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. Mr Haron's evidence on 26 October 2023 1. Mr Haron was a paramedic based at Lismore Base Hospital present on the night of the shooting. He saw a Corrective Services officer and a prisoner walking in the ambulance bay just before the shooting. The officer was holding the prisoner's pants. He only recalls seeing one officer (there were in fact two). 2. When Mr Haron was inside the hospital, he heard someone yell, "stop" and a noise outside. He went outside to the ambulance bay. He assumed it was a shot, but it could have been thunder. The officer and prisoner were straight across the road from the bay. When he heard the "first shot" (which was actually the second shot), the prisoner was on the ramp going to the right. It is common ground that after he escaped, the deceased ran across the road to a medical centre which had a ramp with two turns in it. At this time, the shooter was in the first third of Uralba Street from the hospital side (the opposite side of the road to where the deceased was shot). 3. Mr Haron described the deceased as continuing to move after that first shot. He was shot again, and this time fell down. He stated that the guard had not moved between the two shots. He stated that the critical events happened between one to two seconds. He was shocked and felt scared. Mr Haron's description of where the deceased fell is consistent with the Crown case but his description of where the accused was when he shot him is inconsistent with the Crown case. The s 38 application 1. Mr Haron's three statements and the transcript of the evidence he gave at the first trial were all tendered on the application. 2. In his first statement dated 15 March 2019 (the day of the shooting,) Mr Haron stated that he had drawn a diagram of where the prison guard was when he fired the second shot. Attached to that first statement was a diagram drawn by Mr Haron depicting the accused as being at the start of the ramp to the surgery at that time. This is a position relatively close to where the deceased fell. 3. Attached to Mr Haron's second statement dated 29 August 2021 was a CAD (computer aided design) plan. He was asked by police to indicate on the CAD plan where the accused was at the time of the shots he saw. Mr Haron indicated that the accused was in the first third of the hospital side of Uralba Street (consistent with his evidence in court and at the first trial). He was not asked about any inconsistency between that marking and his earlier diagram at that time. 4. In his third statement dated 4 October 2022, Mr Haron addressed the inconsistency between the two documents. He stated that he had made a mistake in the first diagram. He did not know why but it was wrong. 5. Mr Haron was cross-examined by the accused's senior counsel on the voir dire and stated this: "… there was a period where I was going through the statement and it was possibly leading up to when I was requested to talk to the legal team that I realised, then I contacted Detective Smith and said 'I believe I've made a mistake'. And, like, I was really stressed because it was a fairly significant error I'd made." 1. He identified the mistake as being that the officer was actually standing on Uralba Street on the first third of the road closer to the hospital.1[2] He said the officer moved less than a metre between the second and third shots as they happened within seconds of each other.2[3] As for the first diagram, he drew on 15 March 2019 he stated: "When I drew that diagram, I don't know whether I misunderstood what the police officer was asking me to draw or ‑ but I was wrong." Submissions 1. The Crown submitted that the diagram attached to Mr Haron's first statement was a prior inconsistent statement and should be placed before the jury. It was accepted that no similar application was made at the first trial but that was because the Crown was "caught by surprise" that the defence case was that the shots were in a different location to the Crown case and the significance of the earlier statement was not identified in time. It was submitted that a further basis for putting to Mr Haron that his first diagram is correct and his subsequent marking is wrong is that at the first trial when Mr Strickland suggested to him that he could be wrong about his evidence Mr Harron replied, "[i]t was busy time in the hospital, yes." 2. Mr Strickland opposed leave being granted. It was submitted that the s 38 criteria were not met and that it would be unfair under s 192(2)(b) of the Evidence Act for the Crown to put to the jury that the first diagram is accurate when the witness disavows it and has done so since 2021. Nor, it was submitted, was there any motive for the witness to lie about this. It was submitted that there are circumstances where a witness may change their evidence because of pressure or inducement but in this case the witness simply made a mistake. 