DPP v Selway (Ruling no 1)
[2007] VSC 242
•5 February 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. 1
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2007 | |
DATE OF RULING: | 5 February 2007 | |
CASE MAY BE CITED AS: | DPP v Selway | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 242 | |
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Criminal law and procedure – murder – evidence – admissibility - circumstantial case –holism - motive and animus – statements by accused remote in time – R v Plomp (1963) 110 CLR 235 – R v O’Brien (1884) 10 VLR 242.
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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 by police on 30 May 1997 in the rear of his white Toyota van parked at the rear of a factory at 623 High Street, Thornbury, with gunshot wounds to the head and the chest which wounds were, upon autopsy, found to be the cause of his death. No gunshot residue particles were found in the van.
On that day and before he knew of that discovery, the accused made a written statement to investigating police. That night and with knowledge of that discovery, an interview of the accused was conducted at Wonthaggi Police Station which was audio taped. The accused was not charged with any offence at that time. Indeed, he was not charged until 21 August 2004 when he was arrested and made a "no comment" interview, and was then charged with the murder. A committal was held for ten days in the Melbourne Magistrates' Court to 27 July 2005.
This is a circumstantial case and it has the characteristics and parameters of a circumstantial case.
Falling for consideration first is the admissibility or otherwise of certain statements of the accused said by the prosecution to constitute part of the proof of the circumstantial case under the rubric of motive or animus. It is put by the prosecution in its summary of prosecution opening, filed on 10 July 2006, under the heading "Motive: Affair and financial" the following:
"Selway had a longstanding affair with the deceased's wife, Pierina. Selway had significant business interests with the deceased. Selway and the deceased argued over financial matters."
In the Crown response filed on 15 January 2007 in this matter, in paragraph 21 the following is stated:
"The evidence of Kaufman and Plevritis is admissible as relevant to the motive or animus on the part of the accused at the time of the killing. Their statements show that the accused entertained bitter feelings of grievance against the deceased because the deceased was 'ripping him off'."
The criteria for the type of material sought to be adduced by the prosecution in proof of guilt of the crime charged are well known and need no rehearsal by me. They are enunciated pre-eminently in R v Plomp,[1] particularly at 249 et seq per Menzies, J, R v Tsingopoulos[2], R v Wilson,[3] R v De Gruchi[4] and thereafter; and on the question of remoteness in time, to which I shall return, R v O'Brien.[5] Those authorities establish the principles that for evidence of prior relationship, including enmity or antipathy between the accused and the deceased, to be admissible that evidence must be reasonably explanatory of the conduct with which the accused is charged, in this case murder; that the evidence may be adduced to establish motive; that it is not necessary that any particular incident, the subject of the evidence, should singularly and of its own force, establish a relationship of enmity; that it is sufficient, if taken holistically, that the interaction of those discrete parts can be said to do so, consonant with the general principle of holism in circumstantial cases; that an incident in a relationship which is isolated or remote in time from the death may be insufficient to have any true bearing upon motive; and, finally, that evidence of a prior relationship of enmity is not to be led as evidence of bad character which otherwise would be inadmissible. In this case, to which I shall briefly return later, the prosecution in oral submissions also has sought to justify the adduction of the contended evidence under s.398A(2) Crimes Act 1958, as evidence of propensity.
[1](1963) 110 CLR 235.
[2](1964) VR 676 at 681.
[3](1970) 23 CLR 334 at 339.
[4](2002) 211 CLR 85 at 92.
[5](1884) 10 VLR 242.
The relevant material can be conveniently divided into two categories: one specific and one general. It is contained in four statements. Looking at the matter in a chronologically progressive fashion, in the statement of Mr Fred Kaufman, Business Broker, of 15 September 2004, referring to a time apparently around 1990, Mr Kaufman stated that the accused
"informed me that he was having trouble with a business partner. At that time I knew nothing of any business partner he had. He told me that he thought that the partner was skimming money from him. He thought that he wanted to stop this. He told me that he wanted to stop this and collect some of the money that was owed to him."
