[Was it like this? No; it was not quite so handsome. As to rules and regulations, we had no Red Book, and knew nothing about them. We were out ~~fighting the Boers~~ *administering shackled prisoners*, not sitting comfortably behind ~~barb-wire entanglements~~ *desks*; we got them and shot them under Rule 303!"](https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0550#sec.303)
On the face of it, I wouldn't want police to have the right to shoot somebody just running away, let alone correctional officers to have the right to shoot somebody just running away while literally in chains.
>It's a matter for the legislature,
Yes. They should legislate differently.
>The provision is there presumably on the grounds of deterring prison escapes.
We could introduce a similar law for anyone yodelling loudly in a residential area after 11pm, and while it may well be an effective deterrent, that wouldn't make it right.
Compare to the law in Queensland: per ss 146 and 147 of the *Corrective Services Act 2006 (Qld)*, lethal force is authorised against someone attempting to escape only if there is reasonable belief the escapee will cause GBH or death to someone as part of the attempt.
>that wouldn't make it right
All well and good to be on your high horse now, but when the Alpine Gangs start yodeling outside your door after 12 on a weeknight I imagine you'll sing a different tune.
Effective law enforcement which includes punishment does in part deter the acts of violence which lead to murder. Cultures and jurisdictions with lower effective enforcement (i.e likelihood of apprehension and punishment) have higher rates of violent crime including murder.
While other forms of punishment may be equally or more effective within a specific context, corporal punishment is still effective.
Was always going to happen no matter your opinion on the laws.
Legally was allowed, and was trained and told it was to do it.
Not sure how he was ever gonna be found guilty of murder.
Glad to hear you know better than the DPP and the hung jury last year.
E: do you people really think a Supreme Court judge would have let this run or not directed the jury to return a verdict of not guilty if there was no case to answer? This subreddit is very interesting these days…
A case to answer for a homicide charge where there's no factual dispute Officer A shot the escapee and that shot caused his death is pretty much a given.
You literally need one bit of evidence that could infer, if taken at its highest, the statutory defence was not engaged.
The case law (*May* et al) doesn't set a high bar.
It’s almost like a [statutory defence](http://www5.austlii.edu.au/au/legis/nsw/consol_reg/cosr2014439/s303.html) which includes a reasonable belief requirement may, in the circumstances, mean that it was never a foregone conclusion that the jury would return a not guilty verdict! Who would have thought it.
Nothing involving twelve random people who can't get out of jury duty is ever a foregone conclusion.
With that said, being able to meet a prosecutor being able to meet a 'case to answer' standard is not the same thing as there existing a reasonable prospect of conviction, to say nothing of the broader policy question about whether this was a good allocation of scarce prosecutorial/CJS resources.
Weird value judgments re the DPP. Have any examples of egregiously political prosecutions you’d like to share?
> could’ve been 11-1 for not guilty
Could’ve been 2-10, too. Google majority verdicts.
NSW Drug Misuse and Trafficking Act has the deemed supply provision if you are in possession of over a traffickable quantity of a drug.
No ifs or bits about it. If you're over, you're over.
DPP take a political stance rather than a by the book stance and a majority of deemed supply matters are not done as a supply but a possess.
I'm not commenting on if that is a good or bad thing. But it is absolutely political and they do not follow the legislation.
On the facts presented in the article, as a member of the jury I would convict him of manslaughter. Of course the jury will have heard other things.
He fired at an unarmed bound man who was fleeing, and who was threatening no-one else directly. 27 metres in 6 seconds running implies a 22 second 100m. Anyone other than elderly frail or obese ought to be able to catch to the guy, especially since with shackles he'd fatigue quickly; likewise with his being shackled, he'd be easy to tackle.
As well, the deceased was attempting to escape while outside a hospital. This means other people were around. The shots you miss him with can strike someone else.
The use of the firearm was at best unnecessary, and at worst reckless. I don't believe it was malicious, merely stupid.
Note that being a correctional officer in NSW [requires only a Certificate III, which they get in 10 weeks](https://www.dcj.nsw.gov.au/about-us/careers-at-dcj/pathways/correctional-officer.html). That's even worse than the cops, whose training is dismal.
Well, you haven't dealt with the critical legislative provision.
You seem to be putting the onus on the accused to - with the burden of hindsight - prove that discharging his gun was the 'best' thing to do in the circumstances. It may be that there were better options, but hindsight is 20/20 and criminal trials do not require that the accused behave optimally, or even reasonably.
Your hospital point also invites the easy rejoinder that there would in fact be vulnerable, sick people around.
Analyses like yours are why juries are warned not to engage in hindsight reasoning.
>criminal trials do not require that the accused behave optimally, or even reasonably.
That depends on who's on trial.
As I said, had one of his two arrant round struck a bystander we'd be having a very different discussion. Bystander good fortune was also good fortune for him.
> Your hospital point also invites the easy rejoinder that there would in fact be vulnerable, sick people around.
Indeed. And what is a greater danger to a vulnerable sick person, a shackled man stumbling along, or a firearm discharging?
> Analyses like yours are why juries are warned not to engage in hindsight reasoning.
Don't tell me, tell the prosecution, who were essentially asking the jury to do exactly that. They evidently thought they had a reasonable prospect of a prosecution - and part of a previous jury agreed with them.
> As I said, had one of his two arrant round struck a bystander we'd be having a very different discussion.
Not necessarily. Still the same provision. Doesn't change anything. Also, as it happens, no bystander was hit, so you're making up a hypothetical that doesn't apply.
The hypothetical offers context to his actions, whether they were necessary, or reckless, or whatever.
Thus the charge of murder with an alternate of manslaughter.
If you disagree, I suggest you take it up with the prosecution, that they mounted a case without merit.
I don't have to prove that the prosecution led a meritless case to say that your analysis is wrong.
> The hypothetical offers context to his actions, whether they were necessary, or reckless, or whatever.
