R v Officer A - [2023] NSWSC 1033

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A [2023] NSWSC 1033
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 30 August 2023
Jurisdiction: Common Law - Criminal
Before: Beech-Jones CJ at CL
Decision:
The evidence of the accused’s participation is 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.

Catchwords:
EVIDENCE – pending retrial – application to revisit rulings made either prior to or during first trial – whether not in interests of justice for ruling to be binding – whether material change in circumstances – material change not determinative – accused is a correctional officer – shot deceased while escaping – scope of lawful authority – whether evidence of accused prodding deceased in cells with foot while deceased having a fit should be excluded – no matter raised warranting revisiting ruling – evidence of accused’s participation in training scenario involving confrontation with violent prisoner – ruling reversed – potential to confuse jury’s understanding of correctional officer’s authority to discharge firearm at escaping prisoner – evidence of accused taking a telephone call outside hospital where inmate located just prior to escape – no matter raised warranting revisiting ruling

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

Cases Cited:
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

Category: Procedural rulings
Parties: Rex (Crown)
Officer A (Accused)
Representation:
Counsel:
Mr K McKay SC; Ms S Lind; Ms V Chan (Crown)
Mr P Strickland SC; Mr S Russell; Mr A Wong (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
McNally Jones Staff (Accused)

File Number(s): 2021/35115

JUDGMENT

The accused, known as Officer A, is due to stand trial on a charge of murder on 11 October 2023. He previously stood trial from 19 October 2022 to 14 November 2022, but the jury was discharged after it was unable to reach a verdict (the “first trial”).
On 18 August 2023, I heard oral argument on an application made by the accused to revisit three evidentiary rulings I made prior to and during the course of the first trial. At the conclusion of oral argument, I announced that I would not change two of the rulings but would (partially) reverse a third. I indicated that I would provide reasons at a later time. This judgment constitutes those reasons.

Background

The accused is a correctional officer. As at 15 March 2019, the deceased, Dwayne Johnstone, was an inmate at a correctional centre. It is not in…

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 1033
Case: [2023] NSWSC 1033
Decision Date: 30 August 2023

CaseChat Overview and Summary

In the matter of R v Officer A, the accused, a correctional officer, was charged with the unlawful shooting of a deceased person while they were escaping. The case was heard in the Supreme Court, where the accused applied to revisit rulings made either prior to or during the first trial concerning the admissibility of certain evidence. The court was required to determine whether it was in the interests of justice to revisit these rulings, given the possibility of a material change in circumstances.

The legal issues at hand involved whether the evidence of the accused prodding the deceased in the cells with his foot while the deceased was having a fit should be excluded, whether evidence of the accused's participation in a training scenario involving a confrontation with a violent prisoner should be excluded, and whether evidence of the accused taking a telephone call outside a hospital where the inmate was located just prior to the escape should be excluded. The court found that the evidence of the accused prodding the deceased in the cells with his foot while the deceased was having a fit did not warrant revisiting the ruling, as it was not raised as a matter that warranted revisiting. However, the evidence of the accused's participation in a training scenario involving a confrontation with a violent prisoner was ruled to be inadmissible as it had the potential to confuse the jury's understanding of the correctional officer's authority to discharge a firearm at an escaping prisoner. The evidence of the accused taking a telephone call outside a hospital where the inmate was located just prior to the escape was also ruled to be inadmissible, as it did not warrant revisiting the ruling.

The court held that the accused is a correctional officer who shot a deceased person while they were escaping. The court considered the scope of lawful authority and whether evidence of the accused prodding the deceased in the cells with his foot while the deceased was having a fit should be excluded. The court also considered whether evidence of the accused's participation in a training scenario involving a confrontation with a violent prisoner and evidence of the accused taking a telephone call outside a hospital where the inmate was located just prior to the escape should be excluded. The court reversed the ruling on the evidence of the accused's participation in a training scenario involving a confrontation with a violent prisoner, as it had the potential to confuse the jury's understanding of the correctional officer's authority to discharge a firearm at an escaping prisoner. The court did not revisit the rulings on the other two pieces of evidence, as they did not warrant revisiting.

The court ordered that the evidence of the accused's participation in a training scenario involving a confrontation with a violent prisoner should be excluded from the evidence in the pending retrial. The court did not order any changes to the rulings on the other two pieces of evidence.

Orders