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