R v Turnbull (No. 25)

[2016] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 25) [2016] NSWSC 831
Hearing dates:	11 May 2016, 23 May 2016
Date of orders:	11 May 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Reasons for rulings given during the course of the trial.
Catchwords:	CRIMINAL LAW - murder trial - reasons for trial rulings - admissibility of post-arrest telephone conversations involving Accused - whether Crown should be permitted to call forensic psychiatrist in reply on issue of substantial impairment - whether partial defence of extreme provocation should be left to the jury
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Native Vegetation Act 2003
Cases Cited:	De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 Lindsay v The Queen [2015] HCA 16; 255 CLR 272 Masciantonio v The Queen [1995] HCA 67; 183 CLR 58 R v Fraser [2003] NSWSC 965 R v Kaewklom (No. 1) [2012] NSWSC 1103 R v Turnbull (No. 11) [2016] NSWSC 783 R v Turnbull (No. 5) [2016] NSWSC 439 R v Youssef (1990) 50 A Crim R 1 Stingel v The Queen [1990] HCA 61; 171 CLR 312 Turnbull v R [2016] NSWCCA 109
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: During the course of the trial, I made a number of rulings where I indicated that my reasons for those rulings would follow at a later time.

2. These rulings were:

1. a decision on 11 May 2016 to admit recordings of certain telephone conversations involving the Accused whilst in custody, and declining to admit other recordings;

2. a decision on 11 May 2016 permitting the Crown to call Dr Adam Martin, forensic psychiatrist, in reply with respect to the partial defence of substantial impairment by abnormality of mind;

3. a decision on 23 May 2016 not to leave the partial defence of extreme provocation to the jury.

3. What follows constitutes my reasons for making these rulings during the course of the trial.

Admission and Rejection of Certain Recordings of Telephone Conversations Involving the Accused Whilst in Custody

4. The Crown sought to tender extracts from a number of telephone calls between the Accused and other persons, which took place whilst the Accused was held in custody after bail was refused (MFI50). The conversations in question took place between 3 September 2014 and 2 April 2015. Ultimately, the Crown tendered extracts from some 23 telephone calls.

5. Following submissions made on 11 May 2016, I made a ruling in the following terms (T718):

“I propose to allow the Crown to adduce evidence of the following calls:

Call 1, a call on 3 September 2014, pages 1 and 2 of MFI 50.

Call 5, a call on 15 September 2014, pages 23 to 25 of MFI 50.

Call 8, a call on 9 October 2014, pages 35 and 36 of MFI 50.

And call 10, a call on 14 October 2014, page 43 of MFI 50.

I do not propose to allow the Crown to adduce evidence of all the remaining calls, and I note that call 21 was not pressed.”

6. To assist the parties, I provided a brief outline of my reasons for this ruling (T718-719).

7. This judgment contains my detailed reasons for the ruling made that day.

Crown Submissions

8. The Crown submitted that the conversations contained in the recordings were relevant to issues in the trial, as they bore upon motive or the presence or absence of any underlying condition for the purpose of the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900.

9. The Crown acknowledged that it was not using the term “motive” in its ordinary sense, where the presence or absence of motive may bear upon the question of whether an accused person in fact killed the deceased and, if so, whether he or she did so with the requisite intention for murder: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]-[30].

10. In the present case, there is no issue that the Accused shot Glendon Turner several times, over a period on the late afternoon of 29 July 2014. Nor does there appear to be any issue, in light of the evidence of Mr Robert Strange, that the Accused intended to kill Mr Turner.

11. The term “motive” as used by the Crown should be understood as a contention that the Accused acted in a manner which involved a generalised strong dislike of the Office of Environment and Heritage (“OEH”) and its officers, with that approach not being confined to Mr Turner only.

12. The Crown submission with respect to the existence of an underlying condition is to be understood by reference to a supplementary report dated 9 May 2016 of Dr Adam Martin, the forensic psychiatrist retained by the Crown (MFI49).

