R v Officer A

Background

1. A summary of the Crown case is set out R v Officer A (No 1) [2022] NSWSC 1362 at [3] to [6] which should be read with this judgment. The Crown alleges 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. The parties have identified two potential lawful causes or excuses, namely cll 131 and 303 of the 2014 Regulation. However, they were very much in disagreement as to whether one or both of them were applicable and, if both were, whether they imposed cumulative requirements or provided for alternative "excuses". Before addressing the parties' submissions, it is necessary to describe the relevant statutory provisions.

The Act

1. The objects of the Crimes (Administration of Sentences) Act 1999 (NSW) (the "Act") include ensuring that offenders required to be held in custody are inter alia "placed in a safe, secure and humane environment" as well as ensuring that the safety of persons "having the custody or supervision of offenders is not endangered" (s 2A(1)). Part 2 of the Act deals with imprisonment by way of full-time detention. Part 2 applies to, inter alia, "any person the subject of a warrant or order by which a court has committed the person to a correctional centre" other than through having been convicted (s 4(1)(d)) and to "any person in custody who is given into the keeping of a correctional officer under" s 250 of the Act (s 4(1)(f)). As at 15 March 2019 this included Mr Johnstone who was refused bail on that day. Section 3 of the Act defines an "inmate" as someone to whom Pt 2 applies.
2. Division 3 of Pt 2 of the Act deals with transfers and leaves of absence. Section 23 empowers the Commissioner of Corrective Services ("the Commissioner") to order the transfer of an inmate from one correctional centre to another. Section 24(1) empowers the Commissioner to order that an inmate be transferred to, inter alia, a hospital if they are "of the opinion that it is necessary or desirable for the inmate to receive medical attention there". Section 24(2) empowers the Commissioner to direct a correctional officer to take charge of the inmate.
3. Section 38(1) identifies various circumstances in which an inmate may be absent from a correctional centre including "while at a hospital or other place referred to in section 24, or while being transferred between a correctional centre and such a hospital or place" (sub-s (c)). Section 38(2)(b) provides that, if "[a]n inmate who is absent from a correctional centre" is "escorted by a correctional officer employed in a correctional centre [then] the inmate is taken to be in the custody of the general manager of the correctional centre in which the correctional officer is employed".
4. In the case of Mr Johnstone, it is common ground that on the day of his death he was an "inmate", that he was the subject of an order under s 24 of the Act authorising him to be taken to hospital and that he was absent from a correctional centre in the circumstances contemplated by s 38(1)(c).
5. Section 79 of the Act authorises the making of regulations making provision for or with respect to, inter alia: "(a) the management, control, administration, supervision and inspection of correctional centres and correctional complexes, … (s) the circumstances in which a correctional officer may use force against an inmate, and the keeping of records of the occasions on which force is so used, (t) the circumstances in which a correctional officer may use firearms, and the keeping of records of the occasions on which firearms are so used..."
6. This provides some, albeit tepid, support for the contention that the use of force and the use of firearms are to be considered as separate topics.