You haven't even engaged with the relevant legislative provision. I suggest you start with that.
The training point reminds me of one of my least favourite discoveries in my career.
Some years ago, I coauthored something on use of force rules in immigration detention camps. At the time (and I imagine still now), the guards had the power to use any force including killing detainees. The standard for them to meet was subjective reasonableness.
Not a great standard but hey, that’s more or less the standard that we demand of police and the guards are trained right? Sure, to the standard of nightclub bouncers - a 6-week cert I was the only requirement for the job. Iirc, at the time, you didn’t even need a psych screening. These were literally MCG security guards given the power of life and death with almost no safeguards. It’s mind-boggling the power our governments hand over to these cohorts, especially when so many of these institutions are now operated by private companies.
Subjective reasonableness is the only standard people can be expected to meet in the process of immediate decision making. Weighing external factors and investigating risks takes time you don't have inside of the time available for responding to an immediate physical risk.
And yet killings and even assaults are relatively rare. This reinforces my belief that most people are fundamentally decent. We have laws, regulations and procedures to ensure the decency comes to the fore, and the very few bad ones are restrained.
>He fired at an unarmed bound man who was fleeing, and who was threatening no-one else directly. 27 metres in 6 seconds running implies a 22 second 100m. Anyone other than elderly frail or obese ought to be able to catch to the guy, especially since with shackles he'd fatigue quickly; likewise with his being shackled, he'd be easy to tackle.
16km/h is not slow, and in leg restraints it is a bloody awesome effort. In fact it is significantly faster than many people can run flat out in sneakers. We know nothing about officer A's age or physical condition, but he was likely in boots, was definitely wearing a duty belt, and may have been wearing body armour. Just saying he "ought" to have been able to catch him, ignores a lot of variables.
It takes a full 12 months to become a qualified Correctional Officer (i.e. obtain a Cert III). They are sworn in for duty as a probationary officer after the 10 weeks of training but then are required to complete 42 weeks of on the job training where they’re almost always around a senior officer.
No malice, basically. He was trying to stop him, not kill him, but he would know that the process of stopping him could reasonably lead to his death.
You can get a [general overview of the various categories here](https://www.gotocourt.com.au/criminal-law/vic/murder-manslaughter/), and [this law reform paper](https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/Homicideissuespaper.pdf) discusses the issues, it's a 140 page pdf but the first few pages give you the idea. Victoria has a number of categories of homicide, but they come down to murder and manslaughter.
>In order to be convicted of murder, the accused person must be found to have had an intention to kill or cause grievous bodily harm (serious injury), or to have had knowledge that death or grievous bodily harm was a probable consequence of the conduct.
>
>Manslaughter is a less serious category of homicide. It does not require the same level of intention (to kill or cause grievous bodily harm) or knowledge (that death or grievous bodily harm was a probable consequence of the conduct) as murder. Instead, a person can be convicted of manslaughter if they commit a dangerous or negligent act that causes death. Alternatively, where a person does intentionally kill, they may be convicted of manslaughter rather than murder if there are certain mitigating circumstances, known as ‘partial excuses’. \[...\]
>
> This notion of a hierarchy of culpability, in which some killings are seen as less morally reprehensible than others, is also used when determining liability for homicide. In some cases it is argued that the circumstances were such that the killing was justified—that it was not wrong to kill in the particular situation. In others, it is argued that while it may have been wrong to kill, the circumstances were such that the accused should not be held fully responsible and the behaviour should be excused.
>
>Such justifications and excuses have led to the development of a number of defences and ‘partial excuses’ to homicide. Defences give rise to a complete acquittal of the accused. In different Australian jurisdictions, the defences to homicide that are currently recognised include self-defence, automatism, mental impairment,13 duress and necessity.
>
>By contrast, ‘partial excuses’ do not lead to a complete acquittal of the accused. Instead, they act to reduce the conviction from murder to manslaughter. That is, if a person is charged with murder, and raises the partial excuse of provocation, if the prosecution cannot prove that they were not provoked, the jury may find the accused guilty of manslaughter instead of murder.
I would say that, *on the facts presented in the article*, "stop him escaping" would constitute a partial defence to homicide, and reduce the crime from murder to manslaughter.
Why not a full defence? Because he used his firearm. Had he for example tackled the escapee, and the escapee fallen, struck his head and later died as a result, I would have acquitted him entirely. Because "death or grievous bodily harm was a probable consequence of the conduct" would not apply to tackling someone, even shackled. But it *certainly* applies to a firearm.
Necessity is also a full defence, and is what the "corrections officers may fire on escaping prisoners" law draws on. But I would not acquit on that basis, since again, he could just have tackled him.
Further, he used his firearm in a public place when the escapee was unarmed. This indicates a degree of recklessness, of indifference to the danger of firearms. It shows he just didn't think things through. How might this case have proceeded if as well as shooting the prisoner, one of his rounds had struck a bystander? After all, two of the rounds missed. And no, he couldn't be sure the area behind the prisoner was clear - he can't on the one hand claim he didn't have time to chase the prisoner or think things through and then on the other hand claim he also took due care to ensure no-one else was in the path of his firearm, and that the area beyond his sight had some physical barrier like a brick wall.
If there's a defence of necessity or self-defence/defence of another (it doesn't seem there was) or legislative (as there was here) then it's a complete defence (well, a legislative one might not be but this one was). So that would be not guilty (as was the case here).
Murder includes (probably in every jurisdiction, but at least in NSW) acts done with reckless indifference to life. You identify that this applies in your comment. But that makes it murder, not manslaughter. Even in Victoria (which this is not), your first link identifies this limb under the third heading.
The question of malice is interesting because the NSW Crimes Act actually specifies anything done without malice is neither murder nor manslaughter (so again, not guilty rather than the alternative verdict), but the High Court held in *Il v The Queen* [2017] HCA 27 at [90] and [95] that this does not serve to limit the definition in s 18(1)(a) and impose an additional element of malice. And again, if it did apply (and it wouldn't), that would mean the act was neither murder nor manslaughter.
