R v Officer A

Supreme Court of NSW|2023-10-23|Before: Adams J, Mr P, Beech-Jones CJ

Solicitors: Office of the Director of Public Prosecutions (Crown) McNally Jones Staff Lawyers (Accused) File Number(s): 2021/00035115

JUDGMENT

The accused, referred to in these proceedings as Officer A, stands charged with the murder of Dwayne Johnstone in Lismore on 15 March 2019. At the time of the shooting of Mr Johnstone, the accused was employed by Lismore Court complex as a correctional officer and Mr Johnstone was an inmate who had been refused bail that day.
This interlocutory judgment concerns the admissibility of the accused's call charge records (CCRs) from approximately 4 pm until 7:45 pm on 15 March 2019 at which time he, along with another correctional officer, Rick Duff, was at Lismore Base Hospital on escort duty guarding Mr Johnstone. Mr Johnstone was shot at 7:34 pm during an attempt to escape. The Crown sought to tender the CCRs to challenge the evidence of a Crown witness who has only recently provided a statement. His anticipated evidence is relevant to the accused's state of mind prior to the shooting. The Crown has foreshadowed an application under s 38 of the Evidence Act 1995 (NSW) in relation to that witness. The accused objected to the tender of the CCRs on the basis of relevance and otherwise submitted that they should be excluded under s 137 of the Evidence Act.

Background

The accused's trial commenced before me and a jury of fifteen on 16 October 2023. This is the accused's second trial. He first stood trial before Beech-Jones CJ at CL and a jury between 19 October and 14 November 2022. On 14 November 2022, the jury in the first trial was discharged when they were unable to reach a verdict. A number of interlocutory rulings were made by Beech-Jones CJ at CL at the first trial, some of which I will refer to below. Significantly, no ruling was ever made regarding the admissibility of the accused's CCRs as the Crown did not seek to adduce them at the first trial.
In August 2023, the parties made application to Beech-Jones CJ at CL to re-visit some of his rulings prior to the second trial. With one exception, the application to do so was dismissed: R v Officer A [2023] NSWSC 1033.
In September 2023, the re-trial was re-allocated to me. I was informed at a pre-trial mention that there were no remaining legal issues to be argued. At a further pre-trial mention on Monday 9 October, both the Crown and the defence raised further pre-trial issues. Relevantly for present purposes, the Crown sought to adduce a limited number of the accused's CCRs and call as a witness Ms Deborah Howe. That application was opposed. Due to the fact that the Senior Crown Prosecutor, Mr Ken McKay SC, had tested positive for COVID-19 that day, the trial was adjourned to commence on Monday 16 October and the further legal argument was stood over until 11 October with Mr McKay's junior counsel, Ms Lind, to appear.
For reasons provided below, I refused the Crown application on 11 October. On Friday 13 October, the Crown foreshadowed by email that it would seek to revisit my ruling but that a ruling was not required before the opening addresses. The trial commenced on 16 October 2023.
On 19 October 2023, the Crown emailed written submissions to my chambers addressing the admissibility of the evidence of Ms Howe and the accused's full CCRs. The following day in court it was agreed that 3 pm on Monday 23 October 2023 was suitable for legal argument to take place as the jury could be sent home early that day.
On Sunday 22 October 2023, I was emailed a revised version of the CCRs and a statement of Peter Nummy dated 12 October 2023. Before court on Monday 23 October 2023, I was emailed the accused's submissions.
The legal argument commenced at 3 pm on 23 October 2023. It had to conclude at 4:35 pm as the Darlinghurst complex was closing. I reserved my position overnight. Mr Strickland advised that a ruling was required the following day as it was relevant to a witness to be called on Tuesday 24 October. As stated above, I gave my ruling the following day.
Despite the apparent simplicity of the Crown application, in order to consider it, it was necessary to consider a significant amount of evidence in the Crown case. Further, given that one of the objections to the evidence is the timing of the application, it is also necessary to understand the procedural history of the matter including the arguments relevant to the admissibility of the CCRs.

