Law change for officers aired after prisoner shot dead

A coroner could recommend changes to fix vague laws around when prison officers can shoot at escaping prisoners after the killing of a fleeing Indigenous man.

Wiradjuri man Dwayne Johnstone died after being shot outside Lismore Base Hospital as he ran in leg shackles from a prison van after receiving treatment in March 2019.

An inquest into the 43-year-old's death has resumed in Lismore after the officer who fired the fatal bullet was cleared of a murder charge in November.

Peggy Dwyer (file image)
Peggy Dwyer said NSW police have stricter conditions than prison officers in using lethal force.

Counsel assisting the coroner Penny Dwyer highlighted the differences between policies and legislation governing the use of lethal force for police and correctional officers.

She said NSW Police adhered to stricter and clearer conditions surrounding the use of firearms, while also having access to more non-lethal options such as Tasers, batons and capsicum spray.

"It may be that (Corrective Services NSW) has something to learn from the experience and training of police," she said.

Mr Johnstone was shot and killed by a correctional officer - who can legally only be referred to by the pseudonym "Officer A" - after being discharged from the hospital in northern NSW.

He had been taken there when he collapsed and began convulsing in the court cells after being remanded in custody earlier that day on charges of assault and possession of a stun gun.

The inquest into his death was suspended in October 2020 after State Coroner Teresa O'Sullivan referred the case to the Department of Public Prosecutions.

Officer A was charged with manslaughter in February 2021 and the allegation was upgraded to murder in August 2022. 

NSW State Coroner Teresa O'Sullivan (file image)
Coroner Teresa O'Sullivan may recommend legislative changes to clarify prison officers' powers.

The officer's first trial resulted in a hung jury in November 2022, then a second trial ended with a not-guilty verdict in November 2023.

In her opening statement on Tuesday, Dr Dwyer reminded the court that at the heart of the inquest was the death of a man that was loved by many. 

"The death of Dwayne Johnstone has caused immeasurable suffering for his loved ones," she said.

The inquest was told the purpose of the proceedings was to encourage legislative changes to provide correctional officers with clearer guidelines about the use of lethal force on prisoners trying to escape.

"It is often a tragedy that prompts reform that makes society a better and safer place," Dr Dwyer said.

The coroner would likely be urged to weigh up a recommendation that the state's attorney-general introduce laws that clarified officers' powers.

Officer A and Officer B, an unarmed corrections officer who chased Mr Johnstone before the shooting, will not appear as witnesses at the inquest after providing evidence for the criminal trials.

Tensions were high in the courtroom on Wednesday as senior corrective services staff gave evidence.

Barristers representing the prisons service and the two officers frequently objected to questions from Dr Dwyer, including about the regularity of firearm training and procedures regarding the use of lethal force. 

It is expected the family of Mr Johnstone, who have previously called for guns to be taken away from prison officers, will give evidence during the proceedings.

The inquest continues until Friday.

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