R v Turnbull (No. 5)

[2016] NSWSC 439

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Turnbull (No. 5) [2016] NSWSC 439
Hearing dates:	11 April 2016, 12 April 2016
Decision date:	15 April 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. The conduct of the deceased 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. 2. The application of the Accused to rely upon tendency evidence is declined.
Catchwords:	CRIMINAL LAW – pre-trial hearing – whether partial defence of extreme provocation is raised –murder – s.23 Crimes Act 1900 – whether the alleged conduct of the deceased was capable of constituting a serious indictable offence – s.13 Crimes (Domestic and Personal Violence) Act 2007 – consideration of Parliamentary intention of Crimes Amendment (Provocation) Act 2014 – whether the conduct of the deceased connected with investigations of alleged land clearing contrary to the Native Vegetation Act 2003 could amount to a serious indictable offence CRIMINAL LAW – pre-trial hearing – tendency evidence –defence seeking to adduce tendency evidence in respect to the deceased – relevance – significant probative value
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Crimes Amendment (Provocation) Act 2014 Criminal Procedure Act 1986 Evidence Act 1995 Interpretation Act 1987 Native Vegetation Act 2003 Police Act 1990 Evidence Regulation 2015
Cases Cited:	AW v R [2009] NSWCCA 1 Heron v The Queen [2003] HCA 7; 77 ALJR 908 Lindsay v The Queen [2015] HCA 16; 255 CLR 272 R v Ling (1996) 90 A Crim R 376 R v Martin [2000] NSWCCA 332 R v Peisley (1990) 54 A Crim R 42 R v Turnbull (No. 4) [2016] NSWSC 705
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: The Accused, Ian Robert Turnbull, is to stand trial in this Court upon an indictment containing two counts:

1. That on 29 July 2014, at Moree in the State of New South Wales, he did murder Glendon Turner.

2. That on 29 July 2014, at Moree in the State of New South Wales, he did, without consent, detain Robert Strange with the intention of obtaining an advantage, namely, the killing of Glendon Turner.

2. In a Defence Response filed on 2 March 2016 for the purpose of s.143 Criminal Procedure Act 1986, the Accused indicated the nature of his proposed defences to the murder count as being:

1. substantial impairment by abnormality of mind under s.23A Crimes Act 1900;

2. extreme provocation under s.23 Crimes Act 1900 arising from intimidation/harassment by the deceased of the Accused and his family amounting to a serious indictable offence pursuant to s.13 Crimes (Domestic and Personal Violence) Act 2007.

3. On 2 March 2016, the Accused also gave notice of intention to adduce evidence of substantial impairment in accordance with s.151 Criminal Procedure Act 1986.

4. On 15 March 2016, the Accused gave notice to the Crown of intention to adduce tendency evidence under s.97 Evidence Act 1995. Further particulars in support of the tendency notice were provided to the Crown on 4 April 2016. As will be seen, the Accused’s proposed reliance upon tendency evidence is intertwined with the foreshadowed partial defence of extreme provocation under s.23 Crimes Act 1900.

5. It is expected that a jury will be empanelled on 18 April 2016 for the trial of the Accused.

The Present Pretrial Hearing

6. In advance of the trial, a number of pretrial issues were raised. After the Court had ruled upon issues arising with respect to subpoenas issued on behalf of the Accused, the Crown submitted that a pretrial hearing should proceed with respect to the Accused’s intended reliance upon extreme provocation and the tendency notice served by the Accused in connection with that issue.

7. After hearing submissions, I ruled on 11 April 2016 that certain issues were appropriate for pretrial rulings: R v Turnbull (No. 4) [2016] NSWSC 705. I observe that the partial defence of extreme provocation under s.23 Crimes Act 1900 came into existence on 13 June 2014. The provision only applies to events occurring after that date. The present trial appears to be the first case in which the proper construction and application of s.23 falls for consideration.

8. Further, as will be seen, the context in which extreme provocation is sought to be raised in this case is highly unusual. I formed the view that a combination of factors rendered this matter appropriate for a pretrial hearing for the purpose of ss.130 and 139 Criminal Procedure Act 1986 and s.192A Evidence Act 1995.

9. The matters to be addressed in this judgment arising from the pretrial hearing are as follows:

1. a ruling on a question of law that might arise at the trial, being the proper construction of s.23 Crimes Act 1900: s.139(3)(g) Criminal Procedure Act 1986;

2. a ruling concerning the admissibility or use of tendency evidence proposed to be adduced by the Accused: s.139(3)(e); s.192A Evidence Act 1995;

3. arising from the ruling concerning the proper construction of s.23, a ruling concerning the possible operation of s.23 in the context of this trial upon the Court’s present state of knowledge of the matter.

10. At one point, the Crown submitted that the Court would be in a position to, in effect, make a final ruling that the partial defence of extreme provocation was not available to the Accused in the circumstances of this case. The Accused has elected not to place before the Court, at this pretrial hearing, the entirety of factual matters which may bear upon this topic. The Court has a considerable body of material provided by the Crown (and referred to by the Accused), to which reference will be made. I will proceed to consider known aspects of the case, including material which the Accused has put before the Court on the tendency issue, for the purpose of this judgment.

