R v Turnbull (No. 4)

[2016] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 4) [2016] NSWSC 705
Hearing dates:	11 April 2016
Date of orders:	11 April 2016
Decision date:	11 April 2016
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Pretrial hearing to proceed for purpose of rulings on Accused’s tendency notice and the related issue of reliance upon extreme provocation.
Catchwords:	CRIMINAL LAW – murder trial - Accused seeks to raise partial defence of extreme provocation - Accused seeks to adduce tendency evidence with respect to extreme provocation - whether a pretrial hearing and rulings are appropriate - matters appropriate for pretrial hearing and rulings
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Native Vegetation Act 2003
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: In advance of the trial of the Accused, the Court has been dealing with pretrial issues with respect to subpoenas.

2. The Crown has submitted that there are further issues which are ripe for pretrial consideration and determination in the context of this trial.

3. Section 130 Criminal Procedure Act 1986 provides for a court to proceed and make determinations in advance of the empanelment of a jury. Section 139 Criminal Procedure Act 1986 provides a foundation for a court undertaking a pretrial hearing to, amongst other things, give a ruling or making a finding under s.192A Evidence Act 1995 as if the trial had commenced (s.139(3)(e)) and to give a ruling on any question of law that might arise at the trial (s.139(3)(g)). Section 192A Evidence Act 1995 provides for the court to make an advance ruling or finding with respect to the admissibility or use of the evidence proposed to be adduced, if the court considers it appropriate to do so.

4. The Accused has given notice of intention to rely upon the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900 and the partial defence of extreme provocation under s.23 Crimes Act 1900.

5. The Accused has given notice of intention to adduce tendency evidence for the purpose of s.97 Evidence Act 1995 (Exhibit A). Additional information with respect to that proposed course on behalf of the Accused is contained in correspondence providing particulars of the tendency notice (MFI21).

6. The foreshadowed reliance upon extreme provocation, as set out in the defence response for the purpose of s.143 Criminal Procedure Act 1986, indicates that the alleged provocation arises from intimidation or harassment by the deceased, Mr Turner, of the Accused and his family amounting to a serious indictable offence under s.13 Crimes (Domestic and Personal Violence) Act 2007.

7. The Crown has indicated an objection to evidence which is said to go to the partial defence of extreme provocation. It has submitted that it is sufficiently raised by the Accused’s tendency notice so as to require determination, in circumstances where s.97(1)(b) Evidence Act 1995 requires the Court to form a view as to whether the proposed evidence has significant probative value. The Crown submits that an understanding of what is involved in extreme provocation is an essential part of that process.

8. It has been submitted for the Accused that the Court has jurisdiction to proceed down this path, although questions have been raised as to the appropriateness of that course, if what the Crown is seeking to do is engage in a process of consideration of a question of mixed fact and law or a question of fact alone.

9. I am satisfied that the issue is sufficiently crystallised for the purpose of the use of s.139 Criminal Procedure Act 1986 and s.192A Evidence Act 1995 by way of the tendency notice served for the Accused. That in itself requires the Court to make a determination about s.23 in the context of this case.

10. Beyond that, however, it seems to me that there is also, for the purpose of s.139(3)(g), a question of law which is raised. Section 23(2) Crimes Act 1900 sets out the parameters of the partial defence of extreme provocation enacted by the Parliament of this State in the middle of 2014. On its face, it differs significantly from the previous law of provocation.

11. In the present case, it appears to be the submission of the Accused that s.23(2)(b) is satisfied by a contention that Mr Turner conducted himself in such a way as to constitute the offence of stalking or intimidation under s.13 Crimes (Domestic and Personal Violence) Act 2007. In this case, it appears that Mr Turner was acting as an investigating officer for the purpose of the Native Vegetation Act 2003. There seems to be an inevitable legal question as to how any of his conduct could constitute a serious indictable offence, if it is said to have been conduct which occurred in the course of duties under the relevant legislation.

12. This is an unusual case. What the relevant legal formula is for fashioning this test in the context of this case is a matter which, in my view, is properly dealt with at this point. Apart from the tendency notice, there is also the question of any admissibility issues which may arise.

13. There are other features of s.23 which arise as well. On its face, it would seem to involve a purely objective test, unlike its predecessor in the area of provocation. How the Court would formulate the appropriate legal test under s.23 is a significant matter. It is, of course, a matter of some practical significance here because a formulation of significant probative value requires a determination as to relevance, which itself involves some understanding of how it is said to be relevant and to what legal issue.

14. For the purpose of this threshold ruling, I do not intend to proceed further. I am sufficiently satisfied that there are issues which are appropriate for consideration at this stage and which ought be the subject of a pretrial hearing and determination.

[Further Submissions]

15. The question has arisen as to what should happen to the jury panel in circumstances where this trial is scheduled to otherwise commence on Wednesday morning.

16. The Accused seeks to rely upon this partial defence, which is novel and has features which are now crystallised in the way I have outlined in this judgment. This is a matter which is of importance to the parties and to the community. The Court has an obligation to give proper regard to matters that are sought to be argued. That requires an opportunity to engage with counsel and consider the matters which are advanced.

17. If the jury panel is to be put back once again, doing it by increments of a day in the end serves no purpose. I am quite satisfied, at this stage, that what is involved in relation to this pretrial hearing will not be resolved in one day. I would be surprised if the hearing is resolved in one day, let alone any determination by me.

18. In my view, the appropriate course is to direct that the jury panel be put back until next Monday, 18 April, and I so direct.

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Decision last updated: 09 June 2016