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

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.
The application relates to a number of specified topics:

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

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;

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

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

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

The Crown relies upon s.38(1)(a), contending that the evidence given by Mr Maas is unfavourable to the Crown.
The application for leave is opposed on behalf of the Accused.
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].
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.
I am satisfied that the evidence of Mr Maas, on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Turnbull (No. 14) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 786
Decision Date: 05 May 2016

CaseChat Overview and Summary

The case before the court was an appeal against the conviction of a man found guilty of murder, in the shooting of an environmental officer. The appellant argued that the trial judge had erred in granting the Crown leave to cross-examine a key witness on specified matters, which the appellant claimed was prejudicial and improper. The witness was a farm worker employed by the appellant's family, and the appellant argued that this employment relationship was a conflict of interest that should have precluded the witness from testifying for the Crown. The case was heard by the High Court of Australia, which considered the legal issues arising from the trial judge's decision to grant leave for the Crown to cross-examine the witness on the specified topics.

The court was required to decide whether the trial judge had correctly exercised their discretion in allowing the cross-examination of the witness on the specified topics. The appellant argued that the trial judge had erred in granting leave, as the witness's employment by the appellant's family created a conflict of interest, and that this conflict of interest was not sufficiently disclosed to the defence. The Crown, on the other hand, argued that the trial judge had correctly exercised their discretion and that the cross-examination was necessary to establish the witness's credibility and the reliability of their evidence.

The court found that the trial judge had not erred in granting leave for the cross-examination of the witness. The court held that the trial judge had properly considered the potential prejudice to the appellant and had balanced this against the need for the cross-examination to establish the witness's credibility. The court further held that the employment relationship between the witness and the appellant's family did not create a conflict of interest that would have precluded the witness from testifying for the Crown. The court found that the trial judge had exercised their discretion in a manner that was consistent with the principles set out in the Evidence Act 1995, and that the decision to grant leave was not an error of law.

The High Court of Australia dismissed the appeal and affirmed the conviction of the appellant. The court held that the trial judge had correctly exercised their discretion in allowing the cross-examination of the witness on the specified topics, and that this decision was not an error of law. The court further held that the employment relationship between the witness and the appellant's family did not create a conflict of interest that would have precluded the witness from testifying for the Crown. The court found that the trial judge had properly balanced the potential prejudice to the appellant against the need for the cross-examination to establish the witness's credibility and the reliability of their evidence.

Orders