R v Officer A (No 2) [2023] NSWSC 1285

Supreme Court New South Wales

Medium Neutral Citation: R v Officer A (No 2) [2023] NSWSC 1285 Hearing dates: 26 October 2023 Date of orders: 26 October 2023 Decision date: 30 October 2023 Jurisdiction: Common Law Before: N Adams J Decision: The Crown has leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross examine the witness Peter Haron as to his recollection of the position of the shooter at the relevant time. Catchwords: EVIDENCE – murder trial – accused correctional officer charged with murder following shooting of escaping inmate at hospital – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent escape – section 38 application to cross-examine witness on the basis of a prior inconsistent statement and being unfavourable to the Crown case – witness subsequently said his first statement was a mistake – not unfair to the accused for leave to be granted – leave granted Legislation Cited: Evidence Act 1995 (NSW), ss 38(1), 38(6), 142, 192 Cases Cited: Commonwealth v Petroulias (No 29) [2007] NSWSC 1005 R v Officer A [2023] NSWSC 1265 Category: Procedural rulings Parties: Rex (Crown) Officer A (Accused) Representation: Counsel: Mr K McKay SC with Ms S Lind and Ms V Chan (Crown) Mr P Strickland SC with Mr S Russell and Mr A Wong (Accused)

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

JUDGMENT 1. On 26 October 2023, I granted the Crown leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine a witness, Peter Haron, on the basis that he had made a prior inconsistent statement and was unfavourable to the Crown case. In order to avoid delay, I indicated that I would provide my reasons at a later date. These are those reasons. 2. The accused, referred to in these proceedings as Officer A, stands charged with the murder of Dwayne Johnstone in Lismore on 15 March 2019. The accused's re-trial commenced before me and a jury of fifteen on 16 October 2023; a previous trial before Beech-Jones CJ at CL ended with a hung jury. I have set out the background facts and issues in R v Officer A [2023] NSWSC 1265. 3. The central issue in dispute in this trial is whether the Crown can prove beyond reasonable doubt that the accused, who is a correctional officer, was not acting with lawful excuse when he shot the escaping inmate. Three shots were fired at the deceased as he fled. The third shot was fatal. The deceased was wearing both hand and leg cuffs at the time. Despite this, he has been described by many witnesses as moving surprisingly quickly. 4. The Crown case relies on enhanced CCTV footage of the shooting, taken from a distance, and various eyewitnesses. A fact in issue is how close the accused was to the deceased at the time of the third shot. On the Crown case, he was relatively close to the deceased; so close that he would have been able to catch up to him and it was thus not necessary to shoot him. On the defence case, the deceased was further away than the Crown contends, and the accused would not have been able to catch up with him. 5. The issue upon which Mr Haron was said to be unfavourable was as to where the accused was when he fired the fatal shot.