The Winter Road

by Kate Holden

  Meanwhile, Alison McKenzie made arrangements for Ian Turnbull’s murder trial. She scheduled four weeks off work. She would have to travel to Sydney, leaving Alexandra and Jack to be cared for by relatives and friends. It would be one of the most awful months of her life, but at the end of it, she hoped, there would be justice for Glen.

  But the trial preparations dragged on. Turnbull’s lawyers argued every point; they wanted a trial as early as possible, they said, but disputed issue after issue.

  ‘Eight weeks,’ McKenzie lamented later. ‘Eight weeks away from work, eight weeks commuting back and forth to Sydney so I could spend weekends with the children, the huge monetary and emotional expense of being away from home for that amount of time.’

  She was speaking to documentary filmmaker Gregory Miller, who was following the case. McKenzie had agreed, along with her sister-in-law Fran Pearce, that he could accompany her throughout the trial and record her reactions, in hopes that any publicity would help raise public attention to the issue of illegal clearing and the cost to Glen Turner’s life.

  Pearce, too, had had her ordinary life pulverised. She now spent hours a week on the road, travelling the four hours between McKenzie’s place in Tamworth and her parents’ home in Port Macquarie, where she was now the elderly couple’s primary carer. Her partner, Rob, had had to take unpaid leave to help out; she had declined promotions and opportunities, dropped to part-time hours, sacrificed time for her friends and hobbies. She was, she would later say in her victim impact statement, ‘consumed with Glen’s death and its consequence’. She was the contact for all media, police and justice matters, so also had to take extended leave for the trial.

  In Toowoomba, where she was living with Grant, Robeena packed her suitcase. Into the case went thick skirts and a jacket, hairclips for her elegant white chignon, a shiny handbag. Her presence would be dignified, stoic, impassive. Perhaps she tucked some handkerchiefs into a corner, just in case.

  15

  Someone once congratulated Thomas Cullen, one of the pioneers of this district, upon his long life. The enquirer asked the old man why he had lived so long. He replied that in his youth he had always kept a loaded gun.

  —R.J. Webb, The Rising Sun: A History of Moree and District 1862–1962, 1962

  At 4.00 a.m. on 21 April 2016, Turnbull was woken in Long Bay Hospital Wing, where he was being kept because of his various health issues. By 10.00 a.m., trundled around for hours on a bus delivering prisoners to various sites in turn, he was expected in court.

  He’d already been there for the pre-trial hearings earlier that month, in which legal allowances and technical arguments had been discussed. The days had been long: court adjourned in the afternoon but the circuitous transport meant he didn’t get back until ten at night. A few days earlier, Justice Johnson asked if Turnbull could be given special direct transport to and from the court, to get him home earlier. It wasn’t compassion or coddling but so that Turnbull, eighty-one and in poor health, would be fit for the administration of justice.

  The Supreme Court edifice is grand arcades and handsome red brick, but the courtroom in Sydney’s King Street, where the trial convened, was smaller than McKenzie and Pearce expected. Just after 10.00 a.m., Turnbull was led in by the court officers, and he seemed very close. It was the first time the women had seen him in person. ‘That was a difficult moment,’ McKenzie told Miller afterwards. ‘He had no emotion on his face whatsoever. I found it hard to look at him.’

  Robeena was there too, looking composed in an expensive white jacket, her hair up. She sat by herself in the courtroom. Pearce didn’t want to like her. She didn’t feel inclined to respect her: the woman had sat in a lounge room while Pearce’s brother died alone in the dark. But then, seeing the elderly woman, she felt sorry for her, and went over to introduce herself. The warmth wasn’t reciprocated; Pearce retreated, rebuffed.

  Ian Robert Turnbull had been charged on two counts: the murder of Glen Turner and the detaining of Robert Strange. This second act was done ‘with the intention of obtaining an advantage, namely, the killing of Glendon Turner’. When he appeared by videolink in December 2015 to be arraigned, Turnbull pleaded guilty to the Strange charge, so no trial would be required there. But Turnbull would not plead guilty to murder. His defence team, despite the eyewitness and the autopsy proving the victim’s death by multiple gunshot wounds, would hold out for a verdict of manslaughter.

