Shooting survivor fights to sue police for $1.4 million

Richard Neville suffered life-changing and serious injuries when caught in police crossfire. Photo / Michael Craig

An innocent man injured in a motorway shootout has made "speculative" factual claims about the incident and his bid for compensation should be thrown out, the Crown says.

Richard Stephen Neville is suing the police for $1.4 million after he was sprayed with shrapnel and glass shards when shots were fired by an armed offenders squad member during a 2009 incident. Courier driver Halatau Naitoko died in the incident.

Police were pursuing rifle-wielding car thief Stephen McDonald, who was in the back of the plaintiff's truck at the time.

Mr Neville provided an affidavit to the High Court at Auckland saying the actions of the police gunman - known only as Officer 84 - amounted to gross negligence or recklessness.

His shot went through the front windscreen of the vehicle but the Crown lawyer acting on behalf of the Attorney General Peter Gunn said that was clearly an accident.

"An accident that does not meet the very high standard for Bill of Rights damages," he said.

He referred to the Independent Police Conduct Authority decision released in 2012, which found the police actions were unsafe but not illegal.

"Shots were fired in an emergency situation ... conduct was directed at an armed offender who was putting members of the public in danger," Mr Gunn said.

Officer 84 had said he believed McDonald - who was later jailed for 13 years - posed a much greater risk to Mr Neville than a shot fired by police did.

Mr Gunn also confirmed police had made an ex-gratia payment (made without accepting legal liability) to Mr Neville, understood to be $5000.

But that was rejected by the man, who believed he was used as a "human shield".Mr Gunn confirmed Mr Neville had already received payment through ACC.

The Crown's application to have the matter struck out was also based on the argument the plaintiff had made "speculative" factual claims."[The claims] can't be sustained because they rest on allegations of deliberately unsafe shooting.

The Crown says it is in plain contradiction to the evidence," Mr Gunn said.He told Justice Geoffrey Venning that a trial would be costly, lengthy and would inevitably fall in favour of the Crown.

Mr Neville's lawyer Charl Hirschfeld said his client provided the best first-hand account of the scenario."This narrative is neither fanciful nor speculative," he said.

The lawyer accepted it was a "fast-moving and unstable set of circumstances" and that the involvement of the armed offenders squad was logical.

But he said the shots were fired recklessly and unlawfully and therefore in contradiction of the Bill of Rights Act.

The police's use of automatic weapons at close quarters meant they had a responsibility to ensure they protected members of the community, Mr Hirschfeld said.

"When they engage those weapons they owe a duty to the plaintiff. The duty is to properly, in accordance with their training, discharge their weapons so they don't pose a danger to innocent members of the public."

Justice Venning reserved his decision.