Abbott’s mind for this period as he makes the life and death shoot-don’t shoot decision while walking backwards down the street.
By and large the evidence in
the trial addresses what happened, and what Abbott’s options
were during this period. In theory his options – as outlined
by former Police Superintendent Bryan Rowe in evidence
yesterday - were:
- to wait for the police dog handler;
- to use his pepper spray;
- to run away (usually described as making a “tactical retreat”) and make a new plan for tackling Wallace;
- to get his fellow Constable Jason Dombroski to help him tackle Wallace physically using their PR 24 batons;
- to shoot to wound;
- or to shoot to stop.
Under cross-examination Prosecution Counsel John Rowan QC asked Abbott repeatedly if at various points Abbott had considered using these alternative options. Always the answer was no. (see below for a fairly complete transcript of this.)
“But there was time to think of them?” Rowan prodded again and again. “But I didn’t”, replied Abbott.
On its face this might seem a little unreasonable, but then over and above all this talk of “options” there is the question of time. Sixty four seconds of time. Moreover what is at issue in the trial is not what Abbott could have done, but what he was actually thinking.
Abbott said that to him the sixty four seconds, “seemed like ages”. Not so to Wilson and his three friends.
Wilson’s Holden Kingswood pulled into the side-street, around the corner from McLean Street, just as Wallace was crossing the intersection walking towards two policemen. The policemen were pointing something at Wallace, Wilson said. “The tall policeman told us to fuck off or something. But we hung around for a little bit.”
Q: “Did you hear anything?”
A: “Yes. Five or six gun shots. First one then a pause then four or five.”
Under re-examination by the prosecution Wilson was asked to recall the exact time periods again.
Q: “How long was there between losing sight of them and the shots?”
A: “Thirty seconds to one and a half minutes. Not quite a long time.”
Judge Chambers intervened to clarify, “you say quite a long time?”.
A: “No, not quite a long time. Basically we got out of the car and then it was all on.”
Q: “How long was there between the shots.”
A: “Bang….(1 second pause).. then bang, bang, bang, bang.”
And that was what the 64 seconds were like for Wilson. Just enough time to get out of his car, have a quick look around and then bang…. bang, bang, bang, bang. It was “all on”.
And it is this 64 seconds that the Jury is asked to deliberate on in considering its verdict.
What was in Constable Abbott’s mind during this period? Did he fear for his life as he pulled the trigger? Did he think he had any other option available at the precise moment he fired? On this question rests the so-called “absolute defence” to murder of self-defence. If Abbott thought he was in imminent danger of being killed by Wallace, if he thought he had no other option, then he was entitled to pull the trigger to defend himself.
Till now the picture of what happened in these final few moments has been hazy. Several eye-witnesses have given different accounts. And till now Constable Abbott himself has not given evidence in a court.
Today the Jury heard the direct evidence of Constable Abbott on this. Constable Abbott’s description of what happened has already been covered already in… ”Abbott Murder Trial: Constable Abbott Takes The Stand”.
In this evidence Constable Abbott stated clearly that he was in fear for his life when he pulled the trigger, and that he felt he had no other option. Under examination and cross-examination he stuck to his account, as first the defence counsel Susan Hughes, and then Prosecutor John Rowan, who is prosecuting Abbott on behalf of Wallace’s family, canvassed the available options during that crucial sixty four second period.
Firstly there was the option of waiting for the dog handler. Abbott said he didn’t know the handler was on his way. And that said, he had seen an offender fend off two dogs with a baseball bat in the past.
Secondly there was his pepper spray, which he had with him, holstered on his utility belt. Pepper spray has a range of 1 to 3.5 meters.
“Initially when we approached he was well outside that range,” Abbott said. “When he hot within that range I had my weapon drawn and not enough time to draw the pepper spray. Also I knew that it does not always work on a determined goal driven person, intoxicated and the like. Had I used it and it not worked he would have been on top of me.”
“What about the other constables?”
“As far as I was concerned it was just me and Steven Wallace. Constable Herbert was 30ms to my left and Dombroski was to my right somewhere.”
Then there was his PR 24 police baton and his brown belt karate skills. “Why didn’t you defend yourself with your baton,” Hughes asked.
“I consider this outside my capabilities. This was not an ordinary guy. He was enraged. Out of his tree. Even if all three of is had taken him on one of us would have been killed or injured.”
And the “Shoot to wound” option. “In the Armed Offenders Squad we are always taught to shoot for the center body mass. If you shoot for legs, arms or shoulders you can miss.” Abbott said that in a “combat” situation with a pistol there is not enough time to aim, “you shoot instinctively, reflexively is what we say in the AOS.”
