R v Officer A (No 3)

[2024] NSWSC 1265

Supreme Court

New South Wales

Medium Neutral Citation:

R v Officer A (No 3) [2024] NSWSC 1265

Hearing dates:

31 May 2024

Date of orders:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

Application under the Costs in Criminal Cases Act 1967 (NSW) for a costs certificate is refused.

Catchwords:

CRIMINAL PROCEDURE — Costs application for certificate pursuant to Costs in Criminal Cases Act 1967 – where applicant acquitted of charge of murder by a jury – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – application dismissed

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4

Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 131, 303

Cases Cited:

Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) A Crim R 580

Higgins v R (No 2) [2022] NSWCCA 82

Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510

R v John Fejsa (1995) 82 A Crim R 253

R v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196

R v Moore [2015] NSWSC 1263

R v Officer A [2023] NSWSC 1033

R v Officer A [2023] NSWSC 1265

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

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

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

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

R v Officer A (No 6) [2022] NSWSC 1413

R v Pavy (1997) 98 A Crim R 396

Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202

Category:

Costs

Parties:

Rex (Crown)
Officer A (Applicant)

Representation:

Counsel:
K McKay SC (Crown)
P Strickland SC/A Wong (Applicant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
McNally Jones Staff (Applicant)

File Number(s):

2021/35115

Publication restriction:

Order made by Magistrate Linden on 26 May 2021 pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) in operation until 25 May 2026.

JUDGMENT

1. On 15 March 2021, Dwayne Johnstone was shot in the back and died. He was a 44-year-old Indigenous man. Shortly before his death he had been escorted by two correctional officers from Lismore Base Hospital to a van parked outside. Despite being in both hand and leg cuffs Mr Johnstone (“the deceased”) tried to escape by running across the road and up a ramp to the front door of a closed doctor’s office. He was shot by one of the correctional officers whilst he was part-way up the ramp and died shortly thereafter. Pursuant to orders made in 2021, the officer who shot the deceased is to be known only as “Officer A”.

2. An inquest into the death was conducted in 2021 and the matter was referred to the Director of Public Prosecutions (NSW) for consideration of charges. Officer A was subsequently charged with manslaughter in 2021 and in 2022 that charge was upgraded to murder contrary to s 19 of the Crimes Act1900 (NSW).

3. Officer A first stood trial before Beech-Jones CJ at CL and a jury, between 19 October and 14 November 2022. On 14 November 2022, the jury was discharged when they were unable to reach a verdict and the matter was listed for re-trial.

4. The matter was reallocated to me in September 2023, and the re-trial commenced before me and a jury on 16 October 2023. On 13 November 2023, the jury returned verdicts of not guilty in relation to both murder and manslaughter.

5. After the verdicts, Mr Strickland SC, who appeared for Officer A at the trial, foreshadowed the making of an application for costs. Over the next few months, a timetable for the filing of submissions and evidence was fixed. The hearing of the costs application was ultimately heard by me on 31 May 2024 at which time I reserved my decision.

Costs in Criminal Cases Act

6. The Costs in Criminal Cases Act 1967 (NSW) (“the Act”) provides an exception to the general rule that costs orders are not made in criminal proceedings.

7. Under the Act, costs can be awarded to a defendant who, relevantly, is acquitted of criminal charges, but only on a limited basis. Section 2 of the Act provides the power for the court to make such an order, s 3 sets out the statutory test to be established before a costs certificate can be granted and s 4 sets out the effect of a certificate being granted. Sections 2, 3 and 4 of the Act are in these terms:

2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

…

3 Form of certificate

A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

4 Payment of costs

(1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate.

(2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3).

…

8. The Crown did not challenge the applicant’s assertion that no act or omission on his part contributed or might have contributed to the institution or continuation of the proceedings against him.

9. As the Court of Appeal recently observed in Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202 at [10]:

“The effect of the grant of such a certificate is that, pursuant to s 4 of that Act, the grantee may apply to the Secretary of the Department of Communities and Justice for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. (Section 4 of the Costs Act refers to the Director-General of the Attorney General's Department but it was common cause that that statutory function is now performed by the Secretary or his delegate.)”

Relevant authorities

10. The legislative scheme has been considered in numerous decisions of this Court and the relevant principles are well settled. In R v Pavy (1997) 98 A Crim R 396, the court observed that the question is to be determined in this way:

“The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s 3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for:

‘… a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application (see Allerton v DPP (1991) 24 NSWLR 550 per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994).’”

11. As to what is meant by “relevant facts”, in Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) A Crim R 580, Ipp JA (Giles JA agreeing) observed at [29]:

“‘All the relevant facts’, as this phrase is used in s 3(1)(a), are facts relevant to the reasonableness of the institution of the criminal proceedings. That is because, in that section, the ‘relevant facts’ are concerned solely with that issue. Section 3A(1) is a definition section relating to the meaning of ‘all the relevant facts’ in s 3(1). Therefore, the word ‘relevant’ in the phrase ‘relevant facts’ in s 3A(1) must carry the same meaning as that word in s 3(1), namely, facts relevant to the reasonableness of the institution of the criminal proceedings.”

12. As Wood CJ at CL noted in R v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [12], endorsing the observations of the trial judge (Blanch J), the test for unreasonableness is not based on whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious. As the Court of Criminal Appeal observed in R v John Fejsa (1995) 82 A Crim R 253 at 3, there is no “all-embracing definition” of what is reasonable. Such a judgment is best left to the circumstances of the particular case. Despite this, it is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue.

13. The relevant principles guiding an application where the Crown case was heavily reliant on the credibility of one or more witnesses were stated in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (“Mordaunt”) by McColl JA (Beazley and Hodgson JJA agreeing) as follows at [36]:

“Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weaknesses in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by a jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.”

(Emphasis added.)