11. I am conscious that caution must be exercised in taking a step in advance of the trial which would operate to reduce, or even remove, the basis upon which an accused person may seek to rely upon a partial defence such as extreme provocation: Lindsay v The Queen [2015] HCA 16; 255 CLR 272 at 284 [27]-[28]. I am satisfied, however, that in circumstances where a new statutory provocation provision is being considered for the first time, and where the context in which it is said to arise is most unusual, that the course which I am taking is both open to the Court and appropriate.

Relevant Statutory Provisions

12. Section 23 Crimes Act 1900, as enacted in 2014, is in the following terms:

“23 Trial for murder - partial defence of extreme provocation

(1)    If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.

(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.

(3)    Conduct of the deceased does not constitute extreme provocation if:

(a)    the conduct was only a non-violent sexual advance to the accused, or

(b)    the accused incited the conduct in order to provide an excuse to use violence against the deceased.

(4)    Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.

(5)    For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.

(6)    For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.

(7)    If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.

(8)    This section does not exclude or limit any defence to a charge of murder.

(9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.

(10)    In this section:

act includes an omission to act.”

13. The serious indictable offence upon which the Accused seeks to rely, for the purpose of s.23(2)(b) Crimes Act 1900, is 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. Section 13 provides:

“13    Stalking or intimidation with intent to cause fear of physical or mental harm

(1)    A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2)    For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3)    For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5)    A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.”

14. “Serious indictable offence” is defined in s.4 Crimes Act 1900 as being “an indictable offence that is punishable by imprisonment for life or for a term of five years or more”. The term “indictable offence” is defined in s.3 Criminal Procedure Act 1986 as “an offence (including a common law offence) that may be prosecuted on indictment”. An offence under s.13 Crimes (Domestic and Personal Violence) Act 2007 is a Table 2 indictable offence to be dealt with summarily, unless the prosecutor elects to have the offence concerned dealt with on indictment: s.260(2) Criminal Procedure Act 1986; Clause 2, Table 2, Schedule 1, Criminal Procedure Act 1986.

15. As a s.13 offence is punishable by a maximum penalty of imprisonment for five years, it reaches the minimum threshold and so constitutes a serious indictable offence.

16. Sections 7 and 8 Crimes (Domestic and Personal Violence) Act 2007 define the terms “intimidation” and “stalking”. Sections 7 and 8 provide:

“7    Meaning of ‘intimidation’

(1)    For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

(2)    For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

8    Meaning of ‘stalking’

(1)    In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.

(2)    For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.”

Factual Matters

17. Before proceeding further, some factual background is required. What follows is drawn from the documents tendered by the Crown at this pretrial hearing, being the documents in Exhibit PTA and the revised Crown Case Statement (Exhibit PTB). The account of events on 29 July 2014 represents the Crown case as drawn from Exhibit PTB.

18. The incident in question occurred in the late afternoon of 29 July 2014 on public land adjacent to Talga Lane, a public road in the Croppa Creek area of northern New South Wales, about 60 kilometres north of Moree.

19. The Accused was 79 years old at the time of the incident. He is a farmer and land owner. The Accused had been prosecuted for illegal land clearing under s.12 Native Vegetation Act 2003, said to have occurred between November 2011 and January 2012. The Crown alleges that the Accused was deeply angered by the prosecution, which was a lengthy and expensive process, and that the Accused resented what he saw as interference with his farming operation.

20. Mr Turner, the deceased, was 51 years old at the time of the incident. He was employed as a Compliance and Regulation Officer for the Office of Environment and Heritage, Department of Premier and Cabinet (“OEH”). His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 of the Native Vegetation Act 2003.

21. The Crown alleges that Mr Turner had been involved in monitoring illegal clearing on the Accused’s property, and had prosecuted the Accused in the two years running up to the incident. It is alleged that the Accused resented the prosecution and that there was ongoing animosity on behalf of the Accused towards Mr Turner.

22. The Crown alleges that, in the course of an incident on 28 June 2012, the Accused threatened Mr Turner. As a result of this alleged threat by the Accused, Mr Turner had been instructed not to have further contact with him.

23. On 13 December 2012, the OEH commenced a prosecution against the Accused in the Land and Environment Court for one offence under s.12 Native Vegetation Act 2003, in relation to the alleged unlawful clearing of native vegetation on the properties “Colorado” and “Strathdoon” said to have occurred between 1 November 2011 and 18 January 2012. On about 17 May 2013, the Accused pleaded guilty before the Land and Environment Court to this charge. Between 4 and 7 March 2014, a sentencing hearing took place in the Land and Environment Court, with judgment being reserved at the conclusion of that hearing.

24. On 25 June 2014, OEH commenced prosecutions against the Accused and Cory Turnbull in the Land and Environment Court for the alleged unlawful clearing of native vegetation on “Strathdoon” between 18 January 2012 and 4 September 2012.