13. Dr Martin had been provided with some 100 extracts from telephone calls between the Accused and others whilst the Accused was in custody. In his supplementary report, Dr Martin referred to three conversations, but expressed a more general view that the content and manner of conversations were not consistent with a serious enduring mental illness or disorder on the part of the Accused. Dr Martin expressed the opinion that the recordings were not consistent with the hypothesis that the Accused was experiencing a significant enduring mental disorder, such as major depression or dementing illness prior to the alleged murder. He expressed the opinion that the recordings were evidence of a reasonably healthy mental state post-arrest, which shed significant doubt as to whether the Accused was experiencing a serious mental disorder prior to his arrest.

14. A further submission advanced for the Crown was that there was material in two conversations (Calls 12 and 14) that raised the question as to whether the Accused had been frank in his dealings with health professionals, who had undertaken tests with respect to him whilst in custody.

Submissions for the Accused

15. Objection was taken on behalf of the Accused to the tender of all 23 transcripts and recordings. The transcript of submissions on this topic sets out, in some detail, the submissions which were made by the parties (T685-718). The submissions for the Accused may be expressed shortly.

16. Firstly, it was submitted that the Court should refuse to admit this material under s.146(1) Criminal Procedure Act 1986, as the Crown had failed to disclose the evidence in accordance with the requirements for pretrial disclosure. Although it was acknowledged that a disk containing extracts from some 100 calls (including the tendered 23 calls) had been served some months before the trial, it was submitted that the bases upon which these calls were to be tendered was only communicated a few days prior to 11 May 2016, with the supplementary report of Dr Martin of 9 May 2016 being served late on 9 May 2016. In these circumstances, it was submitted that the material should not be admitted because of the failure of the Crown to comply with the threshold requirement for pretrial disclosure.

17. Secondly, it was submitted that to admit any or all of these calls would involve consequential problems given that the Crown seeks to tender extracts from conversations only, and not the full conversations. Further, it was submitted that if any of these calls were to be admitted, the defence would need to consider whether other calls from the pool of 100 calls should also be played to assist an understanding of the admitted calls in context. With this whole exercise being undertaken for the first time well into the trial, and shortly before the Crown case was to close, it was submitted that there were strong discretionary factors supporting s.146 exclusion or, alternatively, exclusion under ss.135 or 137 Evidence Act 1995.

18. Thirdly, even if the Court was satisfied that any conversation was relevant to an issue in the trial, it was submitted that the Court should refuse to admit the evidence, upon the basis that its probative value was substantially outweighed by the danger that the evidence might be misleading or confusing under s.135(b) Evidence Act 1995. Alternatively, it was submitted that the Court should refuse to admit the evidence upon the basis that its probative value is outweighed by the danger of unfair prejudice to the Accused under s.137 Evidence Act 1995, given the selective approach taken to the material and, in particular, the difficulty of attempting to identify with precision the conversations upon which Dr Martin had expressed a general opinion.

19. Fourthly, it was submitted that the content of some conversations included the discussion of legal advice provided to the Accused and members of his family, so as to give rise to an issue concerning client legal privilege.

Decision

20. In determining to admit the four conversations and to not admit others, I had regard to the following considerations and conclusions.

21. Firstly, the Crown was not assisted by the way in which this material was served upon the defence and, importantly, the very late identification of its suggested relevance and reliance upon a report of Dr Martin dated 9 May 2016. Although I was not satisfied that the Crown should be shut out from adducing evidence at all in this area, it seemed to me that the legal representatives for the Accused had practical restrictions operating upon them where the Crown had selected parts of 100 calls (initially) which had been provided to Dr Martin, and had then narrowed the number to 23 calls. This course was unsatisfactory, but was not determinative of the outcome of the Crown tender.

22. Secondly, I was satisfied that the four calls which were admitted were directly relevant to a fact in issue in the trial. In each of the four calls made on 3 September 2014, 15 September 2014, 9 October 2014 and 14 October 2014, the Accused makes strong critical comments about the OEH and its officers, with this evidence capable of being relied upon as indicating a strong dislike by the Accused of that agency and its officers including the deceased, Mr Turner, and Dr Christopher Nadolny, an ecologist. These calls shed light upon the state of mind of the Accused on 29 July 2014, and also at the time of the calls in September and October 2014.