Part 6 of the 2014 Regulation: Correctional Centre Discipline

1. Part 6 of the 2014 Regulation is entitled "Correctional centre discipline". Division 2 of Pt 6 is entitled "Maintenance of order and discipline". Regulation 129(1) provides that "[o]rder and discipline in a correctional centre are to be maintained with firmness, but with no more restriction or force than is required for safe custody and well-ordered community life within the centre." Regulation 131 provides: "131 Use of force in dealing with inmates (1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible. (2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint. (4) Subject to subclauses (1) - (3), a correctional officer may have recourse to force for the following purposes - (a) to search, if necessary, an inmate or to seize a dangerous or harmful article, (b) to prevent the escape of an inmate, (c) to prevent an unlawful attempt to enter a correctional centre by force or to free an inmate, (d) to defend himself or herself if attacked or threatened with attack, but only if the officer cannot otherwise protect himself or herself from harm, (e) to protect other persons (including correctional officers, departmental officers, inmates and members of the public) from attack or harm, but only if there are no other immediate or apparent means available for their protection, (f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of an imminent attack, (g) to prevent an inmate from injuring himself or herself, (h) to ensure compliance with a proper order, or maintenance of discipline, but only if an inmate is failing to co-operate with a lawful correctional centre requirement in a way that cannot otherwise be adequately controlled, (i) to move inmates who decline or refuse to move from one location to another in accordance with a lawful order, (i1) to allow a medical practitioner to carry out medical treatment on an inmate in accordance with section 73 of the Act, (i2) to allow treatment (including any medication) to be given to an inmate in accordance with section 84 of the Mental Health Act 2007, (j) to achieve the control of inmates acting defiantly, (k) to avoid imminent violent or destructive behaviour by inmates, (l) to restrain violence directed towards the correctional officer or other persons by an uncontrollable or disturbed inmate, (m) to prevent or quell a riot or other disturbance, (n) to deal with any other situation that has a degree of seriousness comparable to that of the situations referred to in paragraphs (a) - (m). (5) Subclause (4) does not limit the operation of any law with respect to the force that may be used to effect an arrest." (emphasis added)
2. Clause 3(1) defines "force" as "including the threat to use force and the carriage and use of restraining equipment." The same clause defines "restraining equipment" as "equipment of the kind referred to in cl 132". Clause 132(1) enables a correctional officer "[w]ith the concurrence of the governor [of a correctional centre] to use handcuffs, security belts, batons, chemical aids and firearms for the purpose of restraining inmates." It follows that the "force" referred to in cl 131 includes the "carriage" and "use" of firearms. Thus, read literally, sub‑cl (4) authorises recourse to force, including the "carriage and use" of a firearm, in a variety of circumstances including to "prevent the escape of an inmate" but as well as, say, "to achieve the control of inmates acting defiantly". The exercise of that authority is subject to the constraints in cll 131(1) to (3).
3. Clause 133(1) requires that [a]ny correctional officer who uses force on an inmate must immediately give a report about the use of force to the governor." Clause 133(2) specifies the content of the report including that it must be in writing. Clause 133(4) confirms that a report need not be provided for "a threat of the use of force" or "the use of an instrument of restraint where" an "inmate is restrained for the purposes of being moved from one location to another [and that movement] and use of the restraint is required to be noted administratively."

Part 19 of the 2014 Regulation: Use of Firearms

1. Part 19 of the 2014 Regulation is entitled "[u]se of firearms". Clause 292(1) prohibits a correctional officer from carrying "firearms while on duty except as authorised by or under" Pt 19. Clauses 295 to 297 deal with training and safety procedures in relation to firearms. Clause 302 prohibits a correctional officer from discharging "a firearm while on duty except in the performance of that duty."
2. Clause 303 provides: 303 Authority to discharge firearms (1) A correctional officer may discharge a firearm - (a) ... (b) if the officer believes on reasonable grounds that it is necessary to do so in order - (i) to prevent the escape of an inmate, or (ii) to prevent an unlawful attempt to enter a correctional centre or to free an inmate, or (iii) to attract the immediate attention of correctional officers or other persons to a serious breach of correctional centre security that has arisen or is likely to arise, or (c) to give a warning in accordance with this Regulation. (2) Despite subclause (1), a correctional officer must not discharge a firearm at a person if the officer has reasonable grounds to believe that the shot may hit a person other than the person at whom it is directed." (emphasis added)
3. It follows from cl 303(2) that the discharge of a firearm contemplated by cl 303(1) includes the circumstances in which a firearm is discharged "at a person". Clause 303(1)(c) refers to the discharge of a firearm to give a warning in accordance with the Regulation. The topic of "warnings" is addressed in cl 304 which provides: 304 Warnings (1) A correctional officer must not discharge a firearm in the direction of a person unless the officer has first given a warning to that person of the intention to fire. (2) For the purposes of subclause (1), and without prejudice to any other way in which a warning may be given, a warning shot is a warning. (3) A warning shot must be fired in a direction in which no one is likely to be hit by it. (4) A correctional officer may, without giving a warning, discharge a firearm in order to protect the officer or any other person if of the opinion that - (a) there is a substantial probability that the officer or other person will be killed or seriously injured if the officer does not do so, and (b) a warning would only increase that probability." (emphasis added)
4. Again cl 304(1) explicitly contemplates the discharge of a firearm "in the direction of a person".
5. Part 19 has its own reporting condition in relation to the discharge of a firearm while on duty. Thus, cl 305 provides: 305 Notice of discharge (1) A correctional officer who discharges a firearm while on duty at a correctional centre, otherwise than while taking part in-- (a) an approved training course, or (b) a firearms practice exercise authorised by the governor, or (c) an activity connected with a training course or practice exercise referred to in paragraph (a) or (b), must notify the governor of the circumstances in which it was discharged. (2) A correctional officer who discharges a firearm while on escort duty must notify a police officer and - (a) the governor of the correctional centre at which the officer is usually on duty, or (b) if the correctional officer is a member of a Security Unit, the officer in charge of that Unit, of the circumstances in which it was discharged. (3) On being notified, the governor or the officer in charge of the Security Unit is to report the circumstances of the discharge to the Commissioner. (4) On receiving the report the Commissioner may hold an inquiry into the discharge. (5) The Commissioner must submit a full report of the findings of any inquiry to the Minister. (emphasis added)
6. There is no definition of "escort duty" in the Act or the 2014 Regulation. However, it appears to be a reference to some form of function of supervising inmates outside of a correctional centre such as in the circumstances of this case. This is consistent with the necessity to notify a police officer of such a discharge as opposed to notifying the governor where the discharge of a firearm occurs at a correctional centre.

