R v Mateaki Taumalolo - [2021] NSWSC 1377

Supreme Court

New South Wales

Case Name:	R v Mateaki Taumalolo
Medium Neutral Citation:	[2021] NSWSC 1377
Hearing Date(s):	13 October 2021
Date of Orders:	1 November 2021
Decision Date:	1 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

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.
The trial of Mateaki Taumalolo and the four remaining co-accused is fixed for hearing on 27 June 2022.
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…

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.

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Details

Case: [2021] NSWSC 1377
Decision Date: 1 November 2021

CaseChat Overview and Summary

The case of R v Mateaki Taumalolo involved the accused, Mateaki Taumalolo, who was facing a murder charge. The dispute centred around the admissibility of certain documentary evidence, specifically an email chain, which was sought through a subpoena issued to the Commissioner of Police. The claim of public interest immunity was made over the unredacted form of the email chain, arguing that disclosure would cause harm as it would breach the confidentiality of sensitive information. The court was required to determine whether the public interest in preserving the confidentiality of the unredacted email chain outweighed the public interest in producing the information as part of the murder trial proceedings.

The legal issues before the court involved interpreting and applying sections 130 and 131A of the Evidence Act 1995 (NSW). The court had to consider whether the public interest in admitting the information or document into evidence was outweighed by the public interest in preserving its secrecy or confidentiality. The court examined the nature of the information, the potential harm of its disclosure, and the public interest factors outlined in the statute. The court's decision hinged on whether the confidential material revealed a sound basis for the claim of immunity and whether the public interest in producing the information was outweighed by the public interest in preserving confidentiality.

After examining the confidential material, the court found that there was a sound basis for the claim of public interest immunity over the unredacted form of the email chain. The confidential information contained within the email chain was deemed sensitive and its disclosure could potentially prejudice the prevention, investigation, or prosecution of an offence. The court concluded that the public interest in preserving the confidentiality of the unredacted email chain was greater than the public interest in producing the information as part of the murder trial proceedings. Consequently, the Commissioner of Police was excused from producing the unredacted form of the emails.

The final orders of the court were that the Commissioner of Police was not required to produce the unredacted form of the email chain as part of the evidence in the murder trial. The redacted form of the email chain, which did not contain the sensitive information, could still be admitted as evidence. This decision balanced the need for confidentiality in certain sensitive communications with the public interest in ensuring a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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