  Murder comes under Section 18 of the Crimes Act 1900. It is a state crime. Murder occurs when someone voluntarily (with the intent to cause grievous bodily harm or kill) or by deliberate omission (with reckless indifference to human life) causes a death. Voluntary manslaughter includes the same definition of taking life, but, in the words of the Criminal Trial Courts Bench Book of the Judicial Commission of New South Wales, ‘the culpability of the offender’s conduct is reduced by reason of provocation or substantial impairment by abnormality of mind’. The result is death, but it is under circumstances where ‘a reasonable person in his or her position would not have considered a lethal response was reasonable’. Two of the partial defences available to invoke a verdict of manslaughter are extreme provocation and substantial impairment – partial because they go some way to exoneration, but not all the way. These defences require consideration by a jury. Turnbull’s team used them both.

  A defence of extreme provocation could be used if the killer had acted in reaction to a serious indictable offence performed by the victim, and if the deceased’s conduct would have caused an ‘ordinary person’ to lose control. The loss of control is key: for a conviction despite a defence of extreme provocation, the prosecutor has to prove utterly that the killing was not due to provocation. It was an intimidation tactic by the defence team. The slightest implication that Turner’s behaviour had pushed Turnbull to his response would mean the charge of murder would fail. As it happens, the law concerning these extenuations had been tweaked a month before Turner’s killing, and the Turnbull case was the first in which the new definition of ‘extreme’ rather than plain provocation would be tested.

  Substantial impairment, a new term for the old concept of ‘diminished responsibility’, required Turnbull’s lawyers to prove that while Turnbull had ‘cracked’ under provocation from Glen Turner that afternoon, he had a long history of mental health deterioration due to the impact of Turner’s investigations: he had ‘abnormality of mind’. Turnbull’s defence team was claiming that during the time period he stopped the ute, took out his gun, confronted Turner and began shooting, he was not in sound mind. For this defence, the impairment must have been so severe it might ‘warrant liability for murder being reduced to manslaughter’.

  A conviction of manslaughter would imply that Turner had, in a sense, brought his death upon himself, and that Turnbull was a kind of victim.

  The Crown prosecutor, Pat Barrett, made his opening address to the jury. The Crown did not accept the manslaughter plea, he said. Turnbull had been motivated by a ‘personal hatred of Mr Turner’ and had convinced himself he was being persecuted in the face of investigation over his own illegal landclearing.

  Barrett reprised Turnbull’s words to Turner at the gate of ‘Strathdoon’ back in 2012 – that if Turner had ‘any respect for’ his life, he wouldn’t recommend remediation. ‘I interpret that as a threat,’ Turner had said, ‘and if you continue to threaten me the police will become involved.’ Turnbull had replied, Barrett told the jury, ‘I’m an old man. I don’t care. I can do anything I want.’

  Glen Turner had been advised to have no more contact with Ian Turnbull as a result of that encounter, but due to staff shortages, had been kept in the background on the case. A new prosecution had been looming, with Turner’s name on an affidavit. But he’d never spoken to Turnbull again until July 2014, when he dropped to his knees and said, ‘Ian, Ian, what have you done?’

  There was a brief sketch of the killing: the encounter, the details of Turner’s wounds, Turnbull’s radio call, the late-night ar
rest at ‘Yambin’. Nicola Kennett kneeling by Turnbull’s armchair and asking ‘Why?’ Turnbull’s reply: ‘I had no choice. He was ruining my family. It was never going to end.’

  Alison McKenzie and Fran Pearce began to comprehend what lay before them. After leaving the courthouse that first day, they would go to buy waterproof mascara. By the end of the second day, they would be cautioned not to be too emotional while hearing testimony, in case their tears and groans disturbed or led the jury. That might require the jury to be dismissed. They had to keep their faces unflinching, assume the same distant impassivity as Turnbull on the other side of the room: the settler face that Ross Gibson remarked on in old photos of those who repressed awful images in their minds. But tears could be shed quietly.

