by Kate Holden
In 2012, Kennedy had pleaded guilty in the Land and Environment Court to unlawful clearing of native vegetation under the Act and was fined $40,000 and prosecution costs.
A month and a half before the shooting, Judith Grills was issued a penalty notice by the OEH for unlawful clearing on her property, ‘Wongalee’. She had had a ‘fractious’ encounter with Turner during an inspection and was left upset and unnerved, she said.
Lynn Hudson described Turner as ‘arrogant’ and ‘heavy-handed’. Her husband, John, was convicted in February 2009 of unlawful clearing of native vegetation and failing to comply with an OEH notice; he appealed, had his appeal dismissed and was re-sentenced, with fines of $318,750 for the clearing and $1275 for his failure to comply.
There was no evidence that Turner had trespassed on the Turnbulls’ land, though in media interviews the family referred to him frequently coming onto the properties without authorisation; they’d installed cameras and begun locking the gates, they said, because of this. They’d been unnerved, too, by news of Turner commissioning a flight to take aerial photographs, although this was a standard technique in the years before drones were commonly used. Turnbull testified that he’d once or twice glimpsed Turner on the property, measuring trees, but that he’d ‘scooted off’ as soon as he was seen; these alleged encounters were not logged by anyone. Under the Native Vegetation Act, officers were empowered to enter land for the purpose of determining contravention of the Act, if either the landowner consents or the OEH director-general gives authorisation. On the visits he documented, Turner’s notebooks showed he was always in possession of an official authorisation of entry.
Alison McKenzie and Fran Pearce listened, appalled, to the litany of complaints from the subjects of Turner’s investigations. It didn’t sound like the man they knew, who loved nothing more than going out chatting with farmers, having a cup of tea on the verandah and patting the dog. He’d enjoyed his work; they’d had any number of reports from his colleagues of the respect with which he was held. He had to be tough at times: that was his job, dealing with people potentially breaking the law and being caught doing it. But he was a friendly, professional officer. The defence was acting more like a prosecution.
The Crown riposted that Turner’s supposed tendency to harass was in fact a function of his duties: to repeatedly inspect a property over time, especially when faced with a recalcitrant alleged offender; to diligently pursue his enquiries and gather evidence. All compliance officers did this, as well as they could, covering multiple cases over a huge territory.
In the end, the attempt to prove tendency was unsuccessful. Turner hadn’t had a tendency. He’d just had a job.
More compelling was the argument around provocation. Extreme provocation in cases of murder is invoked if the dead person had committed a serious indictable offence – for example, stalking – that would cause an ordinary person to lose control sufficient to kill someone. It does not apply if the accused began the process of provocation. It can apply even if the perceived provocation was not immediately before the crime – for example, if Turnbull hadn’t set eyes on Glen Turner for two years before he shot him.
The defence team had subpoenaed all of Turner’s OEH notebooks and files to support the case for provocation. Todd Alexis argued that Turnbull had shot Turner because Turner was on Talga Lane, taking photos of ‘Colorado’ without notice, and that Turner’s conduct from August 2012 (when he’d gone to the properties with other compliance officers) to the day of his death had amounted to harassment enough to drive an ordinary person to lose control as far as killing or grievously hurting him. He alleged that Turner had a fixation on ‘getting’ Turnbull – for example, he allegedly told Anna Simmons of the clearing, ‘We’re going to get them for that. It’s clear that they are doing this for the money.’ His ‘persistent contact with the accused and his family and their properties may properly be described as harassment’ because it was done with ‘hostile intent’, causing the accused to ‘fear mental harm to himself or a family member, or at least in the knowledge that it was likely to cause such harm’.
After hearing the evidence, Justice Johnson released a decision that had grave impact for the Turnbull defence. The jury, he said, would not be evaluating the partial defence of ‘extreme provocation’. If the accused did not prove any of four elements of ‘extreme provocation’, the defence would not go to a jury determination. And Justice Johnson ‘did not accept the submission of the Accused in this respect’. He had concluded that Turner’s conduct hadn’t constituted a serious indictable offence.
