DPP v Selway (No 5)
[2007] VSC 246
•23 February 2007
| 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. 5
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2007 | |
DATE OF RULING: | 23 February 2007 | |
CASE MAY BE CITED AS: | DPP v Selway | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 246 | |
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Criminal law and procedure – murder – evidence – admissibility - circumstantial case – lack of cooperation by accused with police investigation inadmissible – attempts by accused to defeat police investigation admissible – concern by accused as to police investigation admissible – R v Alexander (1994) 2 VR 249 distinguished.
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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 |
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HIS HONOUR:
In this circumstantial case a number of matters have fallen for determination as to their admissibility. I will deal with the matters categorically. The first category, as expressed in the prosecution response document of 15 January 2007 at p.27, is "Failure to cooperate with police investigation into Angelo Romeo's death". Under that category the prosecution submits the conduct of the accused, which it is said demonstrates a failure to cooperate with the police investigation or a lack of concern as to the police making due enquiry of the missing person, constitutes admissible evidence of guilt of the crime charged of murder, the admissibility being that the conduct is inconsistent with innocence.
Essentially, the prosecution relies upon R v. Alexander[1]. In that case, as appears at pp.263-264, ground 5 of the appeal was that:
"The learned trial judge erred in failing to rule as inadmissible evidence from the police witnesses Solomon and O'Loughlin as to the failure of the applicant to enquire as to the welfare of his wife."
[1](1994) 2 V.R. 249.
By analogy, it is sought to put here that Mr Selway's failure to enquire or to pursue enquiries of the police about the whereabouts of the deceased is capable of constituting admissible evidence. However, it is notable that in Alexander's case there was a spatial and temporal nexus which is lacking in the present case and further, and I think significantly, there was in Alexander's case a character of relationship which is lacking in the present case.
In Alexander's case the accused came home to the house in the morning and but a half a dozen steps away from him outside the house was the slaughtered wife within the house -slaughtered by him, the prosecution case was, and the jury so found - and there was thus an immediate spatial and temporal connection between the position of the accused and the position of his dead wife; and yet he made no request or attempt to step into the house to see his wife. There was thus a distinct spatial and temporal nexus not present in this case. Further, the deceased was the wife of the accused in Alexander's case. The deceased in this case was not a relative, certainly not a wife or husband of the accused. The prosecution relies upon some statements in the interview of the accused at Wonthaggi Police Station on 30 May 1997 in which the accused was warned but not charged in relation to the murder. In that interview the accused said that he had known the then deceased for 15 plus years, that they had "a very good relationship" (answer 236), that they were "Good friends, mate. Brother-type of relationship" (answer 237), "We're very good friends" (answer 230), and "Never had any argument with him" (answer 250). The prosecution have sought to establish on the basis of the "brother-type of relationship" an analogy with the husband and wife in Alexander. In my view, that falls distinctly short of that of husband and wife living together as in Alexander.
For those reasons I consider that the reliance by the prosecution on the principle in Alexander is not made out in this case in respect of the lack of cooperation with the police investigation.
Further, Mr Gamble, in his most helpful submissions on the matter, when asked by me what should the accused have done in relation to the police, said that "(the accused)", at p.362, "supposedly as a concerned close friend of the deceased, to try and locate him, (why) doesn't he follow that up, if that concern is genuine, by doing things such as keeping in touch with the police to find out how they're going with the enquiries?" In my view that analysis is distinctly too speculative and uncertain to constitute a priori proof of guilt of this crime charged. It may be an appropriate matter to pursue in cross-examination if in this case the accused gives evidence, but it, in my view, is too speculative and uncertain to constitute a priori proof of the crime charged.
Accordingly, I consider that Alexander's case does not assist the prosecution in propounding to the jury that the accused should have done other things with the police than that which he did, which was the reporting of the missing person - a report of falsity, the Crown contends.
If the prosecution has proof of lack of enquiries to relatives and associates whom in the ordinary discourse of humanity one would expect a person to make of a close friend and a business associate, that is a different thing. That is simply ordinary enquiries one would expect. The prosecution is entitled to rely upon that in the ordinary discourse between friends, relatives and associates; but lack of cooperation with the police investigation is a different category and, in my view, does not satisfy the criterion in Alexander's case.