Legislative History

1. The submissions on behalf of the accused set out a detailed legislative history of what are now cll 131 and 303 of the 2014 Regulation.
2. In summary, in 1980 the then Prisons Regulation 1968 (NSW) (made under the Prisons Act 1952 (NSW); the "1968 Regulation") was amended by the inclusion of Part XVII entitled "Use of Firearms by Prison Officers". Part XVII was similar in scope and content to Pt 19 of the 2014 Regulation and included cll 130 and 131 which are not materially different to current cll 303 and 304. As at that time, Pt X of the 1968 Regulation addressed "prison discipline" but did not contain any equivalent to current cl 131.
3. On 2 April 1982, the 1968 Regulation was amended by the inclusion of definitions of "force" and "instruments of restraint" that are identical to those found in the 2014 Regulation. The amendments also inserted provisions into Part X that are not materially different to those parts of the 2014 Regulation dealing with the use of force as set out above. In particular, cl 100C(5) authorised recourse to force in a relatively wide set of circumstances similar to current cl 131(4) which was subject to various constraints including the necessity to "use no more force than is reasonably necessary in the circumstances" where the infliction of injury on a prisoner was to be avoided if at all possible (cl 100C(1)) and an additional restraint, not found in current cl 131, prohibiting a prison officer from acting deliberately in a manner calculated to provoke a prisoner (cl 100C(4)).
4. The 1968 Regulation was replaced by the Prisons (General) Regulation 1989 (NSW) (the "1989 General Regulation") and the Prisons (Administration) Regulation 1989 (NSW) (the "1989 Administration Regulation"). Part 14 of the 1989 General Regulation contained the provisions concerning recourse to force that were found in former Part X of the 1968 Regulation from 1982. The only material change was that, at the end of the provision authorising the use of force, the words "Maximum penalty: 10 penalty units" were included indicating that a breach of the prohibitions on the use of excessive force or deliberately provoking a prisoner was an offence. Part 5 of the 1989 Administration Regulation contained the provisions concerning the discharge of firearms that were not materially different to those found in former Part XVII of the 1968 Regulation.
5. The 1989 General Regulation and the 1989 Administration Regulation were remade without any relevant substantive change in 1995 to become the Prisons (General) Regulation 1995 (NSW) and the Prisons (Administration) Regulation 1999 (NSW) respectively, save that a breach of the provision precluding the discharge of a firearm while on duty except in the performance of that duty, now found in cl 300 of the 2014 Regulation was made an offence punishable by a maximum penalty of 20 penalty units (former cl 47). In 1999, both regulations were renamed (twice) until they ultimately became the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW) and the Crimes (Administration of Sentences) (Correctional Centre Administration) Regulation 1995 (NSW) respectively.
6. The Act was passed in 1999. In 2001 the Crimes (Administration of Sentences) Regulation 2001 (NSW) (the "2001 Regulation") was made replacing the successors to the 1989 General Regulation and the 1989 Administration Regulation. The authority to use force was located in cl 121 of Div 2 of Pt 5 of Ch 32 of the 2001 Regulation with the prohibition on provoking a prisoner removed along with the reference to a penalty. The provisions dealing with firearms were found in Pt 3 of Ch 8 with the reference to a penalty removed from the equivalent to current cl 302. These provisions were then included in Div 2 of Pt 2.5 of Ch 2 and Div 6 of Pt 9.4 of Ch 9 respectively in the Crimes (Administration of Sentences) Regulation 2008 (the "2008 Regulation") which repealed and replaced the 2001 Regulation. The 2014 Regulation replaced the 2008 Regulation.
7. This (brief) review of the legislative history of cll 131 and 303 of the 2014 Regulation provides some support for the accused's contention that legislative authorisation and regulation of the use of force on the one hand and discharge of firearms on the other are separate topics. Two matters should be noted. First, the fact that they were not introduced at the same time is some, albeit mild, support for their being considered separately. On the Crown's construction the introduction in 1982 of limits on the use of force by the amendments to the 1968 Regulation imposed additional limitations on the discharge of firearms, at least such discharges directed at a person, to those which were included in 1980. At the very least, the period between 1980 and 1982 reveals that the legislature was not concerned to impose the form of restraint now imposed by cl 131(1) on discharges of firearms by correctional officers acting in the performance of their duty.
8. Second, the legislative history reveals a consistent approach of treating the use of force and the discharge of firearms as distinct topics. The Court was not referred to any secondary materials which adverted to any possible interaction between the two sets of provisions in the last 40 years. That said, as the Crown contended, recourse to legislative history has its limits as the relevant inquiry is to the proper interpretation of the current provisions.

