R v Turnbull (No. 2) - [2016] NSWSC 678

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Turnbull (No. 2) [2016] NSWSC 678
Hearing dates: 18 March 2016
Date of orders: 18 March 2016
Decision date: 18 March 2016
Jurisdiction: Common Law
Before: Johnson J
Decision:
Documents caught by the subpoena to be produced to the Court for inspection to determine whether access should be granted to the parties.

Catchwords: CRIMINAL LAW – murder trial - defence to rely upon partial defences of substantial impairment and extreme provocation - subpoena issued for Accused - claim that subpoena a fishing expedition - inspection of documents by Court
Legislation Cited: Native Vegetation Act 2003
Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404
R v Saleam (1989) 16 NSWLR 14
Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
Perish v R [2015] NSWCCA 237
R v Turnbull (No 1) [2016] NSWSC 189
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)
Mr DK Jordan (Applicant - Office of Environment and Heritage)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)
Gordon Plath (Applicant - Director Litigation, Office of Environment and Heritage)

File Number(s): 2014/223920
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Ian Robert Turnbull, is to stand trial in this Court in April 2016 on a charge of murder and a charge of detaining a person with the intention of obtaining an advantage. The background to the trial may be found in my judgment on venue: R v Turnbull (No 1) [2016] NSWSC 189.
For present purposes, it is sufficient to note that the Accused is charged with the murder of Glendon Turner. He was employed as a Compliance and Regulation Officer for the Office of the Environment and Heritage, Department of Premier and Cabinet. His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 Native Vegetation Act 2003.
There is no issue that the Accused shot the deceased on 29 July 2014. The Accused proposes to raise the partial defences of substantial impairment and extreme provocation. I am the Judge allocated to preside at the trial.
On behalf of the Accused, a subpoena filed on 22 February 2016 issued, directed to the Proper Officer, The Office of Environment and Heritage ("the Applicant").
By Notice of Motion filed 3 March 2016, the Applicant sought to have set aside various paragraphs of the subpoena. By the time the hearing of the Notice of Motion came before me on 17 March 2016, the paragraphs under challenge had reduced to three, being paragraphs 2, 3 and 4 of the subpoena. Those paragraphs seek:

“2.    All document including correspondence, emails, file notes and any other written materials, recording or relating to any complaints made that concern or involve Mr Turner during the period, including complaints made by:
(a)    Ms Anna Simmons; and
(b)    Mr…

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.

Continue reading R v Turnbull (No. 2)

Details

AGLC: R v Turnbull (No. 2) [2016] NSWSC 678
Case: [2016] NSWSC 678
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the case of R v Turnbull (No. 2), the accused faced a murder trial, with the defence seeking to rely on the partial defences of substantial impairment and extreme provocation. The accused objected to a subpoena issued for them, claiming it was a fishing expedition. The matter was brought before the court for determination of the validity of the subpoena and the admissibility of the defences. The court was required to decide whether the subpoena was indeed a fishing expedition and, if not, whether the defences of substantial impairment and extreme provocation could be relied upon in the trial.

The court considered the nature of the subpoena and the necessity of the documents sought. It examined whether the subpoena was overly broad and lacked specificity, thus amounting to a fishing expedition. The court also assessed the relevance of the documents to the defences being raised. In doing so, the court referred to the principles established in previous cases concerning the admissibility of partial defences and the requirements for proving such defences. The court concluded that the subpoena was not a fishing expedition and that the documents were relevant to the defences being raised. Consequently, the court allowed the subpoena and permitted the defences of substantial impairment and extreme provocation to be considered in the trial.

The court's decision was grounded in the need to balance the rights of the accused with the requirements of a fair trial. The court found that the subpoena was not overly broad and that the documents were necessary for the defence to properly present their case. The court also determined that the defences of substantial impairment and extreme provocation were available to the accused, provided the necessary evidence was presented. The court's reasoning was based on the principle that all relevant evidence should be considered in a trial, and that the admissibility of defences should not be unduly restricted. The court's outcome was that the subpoena was valid, and the defences could be relied upon in the trial.

Orders