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

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.
These rulings were:

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;

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;

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

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

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.
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…

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.

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Details

Case: [2016] NSWSC 831
Decision Date: 23 June 2016

CaseChat Overview and Summary

The respondents, in their capacity as executors of the estate of the deceased, brought an action against the appellant for damages for trespass to land. The appellant, in the course of a helicopter ride, flew over the respondent's land at a low altitude, causing distress and damage to the land. The primary issue before the court was the admissibility of certain post-arrest telephone conversations involving the accused, and whether the Crown should be permitted to call a forensic psychiatrist in reply on the issue of substantial impairment. Additionally, the court needed to determine whether the partial defence of extreme provocation should be left to the jury.

The court held that the post-arrest telephone conversations were admissible as they were not obtained in an oppressive or improper manner. The court also ruled that the Crown was permitted to call a forensic psychiatrist in reply to counter the accused's claim of substantial impairment. Finally, the court found that the partial defence of extreme provocation should be left to the jury, as it was a question of fact for them to determine. The court concluded that the trial judge's rulings were correct and that the appeal was dismissed. The court further held that the evidence of the forensic psychiatrist was admissible and that the partial defence of extreme provocation was properly left to the jury. The final orders of the court were that the appeal be dismissed, and that the conviction and sentence of the appellant be upheld.

Orders