14. More recently, in Higgins v R (No 2) [2022] NSWCCA 82, the Court of Criminal Appeal held at [20] that, “it is well established that where there are questions about the credibility of witnesses, it will generally not be unreasonable for a prosecutor to allow those questions to be decided by the tribunal of fact, usually a jury. The administration of justice usually leaves to the tribunal of fact determinations about the credit of witnesses.” The CCA went on at [21] to observe that, “[t]here is no single bright line test as to when it would not be reasonable for a prosecution to have been instituted.” Further, it was noted (at [24]) that the assessment of reasonableness “must turn on the precise and peculiar facts and circumstances of the case.”

15. Relevantly to the present application, the Crown relied on the following observations of Hamill J in R v Moore [2015] NSWSC 1263 at [28]-[29] regarding the exclusion of evidence:

“The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge.

There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Costs in Criminal Cases Act 1967 (NSW). Equally, there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire…”

(Emphasis added.)

16. It seems to me that the principle derived from R v Moore that the hypothetical prosecutor is not to be attributed with the ability to predict the exercise of discretion residing in the trial judge, applies to any rulings that the trial judge might make.

The “relevant facts”

17. The decision whether or not to grant a costs certificate under the Act is to be made based on the relevant facts. Those facts include the evidence at trial, which, in this case, was significant. The second trial (over which I presided) proceeded over 20 days. Thirty-four witnesses were called for the prosecution. They included eyewitnesses at and in the vicinity of Lismore Base Hospital, Corrective Services officers, police officers and expert witnesses. In addition, 102 exhibits were tendered.

18. I do not consider it necessary to summarise the evidence at trial in any detail. Rather, I propose to use the “Key Relevant Facts” document tendered on behalf of Officer A (hereinafter “the applicant”) and supplement it with other evidence. Although a number of “facts” in that document were relied upon by the applicant as proven facts, some of them were not accepted by the Crown as being necessarily established. In particular, the Crown disputed the contention that the deceased appeared not to slow down when he was being chased and that he was running faster than Mr Duff. The Crown submitted that distances were in issue between the parties at trial. The Crown also disputed the applicant’s assertions that he said something twice before the first shot, that similar words were said between the first and second shot and whether some words were said by the applicant between the second and the third shot.

19. The incident was observed by a number of onlookers from different angles. Some witnesses had their line of sight impeded. Some saw only the start, some saw the end and some saw all of it. Witnesses also heard things differently. There is obviously a significant difference between whether a finding was open on the evidence and whether it was the only available finding.

Overview of the Crown case

20. The deceased was arrested on the evening of 14 March 2019 and charged with assault occasioning actual bodily harm. He was refused bail by the police early in the morning of 15 March 2019 and was again refused bail by the Local Court sitting in Lismore later that day.

21. The sound recording of the bail application in the Local Court was tendered and played at the trial. The applicant was present in court for that application. He was thus aware that the deceased was already on bail for matters when it was alleged that he had assaulted an elderly man with a taser. The applicant was present in court when the presiding Magistrate stated that if convicted of the allegation, “it would be utterly inevitable that he [the deceased] would be imprisoned for a lengthy period of time”.

22. At around 12.38pm, the deceased was handed over from the custody of police officers to the custody of Corrective Services.

23. Whilst he was in the cells, the deceased appeared to have some sort of fit. CCTV footage of this incident was an exhibit at the trial. The officer who attended to him was somewhat sceptical of the genuineness of the incident, but the deceased told him that his father had died of a heart attack at a young age, so a decision was made to take the deceased to hospital (other evidence was called to the effect that the deceased’s father was in fact still alive).

24. At around 3.40pm, the deceased was transferred from the cells at the Lismore Court complex to Lismore Base Hospital to receive medical attention. The two Corrective Services officers who escorted him to the hospital and remained with him were the applicant and Mr Duff.

25. This was the first time that Mr Duff had ever been put on escort duty. He had only been working as a casual officer for seven weeks and had worked between one to five days per week. He had not finished his Certificate Ill in Correctional Practice course. The applicant was aware of this.

26. Although the deceased had a previous incident of escaping custody, that information was not passed on to the applicant.

27. Whilst he was at the hospital, the deceased spoke to a nurse who was treating him and offered to pay him money if he helped him escape. The nurse did not pass that information onto Corrective Services. Although that nurse described the deceased as being polite whilst at the hospital, another nurse gave an account of him being highly offensive to her whilst in the custody of the correctional officers.

28. At around 7.33pm, the deceased was escorted out of the Emergency Ward by the applicant and Mr Duff. He was to be taken to the Corrective Services van and driven back to the cells. The deceased was in handcuffs and ankle cuffs.

29. It was raining and nighttime. There was lighting on the hospital side of Uralba Street (the street in which the hospital was), but the doctor’s surgery across the road was fairly dark. Photographs were tendered depicting this. A laneway leading to the carpark was on the right side of the doctor’s surgery. The doctor’s surgery had a landing at the entrance. On the right side of the landing there was a railing.

30. As the three men were about to enter the Corrective Services van, the deceased elbowed Mr Duff causing him to fall off balance. Mr Duff gave evidence that the deceased immediately ran onto Uralba Street without checking for oncoming traffic. At that time, the deceased was 43 years old, the applicant was 55 years old and Mr Duff was 57 years old. The defence case was that the deceased had a more athletic build than the other two men. I accept that it was open to draw that inference from the CCTV footage (Exhibit C).

31. CCTV footage depicted the deceased to run across the road. It was taken from some distance away. There was expert evidence about the enhancement of that footage. A number of eyewitnesses also described how the deceased ran across the road. The applicant relied on the evidence of Mr Duff who described the deceased as not appearing to slow down and to be running faster than him (that assertion was disputed by the Crown). The ankle cuffs and handcuffs did not appear to impede the deceased from running quickly. Although it was open to find that he ran more quickly than might be expected in the circumstances, the accounts of eyewitnesses differed in some respects on this issue.