Issues at trial

A summary of the Crown case is set out in R v Officer A [2023] NSWSC 1033. As stated above, on 15 March 2019 the accused and another officer, Rick Duff, escorted Mr Johnstone from Lismore Court cells to Lismore Base Hospital after Mr Johnstone had an apparent seizure and complained of chest pains.
The accused arrived at the hospital by ambulance with Mr Duff just before 4 pm. The accused was driven to the hospital by a police officer, Virginia McPherson. The accused was armed. Mr Duff was not. The accused was the senior officer. Nearly two hours after they arrived, a secure vehicle was delivered to the hospital and parked near the ambulance bay so that the inmate could be taken back to Lismore cells. CCTV footage (already tendered at the re-trial) shows this vehicle arriving at 5:53 pm. Evidence has been given by Kevin Kemp that he drove the van and delivered the keys to the accused at the hospital. He also told the accused where the van was located so that he knew where to go and then left.
Mr Johnstone was treated in the accident and emergency section until 7:30 pm. He was handcuffed to the bed during that time. The evidence suggests that the accused and/or Mr Duff were either inside or just outside his room during that period with only one exception, being the period from about 7:23 pm until 7:30 pm, just before they were about to leave the hospital. During this time, the accused can be seen on CCTV footage outside the hospital in the ambulance bay. He has a telephone to his ear for some of this time. He is also seen to walk around including out onto the road and to look around. During this period, Mr Johnstone remained in hospital handcuffed to a bed in the presence of Mr Duff, who was unarmed.
At about 7:30 pm, the accused and Mr Duff were with Mr Johnstone near the secure vehicle when Mr Johnstone shoved Mr Duff and ran across Uralba Street to escape. After verbally warning him to stop, the Crown case is that the accused fired three shots at 7:34:32:121, 7:34:33:389 and 7:34:37:594 pm, the third of which killed Mr Johnstone as he attempted to escape. The Crown case is that the third and fatal shot was fired with an intention to inflict grievous bodily harm or with reckless indifference to human Iife.
The central issue in trial is whether the Crown can prove beyond reasonable doubt that when the accused shot Mr Johnstone he was not acting with lawful excuse. Following the decision of Beech-Jones CJ at CL in R v Officer A (No 2) [2022] NSWSC 1381, the relevant lawful excuse is that provided for in cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (without regard to cl 131 thereof) which relevantly 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.
The jury will be directed that the accused will have acted with lawful cause or excuse if: (i) He personally believed his conduct in discharging the third shot at the deceased was necessary to prevent the deceased escaping; and (ii) His belief was based on reasonable grounds.
The issues 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.
There either has been or will be evidence adduced at the trial which includes the following: 1. Mr Johnstone was an E1 classification because he had escaped before. By oversight, the accused was not informed of this. 2. A document entitled "Medical Escorts Policy" (exhibit 5 at trial) provides (at page 12) that when an inmate is an E1 or unsentenced and "being escorted in a sedan vehicle [they] must be accompanied by three officers (i.e. two escorting officers and one driver)". It goes on to say that "[i]f the inmate is being escorted in a secure truck, only two officers are required. However, where there are significant security concerns or if considered necessary by the OIC Escorts, a third officer may be used on a secure vehicle." 3. Only two officers were available to escort the inmate on 15 March: the accused and Mr Duff. There was evidence that Mr Duff was inexperienced. 4. In his ERISP conducted on 16 March 2019, the accused told police he was concerned that Mr Johnstone may have arranged with his girlfriend for outside assistance to escape. This was based on, inter alia, what happened at his unsuccessful bail hearing (at which time the accused was present), his belief that Mr Johnstone had "faked" his seizure and chest pains, what he observed nurse Glen McIntosh tell Mr Johnstone at the hospital, and what Mr Johnstone said to the accused about wanting his girlfriend to drop things off for him.
The accused relies on this and other material to rebut the Crown case that he did not have reasonable grounds to believe it was necessary to shoot Mr Johnstone to prevent his escape.

The CCTV footage 7:23-7:30 pm

At the first trial, the accused objected to the CCTV footage of him outside the hospital from 7:23-7:30 pm on the basis of relevance. The challenge was unsuccessful: R v Officer A (unreported, 20 October 2022). His Honour's reasons were, relevantly, 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."
On 18 August 2023, following an application by the accused, his Honour held that it was not in the interests of justice for this ruling to be revisited pursuant to s 130A(1) of the Criminal Procedure Act 1986 (NSW): R v Officer A [2023] NSWSC 1033 at [36].
At the first trial, no CCRs were tendered to establish who the accused was talking to when observed in this CCTV footage. In fact, that trial proceeded on the basis that he was probably speaking to correctional officer Barbara Henderson at the Lismore cells.

