Supreme Court New South Wales Medium Neutral Citation: R v Turnbull (No. 12) [2016] NSWSC 784 Hearing dates: 5 May 2016 Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Evidence not allowed. Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to evidence of observations of activities after date of alleged offence - evidence not allowed Legislation Cited: 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 1. JOHNSON J: The Crown proposes to call, as a witness in the trial, Phillip Spark. Mr Spark was and remains a consultant ecologist employed in the northwest region of New South Wales. 2. Objection is taken on behalf of the Accused to the relevance of the evidence proposed to be adduced from Mr Spark. I have received a statement dated 21 April 2016 of Mr Spark (MFI33). 3. The proposed evidence of Mr Spark relates to observations made on Monday 4 August 2014 when he travelled to the property "Colorado", accompanied by a journalist and a cameraman. They were making a documentary on land clearing. He states that during the morning he made observations from the public road. With video footage being taken, he saw a heavy bulldozer machine with a blade on the front pushing out unburnt timber into piles of timber. He could not identify the vegetation he saw being pushed, though, it was "near" (although he does not say how near) to some existing standing vegetation which he could identify as being "Brigalow" which is an endangered ecological community. 4. The events about which Mr Spark would give evidence occurred a number of days after the tragic events on 29 July 2014. 5. As the evidence reveals, the Accused was arrested and charged with murder following the events on 29 July 2014. He was in custody as at 4 August 2014. 6. The Crown submits that Mr Spark's evidence bears upon, in effect, a continuation of events which were happening on and prior to 29 July 2014, being the use of bulldozers to push unburnt timber into piles. The Crown submits that this is relevant, as it bears upon action which was being taken as a response to the litigation before the Land and Environment Court with respect to remediation orders. 7. There is already evidence from persons who were working on "Colorado", or associated properties, on 29 July 2014. There is no issue that bulldozing of unburnt material was occurring and indeed that it was being set alight. 8. I cannot see, at this stage, how the evidence of Mr Spark takes it any further. He is not asserting that what was being bulldozed was in fact native vegetation within the meaning of the Native Vegetation Act 2003. 9. As the events about which he would give evidence occurred after the Accused was in custody, that is a further difficulty in seeing its relevance to the issues in this trial. 10. If something happens in this trial that renders this subject matter relevant, then the admissibility of Mr Spark's evidence may be reconsidered. But, for the moment, I am not satisfied that the proposed evidence of Mr Spark is relevant and admissible and I decline to allow it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2016