25. On the afternoon of 29 July 2014, Mr Turner and a work colleague, Robert Strange, were performing duties in the Croppa Creek area. Mr Turner and Mr Strange were en route to a site unrelated to the Accused. As they travelled along Talga Lane, the Crown alleges that they noticed a number of fires burning, consisting of cleared trees, on a property owned by the Accused’s son, Grant Turnbull, though the Crown asserts that the Accused is believed to have had some financial interest in that property as well.

26. At about 4.56 pm, the vehicle containing Mr Turner and Mr Strange passed another vehicle driven by Ivan Maas, an employee of the Accused. The Crown alleges that Mr Maas recognised Mr Turner, and soon after called a colleague, Scott Kennett, indicating that he had seen Mr Turner in that location.

27. The Crown alleges that between 5.00 pm and 5.05 pm, Mr Kennett advised the Accused that Mr Turner and another person were in the area and indicated their location.

28. Soon after 5.00 pm, Mr Turner and Mr Strange stopped on County Boundary Road to take some photographs and GPS way points. Shortly before 5.15 pm, Mr Turner and Mr Strange drove to a point about 500 metres from the scene of the subsequent shooting and stopped. Mr Strange took a number of photographs and the men returned to their vehicle.

29. At about 5.22 pm, the Accused arrived at the scene in a Nissan Patrol vehicle. Based on the account of Mr Strange, the Crown alleges that Mr Turner and Mr Strange were looking onto the property when a vehicle pulled up behind them. Mr Strange saw the Accused standing near the vehicle about 10 metres away.

30. The Accused raised a .22 calibre rifle and shot Mr Turner once in the neck. Mr Turner dropped to one knee and said “Ian, what are you doing?”. Mr Turner managed to stand up, but was shot a second time in the upper-left chest region. This gunshot wound caused extra-thoracic soft-tissue damage and did not enter the thoracic cavity. The Crown contends that this would have significantly incapacitated Mr Turner through muscular-skeletal damage to the upper left limb. Mr Turner stumbled towards his work vehicle to take cover from further gun fire.

31. The Crown alleges that the Accused then said “You have ruined the Turnbulls, you have had planes flying over here taking photographs, continually harassing us and taking us to court”. Mr Strange then said “Sir, he is hurt and I need to get him help. Please let me take him and get some help”.

32. The Accused replied, “Toss that camera and the only way he is going is in a body bag”. Mr Strange tossed the camera away and said, “Sir, enough is enough, put the gun down we are only doing our job, this is stupid let me get him some help”. The Accused replied, “He isn’t letting us do our job”.

33. Mr Strange attempted to get closer to the Accused, but the Accused pointed the rifle at Mr Strange and said, “You back up or you’ll get one in the heart”. Mr Turner then said, “Come on Ian, this is ridiculous”. The Accused then said, “You are continually harassing us turning up here whenever you like trying to get us”.

34. The Accused then walked around the vehicle attempting to get a clear shot at Mr Turner. Mr Strange instructed Mr Turner where to move to avoid the Accused. This continued over a period of some time. Handprints in blood were deposited along the length of the vehicle.

35. At about 5.32 pm, Mr Strange attempted to discreetly call “000” on his mobile phone, but there was no reception. Mr Strange then said, “Put the gun down, put the gun down, there is no need for this you have hurt him, he has a young family and is only doing a job he is told to do. Please put the gun down and let me take him to a hospital. I am begging you”.

36. The Accused replied, “I have a family too, he is only going in a body bag. I will kill him and that will stop him”. Mr Strange said, “That is silly, sir there is no need for this, I’m begging you let me get him some help”.

37. Mr Strange again attempted to get closer to the Accused, but the Accused pointed the rifle directly at Mr Strange and the Accused said, “I said get back or I will shoot you too, you will just be back again and again and I’m putting an end to it”. Mr Turner then said, “I won’t be back I can assure you”.

17. The Accused then said, “No, you won’t be back because you are going in a body bag”. As he did so, the Accused moved around the vehicle towards the front and Mr Turner moved to the rear of the vehicle and removed an emergency beacon which was activated at 5.43 pm.

18. Mr Strange then said, “Sir, please this is not helping anyone, put the gun down and let us go”. Mr Strange again tried to get closer to the Accused, but again the Accused pointed the rifle at Mr Strange and said, “You will be shot if you don’t back up”.

19. The Accused then walked towards the rear of the vehicle pointing the rifle towards Mr Turner. He then fired two shots through the canopy window, shattering the glass. One bullet hit Mr Turner in the chest area and penetrated his clothing, but did not penetrate his skin. It caused a minor abrasion and it seems likely the velocity of the projectile was greatly reduced by impact upon the glass. The second of those two shots did not hit Mr Turner.

20. The Accused continued to point the rifle at Mr Turner and moved to the rear of the vehicle in an attempt to get a clear path to him. Mr Strange then said “Sir, I’m begging you, put the gun down and let me take him to hospital, you have hurt him and he needs some help”.