The first application: evidence of Deborah Howe

Inquiries made after the first trial revealed that during the time that the accused can be seen in the ambulance bay area, he made four unanswered calls to Ms Howe at 19:23:45, 19:24:54; 19:25:40; and 19:27:11. Ms Howe was a friend of the accused and does not work at Corrective Services.
The accused objected to Ms Howe's evidence and a voir dire as to its admissibility was conducted on 11 October 2023.
Ms Howe did not make a statement in this matter until 30 September 2023. It was short and, relevantly, in the following terms: "I know [Officer A]. I have known him about 6 or 7 years. I can recall on 15 March 2019. I had spoken with [Officer A] during the afternoon/evening. I recall that Matilda [her daughter], her friend Jessie and I were going to the Mandarin Palace for dinner. I offered to drop the leftovers into the hospital for [Officer A]. I am not sure of the time, but it was dark. We had dropped into Officeworks after dinner. Whilst I was at Officeworks, I received a phone call from [Officer A]. He said something like, 'I just shot someone.' We drove Office works (sic) along Uralba Street to drive past hospital, but the Police had blocked the roads. I have really not had much to do with [Officer A] since that date." (emphasis in original)
In addition to Ms Howe's statement, the Crown relied on CCRs (in a different form to those now sought to be adduced) and a statement from Mr Jason Betts from Telstra Limited.
The Crown submitted that the evidence from Ms Howe and the CCRs of the four missed calls are relevant to establish that the accused had arranged with Ms Howe to have some leftover food dropped off to him and he was organising for that to be delivered when he was waiting out the front of the hospital. This evidence was said to be relevant to rebut any suggestion on behalf of the accused that he was at that time calling the cells and/or trying to locate the secure van. It was submitted that it could be inferred that he was looking for Ms Howe and not to locate where the van was parked.
It was submitted that the purpose of the phone calls and text messages made outside the hospital informs an assessment of the accused's belief both as to the level of danger posed by Mr Johnstone and whether the accused genuinely believed that Mr Johnstone posed a risk of escaping and had organised outside assistance. It was submitted that it was relevant for the jury to know that the accused had left Mr Duff alone with the inmate to go and collect food.
Mr Strickland submitted that the unanswered calls made by the accused between 7:23 and 7:27 pm could be dealt with by way of an agreed fact indicating that the four calls did not connect and including the time and duration of the calls, but with no mention of the nature of the calls. It was further agreed that the fact that the calls were not made to Barbara Henderson, who was acting as a senior correctional officer and the shift supervisor on 15 March 2019, could also be dealt with as an agreed fact. It was not accepted that it is relevant for the jury to know that the accused was calling Ms Howe.
Ms Howe was called to give evidence on a "Basha" inquiry. The evidence she gave fell short of what the foreshadowed Crown case was. She could recall that on 15 March 2019 she ate dinner at the Mandarin Palace with her daughter and her daughter's friend and then went to Officeworks. She was unable to provide times for this. She confirmed that she said in her statement that she offered to drop the leftovers from dinner to the hospital for the accused, but she could not remember how that came about.
Ms Howe could not recall any telephone conversations with the accused other than when he telephoned her after the shooting and told her that he had shot somebody. When he telephoned her after the shooting she was still at Officeworks. She knew that the accused was at the hospital but said she would be guessing if she suggested how she came to know that.
Some of Ms Howe's answers included the following: "Q. Did you have some contact with him in the morning of 15 March 2019? A. I can't recall. Q. Taking you to the afternoon, did you have some contact with him in the afternoon of 15 March 2019? A. I can't recall the times. Q. Do you remember if it was ‑ I'll just pause to note here for her Honour's benefit, there is an error, quite a number of errors in the CCR document. I'll outline that for your Honour, but a lot of the calls are in fact not relevant to Ms Howe but ascribed that they are. Q. Can I take you to approximately say about five o'clock in the afternoon. Do you remember having a longish phone call with Officer 'A' that lasted about 30 minutes? A. No, I don't recall. Q. Do you recall what you spoke to Officer 'A' about on that day over the telephone? A. I remember after the incident, but I don't remember any conversations before the incident."
And later: "Q. After you finished eating dinner where did you go? A. Officeworks. Q. And after ‑ what time was dinner? A. I can't recall that. Q. Was it early afternoon, evening? A. I'd be guessing. I can't recall. Q. Do you remember if it was light or dark? A. No, I don't remember."
Ms Howe was asked about the 32 minute conversation she had with the accused at about 5 pm and gave the following answers: "Q. In that 32‑minute phone call was there any discussion with Officer 'A' ‑ do you remember anything at all about that conversation? A. I recall nothing of that conversation. Q. So can you explain why you've said to the police that you offered to drop the leftovers into the hospital for Officer 'A' only last week? A. Because I would have known, somehow knew he was at the hospital and thought he might need dinner. But I don't know what conversation that happened in, I can't recall. Q. But did it happen that day, 15 March 2019? A. I would be guessing to say, yes. I would be guessing. ... Q. After that 32‑minute conversation there is another SMS message that was sent by Officer 'A' to you at 7.23pm. Do you have any recollection what that message was about? A. No, I would not. Q. And there were some other calls at 7.23pm, 7.25pm and 7.27pm. Do you have any recollection what happened with those? A. No, I don't. Q. Do you know if you picked those calls up? A. No, I can't recall."
In cross-examination the following further answers were given by Ms Howe: "Q. What the evidence you've given in summary is your memory of those phones calls is sketchy, is that right? A. Yeah. Q. Except for one thing? A. Yes. Q. The one thing you can remember clearly that Officer 'A' did tell me he shot someone, is that right? A. That's correct. Q. That is the only clear memory you have? A. Yes, correct. Q. At that time he said those words to you, were you still Officeworks? A. Yes. Q. Had you delivered any food to Officer 'A' before then? A. No. Q. And you can't remember making any specific arrangement with him to deliver food before then, is that correct? A. No, no. Q. And you don't have any recollection of any specific conversation with Officer 'A' at any specific time before that call, is that right? A. Correct."

