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Supreme Court 14 October 2022

R v Officer A (No 2)

[2022] NSWSC 1381

HomicideFirearms & weapons
CRIMINAL LAW MURDER LAWFUL CAUSE OR EXCUSE CONFLICTING STATUTORY PROVISIONS NECESSITY TO RECONCILE ANTHONY HORDERN PRINCIPLE

Citation: R v Officer A (No 2) [2022] NSWSC 1381
Court: Supreme Court of New South Wales
Date: 14 October 2022
Judge(s): Beech-Jones CJ at CL

Background

A correctional officer (referred to throughout as "Officer A") faced a charge of murder following the fatal shooting of an escaping inmate, Mr Johnstone, on 15 March 2019. Mr Johnstone was an inmate who had been refused bail and was being escorted to hospital under an order made pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW). During that escort, he attempted to escape and was shot three times. The Crown alleged the third and fatal shot was fired with an intention to inflict grievous bodily harm, or with reckless indifference to human life, and without lawful cause or excuse.

The central issue before the court at this stage of the trial was not whether the accused was guilty, but which regulatory provision defined the "lawful cause or excuse" that would be put to the jury. Both parties agreed that the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the "2014 Regulation") was the relevant instrument, but they disagreed sharply about whether clause 131, clause 303, or both applied to the discharge of a firearm in these circumstances.

This judgment delivers the reasons for a ruling made during the trial, resolving that threshold question before the jury could properly consider the lawful excuse defence.

  • Whether clause 131 of the 2014 Regulation (governing use of force against inmates generally) applied to the discharge of a firearm by a correctional officer against an escaping inmate.
  • Whether clause 303 of the 2014 Regulation (governing the discharge of firearms specifically) was the correct and exclusive provision to put to the jury as the relevant lawful excuse.
  • If both clauses potentially applied, whether they imposed cumulative requirements or provided alternative bases for lawful excuse.
  • How apparent conflicts between the two regulatory provisions should be resolved, including by reference to the Anthony Hordern principle (the principle that where a statute or instrument deals with a subject specifically and generally, the specific provision governs).

Decision

The court ruled that clause 303 of the 2014 Regulation, not clause 131, was the provision that governed the discharge of a firearm at a person and therefore the lawful excuse to be put to the jury. This meant the Crown was required to disprove the excuse provided by clause 303, and clause 131 was not to be considered alongside it as an additional or cumulative requirement.

The court reached this conclusion by working through the structure of the 2014 Regulation. Clause 131 sits within Part 6, which deals with general correctional centre discipline and the use of "force." The definition of "force" in clause 3(1) expressly includes the "carriage and use" of restraining equipment, and clause 132 makes clear that firearms are a form of restraining equipment. On a purely literal reading, clause 131 would therefore authorise recourse to firearms (including their discharge) in a range of circumstances, including to prevent an inmate's escape.

However, Part 19 of the 2014 Regulation contains clause 303, a specific and detailed set of provisions governing precisely when a correctional officer may discharge a firearm. The court found that reading the literal scope of "force" in clause 131 as extending to the discharge of firearms created an irreconcilable conflict with clause 303 and Part 19 more broadly. The more permissive and varied list of circumstances in clause 131(4) sat in direct tension with the more confined circumstances prescribed by clause 303, and the accountability mechanisms in each Part also conflicted.

Applying the Anthony Hordern principle, the court resolved the conflict by reading down the general provisions of Part 6. The term "force" in clause 131 was held not to extend to the discharge of a firearm at a person. The "carriage and use" of a firearm as a form of restraint could still fall within clause 131's concept of force in the sense of carrying or brandishing a firearm, but the act of discharging it was governed exclusively by clause 303. The court also noted that clause 303 did not operate as a rigid obligation compelling an officer to fire. The circumstances required proper judgment about whether firing was necessary or whether allowing escape and recapture later was the appropriate course.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the Crimes (Administration of Sentences) Regulation 2014 (NSW), the discharge of a firearm by a correctional officer at a person is governed exclusively by clause 303 (Part 19), not by clause 131 (Part 6), which deals with the use of force more generally.
  • Although the definition of "force" in the 2014 Regulation expressly includes the carriage and use of firearms, reading that definition as extending to the discharge of a firearm created an irreconcilable conflict between Part 6 and Part 19. The court resolved that conflict by reading down the general provisions of Part 6 to exclude the discharge of a firearm.
  • The Anthony Hordern principle applies where a regulatory instrument deals with a subject matter both generally and specifically: the specific provision (here, clause 303 on firearms discharge) prevails over the general one (clause 131 on use of force).
  • "Carriage and use" of a firearm as restraining equipment retains some residual meaning under clause 131, covering actions such as carrying or brandishing a firearm, but stops short of discharging it.
  • Clause 303 does not impose a mandatory obligation to discharge a firearm whenever an inmate escapes. The court confirmed the provision requires an evaluative judgment about whether discharge is necessary in the circumstances, including whether capture at a later time might be the preferable course.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), including ss 2A, 23, 24, 38, 79
- Crimes (Administration of Sentences) Regulation 2014 (NSW), including cll 3, 129, 131, 132, 133, 303
- Crimes Act 1900 (NSW), s 18(2)
- Interpretation Act 1987 (NSW)
- Earlier iterations of the corrections regulations: Crimes (Administration of Sentences) Regulation 2001 (NSW); Crimes (Administration of Sentences) Regulation 2008 (NSW); Prisons Act 1952 (NSW); Prisons Regulation 1968 (NSW)

Cases
- R v Officer A (No 1) [2022] NSWSC 1362
- Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
- Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
- Binse v Williams (1997) 91 A Crim R 340; [1998] 1 VR 381