21. By this stage, the Accused was at the rear of the vehicle and fired another shot in the direction of Mr Turner. Mr Turner attempted to run towards the tree line and the boundary to escape from the Accused, but the Accused shot him in the back and Mr Turner fell to the ground. That shot was fatal. It struck the left side of Mr Turner’s back causing the following injuries:

1. communication of the head of the fifth left rib at the spinal column;

2. an aortic laceration;

3. left upper lobe of lung laceration;

4. left haemothorax (four litres).

43. The fatal shot was fired between approximately 5.45 pm and 5.55 pm.

44. The Crown alleges that the Accused then said to Mr Strange “You can go now. I’ll be at home waiting for the police”. The Accused then got in his vehicle and left the scene.

45. Mr Turner died before emergency services arrived at the scene.

46. The Crown alleges that, on his way home, the Accused communicated with Mr Kennett over the two-way radio, saying to him “You there Scott? I’ve just shot Turner, I think he’s dead. I’m going home to wait for the police”.

47. The Crown alleges that the Accused, in the course of a conversation that evening as to why he had shot Mr Turner, said “I had no choice, he was ruining my family and it was never going to end”.

48. The Accused was arrested by police later that evening.

49. Subsequent investigations revealed a Browning .22 pump-action rifle inside the rear tray of the Accused’s Nissan Patrol vehicle. That rifle was registered in the name of the Accused. A ballistics report subsequently matched to that rifle the shell cases found at the scene of the shooting.

Evidence of Contact Between the Accused and Mr Turner

50. The preceding recital of events provides some basic information concerning the association between the Accused and Mr Turner. The Crown tendered, on this hearing, material which shed further light on any association between the two men and contact between them.

51. A précis of notes in Mr Turner’s compliance notebooks records a number of telephone calls and visits by Mr Turner to the Accused between August 2011 and November 2012 (Exhibit PTA, Tab 4).

52. A chronology of events is set out in the statement dated 22 March 2016 of Mr Terrence Bailey, the Chief Executive, OEH (Exhibit PTA, Tab 8). This chronology sets out inspections by Mr Turner, and other action said to have been taken by Mr Turner with respect to the Accused and his properties (or properties of his family members) between April 2011 and June 2014.

53. Based upon a review of documents maintained by Mr Turner, Detective Senior Constable Timothy McCarthy states that there is no sign of any direct contact (by telephone, in person or via email or other written document) between Mr Turner and the Accused after 28 June 2012 (Exhibit PTA, Tab 9).

54. In a statement dated 6 April 2016, Mr Arthur Snook of the OEH refers to enquiries and examinations undertaken by him. He states that he is unable to find any records that indicate contact between Mr Turner and the Accused after 28 June 2012. Mr Snook states that he was Mr Turner’s direct supervisor at the OEH between June 2013 and 29 July 2014 and that, during this time, he was not aware of any contact at all between Mr Turner and the Accused (Exhibit PTA, Tab 10).

Extreme Provocation in s.23 Crimes Act 1900

55. Section 23 in its present form was inserted by the Crimes Amendment (Provocation) Act 2014. Counsel for both parties invited the Court to have regard to the second reading speech of the then Attorney General, Mr Hazzard, delivered in the Legislative Assembly on 8 May 2014.

56. I am satisfied that a proper basis exists for considering the second reading speech: s.34 Interpretation Act 1987. This step will also assist the Court to understand the purpose or object underlying the new s.23: s.33 Interpretation Act 1987.

57. In the second reading speech, the Attorney General observed that the 2014 amendments constituted the Government’s response to the Legislative Council Select Committee on the Partial Defence of Provocation, which had “unanimously recommended retaining, but significantly restricting, the partial defence”.

58. The Attorney General described s.23(2) as “setting out a four staged test”.

59. With respect to s.23(2)(a), the Attorney General said:

“The first threshold is set out in proposed section 23 (2) (a), which requires that the act causing death was in response to conduct towards or affecting the accused.”

60. The Attorney General then referred to s.23(2)(b):

“Proposed section 23 (2) (b) requires that the ‘conduct’ relied upon must amount to a serious indictable offence. A serious indictable offence is any offence which, when dealt with on indictment, carries a maximum penalty of five years or more imprisonment. The word ‘conduct’ is not otherwise defined. This threshold ensures that the jury must be satisfied there is a reasonable possibility that the conduct of the deceased was behaviour that the community and Parliament have already determined is so serious that it attracts a significant criminal penalty. This reflects the view that, in contemporary society, there is an expectation that people otherwise faced with offensive, insulting or upsetting conduct should not contemplate homicide or inflicting really serious injury.

The requirement that the behaviour of the deceased amount to a serious indictable offence will also ensure that members of the community who are lawfully going about their business do not inadvertently ‘provoke’ another person to form an intention to kill or seriously injure them. What this threshold also provides of course is that merely leaving a relationship or infidelity will never provide a foundation for the partial defence because every member of the community has the right to exercise his or her personal autonomy in this way. As a select committee member, the Hon. Trevor Khan, stated in the other place previously the problem with a list of excluded behaviour was that if the excluded conduct took place in the context of other provocative behaviour it would be highly artificial and difficult to exclude, for example, allegations of infidelity.