  Barrett presented the affidavit Turner made in June 2014, a month before his death, prepared for the next hearing against Grant, Cory and Ian Turnbull. Turner described himself as an authorised officer under the Native Vegetation Act and the National Parks and Wildlife Act 1974 No. 80. He’d been with OEH, or its former manifestation, since 2004; before that, he was a surveyor. He had training in compliance investigations, investigation management, global positioning systems, aerial photographic interpretation, geographic information systems, Aboriginal cultural awareness. He held a Certificate IV in government investigation and was studying for the diploma. He wasn’t trained in botany or ecological conservation, but years of accompanying experts meant he could identify most common native plants, such as brigalow, belah, western rosewood and poplar box. Turner went on to give a detailed account of his inspections and investigations on ‘Colorado’ and ‘Strathdoon’ beginning in January 2012.

  Turnbull sat through all this. He heard the long story of their relationship. He heard again his own words: ‘Are you there, Scott? I just pumped a couple of shots at Turner.’ Of Robert Strange holding Turner’s head in the dark, telling him to hold on for the sake of his family. His own arrest. His apology to his family.

  The Crown presented the crux of its argument: ‘That the Accused fired his rifle at Mr Turner with the intention of killing him in revenge for Mr Turner’s investigation into the Accused’s land clearing activities in the Croppa Creek area.’

  That night, despite the judge’s request, Turnbull didn’t get back to Long Bay until 9.00 p.m.

  THE NEXT DAY, A juror had to excuse herself for personal reasons. After some debate, the whole jury had to be dismissed. It would take a few days for the case to resume. All the tension would hold a little longer.

  But by the Thursday, Robert Strange was in the witness stand. He had been preparing for this moment. ‘I needed to talk about it, to get justice for what had occurred,’ he recounted later. It was a responsibility, to tell the story right, for Glen.

  He spoke of the burning stacks by the side of the road, and of stopping so they could take photos. He spoke of Turnbull appearing with the gun. He spoke of the strangeness of blood on Glen’s face. He spoke of the cat-and-mouse pursuit around the car, of his hopes to talk Turnbull out of it, of Turner crouching behind the car, trying to grab the EPIRB in the growing dark. There was one moment when his composure broke. ‘I said, “Glen, I have to be fit to get us out.”’ His voice cracked. “‘It’s no good us both being shot.”’ He remembered telling Turner it would be all right.

  Todd Alexis suggested to Strange that Turnbull hadn’t conversed with him, only seemed intent on hunting Turner. Turnbull had behaved impassively, hadn’t he, spoken in a flat monotone? No. ‘It was said with some feeling,’ Strange insisted.

  Alexis also wanted Strange to concede that Turner had had a fixation on the Turnbulls. Strange wouldn’t have it. Turner hadn’t mentioned any specific ‘run-in’ with Roger Turnbull. The family’s name hadn’t been raised at all on the trip from Tamworth, not even on the detour near Croppa Creek and down County Boundary Road. It was Strange who had observed aloud, having visited earlier that year, that the properties belonged to the Turnbulls. But Turner had not mentioned Ian Turnbull until they saw the stacks of trees on fire.

  Surely, suggested Alexis, Turner expressed strong views on the frustrating Turnbull situation? ‘No stronger view,’ said Strange, ‘than any other matter that Glen investigated.’ Turner had not spoken of the Turnbulls with dislike. He was always, said Strange, ‘a professional officer’.

  He tried to make eye contact with Turnbull. The old man wouldn’t meet his gaze.

  ‘I wanted him to know that Glen and I went to do a job that day, and I had to finish it,’ Strange told Channel 7’s Sunday Night later that year. As he spoke, he bulged with the suppression of feeling. ‘That’s what I said to Glen. I’ll get us justice. And I knew all along that I had to give my evidence. And he [Turnbull] had to be accountable for what he did.’ He paused, prompted to think of Turnbull in jail. ‘Yep. Yep. That’s the cross he has to bear. I need to put him away. He’s done what he’s done, and he has to deal with that.’

  Strange walked out of the courtroom and exhaled. The story was told. He’d done the last thing he could for Turner. He needn’t hold it back anymore. He needn’t carry the story in him like a bullet. He walked out of the building into the autumn morning, his son Joshua at his side, nearly two years after his life had stopped. Now it might begin again.