23. To the extent that it was submitted for the Accused that parts of conversations involved disclosure by the Accused or others of legal advice that had apparently been given with respect to proceedings under the Native Vegetation Act 2003 before the Land and Environment Court, I accept the Crown submission that the fact that the Accused was discussing these topics with others, and in telephone calls which he knew were being monitored by other persons, gave rise to waiver of any client legal privilege which may have otherwise existed. In reaching this conclusion, I have made no positive finding that client legal privilege was established. I proceed upon the basis that, even if it had been, waiver is demonstrated.

24. With respect to the two conversations relied upon by the Crown as to possible misleading of health professionals (Calls 12 and 14), I took the view that certain jocular exchanges between the Accused and his wife did not support the construction advanced by the Crown. Even if this material had been relevant, which I consider to be highly doubtful, it was appropriate in any event to exclude it under ss.135 or 137 Evidence Act 1995.

25. As to the generalised opinion of Dr Martin by reference to a number of calls, I did not consider that the content of the excluded conversations rose above a level of general family discussions concerning property issues and other practical matters, in the context of the Accused being in custody. Even if these conversations had been relevant to, in some way, indicate the absence of features of a major psychiatric condition in the Accused at the time of the conversations, there was a significant risk that the evidence might be misleading or confusing, or cause or result in undue waste of time, so as to warrant exclusion under s.135 Evidence Act 1995.

26. A particular difficulty encountered by the Crown was that Dr Martin’s opinion (contained in the supplementary report) made very limited reference to specific conversations, in circumstances where the Crown wished to rely upon a significant number of conversations for this purpose.

27. It was for these reasons that I determined to admit recordings of four conversations which became Exhibit AJ (recordings) and Exhibit AK (transcripts) at the trial, and to not admit the balance of the conversations in MFI50.

Ruling Allowing Crown to Call Dr Adam Martin in Reply

28. Following submissions made on 11 May 2016, I expressed my satisfaction that the Crown should be permitted to call Dr Adam Martin after evidence was given on behalf of the Accused, to support the contention of substantial mental impairment in his case (T724).

29. What follows constitutes my reasons for this ruling.

30. In advance of the trial, the Accused had given notice, for the purpose of s.151 Criminal Procedure Act 1986, of his intention to adduce evidence of substantial mental impairment from Dr Olav Nielssen and Professor David Greenberg, for the purposes of s.23A Crimes Act 1900.

31. Section 151(3) Criminal Procedure Act 1986 provides:

“(3)    Any evidence tendered to disprove a contention of substantial mental impairment may, subject to any direction of the court, be given before or after evidence is given to prove that contention.”

32. Section 23A(7) Crimes Act 1900 relevantly provides:

“(7)    If, on the trial of a person for murder, the person contends:

(a)    …, or

(b)    that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.”

33. The Crown submitted that it should be allowed to call Dr Martin in reply. Senior counsel for the Accused submitted that the Crown should be required to call Dr Martin in the Crown case in chief.

34. As s.23A(4) Crimes Act 1900 makes clear, the onus is on the accused person to prove that he or she is not liable to conviction for murder, but ought be convicted of manslaughter by reason of substantial impairment by abnormality of mind. The existence of this legal onus (to the civil standard of proof) upon the Accused no doubt explains ss.151(3) Criminal Procedure Act 1986 and 23A(7) Crimes Act 1900, which bear upon the requirement otherwise existing that the Crown should not split its case.

35. In R v Fraser [2003] NSWSC 965, Howie J said at [19]-[21]:

“19    But whatever may have been the situation at common law, it seems clear to me that the principle has been affected by s 151(3). I can see no reason why that section should be construed other than in accordance with its terms and unaffected by any common law rule that it may have displaced.

20    On its face s 151(3) provides the Crown generally with a discretion as to whether to call evidence to rebut the defence under section 23A either in its case-in-chief or in reply. However, in an appropriate case the trial judge may be required to intervene and give a direction as to when that evidence should be called. This will usually be necessary because it would be unfair to the accused if the evidence were to be adduced in reply. The need for that direction might arise, for example, because the evidence relied on by the Crown is part of the facts and circumstances surrounding the killing and, therefore, would more appropriately be adduced in the Crown case. Another example may be where the evidence has a prejudicial effect that might operate unfairly against the accused if it were the last evidence to be heard by the jury. Yet another example may be where, although the evidence is tendered to rebut the defence, it is also relevant to either establish or disprove an element in the Crown case, such as an intention to kill.