Despite this restriction, victims of domestic violence will be able to rely upon the partial defence in appropriate cases. Domestic violence, particularly long-term abuse, will generally involve conduct involving serious indictable offences, such as the range of assaults in the Crimes Act 1900. Even where abuse is not physical, but psychological, it may amount to the serious indictable offence of stalking or intimidation set out in section 13 of the Crimes (Domestic and Personal Violence) Act 2007. These offences are committed where the perpetrator's conduct is intended to cause the victim to fear physical or mental harm to themselves or another person with whom they have a domestic relationship. These offences are further defined in sections 7 and 8 of that Act to encompass a broad range of behaviours. As sections 7 and 8 make clear, they also envisage the introduction of evidence of past violent conduct, particularly where it involves a domestic violence offence. The concerns of stakeholders that victims of domestic violence may be prejudiced is also addressed by the continued recognition in proposed section 23 (4) that the conduct relied upon need not necessarily have occurred immediately before the act causing death.”

61. With respect to s.23(2)(c), the Attorney General said:

“Proposed section 23 (2) (c) sets out the third step in establishing provocation, namely that the conduct of the deceased caused the accused to lose self-control. The bill retains a loss of self-control as the partial defence's central element. Replacing this with the requirement that the accused felt a ‘justifiable sense of being seriously wronged’, as recommended by the select committee, could significantly expand the use of the law of provocation, contrary to the committee's policy intent. In particular, if there was no requirement for loss of self-control, this could open up the use of the partial defence to situations involving a premeditated plan to

kill. The partial defence should not be available in that situation. If satisfied the accused did lose self-control then the jury moves on to the final limb of the test in proposed section 23 (2)(d).”

62. The Attorney General turned to s.23(2)(d) and said:

“Proposed section 23 (2) (d) further tightens the test by requiring the jury to apply a purely objective test. They must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The removal of the words in the existing section ‘in the position of the accused’ will have the effect of removing the need for the jury to assume that the ordinary person has been provoked to the level that the accused was, because they will be determining whether an ordinary person could have been so far provoked as to have lost self-control and formed the requisite intent when faced with that conduct. This will simplify the jury's task and provide for a greater focus on ordinary community standards. Although the select committee did not propose this change, it is consistent with its intention to restrict the use of the partial defence, reduce its complexity and bring it into line with community standards. It is hoped that this focus will ensure that cases such as that of Singh, which caused justifiable outrage in the community, will be a thing of the past.”

63. A little later, the Attorney General said:

“I stress that the use of the partial defence requires, first, that the provocative conduct amount to a serious indictable offence; secondly that the accused lost self-control in response to it and; thirdly, that the behaviour constituting the serious indictable offence was so extreme that an ordinary person could also have lost self-control and formed the requisite intent.”

64. The Attorney General said:

“New section 23 (3) (b) also excludes the use of the defence in situations where the accused has incited the provocative conduct in order to use violence in response. New section 23 (4) provides that conduct of the deceased may constitute extreme provocation even if it did not occur immediately before the act causing death. As mentioned previously, this will provide protection for victims of long-term abuse in slow burn situations and is consistent with the current section 23 (2) (b).”

65. The Attorney General observed that the Bill was “intended to deliver a limited and targeted partial defence”.

66. In concluding the second reading speech, the Attorney General said:

“The select committee also recommended that section 23 explicitly require that trial judges leave the partial defence to a jury only where there is reasonable evidence of it. Under common law only where there is reasonable evidence of partial and full defences must the trial judge explain the relevant law and direct the jury to consider it in reaching its verdict. To legislate this in relation to the partial defence of provocation alone would again serve only to complicate and confuse matters.”

Resolution of Issues Concerning Construction and Operation of s.23 in this Case

67. Given the constraints of time to determine the issues raised on this pretrial hearing, I will not recount in any detail the submissions of the parties on the issues raised for consideration. Written submissions were provided by the Crown (MFIs 22 and 24) and on behalf of the Accused (MFI 23). The oral submissions of counsel are contained in the transcript of the pretrial hearing (PT96-161). Further written submissions were provided by the Crown (MFI 25) and the Accused (MFI 26) after the Court had reserved its decision on these matters. I have had regard to all submissions.

68. It is appropriate to move directly to the real issues in contest between the parties concerning the operation of s.23 Crimes Act 1900 in this case.

69. It should be kept in mind that for extreme provocation to be left to the jury the question is whether there is any evidence that the act causing death was in response to extreme provocation: s.23(7). This requirement relates back to the four elements of extreme provocation contained in s.23(2) of the Act. There must be some evidence of each of the elements for extreme provocation to be left to the jury.