Parties' Submissions

1. In its written submissions, the Crown contended that using "force" in the form of discharging a firearm at an inmate is subject to the restrictions imposed by both of cll 131 and 303. In the context of this case, it is contended that the accused's action in firing the third and fatal shot was only lawful if the accused used more force than was reasonably necessary in the circumstances (cl 131(1)), that he believed it was necessary to discharge his firearm to prevent the deceased's escape, and that belief was reasonable (cl 303(2)(a)). [1] On this approach, to negate the existence of a lawful cause or excuse, the Crown need only prove beyond reasonable doubt that one of those matters did not occur. In its written submissions in reply the Crown developed this contention by submitting that, although cl 303 authorises the discharge of a firearm to prevent the escape of an inmate, it does not expressly or implicitly authorise recourse to "force", including by intentionally discharging a firearm at an inmate. [2] Instead, it was submitted that the discharge of a firearm so as to constitute "force" is governed by cl 131. The submissions described cl 303 as a "gateway requirement for discharge of the firearm" which is antecedent to the recourse to the use of force. [3] Thus, it was argued that the discharge of a firearm had to comply with cl 303 but, as force was involved, there also had to be compliance with cl 131. On this approach, the Crown could disprove the existence of legal excuse by disproving the application of either cll 131 or 303.
2. The accused contended that it was only cl 303 that was relevant. In his written submissions it was contended that cl 131 was only applicable to the use of force in or at a correctional centre. The submissions pointed to the heading to Pt 6, the different requirements of Pt 6 and Pt 19 and the history of the legislative provisions noted above. [4] Alternatively he submitted that, if both cll 131 and 303 were applicable, then they provided separate sources of authority to discharge a firearm so that the Crown would have to disprove the existence of both forms of authority. [5] On this approach, the accused submitted that a correctional officer could discharge a firearm for any of the purposes specified in cll 131(4)(a) and 131(4)(d) to (n) without having to comply with any part of Pt 19. [6] This point is addressed below, although I consider it has a different significance. The accused further submitted that, if the operation of cll 131 and 303 could not be reconciled then, as the latter is more specific, the former must be read down. [7] In broad terms I accept that contention.

