Supreme Court New South Wales Medium Neutral Citation: R v Officer A (No 1) [2022] NSWSC 1362 Hearing dates: 6 October 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: The evidence of John Harrison to the effect that the accused's action were "consistent with" his training is rejected. Catchwords: EVIDENCE – opinion rule – exception for expert opinion – accused is a correctional officer – shot deceased while deceased was escaping from custody – accused charged with murder – whether Crown can disprove existence of lawful excuse – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent the escape of the deceased – evidence to be adduced as to accused's training in use of firearms – accused seeks to adduce evidence from training expert that his discharge of fatal shot was consistent with his training – whether expert has "specialised knowledge" based on training, study or experience and, if so, scope – whether opinion of expert substantially based on specialised knowledge – Held – opinion rejected – witness does not have specialised knowledge that would enable him to give opinion about consistency between accused's conduct and the accused's training – witness can give evidence as to the content of the training received by accused Legislation Cited: Crimes (Administration of Sentences Act) Regulation 2014 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: ASIC v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095 Aziz (a pseudonym) v R [2022] NSWCCA 76 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 State of Western Australia v BW [2021] WASC 326 The Queen v Rolfe (No 4) [2021] NTSC 58 Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 Category: Procedural rulings Parties: Rex (Crown) Officer A (Accused) Representation: Counsel: Mr K McKay SC; Ms S Lind; Ms V Chan (Crown) P Strickland SC; Mr S Russell (Accused) Solicitors: McNally Jones Staff (Accused) Solicitor for Public Prosecutions (Crown) File Number(s): 2021/35115 JUDGMENT 1. On 6 October 2022 the accused, known as "Officer A", was arraigned before me in the absence of a jury panel on an indictment that charged him with the murder of Dwayne Johnstone on 15 March 2019. He pleaded not guilty. His trial before a jury is due to commence on 17 October 2022. 2. On the same day I heard an application under s 192A of the Evidence Act 1995 (NSW) for an advanced ruling on the admissibility of certain evidence that the accused seeks to lead at the trial from the General Manager of Security Operations within the Department of Corrective Services ("Corrective Services"), John Harrison. At the commencement of the application, the Court was advised that the evidence the subject of the dispute was part of a statement provided by Mr Harrison dated 13 May 2019. However, Mr Harrison gave oral evidence during a voir dire. The argument narrowed to determining the admissibility of a particular portion of Mr Harrison's oral evidence which the Crown Prosecutor contended was hearsay and did not fall within the exception for expert opinion provided for in s 79 of the Evidence Act. For the reasons that follow the Crown Prosecutor's contention should be upheld. The Crown Case 1. To resolve the admissibility of the disputed part of Mr Harrison's evidence it is necessary to summarise the Crown Case. 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. 2. 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. 3. The Crown contends that when the accused fired the third and fatal shot, he did so with an intention to inflict grievous bodily harm or with reckless indifference to human life. A significant issue in the trial is whether the accused "had lawful cause or excuse" for any act of his that caused the death of Mr Johnstone (Crimes Act 1900 (NSW), s 18(2)(a)). I am due to hear a debate about the possible sources of any lawful cause or excuse that can be put to the jury, which the Crown must rebut. The debate appears to be whether those sources are regs 131 or 303 of the Crimes (Administration of Sentences Act) Regulation 2014 (NSW) or both. The issue raised by this application can be resolved by reference to reg 303 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. (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." 1. The lawful excuse to discharge a firearm (at a person) conferred by reg 303(1)(b) requires: (i) the officer to have a subjective belief that it is necessary to discharge the firearm to prevent the escape of an inmate; and (ii) that there be reasonable grounds for that belief. It was accepted by both parties that one matter that is relevant to both issues is any training that the accused received in relation to the use of his firearm in an operational environment, especially in relation to escaping prisoners. The Evidence of Mr Harrison 1. As noted, Mr Harrison gave oral evidence during the voir dire and a portion of that evidence was the subject of the application under s 192A. 2. Mr Harrison commenced work with Corrective Services in 1995 as a "General Prison Officer". After four years he undertook various training courses conducted by the "Specialist Training Unit" and obtained a role with the Metropolitan Security Unit based at Long Bay. He