Submissions on s.23(2)(b)

70. With respect to s.23(2)(b), the Crown submitted that the conduct of Mr Turner, which the Accused sought to rely upon as a stalking or intimidation offence under s.13, occurred whilst Mr Turner was discharging his function as a compliance officer for the purpose of the Native Vegetation Act 2003. In so acting, the Crown submitted that any conduct complained of, which was sought to be characterised as stalking or intimidation, will not lie within a s.13 offence when carried out in the course of enforcing compliance with a law or laws of the State of New South Wales.

71. Upon this basis, the Crown submitted that the various matters complained of could not constitute a s.13 offence. The matters raised allege rudeness, abruptness, statements to persons that their conduct may constitute an offence which might be punished and suggestions by the Accused that certain investigatory steps concerning discussions with persons, entry onto premises and the taking of photographs may not have been in accordance with statutory powers. The Crown submission was elaborated upon, but the essence of the argument may be summarised in this way.

72. Senior counsel for the Accused submitted that the question whether the conduct of Mr Turner was an offence of stalking or intimidation under s.13 permitted an examination as to whether the alleged acts of Mr Turner (about which complaint is made) were authorised by one or other of the provisions contained in Part 5 of the Native Vegetation Act 2003 (ss.33-45A). It was submitted that there is nothing in s.13 that requires that, as an element of the offence, the person was acting without lawful power or authority nor was there any basis to imply such an element.

73. In elaborating on this point, it was submitted for the Accused that there is no equivalent to s.213 Police Act 1990 applicable to the performance of duties under the Native Vegetation Act 2003. Accordingly, it was submitted, there is no form of statutory immunity from criminal or civil liability. It was submitted that any defence of justification that may arise could be relied upon by the Crown in the trial to prove beyond reasonable doubt that the deceased did not commit a serious indictable offence. It was submitted that evidence of the deceased acting or purporting to act within powers provided by the Native Vegetation Act 2003 could be relied upon by the Crown to negative the s.23 defence beyond reasonable doubt. Further submissions were made on this topic, but I have sought to summarise once again the essence of the argument.

Decision on s.23(2)(b)

74. I accept the submissions of the Crown on this issue. I approach the matter upon the basis that the context in which Mr Turner came into contact with the Accused involved the fulfilment of his functions under the Native Vegetation Act 2003. The material before the Court at this pretrial hearing (to which reference has been made above) indicates that this was the context for any contact or dealings between Mr Turner and the Accused between 2011 and 29 June 2014. This view is fortified by the Accused’s tendency notice and accompanying material, to which further reference will be made.

75. It may be accepted that conduct which constitutes a stalking or intimidation offence under s.13 may fall within s.23(2)(b). So much was acknowledged by the Attorney General in the course of the second reading speech referred to at [60] above. The context for the Attorney General’s comments, of course, was conduct within a domestic relationship over a period of time which could fall within s.13.

76. I accept that a s.13 offence is not confined to conduct in a domestic setting. However, where the conduct sought to be relied upon as a s.13 offence is that of a public officer exercising compliance or enforcement functions, I consider that conduct is only capable of constituting a s.13 offence if it falls completely outside the exercise of the public officer’s functions. By that I mean that the conduct in question must be detached entirely from the officer’s employment functions.

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.

78. Senior counsel for the Accused invited the Court to have regard to the matters contained in the psychiatric reports relied upon by the Accused with respect to the partial defence of substantial impairment (PT159, 12 April 2016). These are the reports of Dr Olav Nielssen dated 11 February 2016 and Professor David Greenberg dated 23 February 2016. I note, as well, that the Court has been provided with the report of Dr Adam Martin dated 17 February 2016 upon which the Crown relies. Each psychiatrist has spoken to the Accused about the events which are said to relate to what occurred on 29 July 2014. I have considered what the Accused has said to the psychiatrists for the purpose of assisting on the s.13 offence issue. I have also taken into account the words attributed to the Accused on 29 July 2014 upon which his counsel relies with respect to the s.13 issue (see [31]-[34] above).

79. I have considered this material in conjunction with the material relied upon by the Accused in support of his application to adduce tendency evidence. This material includes outlines of what may be said by Anna Simmons, Ivan Maas, John Kennedy, Judith Grills and Lynn Hudson.

80. Looking at the factual material as presently identified at this pretrial hearing, I can see no basis for the Accused to meet the threshold requirement of s.23(2)(b).

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.

74. I do not accept the defence submission that the issue in this case may involve consideration as to whether acts or statements of Mr Turner are supported by particular powers contained in Part 5 of the Native Vegetation Act 2003. Nor do I accept that the absence of a provision such as s.213 Police Act 1990 has some bearing upon the present question. The presence or absence of a similar provision in the legislative scheme which relates to Mr Turner does not, in my view, have relevance to the issue presently under consideration.

75. Section 23(4) provides that the conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. This reflects the law as it stood prior to the enactment of the present s.23 in 2014.

76. It must be observed, however, that the material before the Court at this pretrial hearing does not point to any interaction between Mr Turnbull and the Accused from June 2012 until the day of the shooting, 29 July 2014. It may have been that the two men were in the same place at the same time during the Land and Environment Court hearing in March 2014 and at a meeting which may have occurred between the parties and their legal representatives in association with that proceeding.

