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

JOHNSON J: In advance of the trial of the Accused, the Court has been dealing with pretrial issues with respect to subpoenas.
The Crown has submitted that there are further issues which are ripe for pretrial consideration and determination in the context of this trial.
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.
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.
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).
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.
The Crown has indicated an objection to evidence which is said to go…

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 705
Decision Date: 11 April 2016

CaseChat Overview and Summary

The case before the court involved the accused, who was standing trial for the murder of another individual. The accused sought to introduce evidence of partial defence of extreme provocation, and additionally, sought to present tendency evidence in relation to this defence. The case was heard by the Supreme Court of Victoria. The primary focus of the court was to determine whether a pretrial hearing and rulings were appropriate, and if so, what matters were suitable for such a hearing and rulings.

The central legal issues before the court involved the admissibility of the accused's proposed evidence and the procedural steps necessary for the trial to proceed fairly and efficiently. The court had to consider the appropriate scope and timing of any pretrial hearings and rulings, particularly concerning the admissibility of the accused's tendency evidence in relation to extreme provocation. The court also needed to address whether certain preliminary determinations were required before the main trial could commence.

In addressing these issues, the court considered the principles of fairness and the efficient administration of justice. The court held that a pretrial hearing was necessary to resolve certain matters, including the admissibility of the accused's tendency evidence in relation to extreme provocation. The court ruled that it was appropriate to conduct a pretrial hearing to determine the admissibility of this evidence, as well as other procedural matters that could impact the fairness and efficiency of the trial. The court provided specific directions for the scope and timing of the pretrial hearing, ensuring that it would address all relevant issues before the main trial proceeded.

The court's ruling clarified the procedural steps to be taken before the trial could commence, ensuring that all relevant evidence and issues were appropriately addressed in a fair and timely manner. The final orders included directions for a pretrial hearing to be held to determine the admissibility of the accused's tendency evidence in relation to extreme provocation, as well as other procedural matters necessary for the efficient administration of the trial.

Orders