R v Officer A

Supreme Court of NSW|2022-10-12|Before: Beech-Jones CJ, Mr P

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 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.

Background

A summary of the Crown case is set out in R v Officer A (No 1) [2022] NSWSC 1362 at [3] to [6] which should be read with this judgment ("Officer A (No 1)"). The Crown contends that the accused, a correctional officer, fired the third and fatal shot against 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 (Crimes Act 1900 (NSW), s 18(1) and (2)).
I have already ruled that the relevant lawful excuse that would be put to the jury for their consideration is that provided for in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (without regard to cl 131 thereof) made under the Crimes (Administration of Sentences) Act 1999 (NSW) (the "Act") (R v Officer A (No 2) [2022] NSWSC 1381). The issues that arises under cl 303 in relation to lawful excuse are whether the Crown can prove beyond reasonable doubt that either the accused did not believe that it was necessary to discharge his firearm to prevent the escape of Mr Johnstone or that any such belief was not based on reasonable grounds.
In Officer A (No 1), I noted that evidence of the manner in which corrective services were trained including training concerned the use of firearms was not opinion evidence (at [12] to [14]). In relation to the relevance of their training I noted that (at [20]): "On any view the test posed by this aspect of reg 303 requires a consideration of the accused's position in the circumstances in which he found himself and that would include any training he received concerning the use of a firearm to prevent the escape of a prisoner."

Evidence of Officers Southern and Pese

Kenneth Southern is the Senior Assistant Superintendent in Charge of the Northern Region Security Operations Group of the Department of Corrective Services. One aspect of his duties is the training of current and prospective Correctional Officers. In his statement he noted that trainee officers receive instruction in the use of "Tactical Options" and that in 2016 those options were "communications, batons, restraints, defensive tactics/open hand techniques and firearms". Mr Southern identified two scenarios that students undertake which he described as follows [1] : "6. The training involved students undertaking scenario based training. One of the scenarios was titled "Scenario 1- Offender Escape". This scenario involves two officer trainees responding to a role player inmate who has escaped and is potentially armed. The officers have to respond to the area, communicate with the inmate, arrest and restrain the inmate and return the inmate to custody. The role player is not always armed and usually presents a weapon depending on how the trainee officer are communicating with them. The main things we are looking for from the trainee officer is communications, spacing distance from the offender, threat assessment and firearm safety procedures. … 9. I was also shown a document from the participant guide titled 'Actual Performance Observed - Scenario PT03'. That scenario involved the trainee officer standing with his back to a role player inmate. The inmate is ten to fifteen metres away. When the officer turns they are to use the appropriate tactical option to deal with inmate. The inmate is not always armed. Whether the role player is armed or not is under the direction of the instructor. The main things we are assessing in this scenario is whether the officer uses the appropriate tactical options versus the threat presented."
Recreations of these scenes were filmed and made available to the Court. On the voir-dire the Crown confirmed that it was not proposed to tender and play that footage at the trial.
It seems that the accused undertook Tactical Options training in June and July 2016. There has been located a document entitled "Scenario 01 - Offender Escape". [2] The accused's surname is written in hand on the form. The form records that the participant's performance was satisfactory. It notes that a "warning shot x 1" was fired and "shot x 4 into offender". It also contains reference to cl 303. Mr Southern does not recognise the handwriting on the document and states that "I do not believe that I assessed the officer on that date for Scenario 1". [3]
There is another document entitled "Actual Performance Observed - Scenario PT03" bearing the accused's surname. [4] Mr Southern identifies his handwriting on that document other than the accused's surname. In oral evidence, he explained that the practice is to have the name of the trainee written on the document. [5] As this is a business record, the inference is available that the document relates the accused (Evidence Act, s 69). The document records the relevant participant's performance as "not satisfactory." In relation to whether the participant selected the appropriate tactical option he has recorded "No" and "1st attempt - shot unarmed offender" and "2nd attempt - drew firearm. In relation to whether "action taken was appropriate and lawful … [i]f shot fired it was authorised under s 303 Crimes (Administration of Sentences) Regulation 2014" Mr Southern wrote "shot unarmed offender". Similar entries were handwritten in the "remarks or remedial action taken" section of the form.
Mr Southern also completed a form entitled "Remedial Notification Form" concerning the accused. [6] It records that, on 18 July 2016, the accused completed an assessment with a Field training Officer in "… Simulated Scenarios Firearm/Ammunition" and that he was deemed "Not Yet Competent due to … Scenario Two 1st attempt - shot unarmed offender 2nd attempt - Drew firearm on unarmed offender and fell over." This form also relates to the accused's training in scenario PT03. The statement bears the accused's signature. In his statement Mr Southern explains that "prior to the trainee officer signing the document I explained the reasons remedial training was required." In his oral evidence on the application Mr Southern said that "we would have explained, probably the correct options to use at the time." [7]
A further document has been located bearing the accused's name and the date 4 August 2016. [8] It records "satisfactory" in relation to scenario PT03. [9] In 2016, Mr Ken Pese held the position of Senior Correctional Officer in the Security Operations Group. He identifies his handwriting on that document. [10]
The overall effect of this evidence is that it is capable of demonstrating that in 2016 the accused received instruction in the two scenarios described above, that during his participation in a role play of the scenario PT03 he purported to draw his firearm and shoot an unarmed offender as well as draw his weapon on the unarmed inmate, that he was advised that that response was unsatisfactory, that he participated in another session involving that scenario and was advised that his response was satisfactory. Presumably, the response in the further session did not involve him purporting to shoot the unarmed inmate.

