Supreme Court New South Wales Medium Neutral Citation: R v Mateaki Taumalolo [2021] NSWSC 1377 Hearing dates: 13 October 2021 Date of orders: 1 November 2021 Decision date: 01 November 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW), the Commissioner of Police is excused from producing in answer to the subpoena issued on 20 July 2021 on behalf of Mateaki Jeff Taumalolo the unredacted form of the emails that constitute annexure "B" to the Open Affidavit of Scott Cook sworn 7 October 2021. Catchwords: EVIDENCE – documentary evidence – subpoenas – public interest immunity – where subpoena issued to Commissioner of Police seeking documents relevant to accused's defence for murder charge – where email chain provided in redacted form – claim of public interest immunity over unredacted form of email chain – whether harm would be done by disclosure of the information as part of the proceedings – where examination of confidential material reveals sound basis for claim of immunity – where public interest in producing information outweighed by public interest in preserving confidentiality of unredacted email chain – Commissioner of Police excused from producing unredacted form of the emails Legislation Cited: Evidence Act 1995 (NSW) ss 130, 131A Cases Cited: A3 v Australian Crime Commission [2006] FCA 894 Alister v The Queen (1984) 154 CLR 404 Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 Cain v Glass (No 2) (1985) 3 NSWLR 230 DPP v Smith (1996) 86 A Crim R 308 NCA v Gould (1989) 90 ALR 489 Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards [2013] NSWSC 543 Texts Cited: Nil Category: Procedural rulings Parties: Crown Mateaki Jeff Taumalolo (Accused) Commissioner of Police Representation: Counsel: D Daleo & K Marinos (Crown) P English (Accused) Commissioner of Police (A Tembe) Solicitors: Office of the Director of Public Prosecutions (Crown) Alexanders Lawyers (Accused) Crown Solicitor's Office (Commissioner of Police) File Number(s): 2020/111852 Judgment 1. Mateaki Taumalolo ("the defendant") and five others were charged with the murder of Alex Ioane at a birthday party that all of them attended on 24 May 2019 at 63 Chester Road, Ingleburn. One of the accused, Taufuna Taumalolo has pleaded guilty and is to be sentenced on 5 November 2021. 2. The trial of Mateaki Taumalolo and the four remaining co-accused is fixed for hearing on 27 June 2022. 3. On 20 July 2021 solicitors acting for the defendant issued a subpoena to the Commissioner of Police seeking the following documents: 1. An electronic copy of the Police brief complied and served for the purposes of the autopsy report for the coroner of Alex loane. 2. A copy of the complete brief of evidence against Marlee Lusio in relation to charge number H 77182353. 3. Copies of all COPS reports, Eagle-I reports, notes (typed and handwritten) and correspondence (including but not limited to emails) referring to the charging of Marlee Lusio in relation to charge number H 77182353. 4. Copies of all COPS reports, Eagle-I reports, notes (typed and handwritten) and correspondence (including but not limited to emails) referring to the charging of Mateaki Taumalolo in relation to the investigation into the death of Alex loane. 5. Copies of all COPS reports, Eagle-I reports, notes (typed and handwritten) and correspondence (including but not limited to emails) referring to the following witnesses: a. loapo Aigaga'Liko. B. Pauline Besi Senituli. c. Lisa Tagoiaega. d. Vaoahi Taumalolo. e. Freda Tuese. f. Shinead Luama Tuese. g. BSC (junior) Mahina. h. Sione Taaeiloa. 6. Copies of transcripts of all conversations between Police and Mateaki Taumalolo in relation to the investigation into the death of Alex loane. 1. The Commissioner produced four packets of documents on 10 August, 21 September and 28 September 2021. Those four packets constitute the entirety of the documents responsive to the subpoena in accordance with an agreed narrowed scope to the subpoena. 2. Packet S-2, containing the documents sought in paragraphs 3 and 4 of the subpoena, contained two emails which were produced in a redacted form (hereafter "the redacted email chain") on the basis that the contents of the unredacted email chain was subject to a claim of public interest immunity. 3. After negotiations between the parties over the Commissioner's public interest immunity claim, the Commissioner filed a notice of motion seeking the following order: Pursuant to ss. 130 & 131A of the Evidence Act 1995 (NSW), the Commissioner of Police is excused from producing part of a document produced on 21 September 2021 (comprising Packet S-2) in response to paragraphs 3 and 4 of the Subpoena to Produce issued on 20 July 2021. 1. The notice of motion was supported by an open affidavit of Scott Cook, an Assistant Commissioner of Police. That affidavit identified the subpoena, annexed the correspondence between the parties concerning the redaction of the email chain, and annexed a copy of the redacted email chain. 2. There was also a confidential affidavit of Assistant Commissioner Cook which was provided to me but not served on the lawyers for the defendant. 3. The parties provided written submissions. In the case of the Commissioner, I was also provided with confidential submissions based on the Assistant Commissioner's confidential affidavit, and confidential submissions in reply to the submissions of the defendant. 