was then promoted to the "Training Unit" where he worked for a "number of years". He was later promoted to Regional Manager of the Western and Northern Security Units. After that he worked as a Senior Instructor at the Corrective Services Academy before he assumed other executive roles. In his capacity as the General Manager of the Security Operations Group, Mr Harrison has responsibility for Emergency Response, the Dog Unit and Hostage Recovery. [1] 3. As noted, Mr Harrison has worked as a trainer. He has qualified as a Weapons Officer Survival Instructor and is also qualified in running the Chemical Munitions Operator Course, an Advanced Emergency Procedure course as well training in Hostage Responses. He has developed so‑called "training packages" and developed Corrective Services' policy responses to the recommendations of inquiries concerning the use of force. [2] 4. Mr Harrison gave evidence concerning the content of the training that was provided to the accused, a matter I will return to. He was then taken to CCTV footage of the events of Mr Johnstone's death and certain parts of the accused's Electronically Recorded Interview with a Suspected Person conducted on 18 March 2019 (the "ERISP"). Mr Harrison then gave the following evidence which exemplifies the opinion and other pertinent evidence that is sought to be adduced from him: [3] "Q. In particular the third shot, the fatal shot, assuming that the accused has given an honest account in those answers, in your opinion was his conduct in discharge of the third shot consistent with his training? A. Yes. Q. What is your reason for that answer? A. My reason for the answer is, on review of the ERISP, the information he gives in terms of the distance between himself and the options, the officer has obviously believed that the option, the tactical option he selected is the most appropriate in preventing the prisoner escaping. Q. … What is the training, in your opinion, as to where a shot should be aimed at if you are discharging it at a person? A. So officers are trained to shoot when that term "the centre of seen mass" or the largest body mass to ensure the most effective opportunity, I suppose, to negate the threat. … Q. Now are officers trained, when discharging a firearm under Regulation 303, are officers actually trained to fire a warning shot? A. They are trained that a warning shot is one of the options that they can employ. Q. What is the rationale for that? A. The rationale behind a warning shot is essentially as you step through the tactical options, that the warning shot is providing very clear deterrent to the offender of your intention to potentially then fire. Q. Are officers trained to give verbal warnings before discharging a firearm? A. Yes, they are. Q. Again, it may be obvious but what is the rationale for that? A. The rationale is to the first, I suppose, tactical option or the second behind presence is a verbal direction around your requirement of the offender. Q. Now assuming that [the accused] told the truth and he did fire at least one warning shot before discharging a fatal shot and assume he told the truth when he shouted "stop", was that in accordance with his training before firing the fatal shot? A. Yes. Q. If I can just get back to this training about shooting at the centre of seen mass, what is the rationale for that training? A. The rationale behind that technique is the centre of the body, which is the centre of the seen mass does not move as much in an interaction. So to shoot the leg or to shoot the arm is quite a common thing, there is a lot of movement there and the capability of staff, they are trained in law enforcement in general to shoot for the centre of seen mass or the largest body area. Q. Is that because it is the easiest target? A. Two reasons: one, because it is the largest area and the second reason is because of the physiological response to the shot that that would provide. Q. Can you explain the second part of your answer? A. Shooting to the centre of seen mass, we are attempting to stop the threat using a firearm, so the vital organs that are in behind that centre of seen mass also will produce a result potentially more effectively than say if you were shot in a limb. Q. You say in part of that answer 'to stop a threat'. Would that be to prevent an escape? A. Yes, the shooting for that target area would be no different." (emphasis added) 1. The emphasised portions of this passage represent opinions expressed by Mr Harrison as to whether the accused's actions were "consistent with" or in "accordance with" his training. Both of those answers are premised upon the accused being "honest in his answers". This was a reference to the accused stating, inter alia, in his ERISP that his first shot was a warning shot, that his second shot was aimed in the deceased's direction, that his intention in firing all three shots was to make Mr Johnstone stop, and that at the time the deceased was shot the distance between the deceased and those chasing him was getting wider. [4] 2. It should be noted that the balance of the answers in the above passage do not involve Mr Harrison giving hearsay evidence or opinion evidence. Instead, he