21    But where the evidence is expert opinion given by a professional such as a psychiatrist or medical practitioner, and is relevant only because the defence intends to rely upon s 23A, I find it difficult to see how the intervention of the Court to interfere with the discretion vested in the Crown by s 151(3) could usually be justified let alone warranted.”

36. In R v Fraser, Howie J noted at [25] that it should be borne in mind that s.151(3) is permissive, in that it relieves the Crown of the restriction placed upon it by the common law, and that the onus is upon the defence to show why the Crown should be subject to an order preventing it from calling the evidence in reply. See also R v Kaewklom (No. 1) [2012] NSWSC 1103 at [35]-[36].

37. Howie J observed in R v Fraser at [27]:

“I do not believe that the accused is treated unfairly just because the Crown’s evidence on the issue of substantial impairment may be the last evidence adduced before the jury. It should be noted, of course, that in this State the accused has the right of last address to the jury.”

38. Finally, Howie J stated in R v Fraser at [29]:

“It will not be the case that a direction should be made under s 151(3) just because there has been evidence adduced in the Crown case that touches upon the issue raised by the defence. Section 151(3) is concerned with evidence that is “tendered to disprove the contention of substantial impairment” and not evidence that happens to disprove the contention but is not tendered for that purpose.”

39. The parties in the present trial invited the Court to apply the principles expressed in R v Fraser in determining the present application. I gratefully adopt the analysis of Howie J in R v Fraser for that purpose.

40. It was submitted for the Accused that questions asked by the Crown of a number of Crown witnesses should be taken by the Court to have been relied upon to disprove the contention of substantial impairment, so that the Crown should be required to call Dr Martin as a witness in its case in chief. Reference was made to questions asked of a number of lay witnesses concerning their observations of the Accused in the weeks leading up to 29 July 2014, as set out in a schedule provided to the Court (MFI58).

41. The Crown submitted that questions asked of these witnesses did not provide a foundation for the Court to decline to allow the Crown to call Dr Martin in reply.

42. I have considered the defence submission made by reference to a limited number of questions asked of Crown witnesses concerning the conduct or demeanour of the Accused. I am not persuaded that the Crown has adduced evidence to disprove the contention of substantial impairment, so as to warrant the Court requiring the Crown to call Dr Martin in its case in chief: R v Fraser at [29] (see [38] above).

43. The defence case with respect to substantial impairment will be articulated fully through the evidence of Dr Nielssen and Professor Greenberg. The Accused proposes to call expert evidence from forensic psychiatrists which is relevant only because the Accused intends to rely upon s.23A Crimes Act 1900: R v Fraser at [21] (see [35] above). It is appropriate, in the circumstances of this case, that the Crown be in a position to call Dr Martin in reply, so that his detailed evidence may be given against the background of the evidence adduced on behalf of the Accused from Dr Nielssen and Professor Greenberg.

44. As Howie J observed in R v Fraser at [27] (see [37] above), the Accused is not treated unfairly just because the Crown’s evidence on the issue of substantial impairment may be the last evidence adduced before the jury. As his Honour noted, the Accused has the right of last address to the jury in this State.

45. For these reasons, I was satisfied that the appropriate course in this trial was to permit the Crown to call evidence from Dr Martin in reply.

Decision that Extreme Provocation Should Not be Left to the Jury

46. After all evidence had been adduced, and before closing addresses, senior counsel for the Accused made an application on 23 May 2016 that I leave the partial defence of extreme provocation to the jury. Submissions were made on this issue (T1297-1312) together with written submissions on behalf of the Accused (MFI85) and the Crown (MFI86).

47. Following those submissions on 23 May 2016, I announced my decision declining to leave extreme provocation to the jury, with reasons to be published at a later time for this conclusion (T1313).