Mr Kaufman went on to say that he subsequently introduced the accused to Mr Peter Plevritis at a business office. His statement concludes:
"I was never told by any person that Selway wanted his business partner killed."
Mr Peter Plevritis, company director, in a statement made on 30 January 2002 stated in relevant part as follows, which from its context and related evidence appears to be at the latest in 1990 and possibly in the very late 1980ies. Having said that he met Mr Selway as a client on about five occasions
"I knew that he had a restaurant at Phillip Island and that he was involved in the abalone industry which generated a large amount of cash. Selway wanted his business partner roughed up because he was ripping him off. I learnt later that this was not the true reason. In fact, Selway wanted his business partner killed because Selway was having an affair with the business partner's wife. I recall that Selway had offered $150,000 to have the job done, or had paid $150,000 to someone already who didn't follow through with the job."
He went on:
"I specifically recall that Selway had said that the best way for the job to be done was for the business partner to be ambushed as he made a delivery to his factory in High Street, Thornbury, or at his holiday house at Phillip Island. This was what jumped out at me when I read the newspaper article in 1997. I cannot say whether it was Selway I heard this from directly, or if it was through Kaufman or Webb."
Mr Peter Webb made a statement on 1 September 2004 in which he said of Mr Plevritis that
"Mr Plevritis was a person who collected outstanding debts and who provided muscle if required."
In a paragraph which is not sought to be led because it is hearsay, at 638 of the depositions, Mr Webb stated:
"I can't remember exactly who told me but it was either Plevritis or Kaufman, that Selway didn't want his business partner roughed up for stealing, he wanted him out of the way permanently (dead) as he (Selway) was having an affair with his partner's wife. I believe the name of the business partner was Angelo Romeo."
Finally, coming to a time at least close to the crime charged, namely in 1996 or thereabouts, Mr William Keam, a wardsman, in a statement made 19 November 2001 stated that he had commenced to work some 24 years earlier at Phillip Island in Mr Selway's abalone business. He rehearsed various matters in relation to that including this paragraph, which is not sought to be led to the prosecution:
"I can remember one day, about five or six years after I started working for David, we were on the boat at sea having our lunch. David was talking about getting rid of the opposition in the abalone business. I asked David why he didn't just buy them out and he said: 'No, I mean get rid of them for good.' I said, 'That's a bit radical.' David was quiet for a little time and then he said: 'The only way to get away with the perfect murder is to hire a professional hit man or some junkie, which would be cheaper. And then you have to kill the man who did the job yourself.'"
Mr Keam went on his statement to say:
"I didn't know what to say after he told me this. He appeared to be very serious, but I didn't give it too much thought as the threat wasn't made against me."
The prosecution does not seek to lead that evidence, for the obvious reason that it was some two decades before the alleged offence.
However the work relationship between Mr Keam and the accused continued after the Keams moved to Queensland. Mr Keam stated that, in apparently 1996, he can recall that in Maroochydore at the processing factory owned by the accused and managed by him
"… David and Angelo's arguments over money seemed to be getting worse. There would be times after these arguments when they wouldn't talk to each other and this caused a lot of tension at the factory. David would tell me that Angelo was driving him crazy … [Then] About six months before the Chinese New Year of 1997, so I guess it would be around late 1996, I can recall that I was present at the factory when David told me that according to his figures myself and the export agent whose name was Murray Scott were ripping him off. David said that if this was the case he would get a double-barrelled shotgun and blow mine and Murray Scott's guts out. I took this threat seriously and it worried me for a long time. I had to tell my father about this threat and he told me to get out of the factory. I was not ripping David off and I did my best to show him this through the paperwork. David was never convinced about this and he was present at every process after that. During this period David still continued to continually complain to me about Angelo. He would say that Angelo was paying the fishermen too much and that he was constantly blowing too much on gambling.”
After learning of the death of the deceased Mr Keam spoke with Mr Selway who said to him: “Is anyone safe?” Mr Keam did not attend the funeral. Mr Keam in his statement went on to say:
"Another thing that caused friction between Angelo and David was that David had employed his half-brother named Ben who was according to David was a useless worker."