Abbott then recounted a previous situation when he was involved in an AOS operation to foil a bank robbery. Then he had been shot at by a bank robber from a distance of just a couple of meters. He responded by shooting four shots with a revolver at the offender, all four shots had missed.
Finally there was the tactical retreat option. “He got to such a point that I could not let him get any closer.” Abbott said that behind him was the kerb, some planters and other obstacles. Had he tripped Wallace would have been on top of him.
And so, sixty four seconds after getting out of his car, and having walked backwards around 50 ms down McLean Street away from Wallace, Abbott says he had no choice but to shoot to stop.
Q: “When you shot him what did he do?”
A: “He dropped the baseball bat. It seemed to happen slowly….. The bat rolled down the camber of the road into the gutter. He slowly sank to his knees. He was still shouting abuse. To my amazement he stood up. Stooped at the waist. I stayed in my location….. Mr Wallace went down on to his hands and knees and then rolled over onto his back…. I called out for an ambulance and stayed in my spot.”
The cross-examination from John Rowan concentrated mainly on the option of tactical withdrawal. The account below starts at the beginning of the sixty-four second period. At times in the exchange Rowan raised questions of consistency between Constable Abbott’s description of events and those of other witnesses, it would appear that the prosecution case will be based upon these inconsistencies.
Rowan: Initially you could have tactically withdrawn?
Abbott: There was no need to.
Rowan: But he was really angry?
Abbott: At that stage there was no reason to withdraw.
Rowan: There was time to consider withdrawing though?
Abbott: I didn’t.
Rowan: And it continued like that, you withdrawing backwards and him coming towards you?
Rowan: He was taking no notice of what you were saying?
Abbott: No he wasn’t.
[McLean Street is four lanes wide with a median strip approximately a lane wide in the middle, overall the street is 17meters wide. ]
Rowan: You were still 20 meters apart when you drew your pistol?
Rowan: There were other options at that stage?
Abbott: Which ones?
Rowan: Tactical withdrawal, going towards Constable Dombroski, calling for assistance.
Abbott: I didn’t consider them.
Rowan: You knew Dombroski was armed and could cover you?
Abbott: He was in a position. But I didn’t know where.
Rowan: You could have called him. You didn’t?
Rowan: You could have moved and didn’t?
Abbott: No I stayed focussed on Mr Wallace.
Rowan: You knew that wracking [Sliding the cocking mechanism backwards and forwards] your pistol would wind him up?
Abbott: No. That was not my intention.
Rowan: You had time to withdraw?
Abbott: I did not consider withdrawing.
Rowan: He was coming at a constant pace?
Rowan: You had to take control?
Rowan: And use Constable Dombroski?
Abbott: I was trying to take control. I did not consider Dombroski at that stage?
Rowan: You could have called Dombroski to assist and formed a quick plan?
Abbott: Things were moving quite fast.
Rowan: But you were the experienced Police Officer who knew how to handle it?
Abbott: I would have hoped so.
Rowan: You said to this person, “put it down you little cunt”?
Abbott: Definitely not.
Rowan: And that wound him up?
Abbott: I did not use that word.
Rowan: And you got a response, “get fucked you bastards”?
Abbott: I told him to put his weapons down.
Rowan: You had room still to move all the way down the street?
Abbott: Things were moving very fast.
Rowan: But you had room to move?
Abbott: I was moving, backwards.
Rowan then asked Abbott about the testimony of two earlier witnesses, Messrs Luxton and Cooper, whose accounts of the final few moments vary slightly from that of Abbott.
Mr Cooper said that rather than walking straight towards Abbott, Wallace had stayed on his own side of the road and that they had tracked down the road walking in roughly parallel tracks.
Mr Luxton, whose flat overlooks the site of the actual shooting, said that before firing his warning shot Abbott had advanced towards Wallace.
According to Abbott both witnesses were partially mistaken about what they saw, though he conceded eventually that as Wallace had died in the middle of the median strip while advancing towards him across the road Wallace must have stayed on his own side of the road for the entire 64 seconds of the standoff.
In relation to Mr Luxton’s evidence Mr Abbott said he had not advanced towards Wallace at any time, other than when he first got out of the police car.
Approaching the final moments in the sixty-four second standoff the question line of the prosecution, and the answers from Abbott, remained the same.
Rowan: You could have moved towards Constable Dombroski?