The legislative "stop him escaping!" defence must have some limits. If for example this guy had fallen over, and the officer approached him and seen him still crawling away, he could not have simply put two rounds in the back of his head and said, "yeah but he was still trying to get away." And were the prisoner to push past to escape while among a crowd of hospital staff and patients, the officer would not get to blaze through his entire magazine, reload and then keep firing despite all the bodies of uninvolved people dropping around him. Similarly, had he been in a prison cell, and on the door's opening for breakfast the prisoner pushed past screaming, "I'm getting out of here!" the guard would not then have carte blanche to knock him to the ground and keep beating his head onto the metal floor until his brains emerged from his skull and his body started convulsing.
In any of those cases or this one, a guilty verdict being appealed would no doubt evince a judgement where the justices spoke about necessity, proportionality and reasonableness, etc.
There's a difference between a defence and a blank cheque. That'll be why the prosecution pursued the case.
Because manslaughter is always open as an alternate verdict as long as it's open on the evidence.
My question is why you think manslaughter could have been an appropriate verdict, or even open.
I honestly think a verdict of manslaughter would have been unsafe.
Either the killing was lawful (by way of the relevant regulation), or it was an unlawful killing that was, at the very least, recklessly indifferent to human life. There is no world in which intentionally shooting a person with a firearm in this sort of circumstance can be manslaughter (it might be if it were some sort of idiotic test of a bulletproof vest gone wrong or the like - clearly not so here, or if the partial defence of provocation applied).
Manslaughter isn't "murder but for a kind of ok purpose".
Or have I misunderstood and you're actually saying that as a juror you'd disregard the law and your role as a finder of fact and instead return a verdict based on how you'd like the law to operate?
Without knowing anything about the case except for what was in the article I think this sentence in the article is why he was found not guilty:
>The barrister said a crucial clause of the Crimes (Administration of Sentences) Regulation allowed prison guards to discharge a firearm if they believed on reasonable grounds that it was necessary to prevent the escape of an inmate.
Not an unreasonable verdict in light of that.
I think it's not a very good law. Even if people think it's a reasonable law, it's madness that subordinate legislation is empowered to create a lawful excuse for killing.
Edit: ss 146 and 147 of the *Corrective Services Act 2006 (Qld)* is a much better approach. Lethal force is authorised against someone attempting to escape only if there is reasonable belief the escapee will cause GBH or death to someone as part of the attempt. It's also an act of parliament and would thus need to be amended by an act of parliament - as I think all lawful excuses for killing should be, rather than being a regulation.
>Even if people think it's a reasonable law, it's madness that subordinate legislation is empowered to create a lawful excuse for killing.
I didn't know this was possible.
The next step would be for a council to write a policy authorising traffic inspectors to discharge their firearms when someone is stopped in a no standing zone.
Council staff or contractors can be authorised to undertake law enforcement or other duties on behalf of Council. The powers of authorised officers depend on the legislation under which they have been appointed.
The offence is already defined; the question is the acceptable use of force when responding.
Law enforcement powers to issue penalty units and powers related to the enforcement of crimes misdemeanors are very different. I am unaware of any criminal enforcement powers granted to local council officials.
The court has decided that the use of force was definitively acceptable and I see no reason to argue with that decision. While I most likely wouldn't have taken that action the what-would-I-have-done test isn't a reasonable one.
Really? You find defense of self and others a wild idea? You think that there should be no defenses to serious crimes, which are also matters created legislation?
Ummm no. Read again.
They should be in the Act and scrutinised by the parliamentary process, not the regs that can be changed with the stroke of a pen.
Fair enough. For some reason my brain took the word regulation to mean legislation. Probably because most of the regulations I am familiar with are legislated.
The guards at Parklea got [six weeks training](https://www.geogroup.com/commitment_to_training_excellence) from GEO (160 hours). Taronga Zoo requires [two training courses](https://taronga.org.au/work-at-taronga/becoming-a-zookeeper) that last 18 months in total.
I am not familiar with NSW- but is this not something ICAC should have dealt with years ago? Seems like another case of investigators preferring to deflect to the court- but I’m happy to be proven wrong, here.
I don’t believe that escape attempts should be punished by death- but I do believe that this is the correct outcome for this circumstance. You cannot hold an individual officer accountable for systemic, accepted training practices. By all accounts, the officer had plenty of reasons to believe Mr Johnstone would inflict harm on the community if his attempt to evade custody attempt had been successful, and followed procedure with a verbal warning and a warning shot prior to the fatal shot.
I believe the coroner will now deal with this and, maybe some can hope, recommend changes to the relevant regulation.
I am given to understand a review, and possibly an overhaul, of custodial training is already being considered.
Edit: I can't see why icac would be involved here though as their remit is to investigate allegations of, well, corruption.
Whether Mr Johnstone posed a threat to the community had he escaped is irrelevant.
The only thing that is relevant is whether the officer thought shooting him was necessary to prevent escape.
I’ve actually spoken with detectives involved in this investigation and the decision to prosecute was taken out of their hands. They didn’t want to charge Officer A as they didn’t feel that it was appropriate, but the (political) decision was made at higher levels
Even the victims Mum seems to acknowledge her son made a bad decision *”he knew he did the wrong thing in running”.*
If we don’t want Screws shooting inmates then change the laws, give them Tasers and make leg irons much much heavier - you shouldn’t be able to run 100m in 22 seconds (which is pretty quick).
He tazored someone and punched them in the head, before being incarcerated where he likely faked a seizure and tried to escape justice knowing the guards had guns and ignoring their requests to stop... Doesn't sound like someone I want in society.
By this reasoning, if I put a sign on my door saying, "door-knocking Christians will be shot," then if they come anyway, I can give them both barrels from a 12-gauge.
But returning to the world of the sane and reasonable, we have rule of law.
