R v Officer A

Background

1. A summary of the Crown case is set out in R v Officer A (No 1) [2022] NSWSC 1362 ("Officer A (No 1)") at [3] to [6] which should be read with this judgment. The Crown contends 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 (Crimes Act 1900 (NSW), ss 18(1) and (2)).
2. I have already ruled that the relevant lawful excuse that would be put to the jury for their consideration is that provided in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the "2014 Regulation") (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 arise under cl 303 in relation to lawful excuse are whether the Crown can prove beyond reasonable doubt either that 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.

The CCTV Footage

1. The CCTV footage the subject of the objection is of a cell occupied by the deceased, Mr Johnstone, on the afternoon of 15 March 2019. It was taken around 2.50pm after Mr Johnstone was returned to a cell upon being refused bail in the Local Court. It shows the medical incident that led to him being the subject of a s 24 order that enabled him to be transferred to Lismore Base Hospital in the company of the accused and another correctional officer, Officer Duff. Mr Johnstone was later released from the hospital at around 7.30pm. He then attempted to escape from the accused and Officer Duff by running across the road from the hospital. He was shot by the accused while doing so.
2. The first 30 seconds of the CCTV footage depict Mr Johnstone being taken to the cell by the accused and other officers. The accused and those officers then leave the cell. The next 15 seconds depict Mr Johnstone falling off his bed and starting to suffer a fit while on the floor. The accused then rushes into the room as do other officers. The CCTV footage then continues to show Mr Johnstone on the floor with the accused and other officers present. There is no sound but it is apparent that they are waiting for the arrival of a nurse from Justice Health who eventually attends to Mr Johnstone and arranges for his removal for medical treatment. During the period while they are waiting for the Justice Health nurse, the accused is seen to be talking or trying to talk to Mr Johnstone. At one point when Mr Johnstone is lying on his side and seems unresponsive the accused is seen to use his foot to push or prod Mr Johnstone's feet towards his chest.
3. For the period of the CCTV footage that the accused was not in the cell, it seems that he was in an office across the corridor and to the right. In a record of interview with police, another correctional officer, Ms Henderson, stated that from that office one could see into the cell via a monitor. In his interview with police, the accused stated that he put Mr Johnstone in the cell, "walked into the office" and "[n]ext minute he's fitting". [1] He said he did not see Mr Johnstone fall [2] and did not see Mr Johnstone hit his head. [3] In one part of his interview, the accused claims to have later spoken to Mr Johnstone and recounted telling him to lift his legs, which the deceased did. [4]