Ruling on 11 October 2023

On 11 October 2023, I ruled that the evidence of Ms Howe should be excluded. I reserved my reasons. When, on 13 October 2023, the Crown foreshadowed that it would seek to revisit that ruling due to a change in circumstances, I deferred delivering reasons until that time so that reasons covering both applications could be delivered together. My reasons for refusing the first application are as follows.
The relevance of Ms Howe's evidence was that the fact that the accused left Mr Duff alone with the inmate so he could look for Ms Howe who was delivering food to him rebuts any suggestion that he was looking for the secure can. It was also said to rebut any suggestion that the accused was worried that Mr Johnstone was a danger to the public. In this respect the Crown also relied on the breach of the Medical Escorts Policy which states (at page 10) that if the armed officer has to leave the area, they have to surrender the weapon to the other officer and that: "Handcuffing an inmate to a bed does not diminish the obligation for the officer to remain close to the inmate. The officer must not leave the immediate area."
Given the state of Ms Howe's evidence, I indicated to the Crown at the time that I was not satisfied it was capable of establishing that the accused was outside the hospital at 7:23 to 7:30 pm looking around for Ms Howe and waiting for her to deliver him food (as opposed to looking for the secure vehicle). Her evidence was that she was still at Officeworks when he telephoned her later to say that he had shot Mr Johnstone. She otherwise could not assist as to what he was calling her about that day.
The Crown conceded that Ms Howe's evidence could not establish what had been foreshadowed, but it was instead submitted that if the CCRs are not admitted the jury might speculate as to why the accused left Mr Johnstone in the care of the junior unarmed officer. It was submitted that it was relevant that it was not for a pressing emergency; he was in fact instigating calls to a friend which were not work calls. It was submitted that the fact that it is not known why he was calling Ms Howe does not deprive this evidence of its probative value.
Mr Strickland submitted that if the only relevance of the fact of the unanswered calls to Ms Howe was to rebut an inference that it was a work call, that situation would not arise as he would not be addressing the jury about the nature of the calls nor inviting speculation implicitly or expressly that it was a work call.
The first question to consider was whether the evidence was relevant within the meaning of s 55 of the Evidence Act; that is, whether, if accepted, the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely, the reason why the accused went outside for a few minutes shortly before the inmate was escorted to the van.
Although I was not satisfied that the evidence was capable of establishing that the accused was looking for Ms Howe, I was satisfied that the fact that the accused was calling someone who was not a correctional officer was relevant.
The second basis for the objection was under 137 of the Evidence Act which provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Although "probative value" is defined in the Evidence Act, the term "unfair prejudice" is not. It has been held that the danger of "unfair prejudice" within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [73]. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority held that the assessment of probative value for the purposes of s 137 of the Evidence Act requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). Nor can the existence of available competing inferences from the evidence play any part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196]; R v Tortell (No 5) [2019] NSWSC 1665 at [33].
The difficulty with Ms Howe's evidence is that she was not approached until over four and a half years after the fact and cannot now remember anything she discussed with the accused that day except for the fact that he telephoned her after the fact to tell her that he had shot someone. If she was called as a witness the jury would be told that the accused spoke to her for half an hour shortly after 5 pm without knowing what that telephone call was about. There would be no evidence before the court in the Crown case as to why he called her four times whilst he was standing outside the hospital as she did not answer those calls. I was satisfied there was a real risk that the jury would misuse this evidence by speculating about the contents of the call and drawing an adverse inference from Ms Howe's inability to remember it. Taking the probative value of the evidence at its highest it was outweighed by the danger of unfair prejudice to the accused.
At the time I made that ruling, it was on the basis that no other CCRs would be tendered besides those pertaining to Ms Howe.

