R v Officer A

1. [1]

   The accused, known as Officer A, is due to stand trial on a charge of murder on 11 October 2023. He previously stood trial from 19 October 2022 to 14 November 2022, but the jury was discharged after it was unable to reach a verdict (the “first trial”).

2. [2]

   On 18 August 2023, I heard oral argument on an application made by the accused to revisit three evidentiary rulings I made prior to and during the course of the first trial. At the conclusion of oral argument, I announced that I would not change two of the rulings but would (partially) reverse a third. I indicated that I would provide reasons at a later time. This judgment constitutes those reasons.

Background

1. [3]

   The accused is a correctional officer. As at 15 March 2019, the deceased, Dwayne Johnstone, was an inmate at a correctional centre. It is not in dispute that, on the evening of 15 March 2019, the accused shot and killed Mr Johnston as he attempted to escape while being escorted back to custody from Lismore Base Hospital.

2. [4]

   In R v Officer A (No 1) [2022] NSWSC 1362 at [3]−[4], I provided an overview of the Crown case as follows:

3. [5]

   The principal issue at the first trial was whether the Crown could prove beyond reasonable doubt that, when the accused fired the fatal shot, he acted without lawful excuse. In R v Officer A (No 2) [2022] NSWSC 1381 (“Officer A (No 2)”), I addressed the scope of the lawful authority conferred on a correctional officer to discharge a firearm at an escaping inmate. I concluded that a correctional officer’s power and authority to do so is governed by Pt 19 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the “2014 Regulation”), specifically cl 303(1)(b)(i). Clause 303 provides:

4. [6]

   At the first trial, the jury was directed about the authority of a correctional officer to discharge a firearm at an escaping inmate in terms that reflected cl 303(1)(b)(i) (and so much of the balance of Pt 19 that bore upon that provision). Thus, the jury was instructed that, if the Crown proved beyond reasonable doubt that either the accused did not personally believe it was necessary for him to fire the fatal shot at Mr Johnstone to prevent his escape or that the accused did not have reasonable grounds for any such belief, then it had established that the accused acted without lawful excuse.

5. [7]

   In one respect, the jury was instructed in terms that was more limited than what was stated in Officer A (No 2). Thus, in Officer A (No 2), I observed (at [41]):

6. [8]

   At the first trial, the jury was instructed that the word “necessary” is “a strong word” that “means more than merely something might be effective or that it is one of a number of options available”. [1] However, the jury was not instructed that a correctional officer could consider the option of allowing the prisoner to escape and be captured later. Instead, the jury was instructed that “[a]n officer may determine not to immediately discharge their weapon at an escaping prisoner because they can contain and isolate the prisoner within a relatively confined area in a relatively short period of time.” [2]

Revising Previous Rulings

1. [9]

   Section 130A(1) of the Criminal Procedure Act 1986 (NSW) provides that “[a] pre-trial order made by a Judge in proceedings on indictment is binding on the trial judge in those proceedings unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding.”

2. [10]

   In R v Obeid (No 4) [2015] NSWSC 1442 at [11], I noted that the “‘interests of justice’ is a commonly employed phrase which has been held to be of wide import and comprehend many factors”. In the context of s 130A(1) (and s 132(4)), I observed that the “‘interests of justice’ extends to the necessity to avoid the unnecessary re-agitation of matters already determined so as to avoid a waste of resources, and to respect principles of finality even in respect of a matter determined on an interlocutory basis” (at [11]). I concluded that a starting point for an application of s 130A(1) is “whether there has been some material change in circumstances since the previous ruling”, although the “necessity to demonstrate a material change in circumstance [does not] exhaust... the circumstances in which the interests of justice may warrant a departure from an earlier order” (at [12]).

3. [11]

   In this case, one potential “material change in circumstance” is that the three evidentiary rulings the subject of this application were made prior to or during the course of the first trial, whereas this applications was made after the first trial had concluded. Thus, at the time of those rulings, the use to which the Crown and the accused might make of the evidence in the balance of the trial could only be anticipated. However, at this point it is known what use was made of the evidence at the first trial and it is likely that a similar use will be made by the parties at the second trial. It is within that framework that the application to revisit the rulings can be addressed.

Cell CCTV footage: R v Officer A (No 5) [2022] NSWSC 139

1. [12]

   In R v Officer A (No 5) [2022] NSWSC 139 (“Officer A (No 5)”) I held that certain CCTV footage of Mr Johnstone having a fit in the cells at Lismore Police Station on the afternoon of 15 March 2019 should 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 [Mr Johnstone] falling from his bed” (at [1]). On 18 August 2023, the accused applied to re‑open that ruling but only to seek the exclusion of a small section of that footage depicting the accused prodding Mr Johnstone on the floor of the cell with his foot.

2. [13]

   These reasons should be read together with Officer A (No 5), including the description of the CCTV footage at [5]−[7]. The relevance of this evidence is that “it is evidence of the facts, matters and circumstances concerning Mr Johnstone that the accused was aware of at the time of the shooting, namely that [Mr Johnstone] appeared to have an epileptic fit in his cell some five hours before the shooting” (Officer A (No 5) at [8]; see also at [11] and R v Officer A (No 3) [2022] NSWSC 1394 at [10]).

