R v Officer A (No 5) [2022] NSWSC 1396

R v Officer A (No 5) [2022] NSWSC 1396

The CCTV footage was admissible because it was probative of what the accused observed and knew about Mr Johnstone before the shooting and of the accused's account of the incident. The evidence supported an inference that the accused was observing the cell from an office monitor, except that the Crown conceded there was no evidence he saw Mr Johnstone fall from his bed. The risks of unfair prejudice, including possible distress or reasoning that the accused acted with callous disregard, were not significant and did not outweigh the probative value of the evidence, particularly with the Crown's concession and liberty to seek an appropriate jury direction.

Jurisdiction
Australia
Judgment Date
18 October 2022
Procedural Posture
Criminal Prosecution for Murder / Procedural Ruling on Accused's Application Under S 192 a of the Evidence Act 1995 (nsw) to Reject Tender of CCTV Footage
Outcome
The accused's application to reject the tender of the CCTV footage was rejected and the footage was admitted on condition.
Legal Topics
['admissibility of CCTV Footage' 'unfair Prejudice' 'probative Value' 'lawful Excuse for Discharge of Firearm by Correctional Officer' 'jury Directions']
['criminal Law' 'evidence'] ['admissibility of CCTV Footage' 'unfair Prejudice' 'probative Value' 'lawful Excuse for Discharge of Firearm by Correctional Officer' 'jury Directions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecution for Murder / Procedural Ruling on Accused's Application Under S 192 a of the Evidence Act 1995 (nsw) to Reject Tender of CCTV Footage

Legal Issues

  1. 1 ['Whether CCTV footage of Mr Johnstone in the cells on 15 March 2019 should be admitted.' 'Whether the portion of the CCTV footage when the accused was absent from the cell was relevant or should be excluded because there was no evidence the accused observed it.' 'Whether the probative value of the CCTV footage was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).' "Whether the CCTV footage might lead the jury to reason illegitimately that the accused showed callous disregard or that Mr Johnstone's medical condition affected the accused's belief as to the need to discharge his firearm."]

Ratio Decidendi

The CCTV footage was admissible because it was probative of what the accused observed and knew about Mr Johnstone before the shooting and of the accused's account of the incident. The evidence supported an inference that the accused was observing the cell from an office monitor, except that the Crown conceded there was no evidence he saw Mr Johnstone fall from his bed. The risks of unfair prejudice, including possible distress or reasoning that the accused acted with callous disregard, were not significant and did not outweigh the probative value of the evidence, particularly with the Crown's concession and liberty to seek an appropriate jury direction.

Court Disposition

The accused's application to reject the tender of the CCTV footage was rejected and the footage was admitted on condition.

Orders

  • ['The CCTV footage of the deceased in the cells on 15 March 2019 the subject of this objection will 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 the deceased falling from his bed.' "Reserve for the accused liberty to apply for a...