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Supreme Court 1 November 2021

R v Mateaki Taumalolo

[2021] NSWSC 1377

Homicide
EVIDENCE DOCUMENTARY EVIDENCE SUBPOENAS PUBLIC INTEREST IMMUNITY

Citation: R v Mateaki Taumalolo [2021] NSWSC 1377
Court: Supreme Court of New South Wales
Date: 1 November 2021
Judge: Davies J

Background

The accused was one of six people charged with the murder of a man killed at a birthday party in Ingleburn on 24 May 2019. One co-accused had already pleaded guilty, and the trial of the remaining accused was fixed for June 2022. The accused's solicitors issued a broad subpoena to the Commissioner of Police seeking police documents, COPS and Eagle-I reports, notes, correspondence, and transcripts connected to the investigation and to several named witnesses.

The Commissioner produced four packets of documents in response. One packet (Packet S-2), responsive to paragraphs 3 and 4 of the subpoena, included an email chain that was produced only in redacted form. The Commissioner claimed public interest immunity over the unredacted portions of that email chain.

After negotiations between the parties failed to resolve the dispute, the Commissioner filed a motion seeking a formal order excusing production of the unredacted emails under sections 130 and 131A of the Evidence Act 1995 (NSW).

  • Whether the Commissioner of Police could resist producing the unredacted email chain on the basis of public interest immunity under ss 130 and 131A of the Evidence Act 1995 (NSW).
  • Whether harm would result from disclosure of the unredacted content such that the public interest in confidentiality outweighed the public interest in producing the material for the accused's defence.
  • Whether the accused would be left without a practical remedy if the unredacted email chain was not produced.

Decision

Davies J applied the balancing framework set out in s 130(1) of the Evidence Act, asking whether the public interest in admitting the information was outweighed by the public interest in preserving its secrecy. Her Honour followed the process outlined in Alister v The Queen (1984) 154 CLR 404, which requires a court first to assess whether harm would flow from disclosure and whether the administration of justice would be frustrated by withholding the material, before undertaking the ultimate balancing exercise.

The Commissioner provided both an open affidavit from an Assistant Commissioner of Police and a confidential affidavit that was not served on the accused's legal representatives. Davies J also received confidential submissions from the Commissioner. Having examined that confidential material, her Honour was satisfied that there was a sound basis for the immunity claim and that the harm identified would result from disclosure.

The court accepted the accused's assumptions about the potential relevance of the redacted content for the purposes of the balancing exercise, without finding those assumptions to be correct. Even on those assumptions, the public interest in preserving the confidentiality of the unredacted emails outweighed the public interest in their production. The court also noted that the accused was not without remedy: the witness in question could be called by the Crown or by the defence at trial, and there was no suggestion the accused's legal position was jeopardised solely by the absence of access to the unredacted chain.

Orders Made

  • Pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW), the Commissioner of Police is excused from producing the unredacted form of the emails constituting Annexure "B" to the open affidavit of Assistant Commissioner Scott Cook sworn 7 October 2021, in answer to the subpoena issued on 20 July 2021.

Key Takeaways

  • Under s 130 of the Evidence Act 1995 (NSW), a court must weigh two competing public interests: the value of the material to the proceedings and the harm that disclosure would cause to confidentiality or other protected state interests.
  • The Supreme Court adopted the approach from Alister v The Queen, treating the identification of likely harm from disclosure as a precondition to the balancing exercise, before then weighing the evidentiary importance of the material against that harm.
  • A court may inform itself through confidential affidavits and submissions not disclosed to the other party when assessing a public interest immunity claim, provided the process is otherwise procedurally sound.
  • Where a defendant retains alternative means of obtaining relevant evidence at trial (such as calling a witness directly), that availability is a relevant consideration in determining whether the public interest in production of a withheld document is sufficiently weighty to override the immunity claim.
  • Conclusions reached by the court on the immunity application were expressly stated to rest only on the accused's assumed facts, and were not to be read as a finding that those assumptions were accurate.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 130, 131A

Cases
- Alister v The Queen (1984) 154 CLR 404
- A3 v Australian Crime Commission [2006] FCA 894
- 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