R v Turnbull (No. 17) [2016] NSWSC 789

Supreme Court New South Wales

Medium Neutral Citation: R v Turnbull (No. 17) [2016] NSWSC 789 Hearing dates: 10 May 2016, 11 May 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Tender of email (MFI53) rejected. Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of email containing information provided to the Office of Environment and Heritage - tender rejected Legislation Cited: --- Cases Cited: R v Turnbull (No 5) [2016] NSWSC 439 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: In the course of cross-examination yesterday of Mr Terrence Bailey, there was tendered by senior counsel for the Accused, a document which is MFI53 (T667), to which the Crown took objection. 2. The argument on the admissibility of this document commenced, proceeded a short way and was then deferred until today as the day had been reserved for legal argument on a range of issues. Mr Bailey is to return to the witness box tomorrow and it is appropriate that I give a ruling on this tender. 3. MFI53 is an email dated 23 August 2012 containing what is said to be the details of a conversation that Tom Celebrezze had with Anna Simmons about an event in August 2012 which is said to have involved Mr Glen Turner. 4. I note that senior counsel for the Accused has indicated that he would have in mind tendering, as well, MFIs 54 and 55, with that approach being dependent to a considerable extent on the outcome of the tender of MFI53. I note that MFIs 54 and 55 are handwritten notes of conversations said to have been had with persons concerning the same alleged event as that discussed by Ms Simmons. 5. The Court has been informed that Ms Simmons is intended to be called as a witness in the defence case. The suggested relevance of her evidence is that the event in August 2012 involving Mr Turner caused her some upset and she passed on information about that to the Accused. It is submitted that the state of mind of the Accused in that respect is pertinent and feeds into other issues in the trial, including his perception of the role of Mr Turner, an officer with the Office of Environment and Heritage. 6. The Crown has objected to the evidence on the basis of relevance and as to its form and content in the sense of what is contained in MFI53. 7. I note that, in R v Turnbull (No 5) [2016] NSWSC 439 at [101], I referred to the intention of the defence to rely upon the account of Ms Simmons concerning an event in August 2012 as tendency evidence. For reasons explained in that judgment, I declined to allow tendency evidence to be adduced. 8. Senior counsel for the Accused indicated then, and has repeated today, that it was always intended to adduce evidence from Ms Simmons about this incident as primary evidence and not just tendency evidence. That remains an open question for the moment, the Crown having indicated an objection to the relevance of it. 9. The Crown has submitted today that, if the evidence was to be relevant, it would be so as to what Ms Simmons said to the Accused about this incident, with that itself being a matter contributing to the state of mind of the Accused. The Crown maintains its objection to the evidence of Ms Simmons about the event itself with Mr Turner as not being relevant. 10. I do not need to make any definitive ruling on that issue today. What is needed at this stage is a ruling on the admissibility of the document which is tendered. 11. The evidence of Mr Bailey has involved a range of documents tendered through him on aspects of the interaction between the Office of Environment and Heritage and the Accused, including a Summons commencing court proceedings, stop-work orders and other notices. 12. What is sought to be tendered here, however, as evidence of truth of the fact, is what is said to be Ms Simmons' account given to Mr Celebrezze in August 2012 about this incident. 13. I do not consider that this evidence is admissible. The question of whether Ms Simmons can give evidence herself about these events awaits a future argument and ruling. I do not consider that the fact that there is a record contained within the Office of Environment and Heritage in the form of this email, which sets out what Ms Simmons is said to have stated to Mr Celebrezze, makes the email itself admissible. The same approach will apply to MFIs 54 and 55 which are handwritten notes of conversations with persons about other features of the same event. 14. The question of what the Accused learned about these events, and how, may arise for consideration at a later time. However, I do not consider that MFI53 should be admitted and I decline to admit it into evidence.