R v Officer A

Supreme Court of NSW|2023-08-18|Before: Beech-Jones CJ, Mr P

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

JUDGMENT

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").
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

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.
In R v Officer A (No 1) [2022] NSWSC 1362 at [3]−[4], I provided an overview of the Crown case as follows: "According to the Crown Case Statement, Mr Johnstone was arrested on the evening of 14 March 2019. He was refused bail by the police early in the morning of 15 March 2019 and was again refused bail by the Local Court sitting in Lismore later that day. At around 12.38pm he was transferred from police custody to the custody of Corrective Services. At around 3.40pm he was transferred from the cells at the Lismore Court complex to Lismore Base Hospital to receive medical attention. He was escorted by two Corrective Services officers, the accused and Officer Duff. At around 7.33pm on 15 March 2019, Mr Johnstone was escorted out of the Emergency Ward by the accused and Officer Duff for the purpose of returning him to the cells. Mr Johnstone was in handcuffs and ankle cuffs. As the three of them were about to enter a van, Mr Johnstone is said to have used his shoulder and chest to push Officer Duff to the chest and to have run across the road in the direction of a doctor's surgery opposite. The Crown Case Statement describes Mr Johnstone running across the road, followed by Officer Duff and the accused. At a point when Mr Johnstone had run onto or near the pavement opposite, the accused is said to have drawn his weapon, told Officer Duff to 'get off the road' and said, 'stop or I'll shoot'. Over the next four seconds the accused discharged three shots. In an interview with police, the accused stated that the first shot was a warning shot. There is a debate about the second shot. The third shot fatally wounded Mr Johnstone in the right mid-back. By the time he was shot he ran up a ramp leading to a Doctor's surgery."
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: 303 Authority to discharge firearms (1) A correctional officer may discharge a firearm - (a) to protect the officer or any other person if the officer believes on reasonable grounds that there is a substantial probability that the officer of other person will be killed or seriously injured if the officer does not discharge the firearm, or (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)
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.
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]): "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."
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

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."
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]).
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

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.
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]).
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.
I addressed and rejected this very argument in Officer A (No 5) at [11] as follows: "Second, Mr Strickland SC submitted that that part of the footage which shows the accused prodding Mr Johnstone with his feat 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. 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 suggest that any aspect of the accused's conduct towards Mr Johnstone was improper. I considered that the relevant danger of the unfair prejudice identified by Mr Strickland of the unfair prejudice arising was not significant and it did not outweigh the probative value of 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 evidence is adduced. A draft of that direction is set out below."
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.
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

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: "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 officers 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 the 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."
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: "The overall effect of this evidence is that it is capable of demonstrating that in 2016 the accused received instructions in the two scenarios described above, that during his participation in a role play of Scenario PT03 he was purported to draw his firearm and shoot an unarmed offender as well as draw his weapon on an unarmed inmate, that he was advised that that response was unsatisfactory, and that he later 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 shooting the unarmed inmate."
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]).
I rejected those contentions. In relation to the probative value of the evidence, I found as follows (Officer A (No 4) at [17]): "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 held on reasonable grounds. The scenario of an unarmed inmate approaching and representing a threat to a Corrective Services officer is arguably more serious than an unarmed and 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 and restrained inmate. The jury could use the training received by the accused as a basis for reasoning that he either did not believe that his actions were '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) of the 2014 Regulation 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 an inmate than the latter." (emphasis added)
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]).
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).
One part of the Crown address relied on by the accused in seeking to revisit this ruling was the following: "The accused's training, the options, peaceful resolution, lethal force last resort, contain and isolate, two officers, you with a firearm provide cover while the other officer goes and uses open handed techniques to subdue an inmate; those things. Factored into that when he did a scenario it was not satisfactory to shoot an unarmed offender threatening you by advancing on you even when it is just you alone, let alone two Corrective's officers, so you alone on your own it is not appropriate in that scenario to shoot an unarmed offender threatening you. He knew that, he was part of the training, when it was not satisfactory it was explained to him why. The next time he did not shoot so he learnt." (emphasis in accused's written submissions)
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]).
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.
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.
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.
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).
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).
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)

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.
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.
I addressed and rejected a challenge to this evidence on the basis that it was not relevant as follows: "The Crown contends that, in an apparent breach of the policy, the fact that the accused left the area of the hospital is relevant to whether, at least at that stage, which is only four minutes prior to the escape attempt that led to the deceased's death, the accused could have believed that Mr Johnstone posed a danger, that is, either a danger to the public or a danger of escaping. … The Crown also points to aspects of the accused's ERISP where he appears to state that he had concerns that Mr Johnstone may have had possible outside assistance that could help him in the attempted escape. The Crown contends that this evidence at least would cast doubt upon the reliability of that assertion. I agree. It does seem to me at the very least this material is capable of overcoming the threshold of s 55 of the Evidence Act 1995 (NSW), at least to the extent that one is considering the belief of the accused as to the danger of Mr Johnstone escaping, especially with the possibility of assistance. Of course, the fact Mr Johnstone may have been handcuffed to a bed at the time would appear to at least make that unlikely, but that does not deny the possibility, apparently raised by the accused in his interview, that the deceased may have had outside assistance. An attempt for that assistance to be engaged could have happened in the period the accused was outside the hospital, if that truly represented his state of mind."
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.
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.

Endnotes

Tr 08/11/2022 at p 41.
Tr 08/11/2022 at p 43.
Accused written submissions at [16].
Tr 18/08/2023 at p 21.

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

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