R v Mark Raymond Turnbull, Raymond George Turnbull and Christopher George Turnbull [1994] TASSC 131;

R v Mark Raymond Turnbull, Raymond George Turnbull and Christopher George Turnbull [1994] TASSC 131; - TASSC 1994 case summary — Zoe

[20]

12. As to the events leading immediately to the commission of the crimes, counsel for the accused said that the Turnbull family had been out for the evening at the Woodbridge Hotel and returned home. Most of them had gone to bed and in the early hours of the morning the telephone rang. It was answered by Mrs Turnbull. Counsel said that in the course of the previous years there had been a number, not exceeding six, of either silent or abusive and anonymous telephone calls. On this occasion a male person made a threat by saying "we will get you". Mrs Turnbull maintained that she responded by saying "is that you Gilbert". The person hung up. She could not be positive about the identity of the caller but she believed it was Mr Strong. She became hysterical and woke everybody up. Turmoil was created in the house. She looked up the Strong's number in the telephone directory and rang Mr Strong. She was upset and in tears. When Mr Strong answered she accused him of having just called and made a threat. He denied it. She accused him of having pushed her son Christopher the night before. She said that the dispute which she perceived had gone on between the families had gone on for long enough. She was shouting and crying and was generally upset. Mark and Christopher Turnbull were still in their beds but could hear her. Her husband, the accused Raymond Turnbull, took the telephone from her and said to Mr Strong, "I'm sick to death of all this shit - I'm coming round to your place to sort this out". Raymond Turnbull maintained that Mr Strong responded and said "come on, there is a few of us here". Raymond Turnbull angrily slammed the telephone down. By this time the other two boys were up and they accompanied their father out the door to the car. They travelled to the home of Mr and Mrs Strong where the crimes were committed. Mark Turnbull maintained, according to counsel, that he forced the front door open with his shoulder, knocked the telephone off the wall with the cricket bat to prevent Mrs Strong from using it and then struck Mr Strong to the left side of the neck with a right fist and then again to the face with the same fist. He maintained that he did not strike Mr Strong with the bat. Mr Strong fell to the ground. Then Raymond Turnbull entered the house for the first time, saw Mr Strong on the floor and told Mark Turnbull to leave with him. They all left.

[41]

31. The evidence called by the parties concentrated on the disputed issues as identified by counsel for the Crown. However some evidence was given by Raymond Turnbull which, if accepted, explains something of the animosity felt by him and his family towards Mr Strong. He said that "we" had received threatening telephone calls in the past. On the occasion of one of them, at about 10pm, a caller, presumably male, had said "your son Mark will be dead in the morning", and hung up. He did not have a clue who made the telephone calls. He agreed that Mr Strong had never demonstrated any animosity towards him personally. He was asked in cross-examination to what he had been referring when he told Mr Strong that he was "sick of all this shit what's going on" and he responded by referring to "what he was saying to Chris" and to information he was receiving from a lot of people "about Gilbert (Strong) accusing Mark of stealing drugs, and that which I knew, which I knew he accused Mark" and which he did not know was true, although he had never asked his son Mark about it. He complained of a lot of rumours. He was asked what rumours there were and he said that a bloke he knew only as Rod told him that Mr Strong and his mates had taken up a collection to pay someone "to get rid of the boy" (Mark). He did then ask Mark about the marihuana plants. He said that Rod also told him that he walked in on one of the meetings Gilbert and his mates had about Mark and what they were going to do about him. They were worried about Mark because he was "knocking their drugs and everything off". He said Mr Strong and his mates were known as "the clan" and that he had heard they were drug dealers who grew dope. Raymond Turnbull said that he had reported none of the threats to the police because he had no evidence and he knew that the police would not act on rumours. Raymond Turnbull was not asked about the yellow slips which had been found by the sides of various roads but I will accept what counsel told me to the effect that the Turnbulls suspected Mr Strong to be responsible for the slips.

[63]

46. In this case I consider it just and appropriate to apply the following principles which I have extracted from cases to which I have made reference. "When forming his own view of the facts for the purpose of passing sentence a trial judge cannot be required to be satisfied beyond a reasonable doubt of every fact which he considers relevant ... On the other hand, to allow the finding of a fact which is critical to the determination of the sentence to be imposed upon a basis that admits of the existence of a reasonable doubt about the existence of that fact would plainly be unfair. Between those two extremes a large number of possibilities exist." R v Chamberlain (supra) at 514. If the Crown challenges facts which are put forward by counsel for the accused in mitigation, which are critical to the sentence which will ultimately be imposed, then some evidence to support them may be required, which is not to say that the accused carries the onus of establishing them. Aloia (supra) at 348. What facts are critical to the determination of the sentence may be difficult to determine and no rule for making that determination is capable of simple definition. I will apply to the determination of the critical facts in this case what was said by Burbury CJ in Nash v Haas (supra) at 2 and 3 and which was approved by the Court of Criminal Appeal in Smith v R (supra). The accused will be given the benefit of any reasonable doubt on disputed facts which are critical provided that they sufficiently raised their version of those facts as credible issues in much the same way as the defences of self defence and provocation must be raised. Once they became issues, in the sense that there was some evidence about them from some quarter, then the onus was on the prosecution to negative them beyond reasonable doubt. Law v Deed (supra) at 377-379; Van Reesema v Flavel (supra) at 592. In this case I find it unnecessary to determine whether there should be applied a special rule as to the onus and standard of proof with regard to facts critical to sentence which are solely within the knowledge of the accused.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

R v Mark Raymond Turnbull, Raymond George Turnbull and Christopher George Turnbull [1994] TASSC 131; (1994) 4 Tas R 216 (21 September 1994)

Parties

Cases Cited (7)