R v Officer A (No 3)

[2022] NSWSC 1394

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Officer A (No 3) [2022] NSWSC 1394

Hearing dates:

11 October 2022

Date of orders:

11 October 2022

Decision date:

17 October 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

Only material relating to the criminal and custodial history of the deceased in respect of which there was some evidence that material was known to the accused at or around the time he shot the deceased is to be admitted.

Catchwords:

EVIDENCE – murder – accused correctional officer charged with murder following shooting of escaping prisoner – whether accused believed on reasonable grounds it was necessary to discharge firearm to prevent the escape of the deceased – evidence of antecedents and conduct of deceased only admissible if evidence that that was known to the accused – fact of escape and refusal of deceased to heed warning and shots not in issue – evidence of conduct and antecedents of deceased not known to the accused not relevant to fact in issue

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes(Administration of Sentences) Regulation 2014 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280

R vHajistassi (2010) 107 SASR 67

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

R v PP (2002) 135 A Crim R 575

State of New South Wales v Bouffler (2017); 95 NSWLR 521; [2017] NSWCA 185

Category:

Procedural rulings

Parties:

Rex (Crown)
Officer A (Accused)

Representation:

Counsel:
Ms S Dowling SC; Ms S Lind; Ms V Chan (Crown)
Mr P Strickland SC; Ms S Palaniappan; Mr I McLaughlan (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
McNally Jones Staff (Accused)

File Number(s):

2021/35115

JUDGMENT

1. On 11 October 2022, I heard an application brought by the accused, Officer A, seeking a ruling under s 192A of the Evidence Act 1995 (NSW) in relation to his proposed tender of certain documents which related to the criminal and custodial history of the deceased, Mr Johnstone. At the conclusion of the argument, I ruled that only such material in respect of which there was some evidence that it was known to the accused at or around the time he shot the deceased would be admitted. At the time I gave that ruling I indicated that reasons would be provided later. This judgment constitutes those reasons.

Background

2. A summary of the Crown case is set out in R v Officer A (No 1) [2022] NSWSC 1362 at [3] to [6] which should be read with this judgment. The Crown contends that the accused, a correctional officer, fired the third and fatal shot at Mr Johnstone, an escaping inmate, with an intention to inflict grievous bodily harm or reckless indifference to human life and without lawful cause or excuse. Immediately prior to making the ruling the subject of this judgment, I ruled that the relevant lawful excuse would be that provided for in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (without regard to cl 131 thereof) made under the Crimes (Administration of Sentences) Act 1999 (NSW) (the “Act”). I have since provided reasons for that ruling (R v Officer A (No 2) [2022] NSWSC 1381).

3. Clause 303 relevantly provides:

“(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.”

4. Hence, the issues that arise in relation to lawful excuse are whether the Crown can prove beyond reasonable doubt either that the accused did not believe that it was necessary to discharge his firearm to prevent the escape of Mr Johnstone or that any such belief was not based on reasonable grounds.

Bail Documents

5. Mr Johnstone was arrested on the evening of 14 March 2019. He was refused bail by Sergeant Wilson at Lismore Police Station in the early hours of 15 March 2019. Sergeant Wilson reduced his reasons for refusing bail to writing in a document entitled “Reasons for Bail Decision by Police Officer”. [1] The accused sought to tender that document. There was no evidence that that document was ever seen by the accused or that its contents were disclosed to him.

   1. Voir Dire Exhibit C: Pretrial Argument Bundle, Tab 18; all Tab references are to that exhibit.

6. Later in the morning on 15 March 2019 Mr Johnstone was taken before a Magistrate and refused bail. The accused was present on that occasion. The Crown proposes to tender the transcript of that hearing as the accused was present. [2] There is no objection to that tender. During that hearing Mr Johnstone’s criminal record and court attendance notices were tendered. [3] Neither of those documents were shown to the accused nor read out in court. The accused sought to tender both documents. The tender of those documents by the accused was opposed by the Crown on the basis that material concerning Mr Johnstone’s antecedents and personal history, which was not known to the accused, was not relevant to the issues posed by cl 303.

   2. Tab 20.

   3. Tab 25.

Corrective Services Documents

7. After Mr Johnstone was refused bail, he was taken to the police cells. At some point a decision was made to transfer him to hospital to obtain medical treatment. To affect a transfer, it was necessary to obtain an order under s 24 of the Act (a “s 24 order”). To that end, a Department of Corrective Services (“Corrective Services”) officer, Barbara Henderson, completed an escort risk assessment form which noted that Mr Johnstone was an unsentenced prisoner, that his most serious offence was assault occasioning actual bodily harm, and that he had an E1 classification, meaning that there was a previous escape matter for which he was unsentenced. As explained below, there is some evidence that Ms Henderson may have told the accused and his fellow officer that Mr Johnstone was at risk of escape. There is no evidence at this stage that she advised the accused of anything beyond that such as the E1 classification, nor showed him the escort risk assessment form that she completed. The accused sought to tender the document containing the s 24 order which included Ms Henderson’s assessment that he has a “history of escape” [4] and a “new inmate lodgement & special instruction sheet” that recorded that Mr Johnstone had previously escaped or attempted to escape. [5] The Crown objected to the tender of all of this material on the basis noted above.

