R v Turnbull (No. 2)

JOHNSON J: The Accused, Ian Robert Turnbull, is to stand trial in this Court in April 2016 on a charge of murder and a charge of detaining a person with the intention of obtaining an advantage. The background to the trial may be found in my judgment on venue: R v Turnbull (No 1) [2016] NSWSC 189.

For present purposes, it is sufficient to note that the Accused is charged with the murder of Glendon Turner. He was employed as a Compliance and Regulation Officer for the Office of the Environment and Heritage, Department of Premier and Cabinet. His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 Native Vegetation Act 2003.

There is no issue that the Accused shot the deceased on 29 July 2014. The Accused proposes to raise the partial defences of substantial impairment and extreme provocation. I am the Judge allocated to preside at the trial.

On behalf of the Accused, a subpoena filed on 22 February 2016 issued, directed to the Proper Officer, The Office of Environment and Heritage ("the Applicant").

By Notice of Motion filed 3 March 2016, the Applicant sought to have set aside various paragraphs of the subpoena. By the time the hearing of the Notice of Motion came before me on 17 March 2016, the paragraphs under challenge had reduced to three, being paragraphs 2, 3 and 4 of the subpoena. Those paragraphs seek:

The Applicant has read affidavits of Nicholas Allan affirmed 3 March and 16 March 2016 on the application. In addition, a copy of a tendency notice dated 15 March 2016, indicating the intention of the Accused to adduce tendency evidence under s.97 Evidence Act 1995, was placed before the Court.

Counsel for the Applicant submits that the challenged paragraphs of the subpoena constitute a fishing expedition: Alister v The Queen [1984] HCA 85; 154 CLR 404 at 414; R v Saleam (1989) 16 NSWLR 14 at 18. To the extent that the Accused indicated an intention to rely upon extreme provocation in support of those paragraphs of the subpoena, it was submitted that the proposed defence was hopeless: Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 at 502. In this regard, submissions were directed to suggested deficiencies in the Accused's tendency notice.

Counsel for the Accused submitted that a legitimate forensic purpose had been demonstrated and that it appeared to be “on the cards” that the documents would materially assist the Accused: Perish v R [2015] NSWCCA 237 at [56]. The written submissions for the Accused articulated the basis upon which it could be said that this conclusion should be reached. In this respect, reference was made to both substantial impairment and extreme provocation.

The provisions concerning extreme provocation were inserted in s.23 Crimes Act 1900 in 2014. To my knowledge, this is the first trial where the proper construction and application of this partial defence will be considered.

Further, the factual context in which it is sought to be raised in this case is an unusual one.

In relation to substantial impairment, I have been provided with the psychiatric reports of Dr Olav Nielssen (dated 11 February 2016) and Professor David Greenberg (dated 23 February 2016), both experts retained for the Accused, and of Dr Adam Martin (dated 17 February 2016), the expert retained by the Crown. These reports provide assistance in understanding how the “on the cards” test may apply to documents caught by this subpoena with respect to substantial impairment.

On the limited material before the Court, I am not in a position to effectively dismiss out of hand the Accused's intention to rely on extreme provocation by a conclusion that his desire to do so is hopeless.

In the circumstances of this case, I am satisfied that the appropriate course is to require production to the Court of documents falling within paragraphs 2, 3 and 4 of the subpoena, for the purpose of the Court determining whether the Accused has satisfied the requirements for being granted access to them. This process will involve the Court having in mind, as well, the psychiatric reports to permit the relevant test to be applied insofar as the documents are sought for purposes associated with substantial impairment.

I do not consider that the present application can be determined properly without that step being taken. I will make orders for production of the documents to the Court in the near future to enable me to undertake that function.