Lawyers for the Crown have told the High Court in Wellington officers involved in the fatal shooting of Kaoss Price in 2022 made “split second tactical decisions”.
Counsel are testifying on the second day of proceedings in a Judicial Review of the decision not to charge the officer who fired the fatal shot.
The Independent Police Conduct Authority’s investigation found the officer who fired the fatal shot used excessive force, but did not recommend prosecuting the officer.
Split second decisions
Crown Counsel Peter Gunn said three and a half minutes elapsed between officers attempting to pull over a car driving ahead of Price, his accelerating away and side swiping a police dog van before being shot while trying to hi-jack another car.
Price had been released from prison earlier that year and Gunn told the court a prior search of a vehicle linked to Price had recovered four firearms – including a loaded shotgun.
“Mr Price had been well known to police. He had numerous criminal convictions which included theft, car conversion, assault and driving offences,” Gunn said.
Officers armed at the beginning of their shift
On the night of the incident the two officers involved had chosen to wear their Glock pistols at the beginning of their shift which they put down to their awareness of a warrant for Price and concerns over two other individuals in the area.
At about 9.30pm on 16 April, Price’s VW Golf was seen driving closely behind another BMW vehicle.
“They both knew that Mr Price was a repeat offender, was known to carry firearms and knives and was also the subject of an arrest warrant,” Gunn told the court.
Gunn told the court when the officers signalled to pull the BMW over the VW Price was driving then turned off its head lights and accelerated away.
He said the VW turned and drove towards the officers’ vehicle at high speed and on the wrong side of the road.
In interviews Officer A said he felt Price was “hunting” the officers.
“I thought I was going to die. I thought my name was going to be on the plaque at the police college,” the officer said.
The officers described feeling their vehicle (a dog van) shudder as the VW narrowly passed and turned in front of oncoming traffic before heading back.
“Both officers felt the vehicle collide with the dog van and scrape along the vehicle. During the Collision Officer A drew his pistol and fired two shots through the open window at the passing vehicle,” Gunn said.
The officers heard the VW’s engine revving and gears grinding and feared the VW would be put into reverse.
Price climbed out of the VW and ran away from the officers, down the road, trying the handles of vehicles as he went while Officer A fired more shots.
Price then forced his way into an occupied Hyundai and struggled with the driver to gain control of the vehicle.
Gunn said Officer A told interviewing officers he had only moments to decide his course of action.
“I needed to help those two people [occupants of the vehicle]. There was no time to sit back and discuss what I was going to do. I had to make a decision,” the officer told investigators.
Officer A arrived at the car and ordered Price to get out of the car, he did not comply, and the officer shot Price in the chest through the window.
A second officer then tasered Price and he was removed from the car and given first aid. He died at the scene.
Lawyers argue investigation failed Bill of Right’s obligations
Yesterday, lawyer for Price’s family, Max Harris, said the IPCA’s investigation had failed in its obligations under the Bill of Rights to be independent, impartial, prompt, thorough and transparent – and the process had undermined the effectiveness and the credibility of the investigation.
Gunn said it was inaccurate for lawyers for Price’s family to suggest to suggest that the IPCA was not acting independently of police.
“If a police investigation misfires then the Section 8 [Bill of Rights] obligation may be made by the IPCA. [Here] we have an IPCA investigation report which has not been challenged,” Gunn said.
He said police had drawn investigating officers from other parts of the country and delays in interviewing the officer were related to public holidays near the incident and police’s commitment to head the investigation with staff not close to the officers involved.
In response to the family’s lawyers’ criticism of the IPCA – stemming from the authority’s handling of disgraced former Police Commissioner Jevon McSkimmings – Gunn told the court the investigation into Price’s shooting showed no similar evidence of collusion or influence from police to conceal the nature of the events.
Gunn also took aim at criticism of the police interviews and said officers who called Officer A “mate” fourteen times during his nearly seven hour interview were “building rapport” with the officer.
“What they are attempting to do is find common ground. When you show empathy people open up,” Gunn said.
Gunn said that police actions following the shooting demonstrated they were aware a charge of homicide was a real possibility.
“[The officer] was tested for firearm residue, performed a drug and alcohol test and his uniform was seized before he was allowed to go home,” Gunn said.
Gunn told the court that a senior officer cautioned Officer A as to his rights as was necessary when a person was detained, or questioned as a suspect.
“At the time, in the absence of an explanation and the circumstances – as I understood them to be – I thought there was a strong possibility of a homicide charge and a Bill of Rights caution was appropriate,” The officer told investigators.
Gunn said the police’s actions towards the officers involved highlighted seriousness with which they approached the incident and their “open mind” towards the potential prosecution of the officers involved.
Police letter to family ‘unhelpful’ – Justice Heine
Counsel for the Crown, Peter Marshall defended the letter sent to Price’s family informing them of the circumstances of his death, police intelligence regarding his offending and a single sentence as to why his shooting would not be prosecuted which read:
“Based on an assessment of the circumstance and the law relating [to] self defence and the defence of another (Section 48 of the Crimes Act), police has determined there is insufficient evidence to support criminal prosecution of the officers involved in this incident.”
“Decisions are made by public prosecutors in the public interest. They are not ever made in the interest of victims,” Marshall said.
Justice Victoria Heine said the language used to convey the decision was “economical” and “not particularly helpful” to the family.
But Marshall said it was not up to prosecutors to “evaluate the evidence” for the benefit of the family.
He went on to tell the court that a homicide charge against Officer A could be defended on the grounds that the officers actions arose from the belief that Price intended to kill the officers or harm others.
“It’s not whether [Price] intended to do that but whether you could prove the officer did not hold that belief,” Marshall said.
‘There was time to make a tactical assessment to disengage’
In summing up, lawyer for the family Christopher Stevenson contrasted Price with the case concerning Stephen Wallace, who was shot as he advanced on officers with a weapon in 2000.
“By the time Mr Price had climbed out of the vehicle he’d been shot at twice, he was then running away and Officer A made that choice to follow him to the vehicle [where he was shot].
“There was time to make a tactical assessment to disengage but that didn’t happen,” Stevenson said.
He said the officer had conceded that he had seen Price’s empty hands as he attempted to enter nearby vehicles.
He said because the ICPA could not instigate prosecution it could not cure the deficiencies in the police investigation.
He argued that Counsel for the Crown’s point that Officer A being cautioned as to his rights could be seen as an indication that police saw a real potential for charges being laid against the officer but said that wasn’t reflected in a decision to treat the officer as a witness.
“The unarmed man fleeing police – and then he was shot – that does require [the officer] to be treated as a suspect,” Stevenson said.
Justice Heine reserved her decision pending further submissions.