Next, I turn to some specific factual matters which I consider are not admissible. In the statement of Senior Sergeant Nolan, of the Transit Safety Division Office, of 11 November 1997, replicated at pp.504 to 505 of the depositions, I consider that the expressions of opinion by the Senior Sergeant are inadmissible. Those expressions of opinion are:
"I informed Selway and Pierina Romeo that I would require a statement from them in relation to Angelo's disappearance. Both were reluctant to oblige at that time, as they had arranged to attend in Melbourne that evening to speak with Angelo Romeo's relatives."
The enquiry and the declining are admissible if expressed in neutral terms. But any judgment about reluctance is, in my view, inadmissible because it is an expression of opinion. If the evidence is that they simply declined because they had to go to Melbourne, that is admissible and it is not an expression of opinion. The sentence "Both appeared confident that Angelo Romeo had met with foul play and the news to relatives was to be a death message" in that form is inadmissible. If there is a statement in terms by the accused to the Senior Sergeant, that is admissible because it is a relevant statement by the accused; but not a characterisation by the officer, so that needs to be looked at in terms of whether there is a memory or a note by the Senior Sergeant of what actually the accused said. If the accused said to the officer that "I think Angelo met with foul play and I am going to tell the relatives it's a death message" or whatever the expression is in terms, that is admissible, but not an opinion or a version which is not accurate or purportedly accurate as presently appears in the statement.
At the top of p.505, I consider the expression "Both Selway and Pierina Romeo were non-committal with many questions. I attributed their evasiveness to the fact that Selway was an abalone poacher", et cetera is inadmissible. First, it is an opinion as to whether they were non-committal or not. It is not a statement or summary of conversation and is inadmissible on that ground; and of course, as I know the prosecution would not seek to lead, the second part of that statement is inadmissible on the grounds of prejudice as well, so that goes out.
Next, the statement of Detective Senior Sergeant McKenzie of the Bendigo Criminal Investigation Unit again has a number of inadmissible elements in it. The statement made on 23 April 2003 appearing at pp.250 to 254 of the depositional material.
The context of that, chronologically speaking, was that at about 3.30 pm on Friday 30 May 1997, the body of the deceased had been found by police at Thornbury. The accused made a witness statement that afternoon at the Wonthaggi Police Station which statement concluded at 5.35 p.m, before the police discovery of the body was known to the accused. After the discovery was made known to the accused, commencing at 9.37 pm that Friday night the accused made a record of interview in which at its commencement the accused was informed of his rights. The accused answered all police questions. The interview concluded at 11.27 pm, but the accused was not charged with any offence.
According to the statement of Detective Senior Sergeant McKenzie, at 7.17 p.m., that is after the conclusion of the witness statement and before the commencement of the interview on Friday 30 May 1997, the officer spoke to Mr Selway at the Wonthaggi Police Station as follows:
"At 7.17 p.m. I spoke to David Selway and told him what had been found at Northcote. Mr Selway did not seem to me to be surprised and at times when I spoke to him he displayed signs of being angry and upset which I thought at the time was strange."
He then referred to him speaking to Mrs Romeo. At the end of that passage the officer stated:
"Again, I was also surprised by her reaction to my information. She appeared to accept the information very calmly."
That matter, of course, is not admissible against the accused - it is a reaction of Mrs Romeo - but I refer to it because the contrast is that one person is angry, the other person is calm, and apparently both states of exhibition are to be treated as incriminatory, even though the states of exhibition are the opposite.
On Saturday 31 May 1997, that is the next day, at the McPhee's Road property at Rhyll, the officer spoke with Mr Selway and the following appears at p.251:
"David Selway was very angry and upset and argumentative about our questions and approach, which I thought at the time was very fair and open. I told him that he had the right to stop us and he would. I also explained to him that I found it unusual that he should be so upset about us trying to piece together everything we could about Angelo and his movements and asked for his co-operation."
In my view all of those expressions of opinion, being the Friday evening and the Saturday expressions of opinion, are inadmissible. They are simply expressions of opinion. The fact that Mr Selway "did not seem to me to be surprised" is an opinion based upon an uncertain foundation. The fact that Mr Selway "displayed signs of being angry and upset" is an expression of a state of exhibition, but it is entirely uncertain and speculative what that truly connotes. Likewise on the Saturday when he was "very angry and upset and argumentative about our questions and approach."