4. Sections 130 and 131A of the Evidence Act 1995 (NSW) provide: 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would - (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters - (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant -whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory. 131A Application of Part to preliminary proceedings of courts (1) If - (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following - (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. 1. In Alister v The Queen (1984) 154 CLR 404 Gibbs CJ said (at 412): Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions? 1. It is fair to say that the two conflicting aspects of public interest set out in Alister are expressed a little differently from what is contained in s 130(1) of the Evidence Act. However, it appears that there is little difference in substance in that regard: A3 v Australian Crime Commission [2006] FCA 894 at [19]. In my view, the process to be followed is that set out by Bellew J in Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards [2013] NSWSC 543 at [35], albeit that the claim for public interest immunity in that case was being determined based on common law principles and not s 130. 2. Justice Bellew said at [35] that the process involved three steps as follows: (i) [the party issuing the subpoeana] must establish a legitimate forensic purpose; (ii) the Commissioner must establish the claim for public interest immunity; and (iii) the court must then undertake the balancing exercise referred to in Alister above and make a determination as to whether or not the claim ought be upheld. In the present case, step (iii) should say, the balancing exercise found in s 130(1) of the Evidence Act 1995 (NSW) 1. As to step (i), it is not suggested that the defendant did not have a legitimate forensic purpose. 2. For the Commissioner to establish the claim for public interest immunity, it will be necessary, as the Commissioner submitted, to consider whether harm would be done, and if so what harm, by the disclosure of the information as part of the proceedings. 3. Mr English of counsel for the defendant submitted that it could be assumed that the redacted email chain was produced in answer to what was sought in paragraph 3 of the schedule to the subpoena concerning the defendant's girlfriend Marlee Lusio. Ms Lusio was by the defendant's side when physical altercations were breaking out on the front street near 63 Chester Road on 24 May 2019. One of those altercations involved the deceased, and ultimately led to his death. Mr English asserted that, although apparently being a material eyewitness to those events, Ms Lusio was not included in the Crown witness list. 4. On 31 March 2020 Ms Lusio was charged with concealing a serious indictable offence, namely the murder of the deceased. The concealed conduct involved Taufuna Taumalolo, and two of the other accused, ST and ET. 5. Mr English noted that the Crown intends to tender various intercepted telephone calls which show the accused discussing Ms Lusio's charges in the context of her arrest and her failure to obtain bail the following day. In one of those telephone calls between the defendant and Ms Lusio's mother, Kathleen Woodley on 1 April 2020, Ms Woodley is recorded as saying: But she's, basically its like she's not tell, she's not telling them information so she's goin' to – but he told me if she, if she reveals information they'll drop the charges, let her go. 1. Mr English also submitted that it is apparent that on 10 June 2020, detectives Brendan McManus and Graeme Napier arranged a visit with Ms Lusio in prison, with proposed visitation dates being 11, 12, or 15 June 2020. This was clear from an email from Detective McManus to the gaol dated 10 June 2020. The redacted email chain is dated 16 June 2020. 2. In that way, Mr English submitted that the defendant assumes that the content of the redacted email chain relates to the police officers' visit to Ms Lusio, and for that reason the Commissioner's application under s 130 of the Evidence Act is based on the informer principle. 3. Mr English submitted that the following matters can be inferred: a. If an inducement was offered to Ms Lusio to give evidence against the defendant, she did not take it up, because she has not given a statement in the proceedings, and she remains charged with the offence of concealing a serious indictable offence; b. It was the police who initiated contact with Ms Lusio in June 2020, because if it were the other way around, it could be expected that documents evidencing a request by Ms Lusio to meet with police would have been produced (likely in redacted form) in response to the defendant's subpoena. 1. The defendant is presently contemplating whether to request the Crown to call Ms Lusio at trial. An important issue relevant to that consideration is whether Ms Lusio was urged by police to give evidence against the defendant. An inability or failure on Ms Lusio's behalf to provide inculpatory evidence against the defendant, especially if a benefit for doing so had been offered to her, when the evidence discloses that she was in close proximity to him when fights were breaking out on that night, might be highly relevant to the defendant's defence, and his related consideration as to whether to request the Crown to call Ms Lusio at the trial. In that way, Mr English submitted, the anticipated contents of the redacted email may be important to his defence to the serious charge of murder. He submitted that paragraphs (a)-(c) of s 130(5) are relevant in this regard. 