Reconciling Part 6 and Part 19 of the 2014 Regulation

1. I do not accept the accused's contention that the authorisation to use force conferred by cl 131(4) is confined to correctional centres. Nothing in the text of cl 131 purports to have that effect. By contrast cl 129(1) specifically refers to "Order and discipline in a correctional centre" and cll 131(4)(c) and (h) specifically refer to correctional centres. Although the heading to Pt 6 of the 2014 Regulation forms part of the regulation (Interpretation Act 1987 (NSW), s 35(1)), there is no reason to read down cl 131 to only those occasions when an inmate is at a correctional centre. Were it otherwise, the only form of "force" that an officer was authorised to exercise during, say, a hospital transfer under s 24 of the Act (or the like) would be the discharge of a firearm as authorised under Pt 19 of the 2014 Regulation. Such a result would be absurd.
2. The starting point for the Crown's submission is that, by the operation of the provisions noted above, the definition of "force" for the purposes of cl 131 extends to the carriage and "use" of a firearm, and "use" includes the discharge of a firearm at a person. As noted, in its written submissions in reply the Crown contended that, although cl 303 authorises the discharge of a firearm to prevent the escape of an inmate, it does not expressly authorise recourse to force, including by intentionally discharging a firearm at the inmate. [8] Instead, it was submitted that the discharge of a firearm so as to constitute "force" is governed by cl 131. Thus, it was argued that the discharge of a firearm had to comply with cl 303 but, as force was involved, there also had to be compliance with cl 131.
3. However, in oral submissions it was accepted by the Crown that (at the very least) so much of the provisions of Pt 19 that contemplate the discharge of a firearm "at a person" (cl 303(2) or "in the direction of a person" (cl 304(1)) would fall with the concept of a "recourse" to force for the purposes of cl 131(4). There is no reason whatsoever to doubt that the discharge of a firearm "at a person" or "in the direction of a person" as contemplated by Pt 19 includes the circumstance in which the discharge is necessary to prevent the escape of an inmate (cl 303(1)(b)(i)). Once that step is reached then the Crown's attempted delineation between the operation of cll 131 and 304 falls way. Even so, the Crown contended that there were some forms of discharge of a firearm contemplated by Pt 19 that did not involve the use of "force" such as that contemplated by cl 303(1)(c) which involves the discharge of a firearm for the purpose of attracting the attention of other correctional officers or say discharging a firearm at, say, the tyres of a vehicle involved in an escape. However, that submission ignores the width of the literal definition of "force" which extends to (any) use of restraining equipment, that is any "use" of a firearm. On a literal interpretation, all discharges of a firearm involve the use of force for the purposes of Pt 6 and would be regulated as such, and all such discharges are also regulated by Pt 19.
4. This means that close scrutiny is required as to whether both Pt 6 and Pt 19 can operate together. The circumstances in which a firearm may be discharged as contemplated by cll 303(1)(b)(i) and (ii) are identical to the circumstances in which a correctional officer may have recourse to force as specified in cl 131(4)(b) and (c). However, there is no counterpart in cl 131(4) to cl 303(1)(b)(iii). Thus, if one accepts a literal interpretation of the definition of "force", cl 303(1)(b)(iii) authorises the use of a form of force for a purpose that does not fall within cl 131(4), namely, to attract the immediate attention of another officer.
5. The incompatibility between this aspect of Pt 6 and Pt 19 is much more pronounced if one considers the various circumstances in which recourse to force is permitted by cl 131(4) that are not authorised by cl 303(1). Hence, adopting the literal definition of force as extending to the discharge of a firearm, then cl 131(4) enables the discharge of a firearm for such purposes as "to prevent an inmate from injuring himself or herself" (cl 131(4)(g)), ensuring compliance with a proper order (cl 131 (4)(h)) or moving an inmate who declines or refuses to move from one location to another (cl 131(4)(i)). The purported authorisation of a discharge of a firearm for those purposes appears wholly inconsistent with the careful limitations on the circumstances in which a firearm can be discharged as set out in cl 303(1). It might be said that any such discharge of a firearm would have to be consistent with cl 131(1) to (3) and that it is difficult to see how the discharge of a firearm, especially "at the person", to "prevent an inmate from injuring himself or herself" could ever involve the use of no more force than is reasonably necessary for the purposes of cl 131(1). However, that only serves to highlight the difficulty with the premise of the argument which is that the definition of force extends to the use of a restraint in the form of the discharge of a firearm even though that topic is regulated by Pt 19.
6. If recourse to force in the form of a discharge of a firearm in order to, say, prevent an inmate from injuring themselves was done "in the direction of a person" then, unless the exercise of force under cl 131(4) by the discharge of a firearm in circumstances not authorised by cl 303(1) was subjected to the requirements of the rest of Pt 19, then that discharge could occur without the necessity to give a warning. This outcome stretches the tension between Pt 6 and Pt 19 beyond breaking point if the former is construed as being applicable to discharges of firearms. To impose the warning requirement in cl 304 on the recourses of force listed in cl 131(4) that do not correspond to cl 303(1) only highlights that what is being erected is a conglomeration of two regulatory codes. Otherwise, if a recourse to force within the meaning of cl 131(4) includes the discharge of a firearm, then Pt 6 and Pt 19 impose different and potentially cumulative reporting requirements.