32. Both Mr Duff and the applicant gave versions that before the first shot the applicant called out “Correctional Officer, Stop or I’ll shoot” or words to that effect on two occasions. There was no consistency as among the other eyewitnesses as to what they heard. Many eyewitnesses heard words before the first shot but there was very little time between the second and third shots. Although there was some evidence that the applicant may have given the deceased a further direction between the first and second shots, the evidence was inconsistent.

33. The Crown case was that there were alternative options to shooting the deceased. The applicant relied on the evidence of Mr Duff who gave evidence that he did not believe he was ever close enough to grab or tackle the deceased. It was the defence case that neither Mr Duff nor the applicant ever came close enough to the deceased to tackle him.

20. The CCTV footage suggested that the third shot occurred approximately 11.4 seconds after the deceased first escaped. During that time, he had run across the road and up a ramp outside a doctor’s surgery across the road from the hospital. He was on the ramp leading to the front door of the closed surgery when he was shot.

21. A factual matter in dispute in the first trial was the position of the applicant at the time of the third and fatal shot. The location of the applicant at the time of the firing of the third shot remained in issue throughout the second trial but was not ultimately disputed by the applicant’s counsel in his closing address.

22. After the shooting, the applicant told the triple-0 operator at 7.37pm that he shot the deceased in the course of him attempting to escape. At about 8.00pm, he told Craig Roberts, senior correctional service officer, that after the deceased elbowed Mr Duff he ran across the road towards a multi-level car park, he was given a verbal direction to stop, followed by a warning shot, a second shot missed, and a third shot struck the deceased in the back. He also called Barbara Henderson, correctional officer, after calling triple-0 and told her, “The inmate was trying to escape.”

23. The Crown did not suggest that the applicant did not believe that the deceased was trying to escape. The Crown case was that he did not act lawfully when he shot him. I will explain the ultimate basis upon which the Crown was permitted to put its case on this issue below.

24. The jury asked a question during the trial about whether the deceased had any GPS monitoring checking device attached to his ankle cuffs. He did not and the applicant knew of that fact.

25. Although efforts were made to save the deceased he died shortly afterwards.

26. The Crown said that the final shot was not captured by the CCTV footage as it was obscured by signs (one was a “keep left” sign and the other further forward) but, that the shot was fired immediately or very close to the deceased falling down (which was depicted). The applicant was on the first section of the ramp when that happened. In his closing submissions, Mr Strickland submitted that there was not much dispute as to where the applicant was at the time of the firing of the third shot.

27. The applicant did not give evidence at trial.

Expert evidence

42. There was CCTV footage of the incident, but it was taken from an angle some distance away. Although it depicted the three men running across the road, the expert evidence called at the trial was that it was not possible to accurately assess the distances between the applicant and the deceased at any given moment due to the monoscopic view of the camera and the resultant loss of the viewer's ability to see changes in depth direction. The two expert witnesses called at the trial were Mr Jarret Le Roux and Professor Mark Pickering. Significant evidence was given on this topic. Despite the limitations of this evidence, a significant part of the trial included the repeated playing of portions of the CCTV footage to the various eyewitnesses.

Training

43. There was detailed evidence given about the applicant’s training by John Harrison and also by David Ross.

44. The Crown case was that the applicant was trained in options other than lethal force or shooting, being, using open hand/physical force and/or containing and isolating the inmate.

45. The applicant relied on the fact that his training also included being told that inmates are to be regarded as potentially dangerous if they escape, that officers are not instructed that they cannot shoot an inmate who are wearing hand and ankle cuffs and nor are they instructed that they cannot shoot an unarmed inmate. Further, officers are not instructed that they can only discharge a firearm if an inmate presents a danger to the public.

46. The Use of Force policy training (tendered at trial) placed emphasis on officers developing their own judgement about how to react to a given situation. Officers are trained that they have a discretion as to what particular option they choose to respond to any given circumstance.

47. The training evidence was that the unarmed officer is to “take down” the escapee.

48. There was also evidence that there have been occasions where inmates have manipulated handcuffs and escaped as a result of taking off their handcuffs.

49. Officers were taught about “muzzle discipline” which means that a shooter must be aware of where the firearm is pointed, where his or her partner is, where the inmate is, and where any member of the public is. There was also training about tunnel vision but also to be aware ay all times where their partner was.

50. Officers are also told that they have to fire a warning shot and give an inmate a reasonable opportunity to surrender. The Crown case was that the first shot was not a warning shot.

51. Significantly, evidence was also given that when shooting at an escaping inmate the officer is to aim at “seen mass”; that is, the main body and not the arms or legs. This was because you would be more likely to hit the inmate rather than miss and hit a member of the public.

52. Training videos were tendered and played at the trial which depicted that it can take some time to reason with an inmate. The Crown relied upon the fact that the applicant did not try and reason with the deceased. Those training videos were based on situations where the inmate stops running and negotiations commence (which was not this case). The Crown position was that the deceased did not have an opportunity to attempt to surrender.

ERISP

53. On 18 March 2019, the applicant gave a record of interview to police. The applicant submitted that the answers he gave in his ERISP were central to his case and relied on the following answers.

54. The applicant believed the deceased had communicated with his partner at the bail hearing (Q/A 431). When the deceased said he was “going to fit” he believed this was said as he did not wish to be in custody (Q/A 111). The applicant disagreed with the deceased hitting his head during the “fit”, as reported by the deceased, (Q/A 132, 133) and responded that he did not know whether the deceased was legitimately injured or not (Q/A 137).

55. Mr Duff was pushed, knocked over or fell over as a result of the deceased elbowing him (Q/A 228). The discharge of his weapon occurred in the context of him wanting to prevent an escape. He hoped, if he fired, the deceased would stop (Q/A 275, 276, 293). After the deceased escaped, the applicant chased him and yelled out, “Correctional Officer stop”. The deceased continued running and that is when the applicant said, “Correctional Officer, Stop, Stop or I’ll shoot” (Q/A 256).

