DPP v Selway (Ruling no 20)
[2007] VSC 250
•5 May 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. 20
JUDGE: | CUMMINS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2007 |
DATE OF RULING: | 5 May 2007 |
CASE MAY BE CITED AS: | DPP v Selway |
MEDIUM NEUTRAL CITATION: | [2007] VSC 250 |
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Criminal law and procedure – murder – further application for discharge of jury, on ground of jury’s questions – questions do not offend Dyers v R [2002] 210 CLR 285 - application 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 | Rainer Ellinghaus |
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HIS HONOUR:
I have before me a second application by learned senior counsel Mr Faris for the discharge of the jury. The application has helpfully been articulated by an email overnight which I will place on the court file. Mr Faris at least in part in his oral submissions to me this morning relies upon that submission, and for that reason also I will place it on the file.
I refuse the application to discharge the jury.
The jury retired to consider its verdict at 2.45 pm on Friday 4 May 2007. At 5.25 pm the jury sent out two written questions. I sent the jury away for the night, essentially to give counsel the opportunity to consider the questions. Overnight by email, and orally when we resumed this morning, Saturday 5 May shortly before 9.00 am, Mr Faris applied for the discharge of the jury, which application I refused. I have just brought the jury into court and given them the direction appended to this Ruling as Annexure “A”. I now state my reasons for refusing the application to discharge the jury.
In Ruling No. 19 I refused a defence application to discharge the jury based upon what Mr Gamble put to the jury late on Monday afternoon as stated in transcript and which he then recanted on Tuesday morning. That is a matter of record. It is rehearsed in Ruling No. 19. I then directed the jury in unequivocal terms completely to disregard the assertion of Mr Gamble on the Monday night and which he recanted on the Tuesday morning and I have no doubt the jury would accept and act upon that direction. I append to this Ruling, as Annexure “B”, that jury direction.
Mr Faris, for very understandable forensic reasons, commenced his final address on Wednesday morning with a strong attack upon Mr Gamble having made the proposition that Mr Deering was a co-murderer and his then withdrawing it. In my directions to the jury I had made it entirely clear that Mr Gamble's Monday afternoon assertion must be completely put aside by the jury. At no stage have I suggested to the jury that Mr Faris' strong attack on Mr Gamble's incorrect statement - as I called it "totally wrong" - ought not be utilised by them in the way Mr Faris was perfectly entitled to put and did put, namely that the prosecution says this is an overwhelming case, yet even at the end of the trial is shifting its ground and being self-contradictory. That was a perfectly legitimate forensic point to make and it was made by Mr Faris.
As Mr Faris rightly says this morning, that is all water under the bridge; but he has renewed those submissions combined with a separate application for a discharge based upon the questions now asked by the jury.
I will have these questions placed on the file. The questions were: "Why wasn't Ben Deering and Rina Romeo not (sic) called to give evidence? Was it part of the legal arguments that have occurred?"
It is the interface of the previous application and the questions asked by the jury as to which I wholly disagree with Mr Faris. Mr Faris has sought to link the previous issue with these jury questions. In my view the sought‑for joinder is wholly artificial, unfactual and unjustified. It is notable that the jury did not ask just about Mr Deering. The jury asked equally and at the same time about Rina Romeo. There is no suggestion from Mr Gamble that Rina Romeo was a joint murderer. It seems to me that the jury's question, asking equally about two people, only one of whom was alleged momentarily to have been a joint murderer, demonstrates that the genesis of the jury's question was not Mr Gamble's misstatement to the jury on Monday that Deering was a co-murderer. On the contrary a moment's rational and realistic consideration will demonstrate that the genesis for the jury's question was simple common sense and that was, "Why is the second most important witness in the trial not called?" and next, "Why was another relevant witness, particularly on the question of the listening devices, not called?"
The jurors are not 12 ostriches. They must, and I am quite confident will, act solely on the evidence. They must not, and I am sure they will not, speculate. That does not involve that they are blind and deaf. It does not involve that they are incapable of rational observation and thought. To conceive that the jury would not have noticed that Mr Deering and Mrs Romeo were not called is not worth saying. What has happened here is that they have seen the obvious. Counsel sensibly and rightly, for their respective reasons, Mr Gamble on the one hand and Mr Faris on the other, have not referred to the matter. Plainly of course I have not referred to the matter. The jury has asked about the elephant in the room. That is a perfectly permissible and rational thing for the jury to do. In my view indeed it shows their responsibility to their task. It is certainly not a disobedience of my directions of law. However the jury having asked about the elephant in the room, it needed to be dealt with by direction. As I have said I think the less said the better as long as it was clear and unequivocal. I have given the jury the directions which I hope are clear and unequivocal and I think I should say no more.