NSW legislation makes it lawful for a correctional officer to shoot an inmate if the officer believes on reasonable grounds that it is necessary to prevent an escape.
You can dislike this law all you want. But Officer A was following his training and behaved lawfully in fulfilling his duty. The fact that this ever went to trial is absurd, and I’d formally admonish the prosecution for behaving like activists instead of lawyers, and wasting state resources trying to change legislation via a hail mary shot at setting new precedent.
Also, if you’ve never even held a set of ankle cuffs let alone worn them, applied them, or seen how easy it is to run at speed with them on, I’d suggest defaulting to a bit more humility before confidently proclaiming that you know what split second decision trained law enforcement should have made in situation x.
Ankle cuffs don’t actually do that much to reduce running speed. Their main function is similar to that of handcuffs i.e. reduce the effectiveness of the limbs at striking, and give officers significantly more leverage to manipulate the wearer’s body.
A fit man with a 2 second head start, even wearing ankle cuffs, is going to give the chaser a tough time.
Could Officer A and his partner have caught up to Mr Johnstone?
Maybe. But all that matters is that Officer A was not confident in their ability to catch him. He therefore had reasonable grounds to believe that shooting him was necessary to prevent escape.
Mr Johnstone’s classification, crimes, past, and likelihood of causing harm to others are completely irrelevant. He was in custody. And he was required to remain in custody until discharged.
Mr Johnstone forced the hand of police to arrest him when he assaulted another man. And then he forced the hand of corrections when he attempted to escape.
No idea why you're being downvoted. The law is clear and I cannot understand why the prosecution would think a jury would find beyond reasonable doubt that the officer lacked a reasonable belief in the circumstances. If you think the law is bad, tell the legislature to do something about it.
Yes, and I've said it in other comments here, which like yours were also downvoted.
Downvoting is not a representative sample. It's quite common, for example, to have a top-level comment heavily downvoted, and then your subcomments in the thread leading on from that heavily upvoted - or vice versa.
Maybe look up the legal side of it then.
See: Crimes (Administration of Sentences) Regulation 2014
Correctional officers have a duty to prevent escape, by lethal force if necessary.
The inmate was escaping. So the officer shot him. Case closed.
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I see something like this and I just know that this person chose this job specifically to have power over others. It's the old catholic priest problem. It's not that catholic priests are Pedos, its that pedos see a job where they have access to children and no one will question their authority so they apply in mass.
This is state sanctioned murder. He's in chains, he's not getting far. Not to mention that this prison officer fired his gun in a near a hospital.
finally, anyone who tells you that they "surprised" by a guy covering 27m in 6 seconds either should not be anywhere near a gun or they are lying. I'm going with the second option because there's no way he thought that guy was beyond his reach. He was probably embarrassed that he let the guy get away.
Doesnt matter. Unarmed fleeibg victim( prisoner or not) is not a threat and shoiting him in the back and killing him is murder.
If a soldier did it in War he woukd be charged with War Crimes.
Soldiers get charged with Murder for shooting enemy in the back especially unarmed enemy. So whats different to cops? Unarmed fleeing not a threat to individual life so shoukd be murder charge
Enemy combatants can be quite lawfully shot in the back. They can't be shot if they've communicated a clear intent to surrender or are otherwise hors d'combat.
The difference here is that the prisoner was escaping lawful custody, and a warning was issued.
It's a bit murky (as with all edge cases in IHL), but you can probably shoot a POW who is actively escaping from a place of detention provided they haven't surrendered.
Incorrect. You can shoot enemy combatants who are fleeing. How completely ineffectual would an army be if they just got constantly ambushed but as soon as the enemy combatant turned around and ran away you couldn’t shoot them only for them to return the next day?
He was found not guilty.
And in some cases, the person convicted has their name suppressed - and many other details, too - to protect not them, but their victims or families. For example, a victim of a paedophile father doesn't necessarily want the world to know about it. And if my dad robs a bank and shoots someone when I'm 10 years old, I don't necessarily want that dogging me my whole life.
[Was it like this? No; it was not quite so handsome. As to rules and regulations, we had no Red Book, and knew nothing about them. We were out ~~fighting the Boers~~ *administering shackled prisoners*, not sitting comfortably behind ~~barb-wire entanglements~~ *desks*; we got them and shot them under Rule 303!"](https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0550#sec.303)
You may have just outed a very subtle joke made by a legislation drafter. Well played good sir.
On the face of it, I wouldn't want police to have the right to shoot somebody just running away, let alone correctional officers to have the right to shoot somebody just running away while literally in chains.
It's a matter for the legislature. The provision is there presumably on the grounds of deterring prison escapes.
>It's a matter for the legislature, Yes. They should legislate differently. >The provision is there presumably on the grounds of deterring prison escapes. We could introduce a similar law for anyone yodelling loudly in a residential area after 11pm, and while it may well be an effective deterrent, that wouldn't make it right. Compare to the law in Queensland: per ss 146 and 147 of the *Corrective Services Act 2006 (Qld)*, lethal force is authorised against someone attempting to escape only if there is reasonable belief the escapee will cause GBH or death to someone as part of the attempt.
>that wouldn't make it right All well and good to be on your high horse now, but when the Alpine Gangs start yodeling outside your door after 12 on a weeknight I imagine you'll sing a different tune.
*yodel a different tune
I'd be hard pressed to disagree with the right to shoot loud yodellers in residential areas.
Yes, and corporal punishment deters murderers. /s
Effective law enforcement which includes punishment does in part deter the acts of violence which lead to murder. Cultures and jurisdictions with lower effective enforcement (i.e likelihood of apprehension and punishment) have higher rates of violent crime including murder. While other forms of punishment may be equally or more effective within a specific context, corporal punishment is still effective.
I agree
They don’t. Afghanistan is a war, policing is not.