48. What follows constitutes my reasons for this ruling.

49. The extreme provocation issue had been raised and was the subject of a pretrial ruling given on 15 April 2016: R v Turnbull (No. 5) [2016] NSWSC 439. The Accused sought leave to appeal under s.5F Criminal Appeal Act 1912 with respect to that decision. On 19 April 2016, the Court of Criminal Appeal refused leave to appeal upon the basis that the appeal was incompetent. The Court of Criminal Appeal gave reasons for that decision on 10 June 2016: Turnbull v R [2016] NSWCCA 109.

50. In R v Turnbull (No. 5), I expressed the following conclusions (at [117]-[118]):

“117   The conclusions which I have reached in this judgment are that:

(a) the conduct of Mr Turner relied upon by the Accused and as identified in this judgment is not capable of constituting a serious indictable offence under s.13 Crimes (Domestic and Personal Violence) Act 2007 for the purpose of s.23(2)(b) Crimes Act 1900;

(b)   the application of the Accused to rely upon tendency evidence is declined.

118 As there is a possibility (perhaps theoretical) that the Accused will adduce evidence which is capable of raising the partial defence of extreme provocation under s.23 Crimes Act 1900 within the confines of this judgment, I cannot determine finally that such a partial defence should not be left to the jury. That said, I have had regard to all material before the Court at this pretrial hearing and, upon the construction of s.23 which I have adopted, it may be difficult to conceive a basis upon which this partial defence could be left to the jury.”

51. The four elements required to raise extreme provocation are contained in s.23(2) Crimes Act 1900 which provides:

“(2)    An act is done in response to extreme provocation if and only if:

(a)    the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and

(b)    the conduct of the deceased was a serious indictable offence, and

(c)    the conduct of the deceased caused the accused to lose self-control, and

(d)    the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.”

Submissions of the Accused

52. The Accused contended that the partial defence of extreme provocation arose from the evidence of the following circumstances:

1. the Accused lost control and shot Mr Turner in response to Mr Turner’s conduct, including his presence on Talga Lane on 29 July 2014 undertaking surveillance activities of “Colorado” without prior notice;

2. Mr Turner’s conduct from at least 21 August 2012 to 29 July 2014 amounted to a serious indictable offence, namely harassment pursuant to s.13 Crimes (Domestic and Personal Violence) Act 2007;

3. the conduct of Mr Turner could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on Mr Turner.

53. Submissions were developed on behalf of the Accused in support of each of the four elements under s.23(2)(a)-(d) Crimes Act 1900. It was submitted that sufficient evidence had been raised so that the partial defence of extreme provocation should be left to the jury.

54. I will not repeat here the detailed submissions in support of the Accused which were contained in MFI85. I will refer to parts of those submissions when expressing my conclusion.

Submissions for the Crown

55. The Crown addressed first the requirement that the conduct of the deceased be a serious indictable offence: s.23(2)(b). It was submitted that the Accused had failed to adduce evidence in support of the offence of stalking or intimidation with intent to cause fear of physical or mental harm contrary to s.13 Crimes (Domestic and Personal Violence) Act 2007.

56. The Crown submitted further that the Accused had failed to adduce evidence so as to raise for the jury’s consideration the further requirements that the conduct of the deceased caused the Accused to lose self-control (s.23(2)(c)) and that the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased (s.23(2)(d)).

57. Once again, I will not repeat the submissions made for the Crown in MFI86.

The Applicable Test

58. In support of the application that the partial defence of extreme provocation be left to the jury, the Accused bears an evidentiary onus to point to evidence from which it could be inferred that there is at least a reasonable possibility that the homicidal act of the Accused was provoked in accordance with the four elements contained in s.23 Crimes Act 1900: R v Youssef (1990) 50 A Crim R 1 at 3. I accept that caution must be exercised before declining to leave extreme provocation to the jury: Lindsay v The Queen [2015] HCA 16; 255 CLR 272 at 284 [27].

Decision on s.23(2)(b) Crimes Act 1900

59. I will commence with the requirement that the conduct of the deceased was a serious indictable offence: s.23(2)(b). This aspect was the principal focus of attention in the pretrial judgment: R v Turnbull (No. 5). Once again, argument focused on this aspect in submissions made at the close of the evidence.

60. I have regard to features of the offence under s.13 Crimes (Domestic and Personal Violence) Act 2007 which were set out in R v Turnbull (No. 5) at [13]-[16]. They need not be reproduced again in this judgment.