I should add one matter of fact in this intersecting of reasoning. This is not a case where the prosecution says there necessarily was a second shooter, thereby the question being "Was it Mr Deering?" Quite apart from the withdrawal by the prosecutor - which I will not yet again repeat - this is not a case where there necessarily is a second shooter. The prosecution case here is there could have been but there need not have been a second shooter. The accused could have been the sole shooter. So on the question of whether the reference by Mr Gamble to Mr Deering on the Monday afternoon is irredeemable, a factor bearing upon that is that the prosecution case is not necessarily that there were two shooters.
Further, the evidence is quite clear that there need not have been two shooters. Certainly there were two firearms used, but two firearms does not, in the circumstances of this case, necessarily involve two shooters. The evidence is that there was one .38 Smith & Wesson which singular firearm fired three bullets. There was one .22 which was a separate firearm. Why it is not a necessary part of the prosecution case, either in terms or by implication, that there were two shooters is that it is entirely open to the jury on the evidence proved, if the jury make the appropriate evidentiary findings, to find that the accused had the .38 Smith & Wesson, easily concealable, shot the deceased three times and then when the deceased was in a position of compliance utilised a .22 to shoot him finally and fatally in the head. Relevant to that scenario is that all the shots from the .38 Smith and Wesson were medically distant in range but the single shot from the .22, to the left temple, was medically intermediate in range. That scenario is open to the jury. It is not a scenario either side put, and certainly I was not going to say anything to the jury as to it.
Thus, on the question of the linkage sought to be made by Mr Faris between the Deering statement by Mr Gamble on Monday and the jury's questions last night, first, the Deering statement was withdrawn on the Tuesday morning; second, I gave the jury an unequivocal direction to disregard it and that it was wrong; third, the jury's question last night was not only about Mr Deering but was equally about Mrs Romeo; and fourth, it is not a necessary part of the prosecution case that there were two shooters.
Finally, I would add that the jury’s questions do not reveal a reversal in the jury’s mind of the onus of proof. The jury did not ask why did the defence not call the witnesses. The questions were global. I have unequivocally directed the jury that the defence has no burden to call any witnesses. There is no burden on the defence to call any witnesses, including the two identified by the jury. I must say that the New South Wales practice so strongly expressed by McHugh J in his dissenting judgment in Dyers v R[1] is not the practice in Victoria, and I hope never becomes the practice. It is contrary to the basal principle of the onus of proof in criminal proceedings.
[1][2002] 210 CLR 285 especially at 298 [25] - 299 [28].
For those reasons I refuse the application to discharge the jury.
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CERTIFICATE
I certify that the 4 preceding pages are a true copy of the reasons for Ruling of Cummins J of the Supreme Court of Victoria delivered on 5 May 2007.
DATED this fifth day of May 2007.
Associate to Justice Cummins
DPP v Selway
ANNEXURE “A”
JURY DIRECTION
Saturday 5 May 2007(At 9.21 a.m. the jury entered the court.)
HIS HONOUR: Good morning Mr Foreman and members of the jury. Welcome back once again. Mr Foreman and members of the jury you’ve asked, and I thank you very much for writing it out, the following, “Why wasn’t Ben Deering and Rina Romeo called to give evidence? Was it part of the legal arguments that have occurred?” Ladies and gentlemen I am unable to assist you, other than to direct you as follows, and these are directions of law which therefore bind you.
As you know, ladies and gentlemen, first of all, and importantly, the burden of proof is on the prosecution throughout the trial, including when an accused give evidence. There’s no burden of proof at any time upon an accused person. An accused has no burden to call any witnesses. There is no evidence why the persons you’ve mentioned have not been called, and you must act on evidence, and you must not speculate why a witness has not been called. They’re the directions of law, ladies and gentlemen, that govern the question you’ve asked. I hope that assists you, ladies and gentlemen, and I ask you to retire with my good wishes. Thank you.
(At 9.22 a.m. the jury retired to further consider its verdict.)
DPP v Selway
ANNEXURE “B”
JURY CHARGE
Friday 4 May 2007(In rehearsing counsel’s final addresses):
“Mr Gamble then said this, ‘The prosecution submits that the evidence of Mr Selway’s involvement in this crime is overwhelming. He could not have done everything himself, so he got a close and trusted person to assist him. That person was Ben Deering. Together they murdered Aneglo Romeo at Rhyll. Having done that, Mr Selway need to move Angelo’s body away from Rhyll in order to divert the focus of any subsequent police investigation from himself and he and Deering drove the van and the other vehicle up with the body in the back of the van.’
I will just pause there and give you this direction of law, which being a direction of law binds you. When Mr Gamble said that, which was late on Monday afternoon ‘Together they murdered Angelo Romeo at Rhyll,’ he was quite wrong to allege that, to assert that Mr Deering was a co-murderer. It had never been opened. It was never put to Mr Selway, as it should have been if this allegation is being made. As you know, first thing the next morning Mr Gamble totally withdrew that allegation. I direct you as a matter of law, ladies and gentleman, which binds you, you must totally disregard that allegation. It should not have been made. Mr Gamble immediately the next morning withdrew it and you must totally disregard that allegation.”
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