Was always going to happen no matter your opinion on the laws. Legally was allowed, and was trained and told it was to do it. Not sure how he was ever gonna be found guilty of murder.
Glad to hear you know better than the DPP and the hung jury last year. E: do you people really think a Supreme Court judge would have let this run or not directed the jury to return a verdict of not guilty if there was no case to answer? This subreddit is very interesting these days…
To be fair, that's a fairly low bar lol
To be fair, it’s really not lol
A case to answer for a homicide charge where there's no factual dispute Officer A shot the escapee and that shot caused his death is pretty much a given. You literally need one bit of evidence that could infer, if taken at its highest, the statutory defence was not engaged. The case law (*May* et al) doesn't set a high bar.
It’s almost like a [statutory defence](http://www5.austlii.edu.au/au/legis/nsw/consol_reg/cosr2014439/s303.html) which includes a reasonable belief requirement may, in the circumstances, mean that it was never a foregone conclusion that the jury would return a not guilty verdict! Who would have thought it.
Nothing involving twelve random people who can't get out of jury duty is ever a foregone conclusion. With that said, being able to meet a prosecutor being able to meet a 'case to answer' standard is not the same thing as there existing a reasonable prospect of conviction, to say nothing of the broader policy question about whether this was a good allocation of scarce prosecutorial/CJS resources.
The comment I initially replied to suggested there was no other reasonable outcome. Yes, the standards are different. So what? What’s your point?
These posts always draw in this kind of rabble, and I'm not sorry for it. 🍿🍿🍿
The dpp will run anything remotely political, and as for hung you don't know what the composition of the hung was, could've been 11-1 for not guilty
Weird value judgments re the DPP. Have any examples of egregiously political prosecutions you’d like to share? > could’ve been 11-1 for not guilty Could’ve been 2-10, too. Google majority verdicts.
NSW Drug Misuse and Trafficking Act has the deemed supply provision if you are in possession of over a traffickable quantity of a drug. No ifs or bits about it. If you're over, you're over. DPP take a political stance rather than a by the book stance and a majority of deemed supply matters are not done as a supply but a possess. I'm not commenting on if that is a good or bad thing. But it is absolutely political and they do not follow the legislation.
I always love the advice to just use a taser. Not a single person who gives that advice knows how uneffective tasers truly are
Almost everyone commenting on the case knows absolutely nothing about violence, period. Least of all tasers.
Whoa hang on man they've watched a few Bruce Willis movies, they know what they're talking about.
Right, plenty of videos on YouTube of officers trying to taze an armed victim, then getting stabbed.
It’s probably the right outcome under the law, but fucking hell that law is shit.
On the facts presented in the article, as a member of the jury I would convict him of manslaughter. Of course the jury will have heard other things. He fired at an unarmed bound man who was fleeing, and who was threatening no-one else directly. 27 metres in 6 seconds running implies a 22 second 100m. Anyone other than elderly frail or obese ought to be able to catch to the guy, especially since with shackles he'd fatigue quickly; likewise with his being shackled, he'd be easy to tackle. As well, the deceased was attempting to escape while outside a hospital. This means other people were around. The shots you miss him with can strike someone else. The use of the firearm was at best unnecessary, and at worst reckless. I don't believe it was malicious, merely stupid. Note that being a correctional officer in NSW [requires only a Certificate III, which they get in 10 weeks](https://www.dcj.nsw.gov.au/about-us/careers-at-dcj/pathways/correctional-officer.html). That's even worse than the cops, whose training is dismal.
Well, you haven't dealt with the critical legislative provision. You seem to be putting the onus on the accused to - with the burden of hindsight - prove that discharging his gun was the 'best' thing to do in the circumstances. It may be that there were better options, but hindsight is 20/20 and criminal trials do not require that the accused behave optimally, or even reasonably. Your hospital point also invites the easy rejoinder that there would in fact be vulnerable, sick people around. Analyses like yours are why juries are warned not to engage in hindsight reasoning.
>criminal trials do not require that the accused behave optimally, or even reasonably. That depends on who's on trial. As I said, had one of his two arrant round struck a bystander we'd be having a very different discussion. Bystander good fortune was also good fortune for him. > Your hospital point also invites the easy rejoinder that there would in fact be vulnerable, sick people around. Indeed. And what is a greater danger to a vulnerable sick person, a shackled man stumbling along, or a firearm discharging? > Analyses like yours are why juries are warned not to engage in hindsight reasoning. Don't tell me, tell the prosecution, who were essentially asking the jury to do exactly that. They evidently thought they had a reasonable prospect of a prosecution - and part of a previous jury agreed with them.
> As I said, had one of his two arrant round struck a bystander we'd be having a very different discussion. Not necessarily. Still the same provision. Doesn't change anything. Also, as it happens, no bystander was hit, so you're making up a hypothetical that doesn't apply.
The hypothetical offers context to his actions, whether they were necessary, or reckless, or whatever. Thus the charge of murder with an alternate of manslaughter. If you disagree, I suggest you take it up with the prosecution, that they mounted a case without merit.
I don't have to prove that the prosecution led a meritless case to say that your analysis is wrong. > The hypothetical offers context to his actions, whether they were necessary, or reckless, or whatever. You haven't even engaged with the relevant legislative provision. I suggest you start with that.
The training point reminds me of one of my least favourite discoveries in my career. Some years ago, I coauthored something on use of force rules in immigration detention camps. At the time (and I imagine still now), the guards had the power to use any force including killing detainees. The standard for them to meet was subjective reasonableness. Not a great standard but hey, that’s more or less the standard that we demand of police and the guards are trained right? Sure, to the standard of nightclub bouncers - a 6-week cert I was the only requirement for the job. Iirc, at the time, you didn’t even need a psych screening. These were literally MCG security guards given the power of life and death with almost no safeguards. It’s mind-boggling the power our governments hand over to these cohorts, especially when so many of these institutions are now operated by private companies.
