R v Turnbull (No. 18)

[2016] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 18) [2016] NSWSC 792
Hearing dates:	12 May 2016
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Crown allowed to re-examine Terrence Bailey on specific findings made by the Land and Environment Court
Catchwords:	CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown re-examination of witness concerning findings made by the Land and Environment Court - held that proposed questions arose out of cross-examination of witness - re-examination allowed
Legislation Cited:	Evidence Act 1995 Native Vegetation Act 2003
Cases Cited:	Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
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: The Crown is re-examining Mr Terrence Bailey, the Chief Executive of the Office of Environment and Heritage.

2. A question has been asked of Mr Bailey which has drawn objection on behalf of the Accused. To place this objection in context, it is necessary to refer to some matters of history.

3. Between 4 and 7 March 2014, a sentencing hearing took place before Sheahan J in the Land and Environment Court following a plea of guilty by the present Accused to a charge under s.12 Native Vegetation Act 2003. The Accused pleaded guilty to that charge, but there was a contest as to the area of land affected by the unlawful conduct of the Accused.

4. The hearing in March 2014 involved evidence from a range of persons, largely expert witnesses, on the question of the land which was affected. The prosecution contention was that it was in the order of 480 hectares, the defence contention was that it was in the order of 38.7 hectares.

5. The Accused shot dead Mr Turner on 29 July 2014. At that time, Sheahan J had reserved judgment after the sentencing hearing.

6. In due course, on 19 September 2014, Sheahan J made a number of findings as part of the decision on sentence: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150. These findings involved an acceptance (at [110]) that the area of native vegetation unlawfully cleared within the net area of 460.5 hectares was 38.7 hectares.

7. His Honour went on to make other findings. His Honour noted (at [126]) that Mr Spiers (a prosecution expert) had opined that, subject to an error factor of +/- 10%, 2,708 trees were removed on “Colorado” and 694 on “Strathdoon”, and that this was not disputed.

8. His Honour found (at [129]) that “approximately a minimum of 3,000 trees were removed across the cleared areas, and many, especially in Polygon 1, were environmentally significant”.

9. His Honour found (at [136]) that “the level of the environmental harm caused was substantial”.

10. In cross-examination of Mr Arthur Snook (T300), senior counsel for the Accused elicited evidence that, although the prosecutor alleged an area of clearing of nearly 500 hectares, only 38 hectares had been cleared according to the finding of the Court, that being a reference to the finding of Sheahan J on 19 September 2014.

11. In cross-examination of Mr Bailey, the same line of questioning was undertaken and it was put to Mr Bailey (T679.18) that:

“Q.    You know, don’t you, that ultimately the judge hearing the case found that only 38.7 hectares had been cleared in breach of the Act?”

12. Mr Bailey commenced to answer that question by saying:

“A.    I've read the judgment and acknowledge that it was - there was a substantial environmental impact and that the judge...".

13. The witness was stopped and taken back to the question he had been asked. The proposition was put to him (T679.30):

“Q.    What I asked you was whether or not you know that the judge found that the area of native vegetation unlawfully cleared was 38.7 hectares?"

“A.    When you add the area of the trees together, that was the judgment."

Q.    That's what the Judge found?

A.    In the context of the area of the trees, yes."

14. In re-examination, the Crown wishes to ask questions of Mr Bailey by reference to [110], [126], [129] and [136] of the judgment of Sheahan J, being the portions which I have mentioned earlier.

15. The primary objection which is taken is that the questions which the Crown seeks to ask do not arise out of cross-examination. It is submitted for the Accused that there was a focused line of questioning which related only to the areas of hectares as alleged by the prosecutor and by the Accused, and as found by the Judge. It is submitted that that foundation does not provide a basis for the Crown to re-examine along the lines which have been foreshadowed.

16. Reference was made as well to s.91 Evidence Act 1995, which bears upon the admissibility of findings of fact from earlier judgments of a Court. However, it is accepted by senior counsel for the Accused that, if I find that the line of questions which the Crown seeks to ask arises out of cross-examination, then the s.91 objection would not have continued force. The real question is whether the proposed questions arise out of cross-examination.

17. I should mention, as well, that the Accused has raised character in this case and continues to raise character and to adduce character evidence. That bears, to a limited extent, upon the ruling which I am making.

18. In my view, the raising of one finding made by Sheahan J on 19 September 2014, by way of a comparison and contrast between the two areas, does raise sufficiently the line of questions which the Crown seeks to ask in re-examination.

19. This issue should not be looked at in an artificially restricted way. What Sheahan J found was not something related by a bare reference to the number of hectares. Other findings were made which were associated with that, including the number of trees and the matter which Mr Bailey has mentioned, that there was a substantial level of environmental harm.

20. Having introduced a finding made in Sheahan J’s judgment (which had not been given at the time of the tragic events of 29 July 2014), I am satisfied that the door has been opened by the defence in a way that the Crown should be entitled to utilise in re-examination.

21. That said, what is necessary is that any questions be asked in a manner which does not lead to the potential uncontrolled expression of opinion by Mr Bailey.

22. I propose to allow the parts of [110], [126], [129] and [136] of Sheahan J's judgment to be utilised by the Crown in re-examination.

23. It may be that the Crown can approach this by using a measure of leading to avoid any further expressions of opinion or comment from Mr Bailey. However, I leave that to counsel to consider in consultation with each other.

24. My ruling is that these questions arise out of cross-examination and I will allow the Crown to re-examine in this way.

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Decision last updated: 20 June 2016