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Supreme Court 25 November 2021

R v Taumalolo & Ors (No 1)

[2021] NSWSC 1427

HomicidePublic order & justice offences
EVIDENCE CRIMINAL PROCEEDINGS APPLICATION TO EXCLUDE EVIDENCE WHETHER EVIDENCE IS RELEVANT CRIMINAL PROCEEDINGS CONSCIOUSNESS OF GUILT

Citation: R v Taumalolo & Ors (No 1) [2021] NSWSC 1427
Court: Supreme Court of New South Wales
Date: 25 November 2021
Judge: Davies J

Background

Five accused were charged with the murder of Alex Ioane, who was assaulted and killed at a birthday party in Ingleburn on 24 May 2019. The Crown alleged that several of the accused were members of street gangs, specifically the Claymore Boys and the Southwest Gang. One accused had already pleaded guilty; the remaining four pleaded not guilty and were committed for trial commencing June 2022.

Before trial, three of the accused (identified in the judgment as ST, Mateaki Taumalolo, and Sione Mayol) applied to exclude various categories of evidence. The challenged material included intercepted phone calls made while accused were in custody on remand, social media posts, witness statements, a music video, and portions of electronically recorded interviews.

The Crown sought to tender this material to prove gang membership, establish the accused's states of mind around the time of the killing, and support consciousness of guilt inferences.

  • Whether intercepted phone calls and social media posts were relevant to prove gang membership, and if relevant, whether their admission would be unfairly prejudicial under ss 135 and 137 of the Evidence Act 1995 (NSW)
  • Whether evidence that one accused altered his physical appearance after police published a media release showing his image was admissible as consciousness of guilt evidence
  • Whether social media and other material showing aggressive conduct shortly before the altercation with the deceased was admissible to prove state of mind
  • Whether evidence of gang membership derived from social media posts constituted inadmissible hearsay or lay opinion
  • Whether certain questions put to an accused during a recorded interview were admissible to establish the existence of "bad blood" between the accused and witnesses who had implicated him

Decision

Gang membership evidence: Davies J accepted that gang membership was a relevant fact in issue, given the Crown's joint criminal enterprise case. However, His Honour ruled that evidence of gang membership derived from social media posts amounted to inadmissible hearsay and lay opinion where it lacked a proper foundation. ST had himself admitted gang membership in his police interview, and other witnesses were available to give direct evidence on the point. Where intercepted phone calls added little probative value beyond those uncontested facts, and carried the risk of unfair prejudice from their content or from revealing the accused's remand status, some extracts were excluded. The potential prejudice from the jury learning an accused was held on remand was not, by itself, treated as unfairly prejudicial, given that directions to the jury could address any adverse inference.

Consciousness of guilt: The Crown sought to rely on evidence that one accused changed his physical appearance after police published a media release featuring his image. His Honour held this evidence was admissible. It was open to the jury to infer that the reason for the change of appearance was the accused's awareness of his involvement in the murder, rather than his awareness of a separate unrelated affray charge. The evidence was not "intractably neutral" between competing explanations, and the jury could properly reason toward a consciousness of guilt inference.

State of mind: Evidence of aggressive conduct by an accused shortly before the fatal altercation was held admissible to demonstrate state of mind at the relevant time. Applying principles from R v Adam and R v Player, Davies J found such conduct had sufficient probative value and was not unfairly prejudicial, provided appropriate directions accompanied it.

Interview questions: Certain questions put to Sione Mayol about whether there was bad blood between him and witnesses who had implicated him were admitted. His Honour distinguished these from impermissible "Why would they lie?" questions, which tend to reverse the onus of proof. Questions directed at establishing a motive for witnesses to implicate the accused were legitimate tools for the jury to assess the strength of witness evidence.

Orders Made

• Evidentiary rulings identified in paragraphs [31], [34], [37], [40], [43], [46], [49], [52], [55], [57], [60], [63], [66], [68], [71], [74], [77], [80], [91], [100], [106], [108], [110], [113], [121], [151], [155], [160], [164], [168], [171], [178], [186], [189], [206], [215], [219] and [226] of the judgment are made

• Questions 487 to 490 and 493 to 495 are admitted

Key Takeaways

  • Where an accused has already admitted or conceded gang membership, additional evidence from intercepted calls or social media posts proving the same fact may be excluded if its probative value is low and its prejudicial content is significant, even if the prejudice from remand status alone is manageable with jury directions.
  • Social media evidence of gang membership that rests on inference or the opinion of a lay person, rather than direct observation or admission, is liable to be excluded as inadmissible hearsay or lay opinion under ss 76 and 78 of the Evidence Act 1995 (NSW).
  • Consciousness of guilt evidence is not rendered inadmissible merely because an alternative innocent explanation exists; the question is whether the evidence is "intractably neutral" between competing inferences, and where it is open to the jury to prefer one inference, admissibility is established.
  • A conviction-related interview question is not automatically characterised as a "Why would they lie?" question simply because it probes a witness's potential motive or relationship with the accused; questions aimed at establishing bad blood or prior conflict between an accused and an implicating witness serve a different and permissible purpose.
  • Under ss 135 and 137 of the Evidence Act 1995 (NSW), the court conducts a fact-specific balancing exercise for each challenged extract, rather than applying a blanket ruling across an entire category of evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 76, 78, 135, 137

Cases
- Kuehne v R [2012] NSWCCA 270
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
- Mulvihill v R [2016] NSWCCA 259
- R v Adam (1999) 47 NSWLR 267; [1999] NSWCCA 189
- R v Brooks [2017] NSWSC 188
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Hawi (No 1) [2011] NSWSC 1647
- R v Player [2000] NSWCCA 123