DPP v Selway (No 9)
[2007] VSC 247
•2 March 2007
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| 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. 9
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2007 | |
DATE OF RULING: | 2 March 2007 | |
CASE MAY BE CITED AS: | DPP v Selway | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 247 | |
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Criminal law and procedure – murder – evidence – admissibility – recordings of accused derived from lawful listening devices – enhancement – considerations applicable – use of transcript – Butera v D.P.P. (Vic.) (1987) 164 CLR 180.
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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:
The accused, Mr David Maxwell Selway, is charged with the murder of Angelo Romeo at Phillip Island on or about 25 May 1997. The body of the deceased was found at Thornbury on 30 May 1997.
That night at Phillip Island the accused was formally interviewed in relation to that death, but not charged with any offence. In fact the accused was not charged with the murder until his arrest on 21 August 2004. In the interim, listening device warrants were obtained from this Court pursuant to the provisions of Listening Devices Act 1969, the then relevant legislation.
On 1 July 1997 a Listening Device Warrant was issued by this Court in relation to premises described as the Shearwater Restaurant situated at Lot 5, Phillip Island Tourist Road, Phillip Island, together with certain motor vehicles, the authorised period being from and including 1 July 1997 to 21 July 1997. Then on 18 July 1997 a further Listening Device Warrant was issued by this Court and on this occasion the premises were described as "on premises situated at Lot 5, Phillip Island Tourist Road, Phillip Island", the relevant dates being from and including 22 July 1997 to 11 August 1997. Thirdly and finally, although irrelevant for this Ruling, a Warrant was issued by this Court on 11 August 1997 in relation to vehicles only, the relevant period being from and including 12 August 1997 to 1 September 1997.
Nothing now turns upon the description of the premises at which the warrants authorised listening devices. It was at one stage suggested by the defence that because the first warrant related to the restaurant, as distinct from the house in the complex, the warrants were not fulfilled and the listening was unlawful. That is not persisted in. As I say, the second warrant relates to the premises unspecified as to restaurant or house, they being in the same complex and apparently at the same address.
The prosecution in this case seeks to tender as evidence, and rely upon, certain evidentiary material deriving from the listening lawfully done pursuant to those warrants. The material the prosecution seeks to rely upon commences with CD14 in the house at Lot 5 on 22 July 1997 and concludes with CD107 in the house on 1 August 1997, together with, on that same date, two CDs in a vehicle, being CDs 115 and 116. That is the material that the prosecution seeks to tender in evidence before this jury. That, of course, is but a small amount of the many hours of the recorded conversations of the accused and other person; but that is what the prosecution seeks to tender before this jury in proof, the prosecution says, of guilt of the crime charged.
The methodology by which the relevant data was captured and recorded was that the material was captured and recorded on VHS tapes - putting aside that parallel to that, but independently of it, audiotapes were also activated from time to time by listening post officers, which matter is no longer a subject of submission. The VHS cassette tapes were the entities by which the relevant sounds were captured and recorded.
It is not the VHS tapes in their original form which the prosecution wishes to propound before this jury, but rather an enhancement of them, and that is the nub of the disputation on this voir dire. It is appropriate, therefore, to state briefly the history of the matter.
The VHS tapes were created in 1997 between the times which I have stated, in particular 22 July to 1 August 1997. They were then played and listened to a number of times by investigating officers, the accused not being charged until 21 August 2004. The forensic officer, Mr Jason Ferridge, who holds a Batchelor of Applied Science (Applied Physics) and a Graduate Diploma of Humanities (Linguistics) and who has had many years’ experience in the field of audio technology and is of the Audio section at the Forensic Services Centre, Macleod, in 2002 by means of computer and utilising a designed programme, copied the relevant parts of the VHS tapes on to his computer in digital format and then enhanced those digital files. By “enhancement” is meant that background noise such as that of television in the house was lessened. Other than that enhancement the original sounds were not altered. No spoken words were altered or edited in any way. Mr Ferridge then produced what is called the “enhanced CDs”. He then deleted the digital files from his computer because of the vast amount of space they took. It is those enhanced CDs which the prosecution seeks to place before the jury.
Before turning to the law, I will state briefly the chronology of the material as between the parties in this case.
The committal was held at the Melbourne Magistrates’ Court between 4 and 27 July 2005. A year before that, on 20 September 2004, the police brief, including 120 compact discs of the enhanced material, was served upon the defence. On 3 October 2004 copies of the original VHS unenhanced tapes were served upon the defence. The committal, as I say, occurred in July 2005. Between 19 September 2005 and 24 January 2006 the defence was provided with the original VHS tapes on a one-by-one basis, including master tapes. Thus it is that the defence has had since September 2004, two and a half years, the enhanced material, and since December 2006 to January 2006, more than a year, the original VHS material. The prosecution has not transferred the original VHS material unenhanced on to CDs or produced transcripts of it. The defence in the amplitude of time it has had the material has done so for itself. The defence now propounds that the prosecution should now do that which it has not done but which the defence has done, namely place on to CDs the original unenhanced VHS material and do transcripts thereof.