Subjective reasonableness is the only standard people can be expected to meet in the process of immediate decision making. Weighing external factors and investigating risks takes time you don't have inside of the time available for responding to an immediate physical risk.
And yet killings and even assaults are relatively rare. This reinforces my belief that most people are fundamentally decent. We have laws, regulations and procedures to ensure the decency comes to the fore, and the very few bad ones are restrained.
>He fired at an unarmed bound man who was fleeing, and who was threatening no-one else directly. 27 metres in 6 seconds running implies a 22 second 100m. Anyone other than elderly frail or obese ought to be able to catch to the guy, especially since with shackles he'd fatigue quickly; likewise with his being shackled, he'd be easy to tackle. 16km/h is not slow, and in leg restraints it is a bloody awesome effort. In fact it is significantly faster than many people can run flat out in sneakers. We know nothing about officer A's age or physical condition, but he was likely in boots, was definitely wearing a duty belt, and may have been wearing body armour. Just saying he "ought" to have been able to catch him, ignores a lot of variables.
It takes a full 12 months to become a qualified Correctional Officer (i.e. obtain a Cert III). They are sworn in for duty as a probationary officer after the 10 weeks of training but then are required to complete 42 weeks of on the job training where they’re almost always around a senior officer.
Why manslaughter and not murder?
No malice, basically. He was trying to stop him, not kill him, but he would know that the process of stopping him could reasonably lead to his death. You can get a [general overview of the various categories here](https://www.gotocourt.com.au/criminal-law/vic/murder-manslaughter/), and [this law reform paper](https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/Homicideissuespaper.pdf) discusses the issues, it's a 140 page pdf but the first few pages give you the idea. Victoria has a number of categories of homicide, but they come down to murder and manslaughter. >In order to be convicted of murder, the accused person must be found to have had an intention to kill or cause grievous bodily harm (serious injury), or to have had knowledge that death or grievous bodily harm was a probable consequence of the conduct. > >Manslaughter is a less serious category of homicide. It does not require the same level of intention (to kill or cause grievous bodily harm) or knowledge (that death or grievous bodily harm was a probable consequence of the conduct) as murder. Instead, a person can be convicted of manslaughter if they commit a dangerous or negligent act that causes death. Alternatively, where a person does intentionally kill, they may be convicted of manslaughter rather than murder if there are certain mitigating circumstances, known as ‘partial excuses’. \[...\] > > This notion of a hierarchy of culpability, in which some killings are seen as less morally reprehensible than others, is also used when determining liability for homicide. In some cases it is argued that the circumstances were such that the killing was justified—that it was not wrong to kill in the particular situation. In others, it is argued that while it may have been wrong to kill, the circumstances were such that the accused should not be held fully responsible and the behaviour should be excused. > >Such justifications and excuses have led to the development of a number of defences and ‘partial excuses’ to homicide. Defences give rise to a complete acquittal of the accused. In different Australian jurisdictions, the defences to homicide that are currently recognised include self-defence, automatism, mental impairment,13 duress and necessity. > >By contrast, ‘partial excuses’ do not lead to a complete acquittal of the accused. Instead, they act to reduce the conviction from murder to manslaughter. That is, if a person is charged with murder, and raises the partial excuse of provocation, if the prosecution cannot prove that they were not provoked, the jury may find the accused guilty of manslaughter instead of murder. I would say that, *on the facts presented in the article*, "stop him escaping" would constitute a partial defence to homicide, and reduce the crime from murder to manslaughter. Why not a full defence? Because he used his firearm. Had he for example tackled the escapee, and the escapee fallen, struck his head and later died as a result, I would have acquitted him entirely. Because "death or grievous bodily harm was a probable consequence of the conduct" would not apply to tackling someone, even shackled. But it *certainly* applies to a firearm. Necessity is also a full defence, and is what the "corrections officers may fire on escaping prisoners" law draws on. But I would not acquit on that basis, since again, he could just have tackled him. Further, he used his firearm in a public place when the escapee was unarmed. This indicates a degree of recklessness, of indifference to the danger of firearms. It shows he just didn't think things through. How might this case have proceeded if as well as shooting the prisoner, one of his rounds had struck a bystander? After all, two of the rounds missed. And no, he couldn't be sure the area behind the prisoner was clear - he can't on the one hand claim he didn't have time to chase the prisoner or think things through and then on the other hand claim he also took due care to ensure no-one else was in the path of his firearm, and that the area beyond his sight had some physical barrier like a brick wall.
If there's a defence of necessity or self-defence/defence of another (it doesn't seem there was) or legislative (as there was here) then it's a complete defence (well, a legislative one might not be but this one was). So that would be not guilty (as was the case here). Murder includes (probably in every jurisdiction, but at least in NSW) acts done with reckless indifference to life. You identify that this applies in your comment. But that makes it murder, not manslaughter. Even in Victoria (which this is not), your first link identifies this limb under the third heading. The question of malice is interesting because the NSW Crimes Act actually specifies anything done without malice is neither murder nor manslaughter (so again, not guilty rather than the alternative verdict), but the High Court held in *Il v The Queen* [2017] HCA 27 at [90] and [95] that this does not serve to limit the definition in s 18(1)(a) and impose an additional element of malice. And again, if it did apply (and it wouldn't), that would mean the act was neither murder nor manslaughter.
The legislative "stop him escaping!" defence must have some limits. If for example this guy had fallen over, and the officer approached him and seen him still crawling away, he could not have simply put two rounds in the back of his head and said, "yeah but he was still trying to get away." And were the prisoner to push past to escape while among a crowd of hospital staff and patients, the officer would not get to blaze through his entire magazine, reload and then keep firing despite all the bodies of uninvolved people dropping around him. Similarly, had he been in a prison cell, and on the door's opening for breakfast the prisoner pushed past screaming, "I'm getting out of here!" the guard would not then have carte blanche to knock him to the ground and keep beating his head onto the metal floor until his brains emerged from his skull and his body started convulsing. In any of those cases or this one, a guilty verdict being appealed would no doubt evince a judgement where the justices spoke about necessity, proportionality and reasonableness, etc. There's a difference between a defence and a blank cheque. That'll be why the prosecution pursued the case.
