R v Officer A (No 5) - [2022] NSWSC 1396

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A (No 5) [2022] NSWSC 1396
Hearing dates: 12 October 2022
Date of orders: 12 October 2022
Decision date: 18 October 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1)   The CCTV footage of the deceased in the cells on 15 March 2019 the subject of this objection will be admitted on the condition that at the time it is adduced the Crown advises the jury that it accepts that the accused did not see the deceased falling from his bed;
(2)   Reserve for the accused liberty to apply for a direction to be given to the jury at the time the evidence is adduced to the effect that:
(i)   It is accepted by the Crown that there was nothing inappropriate or improper in the accused’s dealings with the deceased in the cells;
(ii)   The jury are only to use what they observe on the CCTV footage for the purposes of assessing what knowledge the accused obtained of the deceased and for no other reason.

Catchwords:
EVIDENCE – 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 – CCTV footage of deceased in police cells hours prior to attempted escape – accused mostly present – footage shows the deceased having a fit and waiting for Justice Health nurse – whether footage taken when accused not present is admissible – jury could infer accused was watching on a monitor – s 137 of Evidence Act 1995 (NSW) – whether jury might conclude that accused showed “callous disregard” to deceased – whether footage will cause distress and lead to “illegitimate” reasoning – no real danger of prejudicial reasoning – probative value of evidence not outweighed – liberty granted to accused to apply for direction when evidence adduced

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

Cases Cited:
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

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 an application brought by the accused, Officer A, seeking a ruling under s 192A of the Evidence Act 1995 (NSW) seeking to reject the tender of certain CCTV footage taken in the cells at the Lismore Court complex on the afternoon of 15 March 2019. Shortly after the conclusion of argument I made the following ruling:

(1) The CCTV footage of the deceased in the cells on 15 March 2019 the subject…

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.

Keep reading for free

Create a free CaseChat account to read R v Officer A (No 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1396
Decision Date: 18 October 2022

CaseChat Overview and Summary

The case of R v Officer A (No 5) involved a correctional officer charged with murder following the shooting of a prisoner attempting to escape. The legal dispute centred on whether the officer believed, on reasonable grounds, that it was necessary to use his firearm to prevent the escape. The case was heard in the NSW Court of Criminal Appeal. The core legal issue was whether CCTV footage, showing the deceased prisoner in police cells hours before the escape attempt, could be admitted as evidence. The footage was partially taken when the accused officer was not present, but the jury could infer that he was watching the footage on a monitor. The court considered whether the footage would lead to an illegitimate or prejudicial reasoning by the jury, and whether the probative value of the evidence outweighed any potential prejudice.

The court examined section 137 of the Evidence Act 1995 (NSW), which allows for the admission of evidence that may cause distress if its probative value is not substantially outweighed by the risk of unfair prejudice. The court determined that there was no real danger that the jury would conclude the accused showed "callous disregard" for the deceased, and that the footage would not cause distress leading to illegitimate reasoning. The probative value of the evidence, particularly in relation to the officer's state of mind, was deemed to be significant. The court granted the accused the liberty to apply for a direction if the evidence was adduced. The footage was ultimately admitted, as its probative value was not outweighed by the risk of prejudice.

The court's reasoning focused on the balance between the relevance of the evidence and the potential for prejudice. The court concluded that the evidence was crucial in understanding the officer's perspective and was necessary for the jury to make an informed decision. The officer's presence in the cells when the footage was taken, and the inference that he was monitoring the footage, provided context that was valuable to the case. The court found that the footage would not lead to an illegitimate or prejudicial reasoning by the jury. The decision underscored the importance of considering the specific circumstances of each case when evaluating the admissibility of evidence that may be distressing.

The final order of the court was that the CCTV footage was admissible as evidence. The court granted the accused the liberty to apply for a direction if the evidence was adduced, but ultimately determined that the probative value of the evidence outweighed any potential prejudice. The decision highlights the court's careful consideration of the specific circumstances in which evidence is admitted, particularly when the evidence may be distressing.

Orders