R v Officer A [2023] NSWSC 1033

R v Officer A [2023] NSWSC 1033

The accused did not identify any additional matter warranting departure from the earlier rulings admitting the cell CCTV footage and the Lismore Base Hospital CCTV footage, and the judge was not satisfied that the interests of justice required those rulings not to bind. However, the evidence of the accused's participation in Scenario PT03 was excluded because, despite some probative value, it concerned the different firearms authority in cl 303(1)(a) and created an appreciable risk that the jury would confuse that authority with the authority under cl 303(1)(b)(i) governing discharge of a firearm to prevent escape; its probative value was outweighed by the danger of unfair prejudice and...

Jurisdiction
Australia
Judgment Date
30 August 2023
Procedural Posture
Criminal Proceeding on Indictment for Murder / Application Pending Retrial to Revisit Evidentiary Rulings Made Prior to or During the First Trial
Outcome
The evidence of the accused's participation in Scenario PT03 is excluded. The application to revisit the rulings in R v Officer A (No 5) [2022] NSWSC 139, R v Officer A (No 4) [2022] NSWSC 1395 and R v Officer A (unreported, 20 October 2022) is otherwise dismissed.
Legal Topics
['murder' 'pending Retrial' 'pre Trial Orders' 'evidentiary Rulings' 'relevance' 'unfair Prejudice' 'misleading or Confusing Evidence' 'correctional Officer Authority to Discharge Firearms' 'escaping Inmate']
['criminal Law' 'evidence' 'criminal Procedure'] ['murder' 'pending Retrial' 'pre Trial Orders' 'evidentiary Rulings' 'relevance' 'unfair Prejudice' 'misleading or Confusing Evidence' 'correctional Officer Authority to Discharge Firearms' 'escaping Inmate']

Case Brief

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Procedural Posture

Criminal Proceeding on Indictment for Murder / Application Pending Retrial to Revisit Evidentiary Rulings Made Prior to or During the First Trial

Legal Issues

  1. 1 ['Whether it would not be in the interests of justice for prior evidentiary rulings to remain binding under s 130A(1) of the Criminal Procedure Act 1986 (NSW).' 'Whether CCTV footage depicting the accused prodding Mr Johnstone in the cells with his foot should be excluded under s 137 of the Evidence Act 1995 (NSW).' "Whether evidence of the accused's participation in Scenario PT03 should be excluded because its probative value was outweighed by the danger of unfair prejudice or because it might be misleading or confusing." 'Whether CCTV footage of the accused taking a telephone call outside Lismore Base Hospital shortly before the escape was relevant or should be excluded under s 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The accused did not identify any additional matter warranting departure from the earlier rulings admitting the cell CCTV footage and the Lismore Base Hospital CCTV footage, and the judge was not satisfied that the interests of justice required those rulings not to bind. However, the evidence of the accused's participation in Scenario PT03 was excluded because, despite some probative value, it concerned the different firearms authority in cl 303(1)(a) and created an appreciable risk that the jury would confuse that authority with the authority under cl 303(1)(b)(i) governing discharge of a firearm to prevent escape; its probative value was outweighed by the danger of unfair prejudice and...

Court Disposition

The evidence of the accused's participation in Scenario PT03 is excluded. The application to revisit the rulings in R v Officer A (No 5) [2022] NSWSC 139, R v Officer A (No 4) [2022] NSWSC 1395 and R v Officer A (unreported, 20 October 2022) is otherwise dismissed.

Orders

  • ["The evidence of the accused's participation in Scenario PT03 is excluded." 'The application to revisit the rulings in R v Officer A (No 5) [2022] NSWSC 139, R v Officer A (No 4) [2022] NSWSC 1395 and R v Officer A (unreported, 20 October 2022) is otherwise dismissed.']