R v Turnbull (No. 14)

[2016] NSWSC 786

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 14) [2016] NSWSC 786
Hearing dates:	5 May 2016
Date of orders:	05 May 2016
Decision date:	05 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Leave granted to Crown under s.38 Evidence Act 1995 to cross-examine Ivan Maas on specified topics
Catchwords:	CRIMINAL LAW - murder trial - shooting of environmental officer - Crown application under s.38 Evidence Act 1995 to cross-examine Crown witness on specified topics - witness a farm worker employed by Accused’s family - leave granted
Legislation Cited:	Evidence Act 1995
Cases Cited:	R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 R v Turnbull (No. 5) [2016] NSWSC 439
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ian Robert Turnbull (Accused)
Representation:	Counsel: Mr PE Barrett (Crown) Mr T Alexis SC; Ms C O’Neill (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Cole & Butler (Accused)
File Number(s):	2014/223920
Publication restriction:	---

Judgment

1. JOHNSON J: At the conclusion of the cross-examination of Ivan Maas (a Crown witness), the Crown has made application, in the absence of the jury, for leave to cross-examine Mr Maas under s.38 Evidence Act 1995. Mr Maas was and remains a farm worker employed by the Accused’s family.

2. The application relates to a number of specified topics:

1. firstly, a discussion in February 2012 on the occasion of Mr Maas meeting Mr Turner for the first time;

2. secondly, the circumstances surrounding the service of a stop-work order (MFI35) on Mr Maas and the evidence of Mr Maas about a conversation with Mr Turner in that context;

3. thirdly, the evidence of Mr Maas concerning a message left for Mr Turner (Exhibit 11) and events surrounding that event;

4. fourthly, conversations between Mr Maas and the Accused concerning the Land and Environment Court cases; and,

5. fifthly, Mr Maas' evidence concerning the work of the Accused in the weeks and months prior to 29 July 2014.

3. The Crown relies upon s.38(1)(a), contending that the evidence given by Mr Maas is unfavourable to the Crown.

4. The application for leave is opposed on behalf of the Accused.

5. It is important to bear in mind that the word "unfavourable" in s.38(1)(a) does not mean adverse - it means not favourable to the party making the application. Likewise, it is important to bear in mind that s.38 is not confined to the situation where a party calling a witness is confronted unexpectedly by evidence that is unfavourable. For the purpose of this judgment, I have had regard to the summary of principles with respect to s.38 set out in my judgment in R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 at [9]-[17].

6. It is necessary to keep in mind, as well, the requirements of s.192 Evidence Act 1995 as to the factors bearing upon a grant of leave of this type if leave was to be allowed.

7. I am satisfied that the evidence of Mr Maas, on each of the topics which I have specified, is unfavourable to the Crown.

8. It is submitted on behalf of the Accused that the Crown was, in general terms, on notice of these matters because a tendency notice served for the Accused in March 2016 identified Mr Maas and others as persons who would give evidence, with some summary of the evidence of Mr Maas. That application was the subject of a ruling made by me in which I declined to allow tendency evidence to be adduced: R v Turnbull (No. 5) [2016] NSWSC 439. However, for present purposes, the submission for the Accused is that the Crown has been on notice that this was coming.

9. I do not consider that this aspect dilutes the Crown's primary application in any real way. Mr Maas has only given the evidence today. As I have said, s.38 is not confined to unexpected circumstances.

10. It has been said that the interests of justice, the public interest and the administration of justice may be served by the testing of evidence of a witness by way of a s.38 examination, and that the grant of leave may permit a truer picture of the situation to be presented to the jury than would have been the case if the Crown had been refused leave - see R (Cth) v Petroulias (No. 29) at [14] and the cases referred to therein.

11. It has been submitted on behalf of the Accused that, if this grant of leave was allowed, then there would also be a potential cascading effect where the Crown would be allowed to cross-examine, the defence would have the capacity to cross-examine and the Crown perhaps to make another s.38 application. Considerations of that sort, of course, are relevant under s.192 of the Act. The starting point, however, is that it is the Court which will control the process.

12. I accept, noting s.38(4), that questioning under s.38 is to take place before other parties cross-examine the witness, unless the Court otherwise directs. That is not what has happened in this case. The Crown is seeking leave under s.38 at the commencement of re-examination. Having regard to s.38(4), and to ensure fairness, if there are matters on which the Accused seeks leave to further cross-examine Mr Maas in light of the Crown's cross-examination, I would be minded to allow it.

13. However, there will not be any ongoing process. This will be a focused process addressing particular topics, and I will monitor closely what occurs to ensure that undue time is not taken up by the process.

14. In all the circumstances, I do grant leave to the Crown to cross-examine Mr Maas on the topics which have been specified earlier in this judgment.

**********

Decision last updated: 20 June 2016