simply recounts the effect of the training received by the accused including on the potentially important topic of how he was trained to discharge a weapon upon an inmate, namely "shooting to the centre of the seen mass" rather than, say, an inmate's arms or legs. The accused stated that was his approach in his ERISP. [5] 3. This aspect of Mr Harrison's evidence is not relevantly different to the evidence discussed by Mitchell J in State of Western Australia v BW [2021] WASC 326 ("BW") at [70]: "Other anticipated questions in cross-examination were expressed in terms of whether certain matters would be consistent with police policy. For example, counsel anticipated asking Mr Markham whether it would be consistent with police policy as taught to police for an officer deciding whether to discharge a firearm to take account of particular factors. In my view, a question in that form is not permissible as it calls for the expression of an opinion as to the meaning and effect of the Use of Force Policy. However, the question could be framed in a different way which would be permissible. For example, it would be permissible to ask Mr Markham whether police were trained to take particular matters into account when deciding whether to discharge a firearm. A question framed in those terms only calls for an answer as to the content of training given to police, and does not call for the expression of an opinion as to the meaning or effect of the Use of Force Policy." (citation omitted) 1. In BW, a police officer was charged with murder following the shooting of a suspect in the street. I respectfully agree with the analysis in this passage to the effect that evidence describing the content of the training that was in fact provided to the accused is admissible. In the end result the Crown Prosecutor did not object to the leading of evidence of this kind from Mr Harrison. Opinion Evidence 1. Section 76(1) of the Evidence Act establishes the opinion rule, namely that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Section 79(1) provides for an exception to the opinion rule if a "person has specialised knowledge based on the person's training, study or experience" in that the "the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge". The portion of the evidence of Mr Harrison that is objected to is clearly an opinion in that it amounts to a "conclusion … reasoned from facts" (R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130; see Aziz (a pseudonym) v R [2022] NSWCCA 76 at [64] to [70]). The balance of Mr Harrison's evidence in which he recites the content of the training that the applicant received is not opinion evidence. 2. In considering the admissibility of opinion evidence, the starting point is to identify the "fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving" (Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [25]; "Honeysett"). When that fact in issue is identified two interrelated conditions of admissibility must be satisfied, namely, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly it must be demonstrated that the opinion must be "wholly or substantially based on that knowledge" (Honeysett at [23]). The opinion and reasoning in support must be presented in a way that makes it possible for a court to determine that it is so based (Honeysett at [24]). 3. The relevant opinion evidence of Mr Harrison is set out above, namely, that the accused's discharge of the third shot was "consistent with" or "in accordance with" the training he received in the use of force on inmates, especially the discharge of firearms. Senior counsel for the accused, Mr Strickland SC, contended that that opinion evidence was relevant to the issue presented by reg 303(1)(b), namely the existence of the subjective belief by the accused that it was necessary to discharge the firearm to prevent the escape of Mr Johnstone and whether there were reasonable grounds for that belief. He relied on the judgment of Mildren AJ in The Queen v Rolfe (No 4) [2021] NTSC 58 ("Rolfe (No 4)") in which his Honour found (at [49]) that the opinion of an expert in police training that the accused police officer did not comply with his training before and at the time he discharged his gun could be "relied upon as circumstantial evidence to draw the inference that the [a]ccused's state of mind was such that the circumstances as he actually perceived them did not warrant the response of firing the second and third shots because that was an unreasonable response in those circumstances." 4. I do not accept that an expression of the above opinion by Mr Harrison about whether the accused acted in accordance with his training "could rationally affect (directly or indirectly) [an] assessment of the probability" of whether the accused believed his actions were necessary to prevent the escape of an inmate (Evidence Act, s 55(1)). Obviously, Mr Harrison's opinion was not known to the accused at the time he discharged his firearm. As the above extract from Mr Harrison's evidence makes clear, the premise of his opinion was that the accused honestly related his intentions and understanding in his ERISP. To use an expert opinion that assumes the accused had a particular state of mind to prove that state of mind involves circular reasoning. 