R v Turnbull (No. 11)

[2016] NSWSC 783

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 11) [2016] NSWSC 783
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 of Murray Malcolm Fisher allowed.
Catchwords:	CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown calling witness - witness a Commonwealth officer who spoke to Accused concerning impact of land clearing on fauna conservation - comment by Accused said to indicate attitude to regulatory scrutiny and action concerning land clearing - evidence allowed
Legislation Cited:	Evidence Act 1995 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, Murray Malcolm Fisher. Objection has been foreshadowed on behalf of the Accused to the giving of any evidence by Mr Fisher.

2. I have been provided with a statement of Mr Fisher (MFI32). Mr Fisher is an officer of the Commonwealth Department of the Environment. His foreshadowed evidence relates to events in August 2012 when he attended “Strathdoon” in company with other officers. There was no officer of the Office and Environment and Heritage (“OEH”) present.

3. Put shortly, there was a conversation between the Commonwealth officers and the Accused about issues of clearing on properties, clearly from the perspective of Commonwealth legislation. There was no reference to the Native Vegetation Act 2003, and understandably so, seeing that these were Commonwealth officers.

4. It is alleged that during the course of this conversation about steps which landowners would need to take to get approvals with respect to conservation issues, the Accused said words to the effect, "I'm an old man now. I can do what I like. What are they going to do to me?".

5. It is alleged that the Accused said a little later:

“This land is too good for sheep or cattle. It is the last property in this area with black soil and it needs a crop in it and that's what we plan to do."

6. There is reference, as well, to other observations made.

7. The Crown submits that this is relevant to issues in the trial. It is said that it relates to the approach of the Accused to regulatory officers dealing with issues of land clearing, whether State or Commonwealth, with the comments attributed to him by Mr Fisher bearing upon that topic.

8. It is submitted on behalf of the Accused that the events in question were nearly two years prior to the events of 29 July 2014. It is submitted, as well, that these are Commonwealth officers and not State officers and that the proposed evidence does not rise to the level of relevance.

9. I am satisfied that the evidence is relevant, having considered the terms of ss.55 and 56 Evidence Act 1995. Both the Crown and the Accused are relying, in different ways, on events spreading over a number of years between 2011 and 2014.

10. The Accused is asserting, in effect, that the deceased, Mr Turner, was harassing him in some form with respect to the enforcement of the Native Vegetation Act 2003.

11. The Crown says that what ultimately happened on 29 July 2014 was really an act of revenge on the part of the Accused towards Mr Turner for what had happened over a number of years.

12. There is to be other evidence in the trial where the Accused is alleged to have made a comment to State OEH officers about his attitude to these matters and to his age. It seems to me that evidence of this type, being statements allegedly made by the Accused indicating his apparent attitude to regulatory scrutiny and action which may be taken with respect to his land, is relevant to issues in the trial.

13. What use is to be made of it will ultimately be a matter for the jury. I propose to allow the evidence of Mr Fisher as set out in MFI32.   

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