R v Turnbull (No. 21) [2016] NSWSC 800

Supreme Court New South Wales

Medium Neutral Citation: R v Turnbull (No. 21) [2016] NSWSC 800 Hearing dates: 17 May 2016,18 May 2016 Date of orders: 18 May 2016 Decision date: 18 May 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Allow evidence of conversation on 21 August 2012, but disallow evidence of conversations on 22 and 24 August 2012. Catchwords: CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to evidence of certain conversations being adduced - evidence of one conversation allowed - evidence of other conversations not allowed 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: The Accused has called in the defence case Gary Adam Spencer. 2. The Accused seeks to adduce evidence from Mr Spencer with respect to events in August 2012. At that time, Mr Spencer was an officer with the Office of Environment and Heritage ("OEH"). Specifically, evidence is sought to be adduced from Mr Spencer concerning events on 21 August 2012, when a conversation is said to have taken place between Glen Turner and Anna Simmons, on the property "Strathdoon". Mr Spencer was present at the time of the conversation. 3. The Crown objects to this evidence. I commenced to hear submissions yesterday afternoon on the objection, and those submissions have continued this morning, including the provision of a short written outline of submissions for the Accused (MFI80). 4. The evidence which has drawn the objection is a conversation, of which notes are made in MFI64, in Mr Spencer's 2012 work notebook. It is said that Mr Turner spoke to Ms Simmons, a number of questions were asked in relation to aspects of the Turnbull family and then a question was asked: "The Turnbulls have been clearing contrary to the NV Act and we are going to get them for that. It's clear they are doing this for the money". 1. According to Mr Spencer's note, Ms Simmons replied, "I don't know anything about it". 2. The Accused submits that this is relevant to a number of issues in the trial. Firstly, substantial impairment by abnormality of mind, because it is said to relate to the Accused's mental state, including his perception of persecution, and may have contributed to the emergence of depression. Secondly, it is said that it goes to the partial defence of extreme provocation, upon which the Accused seeks to rely, in that it is said to disclose an attitude on the part of Mr Turner to the Turnbulls. Thirdly, it is said that the material goes to a broader question of context. 3. I should note, as well, that the Accused, if allowed, would seek to adduce evidence from Mr Spencer of two further conversations on 22 August 2012 and 24 August 2012, where he is said to have spoken by telephone with the Accused. I will return to those matters. 4. I note that in the evidence-in-chief of the Accused, he was asked questions about having met Mr Spencer and having some contact with him (T878-879). There was no evidence adduced from the Accused about anything that Mr Spencer said to him. The Accused was asked whether Ms Simmons had spoken to the Accused about this incident involving Mr Turner on 21 August 2012. The Accused was asked what had been said to him by Ms Simmons, and he said (T879, line 28): "Mr Turner told Ms Simmons, Mrs Simmons, that he would keep at the Turnbulls until he put them off their farms. Q. How did that make you feel when you heard that, Mr Turnbull? A. Of course, I didn't like that at all." 1. The Crown objects to the conversation of 21 August 2012 upon the basis that it is hearsay and that it is not relevant to any issue in the trial. 2. There is already before the jury, in the portion of the evidence of the Accused which I have just mentioned, evidence of what Ms Simmons told the Accused about this event, and the Accused's reaction to it. It seems to me that the conversation of 21 August 2012 is at least relevant to some issues in the trial. At the least, it provides an account of the actual conversation which may be capable of being compared, or contrasted, with what Ms Simmons reported to the Accused. In circumstances where the account given to the Accused is in evidence, and will be the subject of submissions, I am satisfied that the primary account itself ought be admitted. 3. In taking that approach, however, I am not indicating any firm view that this bears in any real way on the substantial impairment issue. There is force in the Crown submission that this incident is some two years before 29 July 2014. That said, the defence contends, as I understand it, that there was an accumulation of factors that are said to contribute to this incident. I say no more about that topic except to record that I regard this conversation as being relevant to that issue. 4. The subject of extreme provocation has already been the subject of submissions, and a judgment in R v Turnbull (No. 5) [2016] NSWSC 439. Further submissions will be made on that topic, I have been told, at the close of the defence case. In allowing this evidence, I should not be taken to be accepting that this evidence bears upon the issue of extreme provocation. I understand that the Accused wishes to contend at some point that it does. However, my ruling allowing this should not be interpreted as being in any way accepting that this material provides a foundation for extreme provocation. Having made that clear, however, I am satisfied that it is relevant for other reasons. 5. I will, therefore, allow Mr Spencer to give evidence of the conversation at about 3.00 pm on 21 August 2012. I note that in his evidence yesterday, at one point, he sought leave to refer to his notes. I take it that what he was seeking leave to look at was in fact the notes which are MFI64, which I am utilising for the purpose of this ruling. 6. In allowing evidence from Mr Spencer of the conversation I will, of course, allow evidence to be given of what was said and what he observed. The ruling I am making does not allow commentary or opinion beyond that, any more than it would if a police officer was giving evidence of a conversation with a person. There are well known limits to the evidence which can be adduced in circumstances such as this. 7. I turn to the second and third conversations, which were between Mr Spencer and the Accused. In my view, these are in a different category. There are a number of difficulties with these conversations. The conversation on 22 August 2012 appears to contain largely what the Accused said he was told by Cory Turnbull about the Anna Simmons incident. Beyond that it is, in my view, clearly hearsay. 8. I note, in particular, that the Accused did not give any evidence about these conversations with Mr Spencer. These were not put forward as conversations about this incident which fed into, or contributed to, the Accused's state of mind on this issue. 9. I do not think the fact that Mr Spencer at the time may have been an OEH officer, and that these were, in some way, part of the contact between OEH and the Accused renders them relevant. I do not propose to admit the second conversation, that which was on 22 August 2012. 10. The third conversation, on 24 August 2012, is, in my view, in a similar category. It is attended by the difficulties to which I have referred in the context of the second conversation. 11. Accordingly, my ruling is that the first conversation may be given. I would have no difficulty, subject to what counsel wish to say, in Mr Spencer utilising the notes to refresh his memory for the purpose of giving evidence, given that that seems to be the course which he would seek to take. 12. Accordingly, I allow evidence of the conversation of 21 August 2012, as contained in MFI64. I decline to allow evidence of the conversations of 22 and 24 August 2012, as contained in MFI 64.