R v Turnbull (No. 20)

[2016] NSWSC 799

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 20) [2016] NSWSC 799
Hearing dates:	17 May 2016
Date of orders:	17 May 2016
Decision date:	17 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Objection to Crown cross-examination of Grant Turnbull overruled.
Catchwords:	CRIMINAL LAW - murder trial - shooting of environmental officer on 29 July 2014 - defence objection to Crown cross-examination of Accused’s son - evidence adduced in chief concerning potential cost of fencing which may form part of remedial order - Crown seeks to cross-examine using Land and Environment Court judgment on issue of possible fencing as at 29 July 2014 - defence objection - evidence allowed
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Turnbull (No. 16) [2016] NSWSC 788 R v Turnbull (No. 18) [2016] NSWSC 792 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84
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: In the course of cross-examination by the Crown of Grant Turnbull, the Accused's son, the Crown has sought to raise with Mr Turnbull matters concerning potential fencing of the “Colorado” and “Strathdoon” properties as a result of remediation orders, in the context of what was considered and decided by Preston CJ on 25 June 2014 in Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 at [113] to [122].

2. Objection was taken to a question which the Crown was seeking to ask by reference to [113] of his Honour's judgment.

3. The background to this objection is certain evidence adduced in examination-in-chief of Grant Turnbull by senior counsel for the Accused with respect to the cost of fencing. In particular (at T955-957), there was evidence as to the cost of fencing - a quotation being obtained for 24 kilometres of fencing for “Colorado”, a cost of just over $400,000.00 and seven-and-a-half kilometres of fencing for “Strathdoon” at a cost of just on $140,000.00.

4. A question was asked (T956, line 34):

“Q.    So in July of 2014, was the possible cost of half a million dollars, on fencing something that you and your father could afford at the time?

A.    No."

5. The quotation which contained these figures became MFI74.

6. Implicit in this question is that this was a potential cost which was alive as at 29 July 2014, the date of the tragic shooting of Mr Turner.

7. The cross-examination for the Crown, as I understand it, seeks to demonstrate what the position was, at least as far as the ongoing process of decision making by the Chief Judge of the Land and Environment Court as at 25 June 2014.

8. His Honour’s judgment, at [113] to [122], includes a summary of the submissions made and his Honour's approach to the matter, which was to agree with the applicants' approach, that is, the approach of Grant Turnbull, including this statement at [119]:

“For example, the applicants might choose to achieve the outcome by not grazing livestock on their properties at all, but only crop the land, in which event the erection of fencing around the boundaries of the remediation areas within the properties would be unnecessary.”

9. His Honour referred again to the fencing topic at [122]:

“I consider, therefore, that the terms of the remedial work directions dealing with fencing and stock management should be generally based on the applicants' revised direction, but with the changes I have noted as well as some modification of language to improve clarity.”

10. It is the position that there was a further hearing before the Chief Judge of the Land and Environment Court on 11 and 17 July 2014. The further judgment of Preston CJ was not handed down until 31 July 2014. Thus, it may be accepted that what his Honour said on 25 June 2014 reflected the view which his Honour then had and intended to put in place, subject to further negotiations between the parties and further arguments that may be advanced.   

11. The fact that his Honour did not deliver the final judgment in this set of proceedings until 31 July 2014 is not to the point, in my view.

12. The Accused has sought to make an issue in the trial, the potentially large cost of fencing if substantial parts of “Colorado” and “Strathdoon” had to be fenced. The evidence of Grant Turnbull is that the property was always intended to be a farming property only with no grazing. That was, in fact, the entire purpose of the operation which was underway to prepare the properties after their purchase in 2011.

13. In my view, the Accused, having raised the issue of the cost of the fencing, renders admissible the Crown's questions on this issue. The question which is relevant is what was the known position as at 29 July 2014. On the process which was underway in the Land and Environment Court, the known position at that time was that the Chief Judge of that Court had expressed a conclusion that would be favourable to the applicants, and would see a very limited involvement of fencing, if any at all.

14. In earlier judgments where questions have been asked about parts of decisions of the Land and Environment Court, reference has been made to s.91 Evidence Act 1995: R v Turnbull (No. 16) [2016] NSWSC 788; R v Turnbull (No. 18) [2016] NSWSC 792. I have adopted the approach that if the issue had been raised by earlier questions asked, it was appropriate that there be further questioning allowed on that topic. I adopt the same approach to the present objection.

15. In my view, questioning about the potential cost of fencing, if it is to be relevant at all to any issue in this trial, should be placed in the context of the position as it stood on 29 July 2014.

16. For that purpose, I will allow the Crown to ask questions of Grant Turnbull utilising parts of this judgment. Having so ruled, this ought be done in a controlled fashion and by reference to particular parts of the judgment which bear on this topic. Accordingly, I overrule the objection to the question asked by the Crown.

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Decision last updated: 20 June 2016