Abbott: I didn’t
Rowan: Surely at some stage you must have looked to see where Constable Dombroski was and what he was doing?
Abbott: No I didn’t?
Rowan: You must have wanted his help?
Abbott: It would have been helpful.
Rowan: Do you accept that at the time you fired the warning shot you could have moved away from Mr Wallace?
Rowan: If the separation was 20 meters and this man had a baseball bat, there was no reason to fire a warning shot at him?
Abbott: I never fired a warning shot at him. I may have been wrong about the 20 meters.
Rowan: You had room to move laterally [sideways]?
Rowan: You could have glanced around and moved backwards.
Abbott: No I didn’t.
Rowan: But you had time to orientate yourself?
Rowan: The pace of his approach after the warning shot did not speed up did it?
Abbott: I got the distinct impression that it did. Along with his determination.
Rowan: You still had time to move quickly out of his path?
THE FATAL SHOTS
Nearing the end of the cross-examination Rowan question Abbott on the actual shooting. The prosecution alleges that the third shot of four was the fatal shot, and that there was a pause between the first two shots and the second two shots.
Rowan: Is your training to fire a double tap? [A double tap is two shots in rapid succession]
Abbott: We do fire double taps. The main objective though is to stop the threat.
Rowan: You started your fire with a double tap?
Abbott: I recall three shots equally spaced. Bang. Bang. Bang.
Rowan: Do you accept four shots were fired.
Rowan: Do you accept the evidence of pathologist Dr Thompson that there was a space between the shots? [Note: The Defence is going to call its own pathologist who has a different view on this.]
Abbott: I can only recall four shots. The warning shot and the three shots.
Rowan: Then how was Steven Wallace shot in the back?
Abbott: I can’t explain that.
Rowan: You have told us you were focussing on him. You must have seen movement before the fourth shot was fired?
Abbott: No I didn’t.
The trial is
NOTE: The following allegations were answered in the trial reported above....
In This Edition: Killing The Silence - The real story behind the shooting of Wellington student Steven Wallace by a Police Officer on April 30th 2000 in the town of Waitara.
NOTE: Authors of this report will be anonymous and wide ranging, and occasionally finely balanced. Indeed you are invited to contribute: The format is as a reporters notebook. It will be published as and when material is available. C.D. Sludge can be contacted at firstname.lastname@example.org. The Sludge Report is available as a free email service..Click HERE - http://www.scoop.co.nz/mason/myscoop/ to subscribe...
Sludge Report #65
Killing The Silence
“Police Murder” is the allegation. Pure and simple. Up and down the country. On Marae, in pubs, in clubs, on campuses, in lawyer’s common rooms.
Steven Wallace was not a menacing mad-dog on a rampage, shot by a police officer roused late at night from his bed, people are saying.
According to Sludge’s sources, Constable Keith Abbott – yes that is his name - the police officer who shot Steven Wallace, had in fact not even gone to bed that night. Rather he had been up all night at a party at the Waitara Volunteer Fire Brigade, during which he had had an altercation with Wallace, who had wanted to join his force.
None of the several official records of the incident mention that Mr Abbott was quite possibly intoxicated at the time he gunned Steven Wallace down across the street in the early hours of April the 30th in the business district of Waitara.
And witnesses at the party that night have told all this to a numerous journalists, yet it hasn’t been reported. The possibility that Keith Abbott had been drinking that night hasn’t even been mentioned in fact, except in Maori media. Maori media have also reported that he hadn’t been to bed by the time the shooting took place at 3am in the morning. But these two observations have been excised from mainstream media coverage of the incident.
Sludge understands that a TV news crew filmed Tame Iti discussing these issues on his radio show, and intended to use it, but it was excised at the last minute.
We have here what appears to be a grand conspiracy of silence, in the police, in the media, in Parliament, and in the Judiciary (the Police Complaints Authority).
Why? Perhaps because the truth is too hard to bare?
Certainly the media is probably scared they will be sued by Abbott and his fellow officers for defamation. But Sludge suspects the real reason is that they fear exposing the truth will be too painful, and noone wants to take responsibility for putting this particular load of washing on the line.
And so in public, in the Media – while many reporters know something of the real circumstances - all choose to look the other way. The public face of the Steven Wallace debate is not over whether the matter should be further investigated, but simply over whether it is ethical for Abbott to be named in the media.
According to due legal process the correct outlet for this story is the Coroner’s Inquest. However this now appears no closer to going ahead, than it was at the beginning of the year. In the latest development a hearing is to be held on May 21st, more than a year after the shooting, on an application from the police to prevent the Inquest going ahead at all, on the grounds that a private prosecution is still being considered by the family.