The Evidence Should Be Admitted

1. The Crown contended that the CCTV footage should be admitted on the basis 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 the deceased appeared to have an epileptic fit in his cell some five hours before the shooting (see R v Officer A (No 3) [2022] NSWSC 1394 at [10]). [5] The Crown also contended that aspects of the CCTV footage bear upon the reliability of the account that the accused gave in his interview with police in which he discussed Mr Johnstone's epileptic fit. The Crown pointed to that part of the interview in which the accused appeared to suggest that Mr Johnstone moved his feet towards his chest of his own accord and contrasted that with the accused's actions in moving Mr Johnstone's feet. [6] The Crown contended that, contrary to what he stated in his interview, the CCTV footage suggests that the accused became aware that Mr Johnstone had hit his head. [7] It was not necessary to resolve that contention to determine this objection.
2. Senior counsel for the accused, Mr Strickland SC, identified three cumulative reasons for rejecting the tender of the CCTV footage on the basis that part of it is not relevant or otherwise in the exercise of the discretion conferred by s 137 of the Evidence Act on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice.
3. First, Mr Strickland contended that the 15-second portion in which the accused is absent from the cell and Mr Johnstone commenced fitting and fell from the bed should be excluded on the basis that there is no evidence that the accused observed that to occur. [8] I do not accept that contention. Save for one matter, the combination of the evidence that there was a television monitor in the office displaying Mr Johnstone's cell, what the accused stated in his interview with police and the fact that the accused rushed into the cell shortly after Mr Johnstone began to fit are capable of supporting an inference that the accused was observing the cell from the office. The one matter of exception is that the Crown conceded that there is no evidence that the accused saw Mr Johnstone fall from his bed. It was for that reason that the evidence was admitted on the condition that the Crown make the concession noted above at [1]. It would be impractical to attempt to excise that part of the CCTV footage from the exhibit.
4. Second, Mr Strickland SC submitted that that part of the CCTV footage which shows the accused prodding Mr Johnstone with his feet is prejudicial to the accused in that the jury might conclude that he showed a "callous disregard" for Mr Johnstone's welfare and illegitimately use that conclusion in reasoning towards his guilt. [9] For my part, from observing the CCTV footage I would be surprised if the jury construed his actions so harshly. At the time the CCTV footage was taken, it was common ground that the Justice Health nurse was on the way to the cell. The movement of Mr Johnstone's feet appeared to be directed to putting him in a more stable and safe position. The Crown disclaimed any suggestion that any aspect of the accused's conduct towards Mr Johnstone was improper. I considered that the relevant danger identified by Mr Strickland of the unfair prejudice arising was not significant and it did not outweigh the probative value of the evidence of the accused observing Mr Johnstone's condition albeit some five hours before the shooting. Nevertheless, to guard against the possibility of the jury so reasoning 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 that direction is set out below.
5. Third, Mr Strickland submitted that the overall effect of the CCTV footage is "dramatic and emotion charged" in that one views Mr Johnstone "fitting, lying prone on the floor". He submitted that it may lead the jury to conclude, illegitimately, that Mr Johnstone's medical condition affected the accused's honest belief as to whether it was necessary to discharge his firearm to prevent an escape. [10] I accept that some jurors may find it distressing to observe Mr Johnstone's fit. However, I do not accept that that will give rise to some risk of the jury adopting illegitimate reasoning in addressing the issues posed by cl 303 of the 2014 Regulation. The fact that Mr Johnstone suffered a fit in the afternoon of 15 March 2019 in the presence of the accused is one piece of information relevant to the accused's belief as to the necessity to shoot Mr Johnstone later that evening and the reasonableness of that belief. However, the jury will also hear evidence that when Mr Johnstone was discharged from hospital just prior to being shot there were no apparent concerns for his health and they will observe for themselves Mr Johnstone attempting to escape by running at a considerable pace notwithstanding that he had some form of restraints on his ankles.
6. In support of this contention, Mr Strickland pointed to certain admissions that the accused was prepared to make concerning what happened during the period depicted in the CCTV footage. I have reviewed those admissions but consider that they are a very imperfect substitute for what the jury may gauge from viewing the CCTV footage about Mr Johnstone and the accused's knowledge of him.
7. Accordingly, I rejected the application to reject the tender of the CCTV footage under s 137 of the Evidence Act.
8. A draft of the direction that I envisage may be given, upon the application of the accused, at the time this evidence is adduced is as follows: "Members of the jury, I expect that you will shortly have CCTV footage played to you which was taken of the cell occupied by Mr Johnstone at around 2.50pm on 15 March 2019 after he was refused bail and before he was taken to Lismore Base hospital. The CCTV footage depicts Mr Johnstone experiencing the medical incident that resulted in him being taken to the hospital. The footage is being tendered and played to you because the Crown contends that it is part of the evidence of what the accused observed in relation to Mr Johnstone, bearing in mind that an important issue in this trial is whether the accused believed on reasonable grounds that it was necessary to discharge his firearm to prevent the escape of Mr Johnstone. At this point I direct that you should not use this evidence for any reason other than to consider what the accused observed about Mr Johnstone. The Crown does not contend that there was anything inappropriate or improper in the accused's interaction with Mr Johnstone in the cell. You should not form any conclusion that he acted inappropriately or improperly much less use any such conclusion to reason that because the accused behaved in a particular way on this occasion that he 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

1. Tab 57, A114.
2. Tab 57, A 120.
3. Tab 57, A190.
4. A130.
5. Tr 12/10/2022 p 74.
6. Tr 12/10/2022 p 74.20.
7. Tr 12/10/2022 p 74.30.
8. Tr 12/10/2022.
9. Tr 12/10/2022 p 77.47.
10. Tr 12/10/2022 p 78.22.

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