61. The Accused’s written submissions outlined the material upon which it was submitted that the serious indictable offence element of extreme provocation had been raised in this case.

62. Reference was made to evidence from the Accused that, on 23 April 2012, at a meeting on “Colorado”, he heard Mr Turner say to Grant Turnbull, “I have a strong dislike for your son Roger and I’m starting to get a strong dislike for you” (T877). The Accused said that Mr Turner appeared to be angry and agitated at this time (T878). Reliance was placed, as well, upon evidence of a conversation on 21 August 2012 between Mr Turner and Anna Simmons, in the presence of Gary Spencer. According to Mr Spencer, in the course of the conversation, Mr Turner said, “The Turnbulls have been clearing the property, contrary to the Native Vegetation Act. We’re going to get them for that. It is clear that they are doing this for money” (T1069).

63. Ms Simmons said that Mr Turner told her that “He was out to get the Turnbulls” (T1084). Ms Simmons was asked by the Crown in cross-examination (T1101):

“Q. I want to suggest to you that the next thing that was said was Mr Turner said, ‘The Turnbulls have been clearing contrary to the Native Vegetation Act, and we are going to get them for that’?

A. I'm not sure if they're the exact words, but in that nature.”

64. Accordingly, the account given by Mr Spencer, which formed the basis for the question put to Ms Simmons, may be used for present purposes.

65. Apart from these conversations, the Accused sought to rely, as well, upon events between November 2012 and 29 July 2014 as summarised in paragraph 26 of the written submission (MFI85). These events may be briefly summarised as follows:

1. the issue of remedial directions and notices to produce information, with that process being issued under the Native Vegetation Act 2003;

2. inspections from public streets, including the taking of photographs, of parts of “Colorado” and “Strathdoon”;

3. the use of surveillance flights on two occasions for the purpose of aerial photography of the properties;

4. entry onto the properties by Mr Turner pursuant to authority under the Native Vegetation Act 2003;

5. the issue of Summonses commencing criminal proceedings in the Land and Environment Court against the Accused, with those Summonses being filed in that Court on 13 December 2012 and 25 June 2014;

6. discussion with an employee of the Accused (Ivan Maas) in November 2012 for the purpose of Mr Turner seeking information from him about clearing activities being undertaken on the properties.

66. It was submitted for the Accused that Mr Turner’s “persistent contact” (as described in paragraph 26 of MFI85) “with the accused and his family and their properties may properly be described as harassment”. It was submitted that an inference is available that the contact was carried out with hostile intent to “get the Turnbulls”, so that it may be said that it was carried out with the intention of causing the Accused to fear mental harm to himself or a family member, or at least in the knowledge that it was likely to cause such harm.

67. I do not accept the submission of the Accused in this respect. A number of observations may be made with respect to the events relied upon by the Accused in support of the second element of extreme provocation.

68. Firstly, it is not contended that Mr Turner acted contrary to the Native Vegetation Act 2003. Indeed, various steps which are said to have been taken, involved the issue of process or other statutory action under the Native Vegetation Act 2003. The Summonses commencing two separate prosecutions were brought alleging offences under the Native Vegetation Act 2003, and were filed in accordance with appropriate procedures for the Land and Environment Court.

69. Secondly, the inspections by Mr Turner, about which complaint is made, were made either from public places (where authority and advance notice were not required) or in accordance with authority granted under the Native Vegetation Act 2003.

70. Thirdly, the use of surveillance flights, on the evidence at the trial, was a method of investigation used where unlawful clearing of native vegetation was alleged. It was, and remains, an understandable form of investigation given the need to acquire reliable objective evidence of the state of properties under scrutiny at different times. The same observation may be made with respect to observations of properties from ground level, including the taking of photographs and GPS waypoints to obtain an objective record of events on the properties at particular locations and at different times.

71. Fourthly, it was to be expected that activities on “Strathdoon” and “Colorado” would come under close scrutiny from late 2011 to July 2014, given the acquisition of the properties by the Accused’s family with the stated purpose of converting the two properties from grazing land to broadacre farms, a process which would involve substantial land clearing. As the evidence at the trial indicated, these activities attracted the attention and concern, not only of the OEH and Mr Turner, but Mr Fisher of the Commonwealth Department of the Environment: R v Turnbull (No. 11) [2016] NSWSC 783.

