Citation: R v Officer A (No 1) [2022] NSWSC 1362
Court: Supreme Court of New South Wales
Date: 11 October 2022
Judge(s): Beech-Jones CJ at CL
Background
A correctional officer, referred to throughout proceedings as "Officer A," was charged with the murder of an inmate who died on 15 March 2019. The deceased had been in custody and was being escorted by two officers when he broke free, pushing one officer and running across a road while restrained in handcuffs and ankle cuffs. The accused drew his firearm, issued a verbal warning, and over approximately four seconds discharged three shots. The third shot struck the deceased in the mid-back and proved fatal.
The Crown's case was that the accused fired the fatal shot with intent to inflict grievous bodily harm or with reckless indifference to human life. A central issue for the trial was whether the accused had "lawful cause or excuse" for the act causing death, within the meaning of s 18(2)(a) of the Crimes Act 1900 (NSW). Regulation 303 of the Crimes (Administration of Sentences Act) Regulation 2014 (NSW) permits a correctional officer to discharge a firearm if the officer believes on reasonable grounds that it is necessary to prevent an inmate's escape.
Before the jury was empanelled, the accused sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) on the admissibility of opinion evidence from the General Manager of Security Operations within the Department of Corrective Services, John Harrison. The Crown opposed admission of the portion of Mr Harrison's evidence in which he opined that the accused's conduct in firing the fatal shot was "consistent with his training."
Legal Issues
- Whether Mr Harrison possessed "specialised knowledge" based on training, study, or experience within the meaning of s 79 of the Evidence Act 1995 (NSW), and if so, the scope of that knowledge.
- Whether the opinion that the accused's discharge of the fatal shot was "consistent with his training" was an opinion "substantially based" on any such specialised knowledge.
- Whether the disputed opinion evidence was admissible at all, or whether Mr Harrison's evidence should be limited to describing the content of the training the accused actually received.
Decision
The court upheld the Crown's objection and ruled the disputed opinion evidence inadmissible. Beech-Jones CJ at CL accepted that Mr Harrison possessed specialised knowledge about appropriate methods for training correctional officers in the use of force, including the discharge of firearms. That expertise, derived from his extensive career as a trainer and senior executive within Corrective Services, would have been sufficient to qualify him to give opinion evidence in a case where the adequacy of a training system was itself in issue.
However, the opinion Mr Harrison actually expressed was of a different character. He was asked whether the accused's conduct in a specific factual context was consistent with the training the accused had in fact received. The court found that this opinion was not substantially based on Mr Harrison's specialised knowledge about appropriate training methods. Instead, it rested on his knowledge of what training the accused had received, and that factual knowledge was not itself a body of "specialised knowledge" within the meaning of s 79.
The court also noted that Mr Harrison had never investigated a specific use of force by a correctional officer in a particular operational context, had never himself discharged a firearm at an inmate to prevent escape, and had not suggested any expertise in evaluating whether a particular application of force accorded with prior training. The position was distinguished from that of the expert in The Queen v Rolfe (No 4) [2021] NTSC 58, where the expert had conducted such investigations.
The ruling therefore confined Mr Harrison's permissible evidence to describing the content of the training the accused received. The consistency opinion was excluded.
Orders Made
• Mr Harrison's opinion that the accused's actions "were consistent with" his training is not admissible
Key Takeaways
- Under s 79 of the Evidence Act 1995 (NSW), an opinion is only admissible if it is "substantially based" on specialised knowledge; expertise about training methodology does not automatically extend to an opinion about whether a specific use of force accorded with a particular officer's training.
- A witness's factual knowledge of what training an accused received does not itself constitute "specialised knowledge" within the s 79 framework, even where that witness is otherwise an expert in training design and delivery.
- The Supreme Court drew a clear distinction between an expert qualified to opine on the adequacy of a training system and an expert purporting to evaluate the consistency between a specific operational act and prior training, treating these as requiring different foundations.
- Experience in investigating specific uses of force in operational contexts is relevant to whether a consistency opinion of this kind can be substantially based on specialised knowledge, as illustrated by the contrast with expert evidence accepted in the Northern Territory in Rolfe (No 4).
- Advance rulings under s 192A of the Evidence Act 1995 (NSW) remain a practical mechanism for resolving complex admissibility disputes before a jury is empanelled, avoiding disruption mid-trial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 79, 192A
- Crimes Act 1900 (NSW), s 18(2)(a)
- Crimes (Administration of Sentences Act) Regulation 2014 (NSW), regs 131, 303
Cases
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
- ASIC v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095
- Aziz (a pseudonym) v R [2022] NSWCCA 76
- The Queen v Rolfe (No 4) [2021] NTSC 58
- State of Western Australia v BW [2021] WASC 326
- Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
- R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129