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Supreme Court 30 October 2023

R v Officer A

[2023] NSWSC 1265

Homicide
EVIDENCE MURDER TRIAL UNFAVOURABLE WITNESS REAL RISK OF THE JURY MISUSING EVIDENCE

Citation: R v Officer A [2023] NSWSC 1265
Court: Supreme Court of NSW
Date: 30 October 2023
Judge: N Adams J

Background

A correctional officer, referred to throughout proceedings as Officer A, stands charged with the murder of an inmate at Lismore Base Hospital on 15 March 2019. The accused was escorting the inmate, who had been refused bail earlier that day, when the inmate shoved the other officer present and attempted to flee. The accused fired three shots; the third proved fatal. The central issue at trial is whether the accused had a lawful excuse for discharging his firearm, specifically whether he genuinely and reasonably believed it was necessary to do so to prevent the inmate's escape, as permitted under cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

This is the accused's second trial. The first ended in a hung jury in November 2022. The present interlocutory judgment arose during the retrial after the Crown sought, mid-trial, to tender the accused's call charge records (CCRs) covering the period from approximately 4:00 pm to 7:45 pm on the day of the shooting, while the accused was at the hospital.

The Crown sought to use the CCRs primarily to challenge anticipated evidence from a recently identified Crown witness, Mr Nummy, whose statement suggested the accused had requested a third officer before departing for the hospital. The accused objected on relevance grounds and under s 137 of the Evidence Act 1995 (NSW), arguing the prejudicial effect outweighed the probative value.

  • Whether the accused's full call charge records were relevant and admissible under the Evidence Act 1995 (NSW)
  • Whether, if relevant, the CCRs should be excluded under s 137 of the Evidence Act on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether the Crown's late application to adduce this evidence, in circumstances where it had not sought to do so at the first trial, was procedurally appropriate
  • Whether a more limited form of the evidence (establishing only that some calls were not work-related) could be admitted without the same prejudicial risks

Decision

Adams J excluded the full CCR document under s 137 of the Evidence Act, finding that its probative value was outweighed by the danger of unfair prejudice to the accused. The primary concern was that the jury would be exposed to details of multiple personal calls made by the accused in the period before the shooting, including a lengthy call to a woman identified as Ms Howe, and would speculate about the content of those conversations. That risk of impermissible speculation could not be adequately addressed by directions to the jury.

The court noted that the evidence had been shifting in the lead-up to the ruling. What the Crown sought to tender had changed more than once, requiring the defence to continually obtain fresh instructions. The CCRs showed calls to several personal contacts during the relevant period, and the key point the Crown sought to establish, namely that the accused had not immediately called Mr Nummy to request additional officers upon arriving at the hospital, could be established without revealing the full detail of all personal communications. The accused did not call Mr Nummy until approximately one hour and forty minutes after arriving at the hospital, and that timing alone was capable of supporting the Crown's challenge to Mr Nummy's anticipated evidence.

However, the court permitted a more limited form of the evidence to be adduced. Adams J accepted that, in light of Mr Nummy's new statement, the fact that the unanswered calls made by the accused while he was outside the hospital were not work-related was relevant. It was relevant to counter any impression that the accused, who was observed on CCTV outside the hospital with a phone to his ear, was attempting to contact Corrective Services personnel to raise security concerns about the escort. The court found no risk of unfair prejudice associated with admitting that limited piece of evidence. The parties were also directed toward agreeing on general facts about the existence of calls and texts during the hospital period, which the court indicated was consistent with its ruling.

Orders Made

• The detailed CCR document should be excluded under s 137 of the Evidence Act
• Ms Howe's evidence regarding unanswered calls not being work related should be admitted
• The parties should proceed with agreed facts in general terms that some calls and texts were made by the accused whilst at the hospital

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded if its probative value is outweighed by the danger of unfair prejudice to the defendant, and the risk of jury speculation about the content of personal phone calls can constitute such a danger.
  • A court may revisit an earlier evidentiary ruling mid-trial where new evidence emerges that materially changes the basis upon which the original ruling was made, as occurred here when Mr Nummy's statement was provided after the first ruling on the CCRs.
  • Where the Crown can achieve its legitimate evidentiary purpose through a more limited or less prejudicial means, tendering the full body of evidence may not be justified: the court here allowed only a narrow finding about the non-work-related nature of certain calls, rather than the complete call records.
  • The Supreme Court identified a real risk that jurors would draw impermissible negative inferences from evidence of personal calls made in the period before a shooting, particularly where they had no knowledge of what was discussed during those calls.
  • Procedural instability in the presentation of proposed evidence, including a shifting description of what the Crown actually sought to tender, was a relevant contextual factor in assessing the fairness of admitting the material.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 24
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 303
- Criminal Procedure Act 1986 (NSW), s 130A(1)
- Evidence Act 1995 (NSW), ss 38, 55, 137

Cases:
- Colby v The Queen [1999] NSWCCA 261
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Obeid (No 4) [2015] NSWSC 1442
- R v Officer A [2023] NSWSC 1033
- R v Officer A (No 2) [2022] NSWSC 1381