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

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A (No 1) [2022] NSWSC 1362
Hearing dates: 6 October 2022
Date of orders: 11 October 2022
Decision date: 11 October 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
The evidence of John Harrison to the effect that the accused’s action were “consistent with” his training is rejected.

Catchwords:
EVIDENCE – opinion rule – exception for expert opinion – accused is a correctional officer – shot deceased while deceased was escaping from custody – accused charged with murder – whether Crown can disprove existence of lawful excuse – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent the escape of the deceased – evidence to be adduced as to accused’s training in use of firearms – accused seeks to adduce evidence from training expert that his discharge of fatal shot was consistent with his training – whether expert has “specialised knowledge” based on training, study or experience and, if so, scope – whether opinion of expert substantially based on specialised knowledge – Held – opinion rejected – witness does not have specialised knowledge that would enable him to give opinion about consistency between accused’s conduct and the accused’s training – witness can give evidence as to the content of the training received by accused

Legislation Cited:
Crimes (Administration of Sentences Act) Regulation 2014 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
ASIC v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095
Aziz (a pseudonym) v R [2022] NSWCCA 76
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
State of Western Australia v BW [2021] WASC 326
The Queen v Rolfe (No 4) [2021] NTSC 58
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4

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

File Number(s): 2021/35115

JUDGMENT

On 6 October 2022 the accused, known as “Officer A”, was arraigned before me in the absence of a jury panel on an indictment that charged him with the murder of Dwayne Johnstone on 15 March 2019. He pleaded not guilty. His trial before a jury is due to commence on 17 October 2022.
On the same day I heard an application under s 192A of the Evidence Act 1995 (NSW) for an advanced ruling on the admissibility of certain evidence that the accused seeks to lead at the trial from the General Manager of Security Operations within the Department of Corrective Services (“Corrective Services”), John Harrison. At the commencement of the application, the Court was advised that the evidence the subject of the…

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.

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Details

Case: [2022] NSWSC 1362
Decision Date: 11 October 2022

CaseChat Overview and Summary

In the case of R v Officer A (No 1), the accused was a correctional officer who was charged with murder following the shooting of a deceased individual who was attempting to escape from custody. The central issue before the court was whether the Crown could disprove the existence of a lawful excuse for the accused’s actions, specifically whether the accused believed on reasonable grounds that it was necessary to discharge his firearm to prevent the escape of the deceased. The court had to consider the admissibility of expert opinion evidence regarding the accused’s training in the use of firearms and whether the expert witness could provide an opinion on the consistency between the accused’s conduct and his training.

The court held that the opinion of the expert witness was not admissible as it did not meet the criteria for an exception to the opinion rule. The court found that the expert witness did not possess the necessary “specialised knowledge” based on training, study, or experience that would allow them to give an opinion on the consistency between the accused’s conduct and his training. The court did, however, permit the expert witness to give evidence as to the content of the training received by the accused, which could be considered by the jury in assessing the reasonableness of the accused’s belief.

The court’s reasoning was grounded in the principles of expert opinion evidence, emphasising the need for the expert to have a sufficient basis in specialised knowledge to provide a reliable opinion. The court concluded that while the expert could testify about the training content, they could not offer an opinion on whether the accused’s actions were consistent with that training. This distinction was crucial in determining the admissibility of the evidence and its potential impact on the jury’s evaluation of the accused’s defence. The court’s decision highlights the importance of distinguishing between factual testimony and expert opinion in criminal trials.

Orders