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Turnbull v R

Turnbull v R

Case [2016] NSWCCA 109 10 June 2016

Appeal

Statutory Interpretation

Murder

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turnbull v R [2016] NSWCCA 109
Hearing dates: 19 April 2016
Date of orders: 19 April 2016
Decision date: 10 June 2016
Before: R A Hulme J at [1];
Garling J at [38];
Wilson J at [39]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal – s 5F Criminal Appeal Act – murder – pre-trial ruling on statutory construction issues – ruling that partial defence of extreme provocation under s 23 Crimes Act not available on the evidence disclosed – ruling not an interlocutory judgment or order under s 5F(3) –lacked requisite degree of finality – appeal incompetent
Legislation Cited: Crimes Act 1900 (NSW) Pt 11A, s 23, 45, 61HA
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 139, 143
Native Vegetation Act 2003 (NSW)
Cases Cited: A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
R v Adamson [2005] NSWCCA 7
R v Piper [2005] NSWCCA 134
R v Turnbull (No 5) [2016] NSWSC 439
W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
Category: Principal judgment
Parties: Ian Robert Turnbull (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr T Alexis SC with Ms C O’Neill (Applicant)
Mr P Ingram SC with Mr P Barrett (Crown)
Solicitors:
Cole & Butler
Solicitor for Public Prosecutions

File Number(s): 2014/223920
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

R v Turnbull (No 5) [2016] NSWSC 439

Date of Decision:

15 April 2016

Before:

Johnson J

File Number(s):

2014/223920

Judgment

R A HULME J: On 19 April 2016 the Court heard an application by Ian Robert Turnbull ("the applicant") for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) in respect of what he asserted was an interlocutory judgment of Johnson J delivered on 15 April 2016: R v Turnbull (No 5) [2016] NSWSC 439 ("the judgment"). At the time of the hearing the applicant's trial was scheduled to commence with a jury on Thursday 21 April 2016.
At the conclusion of the hearing the Court refused leave to appeal and indicated that reasons would be published at a later time. The following are my reasons for joining in the making of that order.

The prosecution

The applicant was to stand trial upon an indictment containing two counts: one alleging that he murdered Mr Glendon Turner and the other that he detained Mr Robert Strange without consent with the intention of obtaining an advantage, namely the killing of Mr Turner. Mr Turner was a Compliance and Regulation Officer for the Office of Environment and Heritage and his duties included enforcing the law under the Native Vegetation Act 2003 (NSW). The applicant, a farmer and land owner, had been prosecuted in respect of illegal land clearing offences in the Moree district. The Crown contended that there was animosity between the two. On 29 July 2014 Mr…

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.

Continue reading Turnbull v R

Details

AGLC: Turnbull v R [2016] NSWCCA 109
Case: [2016] NSWCCA 109
Decision Date: 10 June 2016

CaseChat Overview and Summary

The appeal before the court involved a defendant, Turnbull, who had been charged with murder. The case was heard in the High Court of Australia. The primary dispute centred on the interpretation and application of statutory provisions concerning extreme provocation as a partial defence to murder. The Court was tasked with determining whether a particular pre-trial ruling made by a lower court could be the subject of an appeal under section 5F of the Criminal Appeal Act.

The central legal issue was whether the pre-trial ruling, which determined that the partial defence of extreme provocation under section 23 of the Crimes Act was not available based on the evidence presented, qualified as an interlocutory judgment or order under section 5F(3) of the Criminal Appeal Act. The Court had to decide if this ruling had the requisite degree of finality to be appealable. The Court needed to examine the nature of the ruling and its implications for the trial process.

The Court found that the ruling in question did not meet the criteria for an interlocutory judgment or order as it lacked the requisite degree of finality. The ruling did not definitively conclude any significant matter in the proceedings and did not sever a part of the proceedings to be dealt with separately. Consequently, the appeal was deemed incompetent under section 5F of the Criminal Appeal Act. The Court held that the ruling did not have the finality required to be appealable as of right.

No further orders were made by the Court beyond declaring the appeal incompetent. The appeal was dismissed, and the ruling of the lower court remained in place.

Orders