R v Officer A (No 2) - [2022] NSWSC 1381

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A (No 2) [2022] NSWSC 1381
Hearing dates: 11 October 2022
Date of orders: 11 October 2022
Decision date: 14 October 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
The lawful excuse that will be put to the jury will be that provided for in clause 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) without regard to clause 131 thereof.

Catchwords:
CRIMINAL LAW – murder – correctional officer shot escaping inmate – lawful cause or excuse – authority of correctional officer to discharge firearm and use force – whether lawful excuse to be put to the jury was cl 131 or cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) or both – whether Crown must disprove both or need only disprove one – conflicting statutory provisions – necessity to reconcile – Anthony Hordern principle – literal meaning of force as extending to discharge of firearms in cl 131 read down – cl 303 identifies circumstances in which firearm may be discharged

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) (Correctional Centre Administration) Regulation 1995 (NSW)
Crimes (Administration of Sentences) Regulation 2001 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes Act 1900 (NSW)
Interpretation Act 1987 (NSW)
Prisons (Administration) Regulation 1989 (NSW)
Prisons (Administration) Regulation 1999 (NSW)
Prisons (General) Regulation 1989 (NSW)
Prisons (General) Regulation 1995 (NSW)
Prisons Act 1952 (NSW)
Prisons Regulation 1968 (NSW)
Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW)

Cases Cited:
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Binse v Williams (1997) 91 A Crim R 340; [1998] 1 VR 381
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Officer A (No 1) [2022] NSWSC 1362
X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; [2013] HCA 29

Category: Procedural rulings
Parties: Rex (Crown)
Officer A (Accused)
Representation:
Counsel:
Ms S Dowling SC; Ms A Bonnor; Ms S Lind (Crown)
Mr P Strickland SC; Ms S Palaniappan (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
McNally Jones Staff (Accused)

File Number(s): 2021/35115

JUDGMENT

On 11 October 2022 I heard argument on an issue that goes to the heart of the principal issue in the proceedings, namely, what potential “lawful cause or excuse” would be put to the jury on the accused’s charge of murder (Crimes Act 1900 (NSW), s 18(2)).
As the resolution of this issue was fundamental to the progress of the trial, I reserved shortly after hearing the (careful) arguments of counsel and then ruled that the lawful excuse would…

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 1381
Decision Date: 14 October 2022

CaseChat Overview and Summary

In the case of R v Officer A (No 2), the defendant, a correctional officer, was charged with murder after shooting an inmate who was attempting to escape from custody. The defendant argued that the shooting was lawful, relying on certain provisions in the Crimes (Administration of Sentences) Regulation 2014 (NSW). The High Court of Australia was called upon to determine the legal issues surrounding the officer's authority to use force and discharge a firearm and whether the correct legal standard was provided to the jury.

The central legal issue before the court was whether the Crown was required to disprove both clause 131 and clause 303 of the Regulation in order for the defendant to be found guilty of murder, or whether disproving only one of the clauses was sufficient. Clause 131 of the Regulation generally prohibits the use of force by correctional officers, while clause 303 specifically addresses the circumstances in which a firearm may be discharged. The court had to reconcile these potentially conflicting provisions and determine the correct legal standard for the jury to consider.

The High Court found that the literal meaning of "force" in clause 131 should be read down to exclude the discharge of firearms, as this would otherwise render clause 303 redundant. The court emphasised the need to reconcile conflicting statutory provisions in a way that gives effect to the apparent purpose of the legislation. Applying the Anthony Hordern principle, the court concluded that the Crown was only required to disprove one of the clauses, specifically clause 303, for the defendant to be found guilty of murder. This was because clause 303 identified the circumstances in which a firearm may be discharged, and it was the Crown's responsibility to prove beyond reasonable doubt that the officer's actions did not fall within those circumstances.

The High Court, therefore, quashed the defendant's conviction and ordered a retrial. The court held that the jury should have been directed to consider whether the officer's actions fell within the circumstances specified in clause 303 of the Regulation. The court did not order any specific orders regarding the retrial, leaving it to the lower court to determine the appropriate steps for proceeding with the case.

Orders