Against what standard is it that Mr Selway's behaviour is being judged? Is he being judged in comparison with a mild person? Is he being judged in comparison with a person who might naturally be an assertive and aggressive person? Against what human criteria is he being judged? In my view the officer’s statements are an expression of opinion which is inadmissible, both on that account and because it is uncertain and speculative.
Accordingly I rule those passages inadmissible. The actual content of what was said is a different thing. But the expressions of conclusion and the judgments about whether Mr Selway was argumentative or not are inadmissible.
I will mention one further matter which I am sure the prosecution does not intend to lead, but as it is relevant I will mention it.
In relation to the inspection of the wine cellar at the Rhyll property, Mr McKenzie stated at p.252 "When I was thinking about the water in the cellar it dawned on me that this was unusual" et cetera. Again, that is not admissible and I am sure the prosecution would not be seeking to lead it. Evidence of objective phenomena, of course, is admissible if relevant, but not evidence of opinion.
In relation to the Homicide interview of the accused late on 30 May 1997 it is relevant to note that at the commencement of that interview as appears at p.658 in the depositions the accused was informed that he was not obliged to say anything but that anything he said may be given in evidence. He was also informed of the right to communicate with a legal practitioner. When asked following those giving of rights, "Do you wish to exercise those rights before we proceed with this interview?" the accused answered "Well, is this interview in relation to helping you find what happened to Angelo or is this an interview to say to me 'David, you're in a lot of trouble here or what?' You answer me clearly." Question: "David, I believe that you drove the van down last Thursday, as in yesterday?" Answer: "That's correct, yes." Question: "That the body has been located in?" Answer: "That's correct, yes." Question: "I just want to ask you some questions about that." Answer: "All right." At the conclusion of the interview, at 11.27 p.m. in question 318 the interviewing officer said "We'll cease the interview. We're going to make a lot of enquiries about this and it maybe a little bit down the track that we have to speak to you again about it." That concluded the interview. As I have said, the accused was not charged with any crime at the time.
The balance of the material I consider that is in dispute is admissible. First, the story which the prosecution says is fabricated by the accused about the deceased cutting his foot is demonstrably admissible. The evidence of Dr Lynch in the autopsy conducted on 31 May 1997 which appears in his statement of 10 February 2004 at p.465 clearly founds a prosecution argument that that was a false and incriminatory story. Whether in the end the jury takes that view, of course, is a different question, but in terms of admissibility it is clearly admissible.
In relation to the category in paragraph 111 of the prosecution response of 15 January 2007, that is concern about the police investigation, in my view the material sought to be relied upon is admissible. Concern about and attempts to deflect the police investigation are in quite a different category to the so-called lack of interest in the police investigation, which I have ruled as inadmissible. Concern about and attempts to deflect the police investigation are, in the appropriate circumstances and with the appropriate judicial direction to the jury, capable in law of being part of a circumstantial case of guilt.
Again, no opinion evidence can be led but objective evidence of objective conduct can be led. Thus the material in the 1997 tapes identified in paragraph 111 of the prosecution response, and likewise the concern about the mobile telephone calls in the 1997 tapes in paragraph 112 of the prosecution response, including the seeking to dissuade Mrs Romeo from making a police statement, are admissible. That is to say a positive attempt to dissuade as distinct from a lack of encouragement to do, the latter not being admissible, the former being admissible categorically speaking.
Finally, in the draft opening summary of the prosecution, paragraph 17 at p.16, the absence of statement by the accused that Mr Deering was with the accused when the accused left Phillip Island is admissible, in my view, because the prosecution seeks to utilise that for a legitimate purpose, namely to found the proposition that two vehicles were necessary to leave Phillip Island, one being the van with the body and one being the vehicle to return to Phillip Island. That is a permissible argument for the prosecution to advance.
Accordingly, in summary, the lack of cooperation with the police and the lack of interest in the police investigation, in my view is inadmissible against the accused.
The various expressions of opinion as to whether it was strange and in what affective state the accused was, are inadmissible. On the other hand, what is admissible are statements of what the accused actually said, if relevant, and second, the expressed concern about the police investigation and attempts to deflect it.
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