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Supreme Court 30 August 2023

R v Officer A

[2023] NSWSC 1033

Homicide
EVIDENCE PENDING RETRIAL MATERIAL CHANGE NOT DETERMINATIVE ACCUSED IS A CORRECTIONAL OFFICER SHOT DECEASED WHILE ESCAPING SCOPE OF LAWFUL AUTHORITY

Citation: R v Officer A [2023] NSWSC 1033
Court: Supreme Court of New South Wales
Date: 30 August 2023
Judge(s): Beech-Jones CJ at CL

Background

The accused, a correctional officer known as Officer A, faced a retrial for murder scheduled for October 2023. The charge arose from events on 15 March 2019, when the accused shot and killed an inmate, Dwayne Johnstone, as he attempted to escape while being escorted from Lismore Base Hospital back to custody. A first trial in late 2022 ended when the jury could not reach a verdict.

The central question at both trials was whether the Crown could prove beyond reasonable doubt that the accused acted without lawful excuse when he fired the fatal shot. The applicable legal framework for a correctional officer's authority to discharge a firearm at an escaping inmate is clause 303(1)(b)(i) of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

Before the retrial, the accused applied to revisit three evidentiary rulings made before or during the first trial. The application relied on section 130A(1) of the Criminal Procedure Act 1986 (NSW), which allows a trial judge to depart from a pre-trial order where it would not be in the interests of justice for the order to remain binding.

Legal Issues

  • Whether the ruling admitting CCTV footage of the accused prodding the deceased with his foot while the deceased was having a fit should be revisited and that portion excluded.
  • Whether the ruling admitting evidence of the accused's participation in a firearm training scenario (Scenario PT03) should be revisited and that evidence excluded.
  • Whether the ruling admitting CCTV footage of the accused making a telephone call outside the hospital shortly before the escape should be revisited.

Decision

Issue 1: CCTV footage of the accused prodding the deceased during a fit

The accused sought to exclude a portion of CCTV footage showing him prodding the deceased with his foot while the deceased lay on a cell floor during an epileptic fit. The argument was that redacting the segment would not reduce the footage's probative value, and the jury might view the prodding as insensitive. The court noted it had already addressed and rejected this precise argument in Officer A (No 5), and a limiting direction was given to the jury at the first trial instructing them not to treat the conduct as character evidence (at [15]-[16]). No new matter was raised on the application, and the court was not persuaded to depart from the earlier ruling (at [17]).

Issue 2: Evidence of training in Scenario PT03

This issue produced the only reversal. Scenario PT03 depicted a prisoner confronting an officer in a threatening manner, a scenario governed by clause 303(1)(a) of the 2014 Regulation, which requires a belief based on reasonable grounds of a substantial probability of death or serious injury. The charge against the accused concerned clause 303(1)(b)(i), which requires a belief based on reasonable grounds of the necessity to discharge a firearm to prevent escape. These are very different preconditions (at [28]).

The court accepted there was an appreciable risk that the jury might apply what Scenario PT03 conveyed about clause 303(1)(a) to their assessment of the lawful authority under clause 303(1)(b)(i) (at [29]). For example, a juror could wrongly conclude that a correctional officer must perceive a threat to safety before lawfully shooting an escaping inmate, when that is not a precondition under clause 303(1)(b)(i). Providing directions about both provisions risked confusing or undermining the jury's understanding of the actual legal test (at [30]). As the jury would still hear other evidence about alternative means of preventing escape, the court held that the probative value of the Scenario PT03 evidence was outweighed by the danger of unfair prejudice under section 137 of the Evidence Act and by the risk of the evidence being misleading or confusing under section 135(b) (at [31]).

Issue 3: CCTV footage of telephone call outside the hospital

The accused challenged CCTV footage showing him leaving the hospital and making a telephone call between 7.23pm and 7.30pm, approximately five minutes before the shooting. The accused argued the footage was irrelevant and prejudicial. On oral argument, the prejudice contention reduced to a repetition of the relevance objection (at [35]). The court found nothing additional warranted departing from the earlier ruling admitting this evidence (at [36]).

Orders Made

  • The evidence of the accused's participation in Scenario PT03 is excluded.
  • The application to revisit the rulings in R v Officer A (No 5) [2022] NSWSC 139, R v Officer A (No 4) [2022] NSWSC 1395, and R v Officer A (unreported, 20 October 2022) is otherwise dismissed.

Key Takeaways

  • Under section 130A(1) of the Criminal Procedure Act 1986 (NSW), a pre-trial ruling remains binding unless departure is in the interests of justice. A material change in circumstances is a relevant starting point but does not exhaust the circumstances in which departure may be warranted (at [10]).
  • Clause 303(1)(a) and clause 303(1)(b)(i) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) impose very different preconditions for the lawful discharge of a firearm by a correctional officer, and conflating them in evidence carries a real risk of misleading a jury about the applicable legal test (at [28]-[29]).
  • Where training scenario evidence relates to a different statutory power than the one at the centre of a charge, there is a basis to exclude it under both section 137 (unfair prejudice) and section 135(b) (misleading or confusing) of the Evidence Act 1995 (NSW), particularly where directions about the difference would themselves risk confusing the jury's understanding of the correct legal standard (at [30]-[31]).
  • A limiting direction given at a first trial is a relevant factor in assessing whether potentially unflattering conduct captured on CCTV should be excluded at a retrial; its prior use without apparent prejudice supports maintaining the ruling on the retrial (at [16]-[17]).
  • The completion of a first trial can constitute a form of changed circumstance for a pre-trial application at retrial, because what use was actually made of the evidence is now known rather than merely anticipated (at [11]).

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- R v Obeid (No 4) [2015] NSWSC 1442
- 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
- R v Officer A (No 4) [2022] NSWSC 1395
- R v Officer A (No 5) [2022] NSWSC 1396