R v Turnbull (No. 10)
[2016] NSWSC 782
•03 May 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Turnbull (No. 10) [2016] NSWSC 782 Hearing dates: 3 May 2016 Date of orders: 03 May 2016 Decision date: 03 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Objection by Crown upheld.
Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to defence cross-examination - questions seek to adduce evidence of conversation where Accused’s solicitor expressed opinions - objection upheld Legislation Cited: --- Cases Cited: R v Turnbull (No. 9) [2016] NSWSC 781 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
Ian Robert Turnbull (Accused)Representation: Counsel:
Solicitors:
Mr PE Barrett (Crown)
Mr T Alexis SC; Ms C O’Neill (Accused)
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)
File Number(s): 2014/223920 Publication restriction: ---
Judgment
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JOHNSON J: In the course of cross-examination of Arthur Snook, a senior officer with the Office of Environment and Heritage, questions have been asked by senior counsel for the Accused by reference to conversations which apparently took place by telephone, on the morning of 10 December 2013, between Mr Snook and Mr Sylvester Joseph, the solicitor for the Accused.
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The conversations relate to the situation where Mr Turner, the deceased, was at the front gate of a property owned by the Turnbull family, having spoken to Scott Kennett and having indicated a desire to enter the property. According to the evidence of Mr Snook in cross-examination, there was then some communication from Grant Turnbull by text indicating he did not consent to Mr Turner entering the property. Thereafter, there was a further telephone conversation between Mr Joseph and Mr Snook. In the course of this conversation, a number of things were said.
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Senior counsel for the Accused has sought to cross-examine by putting directly to Mr Snook what was allegedly said by Mr Joseph in the course of the conversation. This includes statements such as “It looks like our client and Mr Turner do not like each other”, and a little later, Mr Joseph saying words to the effect that what was happening was “bordering on harassment”.
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At that point, the Crown objected upon a number of bases.
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It is submitted, on behalf of the Accused, that this is evidence which relates to the conduct of Mr Turner in the months prior to the tragic events of 29 July 2014. It is said that it goes to the conduct of Mr Turner as an officer of the Office of Environment and Heritage in his investigations of the Accused and other members of the Turnbull family.
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The conversations, of course, do not involve the Accused - they are conversations between his solicitor and Mr Snook.
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The principal difficulty with these conversations, it seems to me, is that what is sought to be elicited are comments made by Mr Joseph (then and still the solicitor for the Accused) including opinions with the use of the word "harassment". The state of mind of Mr Joseph is entirely irrelevant to this trial (at least on my present view). To seek to adduce evidence of comments made by him containing conclusions, opinions or observations of that type, in my view, is impermissible.
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There may be a basis upon which questions can be asked of Mr Snook which do not invite, in effect, a ball-by-ball recitation of entire conversations, including comments volunteered by Mr Joseph on these topics. As I understand it, the objection is not taken to the line of questioning - it relates to the adducing of evidence of comments of that sort being made.
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I propose to disallow the evidence that Mr Joseph made a comment with respect to the events being “bordering on harassment”, and I will disallow any further evidence of opinions of that sort.
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It will be a matter for counsel to determine if there are ways, consistent with my ruling, to adduce evidence from Mr Snook on these issues, but I will not allow the effective recital of entire conversations, in particular when they have comment or opinion expressed in that way.
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In making this ruling, I do not consider that it is appropriate to allow this evidence as being (in some way) admissible, but not as evidence of truth of the fact. Comments of this sort are simply inadmissible, in my view, and should not be led in the presence of the jury.
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There is some broad analogy with the subject matter of my judgment, R v Turnbull (No. 9) [2016] NSWSC 781. Comments in the letter then tendered and rejected included opinions of Mr Joseph which may have gone to his state of mind, but not that of the Accused.
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In any event, the ruling which I have made on the present objection is as indicated. I will direct the jury to disregard the last comment involving the use of the word "harassment".
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Decision last updated: 20 June 2016
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