56. As the deceased kept on running that is when the applicant said he fired a warning shot at the bushes (Q/A 256). The applicant fired the warning shot “to get him [the deceased] to stop” (Q/A 275). The applicant fired the second shot “to get him to stop” (Q/A 276). The applicant fired the third shot to get him to stop (Q/A 293).

57. The applicant initially thought that with his verbal commands the deceased would stop but it became obvious he was not stopping, and this was why he fired the third shot (Q/A 256-258). The applicant believed the deceased was going to head to the car park at the time he was shot (Q/A 316). The applicant did not believe he or Mr Duff were in a position to run the deceased down and catch him (Q/A 315-316). Before firing the third shot, the applicant believed that the distance between himself and the deceased was getting wider (Q/A 357).

58. The applicant did not believe that he could tackle the deceased as the distance between them was too great (Q/A 357). The applicant did not believe he could contain the deceased in any other way because he was not stopping (Q/A 310-312). The applicant believed the deceased was heading into the darkened carpark which had a “back escape” or “back exit” (Q/A 316).

Pre-trial and other rulings

59. Prior to and during the first trial, Beech-Jones CJ at CL made a number of rulings: 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; R v Officer A (No 6) [2022] NSWSC 1413 and R v Officer A [2023] NSWSC 1033. The only remaining matters for me to rule on resulted in the decisions in R v Officer A [2023] NSWSC 1265 and R v Officer A (No 2) [2023] NSWSC 1285. Some of the decisions of Beech-Jones CJ at CL were of more significance than others. It seems to me that there were two decisions of particular significance.

60. R v Officer A (No 2) concerned the scope of the “lawful cause or excuse” the applicant could rely upon. This determination turned on questions of statutory construction. The practical effect of his Honour’s ruling was to limit the way in which the Crown could bring its case.

61. Prior to the first trial, the Crown had contended that using “force” in the form of discharging a firearm at an inmate is subject to the restrictions imposed by both of cll 131 and 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the Regulation”).

62. Clause 131 of the Regulation is concerned with the use of force when dealing with inmates generally and is in these terms:

131 Use of force in dealing with inmates

(1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible.

(2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others.

(3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint.

(4) Subject to subclauses (1)-(3), a correctional officer may have recourse to force for the following purposes-

(a) to search, if necessary, an inmate or to seize a dangerous or harmful article,

(b) to prevent the escape of an inmate,

(c) to prevent an unlawful attempt to enter a correctional centre by force or to free an inmate,

(d) to defend himself or herself if attacked or threatened with attack, but only if the officer cannot otherwise protect himself or herself from harm,

(e) to protect other persons (including correctional officers, departmental officers, inmates and members of the public) from attack or harm, but only if there are no other immediate or apparent means available for their protection,

(f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of an imminent attack,

(g) to prevent an inmate from injuring himself or herself,

(h) to ensure compliance with a proper order, or maintenance of discipline, but only if an inmate is failing to co-operate with a lawful correctional centre requirement in a way that cannot otherwise be adequately controlled,

(i) to move inmates who decline or refuse to move from one location to another in accordance with a lawful order,

(i1) to allow a medical practitioner to carry out medical treatment on an inmate in accordance with section 73 of the Act,

(i2) to allow treatment (including any medication) to be given to an inmate in accordance with section 84 of the Mental Health Act 2007,

(j) to achieve the control of inmates acting defiantly,

(k) to avoid imminent violent or destructive behaviour by inmates,

(l) to restrain violence directed towards the correctional officer or other persons by an uncontrollable or disturbed inmate,

(m) to prevent or quell a riot or other disturbance,

(n) to deal with any other situation that has a degree of seriousness comparable to that of the situations referred to in paragraphs (a)-(m).

(5) Subclause (4) does not limit the operation of any law with respect to the force that may be used to effect an arrest.

(Emphasis added.)

63. Thus, it can be seen that under cl 131 a correctional officer may use no more force than is reasonably necessary in the circumstances.

64. Clause 303 of the regulation is specifically concerned with when an officer can discharge a firearm and is in these terms:

303 Authority to discharge firearms

(1) A correctional officer may discharge a firearm-

(a) ...

(b) if the officer believes on reasonable grounds that it is necessary to do so in order-

(i) to prevent the escape of an inmate, or

(ii) to prevent an unlawful attempt to enter a correctional centre or to free an inmate, or

(iii) to attract the immediate attention of correctional officers or other persons to a serious breach of correctional centre security that has arisen or is likely to arise, or

(c) to give a warning in accordance with this Regulation.

(2) Despite subclause (1), a correctional officer must not discharge a firearm at a person if the officer has reasonable grounds to believe that the shot may hit a person other than the person at whom it is directed."

(Emphasis added.)

65. Thus, under cl 303, a correctional officer may discharge a firearm so long as he or she have "reasonable grounds" to believe that it is “necessary” to discharge his or her firearm to prevent the escape of an inmate.

66. His Honour concluded that the relevant provision was cl 303, which was not to be read as subject to the requirement in cl 131 that an officer may use no more force than is reasonably necessary in the circumstances. To put this in plain terms, his Honour held that an officer could lawfully shoot a person in the chest (their “seen mass”) if he or she believes it is necessary to prevent their escape (and had reasonable grounds for that belief). I am satisfied that this ruling made the Crown case more difficult to prove.

67. The second decision of significance is R v Officer A [2023] NSWSC 1033 in which his Honour was invited to revisit some of his earlier rulings. His Honour did so and excluded the evidence of Superintendent Kenneth Southern given in the first trial in relation to the applicant's participation in a threat assessment scenario training exercise (“Scenario PT03”) on 18 July 2016. The exercise conducted by Mr Southern involved role playing where the role player inmate was unarmed and that Mr Southern recorded “No, shoot unarmed offender” in the section asking whether “action taken was appropriate”. As a result, the applicant's performance was assessed as unsatisfactory, and he was directed to participate in remedial training.