5. In Rolfe (No 4), the relevant expert was not given any materials concerning the state of mind of the accused police officer and was not making any assumption as to his state of mind (at [14]). The suggested path of reasoning was that the jury would be assisted in concluding from the expert's opinion that the accused did not act in accordance with his training to conclude that he did not do so and then further conclude that he in effect knew he was not so acting. Whether that path of reasoning is open or not has no relevance to this case because here the suggested path of reasoning is to ask Mr Harrison to assume that the accused honestly stated that, inter alia, his intention was to prevent Mr Johnstone escaping, to conclude, via an opinion of Mr Harrison, that he acted in accordance with his training and from that to conclude that he honestly believed it was necessary to discharge his weapon to prevent Mr Johnstone escaping. The circularity in that reasoning is obvious. 6. However, I do accept that Mr Harrison's opinion is relevant to whether the accused had reasonable grounds for any belief he held that his actions in discharging his firearm were necessary to prevent the escape of an inmate. On any view the test posed by this aspect of reg 303 requires a consideration of the accused's position in the circumstances in which he found himself and that would include any training he received concerning the use of a firearm to prevent the escape of a prisoner. There is no doubt that the jury will be asked to conclude for themselves that the accused's conduct was or was not consistent with his training but that does not preclude any appropriate qualified opinion to that effect being relevant to its assessment. 7. Having identified a fact in issue to which Mr Harrison's opinion is relevant, then the interrelated nature of the two conditions of admissibility noted above require that there be a close analysis of the nature and scope of Mr Harrison's specialised knowledge and the opinion he gives that is said to be substantially based on that knowledge. There is no doubt that Mr Harrison has "knowledge" of the training in the use of force that was in fact provided to Corrective Services officers including, it seems, the accused. However, that "knowledge" is not "specialised knowledge" in that, even though it is based on his "experience" in the sense of his presence and familiarity with the training that was provided, it does not "manifest anything of a 'specialised' character" (R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 at [140]) and is not "sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience" (Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 at [82], per Gaudron J; see ASIC v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095 at [15]); i.e., Mr Harrison's knowledge of the training that the accused received is not "specialised knowledge". 8. I accept that, by reason of his training, study and experience (although one might suffice), Mr Harrison appears to have "specialised knowledge" concerning the appropriate methods of training Corrective Services officers in the use of force including the discharge of firearms. It would follow from that conclusion that in, say, a civil case where a fact in issue is whether an institution exercised reasonable care in the training of its staff in the use of force Mr Harrison could give opinion evidence as to whether the training systems and modules that were provided met that standard. 9. However, the opinion that Mr Harrison expresses is not substantially based on any specialised knowledge he has about appropriate training methods in the use of force. Instead, he expresses a conclusion about the consistency between a particular use of force in a particular factual context and the training that the accused in fact received. The evidence did not suggest that Mr Harrison had knowledge, much less specialised knowledge, concerning investigations into the use of force by a Corrective Services officer (or similar person) in a particular factual context. He did not suggest he had ever undertaken such an investigation (and he said he had never used force including discharging a firearm upon an inmate to prevent them escaping). (The expert in Rolfe (No 4) had undertaken such investigations: at [9]). Even if Mr Harrison had such experience, an opinion that the accused's conduct was consistent with the training he received would not be an opinion substantially based on "specialised knowledge" because, as already explained, Mr Harrison's knowledge of the training that was in fact received by the accused, as opposed to his knowledge of appropriate training methods, is not a body of specialised knowledge. 10. Accordingly, I am not satisfied that his opinion that the accused's actions "were consistent with" his training is admissible. ********** Endnotes 1. Tr 06/10/2022 pp 3 to 4. 2. Tr 06/10/2022 p 5. 3. Tr 06/10/2022 pp 15 to 17. 4. ERISP Q and A: 257 to 260, 269 to 277, 287 and 288, 294, 311 to 317 and 345 to 347. 5. Q and A 288 to 294. 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