Criminal law and procedure – murder – evidence – subpoena seeking material as to police surveillance methodology - public interest immunity – proper test therefor – test of reasonable possibility that the information sought would materially assist the defence – “on the cards” test inappropriate - lawful listening device pursuant to s.4A Listening Devices Act 1969 (Victoria) - question of application of s.7 Telecommunications (Interception) Act 1979 (Commonwealth) – whether interception of communication passing over a telecommunications system.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Gamble, SC Ms S Pillai	Office of Public Prosecutions
For the Accused	Mr P Faris, QC Mr I Hayden	Rainer Ellinghaus
For the Chief Commissioner of Police (Victoria) (by leave)	Mr B M Dennis	Victorian Government Solicitor

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HIS HONOUR:

Preface

In Ruling No. 2 I refused the provision to the defence of material in the hands of the Chief Commissioner of Police as to surveillance methods utilised by investigating police and which was sought on behalf of the accused in order to found a submission for exclusion of evidence. The evidence sought to be excluded is numerous statements by the accused in private conversation in his home and a vehicle and which were clandestinely received and recorded by Victorian police pursuant to warrants issued by this Court. The crime charged is murder. The conversations were between the accused and the wife of the deceased, following the killing of the deceased and which the prosecution says are incriminatory of the crime charged. The conversations occurred at Phillip Island, Victoria and were recorded by police in Melbourne. They were heard and recorded pursuant to three warrants issued by this Court: the first on 1 July 1997, the second on 18 July 1997 and the third on 11 August 1997. The essential defence submission is that if the conversations at Phillip Island and which were heard and recorded in Melbourne were transmitted between Phillip Island and Melbourne by telephonic communication, that transmission contravened the provisions of s.7 Telecommunications (Interception) Act 1979 (Commonwealth) which proscribed interception of a communication passing over a telecommunications systems unless a Commonwealth warrant had been obtained therefor. It is common ground that no such Commonwealth warrant had been obtained or was in existence at the relevant or at any time. Thus, so the defence argument runs, the evidentiary material obtained lawfully by State warrant, but unlawfully by lack of Commonwealth warrant, is inadmissible. In order to found such submission the defence seeks by way of subpoena directed to the Chief Commissioner of Police (Victoria) data as to the method of capturing, transmitting, receiving and recording of the subject conversations, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Selway

Details

AGLC: DPP v Selway [2007] VSC 244
Case: [2007] VSC 244
Decision Date: 2 July 2007

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Selway was heard in the Supreme Court of Victoria. The defendant, Selway, was charged with murder. The dispute centred around the admissibility of certain evidence obtained through police surveillance, specifically whether material concerning the police surveillance methodology should be disclosed to the defence. The central legal issues revolved around the application of public interest immunity and the proper test for determining whether such information should be withheld from the defence. The court was required to decide whether the test of a reasonable possibility that the information sought would materially assist the defence was appropriate, and if the “on the cards” test was an acceptable standard. Additionally, the court needed to consider whether the use of a lawful listening device pursuant to the Listening Devices Act 1969 (Victoria) was subject to the Telecommunications (Interception) Act 1979 (Commonwealth).

The Supreme Court of Victoria held that the test of a reasonable possibility that the information sought would materially assist the defence was the correct approach, rejecting the “on the cards” test as inappropriate. The court found that the public interest immunity should only be applied if there was a reasonable possibility that the information sought would materially assist the defence. The court also considered the applicability of the Telecommunications (Interception) Act 1979 (Commonwealth) and found that the use of the listening device did not constitute an interception of communication passing over a telecommunications system as defined by the federal act. The Supreme Court thus ruled that the evidence obtained through the lawful listening device could be admitted in the trial.

The court's decision clarified the test for public interest immunity in the context of police surveillance evidence, emphasising the need for a reasonable possibility standard. The Supreme Court also provided guidance on the interplay between state and federal interception laws, determining that the use of a lawful listening device under state law did not necessarily trigger federal interception requirements. The final orders of the court allowed the evidence obtained through the listening device to be admitted, while also providing clarity on the appropriate test for public interest immunity in such cases.

Orders