   4. Tab 30.

   5. Tab 26.

8. The accused also sought to tender an internal Corrective Services policy document concerning “Medical Escorts” in an endeavour to show that, in light of the assessment of Mr Johnstone’s likelihood of escape, he should have had a third guard and restraint belt. [6] The Crown objected to that tender on the basis that, since it was clearly known to the accused that there were only two guards accompanying Mr Johnstone and that he was not wearing a restraint belt, what “should have occurred” was irrelevant.

   6. Tab 31.

Facts Surrounding Other Escapes

9. The accused also sought to tender a fact sheet concerning an incident when Mr Johnstone escaped from police custody in Victoria [7] and a further incident in 1999 when he attempted to flee a courtroom. [8] Again, the Crown opposed the tender of this material on the basis set out above.

   7. Tab 15.

   8. Tab 14.

Evidence of the Deceased’s Antecedents is Limited to Material the Accused Was Aware Of

10. It was common ground that to the extent that there is, or will be adduced at the trial, any evidence that the accused was aware of some fact, matter or circumstance concerning Mr Johnstone’s background or antecedents, then that is admissible as evidence that “could rationally affect” an assessment of whether the accused held the belief that it was necessary to shoot Mr Johnstone to prevent him escaping and whether that belief was reasonable (Evidence Act, s 55(1); State of New South Wales v Bouffler (2017); 95 NSWLR 521; [2017] NSWCA 185 at [87] to [92]). Thus, as noted, the Crown proposes to tender, without objection, the transcript of Mr Johnstone’s bail application before the Local Court on 15 March 2019, for which the accused was present. Instead, the dispute about admissibility turned on whether material, of which there was no evidence that the accused was aware, was nevertheless relevant and, in respect of some documents, whether there is any evidence that the accused was aware of the material.

11. The accused’s submissions in support of the admission of this material commenced with an analysis of the evidence concerning Mr Johnstone’s history of escaping custody as well as material said to demonstrate his insubordination and failure to comply with orders from correctional officers. For this material there is not, at present, any evidence that the accused was aware of the two previous escape attempts, the facts concerning those escapes or those incidents of insubordination. The accused contended that, even if he was not aware of that material, it was nevertheless relevant to various facts in issue. To the extent that this material might be considered tendency evidence the accused relied on a tendency notice identifying the tendency as being, in effect, Mr Johnstone’s “tendency to attempt to escape from lawful custody” and to, in effect, fail to comply with orders from persons with authority. Although the argument ultimately centred on relevance rather than whether the evidence was capable of establishing a tendency it is useful to set out the “facts in issue” that the accused’s tendency notice asserted that these tendencies bore upon, namely:

“-    That Mr Johnstone intended to escape on 15 March 2019;

-   That Mr Johnstone was determined to escape on 15 March 2019, and as a result, Mr Johnstone did not heed the verbal warnings or warning shots fired by [the accused];

-   That [the accused] believed “on reasonable grounds that it [was] necessary to discharge his firearm to prevent the escape of Mr Johnstone”.

12. The oral submissions of senior counsel for the accused, Mr Strickland SC, did not describe the relevant facts said to be in issue to which this evidence is directed in materially different terms. Hence, he submitted that the evidence is relevant to whether Mr Johnstone was “intent to ignore the commands of the warning shots” [9] or whether he “heeded commands”. [10] The accused’s written submissions referred to various cases where an accused who raised self-defence was permitted to lead evidence of aggressive acts by the deceased on other occasions or convictions for violence that were not known to the accused (including R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280; “Cakovski”; R vHajistassi (2010) 107 SASR 67; “Hajistassi”; R v PP (2002) 135 A Crim R 575; “PP”). In these cases, the evidence was held to be relevant to an assessment of whether the accused’s version of the confrontation with the deceased should be accepted including such matters as whether the deceased was the aggressor (Cakovski at [56]; Hajistassi at 73; PP at [10]).

