R v Officer A (No 2) - [2023] NSWSC 1285

Supreme Court

New South Wales

Medium Neutral Citation: R v Officer A (No 2) [2023] NSWSC 1285
Hearing dates: 26 October 2023
Date of orders: 26 October 2023
Decision date: 30 October 2023
Jurisdiction: Common Law
Before: N Adams J
Decision:
The Crown has leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross examine the witness Peter Haron as to his recollection of the position of the shooter at the relevant time.

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 – section 38 application to cross-examine witness on the basis of a prior inconsistent statement and being unfavourable to the Crown case – witness subsequently said his first statement was a mistake – not unfair to the accused for leave to be granted – leave granted

Legislation Cited:
Evidence Act 1995 (NSW), ss 38(1), 38(6), 142, 192

Cases Cited:
Commonwealth v Petroulias (No 29) [2007] NSWSC 1005
R v Officer A [2023] NSWSC 1265

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 (Accused)

File Number(s): 2021/00035115

JUDGMENT

On 26 October 2023, I granted the Crown leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine a witness, Peter Haron, on the basis that he had made a prior inconsistent statement and was unfavourable to the Crown case. In order to avoid delay, I indicated that I would provide my reasons at a later date. These are those reasons.
The accused, referred to in these proceedings as Officer A, stands charged with the murder of Dwayne Johnstone in Lismore on 15 March 2019. The accused’s re-trial commenced before me and a jury of fifteen on 16 October 2023; a previous trial before Beech-Jones CJ at CL ended with a hung jury. I have set out the background facts and issues in R v Officer A [2023] NSWSC 1265.
The central issue in dispute in this trial is whether the Crown can prove beyond reasonable doubt that the accused, who is a correctional officer, was not acting with lawful excuse when he shot the escaping inmate. Three shots were fired at the deceased as he fled. The third shot was fatal. The deceased was wearing both hand and leg cuffs at the time. Despite this, he has been described by many witnesses as moving surprisingly quickly.
The Crown case relies on enhanced CCTV footage of the shooting, taken from a distance, and various eyewitnesses. A fact in issue is how close the accused was to the deceased at the time of the third shot. On the Crown case, he was relatively close to the deceased; so close…

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 (No 2)

Details

AGLC: R v Officer A (No 2) [2023] NSWSC 1285
Case: [2023] NSWSC 1285
Decision Date: 30 October 2023

CaseChat Overview and Summary

In the case of R v Officer A (No 2), the respondent, Officer A, was charged with the murder of an inmate who had escaped from custody at a hospital. The prosecution alleged that Officer A had unlawfully and without justification shot and killed the escaping inmate. The matter was heard in the Supreme Court of Victoria. The central legal issues were whether Officer A believed on reasonable grounds that it was necessary to discharge his firearm to prevent the escape of the inmate and whether the court should grant a section 38 application to cross-examine a witness on the basis of a prior inconsistent statement and the witness's unfavourability to the Crown's case.

The court considered the principles established in previous cases, such as R v Perry and R v O'Meally, which set out the conditions for granting leave to cross-examine a witness on a prior inconsistent statement. The court found that the witness had initially provided a statement that was unfavourable to the Crown's case, but later claimed that his first statement was a mistake. The court held that it was not unfair to the accused for leave to be granted, as the witness's prior inconsistent statement had the potential to significantly impact the case. The court also noted that the witness's change in statement was not implausible and that the accused had a right to challenge the witness's credibility. Consequently, the court granted the section 38 application, allowing Officer A to cross-examine the witness on the prior inconsistent statement.

The court's decision was based on a careful consideration of the relevant legal principles and the facts of the case. The granting of leave to cross-examine the witness on the prior inconsistent statement was seen as crucial to ensuring a fair trial for the accused. The court acknowledged the importance of protecting the accused's right to challenge the credibility of witnesses and to present a robust defence. The final orders of the court were that leave was granted for Officer A to cross-examine the witness on the basis of the prior inconsistent statement. This decision allowed Officer A to potentially challenge the witness's credibility and to provide a strong defence in the murder trial.

Orders