R v Turnbull (No. 9)
[2016] NSWSC 781
•29 April 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Turnbull (No. 9) [2016] NSWSC 781 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Defence tender of letter (MFI8) rejected.
Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of letter to Accused from his solicitor - letter predated events giving rise to charge - letter contains opinions of solicitor - letter not admissible - tender rejected Legislation Cited: Evidence Act 1995 Cases Cited: --- Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
Ian Robert Turnbull (Accused)Representation: Counsel:
Solicitors:
Mr PE Barrett (Crown)
Mr T Alexis SC; Ms C O’Neill (Accused)
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)
File Number(s): 2014/223920 Publication restriction: ---
Judgment
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JOHNSON J: In the course of cross-examination of Senior Constable Bradley Beddoes, questions have been asked with respect to the execution of a search warrant in the early hours of 30 July 2014 at the premises of the Accused named “Yambin”.
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The execution of the search warrant was video recorded. A number of still photographs taken from the video recording have been tendered and are Exhibit 2. In some photographs in Exhibit 2, there is apparent a document or documents from Cole & Butler, solicitors. That firm was and remains the firm of solicitors acting for the Accused.
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In the course of cross-examination, senior counsel for the Accused has tendered a letter dated 4 July 2014 (MFI8) from Mr Sylvester Joseph, the solicitor for the Accused, to the Accused. The letter relates to the commencement of proceedings in the Land and Environment Court in June 2014 against the Accused. The letter provides an opinion about the question of whether the proceedings were commenced in time and expresses certain opinions (apparently held by Mr Joseph) with respect to Mr Turner, the deceased.
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The Crown objects to the tender of the letter. An issue has been raised as to whether this particular letter was one of those which were obtained pursuant to the search warrant. For present purposes, I accept that it was.
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The photographs which have been tendered as Exhibit 2 contain images which appear to be at least similar to this document. The Crown has indicated that the documents in this class were returned to the legal representatives for the Accused after the execution of the search warrant, upon the basis that they were caught by client legal privilege. However, it is the Accused that seeks to tender the letter at present.
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It is submitted, on behalf of the Accused, that the letter goes to the state of mind of the Accused and bears upon matters communicated to him by his solicitor prior to the events of 29 July 2014. It is submitted that the letter itself is admissible, not as evidence of the truth of the contents of the document.
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In my view, the fact that the letter was apparently seized by police in the execution of the search warrant does not render it admissible. The question then is, how is it relevant, keeping in mind the provisions in ss.55 and 56 Evidence Act 1995.
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The state of mind of the Accused is a matter which can be the subject of evidence in different forms. Senior counsel for the Accused has indicated, as he is entitled, that at this stage he will not respond definitively as to whether the Accused will be called in the trial.
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In my view, there are some fundamental difficulties with the relevance and potential use of this document if it was admitted into evidence at this time.
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If the Accused gives evidence in the trial, so that his state of mind is the subject of evidence from him, then the position might, and I underline might, be different. But I am quite unpersuaded at the moment that the letter, MFI8, is relevant and admissible and I decline to admit it.
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Decision last updated: 20 June 2016
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