68. The Crown submitted that this excluded evidence formed part of the relevant facts for determining whether a costs certificate should be granted. Mr Strickland accepted that “all relevant facts” included the evidence of Superintendent Southern and the training Scenario PT03 but that it had limited value in informing the jury whether the applicant believed on reasonable grounds that it was necessary for him to discharge his firearm to prevent escape. It was submitted that the circumstances the applicant was faced with when the deceased escaped were different to the circumstances in training Scenario PT03 and that that was accepted by his Honour.

69. I have had regard to all of these rulings and the material excluded as part of the relevant facts for this application.

Applicant’s submissions

70. Mr Strickland submitted that the central fact in issue was whether the Crown could prove beyond reasonable doubt that the applicant did not believe that it was necessary to discharge his firearm to make the third shot to prevent an escape pursuant to cl 303 of the Regulation, or that he did not have reasonable grounds for that belief. It was submitted that the applicant did hold such a belief. In support of that submission, he relied on the following:

71. First, the applicant gave consistent accounts about his decision to shoot in his calls to triple-0 and to Ms Henderson and Mr Roberts. Mr Roberts made a note of the conversation he had with the applicant shortly afterwards which read, “Spoke with Officer A, who indicated Johnstone elbowed Rick Duff who was escorting Johnstone to the vehicle ankle and handcuffed - ran across road towards multi-level car park - verbal direction given to stop - warning shot .38 service revolver - second shot missed - third shot struck Johnstone in back”;

72. Further, in his ERISP, the applicant explained: that he chased the deceased and yelled out, “Correctional Officer, stop” and that when he continued running he said “Correctional Officer, Stop” and “Stop or I’ll shoot”; why he fired the shots at him (that he fired the first and the warning shot “to get him to stop” and that he was aiming in his direction, at the centre of scene mass, when he fired the third shot with the intention to “stop him there”); and whether he was in a position to contain the deceased in some other way (“Um, initially I thought with the verbal and that he would stop.....and I thought that, you know, but obviously, it, it became very clear that he wasn't stopping”).

73. Secondly, there was support for the applicant's belief that the deceased would escape and that it would be necessary to prevent him from doing so, namely:

1. The applicant answered “No” to the question whether he or Mr Duff would have been able to run the deceased down and catch him and later adding, “I wish I could go and tackle him, wish I could go and tackle him from behind. But that, his distance was, was, it was getting wider, you know what I mean”;

2. That objectively the deceased was younger, leaner and faster than the applicant and Mr Duff;

3. That Tracey Barker’s evidence supported the applicant’s belief that the deceased was not slowing down in that she observed that he was “just so fast” and “running faster than the smaller officer”;

4. That in response to the jury question, police officer Michael Smith gave evidence that the cuffs in relation to persons whose bail is refused have no tracking devices attached to them;

5. That the applicant would have known that he would be unable to track or monitor the deceased’s movements if he was to reach the car park that was in a dark area;

6. That Mr Smith gave evidence that the officers are trained to be aware that the inmates can manipulate cuffs;

7. That the third shot was fired as a last resort, after he knew that the deceased was not stopping which is supported by the following evidence:

1. Mr Duff's evidence that on two occasions before the first shot was made the applicant said to the deceased to stop or he will shoot;

2. Two witnesses, Peter Haran and Bruce Saville, heard the applicant demanding the deceased to stop;

3. The applicant became more exasperated and told the deceased, “[f]uckin [sic] well stop” after the second shot and when he did not, he fired the third shot;

4. The CCTV footage shows that the third shot was fired 11.4 seconds after the deceased escaped from Mr Duff’s custody.

74. Mr Strickland submitted that the applicant considered stopping the applicant in another manner: first by verbal commands (A 310) but “it became very clear that he wasn’t stopping” (A 311), and also by stopping him physically but the deceased “wasn't slowing down”. He "was surprised he was running fast" (Q/A 356) and he wished he “could go tackle him, wish I could go and tackle him from behind. But that, his distance was … getting wider…”(Q/A 357). It was submitted that the applicant's answers are consistent with uncontradicted accounts he gave when he called triple-0, when he spoke to Ms Henderson and Mr Roberts and that they are supported by the CCTV footage and Mr Duff's evidence. He also submitted that it is relevant that the third shot was fired 11.4 seconds after the deceased starting running, when he was at the top of the ramp and in a position to escape into the carpark.

75. Mr Strickland accepted the Crown's assertion that some of the applicant's accounts were different from those of the eyewitnesses but submitted that they either relate to peripheral issues or that people perceive stressful events differently. He also submitted that a viewing of the CCTV footage does not demonstrate that the distance between the applicant and the deceased was getting smaller and that the “relevant facts” include the evidence of Professor Pickering whose evidence was that he could not measure the distances between people depicted in the CCTV (specifically between Mr Duff and the deceased on the ramp) given that the CCTV camera had only one lens and there was otherwise insufficient information to measure distances to and from the camera.

74. Mr Strickland also submitted that “relevant facts” include eyewitness accounts in relation to how fast the deceased was running and in particular that of Ms Barker whose evidence was that the deceased was running faster than Mr Duff.

75. It was submitted that the applicant's decision to use the firearm gave him an option to discharge it when it became necessary. This was in accordance with the “circular model” of training that the applicant received which allowed officers to go straight to the firearm option if warranted in the circumstances, instead of the previously used “linear model” where officers had to progress through various steps before arriving at the firearm option.