In Johnson’s view, Turner hadn’t breached the Native Vegetation Act, but followed it. He had not trespassed. Aerial inspections were routine and justified. ‘It was,’ he said, ‘the ongoing activities of the Accused and his family with respect to the properties and land clearing which attracted the ongoing, regular and understandable attention of the OEH’. Rather dryly, he continued: ‘It may be the case that a person who is being spoken to about possible breaches of the Native Vegetation Act (let alone being prosecuted for such alleged conduct) may feel harassed or under pressure or will experience other negative feelings towards the officer whose task it is to ensure compliance with these laws.’ The statement Turner made to Anna Simmons, said Johnson, indicated that he was going to act on breaches of the Act. That was exactly what had happened. ‘In due course,’ the judge observed, ‘the Accused pleaded guilty to this offence.’
The Turnbull camp digested this turn in the case. It had seemed obvious to them that Turner was rogue, a dark shadow upon their lives that they hadn’t deserved. Where to from here?
PAT BARRETT, CROSS-EXAMINING, RECOUNTED the first bullet and the last, and asked, ‘You aimed to kill him both times, didn’t you?’
‘Yes.’
It was 16 May, and Turnbull was in the witness stand. It was not going well.
Earlier, Todd Alexis asked how he felt after he fired the first shot. Once he lifted his gun, pointed it at a man’s head and fired. Turnbull reimagined the road, the twilight, the expression on Turner’s face as he fell to one knee, clutched his face. Ian, what have you done? ‘When he fell I thought, I’ve killed him, and I didn’t want to kill him,’ he said. ‘I don’t know why I thought a bullet wouldn’t kill him, but that’s the way it was.’
Turnbull had a hearing aid by this time. He could hear the reaction of the onlookers. He could hear his own voice saying it.
He told the court the familiar story. Ivan Maas had seen Turner in a car and told him. Turnbull had gone down County Boundary Road to find them and couldn’t. He’d guessed they were down Talga Lane. He wanted to make contact with them.
‘Why?’ asked Alexis.
‘Well, he hadn’t notified that he was coming and he seemed to be continually there.’
And then he got his rifle from under the seat, drove in behind Turner’s vehicle and stopped.
‘I was thinking that I was going to shoot him.’
‘Had you decided?’
‘Yeah, I think so, yeah.’
‘Why?’
‘Because he’d been plaguing the family for two years, just in Grant and Cory’s situation, and …’ – he said something about Roger too, got a bit muddled. ‘Glen Turner was in the paddock and Mr Strange said, “There’s somebody here with a rifle”, and Glen put his hand on the post and hopped over the fence and he ran past me, as I fired, fired for his head. I was very … I didn’t know whether … I was extremely nervous at that stage.’ He gazed at Alexis, remembering the thoughts rushing through his mind as he gripped the slender rifle. It was a .22, kept for shooting pigs. ‘Will I or won’t I?’
Those in court listened soundlessly. They could all see the dusk of Talga Lane.
‘The calmness came over me like I couldn’t believe,’ said Turnbull. ‘And that was it, it was finished.’
Barrett rose. He made Turnbull go through the tale again. He got him to remember that he hadn’t drawn the rifle out from under the front seat a
s he drove, had he, but had stopped, got out, put the rifle – which he knew was always loaded with an empty shell in the breach – in the open back tray, and then driven further along Talga Lane to reach the men. Then he had stopped, got out, fetched the rifle from the tray and walked over.
This was the first time Alison McKenzie had heard that Turnbull had prepared the gun before he arrived on Talga Lane. She listened, writhing inside. In a moment she would hear the man who had killed her Glen tell of the moment before he did it. Tell these strangers how he did do it.
Turnbull insisted Turner had been in his paddock, on the wrong side of the fence. He told how Turner had put his hand on the top of a post and hopped back over the fence, run across towards the road; how he had sworn at the two men and said, ‘Turner, you bastard, you wanted to put the Turnbulls off their farms and you’ve done it.’ And how he had fired a shot at Turner’s head. He’d fired again as Turner ran for the cover of the car.
‘You aimed to kill him both times, didn’t you?’ said Barrett.
He thought, he told Barrett, that Turner might be going for a gun when he reached into the vehicle. ‘They go out on to farms there, they must have some sort of protection, yeah.’
‘And you knew when you went and took that rifle,’ said Barrett carefully, ‘that he was a law enforcement officer trying to enforce one of the laws of this state, namely the Native Vegetation Act?’
