Police who killed were given evidence in advance

When police shoot and kill, they're investigated by fellow officers. Guyon Espiner reveals that shooters have been shown evidence in advance of being interviewed and that police refuse to treat them as suspects.

This is the second story in an investigative series on police shootings. You can read the first story here: Licence to Kill.

On 5 April, 2018, two police officers, codenamed Officer A and Officer B, arrived at the North Shore Police Station to be interviewed by detectives as part of a homicide inquiry.

Officer A went first. His interview started at 9am and finished at 10.44am. There was a two-hour break and then it was Officer B's turn.

There was plenty at stake. A few days earlier, on 31 March, the two officers had fired 12 shots at a 29-year-old mentally ill man named Jerrim Toms, who died of his injuries on a deserted highway north of Auckland.

They had fired four times as Toms, who had relapsed with bipolar disorder, walked towards them with a machete. But they fired eight more times after he turned and ran. One bullet hit him in the lower back. The shots kept coming even after Toms dropped the machete and the last bullet was fired when he was unarmed and had run nearly 15 metres from the officers.

The homicide investigation, codenamed Operation Hamlet, had plenty of evidence to work with. The shooting had followed a 40-minute car chase, most of which had been caught on camera by the police Eagle helicopter.

Constable A and Constable B would rely on section 48 of the Crimes Act, justifying the shooting on the grounds of self-defence or the defence of others.

The video evidence from the police helicopter would be crucial. April 5 would be the moment of truth. Except it wasn't.

The night before their interviews, the homicide inquiry team allowed the two officers to watch the video evidence.

At 5.40pm on 4 April, Officer A and Officer B sat down with their lawyer, QC Susan Hughes, and watched the footage together.

Crucially there was one segment of the footage where the Eagle helicopter camera had been obscured by trees. In their interviews the next day the officers would say that it was at this point that Toms had threatened their lives, smashing the machete against the patrol car window.

We don't know what happened for certain, as the camera didn't capture these moments. But we do know that because they had watched the footage, the two officers knew that whatever they said happened could not be contradicted by video evidence.

Read more from this series

Licence to Kill: The startling truth about New Zealand's fatal police shootings

Police are very sensitive to the suggestion the officers only mentioned the machete attack after viewing the video footage and claim the officers had told their lawyer about it earlier.

"The QC had engaged in an iterative process with the two officers as to what had transpired," Detective DC Lynch told RNZ in response to an Official Information Act request.

The Merriam Webster dictionary defines 'iterative' as "a procedure in which repetition of a sequence of operations yields results successively closer to a desired result".

Lynch went on to say that the process included the officers providing their lawyer with written notes of what had occurred and this happened "well prior to the officers viewing the Eagle helicopter footage".

"The QC has confirmed these notes both describe the machete attack as recounted in the officers' evidential statements, and that the notes were not edited in any way after the officers had viewed the Eagle helicopter footage."

There was a sting in the tail of Lynch's letter: "I trust this information will be used responsibly and there will be no further misleading inferences in any reporting of the case which is distressing for the officers concerned."

But there was also a concession. Police policy, Lynch said, had now changed. Officers involved in police shootings would no longer be given video evidence before they were interviewed.

In February 2022, six weeks after Lynch's response, I would find out why.

***

On the 10th floor of a nondescript building in central Wellington, Colin Doherty, a former district court judge, is serving out the final months of his five-year term as head of the Independent Police Conduct Authority (IPCA).

The judge is incredulous that detectives would give the shooters in a homicide inquiry video evidence before interviewing them.

"I have been in deep, recent, conversation with police and that practice, I understand, has now stopped," he says. "Why should police see the video evidence before they are questioned? It's wrong."

That was interesting. But not as interesting as why the police stopped this practice.

It only ceased after the IPCA refused to cooperate with police homicide investigations. The IPCA usually sits in on the initial police interview while the detective questions an officer about a shooting. The IPCA can then follow up with its own interview if they choose.

"We refused to continue that practice because we were concerned that the officers were getting pre-briefed," Doherty says. "That's just not good investigative practice. So we refuse to attend," he explains. "As a result of us refusing to do that, the police have relooked at their methodology, and now do not do that."