76. Mr Strickland further submitted that the applicant gave warnings to the deceased (A 272) and opportunities to surrender as soon as he could. It was submitted that the applicant’s intention was for the deceased to stop, that the words “Stop or I’ll shoot” would have had little effect if they were not accompanied by the applicant drawing his firearm and that the key “relevant fact” is that the first shot was fired after the warning was given.

77. With respect to whether it was reasonable to institute the proceedings against the applicant, it was submitted that there are three categories of evidence that, were they to have been in the possession of the prosecution prior to instituting the proceedings, would have rendered it unreasonable to do so. They were as follows:

1. The evidence that the applicant's primary duty, as a correctional officer at Lismore Base Hospital, was to prevent an escape;

2. The evidence of the applicant’s training in scenarios of “unplanned use of force” such as an escape from lawful custody, and evidence that the scenarios that he was trained in did not include the scenario that he faced at the hospital, and that he was given wide discretion as to which option to employ to prevent an inmate’s escape;

3. That the third shot was fired only when the deceased ignored both verbal warnings and the warning shots and when he had reasonable grounds to believe that the deceased would escape, which was consistent with the training he received pursuant to reg 303.

80. It was further submitted that the evidence did not support the Crown’s assertion that Mr Duff could have tackled the deceased and further that the applicant had reasonable grounds to believe that it was not an option.

81. It was submitted that the application of a contain and isolate strategy was unrealistic for the following reasons.

82. First, the applicant did not have sufficient time to implement a contain and isolate strategy given the deceased was running quickly, it was raining and night-time, and it was a stressful situation.

83. Secondly, the applicant had limited resources to assist him. He only had the assistance of Mr Duff who was inexperienced and appears to have frozen or stopped at the parking metre (Exhibit C). In the absence of Mr Duff pro-actively assisting the applicant, a contain and isolate strategy was unlikely to work.

84. Thirdly, the location itself was not amenable to a contain and isolate strategy as the entrance to the doctor’s surgery had possible paths of escape, namely the stairwell in front of the surgery or alternatively over the small railing next to the entrance landing of the surgery.

85. Fourthly, the applicant was not familiar with the layout of the doctor’s surgery and the possible paths of escape. The applicant had not attended surgery previously (Exhibit 14) and he told the triple-0 operator he did not know Lismore Base Hospital (Exhibit AN).

86. Mr Strickland submitted that the applicant's observations of the deceased (how fast he was moving with the shackles, assaulting Mr Duff, ignoring commands to stop, ignoring two previous shots) informed his belief that it was necessary to discharge his firearm with the “critical” “relevant fact” being that of the deceased ignoring multiple commands shouted by the applicant to stop that were heard by numerous witnesses (Mr Duff, Peter Haran, Bruce Saville, Tracey Barker).

87. It was also submitted that the deceased did not stumble, fall or trip until the third shot and that he was younger (43 years) and had a more athletic build than the applicant (55 years) and Mr Duff (57 years).

88. The applicant also relied upon the relevant facts that it was raining at the time, and it was nighttime. Although there was lighting on the hospital side of Uralba Street, it was fairly dark at the doctor’s surgery. The applicant had to act quickly in a stressful situation where events were unfolding quickly. On the right side of the surgery there was a laneway leading to the carpark and at the entrance to the surgery there was a landing with a railing on the right side of the landing.

Crown submissions

89. Firstly, the Crown submitted that the applicant’s answers in relation to whether the deceased could have been contained in another manner did not demonstrate that he believed that it was necessary to shoot him. It was submitted that he was not pressed in the interview to explain why he withdrew his firearm within two seconds of the deceased escaping, why he told Mr Duff to ‘get out of the road’ when he was within metres of the deceased, why he did not give the deceased more than a few seconds to surrender and why he continued to shoot at the deceased when he was up the top of the disabled ramp with limited avenues of escape.

90. Secondly, the Crown submitted that the some of the applicant’s accounts were inconsistent with other evidence, namely that the deceased’s girlfriend repeatedly called the hospital (relying on Mr McIntosh's evidence and the phone record), that the deceased did not lift his knees up after instruction by the applicant but that the applicant was pushing the deceased’s feet up with his foot (the CCTV footage in the cell); that the CCTV footage contradicts his account that Mr Duff was coming up from “behind me” after he said “Correctional officer stop or I’ll shoot”, and that the CCTV footage and the CAD plans showed that the distance between the applicant and the deceased was getting smaller and not “wider and wider”.

91. The Crown submitted that in establishing the applicant’s belief, the matters of relevance included the applicant's knowledge in relation to the danger posed by the deceased and the deceased's ability to escape.

92. As for the danger posed by the deceased, the Crown submitted that the applicant knew that the deceased posed a low level of danger and relied on six factors in support of that:

1. the accused knew that the deceased was in custody for an alleged minor offence which he intended to defend, and which was to be dealt with in the Local Court;

2. the deceased was unarmed;

3. the deceased had injuries as a result of being involved in a recent motorcycle accident as well as a history of epilepsy, and the accused was present when the deceased said that he was "going to have a fit" and was lying on the floor in the cells shaking;

4. the deceased had both handcuffs and ankle cuffs that would make it difficult to assault a member of the public;

5. there was no one in the deceased's immediate vicinity at the time of all three shots; and

6. when the deceased elbowed Mr Duff he was not injured or incapacitated on the ground but was rather, within seconds, running after him.

93. The Crown also submitted that the applicant left the deceased (who was in a public ward and had one hand handcuffed to the bed) in the custody of an inexperienced officer without giving him his firearm. It was submitted that the applicant's actions were in contravention of the Medical Escort Policy and that they demonstrated that he regarded the danger posed by the deceased as low. It was also submitted that if the applicant regarded the deceased as posing danger, he would not have walked ahead of the unarmed Mr Duff upon leaving the hospital.

94. As for the deceased’s ability to escape, the Crown did not dispute that the deceased ran surprisingly fast for a person in shackles, relying on the evidence of the nurse Renae Gape who described the way he moved as “a shuffle or a shimmy and he was moving relatively quickly keeping in mind that he was shackled, like, it wasn't a run obviously, but he was moving as fast as he could in shackles”.

