Thoroughness of RCMP investigation of Dunphy shooting questioned at inquiry
Justice Leo Barry defended questions by inquiry counsel after Smyth's lawyer objected
The lead investigator on the Don Dunphy shooting was asked a series of questions Tuesday that raise doubts about the thoroughness of the RCMP's handling of the case.
RCMP Cpl. Steve Burke was questioned by commission co-counsel Kate O'Brien, who asked what investigators did after Royal Newfoundland Constabulary Const. Joe Smyth fatally shot Dunphy on Easter Sunday, 2015.
Burke admitted that police did not search Smyth's car; they did not confine him to a police vehicle at the scene of the shooting, and Smyth was not photographed on the day of the shooting — April 5.
"Did you ask for a blood test of Smyth?" asked O'Brien.
"No I don't see what value it would have," said Burke." It's not usually done in a homicide investigation."
Burke was also asked about his decision to tell Smyth during a police interview that Dunphy's gun was loaded.
When asked by O'Brien if he should have done this Burke replied: "It was minor. It didn't affect the investigation."
Smyth's lawyer Jerome Kennedy objected to questions about the blood test saying it suggested alcohol or drugs were a factor in the investigation.
Justice Leo Barry said it was his understanding that O'Brien's line of questioning aimed to determined if the investigation was thorough.
O'Brien agreed.
Special treatment?
O'Brien asked Burke if he believed Smyth received special treatment because he was allowed to meet with RNC colleagues before giving a statement about the shooting to the RCMP.
"I would say no," replied Burke. "I could give an opinion but I don't want to."
When pressed by O'Brien, Burke said "he gets special treatment because of the Criminal Code."
He said section 25 of the code makes allowances for police officers to use force on the job.
When O'Brien asked Burke if he viewed the investigation as a criminal investigation, he responded "yes."
O"Brien said one of the RCMP investigators who was trying to retrieve surveillance video from a bank on April 20, 2015 said "this was not a criminal investigation at this time."
Burke said the officer was trying to gather information about Don Dunphy's glasses that were found by his daughter after the shooting, glasses that he said "were not part of the criminal investigation."
Earlier in the inquiry, investigating police testified that the glasses had no evidentiary value.
No conflict?
Burke said he worked with Smyth before the 2015 shooting, but doesn't believe that put him in a conflict of interest.
He said he met Smyth while he was working on a homicide investigation in North Harbour, St. Mary's Bay.
Burke also worked with Smyth on a VIP visit and said he once met him at a gas station while Smyth was passing through with then-premier, Kathy Dunderdale.
Smyth testified earlier that he also did a home visit with Burke but speaking at the inquiry Tuesday, Burke said he doesn't recall that happening.
Burke testified that he said "No" when one of his supervisors asked him if he would have a conflict of interest if he investigated Smyth's involvement in the fatal shooting of Dunphy on Easter Sunday, 2015.
The RCMP ultimately concluded that Smyth used "appropriate force" to defend himself and no criminal charges were laid.
Judge Riche's role questioned
Burke also told the inquiry Tuesday that he believed the retired judge asked to oversee the homicide investigation overstepped his mandate.
Judge David Riche was hired a few days after Smyth shot and killed Dunphy at his Mitchells Brook home.
"I think he was acting outside his mandate on some occasions," Burke testified Tuesday, saying Riche was "acting more like an investigator that an observer."
"Riche wanted police to re-interview Meghan Dunphy about her father's rifle. I thought he was unduly directing the investigation," he said.
"Asking her if she could have seen the gun would have been a leading question," he said.
Burke said he raised his concerns with his superiors. He said he believes an RCMP superior told Riche at another meeting that Riche was acting outside his mandate.
In the end, RCMP didn't re-interview Meghan Dunphy.
Inquiry continues
Burke is scheduled to be on the stand until Thursday.
Dunphy, 59, was shot and killed by Smyth on April 5, 2015 at his home in Mitchells Brook. Smyth had gone there to follow up on tweets that were flagged by a communications specialist in the office of Premier Paul David.
At the time, Smyth was one of the police officers assigned to provide security for Davis.
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