Application to revisit ruling

During the legal argument on 11 October, the Crown accepted that the CCRs were inaccurate and incomplete.
Following my ruling on 11 October 2023, the Crown sought to clarify with Telstra a number of inaccuracies in the CCRs. One inaccuracy was that the CCRs referred to a lengthy telephone call from the accused to a "Peter Tully" at 6:27:57 pm. It became apparent that this should have been to a Mr Peter Nummy who was another correctional officer working that day doing an escort to Port Macquarie. He was also the accused's union representative.
The CCRs show that the accused telephoned Mr Nummy at 6:27:57 pm and spoke to him for 623 seconds about one hour prior to the shooting. Mr Nummy called the accused back at 7:08:29 pm for 94 seconds.
Once the accused's legal representatives ascertained who "Peter Tully" was, they spoke with Mr Nummy and then referred him to the prosecution for a statement to be taken.
Mr Nummy's statement is dated 12 October 2023. He states that the accused telephoned him whilst he was at the hospital and they spoke about, inter alia, the following: "[Officer A] discussed the staff shortage issues and the problems that were coming about because of those shortages. I remember [Officer A] telling me that his offsider for the hospital escort was a guy who was a casual officer who had only just come out of the Academy in February that year, and was very inexperienced. [Officer A] said that before he did his escort, he had asked for a third officer to assist him but that request was denied. He said that he again asked a senior officer if one of the officers who had already completed the other hospital escort could stay and assist with their escort. [Officer A] was worried that he only had himself and the very inexperienced officer to work with. He said that his second request was also denied. [Officer A] also told me that once he had been told that the other officers weren't going to be assisting on his escort, the escort van was taken back to the hospital by one of those officers, and they gave him the keys and left. That meant that he had to be responsible for working out where the van was parked and then supervise the physical movement of the prisoner to the van. He wasn't happy about the way that the van had just been dropped off without assistance from the officers with his escort I recall [Officer A] saying something like, '[t]he doctor is going to discharge this bloke so I'm just waiting for the paperwork. I finish at 9 so I will probably finish on time'."
Mr Nummy is to be called in the Crown case. His evidence is relevant to the question of whether the accused had concerns about Mr Duff's inexperience, the whereabouts of the van, and that there were only two officers on the escort rather than three.
The Crown does not accept the truth of Mr Nummy's assertions as to what he spoke about with the accused that day and has given notice under s 38 of the Evidence Act that leave will be sought to cross-examine him on the basis that his evidence is unfavourable to the Crown case. It is on this basis that the Crown sought to revisit the issue of the admissibility of the CCRs and evidence of Ms Howe in addition to adducing the full CCR's.

