Citation: R v Officer A (No 4) [2022] NSWSC 1395
Court: Supreme Court of New South Wales
Date: 17 October 2022
Judge(s): Beech-Jones CJ at CL
Background
A correctional officer (referred to throughout as "Officer A") faced a murder charge following the fatal shooting of an escaping prisoner, Mr Johnstone. The Crown alleged the accused fired the third and fatal shot with either an intention to inflict grievous bodily harm or with reckless indifference to human life, and without lawful cause or excuse under s 18(1) and (2) of the Crimes Act 1900 (NSW).
The relevant lawful excuse available under the legislation was that set out in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW), which had been identified in an earlier ruling (R v Officer A (No 2)). The central factual question under that clause was whether the Crown could prove beyond reasonable doubt that the accused either did not believe it was necessary to fire his weapon to prevent the escape, or that any such belief lacked reasonable grounds.
Before trial, the accused applied under s 192A of the Evidence Act 1995 to exclude evidence from a senior corrective services officer concerning the accused's participation in tactical options training in 2016, including his performance in two simulated scenarios involving unarmed inmates.
Legal Issues
- Whether evidence of the accused's 2016 firearms and tactical options training, including an assessment that his response to a scenario involving an unarmed inmate was "not satisfactory," was relevant to the issues at trial
- Whether that training evidence carried a risk of unfair prejudice by inviting the jury to reason that the accused had a tendency or propensity to discharge his firearm inappropriately (tendency reasoning)
- Whether any such prejudice could be adequately managed by limiting directions to the jury
Decision
The court admitted the training evidence, finding it directly relevant to the cl 303 lawful excuse question. Because that clause requires consideration of whether the accused held a belief on reasonable grounds that it was necessary to fire his weapon to prevent escape, the training the accused received, including what he was taught about when firearm use was and was not appropriate, formed part of the factual matrix surrounding his state of mind.
The court acknowledged a meaningful risk that the jury might misuse the evidence. In particular, the jury could reason improperly that because the accused had previously discharged his firearm against an unarmed person during training, he must have had a tendency to do so inappropriately in the real event. That would constitute tendency reasoning and would be an impermissible use of the evidence.
To manage that risk, the court imposed specific constraints on the Crown's conduct of the trial. The Crown was directed not to open its case by suggesting the accused's training performance was unsatisfactory. References in the documents to cl 303 of the Regulation were to be removed from any materials placed before the jury. The accused was also given liberty to apply for a jury direction at the time the evidence was actually adduced, limiting the jury's use of it strictly to the question of what instruction the accused received and what he likely understood from it.
The court's reasons confirmed that the training evidence was capable of demonstrating that the accused received instruction on when firearm use was appropriate, was told his initial response of shooting an unarmed offender was unsatisfactory, and subsequently passed a further assessment in the same scenario. The relevance of this evidence, on the Crown's case, was confined to establishing the content and likely comprehension of the accused's training, not to proving any propensity.
Orders Made
- Evidence of the training instruction, including the accused's performance in the two scenarios identified by Superintendent Southern, admitted at trial
- No reference permitted in oral evidence or tendered documents to cl 303 of the Crimes (Administration of Sentences) Regulation 2014
- Crown directed not to open its case by suggesting the accused's training performance was unsatisfactory, though it may identify the knowledge the accused acquired from training
- Accused granted liberty to apply for a limiting direction to be given to the jury when the training evidence is adduced, restricting its use to the question of the instruction received and the accused's likely understanding of it
Key Takeaways
- Evidence of a correctional officer's participation in tactical options training, including an adverse assessment of his response to a simulated scenario involving an unarmed inmate, was held relevant to the question of whether his belief that it was necessary to discharge a firearm was based on reasonable grounds under cl 303 of the Crimes (Administration of Sentences) Regulation 2014.
- A prior ruling in this matter (R v Officer A (No 1)) had established that training evidence of this kind does not constitute opinion evidence and is admissible on the question of an accused's state of mind.
- Where evidence of prior conduct carries a real risk of tendency reasoning, its admission does not preclude the court from imposing conditions on how the Crown may present it and what uses the jury may make of it.
- Removing statutory references from tendered documents formed part of the court's approach to limiting prejudicial context while preserving the legitimate probative use of the evidence.
- The liberty to apply for a jury direction at the moment the evidence is led reflects a recognition that the adequacy of any limiting instruction may depend on how the evidence is actually presented during trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1) and (2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 303
- Evidence Act 1995 (NSW), ss 69, 192A
Cases
- R v Officer A (No 1) [2022] NSWSC 1362
- R v Officer A (No 2) [2022] NSWSC 1381