R v Turnbull (No. 23)

[2016] NSWSC 802

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 23) [2016] NSWSC 802
Hearing dates:	20 May 2016
Date of orders:	20 May 2016
Decision date:	20 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Tender of document (MFI51) rejected.
Catchwords:	CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of document - Crown objection - tender rejected
Legislation Cited:	Evidence Act 1995
Cases Cited:	---
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: Senior counsel for the Accused has tendered, as evidence in the defence case, MFI51, a 12-page extract from the compliance diary of Glen Turner for 2011 and 2012. Objection is taken to the tender on behalf of the Crown.

2. The extract from Mr Turner's notebook contained in MFI51 relates to contact between Roger Turnbull, a son of the Accused, and Mr Turner between 7 April 2011 and 7 February 2012.

3. It is submitted on behalf of the Accused that this evidence is relevant to issues in the trial. It is said to be relevant because there was evidence from the Accused (T876-878) where the Accused stated that in conversations, to which he was party with Mr Turner, Mr Turner was allegedly critical of aspects of the conduct of Roger Turnbull.

4. It is submitted for the Accused that this material in MFI51 will complete the picture by providing background or context to what is said to have occurred between Mr Turner and Roger Turnbull in 2011 and 2012. It is submitted that this material bears on the Accused's proposed reliance upon extreme provocation. It is submitted, as well, that MFI51 constitutes a business record and is admissible as an exception to the hearsay rule under s.69 Evidence Act 1995.

5. The Crown submits that the material is not relevant, and if the Accused had sought to raise evidence of the interaction between Roger Turnbull and Mr Turner in 2011 and 2012, a course open was to call Roger Turnbull to give evidence. He was not called as a witness in the trial.

6. The fact that the Accused may have given evidence of having some knowledge of prior contact with Roger Turnbull by Mr Turner does not render MFI51 admissible, of itself. The fact the document may constitute a business record, a proposition which was not contested by the Crown, does not render the document admissible as relevant evidence in the trial.

7. It is important, in my view, that Roger Turnbull was not called as a witness in the trial.

8. I am not satisfied that the document MFI51 contains relevant evidence, and I decline to admit it.

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Decision last updated: 21 June 2016