Evidence on the second voir dire

As stated above, the second voir dire took place at 3 pm on Monday, 23 October 2023. The evidence on the voir dire included the proposed CCRs (confirmed as accurate by the accused), a copy of Mr Nummy's statement, and the evidence from the Telstra Representative, Mr Jason Betts.
The Crown submitted that the new and unexpected evidence of Mr Nummy meant that it is in the interests of justice that my earlier ruling not be binding pursuant to s 130A(1) of the Criminal Procedure Act 1986 (NSW).
The CCRs tendered on the second voir dire were significantly different to those previously before the court for the argument on 11 October 2023. In fact, the document had been prepared by someone within the ODPP based on the Telstra records. The relevant CCR document was a multicoloured schedule with 203 entries and 10 columns across it. It included significant telco jargon. On its face, it was difficult to understand, so the Crown called evidence from Jason Betts from Telstra on the voir dire to explain it.
It is not necessary for the purpose of these reasons to summarise the evidence of Mr Betts in any detail. He explained what all the industry specific jargon on the document meant, including, for example, a description of a call as "Voice - CIMS VoLTE".
Once understood through the prism of Mr Betts' detailed evidence, the nub of the evidence was that the accused sent a number of text messages to various friends while he was inside the hospital guarding Mr Johnstone which were not work related. At these times, it would appear that he was waiting either inside or outside the doorway guarding Mr Johnstone. In particular, he sent and received text messages to his partner, Ms Lane, at 3:58 pm, 4:17 pm, 4:25 pm, 4:26 pm, 5:22 pm and 5:23 pm and they shared voice calls at 5:41 pm, 7:02 pm and 7:11 pm. He also sent and received texts from Ms Eleonora Ospina. The Crown did not know who this person is. As stated above, at 5:03 pm, he attempted to call Ms Howe. At 5:07 pm, Ms Howe called him back and they spoke for 33 minutes.
It was submitted that the evidence of Mr Nummy raises a fact in issue as to whether the accused did in fact raise concerns as to the security of the escort (including the need for a third person and having to work out where the van was parked) when he spoke to Mr Nummy an hour before the shooting. This issue was said to be relevant to the accused's state of mind prior to the shooting including his belief as to the level of danger posed by Mr Johnstone and whether he believed that he had organised outside assistance to facilitate an escape.
The Crown anticipated that the accused would rely on the CCTV footage of the accused walking towards the location of the van between 7:23 pm and 7:30 pm shortly afterwards as being supportive of Mr Nummy's evidence that the accused had expressed disquiet about being responsible for working out where the van was parked. The Crown case is that the accused did not mention any security concerns to Mr Nummy during the two phone calls. The basis for putting that case to the jury is that when the accused spoke to the police in his electronically recorded interview (ERISP) three days after the shooting, he did not raise that he had twice requested that a third officer attend the escort or that he had concerns about attending an escort with an inexperienced officer. On the contrary, at Q&A 400 of his ERISP, when asked whether he would ordinarily transfer an E1 classified inmate to hospital with only two officers he replied, "[y]es that could happen, yeah".
The Crown also raised concerns about Mr Nummy's assertion in his statement that he had had limited contact with the accused as Mr Nummy's CCRs (which have been obtained) suggest otherwise. Further, there is evidence that he was present for one day of the last trial and may have heard the defence closing address.
The Crown submitted that the evidence of who the accused was calling when he was outside the hospital provides a realistic context in which Mr Nummy's evidence can be appropriately evaluated. It was submitted that if the jury are not informed that shortly after the conversation with Mr Nummy the accused went outside the hospital and walked down the street in the approximate location of the van whilst calling a friend, this will give a false impression that he was attempting to repeatedly call another correctional officer, union delegate or person connected with Corrective Services to continue to express concern as to the security of the escort. It was further submitted that this false impression would support the evidence of Mr Nummy that the accused did express concerns to him in an earlier phone call.
The Crown submitted that the length of the personal call to Ms Howe at 5:07 pm makes it more probable that the accused did not believe that he needed to remain more vigilant on the escort owing to Mr Duff's inexperience, thereby supporting the inference that he did not raise security concerns prior to departure as Mr Nummy alleges. It was accepted that there is no evidence as to where the accused was when he spoke to Mr Nummy.
The primary objection to the material on behalf of the accused was as to relevance. Given that there is no evidence as to why the accused was trying to call Ms Howe or his partner or anyone else, it was submitted that the simple fact of the attempted calls could not rationally affect the probability that the accused did not tell Mr Nummy either that he held concerns as to the security of the escort. Mr Strickland submitted that it is possible for the accused to have concerns about the security of the escort whilst at the same time wanting to make a personal phone call. The two are not mutually exclusive. Further, the mere fact that he was making a call to his partner or a friend does not mean that it is less likely that he held security concerns.
As for the CCRs indicating conversations with the accused's partner, Ms Lane, it was submitted that persons regularly communicate with their partners no matter what the circumstances and it is likely he would have communicated with her regardless of whether security concerns were discussed or otherwise.
As for the calls to Ms Howe, it was submitted that the fact that it is pure speculation as to what was discussed makes it unfairly prejudicial for the Crown to be permitted to lead this CCR evidence at this late stage of the trial. The accused is prejudiced in being unable to rebut any submission that the phone call was unrelated to any security concerns.
As for any conversations with Ms Ospina, there is simply no evidence as to who that person is. In those circumstances, the relevance of his contact with her cannot be ascertained.
It was further submitted that an agreed fact would dispel any unfounded speculation and further that the jury could be directed not to speculate.
It was noted that at no stage before or during the first trial did the Crown ever express any intention to lead this evidence, and all of this material has only been recently served on the defence. It was submitted that there is a real difficulty in requiring the accused to respond to this new evidence at such a late stage. Several witnesses have already been called and had it been known that the CCRs might be in evidence, further questions would have been asked of them. If the document was admitted into evidence, a number of witnesses would have to be recalled.
It was accepted that the statement from Mr Nummy was only obtained after being advised by the accused of his potential evidence, but it was submitted that this does not mean it could not have been obtained at a much earlier date given that the Crown had the telephone records and documents showing he was on duty that day.

