R v Officer A

Supreme Court of NSW|2022-10-17|Before: Beech-Jones CJ, Mr P

Solicitors: Solicitor for Public Prosecutions (Crown) McNally Jones Staff (Accused) File Number(s): 2021/35115

(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).

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 the subject of the charge took place on the evening of 15 March 2019 as the accused, a correctional officer, and another correctional officer were escorting the deceased from Lismore Base Hospital for the purposes of transporting him back to custody. The deceased then attempted to escape by running across Uralba Street, and then up a ramp at a doctor's surgery across the road. During the course of that attempted escape, the Crown alleges the accused uttered a verbal warning and discharged three shots, the third of which was said to be the fatal shot.
In R v Officer A (No 2) [2022] NSWSC 1381, I noted that a, and possibly the, principal issue in the trial is whether the accused discharged the third shot without lawful cause or excuse. In that judgment I ruled that the potential lawful excuse was that set out in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) ("cl 303"). In short, its effect is that to disprove the existence of a lawful cause or excuse, the Crown must either prove that the relevant shot was discharged in circumstances where the accused did not believe that it was necessary to do so in order to prevent the escape of the deceased or, if he did, he did not have reasonable grounds for that belief.
An inquiry into the issue raised by cl 303 turns upon, at least principally, the circumstances of the escape and the discharge of the firearm and what the accused perceived in the circumstances.
To that end, one topic of some importance is the topography and layout of the relevant area where the deceased attempted to escape, as well as, potentially, the lighting, and a consideration of the distances between the accused, the other correctional officer, and the inmate at various points in time, but especially when the accused's gun was discharged.
I have been hearing a voir dire concerning whether certain CCTV footage of the area will be subject to a restriction under s 136 of the Evidence Act. It is anticipated that the defence will call at least one expert who will opine as to the limitations on the perspective offered by that footage.
In addition, the Crown proposes to tender a Computer Assisted Diagram ("CAD") of the measurements of the various parts of the area, as well as photos and eyewitness descriptions. I understand that the defence has available to it a video recording taken of the area. As senior counsel for the accused pointed out, there is no particular difficulty with obtaining such material even at this late stage.

Effect of Conducting a View on the Trial

As I have said, the relevant events occurred outside Lismore Base Hospital. Both parties agreed to have the trial in Sydney. At this point, limited enquiries have been made to the Sheriff as to the logistics of organising a view. The complexity of those logistics should not be underestimated. There are only two possibilities for transporting the relevant court officials and the 15 jurors to Lismore: either via a bus; or commercial airline by flying to the Gold Coast and then being transported to Lismore.
If the transport were to be via bus, then the rough estimate is that, with a break, that would take approximately nine hours. It seems likely that any such form of transport would result in the jury staying overnight for at least one and probably two nights in Lismore. They would be having to do that in circumstances where there would have to be the strictest of security surrounding the jury's movements and those who interact with them. The arrangement of the view would require limiting access to an area of a hospital, possibly at one or two times a day, if it is sought to have a view both during daytime and at night-time.
If the proposed transport of the jury were to be by plane, then it seems to have been accepted that that would have to at least involve the partitioning of part of a commercial aircraft while the jury are flown to the Gold Coast and then transported to Lismore. The travel time under that scenario would appear to be around three to four hours. It seems likely that, even under that scenario, it would be necessary for the jury to be sequestered at least for one night. This would occur in circumstances where it seems likely that accommodation, particularly appropriate accommodation, in Lismore is likely to be in short supply given the flooding that area has faced.
As I pointed out during argument, all or at least most of these arrangements would have to be put in place before the jury were empanelled. The Court could not in good consciousness request any person to form part of the jury unless they were told with clarity about the days they would be away and whether they would have to make arrangements for matters such as taking care of children. These logistical difficulties should not be underestimated given that they would be required to be undertaken in circumstances where the application for the view was made very late with the jury due to be empanelled on Wednesday of this week.
It seems to me that the effect of ordering a view in these circumstances would at the very least be a further setting back of the trial due to commence this Wednesday to, at the earliest, the following Wednesday and perhaps later. More importantly, as senior counsel for the accused pointed out, the circumstances in which all of these arrangements will be put in place and the logistical difficulties they face would, it seems to me, carry a real and appreciable risk that one way or another a trial date for this year would be vacated, either because it would push the commencement date for the trial back so far as to jeopardise the position of the accused's legal representatives, or because the making of enquiries would reveal that the various steps I have outlined cannot be undertaken in the short term.
It must not be forgotten that the accused is facing the most serious charge found in the Crimes Act 1900 (NSW) in circumstances where he clearly seeks a trial date at the earliest possible time, and he is entirely without fault. It is a serious matter to place him in a position where the trial may be vacated because of such a late application by the Crown.

Legislative Provisions

Section 53 of the Evidence Act provides as follows: "53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that - (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following - (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered. (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury."
Section 53(3) directs attention to various factors that the Court must take into account in deciding whether to make an order for a view. There is no doubt that if a view is ordered the parties will be present (s 53(3)(a)). In relation to s 53(3)(b), as I have indicated, there will be various items of evidence which will assist in resolving issues of fact or understanding the evidence, although I accept that a viewing of the photographs, the CAD and the CCTV footage is less than optimal compared with what might be obtained from a view.
As for ss 53(3)(d) and 53(3)(e), I was advised that there have been some modifications to the relevant area, specifically the removal of two demountable buildings which may assume some significance, both in viewing the CCTV footage and ultimately in determining an estimate of the distances between the respective individuals, and, perhaps less materially, some alterations to a tree in the garden of the doctor's surgery to which I referred earlier.
The task of properly re-producing the event has its limitations, given that it occurred at night in the rain. The possibility of a night inspection cannot be discounted, although whether the light as at 7.30pm on 15 March 2019 could be reproduced is unclear. Assessing those various factors, I accept that a view would be of some benefit to the jury in the course of its deliberations. However, to a reasonable extent I think they will have sufficient evidence before them to make an informed assessment.
Whether to order a view under s 53 of the Evidence Act is also governed by the considerations set out in s 192. They include the extent to which the exercise of the power to order a view would be likely to add unduly to, or shorten, the length of the hearing (s 192(2)(a)). Overall, the conduct of a view would, at most, likely occupy three days. I do not consider that that would be an undue lengthening of the hearing. However, that is not the real prejudice that may follow from the order of a view, given the lateness of the application. That prejudice is, as I have indicated, the strong likelihood of pushing back the commencement of the trial so that the logistics of the view can be investigated and, if possible, organised and, more importantly, the risk that the trial would have to be vacated.
That latter factor leads into a consideration under s 192(2)(b) of the extent to which it would be unfair to a party or a witness to order a view. In this case, I consider that the risk to the maintenance of the trial date from the ordering of a view would be unfair to the accused. I have had regard to the nature of the proceedings which are clearly very serious. Nevertheless, when I consider the timing of the application, the logistical difficulties that are involved in arranging a view, the evidence that is otherwise available, and the potential for significant unfairness to the accused, the application must be refused.

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 (Administration of Sentences) Regulations 2014(NSW)

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