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Supreme Court 18 October 2022

R v Officer A (No 5)

[2022] NSWSC 1396

Homicide
EVIDENCE ACCUSED MOSTLY PRESENT S 137 OF EVIDENCE ACT 1995 (NSW) NO REAL DANGER OF PREJUDICIAL REASONING

Citation: R v Officer A (No 5) [2022] NSWSC 1396
Court: Supreme Court of New South Wales
Date: 18 October 2022
Judge(s): Beech-Jones CJ at CL

Background

A correctional officer (referred to throughout as "Officer A") is charged with murder following the fatal shooting of a prisoner, Mr Johnstone, who was attempting to escape from custody outside Lismore Base Hospital on the evening of 15 March 2019. The Crown alleges the accused fired the third and fatal shot with an intention to inflict grievous bodily harm or with reckless indifference to human life, and without lawful justification.

Earlier that afternoon, Mr Johnstone had been refused bail and returned to a cell at the Lismore Court complex. He suffered what appeared to be an epileptic fit in that cell. A Justice Health nurse attended, and Mr Johnstone was subsequently transferred to Lismore Base Hospital under a statutory order, escorted by the accused and a colleague. He was later shot while running across a road in an apparent escape attempt.

The accused sought a pre-trial ruling to exclude CCTV footage of Mr Johnstone in the cells that afternoon. The Crown wished to tender the footage as evidence of what the accused knew about Mr Johnstone's physical condition at the time of the shooting, hours later.

  • Whether the 15-second portion of the CCTV footage showing Mr Johnstone beginning to fit, recorded while the accused was absent from the cell, was admissible given uncertainty about whether the accused actually observed it.
  • Whether footage showing the accused using his foot to prod Mr Johnstone's feet during the fit created a risk of "callous disregard" reasoning that could unfairly prejudice the accused.
  • Whether the overall dramatic and distressing nature of the footage might cause the jury to reason illegitimately that Mr Johnstone's medical condition negated any honest belief the accused had that shooting was necessary to prevent escape.
  • Whether the probative value of the footage was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).

Decision

On the first issue, Beech-Jones CJ at CL held that the 15-second segment showing Mr Johnstone beginning to fit was admissible even though the accused was not physically in the cell at the time. The combination of evidence, including that a monitor in the nearby office displayed the cell feed, the accused's own statement that he was in that office and that "next minute he's fitting," and the fact that the accused rushed into the cell shortly afterward, was capable of supporting an inference that the accused was watching the cell via the monitor. The one exception was that the Crown conceded there was no evidence the accused saw Mr Johnstone fall from his bed, and accordingly the Crown was required to make that concession to the jury when the footage was tendered.

On the second issue, the court rejected the submission that the prodding scene would lead the jury to conclude the accused had shown callous disregard for Mr Johnstone. Beech-Jones CJ at CL observed that the movement appeared directed at placing Mr Johnstone in a more stable and safe position while the nurse was on the way, and that the Crown expressly disclaimed any suggestion of improper conduct. The risk of prejudicial reasoning was not considered significant enough to outweigh the probative value of the evidence.

On the third issue, the court accepted that some jurors might find the footage distressing. However, it found no real danger of illegitimate reasoning. The probative value of the footage, namely what the accused knew about Mr Johnstone's physical and medical condition some five hours before the shooting, was directly relevant to the central question of whether the accused held a belief on reasonable grounds that discharging his firearm was necessary to prevent escape. Written admissions proposed by the defence were considered a very imperfect substitute for what the jury could properly assess from the footage itself.

The application to exclude the footage under s 137 was refused. Beech-Jones CJ at CL reserved to the accused the liberty to apply for a limiting direction to the jury when the footage was adduced, and provided a draft direction to that effect.

Orders Made

  • CCTV footage of the deceased in the cells on 15 March 2019 admitted on the condition that the Crown advise the jury it accepts the accused did not see the deceased fall from his bed.
  • Liberty reserved to the accused to apply for a direction to the jury at the time the evidence is adduced, to the effect that: (i) the Crown accepts there was nothing inappropriate or improper in the accused's dealings with the deceased in the cells; and (ii) the jury may only use the footage to assess the accused's knowledge of the deceased, and for no other purpose.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice; here, the Supreme Court found that CCTV footage of a deceased prisoner's medical episode retained sufficient probative value to be admitted despite its distressing content.
  • Footage recorded while an accused was not physically present can still be admissible where circumstantial evidence, including monitor access, the accused's own statements, and subsequent conduct, supports an inference that the accused was observing events remotely.
  • A Crown concession about the limits of what an accused observed can form part of the conditions on which evidence is admitted, providing a targeted response to a specific admissibility concern without requiring the footage to be edited or excised.
  • Where a real but not significant risk of prejudicial reasoning exists, a limiting jury direction may be an appropriate safeguard rather than a ground for exclusion of the evidence entirely.
  • The probative value of evidence concerning an accused's pre-incident knowledge of a deceased's physical condition was held to be directly relevant to the reasonableness of the accused's belief in the necessity of using lethal force, which was the central issue at trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137, s 192A
- Crimes Act 1900 (NSW), ss 18(1) and (2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 303, cl 131

Cases
- R v Officer A (No 1) [2022] NSWSC 1362
- R v Officer A (No 2) [2022] NSWSC 1381
- R v Officer A (No 3) [2022] NSWSC 1394