Consideration

Section 130A(1) of the Criminal Procedure Act 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.
As Beech Jones CJ at CL observed in R v Obeid (No 4) [2015] NSWSC 1442 at [11] and [12]: "It can be accepted that the phrase 'interests of justice' is a commonly employed phrase which has been held to be of wide import and comprehend many factors (see State of Western Australia v Rayney [2011] WASC 326; 42 WAR 383. Hence, that phrase is also to be found in s 132(4). However, context is important and the present context involves the deployment of that phrase as the threshold for revisiting a matter already determined. In that context, 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. In my view the starting point for an application to which s 130A applies is to consider whether there has been some material change in circumstances since the previous ruling. This is the approach adopted for the revisiting of interlocutory orders in civil proceedings (see Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126 at [134]). In so stating I do not consider the necessity to demonstrate a material change in circumstance exhausts the circumstances in which the interests of justice may warrant a departure from an earlier order."
Although Mr Strickland accepted that there has been a change of circumstances, he did not concede that the interests of justice required this question to be revisited. I did not accept this submission and permitted the argument to proceed before me. I am satisfied that the late and unexpected statement from Mr Nummy is a relevant change in circumstances such as to warrant a reconsideration of my earlier ruling. In fact, I expressly stated at the time of making that earlier ruling that I would revisit it if there was any change in circumstances which, given the state of the CCRs at that time, seemed possible. I was satisfied that it was in the interests of justice to do so.

