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

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Officer A (No 6) [2022] NSWSC 1413
Hearing dates: 17 October 2022
Date of orders: 17 October 2022
Decision date: 17 October 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
Application for a view refused

Catchwords:
CRIMINAL LAW – Crown application for a view – accused charged with murder of escaping inmate – inmate shot while attempting to escape after being discharged from hospital – benefit of observing scene to assessment of circumstances facing accused – trial in Sydney – events took place in Lismore – difficulties organising view – very late application – granting application carried appreciable risk of vacating trial date – accused opposed application – unfairness to accused – application rejected

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Regulations 2014 (NSW)
Criminal Procedure Act 1986 (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

Category: Procedural rulings
Parties: Rex (Crown)
Officer A (Accused)
Representation:
Counsel:
Mr K McKay SC; Ms S Lind; Ms V Chan (Crown)
Mr P Strickland SC; Ms S Palaniappan; Mr I McLaughlan; Mr S Russell (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
McNally Jones Staff (Accused)

File Number(s): 2021/35115

EX TEMPORE JUDGMENT

(Revised from Transcript)

The accused, known as “Officer A”, faces a charge that he did murder the deceased, Mr Johnstone, on 15 March 2019. His trial was originally due to commence today but because of argument on various pre-trial issues, the jury is due to be empanelled on Wednesday 19 October 2022.
The hearing of the pre-trial issues commenced last week and continued until Thursday 13 October 2022. It was adjourned to today. On Friday 14 October 2022, my Chambers, and I infer the accused, received notification from the Crown that it would be applying for the Court to have the jury undertake a view pursuant to s 53 of the Evidence Act 1995 (NSW).
Although the possibility of undertaking a view was referred to in a statement filed by the Crown under s 142 of the Criminal Procedure Act 1986 (NSW), there had been no proper indication that the Crown sought a view until last Friday.

Background

The background to the charges is set out in R v Officer A (No 1) [2022] NSWSC 1362 at [3] to [6] (“Officer A (No 1)”). The accused was originally charged with manslaughter following a coronial inquest. He was arraigned in this Court on a charge of manslaughter in March 2022 when a trial date was set. Towards the end of August 2022, the Crown advised that it was applying to substitute an indictment charging him with murder. The accused ultimately did not oppose that amendment. The only relief it sought as a consequence of the amendment being granted was to push the trial back for a week.
As outlined in Officer A (No 1), the relevant events…

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 1413
Decision Date: 17 October 2022

CaseChat Overview and Summary

The case of R v Officer A (No 6) involved a Crown application for a view by the NSW Court of Criminal Appeal. The accused, Officer A, was charged with the murder of an inmate who was shot while attempting to escape after being discharged from a hospital. The events in question occurred in Lismore, while the trial was set to take place in Sydney. The Crown sought to have a view of the scene to assist in the assessment of the circumstances facing Officer A at the time of the shooting. The application, however, was made very late, raising concerns about the feasibility of organising the view and the potential impact on the trial date.

The primary legal issue before the court was whether the application for a view should be granted despite the significant delays and the potential disruption to the trial proceedings. The court had to weigh the benefit of observing the scene against the practical difficulties and the risk of vacating the trial date. Additionally, the court considered the impact of the delay on the fairness of the proceedings to the accused. The application was opposed by Officer A, who argued that the late application was unfair and that granting the application carried a significant risk of disrupting the trial.

The Court of Criminal Appeal determined that the application should be rejected. The court found that the difficulties in organising a view were substantial, and the late timing of the application significantly increased the risk of vacating the trial date. Furthermore, the court recognised that the accused would be unfairly prejudiced by the granting of the application, given the extensive delays and the opposition from the accused. The court concluded that the potential benefit of a view did not outweigh the practical difficulties and the risk of unfairness to the accused.

No orders were made by the court in relation to the application for a view, as the application was rejected. The trial proceeded as scheduled in Sydney, without the benefit of a view of the scene in Lismore. The court's decision emphasised the importance of timely applications and the need to balance the interests of all parties in criminal proceedings.

Orders