3. Mr Strickland submitted that, for the purposes of the ruling, I simply needed to be satisfied on the balance of probabilities that Mr Haron was mistaken in his first diagram in order to refuse the grant of leave: s 142 of the Evidence Act. Consideration 1. Section 38(1) of the Evidence Act provides (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about— (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. 1. Mr Haron did not actually describe in his first statement where the shooter was at the relevant time – he simply referred to his attached diagram. This lends some support for the defence submission that this is a mistake rather than a change of evidence. Despite this, I was satisfied that the diagram attached to Mr Haron's statement on 15 March 2019, when read in conjunction with paragraphs 9 and 10 of his statement, is inconsistent with his evidence in court (and his second and third statements). Accordingly, I was satisfied that the terms of s 38(1)(c) were satisfied. But that was not the end of the matters to be considered in order to determine whether leave should be granted. Under s 38(6) of the Evidence Act I was required to have regard to two further matters: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 1. It was accepted that the Crown gave sufficient notice of the application. Further, although Mr Strickland would be challenging this witness in a number of respects, he accepted that if the Crown was not granted leave under s 38(1) he would not be putting the prior diagram to the witness. Thus, both factors in s 38(6) militated in favour of leave being granted. 2. I also had regard to s 192 of the Evidence Act which is in these terms: (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account— (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. I was satisfied that the grant of leave would not unduly add to the length of the hearing and that the evidence was important for the Crown in this murder trial. It was not suggested that there were any other orders or directions which could achieve a similar result. That left s 192(2)(b), which was relied upon by Mr Strickland, as a proper basis to refuse leave. 2. Mr Strickland submitted that the unfairness was not procedural unfairness, as the Crown had provided him with sufficient notice of the application. Rather, he submitted that the unfairness arose from the fact that the Crown proposes to introduce into evidence a diagram that the witness is adamant is wrong. When I suggested to Mr Strickland that the question of which version is correct is a matter for the jury, he submitted that it was in fact a question for me and that it did not involve assessing the witness's credit. Rather, in accordance with s 142 of the Evidence Act, I simply had to be satisfied on the balance of probabilities that the first diagram was a mistake. 3. Section 142 of the Evidence Act provides as follows: 142 Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding— (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities. 1. I was not satisfied that s 142 of the Evidence Act assists the defence argument. The facts necessary for me to find in order to determine whether leave should be granted turn on whether the witness made a prior consistent statement. He clearly did and I was satisfied of that fact on the balance of probabilities at the very least. The reason that he made a prior inconsistent statement is a matter for the jury. The Crown contends that he was not mistaken on the first occasion but rather that he was mistaken on the second occasion and thereafter. The accused on the other hand contends that he made a mistake on the first occasion and corrected it on the second occasion and thereafter. The assessment of this question is a jury matter and not one for me to determine for the purposes of this application. 2. On the question of unfairness within the meaning of s 192(2)(b), the Crown relied upon the following observation by Johnson J in Commonwealth v Petroulias (No 29) [2007] NSWSC 1005 at [16]: "Section 192(2)(b) requires the court to consider whether a grant of leave would be unfair to a party (the Crown or the accused) or to a witness. With respect to any suggested unfairness to an accused, it is important to note that the defence can test the evidence led in a s.38 examination by defence cross-examination of the witness: s.38(4); Adam v The Queen [2001] 207 CLR 96 at 107 [30]. To refuse a s.38 application, in some circumstances, may be unfair to the Crown: R v Ronen at [70]." 1. Mr Haron gave evidence on the voir dire that he was mistaken in his depiction of where the shooter was in the first diagram. He repeated this a few times in his evidence in the absence of the jury. The defence were thus on notice of the answers he would give on this topic before the jury. Further, those answers could be put to him in his evidence before the jury if he departed from them. This was a further basis upon which I was satisfied it would not be unfair to the accused for leave to be given. ********** 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