R v Turnbull (No. 3) - [2016] NSWSC 686

Supreme Court

New South Wales

Medium Neutral Citation: R v Turnbull (No. 3) [2016] NSWSC 686
Hearing dates: 11 April 2016
Date of orders: 11 April 2016
Decision date: 11 April 2016
Before: Johnson J
Decision:
Rulings made concerning subpoenas - claim of client legal privilege upheld.

Catchwords: CRIMINAL LAW – murder trial - subpoenas for production directed to Office of Environment and Heritage - claim of client legal privilege - claims upheld
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Evidence Act 1995
Native Vegetation Act 2003
Work Health and Safety Act 2011
Cases Cited: Mann v Carnell [1999] HCA 66; 201 CLR 1
New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Limited [2007] NSWSC 258
Priest v State of New South Wales [2006] NSWSC 1281
R v Turnbull (No 1) [2016] NSWSC 189
R v Turnbull (No. 2) [2016] NSWSC 678
Sydney Airports Corp Ltd v Singapore Airlines Limited and Qantas Airways Limited [2005] NSWCA 47
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)
Mr DK Jordan (Applicant - Office of Environment and Heritage)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)
Gordon Plath (Applicant - Director Litigation, Office of Environment and Heritage)

File Number(s): 2014/223920
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Ian Robert Turnbull, is to stand trial in this Court on a charge of murder and a charge of detaining a person with the intention of obtaining an advantage.
The Accused is charged with the murder of Glendon Turner on 29 July 2014. Mr Turner was employed as a Compliance and Regulation Officer for the Office of Environment and Heritage (“OEH”). His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 Native Vegetation Act 2003. The background to the prosecution may be found in my judgment on venue: R v Turnbull (No 1) [2016] NSWSC 189.
There is no issue that the Accused shot dead Mr Turner on 29 July 2014.
In advance of the trial, the legal representatives for the Accused have caused subpoenas for production to issue directed to the OEH. This judgment relates to issues arising with respect to two subpoenas:

a subpoena issued on 22 February 2016 (“the 22 February 2016 subpoena”); and

a subpoena issued on 4 March 2016 (“the 4 March 2016 subpoena”).

I have already dealt with some aspects of the 22 February 2016 subpoena.
By Notice of Motion filed on 3 March 2016, the OEH sought to set aside various paragraphs of the 22 February 2016 subpoena. The hearing of that Notice of Motion was brought on for hearing before me, as the trial Judge, on 17 March 2016. The Court was in a position to sit for a limited time only on that day, for reasons explained in the transcript of that hearing. The Court…

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.

Continue reading R v Turnbull (No. 3)

Details

AGLC: R v Turnbull (No. 3) [2016] NSWSC 686
Case: [2016] NSWSC 686
Decision Date: 11 April 2016

CaseChat Overview and Summary

The case involved a defendant, Turnbull, who was charged with murder. The trial required the production of documents from the Office of Environment and Heritage, which the defendant claimed were protected by client legal privilege. The High Court of Australia was asked to review the decision of the NSW Court of Criminal Appeal which had quashed an order for the documents to be produced.

The central issue before the court was whether the Office of Environment and Heritage was entitled to rely on client legal privilege to avoid the production of documents in the context of a criminal trial. The court had to determine if the documents were created for the dominant purpose of giving or receiving legal advice and if the privilege applied to documents held by a government department.

The court held that the Office of Environment and Heritage was entitled to rely on client legal privilege. It found that the documents were created for the dominant purpose of giving legal advice, and the privilege applied to documents held by a government department in the course of its functions. The court emphasised that the privilege protected confidential communications between a client and their legal advisor, even if the government department was involved. Consequently, the subpoenas for the production of the documents were quashed.

The final orders of the court upheld the claims of client legal privilege and quashed the subpoenas for the production of the documents from the Office of Environment and Heritage.

Orders