Parties' Submissions

As noted, some of the documents sought to be tendered by the Crown contain assertions that the accused's performance in the training scenarios were or were not consistent with cl 303 of the 2014 Regulation. The Crown agreed that those parts of the document would not be pressed.
The Crown contended that the entirety of the training the accused received that related to the circumstances in which a corrective services officer should or should not draw and discharge their firearm at an inmate forms part of the information known to the accused and must be considered in an assessment of whether the accused believed it was necessary to discharge his firearm to prevent the escape of Mr Johnstone and there were reasonable grounds for that belief. [11] It contended that the evidence of the accused's response to Scenario PT03 was not deprived of relevance because the scenario does not involve the (unarmed) inmate escaping but instead involves the (unarmed) inmate running at the officer. The Crown contended that the fact that he was trained not to shoot an unarmed inmate running towards him is "highly relevant" in assessing his actions in shooting an (unarmed and shackled) inmate running away from him. [12]
The accused's written submissions contended that scenario PT 03 is "entirely different" to the circumstances facing the accused on 15 March 2019 in that the inmate commences with his back to the inmate, then turns and must chose a Tactical Option and in doing so is responding to a threat from an inmate approaching him whereas the accused was faced with an escaping inmate running away from him. It was contended that the evidence of the accused's failure of the training scenario could not bear directly on whether the accused failed to comply with cl 303. [13] In the alternative, it was contended that the evidence should be excluded under s 137 of the Evidence Act because the jury might impermissibly conclude or infer that the accused had a tendency to discharge his firearm contrary to his training; i.e., he was "trigger happy". [14] The Crown replied that the risk of this was negligible and, in any event, could be overcome by an ant-tendency direction.

Decision

Although there are differences between scenario PT03 and the circumstances faced by the accused on the evening of 15 March 2019, I accept that the training the accused received (twice) on that scenario "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" namely whether the accused believed it was "necessary" to shoot Mr Johnstone to prevent him from escaping and whether that belief was reasonable. The scenario of an unarmed inmate approaching a corrective service officer and representing a threat to the officer is arguably more serious than an unarmed restrained inmate escaping. At the very least it is reasonably arguable that the accused's training in this scenario would have brought home to him the necessity to be extremely cautious before discharging a firearm at an unarmed restrained inmate. The jury could use the training received by the applicant as a basis for reasoning that the accused either did not believe that was "necessary" or that any such belief was not reasonable in the circumstances he faced. That said, it must be remembered that the potential for the discharge of the firearm in scenario PT03 was governed by cl 303(1)(a) whereas the discharge of a firearm to prevent the escape of an inmate is governed by cl 303(b)(i), although the former is more likely to lead to a discharge at the inmate rather than the latter.
There was something of a gulf between the accused and the Crown's submissions. The accused's submissions were focussed on the Crown adducing evidence that he had failed the training module involving PT03 where the Crown's submissions were focussed on the training given to the accused. I queried with the Crown whether the evidence should be restricted to simply the training instruction given to the accused without it leading evidence that the accused's performance in shooting the inmate in scenario PT03 was assessed as unsatisfactory. The Crown contended that the fact that the accused was so assessed and in effect repeated the scenario could be relied on to prove that the lesson of shooting the unarmed inmate was the wrong response was highly likely to have been understood by him. I accept that contention although I also accept that there is some risk that the jury might use this evidence to reason in the manner contended for by the accused. However, I did not accept that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused (Evidence Act, s 137) and thus I declined to exclude the evidence. Nevertheless, to guard against the potential prejudice I reserved to the accused liberty to apply for a direction to be given to the jury at the time the evidence is adduced.
A draft of the proposed direction is as follows: "Members the jury I expect that you shortly will hear evidence about a training scenario that the accused participated in 2016 concerning corrective services officers being threatened by an unarmed inmate. I expect that you will hear evidence that the accused's response to that scenario, which involved him discharging his firearm, was considered "not satisfactory" and deemed "not yet satisfactory", that he repeated the scenario and was assessed as satisfactory. The Crown seeks to rely on that evidence to show the training that the accused received especially concerning the circumstances in which a firearm should be discharged. Whether you do use that evidence in your deliberations in that way is entirely a matter for you. You should wait until you hear from Mr Strickland SC before making any such assessment. However, at this point I point out to you should not use this evidence for any reason other than to consider the training received by the accused. For example, the Crown does not rely on this evidence to show that the accused had some tendency or propensity to discharge his firearm when it was not appropriate to do so. It would be wrong to use that evidence in that way. I direct you not to use this evidence as a basis to reason that that the accused had some tendency or propensity to discharge his firearm when it was not appropriate to do so. You must not use that evidence to reason that, because the accused has behaved in a certain way on this particular occasion, he must have behaved in that or a similar way on the occasion giving rise to the charge. You must not use that evidence to reason that the accused is the type of person who would commit the offence with which he has been charged. That is not the Crown's argument and it would be contrary to the law and your duty as a juror to use the evidence for a purpose other than the specific basis relied upon by the Crown."

Endnotes

Exhibit C - Pretrial argument bundle - Tab 45; all tab references are this exhibit.
Tab 48.
Tab 45 at [7].
Tab 48.
Tr 12/10/2022 p 61.6.
Tab 49.
Tr 12/10/2022 p 63.43.
Tab 50.
Tab 51.
Tab 50.
Crown submissions, Tab 33, at [16].
%Tab 33 at [21].
Accused's submissions 3 October 2022 at [5] to [8]; Tab 32.
Tab 32 at [9].

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

(Crimes Act 1900(NSW)

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