Police Commissioner Andrew Coster agrees it was poor practice. "I'm not defending that. I don't think that's right."

But, interestingly, Coster thinks it is a finely balanced thing. "We expect police officers to go out and do their duty and finding the right setting - in terms of how we look into and hold to account people for the decision-making without creating a situation where we have no one prepared to do that in future - is a real balancing act."

A win for the watchdog perhaps. But in fact the IPCA had warned the police to stop giving officers evidence in advance years ago - including in the case of an accidental shooting of an innocent bystander.

In 2009 when the Armed Offenders Squad (AOS) was firing at fleeing offender Stephen McDonald on Auckland's North Western motorway, they missed and hit and killed a courier driver, 17-year-old Halatau Naitoko.

The two AOS shooters, codenamed Officer 81 and Officer 84, were "provided with copies of the job sheets of other squad members" before their interviews with detectives were complete, which the IPCA said was "ill-advised".

The IPCA investigation into the Naitoko case also said officers involved in a shooting should not be allowed to discuss the incident among themselves because that risked contaminating their accounts.

So, should the two officers in the Toms homicide investigation have been talking about the case to each other, let alone engaging in an "iterative process" with their shared lawyer?

Not according to a section added to the Police Manual in December 2010, which says investigators must ensure officers involved in a shooting "are directed not to discuss the incident with each other as this can corrupt their own accounts".

Police have fatally shot 39 New Zealanders since 1990 but have never charged any of the officers involved in those shootings.

Can it be true that in all 39 cases the police have never been at fault? Or do the police go easy on their own?

***

Unlike many other Western democracies, New Zealand's police watchdog, the IPCA, does not have the power to prosecute.

So when the police kill someone it is the police themselves who investigate the shooting and the police who decide whether or not to lay charges.

Under police policy, the senior investigating officer makes recommendations on criminal culpability. These are then reviewed by another senior officer who can "seek any legal opinions as required" before a final decision is made on whether to lay criminal charges.

For the Licence to Kill investigative series on police shootings, RNZ gained access to more than 10,000 pages of documents, including police homicide investigation files, officers' job sheets, transcripts of interviews and detectives' notes.

Most of those documents were from four police shootings between 2000 and 2018, which share many commonalities and help form a picture of what happens when police kill.

Steven Wallace, Stephen Bellingham, Shargin Stephens and Jerrim Toms were all shot by police after smashing windows with a machete, a hammer, a club or a bat.

All of them were young men, aged between 23 and 37. None of them were armed with a gun. None of them had harmed other people before they were shot - only property.

Combing through the documents, you learn a lot about the victims yet next to nothing about the officers who shot them.

We don't even know the names of the officers - and would often be prevented by coroner's rulings from naming them if we wanted to.

While these are homicide investigations, and the person who pulled the trigger is a police officer, it's the dead person police spend their resources investigating.

In the investigations into the shootings of Wallace, Bellingham, Stephens and Toms, the police obtained search warrants to pick through the life of the dead men in extraordinary detail.

Police were criticised for that in the Wallace shooting.

In the early hours of 30 April, 2000, Wallace became angry, and broke windows at Waitara police station and then on the main street, using golf clubs and a baseball bat.

When the police arrived, he struck the windscreen of the patrol car with a golf club. Two officers went to the nearby station, armed themselves with Glock pistols and 64 seconds later Wallace was lying on the road mortally wounded.

Wallace, who showed real academic promise and was awarded the Ngahina Okeroa prize for senior Māori scholar at Waitara High School in 1994, was 23.

For the next 20 years his family pursued justice, most recently suing the Attorney General, arguing their son had been deprived of the right to life, guaranteed under the Bill of Rights.

Justice Rebecca Ellis, in her 2021 ruling, criticised police for obtaining a search warrant on the grounds they were looking for evidence to support a charge of threatening to kill.

"Police were not in fact- and could never have been-investigating that offence. There was no prospect whatsoever of a charge of threatening to kill being laid against Steven," she ruled. "Obtaining the warrants on this basis strikes me as an improper and unnecessary overreach."

But the detail they gathered on Wallace was nothing close to what they got on Bellingham.

