R v Turnbull (No. 16)
[2016] NSWSC 788
•10 May 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Turnbull (No. 16) [2016] NSWSC 788 Hearing dates: 10 May 2016 Date of orders: 10 May 2016 Decision date: 10 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Parts of judgment of Land and Environment Court admitted into evidence.
Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown tender of part of judgment of Land and Environment Court and an attachment to the judgment - judgment related to remedial work to be undertaken on relevant property - evidence allowed Legislation Cited: Evidence Act 1995 Cases Cited: Turnbull v Director-General Office of Environment and Heritage (No 2) [2014] NSWLEC 112 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: The Crown seeks to tender two documents in the evidence-in-chief of Mr Terrence Bailey, the Chief Executive Officer of the Office of Environment and Heritage.
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The first is the judgment of Preston CJ, the Chief Judge of the Land and Environment Court, of 31 July 2014 in proceedings Turnbull v Director-General Office of Environment and Heritage (No 2) [2014] NSWLEC 112 (MFI47). The second is a document which was an attachment to the judgment of Preston CJ, being a direction to carry out remedial work in one of the two sets of proceedings to which his Honour's judgment relates (MFI48).
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The primary objection taken, on behalf of the Accused, to the tender of these documents is relevance. A second objection concerns s.91 Evidence Act 1995.
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It is submitted for the Accused that the documents are irrelevant. The judgment of 31 July 2014 postdated the events of 29 July 2014 in which the Accused killed Mr Turner. It is submitted, as well, that the Crown does not need this material given that the broad structure of the chronology is already before the jury.
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With respect to s.91 Evidence Act 1995, having heard that objection, the Crown indicated that only the front page of the judgment and paragraphs 11, 12, 13 and 14 were sought to be tendered, and not the reasoning of Preston CJ contained in the earlier paragraphs.
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It seems to me that the matters contained in the earlier reasoning do involve, in one way or another, a decision or findings of fact of Preston CJ, so as to be caught by s.91. However, the modified tender, being the concluding paragraphs only, do not have that difficulty. In the circumstances, the s.91 objection does not have further operation.
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With respect to relevance, the Crown submits that this material should be before the jury. It is, in effect, the continuation of a process which resulted in a judgment on 25 June 2014 by Preston CJ (part of which is Exhibit S) and an annexure to that judgment (Exhibit R).
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The evidence reveals that there were ongoing discussions between the parties after 25 June 2014 with respect to the detail of the orders to be made, the areas to be covered and other associated issues. Indeed, the judgment of Preston CJ of 31 July 2014 indicates hearing dates on 11 and 17 July 2014, with his Honour giving a direction to the parties to file the agreed final remedial work directions by 22 July 2014.
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Although the proceedings which were before Preston CJ did not involve the Accused as a party, it is clear on the evidence in this trial that the Accused had a close interest, at least, in the outcome of those proceedings and in what orders may be made.
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In my view, the continuation of events after 25 June 2014, and up to the decision of 31 July 2014, is relevant to issues in this trial. The activities being carried out, in particular on “Colorado”, on and prior to 29 July 2014, are relevant to issues in this trial, and in particular the unchallenged act of the Accused in attending Talga Lane in the early evening of 29 July 2014 and shooting dead Mr Turner.
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I am satisfied that parts of the judgment, together with the attachment, are relevant to issues in the trial and should be admitted.
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A further matter raised by senior counsel for the Accused is the identification of the legal representation on the cover sheet of the judgment of Preston CJ. That indicates that it was, in fact, senior counsel presently appearing for the Accused who was appearing at that time for the applicants in the Land and Environment Court. The solicitors for the applicants were Cole & Butler, the present solicitors for the Accused.
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There is already evidence before the jury that Mr Joseph from Cole & Butler has a longstanding role as the legal adviser to the Accused. There is no evidence to date that senior counsel presently appearing for the Accused was appearing for him in the Land and Environment Court.
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It might be said that this aspect was going to arise in some shape or form and at some stage, given the continuation of representation in this trial by senior counsel for the Accused and Cole & Butler following their appearance in earlier related proceedings in the Land and Environment Court. That said, it seems to me that it would constitute something of a distraction, perhaps giving rise to a measure of irrelevant speculation on the part of the jury, as to the identity of senior counsel for the Accused in this trial and also as lead counsel for the applicants in the Land and Environment Court proceedings.
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In that respect, I consider it appropriate, as the Crown accepted as a reasonable way forward, that the section on the cover sheet of the judgment indicating representation should be deleted.
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Accordingly, I propose to admit a modified version of MFI47, which will delete the representation section on the front page and delete paragraphs 1 through to 10 in the body of the judgment itself.
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I propose to admit as well MFI48, being the attachment to the order of 31 July 2014 containing a direction to carry out remedial work in the proceedings before the Court brought by Grant Wesley Turnbull.
[After further submissions, part of paragraph 1 of MFI47 was include in the tendered exhibit]
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Decision last updated: 20 June 2016
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