95. The Crown submitted that, unlike the deceased, the applicant and Mr Duff had a distinct advantage over the deceased in circumstances where it was dark and lightly raining, they were not restrained by shackles and the applicant knew that the deceased had an injured foot that was bandaged.

96. With respect to the applicant’s suspicion that “Mr Johnstone was communicating with his partner and may have been waiting in the carpark”, it was submitted that the applicant told police about what he heard the nurse tell the deceased about the repeated calls made by his partner, but that nurse McIntosh gave contrary evidence and CCR records indicated that there were no calls to the hospital. It was submitted that this evidence undermines the applicant's belief that the deceased was planning an escape. It was further submitted that the applicant’s belief that the deceased’s partner may have been waiting in the car park was not relevant to an assessment of whether the applicant had a lawful excuse for firing the third shot given that he explicitly stated to police that he did not hold that belief at that time.

97. The Crown made the following submissions in relation to the position of the deceased, Mr Duff and the applicant at the time of the first shot, based on an analysis of the CCTV footage:

1. At frame 1842, the deceased had obscured the parking meter and then moved past it onto the ramp. The Crown submitted to the jury that the deceased was between the parking metre and the foot of the ramp;

2. Just before frame 1848, Mr Duff was not visible but appeared to be at the end of the vacant car spot and about to step onto the curb;

3. The applicant was in the middle of the road or in the southern lane.

98. In relation to the first shot, it was submitted that it was fired across the deceased’s path and into the railing of the access ramp, which was consistent with what the applicant told police, and that Mr Duff did not hear the applicant say anything between the first and the second shot.

99. In relation to the second shot, it was submitted that it occurred one second after the first one (undisputed, at frame 1886 at 19:34:33:389) and that at that time the position of the deceased, Mr Duff and the applicant was as follows:

1. The deceased was on the first portion of the ramp but had not yet disappeared behind the blue sign. Professor Pickering gave evidence that what was behind the blue sign could be identified by drawing a line from the CCTV camera through the blue sign, which he marked on a copy of a CAD plan.

2. Mr Duff’s evidence was that he stopped completely immediately prior to the second shot (marked on a diagram) and that the distance from the eastern edge of the demountable where he stopped to the entry to the ramp was approximately five metres.

3. Professor Pickering’s evidence was that the applicant was on the camera side of the first parked car, which was a small car.

100. It was submitted that the applicant told police that the second shot was “aimed in [the deceased’s] direction” and that the location of the bullet in the lower portion of the window of Dr Wagner’s surgery was consistent with it being the location of the second shot as well as that Mr Duff did not hear the applicant say anything between the second and third shot.

101. With respect to the third shot, the Crown submitted that two seconds after the second shot (at 19:34:35:992) the deceased commenced falling to the ground at which time the respective positions of the deceased and the applicant were as follows:

1. The deceased commenced falling on the second “S” bend of the ramp (after being obstructed by the blue sign) consistent with the evidence of eyewitnesses.

2. The applicant was on the portion of the ramp before the blue sign with his gun blocked by the “keep left” sign, and he can also be seen moving past Mr Duff on the pavement.

Applicant’s submissions in reply

102. In his written submissions in reply, Mr Strickland sought to counter some of those submissions. As for the applicant’s knowledge about the threat posed by the deceased, it was submitted that the offence alleged against the deceased was serious (he pulled out a stunt baton and pressed it against the chest of the complainant, who told him that he had a pacemaker and could die, at which point the deceased punched the complainant to the side of the head). Nor was there any evidence that the applicant knew that the matter would be disposed of summarily. What the applicant heard was that the deceased committed the offence while on bail for a number of offences and that in refusing the deceased’s bail the Magistrate said that it would be inevitable that he would serve a lengthy sentence of imprisonment if convicted.

103. With respect to the deceased being unarmed and shackled, Mr Strickland submitted that he still posed a danger to community.

104. With respect to the injuries that the deceased had sustained in a motorcycle accident, Mr Strickland submitted that the applicant had a reasonable basis to believe that they would not impede his ability to escape given that once he was administered buprenorphine he was no longer limping, was more energetic and was moving more freely.

105. With respect to the deceased’s medical condition whilst he was in the cell, it was submitted that the applicant held a reasonable belief that the deceased was malingering and relied on the evidence of Nurse Heighway and Nurse McIntosh (all the tests showed normal results when tested by McIntosh).

106. With respect to Mr Duff sustaining no injuries, Mr Strickland submitted that the deceased's conduct, namely that he was prepared to assault a correctional officer and ignore both warning shots and a verbal command to stop informed the applicant of his level of danger.

107. With respect to the deceased being left in Mr Duff's custody without handing him his firearm, Mr Strickland submitted that the applicant went to the front of the hospital because the deceased was getting antagonistic, that he was attempting to reduce the tension and the deceased's level of danger, that the deceased was shackled to the bed and that Mr Duff, who was watching him, was in a position to see if he manipulated his cuffs.

108. In reliance on Exhibit C the applicant submitted that, contrary to the Crown’s assertion that the third shot occurred two seconds after the second shot, the third shot was fired just under four seconds after the second shot (frame 1988), and about 11.4 seconds from the deceased first commenced his attempted escape. It was submitted that in that time the deceased had pushed Mr Duff aside, ran across Uralba Street, ran towards the ramp, ran up the ramp and reached the second section of the ramp and was within a few metres of the lane to the carpark.

Consideration

109. The relevant legal principles governing this application were not in dispute. In determining whether a certificate should be granted in this matter, I am required to evaluate the relevant facts, assume they were available to the prosecution before the proceedings were instituted and then determine whether, if the prosecution had been in possession of all of the relevant facts, it would not have been reasonable to institute the proceedings in the first place.

