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

JOHNSON J: The Accused, Ian Robert Turnbull, is to stand trial in this Court upon an indictment containing two counts:

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

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.

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:

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

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…

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 439
Decision Date: 15 April 2016

CaseChat Overview and Summary

In the case of R v Turnbull, the defendant, Turnbull, was facing trial for the murder of the deceased, who was his partner. The nature of the dispute involved whether the partial defence of extreme provocation was available to Turnbull and whether the deceased's alleged conduct could be considered a serious indictable offence under the Crimes Act 1900 and the Crimes (Domestic and Personal Violence) Act 2007. The court also considered the relevance of tendency evidence that the defence sought to introduce regarding the deceased.

The legal issues the court needed to decide were whether the alleged conduct of the deceased constituted a serious indictable offence for the purposes of the partial defence of extreme provocation and whether the evidence the defence wished to adduce regarding the deceased's tendency to act in a particular way had sufficient probative value and relevance to be admitted. Furthermore, the court examined the impact of the Crimes Amendment (Provocation) Act 2014 on the available defences.

The court determined that the deceased's conduct, which involved investigations into alleged land clearing contrary to the Native Vegetation Act 2003, could amount to a serious indictable offence. The court also found that the tendency evidence sought by the defence was relevant and had significant probative value, allowing it to be admitted. Consequently, the court ruled in favour of Turnbull, admitting the evidence and allowing the partial defence of extreme provocation to be considered at trial.

The final orders were that the partial defence of extreme provocation would be allowed to proceed to trial, and the defence's tendency evidence would be admitted, subject to the court's discretion on its relevance and probative value.

Orders