R v Officer A (No 4) - [2022] NSWSC 1395

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A (No 4) [2022] NSWSC 1395
Hearing dates: 12 October 2022
Date of orders: 12 October 2022
Decision date: 17 October 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1) The evidence of the training instruction given to the accused including his performance in relation to the two scenarios identified by Superintendent Southern will be admitted save that there will not be any reference in any oral evidence or written document proposed to be tendered to s 303 of the Crimes (Administration of Sentence) Regulation 2014;
(2) Direct the Crown not to open its case by suggesting that any aspect of the accused’s performance when trained was unsatisfactory although it may identify what it contends was the knowledge the accused acquired from his training;
(3) Reserve to the accused liberty to apply for a direction to be given to the jury at the time the evidence the subject of this ruling is adduced that the jury may only have regard to the evidence in determining what instruction was given to the accused and the likelihood that he understood that instruction and not for any other reason.

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 a firearm to prevent the escape of the deceased – previous training participated in by accused – training scenario involving threat from unarmed inmate – accused advised that his response of shooting inmate was unsatisfactory – relevance of different scenario to the events charged – potential prejudice – whether jury might engage in tendency reasoning by concluding that the accused was “trigger happy” – evidence admitted – accused given liberty to apply for direction addressing potential prejudice.

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995

Cases Cited:
R v Officer A (No 1) [2022] NSWSC 1362
R v Officer A (No 2) [2022] NSWSC 1381

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 12 October 2022 I heard I heard an application brought by the accused, Officer A, seeking a ruling under s 192A of the Evidence Act excluding evidence sought to be adduced by the Crown from a senior officer within the Department of Corrective Services, Kenneth Southern, concerning the training instruction given to the accused in the use of “Tactical Options” including firearms and his performance when confronted with two mock scenarios in relation to an unarmed inmate.
Shortly after the conclusion of argument I made the following ruling:

(1) The evidence of the training instruction given to the accused including his performance in…

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 1395
Decision Date: 17 October 2022

CaseChat Overview and Summary

The case of R v Officer A (No 4) involves a correctional officer accused of murder following the shooting of an escaping prisoner. The court was tasked with determining whether the accused acted with the intent to cause death or grievous bodily harm, as required for a murder conviction. The case was heard in a higher court of Australia, where the admissibility of specific prior training incidents was contested.

The court needed to decide if evidence of the accused's participation in a training scenario, where his response to an unarmed inmate's threat was deemed unsatisfactory, was relevant and prejudicial. The defence argued that this evidence might lead the jury to conclude that the accused was “trigger happy,” potentially engaging in tendency reasoning. The prosecution contended that the training scenario was relevant to show the accused's understanding of appropriate responses in high-stress situations.

The court found that while the evidence of the training scenario was potentially prejudicial, it was also relevant to the accused's state of mind and the reasonableness of his belief that shooting the prisoner was necessary to prevent an escape. The court ruled that the evidence could be admitted, but the accused was given liberty to apply for a direction to address any potential prejudice that might arise. This balanced approach aimed to ensure that the jury had all necessary information to make an informed decision while mitigating the risk of the evidence being misused.

The final orders of the court included the admission of the contested evidence, with a condition that the accused could apply for a direction to manage any prejudice that might arise from its use. This decision highlighted the court's intent to provide a fair trial while allowing for the presentation of relevant evidence that could assist in determining the accused's state of mind at the time of the incident.

Orders