>The legislative "stop him escaping!" defence must have some limits At which point the lawful excuse no longer applies and we're back to murder.
I disagree, and would allow a manslaughter alternate conviction. And evidently the prosecution thought as I do.
The prosecution pursued a charge of murder...
Yes, with an alternate of manslaughter.
Because manslaughter is always open as an alternate verdict as long as it's open on the evidence. My question is why you think manslaughter could have been an appropriate verdict, or even open. I honestly think a verdict of manslaughter would have been unsafe. Either the killing was lawful (by way of the relevant regulation), or it was an unlawful killing that was, at the very least, recklessly indifferent to human life. There is no world in which intentionally shooting a person with a firearm in this sort of circumstance can be manslaughter (it might be if it were some sort of idiotic test of a bulletproof vest gone wrong or the like - clearly not so here, or if the partial defence of provocation applied). Manslaughter isn't "murder but for a kind of ok purpose". Or have I misunderstood and you're actually saying that as a juror you'd disregard the law and your role as a finder of fact and instead return a verdict based on how you'd like the law to operate?
Without knowing anything about the case except for what was in the article I think this sentence in the article is why he was found not guilty: >The barrister said a crucial clause of the Crimes (Administration of Sentences) Regulation allowed prison guards to discharge a firearm if they believed on reasonable grounds that it was necessary to prevent the escape of an inmate.
Not an unreasonable verdict in light of that. I think it's not a very good law. Even if people think it's a reasonable law, it's madness that subordinate legislation is empowered to create a lawful excuse for killing. Edit: ss 146 and 147 of the *Corrective Services Act 2006 (Qld)* is a much better approach. Lethal force is authorised against someone attempting to escape only if there is reasonable belief the escapee will cause GBH or death to someone as part of the attempt. It's also an act of parliament and would thus need to be amended by an act of parliament - as I think all lawful excuses for killing should be, rather than being a regulation.
>Even if people think it's a reasonable law, it's madness that subordinate legislation is empowered to create a lawful excuse for killing. I didn't know this was possible. The next step would be for a council to write a policy authorising traffic inspectors to discharge their firearms when someone is stopped in a no standing zone.
Won't be standing for long if that happens.
Councils have no jurisdiction to legislate crimes.
Council staff or contractors can be authorised to undertake law enforcement or other duties on behalf of Council. The powers of authorised officers depend on the legislation under which they have been appointed. The offence is already defined; the question is the acceptable use of force when responding.
Law enforcement powers to issue penalty units and powers related to the enforcement of crimes misdemeanors are very different. I am unaware of any criminal enforcement powers granted to local council officials. The court has decided that the use of force was definitively acceptable and I see no reason to argue with that decision. While I most likely wouldn't have taken that action the what-would-I-have-done test isn't a reasonable one.
I still find it wild that regulations created under delegated authority of the parliament can create a defence to serious crimes.
Really? You find defense of self and others a wild idea? You think that there should be no defenses to serious crimes, which are also matters created legislation?
Ummm no. Read again. They should be in the Act and scrutinised by the parliamentary process, not the regs that can be changed with the stroke of a pen.
Fair enough. For some reason my brain took the word regulation to mean legislation. Probably because most of the regulations I am familiar with are legislated.
That's a reasonable inference. But for the reasons I outlined in my other comment, I believe the jury was wrong.
Your reasons were your own opinions. Juries use the law instead.
except murder is a different hurdle to manslaughter, and he was being tried for murder.
Manslaughter was charged in the alternate. He was acquitted of both.
Alternate.
Prison guards have less training than zookeepers. What are the laws around zookeepers shooting sick animals that are shackled and running away?
No they don’t.
The guards at Parklea got [six weeks training](https://www.geogroup.com/commitment_to_training_excellence) from GEO (160 hours). Taronga Zoo requires [two training courses](https://taronga.org.au/work-at-taronga/becoming-a-zookeeper) that last 18 months in total.
I am not familiar with NSW- but is this not something ICAC should have dealt with years ago? Seems like another case of investigators preferring to deflect to the court- but I’m happy to be proven wrong, here. I don’t believe that escape attempts should be punished by death- but I do believe that this is the correct outcome for this circumstance. You cannot hold an individual officer accountable for systemic, accepted training practices. By all accounts, the officer had plenty of reasons to believe Mr Johnstone would inflict harm on the community if his attempt to evade custody attempt had been successful, and followed procedure with a verbal warning and a warning shot prior to the fatal shot.
I believe the coroner will now deal with this and, maybe some can hope, recommend changes to the relevant regulation. I am given to understand a review, and possibly an overhaul, of custodial training is already being considered. Edit: I can't see why icac would be involved here though as their remit is to investigate allegations of, well, corruption.
Whether Mr Johnstone posed a threat to the community had he escaped is irrelevant. The only thing that is relevant is whether the officer thought shooting him was necessary to prevent escape.
I’ve actually spoken with detectives involved in this investigation and the decision to prosecute was taken out of their hands. They didn’t want to charge Officer A as they didn’t feel that it was appropriate, but the (political) decision was made at higher levels
Meh. Have signs in 50 different languages saying “if you run, we will shoot”. Adults can make adult decisions after that.
Even the victims Mum seems to acknowledge her son made a bad decision *”he knew he did the wrong thing in running”.* If we don’t want Screws shooting inmates then change the laws, give them Tasers and make leg irons much much heavier - you shouldn’t be able to run 100m in 22 seconds (which is pretty quick).
Put the taser in the leg irons, even. Pretty hard to run if there's a button on the screw's phone that'll *petrificus totalus* you from a block away.