7. In oral argument, senior counsel for the accused, Mr Strickland SC, took the court to various decisions enunciating principles as to how a court reconciles the provisions of a statute that are apparently in conflict. One of those decisions is Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9 ("Anthony Hordern"), in which Gavan Duffy CJ and Dixon J stated that "[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
8. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59] Gummow and Hayne JJ observed as follows in relation to this aspect of Anthony Hordern: "Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power' … or are with respect to the same subject matter … or whether the general power encroaches upon the subject matter exhaustively governed by the special power … However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions." (emphasis added)
9. In oral submissions in reply, the Crown contended that if recourse were had to Anthony Hordern, then the more restricted power was cl 131 and that would operate to the exclusion of cl 303. [9] I disagree. In this case the "restricted power" is the authority to discharge a firearm conferred by cl 303(1). If a literal interpretation of the meaning of "force", which extends the "use" of a firearm to include a discharge of the "firearm", is adopted then the ambit of the authority conferred by cl 303 falls wholly within the more general authority to have "recourse to force" conferred by cl 131(4). Put another way the subject matter of cl 131 is recourse to force generally whereas the subject of cl 303 is recourse to a particular type of force, namely discharge of firearms. Applying Anthony Hordern, the generality of the former must give way to the specific authority granted by the latter.
10. Further, with the Crown's literal interpretation of the meaning of force, even if one could graft out of cl 303 some separate degree of authorisation to that conferred by cl 131(4) so as to cast doubt on the potential application of Anthony Hordern then the same result would still ensue. Anthony Hordern is but a particular example of principles of statutory construction by which apparently conflicting statutory provisions are reconciled. Mr Strickland also instanced the analysis in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [80] per McHugh, Gummow, Kirby and Hayne JJ as an example of such a reconciliation that results in the conclusion that the legal meaning of a statutory provision departs from its literal or grammatical meaning. In this case the outcome of that form of analysis is that the word "force" as used in cl 131 excludes the discharge of a firearm. On this construction so much of the definition of force that involves the "carriage and use" of a restraint in the form of a firearm would include carrying a firearm and, potentially, brandishing a firearm although not discharging a firearm.
11. Two further matters should be noted.
12. First, one matter urged by the Crown was the importance of the restrictions imposed on the use of force by cll 131(1) to (3). The Crown referred to authorities concerning the common law's insistence on proportionality in the exercise of force (eg, Binse v Williams (1997) 91 A Crim R 340; [1998] 1 VR 381) and the necessity for clear legislative authorisation to abrogate a fundamental freedom or principle (X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; [2013] HCA 29 at [158] per Kiefel J). As the above summary of the legislative history indicates, on any view, there was a departure from that approach between 1980 and 1982. Further, the premise of the Crown's argument appeared to be that, if force included the discharge for firearms, Pt 19 is nevertheless more permissive in relation to the discharge of firearms than cl 131. I do not accept that is so. The better analysis is that the restrictions found within each part are different rather than one being more permissive than the other. Hence with Pt 19 the circumstances in which a firearm may be discharged as provided for in cl 303(1) is far more restrictive than the circumstance in which recourse to force may be had as identified in cl 131(4). Clause 303(1) requires that the correctional officer must have a subjective belief that the discharge of the weapon is "necessary" to, inter alia, prevent the escape of a prisoner, whereas none of cll 131(1) to (4) impose any such requirement. The authority to discharge "in the direction of a person" conferred by cl 303 is conditioned by the obligation to give a warning as required by cl 304. There is no similar restriction in Pt 6 in relation to the recourse to force. As noted, Pt 6 and Pt 19 have different reporting obligations.
13. Second, during argument the Crown contended that, if the only restraints on the discharge of the accused's firearm were those set out in Pt 19 of the 2014 Regulation, then there was no scope for any exercise of judgment by a correctional officer, such as the accused, as to whether the appropriate course was to not discharge the weapon and let the inmate escape. [10] The Crown made this contention in support of its argument that the authority to discharge a firearm was conditioned by both cll 303 and 131(1). The Crown contended that it was only the latter that raised the issue as to whether the accused should have let Mr Johnstone escape in his restraints rather than shoot at him. I do not accept that cl 303(1)(b) is so restrictive. The word "necessary" is a strong word (Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]). In the context of the discharge of a weapon in the direction of an inmate it embraces a consideration of whether or not the risks inherent in discharging a firearm at a person should be assumed or the prisoner should be allowed to escape now and be captured later. To take an extreme example, if an inmate escapes after taking a child hostage and uses them as a shield, it would be unthinkable to construe cl 303 as obliging a pursuing correctional officer to discharge a shot rather than decide to allow the prisoner to escape.

