R v Suliasi Taumalolo
[2021] NSWSC 1297
•14 October 2021
|
New South Wales |
Case Name: | R v Suliasi Taumalolo |
Medium Neutral Citation: | [2021] NSWSC 1297 |
Hearing Date(s): | 12 October 2021 |
Date of Orders: | 14 October 2021 |
Decision Date: | 14 October 2021 |
Jurisdiction: | Common Law |
Before: | Davies J |
Decision: | Bail refused |
Catchwords: | CRIME – bail – release application – applicant charged with murder, alternatively manslaughter or affray – show cause – where Crown case is a strong one – where case on affray overwhelming and sentence would likely exceed time spent on remand until trial – where delays due to COVID do not demonstrate that continued detention is not justified – applicant does not show cause |
Legislation Cited: | Bail Act 2013 (NSW) s 18 |
Cases Cited: | Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 |
Texts Cited: | Nil |
Category: | Principal judgment |
Parties: | Crown |
Representation: | Counsel: |
File Number(s): | 2021/285277 |
JUDGMENT
The applicant, Suliasi Taumalolo, and five others have been charged with the murder of Alex Ioane on 24 May 2019 at Ingleburn. They have been charged in the alternative with manslaughter, and in the alternative with affray. He, with four other co-accused being ST, Mateaki Taumalolo, ET and Sione Taulepa Mayol, have pleaded not guilty to all counts. Tafuna Taumalolo has pleaded guilty to murder.
Because he has been charged with murder, the applicant must show cause why his continued detention is not justified.
The killing of the deceased took place at a birthday party he was attending at a home at 63 Chester Road, Ingleburn. The applicant and the co-accused were present at the party. The Crown case is that there was a joint criminal enterprise amongst the six persons charged to assault the deceased with the intention of causing him grievous bodily harm. On the Crown case, the trigger for the assault on the deceased appears to be that in response to his girlfriend being jostled he yelled out “Oi”. Thereafter, the deceased’s girlfriend and another guest at the party heard some of the accused, including the present applicant, asking where Alex was.
The deceased was attacked on the road out the front of the house after a number of the accused had been ejected from the party, seemingly for being involved in other violence.
The applicant relies on a combination of two matters to show cause. The first is said to be the weakness in the Crown case, and the second concerns the delays and difficulties arising from the COVID pandemic.
Ms Carroll of counsel for the applicant submitted that the statements to be relied upon by the Crown provide evidence only that the applicant’s actions amounted to “punching at” the deceased at an early stage of the altercation. She submitted that the Crown does not assert that the applicant is a member of any gang; that he attended the party as an invitee with a large group of his family; that there is no evidence suggesting he contacted anyone else to come to the party for a fight; and that the only intercepted phone calls involving the applicant contain no admissions by him.
Ms Carroll submitted that there was no evidence, contrary to the assertion in the Crown Case Statement, that the applicant was observed to be kicking the deceased multiple times whilst he was on the ground, and she submitted that the evidence suggested that the applicant was only present near the deceased for a relatively short time, where he was simply involved in a fist fight with the deceased, and where the deceased was fighting back.
The statements of Anthony Rao, Vaoahi Taumalolo, Pauline Besi Senituli, Ioapo Aigaga’liko and Shinead Luama Tuese all give evidence of the applicant’s involvement in the fight with the deceased.
The statement of Ioapo Aigaga’liko says:
21. I saw Tafuna, Mateaki and Suliasi all fighting with Alex. All of them were punching at Alex and looked to be connecting with him.
The statement of Vaoahi Taumalolo says:
13. …From there I walked down to the road and I could see Tafuna, Sione and Suliasi were being aggressive...
14. …It was at this point Suliasi [h]as handed me a carton of alcohol and said, “hold this”. I watched Suliasi ran over to where another fight was happening in the middle of the road. At this point was about 10 meters (sic) away. All I could see was a whole bunch of people standing over a male on the ground.
Paragraph 12 of the statement of Shinead Luama Tuese identifies the applicant, Mateaki and Tafuna being involved in the fighting on the street.
Most significantly, Sione Taeiloa says that he saw “both Aki and Asi Taumalolo kick Alex multiple times when he was on the ground”. In addition, Freda Tuese had heard the applicant asking where Alex was before this time.
There is also evidence from a listening device where the applicant and his brother Mateaki are discussing what Vaoahi Taumalolo said in her statement. Having read what I have set out above (at [10]), the applicant said, “Fuck, and she pretty much gave me away,…”. There is a strong inference of an acknowledgement of his involvement in the way Ms Taumalolo describes.
What the Crown alleges is a joint criminal enterprise involving the applicant. In the circumstances, provided that the applicant was present ready to assist the others, it would not be necessary for him to have been observed striking the deceased. As noted, there is clear evidence that he, along with the others, was heard to be looking for the deceased, he was observed to be with them, particularly with Tafuna, and there is abundant evidence that Tafuna repeatedly assaulted the deceased.
All of this evidence enables me to conclude that the Crown case against the applicant is a strong one.
The applicant was arrested on 14 April 2020 and charged with affray. He was subsequently charged with murder in May 2020. He has been held on remand since 14 April 2020. However, six months of that period, from 14 April to 13 October 2020, was also referable to a sentence of six months for another affray committed on 3 February 2019. If not released to bail, he will spend some two years and two months in custody until the commencement of the trial. That period is relied upon as part of the applicant’s show cause application.
As with many other bail applications, the present applicant, as I have noted, relies on a combination of what are said to be the weakness of the Crown case, together with the time he will spend in custody until his trial commences. That combination of factors is an appropriate one to consider when the issue is whether the applicant’s continued detention is not justified. It would, for example, be difficult to conclude that a person’s continued detention was justified in the face of a weak Crown case, and a lengthy period on remand. Section 18(1) of the Bail Act 2013 (NSW) also requires a consideration of these matters (paragraphs (c) and (h)) when bail concerns are being considered. However, they may also be relevant matters, for a consideration of showing cause: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24].
In the present case where the Crown case is a strong one and the offence charged is murder, where the maximum penalty is life imprisonment and there is a 20 year standard non-parole period, the continued detention of the applicant cannot be said to be unjustified.
Further, it is not entirely irrelevant that the applicant has been charged in the alternative with affray. Although this is not an offence requiring the showing of cause, the case against the applicant on affray could only be described as overwhelming. In circumstances where this affray took place less than four months after the affray for which the applicant was sentenced to six months’ imprisonment, and the deceased was killed in the affray, the likelihood of the applicant receiving a sentence for affray of less than the time he will spend on remand until the trial is remote.
The other aspect of the delay brought about by COVID relied upon by the applicant was the difficulty of being able to prepare his case adequately in custody. This was said to be because of the amount of the electronic material including telephone intercepts and listening device material.
In the circumstances where the trial date was vacated only two weeks before it was due to commence, it is reasonable to conclude that most of the preparation of that kind had already taken place. Even if that is not so, and even if more preparation of that kind is necessary prior to the new trial date, I do not consider that it demonstrates the applicant’s continued detention is not justified in the light of my conclusions about the strength of the Crown case and any sentence which will be imposed.
For these reasons, I do not consider that the applicant shows cause why his continued detention is not justified.
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Amendments
05 July 2022 - Publication restriction lifted
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