  TWO WEEKS LATER, ON 13 May, the defence got to present its case. Todd Alexis maintained that Turnbull had a major depressive illness at the time of the shooting, and this had compromised his behaviour and reactions under duress. The ‘feast and famine’ of farming life had been endured for decades, but Turnbull had always managed to provide for his family, Alexis said. But in the months leading up to July 2014, it had all been too much. The $5 million put into ‘Colorado’ and ‘Strathdoon’ – the latter mortgaged against a guarantee on his own property – was at risk from the OEH prosecutions. ‘Their livelihood was on the line because of what he [Glen Turner] had done,’ Alexis said. ‘The potential for financial ruin was very significant indeed.’

  He went on, gesturing to the craggy-faced man in the dock. ‘You might think he is made of tough stuff, and I think he was, but until his dealings with Mr Turner in 2012 and the Office of Environment and Heritage brought proceedings against him in the courts, he had never had to deal with this sort of thing before.’

  Alexis summoned witnesses who agreed that Turnbull’s state had changed over that winter. Turnbull was ‘totally obsessed with the situation’, family friend Robyn Cush said. ‘I think he had come to the conclusion that he was not going to win the case.’ He told another friend that Turner had threatened him, saying, ‘I will break you.’

  The witnesses to the aftermath of the shooting were questioned. They told of the chaos of seeking help; the cars crisscrossing the roads around Croppa Creek; the police arriving at the scene. Andrew Uebergang appeared in the witness stand to tell how he came across a frightened Robert Strange waving him down in the dark of Talga Lane, and how he’d quietly feared Turnbull would return to kill them too. Fran Pearce felt sorry for the young man: he lived in that community, and here he was testifying at the trial of one of its richest members.

  Roger Turnbull offered to testify, but wasn’t called. Robeena was. ‘We didn’t feel like we were doing anything wrong,’ she explained. ‘So why were we being targeted?’ Ian had never, she insisted, expressed any intention of harming Glen Turner. But he had returned home on the night of the killing looking utterly wretched, ‘like everything had drained out of him’.

  Expertly, Todd Alexis created a picture of a farmer harassed by an officer going to extremes: it wasn’t Turnbull who was obsessed with Turner, but the other way around.

  It had already been put, in the pre-trial hearings, that Turner had a ‘tendency’ to harass; that he had ‘provoked’ Turnbull. The ‘tendency’ was based on a proposed pattern of excessive inspections and aggressive behaviour. Under Section 97 of the Evidence Act 1995, Turnbull’s team claimed that Turner had a ‘tendency to act in a particular way’, ‘engaging in persistent contact
with or stalking persons connected with investigations he was conducting’, including coming onto properties without consent or warning and behaving in an aggressive manner. He allegedly did these things knowing they were ‘likely to cause a person to fear mental or physical harm’.

  The incident with Anna Simmons, who testified that she was in tears after his visit to the cottage on ‘Strathdoon’, was central to the defence’s attempt to establish this pattern. They also summoned testimony from Turnbull’s staff and family, as well as landholders who had dealt with Turner. Ivan Maas said Turner had left messages on his phone and turned up at his house to deliver the stop-work order even after Maas asked him to desist. Turner, Maas said, ‘was loud, abrasive, aggressive in questioning’; he used ‘standover bullying tactics’ and threatened him with jail. Maas, a heavyset man in his sixties, noted, ‘I felt very confronted by him.’ Turnbull, his long-time employer, was a ‘champion’.

  John Kennedy was a landowner at ‘Kurrajong Park’, on the Liverpool Plains, south of Tamworth, and had encountered Glen Turner, Steve Beaman and Chris Nadolny in 2009 after reports that he had poisoned regrowth and sunk dams in an eroded area. Turner, he said, had inspected, then congratulated him; later, he sent a remedial direction and a letter threatening a fine. They’d met again: Turner was ‘very abrasive’, said Kennedy. ‘From this time I found Turner a very difficult man to deal with.’ They had further encounters: Kennedy was investigated for illegal clearing, and claimed Turner spoke of fines and jail, and was seen driving on his property without permission. Once they met when Kennedy had been shooting rabbits; when he saw the rifle, according to Kennedy, Turner dropped the documents he was serving on Kennedy and began to shake. ‘Maybe you should get a different job,’ Kennedy supposedly taunted him, and Turner left, saying, ‘I’ll get you, Kennedy.’