77. It is apparent that the legislature determined that the previous law of provocation be narrowed significantly when replaced in 2014 by the new concept of extreme provocation. Although there may be scope, as the Attorney General noted in the second reading speech, for a “slow burn” situation to fall within s.23, that observation was made with respect to domestic violence (see [60] and [64] above).

78. Having regard to all the material to which I have made reference, I am not persuaded that this material constitutes evidence that the conduct of Mr Turner was a serious indictable offence (a s.13 offence) for the purpose of s.23(2)(b) of the Act.

79. The conclusion I have reached on this issue is sufficient to dispose of the live question at this pretrial hearing. However, given that submissions were made on other aspects of the construction of s.23 as well, I will express my views with respect to some of them.

Some Other Aspects of s.23 Crimes Act 1900

89. It was submitted by the Crown that the “ordinary person” test now contained in s.23(2)(d) is a purely objective test which does not take into account any attribute of the Accused person. It was submitted for the Accused that, although the words “in the position of the accused” which appeared in the previous form of s.23 had been removed, the section should be construed as requiring the “ordinary person” test to take into account at least some attributes of the Accused.

90. I prefer the submissions of the Crown on this aspect. I do not think that the comments of the Attorney General in the second reading speech (at [62] above) support the Accused on this aspect. Indeed, they support the Crown submission that what is involved is a “purely objective test”. The focus of s.23(2)(d) is the application of the “ordinary person” test taking into account ordinary community standards.

91. Parliament removed the words “in the position of the accused” which had appeared in the pre-2014 section.

92. This is a clear reflection of the legislature’s intention to narrow significantly the scope for s.23 extreme provocation to apply. The fact that this may render it more difficult for an accused person to raise extreme provocation appears to be a consequence of the legislative intention to narrow significantly this aspect of the law (as to the previous law, see Heron v The Queen [2003] HCA 7; 77 ALJR 908 at 922-923 [84]-[87]).

93. It should be kept in mind that s.23(2)(d) requires some evidence 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. The operation of the objective test, to this extent at least, remains similar to its predecessor: Heron v the Queen.

94. Submissions were made, as well, concerning the construction and operation of s.23(2)(a) of the Act. In my view, the term “towards or affecting the accused” in that provision requires the conduct of the deceased to be directed personally as between the two persons or, at least, that the conduct of the deceased affect the accused person in a manner which can be understood in the context of the extreme provocation provisions in s.23. By way of example, 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.

95. It is necessary to construe the various components in s.23(2) together, in a cohesive fashion, with the purpose or object underlying s.23 as enacted in 2014 being kept in mind: s.33 Interpretation Act 1987.

96. The concept of official action being taken by a public officer against a person, even if it involved rude, aggressive or upsetting language or alleged overzealous action is, in my view, beyond the purview of s.13 Crimes (Domestic and Personal Violence) Act 2007 and of s.23 as enacted in 2014.

97. In closing this part of the judgment, I am assisted by some statements made in R v Peisley (1990) 54 A Crim R 42 at 48-49, where the Court of Criminal Appeal held that provocation under the old s.23 had not been raised so that there was no error on the part of the trial Judge in not leaving it to the jury. Wood J (Gleeson CJ and Grove J agreeing) said at 48:

“In my view his Honour was not in error in holding that there was no evidence, in this case, fit to go to the jury, of any loss of self control. More is required than anger or loss of temper or building resentment. There must, in my view, be a loss of self control which I understand to include a state in which the blood is boiling or a state of fear or terror, in either case, to the point where reason has been temporarily suspended. See East Pleas of the Crown (1803) vol 1 at 251.

Here, it seems to me, that the evidence could not rise above a state of anger on the part of the appellant, arising out of an assessment by him that he was sick and tired of what he considered to be unreasonable conduct of Forrester and Rixon, leading to a decision to go over and give them a good scare.”

98. Wood J said at 49:

“In the present case, even assuming in favour of the appellant, that the entire history of disharmony and conflict are properly to be taken into account, including the hearsay allegations, this was not, in my view, a case where the evidence was capable of establishing that any loss of selfcontrol was induced by either the earlier conduct of Rixon or Forester, or the final act of Rixon in laughing at the appellant.”

99. Although expressed in a different factual setting and in the context of the previous s.23, some of the language used by Wood J is capable of application to this case.

The Tendency Notice

100. The tendency notice served on behalf of the Accused sought to identify the alleged tendencies of Mr Turner in the following way (emphasis added):

“2.   The first tendency sought to be proved is Mr Turner’s tendency to act in a particular way, namely:

(a)   to make threats towards persons connected with investigations he was conducting into land clearing;

(b)   to engage in persistent contact with or stalking persons connected with investigations he was conducting into land clearing, including accessing properties without prior warning or consent arrangements with the land owner;

(c)   to engage in persistent contact with or harassment or intimidation of persons connected with investigations he was conducting into land clearing;

(d)   to behave in an aggressive manner towards persons connected with investigations he was conducting into land clearing.