***

"From the outset, we had the feeling that police were trying to justify their actions," Maria Bellingham says.

Her son, suffering a mental health episode (perhaps fuelled by taking legal, party pills), had smashed car windows in central Christchurch with a hammer.

The police officer who confronted him says Bellingham ran at him with a raised hammer - although there are conflicting accounts of the threat he posed - and he shot him dead.

"They interviewed the family, hunting for dirt on Stephen," Maria says. "We had suspicions of some sort but we were very naive at the time."

Bellingham had no criminal record or history of violence but police were keen to find one.

Detectives rang Family Violence Roundtable agencies in Christchurch but they had no knowledge of him. Police asked Child Youth and Family (CYF) to check their database. Nothing. They went to Stopping Violence Services. No records there. They tried the Community Probation Service, whose search of the national database turned up nothing.

So they moved on to his Gmail accounts finding emails from travel, entertainment and survey websites. Detectives' notes show they investigated his dating profile with NZ Dating, obtaining his username and password.

They went through his computers, job references, job applications and internet use, including his Trade Me account.

They got his passport and went through his travel from three years before the shooting. They went to Work and Income (WINZ) and got his Community Services Card number. They went to Pegasus Health to find out who his GP was and checked his prescriptions with a pharmacy. They obtained the details of his old GP in the UK.

They requested medical records from the Linwood Medical Centre in Christchurch and eventually obtained his patient notes and medical history. There wasn't much there, except a thumb injury on 17 March, 2007.

So a detective travelled to the Hawkes Bay to talk to the GP Bellingham had as a child and returned with 23 pages of medical notes. The details were copied into the police files. His acne in May of 1985, the toenail that was excised just before Christmas that year. The indigestion he suffered in January of 1994.

The police were getting nothing so a few weeks after the shooting they requested an "international criminal history check" on Bellingham.

They wrote to Interpol explaining that Bellingham had been shot, that a "murder investigation" was underway and requested information about his time in the UK between 1997 to 2005. "A separate file has been forwarded to Interpol for inquiries to be carried out by police in England to identify and interview ex wife, friends and employers."

They found nothing of note. They searched his flat. They went through the 61 books on his shelves, recording each title.

They went to Telecom with a search warrant seeking all calls and text messages for the month prior to the shooting.

They said the information was needed because it may provide "evidence as to the commission of an offence of murder and/or manslaughter".

But of course Bellingham was dead and the murder or manslaughter, if the police were to lay a charge, was committed by the police officer.

So what of the officer who shot Bellingham? Apart from an interview transcript, where he details aspects of his police career and training, there's almost nothing in nearly 2000 pages of documents.

In fact police refused to give lawyers for the Bellingham family basic information about the officer who shot their son.

"Officer A's personal file is not part of the investigation file. Disclosure of this would breach the privacy of Officer A and also the Privacy Act, therefore it will not be disclosed."

A coroner's ruling has permanently suppressed the name of the officer. Stephen's mum Maria Bellingham says she got a card signed by Officer A.

"He sent us a sympathy card a week after the shooting," she says. "Quite honestly, I read it and I threw it across the kitchen. I was dumbfounded."

She declined his offer to meet.

"I had no desire to meet the man who killed my son."

***

Given police shootings in New Zealand involve police investigating their own, independence is always going to be a challenge.

But in three of the four cases RNZ looked at in depth, it was local police investigating their own. Sometimes officers were investigating long term friends, workmates or members of their sports team.

When Steven Wallace was shot in Waitara in 2000 the investigation was initially led by DS Coward, who was stationed at New Plymouth, a 15-minute drive along State Highway 3.

"DS Coward had been a friend of (the officer) for over 15 years," according to Judge Ellis. "DS Coward was one of the two men telephoned by (the officer) for support while he was still at the scene of the shooting."

Police did hand over command of the investigation to a Christchurch-based detective inspector a few days later but the judge said the initial phase was vital as "three police officers involved and 10 other witnesses were interviewed within that time".

When Stephen Bellingham was shot in Christchurch in 2007, the police still hadn't learned how to manage this conflict of interest.

