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

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

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…

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 1394
Decision Date: 17 October 2022

CaseChat Overview and Summary

The case of R v Officer A (No 3) arose from a tragic incident involving the death of a prisoner who was shot by a correctional officer, Officer A, while attempting to escape. The deceased had been serving a sentence for armed robbery and had a history of violent conduct. The deceased was shot multiple times by Officer A and subsequently died. Officer A was charged with murder, and the central issue in the trial was whether the officer believed, on reasonable grounds, that it was necessary to discharge his firearm to prevent the prisoner's escape. The case proceeded to the High Court of Australia, where the legal questions centered on the admissibility of evidence regarding the deceased's antecedents and conduct.

The primary legal issue before the court was whether evidence of the deceased's antecedents and conduct was admissible when determining whether Officer A's actions were reasonable. The prosecution sought to introduce evidence about the deceased's criminal history and violent tendencies, arguing that this information was relevant to understanding the context in which the shooting occurred. The defence contended that such evidence was irrelevant unless it was known to Officer A at the time of the incident, as the key consideration was whether the officer's belief in the necessity of using lethal force was reasonable given the information available to him.

The High Court held that evidence of the deceased's antecedents and conduct was only admissible if it was known to Officer A at the time of the shooting. The court reasoned that the central issue was whether the officer's belief in the necessity of using lethal force was reasonable, and this depended on the information available to him at the time. The fact that the prisoner was attempting to escape, refused to heed a warning, and that shots were fired were not in dispute. However, evidence of the deceased's conduct and antecedents that were not known to Officer A at the time of the incident was deemed irrelevant. This decision underscored the importance of considering the perspective and knowledge of the person using force in determining the reasonableness of their actions.

The court's ruling clarified the scope of admissible evidence in such cases and established that the focus must remain on the information available to the person using force at the time of the incident. The High Court's decision provided important guidance for future cases involving the use of force by law enforcement officers, emphasizing the need to assess the reasonableness of their actions based on the specific circumstances and information they had at the moment of decision.

Orders