72. Fifthly, the conversations on 23 April 2012 and 21 August 2012, upon which the Accused relies, took place at times when Mr Turner was exercising his functions under the Native Vegetation Act 2003. That, after all, was the very reason why Mr Turner came into contact with the Accused and his family in the first place. It was the ongoing activities of the Accused and his family with respect to the properties and land clearing which attracted the ongoing, regular and understandable attention of the OEH.

73. Taking the comments made at their highest, Mr Turner is said to have expressed dislike for Roger Turnbull and other members of the Turnbull family. I do not see that this event raises for consideration an offence under s.13 Crimes (Domestic and Personal Violence Act) 2007. The conversation with Ms Simmons, in the presence of Mr Spencer, on 21 August 2012 involves a statement by Mr Turner that he proposed to act against the Accused for breaches of the Native Vegetation Act 2003. That is precisely what happened, when proceedings were commenced in the Land and Environment Court on 13 December 2012 for an offence by the Accused against s.12 Native Vegetation Act 2003 which had been committed between 1 November 2011 and 18 January 2012. In due course, the Accused pleaded guilty to this offence.

74. Where the conduct sought to be relied upon as an offence under s.13 Crimes (Domestic and Personal Violence) Act 2007 is that of a public officer exercising compliance or enforcement functions for the purpose of the Native Vegetation Act 2003, I consider that conduct is only capable of constituting a s.13 offence if it falls completely outside the lawful exercise of the public officer’s functions.

75. In R v Turnbull (No. 5), I observed at [77]:

“It is not sufficient to raise potential s.13 liability that the officer may have been rude, abrupt, perhaps even overzealous in the performance of functions in the course of employment. The issue under consideration here is not one of best practice, but whether conduct may constitute a serious criminal offence under s.13 Crimes (Domestic and Personal Violence) Act 2007”

76. Soon after, I said at [81]-[82]:

“81 It may be the case that a person who is being spoken to about possible breaches of the Native Vegetation Act 2003 (let alone being prosecuted for such alleged conduct), may feel harassed or under pressure or will experience other negative feelings towards the officer whose task it is to ensure compliance with these laws.

82   The material before the Court contains a number of examples of the person complaining about what happened to them, expressing conclusions or opinions that he or she felt harassed or threatened by the conduct. The expression of opinions or conclusions to this effect does not raise s.13. As I have said, it may be expected that the exercise of functions of a compliance officer (which may involve prosecution or other remedial action requirements), may upset persons and render them apprehensive as to what may happen. An explanation by the officer that penal consequences may result could likewise lead to concerns, stress or apprehension of adverse consequences. In my view, however, that is a long way from a viable basis upon which s.23(2)(b) could be raised by reference to a stalking or harassment offence under s.13.”

77. I adhere to the views expressed in these parts of R v Turnbull (No. 5).

78. I accept the Crown submission that there is no evidence of any conduct by Mr Turner, whether personally or as an officer of the OEH, that could be characterised as either stalking or harassment. Acts of Mr Turner in carrying out his lawful duties, even if they had the effect of making the Accused feel harassed in some way, or believe that he was being harassed in some way, could not constitute acts of stalking or harassment under s.13 Crimes (Domestic and Personal Violence) Act 2007.

79. The Accused has failed to discharge the evidentiary onus by pointing to evidence from which it could be inferred that there is at least a reasonable possibility that Mr Turner committed a serious indictable offence under s.13 Crimes (Domestic and Personal Violence) Act 2007. I accept the Crown submission that the Accused has failed with respect to both the physical and mental elements of that offence.

80. At the conclusion of R v Turnbull (No. 5) (see [50] above), I observed that the final and conclusive resolution of the question whether the partial defence of extreme provocation should be left to the jury, could only be made at the close of the evidence in the trial. That point has now been reached. I express my conclusion that the Accused has fallen far short of discharging the evidentiary onus in support of the second element of extreme provocation, so as to warrant that partial defence being left to the jury.