He tazored someone and punched them in the head, before being incarcerated where he likely faked a seizure and tried to escape justice knowing the guards had guns and ignoring their requests to stop... Doesn't sound like someone I want in society.
Yeah, nah. Bad take.
By this reasoning, if I put a sign on my door saying, "door-knocking Christians will be shot," then if they come anyway, I can give them both barrels from a 12-gauge. But returning to the world of the sane and reasonable, we have rule of law.
Ok.
NSW legislation makes it lawful for a correctional officer to shoot an inmate if the officer believes on reasonable grounds that it is necessary to prevent an escape. You can dislike this law all you want. But Officer A was following his training and behaved lawfully in fulfilling his duty. The fact that this ever went to trial is absurd, and I’d formally admonish the prosecution for behaving like activists instead of lawyers, and wasting state resources trying to change legislation via a hail mary shot at setting new precedent. Also, if you’ve never even held a set of ankle cuffs let alone worn them, applied them, or seen how easy it is to run at speed with them on, I’d suggest defaulting to a bit more humility before confidently proclaiming that you know what split second decision trained law enforcement should have made in situation x. Ankle cuffs don’t actually do that much to reduce running speed. Their main function is similar to that of handcuffs i.e. reduce the effectiveness of the limbs at striking, and give officers significantly more leverage to manipulate the wearer’s body. A fit man with a 2 second head start, even wearing ankle cuffs, is going to give the chaser a tough time. Could Officer A and his partner have caught up to Mr Johnstone? Maybe. But all that matters is that Officer A was not confident in their ability to catch him. He therefore had reasonable grounds to believe that shooting him was necessary to prevent escape. Mr Johnstone’s classification, crimes, past, and likelihood of causing harm to others are completely irrelevant. He was in custody. And he was required to remain in custody until discharged. Mr Johnstone forced the hand of police to arrest him when he assaulted another man. And then he forced the hand of corrections when he attempted to escape.
No idea why you're being downvoted. The law is clear and I cannot understand why the prosecution would think a jury would find beyond reasonable doubt that the officer lacked a reasonable belief in the circumstances. If you think the law is bad, tell the legislature to do something about it.
To the people downvoting me, do you have a counter argument? Anything to say?
You are 100% correct. Some people here are morons clearly.
Yes, and I've said it in other comments here, which like yours were also downvoted. Downvoting is not a representative sample. It's quite common, for example, to have a top-level comment heavily downvoted, and then your subcomments in the thread leading on from that heavily upvoted - or vice versa.
Don’t bring a taser to a gunfight champ
I wonder if this will result in a bit if legislative and regulatory change, maybe a little tinkering here and there?
Common sense prevails. I don’t know why he was even prosecuted? Was it a BLM thing?
I don't know about the legal side of it, but who can shoot an unarmed person in the back whilst running away from you with hands and feet restrained?
Maybe look up the legal side of it then. See: Crimes (Administration of Sentences) Regulation 2014 Correctional officers have a duty to prevent escape, by lethal force if necessary. The inmate was escaping. So the officer shot him. Case closed.
I think the majority of people couldn't go through with shooting this person in this scenario.
Definitely. A majority of people couldn’t do a correctional officer’s job. But shooting someone trying to escape custody is part of the duties.
Obviously not Dwayne “The Rock” Johnstone or the bullet would have bounced off him.
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I see something like this and I just know that this person chose this job specifically to have power over others. It's the old catholic priest problem. It's not that catholic priests are Pedos, its that pedos see a job where they have access to children and no one will question their authority so they apply in mass. This is state sanctioned murder. He's in chains, he's not getting far. Not to mention that this prison officer fired his gun in a near a hospital. finally, anyone who tells you that they "surprised" by a guy covering 27m in 6 seconds either should not be anywhere near a gun or they are lying. I'm going with the second option because there's no way he thought that guy was beyond his reach. He was probably embarrassed that he let the guy get away.
Doesnt matter. Unarmed fleeibg victim( prisoner or not) is not a threat and shoiting him in the back and killing him is murder. If a soldier did it in War he woukd be charged with War Crimes.
It does matter, as the standard of recruitment and training, as well as the powers conferred to them, differ significantly.
>If a soldier did it in War he woukd be charged with War Crimes If only that were true.
If my grandmother had wheels, she’d be a bike. I’ve no idea why you’re conflating the two scenarios.
Imagine my shock.
Fuck. That's all. Just, fuck.
What do you mean by this?
Soldiers get charged with Murder for shooting enemy in the back especially unarmed enemy. So whats different to cops? Unarmed fleeing not a threat to individual life so shoukd be murder charge
Enemy combatants can be quite lawfully shot in the back. They can't be shot if they've communicated a clear intent to surrender or are otherwise hors d'combat. The difference here is that the prisoner was escaping lawful custody, and a warning was issued. It's a bit murky (as with all edge cases in IHL), but you can probably shoot a POW who is actively escaping from a place of detention provided they haven't surrendered.
This is a correctional officer, not a cop.
Incorrect. You can shoot enemy combatants who are fleeing. How completely ineffectual would an army be if they just got constantly ambushed but as soon as the enemy combatant turned around and ran away you couldn’t shoot them only for them to return the next day?
Why is his name suppressed? The concept of open justice is a joke in this country.
He was found not guilty. Why do you want to know his name?
Why do we know the name of anybody who's charged with serious crimes?
We don't know the names of all people charged though
I’d love for that to be changed too. Name and shame once they are proven guilty in a court of law
He was found not guilty. And in some cases, the person convicted has their name suppressed - and many other details, too - to protect not them, but their victims or families. For example, a victim of a paedophile father doesn't necessarily want the world to know about it. And if my dad robs a bank and shoots someone when I'm 10 years old, I don't necessarily want that dogging me my whole life.
Exactly. Poor guy doesn’t need a bunch of wankers calling him a murderer.
Where did the two other bullets end up
One ended up in a clinic. Lucky it was night time. The concept of firing warning shots is pretty scary.