2. Mr English accepted that the principle of immunity relating to informers is absolute, and is relaxed only "whereupon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence": Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248. 3. Mr English submitted that the principle of public interest immunity associated with informers does not apply to Ms Lusio, because she was not an informer, and her identity is already known. Rather, he submitted, she is a witness to whom it appears that an inducement was unsuccessfully offered by the police. In that way, the disclosure of the information assumed to be within the redacted email chain would not prejudice the prevention, investigation or prosecution of an offence (s 130(4)(c)), or disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the State (s 130(4)(d)). 4. Finally, Mr English submitted that if an inducement had been offered to Ms Lusio by the DPP, that fact would be disclosable to the defendant. Further, assuming that the assumptions made by the defendant are correct, there is a real possibility that the contents of the redacted email chain may be deployed at trial to help show that he is innocent of the charge of murder. On that basis, it was submitted that the balancing exercise favoured disclosure of the redacted email. 5. In relation to whether the Commissioner has established a claim for public interest immunity, I note what was said by Sully J (with whom Spigelman CJ and Adams J agreed) in Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 at [20], that the terms of s 130(3) meant that: His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements. Similar statements have been made in DPP v Smith (1996) 86 A Crim R 308 at 310, and NCA v Gould (1989) 90 ALR 489 at 497. 1. I have examined the confidential material, and I am entirely satisfied that there is a sound basis for the claim of immunity. I am satisfied that the material is a matter of state within the meaning of s 130(4) of the Evidence Act. 2. The public interest in admitting the evidence or information in the document is said by the defendant to be relevant to his defence and may even have the capacity to establish his innocence. The defendant says further that, on the assumptions he has made, the document will be important in his decision whether to request the Crown to have Ms Luiso called as a witness at the trial. If, of course, the material might have the capacity to establish the defendant's innocence, that is likely to mean that the administration of justice would be frustrated or impaired if the document was withheld (Alister at 412). Even if that is so, the balancing act in s 130(1) must be carried out. 3. On the assumptions made by the defendant, and if evidence from Ms Lusio is capable of providing support for the defendant's innocence, it is open to those acting for the defendant to request that Ms Lusio be called by the Crown at the trial, or to call her to give evidence themselves. There is nothing to prevent the legal representatives for the defendant in speaking to Ms Lusio for that purpose. 4. In that way, the defendant is not without remedy if an order is not made requiring the production of the unredacted email chain. Indeed, when I suggested to Mr English that the defendant could arrange for Ms Lusio to be called, one way or the other, he said that the defendant was entitled to make the most informed decision in that respect. He said they wanted to understand what, if anything, was being offered to her before that step was taken. It was not suggested that any risk to the defendant's legal position was involved, simply because access was not available to the unredacted email chain. 5. On the assumptions made by the defendant, for reasons which will be provided in a confidential annexure to this judgment (provided only to the Commissioner, and against the possibility that this matter goes to another place), I am satisfied that the public interest in producing the information is outweighed by the public interest in preserving the confidentiality of the redacted email chain. In coming to that view, I have taken into account the matters in s 130(5), especially paragraphs (b) and (c). 6. My conclusions in this judgment are based solely on a consideration of assumptions and submissions made on behalf of the defendant by applying the provisions of ss 130 and 131A to those assumptions. These conclusions should not be taken to be an acceptance that the defendant's assumptions are correct. 7. Accordingly, I make the following orders: 1. Pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW), the Commissioner of Police is excused from producing in answer to the subpoena issued on 20 July 2021 on behalf of Mateaki Jeff Taumalolo the unredacted form of the emails that constitute annexure "B" to the Open Affidavit of Scott Cook sworn 7 October 2021. ********** Amendments 05 July 2022 - Publication restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2022