‘Well, I maintain that the bulk of what we cleared was regrowth,’ said Turnbull, ‘and he wouldn’t have a bar of that.’
Barrett reminded him the issue was not whether he was guilty of illegal clearing, but that Turner was an officer of the law. Turnbull said he thought that if police had guns, a compliance officer might.
Inevitably, they did get into a review of the land-clearing contretemps. ‘You didn’t like the effect of the Native Vegetation Act, did you?’ Barrett put to him.
‘Well,’ said Turnbull drily, ‘the answer to that would be no.’
Yet again, it was all rehashed: the Turnbulls purchasing the properties to convert to cropping, that they knew there would be restrictions, whether they believed those restrictions would apply to them. Turnbull repeated that he had believed much of it was regrowth that could be cleared. He was reminded he’d still have needed to get permission; he hadn’t had that permission; he’d begun clearing regardless. He clung to his defence that he believed it was clearable under the law. Todd Alexis listened, impassive, to arguments he had heard for years now in the New South Wales Land and Environment Court sitting, as he was now, beside a Turnbull.
They came to the last days before the shooting. Turnbull was, he said, working on ‘Colorado’ from a map Grant had given him, designating what areas were to be cleared. Barrett suggested the intense work was because the Turnbulls knew those orders were coming. Turnbull said there were still 800 acres left unfelled on ‘Colorado’ at that time, out of 3900. ‘The way we have left it there now it can be farmed as a broadacre farm,’ he said. ‘There is hope there for the environment.’
Barrett raised Roger Turnbull’s run-ins with the OEH after he’d cleared without permission. He was incredulous that Turnbull could have remained oblivious to the stringency of the laws. Turnbull replied that Roger had been clearing paddock trees; it was quite different. Besides, he said sharply, every farm from “Yambin” to “Colorado” has had a bulldozer on it. The environmental officers had ignored all that, he said, ‘and they’re not silly. They know what’s going on, so they were honing in on the Turnbull family to make an example.’
They returned to the last shot, into Turner’s back as he ran to the trees. Turnbull sensed it was fatal. He told Strange, ‘You can do what you like now, I’m going home. You can tell the police, they’ll know where I am.’ Why hadn’t he called an ambulance? He’d thought Robert Strange would do that, he said. He’d forgotten there was poor mobile coverage in Talga Lane. ‘I wasn’t in a state of mind to think like that.’
The clearing, said Turnbull, had been finished on ‘Colorado’ that day. ‘Strathdoon’ was already done. ‘We left areas for the habitat,’ he said. ‘We left the corridors for the habitat, and fire breaks and wind breaks, and spray drifts also play a big part in crops, spray drifting, stopping the crops with spray drifting.’
Was it true, then, that Turnbull had been the victim of a misunderstanding? Preoccupied, elderly, he had been given the maps to clear ‘Colorado’ by his son, and those maps, the son would later claim, had simply been incorrect. A piece of bruised paper fluttering on the passenger seat of a farm vehicle. He knew nothing of the intricate native vegetation laws, their clauses and caveats, but he did know about habitat, something of conservation farming. For such a man, pursuing the ethos of improvement he’d inherited, Turner’s accusations might have seemed manic, preposterously hostile. How was Ian Turnbull, born in 1934, expected to comprehend the difference between one kind of regrowth and another; one polygon of sacred scrub from another fit to be crushed?
But, Barrett put to him, he’d kept clearing even after he’d been convicted. He knew it was illegal. He’d been caught again, hadn’t he?
‘I would have done it in any case.’
‘You would have done it in any case?’
‘Yeah.’
‘You would have done it regardless of any action taken against you under the Native Vegetation Act?’
‘If we would have done nothing, we would have walked away. If we did this, we’ve got a chance of growing some crops and being able to get some sensibility into the system … We cleared in a responsible manner. They weren’t doing it to anybody else around. There was clearing going on, and they never saw an environmental officer.’
A man had been killed. It seemed Turnbull could think only of his resentment, the clearing, the land. It was the last of the black soil and it had to have a crop on it.