In that material the stand-out item, in terms of a premonition of the killing alleged by the prosecution, is in the statement of Mr Plevritis of 30 January 2002, which I have quoted and which was
"… the best way for the job to be done was for the business partner to be ambushed as he made a delivery to his factory in High Street in Thornbury, or at his holiday house at Phillip Island."
If that matter were proximate in point of time, I would certainly regard that as admissible. It has clear probative value given the way the prosecution puts this case. However, I consider the matter is not admissible because it is too remote in point of time. It was some seven years before the event. There is no authority I have been able to ascertain which goes anywhere near that length of time, of admissibility of an incriminatory statement prior to an offence. The only one is R v O'Brien, which itself could be classified as remote in point of time because it was decided in 1884. In that case the antecedent period was some four years. As Mr Hayden rightly pointed out in his most helpful submission to me, in O’Brien there was no continuing relationship as there is in this case, Mr Hayden's point being that relationships can wax and wane; and in this case, even if that were said seven years before, plainly no relevant event happened, the accused continued to work with the deceased, and the relationship was a continuous one. That breaks, both analytically and chronologically, the nexus sought to be made by the prosecution between this hallmark statement to Mr Plevritis and the offence charged. For that reason, I rule that the Plevritis evidence in this hallmark statement is not admissible.
In relation to the Keam statement, certainly closer in point of time, where Mr Keam said that the accused said he would "blow the guts" out of him and Murray Scott if they were “ripping him off”, although that would satisfy the chronological criterion - it was only a year before - in my view, on its face, it is not relevant or admissible. That is because the statement had nothing to do with the deceased. It was to do with other people in another situation. Not only that, but in the very same statement there is no allegation by Mr Keam that the accused said that the deceased was “ripping him off”. The assertion that "Angelo was paying the fisherman too much" is of an entirely different character to ripping off. Thus there is not even a characteristic nexus between the Keam statement and the way the prosecution puts this case. Further, it is demonstrable that the statement of the accused to Mr Keam would be prejudicial to the accused. One does not need to reach that point because in my view, on its face, it is not relevant and thus not admissible. The only basis, which indeed Mr Gamble heroically relied upon in his oral submissions to me, is s.398A(2), the propensity legislation. In my view, this falls far short of that for the reasons I have just stated and cannot be brought in under that rubric.
That, in my view, disposes of the primary matter which the prosecution seeks to rely upon, that is to say the premonition of the killing seven years earlier. In my view it is too remote in time and ought be excluded. Thus I do not need to go to the seeking by the prosecution of calling witnesses to identify who made the impugned statement about the premonition because the premonition is not admissible.
That finally leaves the question of the general animus or relationship between the accused and the deceased on business matters. In my view that needs some further attention. It is plain that the accused in his interview to the police on 30 May 1997 at Wonthaggi asserted a good relationship: Question 249: "Well, do you - do you know of anybody or do you know any - do you have any information about anybody that
would want to do harm to Angelo for any reason?" Answer: "None at all." Question 250: "What about yourself? Would - would you have any reason to do any harm to him?" Answer: "Never had any argument with him." I do not know what will happen during the trial but I imagine it will become an issue between the parties as to whether there was a good or a bad financial relationship. That is a different question from the question of the prosecution bringing evidence of motive or animus in proof of guilt in a circumstantial case. I have already excluded that. The question of the financial relationship, which on its face is admissible to give the jury an understanding of part of the human situation which was involved between the accused and the deceased, is not led in proof of guilt in a circumstantial case but rather is led contextually so the jury have an understanding of the human situation, of course within the principles of relevance and admissibility.
The personal situation between the accused and the deceased’s wife is sought to be led as direct evidence of motive for the crime charged, and the admissibility of the evidence of that character is not challenged.
For those reasons I rule that the material sought to be led as proof of motive or animus that I have rehearsed in relation to the financial and business of the accused and the deceased is inadmissible. I will hear counsel in due course on the question of the extent and particulars of the relationship evidence which is sought to be led.
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