3. [14]

   On this application, Senior Counsel for the accused, Mr Strickland SC, submitted that the portion of the CCTV footage depicting the accused prodding Mr Johnstone’s foot or leg while he lay on the floor of the cell should be excluded under s 137 of the Evidence Act 1995 (NSW). It was submitted that to redact this part of the footage would not diminish the probative value of the CCTV footage and that the jury might otherwise regard the accused’s action in “prodding” Mr Johnstone’s foot or leg as insensitive.

4. [15]

   I addressed and rejected this very argument in Officer A (No 5) at [11] as follows:

5. [16]

   As foreshadowed in this passage, a draft direction was set out in the judgment which directed the jury that they should not form any conclusion that the accused acted inappropriately or improperly nor reason that because the accused behaved in the manner shown in the CCTV footage he is the type of person who would commit the offence charged. At the first trial, the jury was instructed in those terms.

6. [17]

   In the end result, nothing additional to the matters considered in Officer A (No 5) was raised on this application. I was not otherwise persuaded from the view expressed in the above passage. I was not satisfied that it would not be in the interests of justice for this part of the ruling in Officer A (No 5) to be binding.

Scenario PT03: R v Officer A (No 4) [2022] NSWSC 1395

1. [18]

   In R v Officer A (No 4) [2022] NSWSC 1395 (“Officer A (No 4)”), I ruled that certain evidence of the training instruction given to the accused, including his performance in relation to two particular scenarios involving firearms, should be admitted with certain exceptions and subject to certain restrictions on the manner in which it could be used by the Crown. The two training scenarios were described by the relevant (senior) Correctional Services officer as follows:

2. [19]

   On 18 August 2023, the accused applied to revisit the ruling in so far as it applied to Scenario PT03. The particular items of evidence concerning Scenario PT03 that were admitted were film footage recreating the scenario and various documents concerning the accused’s instruction in how to respond to that scenario. The effect of that documentary evidence was described in Officer A (No 4) at [13] as follows:

3. [20]

   During the first trial, the accused objected to this evidence on the basis that, because the scenario concerned a prisoner confronting a correctional officer in a threatening manner, it was irrelevant to the circumstance of a correctional officer dealing with an escaping inmate. It was also submitted that the evidence was prejudicial because the jury might impermissibly conclude from the initial assessment of the accused’s performance in this scenario as unsatisfactory that the accused had “a tendency to discharge his firearm contrary to his training; i.e., that he was ‘trigger happy’” (Officer A (No 4) at [16]).

4. [21]

   I rejected those contentions. In relation to the probative value of the evidence, I found as follows (Officer A (No 4) at [17]):

5. [22]

   I also did not accept that the probative value of the evidence was outweighed by any prejudice that might follow from the admission of this evidence (Officer A (No 4) at [18]). I sought to guard against the risk of prejudice by directing the Crown not to open its case by suggesting that the accused’s performance in training was unsatisfactory. I also directed the jury that it should not use the evidence of the accused’s training in this scenario for any purpose “other than to consider the training received by the accused” and it should not use the evidence as a “basis to reason that the accused had some tendency or propensity to discharge the firearm when it was not appropriate to do so” (Officer A (No 4) at [19]).

6. [23]

   The written submissions in support of the application to revisit this ruling again contended that the evidence concerning the accused’s participation in Scenario PT03 is irrelevant. The submissions emphasised the difference between that scenario and the circumstances of the alleged offence. The submissions sought to deploy evidence of a witness with expertise in making operational decisions in stressful conditions to the effect that the two scenarios described above have “little in common”. [3] The submissions also reiterated the complaints about prejudice to the accused that were addressed in Officer A (No 4) and referred to various parts of the Crown address as potentially inviting the jury to adopt the tendency reasoning forbidden by the ruling in Officer A (No 4).

7. [24]

   One part of the Crown address relied on by the accused in seeking to revisit this ruling was the following:

8. [25]

   I do not accept that this submission by the Crown has a tendency to invite the form of forbidden tendency reasoning adverted to in Officer A (No 4). Instead, this submission focusses on what the accused learnt from undertaking training including repeating his training in Scenario PT03. As the Crown’s written submissions addressed at length, the evidence and submissions to the above effect concerned the “information and knowledge the accused had available to him including what tactical options were available to him” (at [26]).

9. [26]

   Otherwise, nothing raised in the written submissions or the expert material warranted revisiting the ruling in Officer A (No 4). However, during oral argument, Mr Strickland SC raised a different form of prejudice which relates to the emphasised passage in [21]. This form of prejudice does not concern what the jury may have learnt about the accused from the evidence concerning Scenario PT03, but instead concerns what the jury may learn about the circumstances in which a potentially lethal discharge of a firearm may occur.

