DPP v Selway (No 2)

[2007] VSC 243

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1524  of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MAXWELL SELWAY

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Ruling No. 2

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2007
DATE OF RULING:	6 February 2007
CASE MAY BE CITED AS:	DPP v Selway
MEDIUM NEUTRAL CITATION:	[2007] VSC 243

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Criminal law and procedure – murder – evidence – public interest immunity – 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:

1. By subpoena issued on 29 January 2007 the legal practitioners for the accused, Mr Selway, have sought the elicitation of material from Victoria Police as to surveillance methodology hopefully to found a submission that the conversations at the accused’s residence at Phillip Island in 1997 in which the accused made certain statements are incapable of lawful proof.  The argument is that they were unlawfully recorded because although there were relevant State listening device warrants there was no Commonwealth warrant under the Telephone (Interception) Act 1979 and, so the argument goes, the provisions of s.7 thereof were breached because there was an interception of a communication passing over a telecommunications system.

1. I consider that the objection by Mr Dennis, appearing by leave for the Chief Commissioner of Police, that there is no forensic purpose made out for the elicitation of material on the voir dire is made out.  There is no forensic purpose because I consider, taking Mr Faris's arguments at their highest on the facts and the law, they cannot as a matter of law successfully found a submission that s.7 was breached.  Essentially that is because, in my view, the conversations in a room between two persons face to face which were overheard and passed over on a telecommunications system were not conversations to which s.7 applies because they were not between users of, or by a user of, the telecommunications system.

1. Because the matter involves statutory construction and a large number of authorities I will reduce my reasons to writing and publish them to the parties.  I conclude that Mr Faris's argument founders on that first and in my view critical point and thus is stillborn and cannot produce in law any result favourable to the defence.  Thus no forensic purpose is served by further investigating the matter.

1. Accordingly I refuse the seeking of the data by way of subpoenae and I excuse Mr Dennis hereafter from the further conduct of the trial.

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