Conclusion

1. In summary, once it was concluded that the discharge of a firearm at a person is, in the appropriate circumstances, (potentially) authorised by cl 303, the only textual means by which the Crown could have achieved an interpretation whereby the discharge of a firearm to prevent the escape of an inmate had to be undertaken in conformity with both of cll 303 and 131(1) to (3) is if the reference to "recourse to force" in cl 131(4), and "force" in cll 131(1) to (3), includes the discharge of a firearm simpliciter or at a person in circumstances where on any sensible view that was regulated by cl 303 (and Pt 19 generally). The difficulty with that interpretation is that once "force" is interpreted in that way then a conflict opens up between the permissible uses of force listed in cl 131(4) and the more limited circumstances in which a firearm can be discharged in cl 303, as well as between the limitations and accountability measures on the use of force found in Pt 6 and the other limitations and accountability measures found in Pt 19. Those provisions can only be reconciled by making the more general provisions of Pt 6 give way to the specific provisions of Pt 19 with the result that the "force" referred to in cl 131 does not include the discharge of a firearm. As noted, on this construction so much of the definition of force that involves the "carriage and use" of a restraint in the form of a firearm would still include carrying a firearm and (potentially) brandishing a firearm, although it would not include discharging a firearm.

Endnotes

1. Crown written submissions 26 September 2022 at [4(3)].
2. Crown submissions in reply at [6].
3. Crown submissions in reply at [29].
4. Accused's submissions at [52] to [70].
5. Accused's submissions at [65] to [70].
6. Accused's submissions at [70].
7. Accused submissions at [80].
8. Crown submissions in reply at [6].
9. Tr 11/10/2022 p 25.
10. Tr 11/10/2022 p 23.40.

Amendments 14 November 2023 - Re-trial completed, publication restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2023