Admissibility of CCRs

To put this application in context, in the second week of the second trial, the Crown seeks to adduce complex CCRs of every communication the accused had whilst waiting at the hospital for three and a half hours. The relevance of the CCRs is to cast doubt on the evidence of Mr Nummy. It is to be accepted that the Crown was not aware of Mr Nummy's potential relevance to the trial until the CCRs were corrected; it is the nature of trials that unexpected matters can arise at any time. But the fact remains that the timing of the Crown's application to adduce evidence at this re-trial, which was available but not adduced at the first trial, creates a number of potential problems, which I will address below.
Putting to one side the problems caused by the timing of this application, the first question to consider is whether the full CCRs and Ms Howe's (limited) evidence is relevant in the context of Mr Nummy's new evidence; that is, if it were accepted, could it rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act. The fact in issue identified by the Crown is whether Mr Nummy is telling the truth about the accused complaining to him about the matters referred to above at [52]. Thus, the fact in issue is the credibility of a Crown witness who, it is anticipated, will be the subject of a s 38 application. With respect to Ms Howe there is the secondary relevance of who the accused was speaking to in the CCTV footage outside the hospital. I will return to that aspect below.
The test for relevance is low. I am satisfied that the evidence is relevant in that, if accepted, it is capable of rationally affecting the relevant assessment. But there are a number of reasons why the evidence should be excluded under s 137 of the Evidence Act.
First, the CCR document in its current (revised) form is unnecessarily complex and contains significant detail. For example, for many simple text messages there are numerous entries over several lines with different codes. Even if I was satisfied that it was admissible, I would not permit it to go to the jury in its current form. It would be a complete distraction from the central issues in this trial. Further time would be required to change it into a more "user-friendly" format.
Secondly, the document is still incomplete. It includes the details of some of the subscribers the accused contacted but not others. Further time would be required to complete it.
Thirdly, Ms Ospina's name is highlighted in colour indicating it is of some significance in circumstances where the Crown frankly admits they still have no idea who that person is.
Fourthly, a number of calls and texts are to the accused's partner, Ms Lane. The contents of the calls to Ms Lane are unknown. It is a matter of speculation as to what those calls were about. She is not a compellable witness. The jury may well speculate as to why she is not being called as a witness about these calls.
Fifthly, even if the document was simplified in some way, Mr Betts would still be required to explain aspects of it which will cause further delay.
Sixthly, if the material was admitted, a number of witnesses would need to be recalled. The CCR's were not put to Ms Henderson as at that stage there was no intention to adduce them. Ms Henderson gave evidence that the accused telephoned her about three or four times while he was at the hospital. [1] She can only actually remember the second last call, which was about 20 minutes before the shooting. She said that the accused told her: [2] "'We're going to be about 20 minutes. We're just waiting on the paperwork', which is the discharge summary and 'inmate Johnstone was demanding his' - 'triple the dose of the Buprenorphine because he is going to be in custody over the weekend'." She accepted that this call could have been at 7:06 pm (28 minutes before the shooting). [3]
The CCRs confirm that the accused called Lismore Court cells four times from the hospital prior to the shooting. In addition to the last call at 7:06 pm, he also called at 5:45 pm for three minutes and 24 seconds, 5:56 pm for 62 seconds, and at 5:59 pm for eight seconds. Although the timing of the final call was in evidence (through Mr Henderson) the remaining calls were not put to her.
Seventhly, the CCRs show that the accused sent a number of texts and had a number of telephone calls while he and Mr Duff guarded the inmate. There is no evidence as to what treatment was being provided to the deceased at that time. Glen McIntosh, the nurse who treated Mr Johnstone in the hospital, gave evidence that he was attending to several patients and spent something in the vicinity of 20 minutes with Mr Johnstone in the period he was in hospital. [4] Mr McIntosh could not recall whether there were one or two correctional officers present when he passed on a message to Mr Johnstone from his partner, but said, "there would have been at least one". [5] At the time when Mr Johnstone said something to Mr McIntosh like, "I'll give you 10 grand to help me get away", he did not recall whether the officers were inside the room at that point but believed they were both approximately one metre outside the entrance. [6]
Mr McIntosh was not asked where the two officers were during the time that he was tending to Mr Johnstone nor whether one or more of them were making telephone calls. Mr McIntosh gave evidence that a number of different tests were conducted on Mr Johnstone at different times. It is difficult without further information to make an assessment as to what was happening in relation to Mr Johnstone at the time the accused made these calls and texts to Ms Lane and Ms Howe, nor where the accused was at those times.
Eighthly, to the extent that the Crown seeks to rely upon these calls and texts to suggest that they were made in breach of the Medical Escorts Policy, there is no evidence as to whether Corrective Services officers were permitted to make personal calls whilst guarding someone. It is too late in this second trial for evidence to be obtained about that. The jury would be left to speculate about whether the making of phone calls was permissible.
Finally, Ms Howe cannot recall any of the contents of the call with the accused at 5:07 pm which went for half an hour. As I previously ruled, there is a real risk that the jury will speculate about what was discussed and draw a negative inference about her poor recollection. A further problem with Ms Howe's evidence is that it changed following the evidence of Mr Betts. Contrary to how the case was put before me on 11 October 2023, the CCR document apparently now shows that one of the four calls to Ms Howe did in fact connect when the accused was outside the hospital. Given that she has no memory of these calls, probably nothing turns on that, but it is another example of how the evidence in relation to the CCR documents keeps changing leading to the defence having to continually get fresh and further instructions.
The Crown relies on all of these personal calls to disprove Mr Nummy's anticipated evidence that the accused asked for a third officer before he left for the hospital that day. But it will be in evidence that the accused did not call Mr Nummy until an hour and 40 minutes after he arrived at the hospital so the same point can be made without the details of his personal calls. Further, it seems to me that there are already other bases upon which aspects of Mr Nummy's evidence could be challenged as summarised above at [61]-[62].
For all of these reasons, I was satisfied that the detailed CCR document should be excluded under s 137 of the Evidence Act: its probative value is outweighed by the danger that it would cause unfair prejudice to the accused.
A further discrete basis relied upon by the Crown for the admissibility of Ms Howe's evidence was to avoid the false impression that when the accused was outside looking around, he was attempting to call a person connected with Corrective Services to continue to express his concern as to the security of the escort. I was satisfied that, given the new evidence of Mr Nummy, the fact that the unanswered calls were not work related is relevant and should be adduced. There is no risk of any unfair prejudice associated with its admission.
Finally, I note that the parties foreshadowed that there would be agreed facts in general terms that some calls and texts were made by the accused whilst he was at the hospital. That is a sensible course and not inconsistent with my ruling.

Endnotes

T83.39-41.
T84.18-30.
T84.48-85.8.
T360.5-25.
T348.1-8.
T364.20-48. 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

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (4)

Cases Cited (13)

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