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Supreme Court 17 October 2022

R v Officer A (No 6)

[2022] NSWSC 1413

Homicide
CRIMINAL LAW CROWN APPLICATION FOR A VIEW TRIAL IN SYDNEY EVENTS TOOK PLACE IN LISMORE DIFFICULTIES ORGANISING VIEW VERY LATE APPLICATION

Citation: R v Officer A (No 6) [2022] NSWSC 1413
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 proceedings as "Officer A," faced a charge of murder arising from the fatal shooting of an escaping inmate on the evening of 15 March 2019. The events occurred outside Lismore Base Hospital, where the accused and another correctional officer were escorting the deceased back to custody after a hospital visit. The deceased attempted to escape by running across a street and up a ramp at a nearby doctor's surgery, and was fatally struck by the third of three shots discharged by the accused.

The central issue at trial was whether the accused had discharged that third shot with lawful cause or excuse, as governed by cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). That clause required the Crown to disprove either that the accused believed the shot was necessary to prevent the escape, or that he had reasonable grounds for that belief. The layout, topography, distances, and lighting conditions of the location were therefore directly relevant to the jury's assessment.

The trial was due to commence in Sydney, with jury empanelment set for Wednesday 19 October 2022. On Friday 14 October 2022, the Crown gave notification that it intended to apply for a jury view of the Lismore site under s 53 of the Evidence Act 1995 (NSW). The accused opposed the application.

  • Whether the court should exercise its discretion under s 53 of the Evidence Act 1995 (NSW) to order a jury view (an on-site inspection) of the location in Lismore where the shooting occurred.
  • Whether the logistical difficulties and timing of the application created a real risk of unfairness to the accused, including the potential vacation of the trial date.
  • What weight should be given to the availability of alternative evidence, such as CCTV footage, a Computer Assisted Diagram (CAD), photographs, and a defence video recording of the area.

Decision

Beech-Jones CJ at CL accepted that a view of the Lismore site would offer the jury some benefit, particularly given the relevance of distances, topography, and lighting conditions to the cl 303 defence. However, the court found that the jury would have sufficient alternative evidence before it to make an informed assessment, including CCTV footage, a CAD of the area, photographs, eyewitness accounts, and a defence video recording.

The practical obstacles to organising the view were substantial. Transporting 15 jurors, the judge, and other court officials from Sydney to Lismore would require either a nine-hour bus journey or a partitioned commercial flight to the Gold Coast followed by ground transport. Either option would likely require the jury to be sequestered overnight, possibly for two nights, in Lismore, where flood damage had significantly reduced available accommodation. The court found these logistical steps could not be completed before jury empanelment on Wednesday, meaning the trial would almost certainly be pushed back and carried a real and appreciable risk of being vacated entirely for that year.

The court also noted that while the possibility of a view had been mentioned in a Crown statement filed earlier in proceedings, no proper application had been made until the Friday before the trial was due to commence. The accused was entirely without fault for the delay and was pressing for the earliest possible trial date on the most serious charge in the Crimes Act 1900 (NSW).

Applying the mandatory considerations under s 192 of the Evidence Act, particularly the risk of undue lengthening of proceedings and unfairness to the accused, the court refused the application. The combination of the very late timing, the serious logistical difficulties, the adequacy of the available alternative evidence, and the potential for significant prejudice to the accused led to that conclusion.

Orders Made

• The application for a view is refused.

Key Takeaways

  • Under s 53 of the Evidence Act 1995 (NSW), a court retains a discretion to refuse an application for a jury view even where the inspection would provide some benefit, if countervailing factors outweigh that benefit.
  • Section 192 of the Evidence Act requires courts considering evidentiary orders to weigh factors including the likely length of proceedings and unfairness to a party. Here, the risk that a view would cause the trial to be vacated was treated as a form of unfairness to the accused sufficient to defeat the application.
  • A very late application for a view, made without prior adequate notice and just days before jury empanelment, will attract close scrutiny of the prejudice it may cause, particularly where the accused is not at fault for the delay.
  • The availability of substantial alternative evidence, including CCTV footage, a CAD, photographs, and witness accounts, weighed against the necessity of conducting an on-site inspection.
  • Significant changes to the site since the date of the relevant events, including the removal of demountable buildings and alterations to landscaping, also limited the probative value of any view that could have been conducted.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 53, 136, 192
- Criminal Procedure Act 1986 (NSW), s 142
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 303

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