16
And he said, What hast thou done? the voice of thy brother’s blood crieth unto me from the ground. And now art thou cursed from the earth, which hath opened her mouth to receive thy brother’s blood from thy hand; When thou tillest the ground, it shall not henceforth yield unto thee her strength; a fugitive and a vagabond shalt thou be in the earth. And Cain said unto the LORD, My punishment is greater than I can bear.
—Genesis 4:8-13
In August 2014, a psychologist asked Turnbull if he felt remorse for Turner’s death. ‘Well, I do, of course I’m remorseful for the man and his family. I have remorse. I do feel sorry for what happened, and for the bloke who was with him I feel sorry. I could have shot him too, but I didn’t know him. I think maybe I should have shot myself, but I just wanted to see Rob one more time.’
He’d driven home from the scene just to be with her for a few hours. ‘We’ve had a good life together,’ he said. ‘And then the police came.’
GRANT TURNBULL STEPPED INTO the witness stand the same day as his father. A tall, trim, dark-haired man with glasses, he wore a suit. Recalling the night of the tragedy, he spoke confidently. When he’d heard that his father had killed Turner, he felt, he said, ‘complete and utter disbelief’.
Scott Kennett, driving through the dark towards Talga Lane, had called him in Toowoomba after the radio call from Turnbull. ‘Dad would not do anything like that,’ Grant told the court he’d thought at the time. He’d been aware of his father’s tension, and the stress of the mounting legal cases. ‘Was he really that bad? How did I miss the mark? It was a numb feeling I haven’t felt before. It was complete disbelief,’ he tried to explain. ‘Just numb.’
His father had been feeling down, Grant said.
‘You didn’t suggest that he go and see a doctor or suggest that he get treatment?’ Pat Barrett asked.
‘No,’ said Grant. ‘Unfortunately now – no.’
THREE DAYS LATER, ON 19 May, the defence made the case for Turnbull’s substantial mental impairment. Three psychiatrists – Olav Nielssen, David Greenberg and Adam Martin – had assessed Turnbull’s mental state in the period be
tween 2014 and 2016.
Nielssen, a consultant psychiatrist at St Vincent’s Hospital in Sydney who had examined Turnbull in custody for three hours a week after Turner’s death, and again two years later, opened. He told the court that in 2014 he’d found Turnbull wandering in his conversation. Cognitive function tests suggested mild dementia, but Nielssen thought it might be ‘pseudodementia’: symptoms similar to dementia but temporary, brought on by depression, not permanent degradation of the brain. Turnbull had the ‘rigid and inflexible thinking’ typical of an elderly man, but also displayed ‘melancholic features’ pointing to a severe illness.
Nielssen had taken into account Turnbull’s family history of depression, as well as Turnbull’s bout of depression needing medication in the 1960s. Melancholic depression, a form of major depressive disorder, he explained, would be characterised by a negative worldview and a miserable outlook; problems solving dilemmas or making decisions; morbid preoccupations. Turnbull’s issues with insomnia, weakness and loss of appetite, he judged, were not explained simply by old age and stress.
In the initial evaluation, Nielssen listened to Turnbull raving about Turner. He seemed obsessed with explaining. He went on with a singular focus – ‘I mean, literally constantly, repeating his name,’ Nielssen emphasised, ‘constantly complaining about things that he’d done.’ He was surprised, later, to learn that the two men hadn’t met for years; from Turnbull’s telling, Nielssen believed the harassment Turnbull claimed he’d experienced was recent. ‘It was almost a fantasy in his [Turnbull’s] mind that Mr Turner was persecuting him. He became fixated with it.’
The symptoms of melancholic depression, according to the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), include lethargy, sleep disturbance, loss of appetite, loss of ability to enjoy activities, loss of energy, problems concentrating, feelings of hopelessness or worthlessness or guilt, suicidal ideation, loss of libido, no emotional response to even dramatic events; instead, agitation, including wringing hands, or else the opposite, immobility, withdrawal. The symptoms have to persist for a reasonable length of time, at least two weeks. It is debilitating: a person with melancholic depression cannot function. It would be highly unusual for that person to be able to get out of bed and work. But the obsession with Turner, Nielssen believed, led Turnbull to overcome the enervation of major depression in order to drive a bulldozer for nine days straight. It was ‘remarkable’. ‘It almost seems like a coping style to force himself to go to work … His obsession with work in those six months I think was just a way of coping with how he was feeling.’
