DPP v Selway (Ruling no 3) - [2007] VSC 245

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. 3

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2007
DATE OF RULING:	12 February 2007
CASE MAY BE CITED AS:	DPP v Selway
MEDIUM NEUTRAL CITATION:	[2007] VSC 245

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Criminal law and procedure – murder – evidence – admissibility - lawful recording of prison cell conversation between accused and co-prisoner after charging – R v Swaffield; Pavic v R (1998) 192 CLR 159 distinguished - collocation of circumstances – evidence inadmissible.

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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 that at Phillip Island on or about 25 May 1997 he murdered Angelo Romeo. The body of the deceased was found on 30 May 1997 in the rear of the deceased's white Toyota van parked at the rear of his factory at 623 High Street, Thornbury, a suburb of Melbourne. Gunshot wounds were found to the head and the chest which were the cause of the death as found on autopsy. Forensic examination revealed that the deceased was shot with two weapons – a .38 Smith and Wesson and a .22 firearm. No gunshot residue particles were found in the van. The weapons were not found. The prosecution says that the murder occurred on Phillip Island.

On the day of the discovery of the body in Thornbury, 30 May 1997 but before knowledge of its discovery the accused made a written statement to investigating police at Wonthaggi. Later that evening, after being informed by police of its discovery the accused made audio-taped interview at the Wonthaggi Police Station to investigating Homicide officers. In that interview the accused answered all 318 police questions over one hour 15 minutes. He was not charged with the offence at that time. Investigations continued. The substance of the accused's answers to those questions at that police station were that he had nothing to do with the murder, had no knowledge of it and was unconnected with it.

The accused had significant shared business interests with the deceased and also, the prosecution alleges, was having an illicit affair with the deceased's wife over a significant period of time including at the time of the killing.

Police investigations continued, including by lawful listening devices at the premises of the accused and in his vehicle, which have been the subject of significant agitation in this pre-empanelment phase.

Ultimately, on Saturday 21 August 2004 at 7.15 am the accused was arrested at his property at Rhyll on Phillip Island and taken to the Homicide Squad offices in Melbourne and there formally interviewed. A prefatory interview of three minutes occurred at 9.45 am which had 19 questions of a formal sort and which was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Selway (Ruling no 3)

Details

AGLC: Director of Public Prosecutions v Selway (Ruling no 3) [2007] VSC 245
Case: [2007] VSC 245
Decision Date: 12 February 2007

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Selway, the High Court addressed the admissibility of evidence obtained from a lawful recording of a prison cell conversation between the accused and a co-prisoner after the charging of the accused. The matter involved the accused, Selway, who was charged with murder and the prosecution sought to introduce the recorded conversation as evidence against him. The court was tasked with determining whether the recorded conversation, which was lawfully obtained, could be admitted into evidence under the principles established in previous cases such as R v Swaffield and Pavic v R.

The primary legal issue before the court was whether the evidence obtained from the lawful recording of the prison cell conversation was admissible under the existing legal framework. The court had to consider the circumstances under which the recording was made and whether it complied with the principles established in earlier cases that distinguish between lawful recordings made before and after charging. The court also had to evaluate whether the recording fell within the scope of permissible evidence under the relevant provisions of the law.

The court found that the recording was made after the accused was charged, which distinguished it from the situation in R v Swaffield where the recording was made before charging. Furthermore, the court held that the recording did not fall within the collocation of circumstances exception to the hearsay rule as established in Pavic v R. The evidence was deemed inadmissible because it was not taken in the presence of the accused or in circumstances where the accused had an opportunity to challenge the contents of the conversation. The court concluded that the evidence could not be admitted as it did not meet the legal standards for admissibility of recorded conversations.

The court ordered that the evidence obtained from the recording of the prison cell conversation between Selway and the co-prisoner be excluded from the trial. The decision underscored the importance of adhering to the established legal principles when dealing with the admissibility of evidence obtained through recordings, particularly in the context of post-charging conversations in a prison setting.

Orders