    9. Tr 11/10/2022 p 36.18.

    10. Tr 11/10/2022 p 37.14.

13. The difficulty with these contentions is that they do not engage with the facts in issue in this case. It is common ground that Mr Johnstone did attempt to escape by running away from the accused and another correctional officer on the evening of 15 March 2019, that the accused told him to stop but Mr Johnstone kept running, and that Mr Johnstone did not stop even though two shots were fired. On its face, the details of a previous escape attempt unknown to the accused do not bear upon the assessment of any fact in issue surrounding the escape of Mr Johnstone. Unlike the self-defence cases relied on, in this case the accused did not identify any fact in issue surrounding the circumstances of Mr Johnstone’s escape attempt, the resolution of which would be assisted by adducing evidence of the facts of his previous escape attempts. Accordingly, I ruled that the material concerning those attempts was inadmissible.

14. This conclusion also dictates the outcome of the attempt to tender Sergeant Wilson’s reasons for refusing bail on the morning of 15 March 2019. With the accused’s criminal history and the court attendance notices, although those documents were supplied to the Magistrate who refused Mr Johnstone bail, they were not shown to the accused nor read out. At present, there is no evidence capable of demonstrating that the accused was apprised of their contents, although the transcript of the hearing reveals that the accused would have learnt of some of the charges Mr Johnstone faced and that he had a criminal record.

15. Subject to one matter, the same conclusion applies to the s 24 order and the “new inmate lodgement & special instruction sheet” that recorded an assessment of Mr Johnstone’s likelihood of escape and that Mr Johnstone had previously escaped or attempted to escape. [11] The one aspect of uncertainty concerning those documents is that at this stage it not clear what Ms Henderson’s evidence will be regarding what she advised the accused. In an interview with police on 12 July 2019 Ms Henderson stated: [12]

    11. Tab 26.

    12. Tab 27.

“Q46   So how do you, in the process of filling this out do you fill out a Risk assessment first or do you fill out that document?

A   I fill out the document and the risk assessment basically at the same time. That is the whole lot the whole package.

Q47   So when you fill in the risk assessment what does what does that involve?

A   I actually looked at the profile document which I have…

Q48   Which you also provided us with.

A   Yes.

Q49   Yep.

A   And I had a look to see if there were any um alerts which included like a risk yes. And I made note that he was a risk um a risk of escape.

Q50   Yep.

A   So I put it on there and I also verbally notified Richard Duff and [the accused]…

Q51   …so how is it on the actual. Is that documented on the risk assessment itself that’s he’s an escape…

A   Yes, E1 there and I actually put down there has a history of history of escape previous E1 which means he has escaped once…

Q52   Can you explain the E1 classification to me?

A   It means he has escaped at least once and um that’s how they classify it cause he’s escaped they classify him as E1. If he would’ve escaped more than once you become an E2.

Q53   So that classification there where did you arrive at that from?

A   Um his profile document.” (emphasis added)

16. The documents referred to in this extract include the s 24 order. As I read this passage, Ms Henderson does not appear to assert that she showed the accused the s 24 order but instead simply states that she advised the accused and another officer that Mr Johnstone represented an escape risk. In his interview with police, the accused did not recall being told that, but that is irrelevant for present purposes as the jury may prefer Ms Henderson’s evidence. That said, the possibility cannot be discounted that in her oral evidence Ms Henderson may accept that she showed the accused the s 24 order. This only serves to highlight the interlocutory nature of this ruling which is predicated on it not being established that Ms Henderson showed the accused the s 24 order.

17. Lastly, in relation to the Corrective Services policy on “Medical Escorts”, the accused’s written submissions identified the relevance of this document as follows:[13]

“There is therefore a live issue as to whether Mr Johnstone should have been restrained further during the escort by a restraining belt, and whether [the accused and his fellow officer] should have had a third officer present with them because he was a ‘serious escape risk’. The Inmate Profile Document which Barbara Henderson considered on the day of Mr Johnstone’s death, which informed her entries in the s 24 Order and Medical Escort form, is plainly relevant to the jury’s consideration of those issues.”

13. Tab 11: Accused’s Written submissions dated 3 October 2022 at [49].

18. There is no “live issue” as to whether any further action in respect of the restraint or treatment of Mr Johnstone “should have” been taken or afforded. This trial is not a vehicle for inquiring into the appropriateness or otherwise of the policies or practices of Corrective Services in relation to prisoner escorts. Instead, the relevant issues are what I have identified above. Whether or not Mr Johnstone “should have” been treated differently by others is irrelevant to whether at the time of the shooting the accused believed on reasonable grounds that it was necessary to shoot Mr Johnstone in order to prevent his escape. Accordingly, the proposed tender of that document was rejected.

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Endnotes

Amendments

14 November 2023 - Re-trial completed, publication restriction lifted

Decision last updated: 14 November 2023