3.   The second tendency sought to be proved is Mr Turner’s tendency to have a particular state of mind, namely knowledge that engaging in the conduct described in paragraphs 2(a) to 2(d) above, was likely to cause a person to fear mental or physical harm (including harm to property).”

101. As I have mentioned, the further and better particulars of the tendency notice provided by the Accused’s solicitors on 4 April 2016 annexed outlines of what was expected to be said by:

1. Anna Simmons (concerning an event in August 2012);

2. Ivan Maas (concerning events in 2011 and 2012);

3. John Kennedy (concerning events in 2009 and 2010);

4. Judith Grills (concerning an event in July 2014); and

5. Lynn Hudson (concerning an event in 2007).

102. The recital of the suggested tendencies at [100] above, indicates that the conduct complained of was all undertaken in connection with Mr Turner’s exercise of statutory functions concerning land clearing and compliance with the Native Vegetation Act 2003. The particular alleged events relied upon in the outlines of the nominated persons all fall within the description of conduct which I have mentioned earlier (see [77] above).

103. The Crown complained about various aspects of the tendency notice, arguing that it did not comply with the requirements of Clause 5 Evidence Regulation 2015 in a number of respects. It is not necessary to consider the particular complaints made by the Crown because there are, in my view, more fundamental difficulties with this foreshadowed evidence.

104. Senior counsel for the Accused did not seek to place any evidence before the Court at this pretrial hearing concerning the account of the Accused on matters bearing upon this topic. He submitted that the Accused had a right to silence which was not reduced in this regard by any of the case management provisions in the Criminal Procedure Act 1986. Reliance was placed upon the decision of the Full Court of the Supreme Court of South Australia in R v Ling (1996) 90 A Crim R 376 at 379-380, where it was observed that case-flow management rules of the Magistrate’s Court did not require pretrial disclosure of the defence case and should not be interpreted as abrogating an accused person’s right to silence.

105. As the Crown submitted, there are significant differences between a statutory pretrial case management scheme, as now contained in the Criminal Procedure Act 1986, and rules of the Magistrate’s Court considered in R v Ling. That said, it is not necessary in this judgment to expand upon the ways in which the case management provisions of the Criminal Procedure Act 1986 may impact upon an accused person’s right to silence.

106. The Court will proceed to rule upon the Accused’s foreshadowed reliance on tendency evidence on the material which is before the Court on this pretrial hearing.

107. The position is different to that which ordinarily occurs where the Crown communicates an intention to rely upon tendency evidence and where the whole Crown case has been disclosed, so that the proposed tendency evidence can be considered against the background of the Crown case in its entirety.

108. Here, lesser material is before the Court, although the foreshadowed tendency evidence may be considered in conjunction with the material adduced by the Crown on factual matters together with the psychiatric reports (containing accounts of the Accused) which I was invited to consider.

109. Section 97 Evidence Act 1995 provides as follows:

“97    The tendency rule

(1)    Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)    Subsection (1) (a) does not apply if:

(a)    the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)    the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.”

110. For the purpose of s.97(1)(a), the Accused served a tendency notice and later particulars with respect to that notice so that the Crown is on notice of the intention of the Accused to adduce the evidence. There has been, as I have mentioned, complaint made by the Crown concerning the content of the notice and the particulars. I do not pause to consider this aspect further at this stage.

111. It is necessary that the proposed tendency evidence be relevant (under ss.55-56 Evidence Act 1995) so that the Court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Accused, “have significant probative value”.

112. The proposed tendency evidence is said to be relevant to the alleged serious indictable offence nominated for the purpose of s.23(2)(b) of the Act, namely a s.13 stalking or intimidation offence. I have already concluded that the Accused encounters difficulty in raising that issue in this trial.

113. The proposed tendencies advanced on behalf of the Accused, as set out at [100] above, fortify my view that the conduct about which the Accused seeks to complain all falls within the exercise of Mr Turner’s functions under the Native Vegetation Act 2003. The proposed tendency evidence contained in the outlines confirms this understanding.

114. In circumstances where I consider that what is sought to be relied upon cannot fall within s.23(2)(b), I do not accept that the proposed tendency evidence is relevant. I do not conclude that the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: s.55(1) Evidence Act 1995.

115. Further, even if there was some relevance demonstrated, I am not satisfied that the proposed evidence has “significant probative value” for the purpose of s.97(1)(b) Evidence Act 1995. The use of the word “significant” in s.97 mandates that the evidence must be of importance or of consequence: R v Martin [2000] NSWCCA 332 at [67]. It must be evidence that is meaningful in the context of the issues at trial and must be more than merely relevant: AW v R [2009] NSWCCA 1 at [47].

116. I decline to permit the Accused to rely upon the suggested tendency evidence communicated in the notice of 15 March 2016 and as particularised in the letter of 4 April 2016.

Conclusion

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

1. 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;

2. 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.

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Amendments

01 August 2016 - [13] - Amend Act.

Decision last updated: 01 August 2016