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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 then adjourned so that the accused could receive legal advice.  That he did.  Then at 11.06 am the substantive interview commenced, of 46 questions which proceeded until 11.23 am.  The accused made a no comment interview stating that that was on the advice of his solicitor.  He was, at question 62, charged with the murder of the deceased.  The interviewing officer was Detective Leading Senior Constable Kilpatrick, the informant in this case and who has given evidence before me on the voir dire.  The corroborator was Detective Sergeant Tremain.

1. Immediately after the interview of the accused, a separate interview occurred at the Homicide Squad offices of a co-accused, Richard Benjamin Deering, between 11.56 am and 12.05 pm wherein, Deering having followed a like course to the accused of exercising his right of silence, Mr Deering was charged with "accessory to murder" at question 28.

1. Both the accused were then taken before a bail justice who remanded them each in custody.  They were separately taken to the same place, the Melbourne Custody Centre in Melbourne and were together placed in the same cell, Cell 23.  The informant immediately commenced listening post duties at 1.58 pm in relation to Cell 23 - because Cell 23 had its own history.

1. A warrant had been obtained on 18 August 2004, Exhibit B on the voir dire, from this Court for the installation in the Melbourne Custody Centre of a listening device. The warrant was a lawfully obtained warrant pursuant s.17(1) Surveillance Devices Act 1999. The purpose of the listening device was, in the words of a statement on 10 January 2007 of Detective Leading Senior Constable Kilpatrick, being Exhibit A on the voir dire, “to monitor conversations between Selway and Deering which would might (sic) lead to the discovery of the location and seizure of the murder weapons used in this matter". The informant gave like evidence before me on the voir dire. I consider that the warrant was obtained from this Court on a proper and lawful basis; the Court was not misled in any way; the investigative purpose as stated by the informant was appropriate; and I accept the evidence of the informant given before me as truthful and accurate. The listening device was installed in Cell 23 at a time and on a date undisclosed by the evidence, but between the Wednesday, when the authority was obtained from this Court, and the Saturday when the two accused were placed in the cell.

1. Mr Deering was discharged at committal and is not before this Court, but Mr Selway was committed and is before this Court on the charge of murder.

1. The evidence, including of Mr W.M. Jackson, shift manager of the Melbourne Custody Centre, reveals that the Melbourne Custody Centre was managed by a company called A.C.M., which was subcontracted to Victoria Police.  The cells were 28 day classification cells, and were police cells under the terms of the Corrections Act 1986.

1. I accept the evidence both of the informant, Detective Leading Senior Constable Kilpatrick and that of Mr Jackson, that operationally, whether or not as a matter of law, the police had but the power to request, rather than direct, the arrangements for housing of prisoners at the Melbourne Custody Centre at the relevant time.  I accept that the police did not have a power of direction as to the movement within the Custody Centre, or the circumstances of the movement in the Custody Centre, of prisoners and in particular Mr Selway and Mr Deering.  I accept in the circumstances that what happened at the Centre was the following.  First, that there was a prior arrangement that the Cell 23 was the subject of a listening device; second, that the listening device was placed in the cell prior to the accused being place there; third, that that was all part of a pre-arrangement, and a lawful one; fourth, that the two accused were placed at the request of the police in the one cell; fifth, that on the second day, when an extraneous prisoner was placed in the cell, he was promptly removed from the cell at the request of the police; sixth, that the TV that was in the cell was not operating - it would be a long bow to say that was done by arrangement, it presumably was one of the things that did not work in the place, but the fact is it did not work; and finally, that the two prisoners, Mr Selway and Mr Deering, did not in fact have time in the exercise yard, which may have been fortuitous from the police point of view, but was not at police direction.

1. I find that the removal of the other prisoner on the second day, the fact that the TV did not work, and the fact that the two accused were not in the exercise yard, was not at the direction of the police.  However, the fact is that is what happened.

1. In the event and unsurprisingly there was a substantial amount of talking by the two persons in custody, which was heard on the listening device and recorded.  On Saturday 21 August 2004, continually until 27 August 2004, the conversations were recorded.  There are 157 pages of transcript of the relevant parts of them sought to be relied upon by the prosecution.

1. There were no direct admissions by Mr Selway in the recordings of the crime charged.  There were certainly some statements which do the accused no credit, but that is not the test; there is some material which would be of some assistance to the prosecution in a circumstantial case, which this is, and which Mr Gamble relied upon before me; but there were no admissions, or anything which could properly be said to constitute an admission, by Mr Selway.