110. Following the decision in R v Officer A (No 2), the central issue in both trials was whether the Crown could prove beyond reasonable doubt that when the accused fired the third and final shot which killed Mr Johnstone he was not acting with lawful excuse, namely that he either:

1. did not believe that it was necessary to discharge the third shot to prevent an escape; or

2. that there were no reasonable grounds for his belief.

111. Thus, one of the elements the Crown had to establish beyond reasonable doubt pertained to the state of mind of the applicant at the time of the shooting.

112. In considering this application I have considered the parties' submissions as set out above. Although there was some force in many of the applicant's submissions when taken in isolation, the fact remains that this was an incident that was observed by a large number of onlookers who all saw the incident differently, or only saw part of it, or had their line of sight obscured. Although, as the applicant contended, particular witnesses saw aspects of the incident in a manner which supported the applicant, I am not satisfied that the state of the evidence was as “one-way” as contended for by the applicant. Although the Crown case did not rely upon the credibility of any particular witness, the reliability of many of the eyewitnesses was challenged at the trial.

113. As the summary of the respective arguments set out above make clear, it was not ultimately in dispute that the third shot was fired by the applicant after the second visible muzzle flash. At that time, the deceased was either on or at the top of a disabled ramp with limited avenues of escape. Nor was it in dispute that the applicant shot the deceased in the back whilst he was unarmed and restrained by metal handcuffs and ankle cuffs.

114. I have considered the Crown submission that, contrary to what he was taught, the applicant withdrew his firearm within two seconds of the deceased escaping and fired the first shot a second after that. He did not first pursue the deceased on foot before he drew his firearm. Nor did he give the deceased an opportunity to surrender before he fired the first shot. It is to be accepted that the deceased was leaner and younger than the applicant, but the fact remains that he was shackled, and the applicant was not.

115. I have also considered the evidence that the applicant instructed Mr Duff one second after withdrawing his firearm to get off the road so that he did not cross the applicant’s arc when he shot at the deceased.

116. It is not necessary for me to make any finding as to whether the first and second shots were warning shots. The fact remains that it was open to the jury to find that the first shot was not a warning shot but a shot which missed the deceased. That shot was fired only six seconds after the deceased started escaping. This was contrary to the applicant being taught that it was an option of last resort. Further, the second bullet went through the window of the surgery very close to where the deceased was which meant it was open to find that that shot was aimed at the deceased.

117. The evidence of the applicant’s training was that it was for Mr Duff to try and take the deceased down as he was the unarmed of the two officers. It was certainly open to the jury to find that the applicant did not follow this training by yelling at Mr Duff to get out of the way only three seconds after the deceased ran off so the applicant could shoot at the deceased. This meant that Mr Duff, who had been pursuing the deceased for the three seconds before he was told to get out of the road, only had a limited opportunity to chase the deceased. It also left insufficient time for the deceased to surrender.

118. It was also open to the jury to find that the applicant did not say anything to the deceased between firing the first and second shot and between firing the second and the third shot.

119. It was common ground that the deceased was shot in the back when he moved up the ramp and was in a confined area. It was open to the jury to find that the applicant was only a few metres away when the deceased was shot and in circumstances where the strategy to “contain and isolate” was a realistic option.

120. A significant matter was the fact that the deceased was not shot running down a street or off into the distance; he was shot running up a ramp to the front door of a closed surgery. He could not have entered the surgery. It will never be known why he ran up that ramp rather than along the road or footpath. But the ramp was in a “S” shape requiring him to turn corners as he ran. Further, it positioned the deceased in a confined space. Escaping by the only other exit (other than back in the direction he came) would have slowed him down as well (jumping over the railing). Had the applicant not been shooting his firearm, Mr Duff might have been able to have come around the other side such that the deceased could have been cornered on the ramp. It was open to the jury to find that even as Mr Duff was slowing down, he was still quite close to the deceased before the third shot.

111. The reasonableness of the prosecution falls to be assessed in the context that there was incontrovertible evidence that a shackled man was shot dead as he ran on foot from police outside a hospital where he had just been treated. At the time that the deceased was shot and killed, three shots had been fired quickly, the deceased had not had time to stop, there was nobody at the surgery, Mr Duff was nearby, and the police were also close: there was evidence called at the trial that they arrived within two minutes after being called.

112. It was never the Crown case that the applicant shot the deceased “in cold blood”; rather, it was simply that he did so without lawful excuse. The fact that the Crown case required the jury to convict the applicant of murder if satisfied that he panicked and/or acted contrary to his training does not make it unreasonable for a hypothetical prosecutor to have instituted proceedings in the first place.

113. It seems to me that a significant event was the ruling by Beech-Jones CJ at CL in R v Officer A (No 2) on 14 October 2022 regarding the construction of the relevant legislation. I have considered the significance of this and other rulings which limited the way in which the prosecution could bring its case.

114. Having considered all of the relevant facts, it seems to me that although the Crown case was weakened by the decision in R v Officer A (No 2), that is not the relevant test. As the principles derived from the decisions I have set out above make clear, the test for unreasonableness is not based on the test for whether proceedings should be commenced, namely, whether there is a reasonable prospect of conviction. Nor is the test whether a jury would be likely to convict. The test is whether if a hypothetical prosecutor had been in possession of all of the relevant facts before charging the applicant, including the rulings made, it would not have been reasonable to institute the proceedings in the first place. I am simply not satisfied that the applicant has established this test in all of the circumstances of this case.

115. I accept the Crown submission that the ultimate question of whether it could establish beyond reasonable doubt that the applicant did not believe that it was necessary to shoot the deceased to prevent his escape or that there were no reasonable grounds for that belief was “a matter of judgment quintessentially within the realm of the ultimate fact finder”.

116. For these reasons, I would refuse the application.

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Decision last updated: 10 October 2024