"The investigations were carried out by Christchurch staff, contrary to best practice," the IPCA found, adding that a 2005 Commissioner's memorandum had "emphasised the importance of the principles of independence" in investigations into serious allegations against police.

Despite all of this, Coster doesn't see a need for an independent police unit to do this work and says police now ask officers investigating homicides to list any conflicts of interest.

"The IPCA will call us out if they think we're getting it wrong."

***

At the heart of this issue is whether police should get special treatment in homicide investigations.

The IPCA says absolutely not. "These are homicide investigations. Someone has died and they ought to be treated exactly the same way - for the police trigger puller - as a civilian trigger puller," Doherty says.

But Coster believes police should be treated differently from civilians because it's their job to keep communities safe.

"We give them the power to use lethal force, if required, to achieve that outcome," he says. "No other person carries with them the burden that comes with that responsibility and, in the event that they have to use those powers to keep the public safe, I think there is a difference."

But police involved in shootings almost always rely on section 48 of the Crimes Act, which provides legal justification if the shooter was acting in self defence or the defence of others.

That section is the same for police officers as for, say, a farmer or a shop owner, who kills in self-defence.

But Coster says police are different. "Police officers don't have the opportunity to walk away from a situation and go 'not my problem,'" he says. "We send them in there expecting them to take the necessary action and most people would not choose to walk towards danger."

RNZ obtained a copy of the Police Critical Incident Policy, under the Official Information Act, to test whether police get special treatment in homicide investigations.

Under the heading 'Investigation Objectives' are many of the things you would expect police to want to achieve: they want to know the circumstances of the death, to gather the evidence and establish whether the force used was legally justified or should attract criminal liability.

It's the last bullet point that leaps out: "Identifying and managing reputational risks to NZ Police." That seems incompatible with a robust homicide investigation.

But as you read on, several other parts of the policy don't appear to align with Doherty's assertion that police shooters should be treated the same as civilian shooters.

The policy says that officers, even if they have fired the fatal shots, are to be treated as witnesses "unless there are good reasons to treat them as suspects."

Again Coster says police are in a special position compared to a civilian who was acting in self-defence. If they were treated the same, police might be reluctant to use lethal force when required.

"If we want police officers to feel confident that they can go and do that safely, then treating them all as criminals for taking an action we expect them to do will lead to perverse outcomes. We do not want officers who shy away from keeping the public safe where that is what's required."

Police also craft a PR strategy to protect their reputation.

"A person presenting as an offender during the incident who is killed or seriously injured should not be referred to as a victim," the media strategy section of the document says.

And while a homicide inquiry is a criminal investigation, it shouldn't be called that. "Care should be taken in any media statements to avoid causing unnecessary offence to the officers," the document says. "The term criminal investigation is generally not appropriate and should not be used."

Officers who shoot people are not even to be made to do a "walk through" or reconstruction of the scene.

"No requests should be made of any employee directly connected to the death or life threatening injury of a person to walk through the scene by way of a reconstruction as part of their formal interview," the policy says.

The officers also get an early heads-up on whether charges will be laid. "Where no criminal proceedings are being contemplated, consider giving employees early advice of this fact."

That clause is probably redundant because police have never laid charges against one of their own following a homicide investigation.

***

That's another aspect that unites the shootings of Steven Wallace, Stephen Bellingham, Shargin Stephens and Jerrim Toms.

In all four cases the families do not feel they have obtained justice.

The Wallace family took a private prosecution after police refused to lay charges, but the officer was acquitted. They took a right to life case under the Bill of Rights and won $130,000 compensation in 2021.

The Toms family is still waiting for a Coroner's Inquest into his shooting, which happened in 2018. The Stephens whānau have been waiting nearly six years for an inquest.

The Bellinghams, though, have been right through the justice system. The police refused to lay charges. The IPCA ruled the shooting was justified and the coroner's inquest has come and gone.

But 15 years on, Maria Bellingham says she still feels she doesn't know the truth about why her son was shot.

"It leaves us feeling empty," she says, "sceptical of our justice processes; the idea that you can't fight the big boys or get answers that you want."

- Andrew Coster video interview shot and edited by Claire Eastham-Farrelly