A NSW Corrections officer on trial for murder was performing his "duty" when he repeatedly warned and then shot an Indigenous man trying to flee custody, a jury has been told.
WARNING: Aboriginal and Torres Strait Islander readers are advised that this article contains the image of a person who has died.
Officer A is standing trial in Sydney's Supreme Court for the alleged murder of 43-year-old Dwayne Johnstone outside Lismore Base Hospital on the evening of March 15, 2019.
He has pleaded not guilty to the charge.
Defence barrister, Philip Strickland SC, on Thursday said the officer was performing his fundamental duty — to prevent Mr Johnstone from escaping — when he fired three shots.
The court heard Mr Johnstone was handcuffed and had restraints on his ankles at the time.
The court heard Officer A, as he is known for legal reasons, shouted out twice, "stop or I will shoot," before firing a warning shot.
He then fired a second shot, but it was the third that hit Mr Johnstone in the back.
Mr Johnstone died in hospital a short time later.
The Crown alleges Mr Johnstone posed no risk to any person and Officer A had no lawful excuse to shoot him.
But Mr Strickland told the jury Officer A fired "not ... out of malice, out of revenge, out of anger".
"He did so to prevent Mr Johnstone from running and that was what his duty as a corrections officer required him to do," he said.
Mr Strickland cited a regulation which allows correctional officers to discharge a firearm if the officer reasonably believes that it is necessary in order to prevent the escape of an inmate.
He told the jury Officer A said in a police interview three days later that he honestly held that belief.
Mr Strickland said there was no doubt Mr Johnstone was attempting to escape and moved at pace.
"There is nothing that says he [Officer A] was authorised to shoot his firearm only if he believed that Mr Johnstone posed a danger, or an immediate danger," he said.
He said his client's lawful authority to use a firearm did not depend on an inmate's criminal history, what they intend to do after escaping or "on the knowledge of whether they pose a risk to the public".
"It was the fact that he was escaping," he said.
While most of the facts in the case are not disputed, he said, the prime issue will be whether the Crown can prove beyond reasonable doubt that when Officer A fired his third shot, he did so without lawful cause or excuse.
The defence allege Mr Johnstone was running across the road from the hospital toward a car park beside a closed doctor's surgery and gave Officer A little time to make a decision.
The court was played an audio recording of Mr Johnstone being refused bail earlier that day after he was arrested for an alleged assault and possessing a taser.
He's heard crying, telling the magistrate he'd been in an accident and had just come from the hospital. He was then taken to the court cells by Officer A.
CCTV footage was then played to the jury showing Mr Johnstone appearing to have an epileptic fit on the cell floor, with Officer A prodding him with his foot before paramedics and a nurse arrived.
Officer A then walked to the left, exiting the screen, to obtain a firearm because he was escorting a medical prisoner, the footage played in court showed.
Mr Johnstone was taken to hospital and discharged about 7:30pm.
While he was being escorted by Officer A and another officer, he attempted to flee, running across the road.
The trial continues.
