R v Officer A - [2023] NSWSC 1265

Supreme Court

New South Wales

Medium Neutral Citation: R v Officer A [2023] NSWSC 1265
Hearing dates: 23 October 2023
Date of orders: 24 October 2023
Decision date: 30 October 2023
Jurisdiction: Common Law
Before: N Adams J
Decision:
The schedule of the accused’s call charge records is excluded under s 137 of the Evidence Act 1995 (NSW).

Catchwords:
EVIDENCE – murder trial – accused correctional officer charged with murder following shooting of escaping inmate at hospital – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent escape – Crown application to adduce call charge records and evidence of phone calls made by the accused at hospital to rebut evidence of Crown witness – unfavourable witness – real risk of the jury misusing evidence – interests of justice that ruling be revisited in light of new evidence that accused also called a Correctional Services officer while at hospital – full call records not permitted but limited evidence of some calls allowed

Legislation Cited:
Crimes (Administration of Sentences) Act1999 (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 Cited:
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

Texts Cited:
Stephen Odgers SC, Uniform Evidence Law (18th ed, 2023, Lawbook Co).

Category: Procedural rulings
Parties: Rex (Crown)
Officer A (Accused)
Representation:
Counsel:
Mr K McKay SC with Ms S Lind and Ms V Chan (Crown)
Mr P Strickland SC with Mr S Russell and Mr A Wong (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
McNally Jones Staff Lawyers (Accused)

File Number(s): 2021/00035115

JUDGMENT

The accused, referred to in these proceedings as Officer A, stands charged with the murder of Dwayne Johnstone in Lismore on 15 March 2019. At the time of the shooting of Mr Johnstone, the accused was employed by Lismore Court complex as a correctional officer and Mr Johnstone was an inmate who had been refused bail that day.
This interlocutory judgment concerns the admissibility of the accused’s call charge records (CCRs) from approximately 4 pm until 7:45 pm on 15 March 2019 at which time he, along with another correctional officer, Rick Duff, was at Lismore Base Hospital on escort duty guarding Mr Johnstone. Mr Johnstone was shot at 7:34 pm during an attempt to escape. The Crown sought to tender the CCRs to challenge the evidence of a Crown witness who has only recently provided a statement. His anticipated evidence is relevant to the accused’s state of mind prior to the shooting. The Crown has foreshadowed an application under s 38 of the Evidence Act 1995 (NSW) in relation to that witness.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Officer A

Details

AGLC: R v Officer A [2023] NSWSC 1265
Case: [2023] NSWSC 1265
Decision Date: 30 October 2023

CaseChat Overview and Summary

In the case of R v Officer A, the defendant, a correctional officer, stood accused of the murder of an escaping inmate at a hospital. The prosecution argued that the defendant had unlawfully killed the inmate during an attempt to prevent his escape, while the defence contended that the defendant had acted in the belief that it was necessary to use his firearm to stop the escape. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the defendant had a reasonable belief that it was necessary to discharge his firearm to prevent the escape of the inmate. A further issue was whether the Crown could introduce call charge records and evidence of phone calls made by the defendant at the hospital to rebut the evidence of a Crown witness. The court needed to weigh the probative value of this evidence against the prejudicial effect it may have on the jury.

The court determined that while the call records contained information that was relevant to the case, there was a real risk that the jury may misuse the evidence. However, the court also recognised that the interests of justice required the ruling to be revisited in light of new evidence that the defendant had also called a Correctional Services officer while at the hospital. The court concluded that the full call records should not be admitted, but limited evidence of some calls could be allowed to provide context to the events of the day.

The final orders of the court allowed for limited evidence of certain calls made by the defendant at the hospital, while prohibiting the introduction of the full call records. The court emphasised the need to balance the probative value of the evidence with the risk of prejudice to the defendant, and ultimately determined that the interests of justice were best served by permitting only a portion of the call evidence to be presented to the jury.

Orders