Nfld. & Labrador

'Columbo' comment shows tension between judge and police after Dunphy shooting

The inquiry into the Don Dunphy shooting has heard about tension between the RCMP and a retired judge who was asked to observe their investigation.

Testimony Thursday also shows Dunphy gun not ready to fire at RNC constable

Justice David Riche at the Inquiry into Don Dunphy's death. (Mark Quinn/CBC)

A retired judge hired to observe the RCMP investigation of the Don Dunphy shooting made his displeasure with that investigation and the force's treatment of him clear in a phone conversation last September, according to a police record entered at a judicial inquiry Thursday.

The RCMP log from Sept. 16, 2016 shows how Judge David Riche called police after returning from a vacation.

He spoke with the lead investigator of the shooting, RCMP Cpl. Steve Burke.

RCMP Cpl. Steve Burke testifying on Feb. 9, 2017. (CBC)

Burke wrote a report based on their conversation. He says Riche made these comments:

  • The RCMP did not release his report because they were not happy with it and he said the investigators did not cross–examine the witnesses;
  • The RCMP did not want him to investigate or act as "Columbo";
  • He said that he would not change one thing in his report;
  • He advised that while he was away he was contacted by the media.

Burke said he told Riche that a public inquiry was coming and the RCMP was not prepared to release any reports. He said Riche responded that "the person responsible will have to answer to his actions."

In September, Riche gave a number of interviews to numerous media outlets.

He has since said he assumed reports about the Dunphy shooting investigation, including his own, had been released to the public when he did those interviews.

Recently Riche told CBC News that he plans to apologize to the inquiry when he testifies on March 1.

Don Dunphy was fatally shot by RNC Const. Joe Smyth on Easter Sunday 2015. (Courtesy the Dunphy Family)

The inquiry, headed by Justice Leo Barry, is trying to determine the facts surrounding the April 5, 2015 shooting of Dunphy, 59, at his home in Mitchells Brook, St. Mary's Bay.

Joe Smyth, 38, a Royal Newfoundland Constabulary constable who had gone there to investigate tweets posted by Dunphy about politicians, has said he fired four shots, killing Dunphy, after Dunphy pointed a rifle at him.

Bolt left open in Dunphy gun

In testimony Thursday, Cpl. Burke also said evidence suggested Dunphy didn't intend to shoot Smyth during that Easter Sunday visit. 

Burke told the inquiry that a 22-calibre rifle found near Dunphy was loaded but the bolt-action gun wasn't ready to be fired because the bullet chamber was left opened.

"I don't know if Mr. Dunphy intended to fire his gun, and the bolt being open suggests he didn't intend to fire his gun," he testified.

Bob Simmonds is representing Don Dunphy's daughter, Meghan, at the judicial inquiry. (CBC)

"If you had your time back would you have done anything differently?" Bob Simmonds, lawyer for the Dunphy family asked as he questioned the thoroughness of the RCMP investigation.

Burke replied "no."

Simmonds suggested the RCMP had "tunnel vision."

He was ready for someone to come.- Steve Burke, RCMP investigator

"I believe it's a fair statement that you and other RCMP officers accepted Smyth's version at face value," he said.

Burke disagreed but when Simmonds suggested Smyth's version of events was implausible Burke defended it.

"There was evidence of a rifle. He [Dunphy] had a stick. The scenario isn't too far fetched that it couldn't have happened," he said.

"I don't think he moved that gun that day. I think it was moved previously. Mr. Dunphy said earlier to a friend 'let them come.' I think he was ready for someone to come."

Burke has been testifying since Tuesday at the inquiry into Dunphy's shooting death.

No 'preferential treatment'

He was also questioned Thursday by Smyth's lawyer, Jerome Kennedy, who countered the suggestion that Smyth received "preferential treatment" when he wasn't asked to give a statement the day of the shooting.

"What grounds did you have to detain S​myth?" he asked.
Jerome Kennedy, Const. Joe Smyth's lawyer, questioning the RCMP's Steve Burke. (CBC)

​"We didn't have any," said Burke.

"You were asked: 'Why would Dunphy point a gun at Smyth?' I ask: why would Smyth want to shoot Dunphy?" Kennedy asked.

"I don't know.," said Burke.

At the time of the shooting, Smyth was working with the security detail for Paul Davis, then premier of Newfoundland and Labrador, whose communications staff alerted him to "disconcerting" tweets.

On Wednesday, RCMP disclosed messages between Smyth and another RNC officer, Tim Buckle, sent after the shooting, but before Smyth gave a statement to the RCMP.

Smyth testified in January he had received no advice or input about what should go in the notes he gave to RCMP.

Follow updates from the inquiry in our live blog.