R v Turnbull (No. 22)
[2016] NSWSC 801
•18 May 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Turnbull (No. 22) [2016] NSWSC 801 Hearing dates: 18 May 2016 Date of orders: 18 May 2016 Decision date: 18 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Tender of document (MFI83) rejected; evidence of conversation disallowed.
Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to tender of document and evidence of conversation - no evidence concerning these matters from Accused who had given evidence - evidence disallowed Legislation Cited: --- Cases Cited: --- 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
-
JOHNSON J: In the course of the evidence-in-chief of Anna Simmons, called in the defence case, senior counsel for the Accused has tendered a document (MFI83), which is said to be a version of the incident on 21 August 2012 as provided by Ms Simmons to an officer of the Office of Environment and Heritage.
-
There has been an objection to the tender of this document. The evidence of Ms Simmons was that she left a copy of this document on the seat of a vehicle owned by the Accused.
-
The Accused gave evidence on Monday this week. He was asked questions in examination-in-chief as to what he had been told about the incident involving Ms Simmons on 21 August 2012. It is appropriate to refer to the entire evidence of the Accused on this aspect (T879, lines 12-32):
Q. And having spoken to Cory and having spoken to Mr Spencer, did you also speak with Anna Simmons at some stage?
A. Probably a day or two later.
Q. And did you come to learn that Mr Turner had said something to Anna Simmons a couple of days earlier when she, Ms Simmons, was on Strathdoon?
A. Yes.
Q. What did you learn?
CROWN PROSECUTOR: I object to that.
ALEXIS: I understand the objection.
Q. What was said to you, Mr Turnbull?
A. Mr Turner told Ms Simmons, Mrs Simmons, that he would keep at the Turnbulls till he put them off their farms.
Q. How did that make you feel when you heard that, Mr Turnbull?
A. Of course I didn't like that at all.”
-
Senior counsel for the Accused then moved to another topic.
-
It will be apparent that there was no question asked as to whether the Accused had received any document from Ms Simmons which is said to relate to this topic. Nor were any further questions asked as to whether anything else had been said by Ms Simmons to the Accused. It was a matter for senior counsel for the Accused to ask questions of the Accused on this topic. What was asked is, self-evidently, what is apparent in the transcript.
-
With respect to the objection to MFI83 by the Crown, there is no evidence that this document came into the possession of the Accused, or that he took it into account. In those circumstances, that reason alone warrants not admitting it into evidence in the trial, and I decline to admit MFI83.
-
The oral evidence of Ms Simmons in examination-in-chief had reached the point where senior counsel for the Accused had brought her to an occasion which she described as being a few weeks later, when she saw the Accused near one of the old oat sheds on the property and had a conversation with him. Objection was taken to that question, and I asked the jury to retire.
-
Senior counsel for the Accused indicated that he anticipated that Ms Simmons would give evidence that she spoke to the Accused about the incident said to involve Mr Turner, the effect of that incident on her, and other aspects as well.
-
The primary basis for allowing evidence to be given of what was said to the Accused about the 21 August 2012 incident is what impact it is said to have had upon him, for the purpose of, what the defence argue, is a type of cumulative process arising from his involvement with officers of the Office of Environment and Heritage. The indication to the Accused that something had happened, and the impact on him, is the primary purpose of this being admitted in the first place. There is evidence from the Accused on that very topic (see [3] above).
-
It seems to me, in these circumstances, that if what is sought from Ms Simmons is an expanded recital of things allegedly said to the Accused, which have not been referred to in his evidence as having been said or having an effect on him, this would involve an element of unfairness in the trial.
-
It may be taken that the Accused has the benefit of the evidence which he gave as to what he had been told and the effect on him (T879). However, I will not allow evidence to be given by Ms Simmons which recites a conversation at what seems to be a different time to that referred to by the Accused in his evidence-in-chief. The Accused has the benefit of the evidence which he has given on this aspect.
-
I decline to allow the present witness to give evidence of the matter she discussed with the Accused on the occasion to which she refers near the oat sheds a few weeks after 21 August 2012.
**********
Decision last updated: 21 June 2016
0
0
1