DPP v Selway (Ruling no 19)

[2007] VSC 249

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. 19

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2007
DATE OF RULING:	1 May 2007
CASE MAY BE CITED AS:	DPP v Selway
MEDIUM NEUTRAL CITATION:	[2007] VSC 249

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Criminal law and procedure – murder – application for discharge of jury because of prosecution final address – prosecution allegation not previously put to jury and not put to accused in cross-examination – allegation then withdrawn by prosecutor - application for discharge refused.

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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:

1. I have before me by Mr Faris an application made by email overnight, and formally this morning at 10 a.m. when Court resumed, for the discharge of the jury.

1. The application is essentially based upon the learned senior prosecutor's final address yesterday where at p.2617, lines 25-26, the prosecutor stated, "Together they murdered Angelo Romeo at Rhyll".  The "they" was Mr Selway and Mr Deering.  If the prosecution had sought today to persist in that submission to the jury I would have seriously had to consider discharging the jury, albeit at this late stage.  Mr Deering, the accused’s half brother, has never been charged with the murder of the deceased.  He was charged with being an accessory after the fact to the murder of the deceased by the accused, but was discharged at committal.  The discharge is not the relevant matter; the non-charging, and lack of puttage to the accused in cross-examination during his evidence in this trial, is the relevant matter.  The assertion had not previously been made by the prosecution to the jury and had not been put to the accused in cross-examination. What had been put to the accused in cross-examination was that Mr Deering had driven one of two vehicles from the scene after the event; that is, in the character of accessory after the fact.

1. However the prosecution has, having considered the matter, decided to retract that allegation, that is the allegation that Mr Deering was a co-murderer of the deceased, and in a formulation which Mr Gamble has read out to me that retraction will be made to the jury if the trial continues.  I am satisfied that the retraction is both necessary, and is adequate and competent, to deal with the vice, which I consider it was, which arose yesterday in the late allegation that Mr Deering was a co-murderer.

1. The reason I consider it is adequate and sufficient to meet the vice is that the allegation was made in one sentence yesterday.  The allegation was not extrapolated in any way.  There was no scenario painted.  The word "shooter" was not used.  The allegation was "Together they murdered Angelo Romeo".  There has been no graphic detail put in the jury's mind as to linking Mr Deering with one gun or the other gun, or in one part of Rhyll or another part of Rhyll, or anything of a factual type which is likely to stay in the jury's mind.  It was a categorical allegation; that is, the category of murder was attributed to Mr Deering; but with no detail, no scenario and no extrapolation. 

1. In those circumstances as it was a categorical allegation without a scenario or detail attributed specifically to Mr Deering I consider that the formulation proposed by the prosecutor is entirely adequate and sufficient to remedy the situation which arose late yesterday.  After all it was only late yesterday, effectively half an hour ago in the jury's mind, that this allegation was made and it is about to be withdrawn.

1. Accordingly, I am entirely unpersuaded by Mr Faris that the jury is in any way poisoned or antipathetically affected.  I am entirely unpersuaded that it is futile, to use Mr Faris' epithet, for Mr Gamble to withdraw the allegation this morning which was made late yesterday.  I consider it is competent and proper and will fulfil the necessary remedy of correcting the error which was made yesterday.  I do not consider the jury is in any way poisoned.  Further I do not consider that the defence is in any way put in an improper or untenable or unfair position if the allegation is withdrawn. 

1. For those reasons I refuse the application to discharge the jury.

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