1. The question then arises as to whether the material heard on the tapes and recorded, and now before the Court, is admissible in evidence.  The authorities are well known.  The fountainhead authority is R v Swaffield; Pavic v R;[1] and relevant authorities, each of which bears upon the resolution of this matter in its respective and individual way are R v Lowe,[2] R v Lewis,[3] R v Franklin,[4]  R v Duric,[5] R v Chimirri,[6] and R v KS and M Said.[7]  There are other peripheral authorities, including Curren and Torney[8] which really stands outside the main line of authority so clearly established now, ten years after Swaffield and Pavic, by the litigation which has been stimulated by this issue.  It is plain from the authorities that the mere fact that an accused is in custody does not render admissions made in custody inadmissible.  That is a common-sense matter as well as a matter of authority.  Further, the authorities make it clear that the fact - I will not call it a mere fact, but the fact - that the accused had made a no comment record of interview, of itself does not found the exclusion of subsequent admissions.  All the authorities have individual characteristics about them.  In Lewis’ case, a covert police operative, Constable Somerville, was placed in the cell, which certainly makes it parallel in part to this, for an investigative purpose - in that case to find who was the co-offender, which again makes it in part parallel to this which was to find the murder weapons.  But Mr Lewis had not made a no comment interview; he had made a full confession, albeit that the prosecution relied upon further details in the Somerville questioning which was done by a covert police operative.  Mr Gamble, quite rightly, relied upon the circumstance that here there was no Somerville - no covert police operative eliciting statements of the accused.  In Juric there was no covert police operative, but there was a very willing police co‑operative in the person of the prisoner Mr Foley who sought to elicit admissions from Mr Juric; but they were admissions years after the accused was charged and when the accused was walking around the exercise yard seeking to talk about the case.  In Lowe again there was a willing police co-operative, Mr Reid, who again after the event sought to obtain details from Mr Lowe; but Mr Reid said that, as an experienced prisoner, he could sense that Mr Lowe was wanting to unburden himself and Reid took advantage of that situation.  None of that applies here.

   [1](1998) 192 CLR 159.

   [2][1997] 2 VR 465.

   [3][2001] 1 VR 290.

   [4][2001] 3 VR 9.

   [5][2001] VSCA 77.

   [6][2002] VSC 565.

   [7][2003] 6 VR 464.

   [8][1982] 50 ALR 745.

1. Mr Gamble is quite right, that Mr Deering and Mr Selway were not the subject of elicitation by a covert police operative or by a police co-operative in the sense of the prisoners that I have just defined.  Thus it is that Mr Gamble, in what I consider was a very well presented submission, said that to exclude this material would put the bar too high.  He said that after all these were voluntary statements by the accused, they were not induced by the police or by an undercover police operative or by a prisoner acting in co-operation with the police; and as I have recited, the authorities certainly do not a priori exclude all cell statements even after a no comment record of interview.

1. However, I consider that the material sought to be led by the Crown is inadmissible in the trial of this accused before this jury.  I consider that all the statements of the accused over those seven days recorded by the police in cell 23 are inadmissible in law.  That is because I consider in this case there is a collocation of circumstances which compel their exclusion in evidence.  These circumstances distinguish this case from R v Swaffield;  Pavic v R. 

1. The first is that the accused had exercised his right to silence.  Second, that he was then lodged in the cell and was in custody.  Third, that he was lodged with a co‑accused who was lodged in the same cell.  Fourth, that the co-accused had also exercised his right of silence.  Thus there two accused, both of whom had exercised their right to silence, both lodged in the same cell.  Fifth, there were prior arrangements made by the police in co-operation with the Melbourne Custody Centre authorities, namely that a lawful warrant had been obtained three days before; the device was lodged at some time in those three days in cell 23; and the two accused were by arrangement put into the same cell.  As I have said, I find in favour of the prosecution for purposes of determining this as a matter of law, that the circumstances that the TV was not working, that the other prisoner on the second day was removed, and that the accused was not given exercise but kept in the cells, were not done at the behest of the police.  Even so, the prior arrangements that I have articulated were done at the behest of the police and for lawful operational reason, namely the ascertainment of the murder weapons.  All the recordings were while the accused was in the control of the State.  Thus there was an immediate temporal nexus between the exercise of the right of silence of the accused and his being placed in the cell and a precise spatial confinement in what was legally a police cell from shortly after the exercise of the right of silence until a week thereafter.

1. It is the direct, close and holistic interface of the temporal and spatial circumstances which mark this case out from those relied upon by Mr Gamble.

1. In my view the direct, close and holistic interface of those temporal and spatial circumstances is such as to found the exclusion of this material as evidence.  That is

because, in my view, the high policy enshrined in Part 3 sub division 30A Crimes Act 1958, entitled “Custody and Investigation”, is to be preserved; and to admit this material in my view would undermine the high policy of that subdivision properly enshrined in legislation and in any event supported by the common law, in the particular collocation of the circumstances of this case.

1. I do not rule, because it would be wrong both in law and in common sense, that no cell conversation can be admissible; but I do rule that in this case and in these circumstances these cell conversations are inadmissible in law.  They were permissible as investigation.  In my view the police acted properly.  But they are not admissible in evidence.

1. Accordingly I exclude the 2004 cell conversations in Cell 23 of the accused Mr Selway on Saturday 21 August through to 27 August 2004 from evidence.

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