In my view, that proposition by the defence is founded upon an error of law and is not justifiable as a matter of fair trial. Accordingly, I turn to the relevant law.
The foundation principle is stated in Butera v Director of Public Prosecutions (Vic).[1] In the judgment of the majority, Mason CJ, Brennan and Deane, JJ at 186-187 the following is stated:
"It is desirable to add however that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process, and the provenance of the copy tape are satisfactorily improved, there is no reason why the copy tape should not be played over and over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes."
Their Honours there cite as authority R v. Matthews & Ford, Catala and Noble, R v Papalia and R v Controne. That is the critical foundation of law applied many times since that formulation by the High Court 20 years ago.
[1][1987] 164 CLR 180.
In R v. O'Neill,[2] which primarily concerned the question of transcripts being provided to a jury, the Court of Appeal proceeded upon the basis, as is evident from paragraph 9 of the judgment of Ormiston, JA and paragraphs 39, 45, 46, 48 and 77 of the judgment of O'Bryan, AJA, that the provision to the jury of enhanced tapes is permissible consonant with Butera's case, as demonstrably it is.
[2][2001] VSCA 227.
Finally, the Court of Appeal in R v. Taylor[3] said the same thing again but with a very important qualification, to which I shall come. In the judgment of the Court at 651 the Court states:
"We therefore accept that Williamson J was correct in holding that the original and the enhanced tapes are admissible and that the written transcripts of them may be used as an aid to the jury's understanding of the tapes. It may, perhaps, bear repeating that, provided the methodology used can be effectively verified, and subject always to the overriding importance of ensuring that nothing unfair to the accused is allowed, the Courts will not exclude from the law of evidence the manifest advantages of electronic techniques and advances."
[3][1993] 1 NZLR 647.
That is stating the plain reality that the modern trial is not a Luddite exercise, and the use of modern technology is permissible provided the critical criteria are satisfied of the provenance of the material, and equally importantly the critical criterion is satisfied that the defence has full and proper locus to test and challenge that methodology.
I consider that Mr Faris's submissions, although most eloquently propounded, founder upon an error of law. That error of law is the submission that the enhanced material is not itself primary evidence, but is simply derivative or secondary evidence, and in order for it to be rendered admissible what Mr Faris would have as the primary evidence, that is, the original un-enhanced VHS material, must first be tendered in evidence and placed before the jury. In my view that is erroneous as a matter of law.
It has been clearly established in Butera, O'Neill, Taylor and numerous times in the 20 years since Butera that the enhanced material, if its provenance properly is established, stands alone as the evidence. It is not derivative; it is not secondary; it is not dependent upon something else being produced; it stands alone as evidence. Of course it may be that it can be affected by other evidence. On this voir dire I have waited anxiously to hear whether there was some evidence, some challenge in cross-examination, or some submission which propounded, that the enhanced CD in some way misrepresented the original data. No such cross-examination was put. No evidence from the defence to that effect was called, despite the fact that the defence has an expert working on the material and has had so for some time; and no submission was made of misrepresentation. All that was put at the end of the day, after a lengthy voir dire, was that the original VHS sounds were different in some ways to the enhanced sounds. One would indeed hope they were, otherwise enhancement is a waste of time. If all that the defence is putting is that the enhanced can be heard better than the originals that is the very point of the whole exercise and it is a circular submission. The defence has not put, and certainly has not called any evidence to the effect, that the enhanced material in some way misrepresents the original material. Its purpose was to try and eliminate some extraneous noises such as the TV, just as in O'Neill extraneous noises were lessened. To do otherwise is to fly in the face of modern technology. What has not been put, and it is conspicuous by its absence on this lengthy voir dire, is that there has been any omission, change, manipulation, interference or impropriety with any relevant data on the originals by the enhancement process.
Accordingly, in my view as a matter of law the defence submission is misconceived; and as a matter of evidence, which can indeed be critical in such cases as enhancement, nothing has been propounded that there has been any misrepresentation of the original by way of omission, change, manipulation, interference or impropriety with the original data or any other relevant matter.
Accordingly, on the first point I rule that the prosecution is entitled as a matter of law to proceed in proof in the trial with the enhanced CDs and transcripts thereof without producing before the jury the original VHS cassette tapes or transcripts thereof.