10. [27]

    Mr Strickland SC contended that Scenario PT03 reflects a scenario raised by cl 303(1)(a), whereas the charge against the accused concerns a scenario raised by cl 303(1)(b)(i). He contended that there was a risk of the jury eliding the difference between the two scenarios and reasoning that, because shooting the inmate in Scenario PT03 was not justified, that either meant or implied that shooting an inmate in the circumstances of this case where the inmate posed less of an immediate physical danger to anyone was also not justified. The Crown Prosecutor contended that there was no such risk, especially given it was common ground that one matter informing whether there were reasonable grounds for believing it was necessary to discharge a firearm to prevent Mr Johnstone’s escape was whether he posed a threat to the safety of anyone else.

11. [28]

    There are differences between the matters a correctional officer must be satisfied of before they are lawfully authorised to discharge a firearm under cl 303(1)(a) compared with cl 303(1)(b)(i). In the case of cl 303(1)(a), the officer must hold a belief based on reasonable grounds of a substantial probability that the officer or other person will be killed or seriously injured if the officer does not discharge the firearm. In the case of cl 303(1)(b)(i), the officer must hold a belief based on reasonable grounds of the necessity to discharge the firearm to prevent the escape of an inmate. It is not correct to say that one set of preconditions are more restrictive than another. However, it is correct to say that they are very different preconditions.

12. [29]

    At the first trial, the jury was given detailed directions concerning the scope of cl 303(1)(b)(i). These directions extended to directing the jury about what matters might be relevant to determining whether any belief the accused held as to the necessity to discharge the firearm was based on reasonable grounds, including the officer’s knowledge of the availability of other means to prevent the escape of a prisoner that may have been acquired from their training. Having considered the matter further, I accepted there was an appreciable risk that the jury may apply what is sought to be conveyed by Scenario PT03, which concerns cl 303(1)(a), to a consideration of the scope of the lawful authority conferred by cl 303(1)(b)(i). For example, a juror could conclude from the evidence relating to Scenario PT03 that a correctional officer should not discharge a firearm at an escaping inmate unless there is a relevant likelihood of a threat to the safety of an officer or other person when that is not a precondition to the discharge of a firearm under cl 303(1)(b)(i).

13. [30]

    One potential means of addressing this form of prejudice would be to direct the jury about the scope of cl 303(1)(a) and the differences between that provision and cl 303(1)(b)(i). However, a summing up is not a legal lecture. Juries are given directions on only so much of the relevant law as they need to decide the case at hand and no more. In this case, they will be given a detailed, and hopefully clear, explanation of the scope of cl303(1)(b)(i). If the jury were also given a detailed instruction about the scope of a (quite) different power just so they can consider the evidence about a training scenario which was different to the circumstances faced by the accused, then it would have the real potential to confuse (and perhaps undermine) the instructions given to the jury about the scope of the lawful authority conferred by cl 303(1)(b)(i).

14. [31]

    Given that the jury will nevertheless hear evidence about the training the accused received about the possible methods of preventing Mr Johnstone’s escape other than the discharge of a firearm, I was satisfied that the probative value of the evidence concerning the accused’s training in Scenario PT03 was outweighed by the danger of unfair prejudice to the accused from its admission (Evidence Act, s 137). I was also satisfied that, with or without any explanation of the scope of cl 303(1)(a), the probative value of the evidence of the accused’s training in Scenario PT03 was outweighed by the danger that it “might… be misleading or confusing” to the jury if it was admitted (Evidence Act, s 135(b)).

CCTV Footage Lismore Base Hospital: R v Officer A (unreported, 20 October 2022)

1. [32]

   On the evening of 15 March 2019, Mr Johnstone was escorted out of Lismore Base Hospital to the area of the prison van at around 7.33pm. Between that time and around 7.35pm, Mr Johnstone attempted his escape across a road outside the hospital and was fatally shot.

2. [33]

   In R v Officer A (unreported, 20 October 2022) (“Officer A (unreported)”), I rejected an objection by the accused to the tender by the Crown of CCTV footage taken between 7.23pm and 7.30pm on 15 March 2019 outside the hospital. During this period, the accused left the hospital and can be seen on the footage making a telephone call. Mr Johnstone remained inside the hospital receiving treatment in the presence of another correctional officer.

3. [34]

   I addressed and rejected a challenge to this evidence on the basis that it was not relevant as follows:

4. [35]

   The accused applied to revisit the admission of this evidence. It was contended that the evidence was not relevant or, if it was relevant, it was prejudicial to the accused and should be excluded under s 137 of the Evidence Act. When asked in oral argument to identify the prejudice that might be occasioned by admitting this evidence, Mr Strickland SC pointed to the “illogicality” of the evidence in that, if Mr Johnstone was handcuffed, “how can you rationally infer from that that [he] therefore perceived that he was somehow less of a danger”. [4] In essence, that submission is a repetition of the relevance objection.

5. [36]

   In the end result, nothing additional was raised on this application. I have not otherwise been persuaded by the view expressed above. I am not satisfied that it is in the interests of justice for this part of the ruling in Officer A (unreported) to not be binding.