The family of Steven Wallace have been waiting to tell their story on the witness stand for months and months, and are being denied even that.
Sludge now firmly believes that in the circumstances, Keith Abbott should not only be named, but a special independent investigator should be appointed immediately to inquire not only into what really happened that night, but into the police investigation and reports that followed.
In Sludge’s view the best possible interpretation that can be made of events, is that the officers who were in Waitara on the night of the killing failed in their duty to investigate adequately their fellow officer’s actions. Many in Waitara would quite probably go further and allege they conspired to pervert the course of justice.
The real story behind the shooting of Wellington student Steven Wallace by a Police Officer on April 30th 2000 in the town of Waitara.
Sludge first heard about these allegations just weeks after the shooting. Over the last year, more and more people involved in social justice activism in New Zealand, and in the media, have retold aspects of the story to Sludge.
Now Sludge has spoken to an individual close to the Spiderweb Productions and TKM Productions crew who worked on a documentary, broadcast in Maori, on the Waitara incident earlier this year.
Some footage shot by this team was later used by a 60 Minutes team who produced a documentary presented by Kim Webby recently on the top rating Sunday Night TV show.
The following is Sludge’s source’s raw account of what really happened on the night of April 29th and morning of April 30th 2000.
“Steven went to the fire brigade where a function was being held. He got into a confrontation with the head of the Waitara volunteer force, constable Keith Abbott. The confrontation was over Steven’s desire to become a volunteer member of the fire service.
“According to witnesses who spoke to the documentary crew the party at the Brigade had been going for several hours. People at the party were drinking. Steven got really angry as a result of the argument, and as he left the brigade he smashed the windows. He then went to Woolworths Supermarket and smashed their windows. He went on to smash windows at the Pharmacy and then the sports shop. He then swapped the baseball bat for the golf club.
“He smashed the window of the police car, and according to the police later threw away the golf club leaving himself unarmed.
“According to what I was told, Constable Keith Abbott was not called at home at 3am as he claimed. He had in fact followed Steven from the Fire Brigade, which if you think about it makes sense given that Steven had smashed the windows after having a fight with him.
“Abbott saw the police car window get smashed and went around the corner to the police station, from where he radioed the constable in the car and told her to come to the station to arm herself.
“He then went back out into the street with two other officers and shot Steven.
“Consider this. According to the police witnesses of the shooting. Steven Wallace was armed with a baseball bat. Other witnesses say he was unarmed.
“The baseball bat was found 30 meters from Wallace’s body, making it pretty nigh impossible that he was carrying it at the time he was shot.
“Throwing a baseball bat 30 metres is pretty hard at any time, to do so as five bullets are ripping through your body would be an amazing feat of strength.
“And Steven was then left laying in the road for several minutes before an ambulance was called.”
Sludge cannot be certain of this source’s testimony. It is admittedly all hearsay, but there were witnesses there who know what really happened. And it is supported by similar statements from other independent sources.
And certainly it can be said that this account differs markedly from those told in all of the official accounts of the incident.
It is trite to say that Justice needs not only to be done, it needs to be seen to be done. It is also true. Otherwise unsubstantiated rumour can circulate and destroy relationships and the very fabric of society. Sludge believes that is what is now happening, and it is because of this that Sludge has decided public interest now dictates this story be told.
If this is all lies then Keith Abbott too is entitled to justice. To have his name cleared.
In Waitara there are clearly countless variations of the story above circulating, some with more detail some with less.
And think about it, this community is still really hurting nearly 13 months after the shooting. Perhaps the reason the local priest in Waitara is pictured on TV saying that Justice has not been done, and calling for it to be done, is because he thinks he knows something you, the general public don’t.
The people of Waitara, and indeed the people of this country are entitled to know what really happened on April 30th in Waitara. There are already scars that are not healing. The longer this goes on the more this sore will fester.
Until this evidence is examined in open court and another independent inquiry is held, there will be no justice.
Instead what we have is a policeman who has killed a citizen of this country in the street, being protected behind an official, and semi-official veil of secrecy. He has been investigated by his colleagues and cleared. He has been investigated by the media and they have decided not to tell what they found out. He is still working.
The media are protecting even his identity, and just last Sunday the Sunday Star Times launched a vicious attack on those who have dared to publicise it, Dermott Nottingham and his Advantage Advocacy group.
We have a system that is doing its best to keep the truth from us all.
It is now time to kill the silence. Bang.