The second question, and it is important, is this. The necessary qualifications as the Court of Appeal rightly said in R v Taylor, is
" … providing the methodology used can be effectively verified, and subject always to the overriding importance of ensuring that nothing unfair to the accused is allowed … ".[4]
It is of course critical that in a criminal trial the defence has proper locus to test and challenge. Thus it would be unacceptable if the prosecution in a criminal trial sought to propound enhanced material and the defence had no method of challenging it by reference to the original.
[4][1993] 1 NZLR 647 at 651.
However, the opposite has happened in this case. Far from the prosecution seeking to propound enhanced material and the defence have no method of testing or challenging it, the defence has had this material for years. In my view the defence has had every and plenary opportunity to test and challenge it, and on the voir dire nothing has come forward. Because the defence has had that full and plenary opportunity to test and challenge it, there is no unfairness in the trial proceeding upon the basis in law of the admissible evidence being the enhanced CDs. During the trial, if the defence wishes, which it did not do on the voir dire, to propound by way of cross-examination or by way of leading evidence that the original VHS material is such that it undermines, contradicts or raises doubts about the sounds heard on the prosecution enhanced CDs, the defence is welcome to do it and has the locus and means whereby to do it, and it has had so for a long time now.
The defence is in no way shut out from challenging in the presence of the jury, just as it was in no way shut out from challenging on the voir dire, the sounds that are relied upon by the prosecution on the admissible evidence, that is the enhanced CDs. That may happen in the trial. If it does, the defence is welcome to do so, it has full locus to do so, and according to its own judgment it will do so. It may be in the end that the real contest in this case is one which I think is a genuine and legitimate issue and that is whether the sounds on the enhanced CDs say what the prosecution says they say. That is a jury matter. It may be that the prosecution says the sounds say one thing and the defence says they say something else, or that one cannot be satisfied they say what the prosecution says they say. That is a routine and important issue which often occurs before juries and I would imagine would occur in this case.
Indeed, to that end, I have listened to hours and hours and hours of this material to satisfy myself that the prosecution gets to first base, that is to say that the material, in law, is capable of bearing the contention the prosecution says, that the word is what the word is said to be, and I would expect that will remain an issue in the trial. But as I have already ruled in Ruling No. 6, I am satisfied, on a strict aural exposure without even referring, as the jury can, to other material such as context, that the prosecution has reached that provenance satisfaction. Whether the jury reaches it of course is quite a different and subsequent question.
Turning then to the transcripts: Butera establishes clearly, and has been followed countless times since, that the transcript is not evidence. It is an aid to listening, as Butera says at 187. Thus, the prosecution may provide transcripts to the jury as an aid to listening to the enhanced CDs. The material is not itself evidence, and doubtless the jury will find, as I find in every case when transcripts are used, that some of the transcripts do not reflect what I consider, or the jury considers, are the sounds. I have looked at the transcripts and I am satisfied they are of sufficient provenance for them to go to the jury; that is to say, they are not just an invention or a novella but are a genuine attempt to place before the jury as an aid to listening what the prosecution contends are the sounds. Accordingly, the prosecution may rely upon the transcripts of the enhanced tapes as an aid but not itself as evidence.
Again, if the defence wishes to place before the jury, first, the original VHS sounds, it is welcome to do so. If the defence, further, wishes to place before the jury transcripts of the original VHS sounds, it has the locus to do so, assuming it satisfies the normal probative pathway, that is to say that an expert is called, if the prosecution challenges it, that the transcripts have derived from the copies on DVD by the defence of the original VHS cassettes. I would imagine that is not a matter of dispute. If it is a matter of dispute it can be done quickly on a voir dire so that the defence is not interrupted in its presentation when for example cross-examining the informant or cross-examining Mr Ferridge, the witness from Forensic Services. That is really a matter of trial management which I would expect will not cause any problem and can be done so that the jury is not distracted from its task, and especially so that the accused is not prejudiced in any way in the presentation of his defence.
For those reasons I rule that, first, the enhanced CDs are admissible in evidence, on their own account, stand alone; second, that it is not necessary for the prosecution to prospectively produce in evidence before the jury the original VHS cassettes; third, that the prosecution is entitled to produce to the jury, not as evidence but as an aid to listening, as contemplated by Butera, the transcripts that it has made of the enhanced material; fourth, that the prosecution is not obliged to place before the jury transcripts, which it has not made anyway, of the original VHS cassettes; fifthly, that the defence is entitled to place before the jury, by way of cross-examination or otherwise, the original VHS cassettes, which it has copies of in DVD form; and sixthly, that the defence is entitled to place before the jury by way of
cross‑examination, or otherwise, as an aid to listening, transcripts it has made of the DVDs of the VHS cassettes provided to it previously.
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