Other Aspects of s.23 Crimes Act 1900

81. It is, of course, for the Accused to discharge the evidentiary onus with respect to each of the four elements under s.23(2) Crimes Act 1900. Where the Accused has failed with respect to one of the four elements, that is fatal to the application to have extreme provocation left to the jury.

82. However, as I expressed some comments with respect to other elements of the partial defence in R v Turnbull (No. 5), and further submissions were made on those topics at the close of the evidence, I will say something briefly about them. Of course, the following comments are by way of obiter dicta only in the context of these proceedings.

83. In R v Turnbull (No. 5), I made some observations (at [94]) concerning the construction of the words “towards or affecting the Accused” in s.23(2)(a) of the Act. I expressed the view that “If Mr Turner was investigating other persons (such as relatives or friends of the Accused), the fact that the Accused may be upset or irritated by that action is not such as could fall within s.23(2)(a) of the Act”.

84. Upon further consideration, I accept that this comment probably places too narrow a construction on the words which form part of the first element of extreme provocation. It may be, in a particular case, that the act of an accused person which causes the death, may be in response to the conduct of the deceased towards or affecting the accused person directly or indirectly. That issue may await determination in a case where it is necessary to decide the question.

85. With respect to the third element in s.23(2)(c) (that the conduct of the deceased caused the Accused to lose self-control), the Crown submitted that, if this point had been reached, the Court should rule that the Accused had not discharged the evidentiary onus on this aspect as well. It was submitted for the Accused that the evidentiary onus had been discharged on this aspect because of the Accused’s evidence that when he saw the OEH vehicle on Talga Lane on the afternoon of 29 July 2014, “something snapped” (T888) before he took out his rifle in contemplation that he would shoot Mr Turner. Reliance was placed upon statements to a similar effect to the Accused’s wife and to Dr Nielssen, and upon Dr Nielssen’s opinion with respect to a loss of self-control, for the purpose of substantial impairment under s.23A Crimes Act 1900.

86. There is considerable force in the Crown submission that the Accused had not discharged the evidentiary onus on the third element of extreme provocation in this case. The protracted nature of the events on Talga Lane on 29 July 2014, and the actions of the Accused, do not assist him in an assertion of loss of self-control for the purpose of s.23(2)(c) of the Act. However, it is not necessary to proceed further with consideration of this element of extreme provocation, for the purpose of the present ruling.

87. With respect to the fourth element of extreme provocation, the “ordinary person” test contained in s.23(2)(d) of the Act, I expressed certain obiter views in R v Turnbull (No. 5) at [89]-[93].

88. It is clear that the removal of the words “in the position of the accused”, as part of the 2014 amendments to s.23, operate to narrow significantly the “ordinary person” test for the purpose of extreme provocation.

89. Senior counsel for the Accused made submissions concerning the “ordinary person” test, by reference to statements made by the High Court of Australia in Stingel v The Queen [1990] HCA 61; 171 CLR 312 and Masciantonio v The Queen [1995] HCA 67; 183 CLR 58. In considering these authorities, it is necessary to keep in mind the terms of the 2014 legislative changes, and the purpose or object of those changes as disclosed in the second reading speech: R v Turnbull (No. 5) at [55]-[66].

90. The attributes of the Accused, which could be taken into account in the past by operation of the words “in the position of the accused”, should now be placed to one side. What remains for consideration is whether the “ordinary person” test should take into account the age (in the sense of immaturity) of an accused person as being an attribute of the ordinary person: Masciantonio v The Queen at 66-67. There is force in the view that this aspect remains as part of the “ordinary person” test. This concept was not dependent upon the words “in the position of the accused”, which were removed by the 2014 amendments. Of course, age (in the sense of immaturity) would not have assisted the elderly Accused in this case.

81. However, the proper construction of this part of s.23 should await a case where the matter is fully argued and requires determination. It is sufficient to observe that, even on the most generous construction to the Accused of the “ordinary person” test contained in the fourth element of s.23(2)(d), he would experience significant difficulty in discharging the evidentiary onus in this case, so as to allow extreme provocation to be left to the jury.

Conclusion

92. It was for the reasons expressed in this judgment that I made the rulings on the topics set out at [2] of this judgment.

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Decision last updated: 23 June 2016