Citation: R v Officer A (No 3) [2022] NSWSC 1394
Court: Supreme Court of New South Wales
Date: 17 October 2022
Judge(s): Beech-Jones CJ at CL
Background
A correctional officer (identified only as Officer A) was charged with murder following the shooting of an escaping prisoner, Mr Johnstone, on 15 March 2019. The Crown alleged the accused fired the third and fatal shot with intent to inflict grievous bodily harm, or with reckless indifference to human life, and without lawful excuse. The central lawful excuse question turned on cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW), which permits a correctional officer to discharge a firearm if the officer believes on reasonable grounds that doing so is necessary to prevent a prisoner's escape.
Mr Johnstone had been arrested on 14 March 2019, refused bail, and was being escorted to hospital under a s 24 order when he attempted to escape. The accused sought to tender a range of documents relating to Mr Johnstone's criminal history, past escape attempts, custodial records, and Corrective Services policy documents. The Crown opposed the tender of those materials where there was no evidence the accused had seen or been informed of their contents.
This judgment provides the reasons for a ruling made on 11 October 2022, following a voir dire (a preliminary hearing to determine admissibility) on the admissibility of those documents.
Legal Issues
- Whether evidence of the deceased's criminal antecedents, past escapes, and custodial conduct was relevant to the issues arising under cl 303 of the Regulation, even where there was no evidence the accused knew of that material at the time of the shooting.
- Whether such material could be admitted as tendency evidence to establish that Mr Johnstone intended to escape, was determined to do so, and would not heed warnings.
- Whether a Corrective Services policy document on medical escorts was relevant to the issues at trial.
Decision
The court held that evidence of the deceased's antecedents and prior conduct is only admissible to the extent the accused was aware of it at or around the time of the shooting. The legal test under cl 303 is subjective and objective: did the accused hold the relevant belief, and was that belief based on reasonable grounds? Both limbs concern the accused's mental state and the information available to him. Material of which the accused was unaware cannot rationally affect either inquiry and therefore fails the relevance threshold under s 55(1) of the Evidence Act 1995 (NSW).
The court rejected the accused's argument that evidence of Mr Johnstone's past escapes and failure to follow authority was relevant to show he was "intent to ignore commands" or would not heed warning shots on the day in question. The court noted that the fact of the escape, and the fact that Mr Johnstone did not heed verbal warnings or warning shots, were not in dispute. Tendency evidence directed at proving those undisputed facts served no legitimate forensic purpose.
The ruling was expressly interlocutory (that is, provisional and capable of revisiting). In particular, the court left open the possibility that certain documents, including the s 24 order noting Mr Johnstone's escape history, might become admissible if evidence emerged at trial that the accused had in fact been shown or told of their contents. A Corrective Services officer, Ms Henderson, had given a statement that she told the accused and a fellow officer that Mr Johnstone was an escape risk, and the jury may prefer that account over the accused's recollection that he had not been told.
The proposed tender of the Corrective Services "Medical Escorts" policy was refused outright. Whether Mr Johnstone should have been escorted differently, with a third officer or a restraint belt, was not a live issue in the trial. The trial was not a vehicle for scrutinising Corrective Services policy; the only relevant question was what the accused believed at the moment he fired.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW), the relevant question is whether an accused correctional officer believed on reasonable grounds that discharging a firearm was necessary to prevent escape. Both the subjective and objective limbs of that test are confined to information available to the accused at the relevant time.
- Evidence of a deceased's prior criminal conduct, escape history, and custodial behaviour is not relevant to a cl 303 lawful excuse defence unless there is some evidence that the accused knew of that material when the firearm was discharged.
- Tendency evidence directed at proving facts that are not in dispute at trial lacks the relevance necessary for admission. Where the fact of an escape and the deceased's failure to heed warnings are not contested, tendency evidence establishing those same facts adds nothing.
- Rulings on admissibility made during a voir dire can be interlocutory in character. The court signalled that its ruling excluding certain Corrective Services documents would be revisited if evidence at trial established that the accused had been informed of their contents.
- A Corrective Services policy document bearing on how an escort "should have" been conducted was held irrelevant. Questions about what protective measures should have been taken by others do not bear on the accused's belief at the time of the shooting.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 303
- Evidence Act 1995 (NSW), ss 55(1), 192A
Cases:
- R v Officer A (No 1) [2022] NSWSC 1362
- R v Officer A (No 2) [2022] NSWSC 1381
- State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185
- R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280
- R v Hajistassi (2010) 107 SASR 67
- R v PP (2002) 135 A Crim R 575