R v Taumalolo & Ors (No 1)

1. [1]

   On 24 May 2019 the deceased, Alex Ioane, was assaulted and killed at a birthday party he was attending at a home at 63 Chester Road, Ingleburn. Each of the accused, Tafuna Taumalolo, ST, Mateaki and Suliasi Taumalolo, ET and Sione Taulepa Mayol were charged with the deceased’s murder.

2. [2]

   Tafuna Taumalolo has pleaded guilty to the murder of the deceased. Each of the other accused has pleaded not guilty and has been committed for trial commencing 27 June 2022.

3. [3]

   Each of the accused ST, Mateaki Taumalolo and Sione Mayol, has sought to have certain evidence excluded from the trial. This judgment deals with the applications to exclude that evidence.

Crown case

1. [4]

   The party where the deceased was killed was an invitation-only party to which the deceased was invited. The Crown alleges that five of the accused were members of a gang. Tafuna, ST and ET were members of the “Claymore Boys”. The Claymore Boys were part of a larger group known as the Southwest Gang, of which Mateaki and Suliasi Taumalolo were also members. Sione Mayol, also known as Johnny Klappa, was a resident of southwest Sydney, and a friend or associate of Tafuna, ST and ET.

2. [5]

   Tafuna and ST are brothers, Suliasi and Mateaki are brothers, and the latter two are cousins of Tafuna and ST.

3. [6]

   The deceased was not associated with any gang.

4. [7]

   During the course of the party, there were a number of altercations between a number of males in the backyard of the premises. During one of those altercations, the deceased’s girlfriend, Sarahlyn Vaiuta, was jostled. The deceased yelled out “Oi” in response to this conduct, and Ms Vaiuta then heard the males responsible saying, “Alex, Alex, Yeah. We’ll get him after”. Another party guest who knew the Taumalolo family heard Suliasi, Mateaki, ST and Tafuna saying, “Where’s Alex, who’s Alex”.

5. [8]

   A little later another altercation broke out between Tafuna and another male. They were separated and Tafuna, ST, Suliasi and Mateaki were ejected from the party. Tafuna could be heard yelling, “Fuck Cabra” and “South west on top”, as he was being ejected. On the roadway Tafuna was heard to yell out, “Fuck Cabra, this is Ingleburn, this is our area”.

6. [9]

   Another person present at the party, Taivale Talosaga, then rang the accused ET and said to him, “Come ASAP because Funa’s gonna have a go with some guys from Cabra”. ET arrived shortly afterwards in one of two cars, from which a number of males alighted. Several of the males armed themselves with weapons including bats and golf clubs. ET armed himself with a baseball bat. Sione Mayol arrived at the party separately, but after the Taumalolos.

7. [10]

   Once the Taumalolo men had been ejected from the party, they were observed to be punching the deceased. Tafuna then struck him, causing him to fall to the ground. Thereafter all of the accused were observed to engage in various forms of assault on the deceased including punching, kicking and stomping on various parts of his body including his head. ET was observed to strike the deceased with a baseball bat.

8. [11]

   After the police and paramedics arrived at the scene, attempts were made to save the deceased, but he was pronounced dead at the scene at 10:45pm.

9. [12]

   Tafuna and ST were arrested and charged with murder on 26 May 2019. ET was arrested and charged on 20 May 2020. Mateaki was arrested and charged with murder on 14 April 2020, and Sione Mayol was arrested and charged with murder on 18 May 2021. Suliasi was arrested on 14 April 2020 and charged with affray. He was charged with murder about a month later.

(1) Application by ST

1. [13]

   The application by ST concerns portions of recorded telephone conversations involving ST and others at a time when ST was in custody on remand, and certain social media posts on ST’s Facebook page. The Crown seeks to tender the material for three purposes being:

2. [14]

   Some general remarks should first be made.

3. [15]

   In each case, the enquiry is, first, whether the evidence is relevant, that is, if it was accepted, whether it could rationally affect the assessment of the probability of the existence of a fact in issue: s 55 Evidence Act 1995 (NSW). The fact in issue is ST’s membership of a gang, whether the South West Crew or the Claymore Boys. If the evidence is relevant, it must then be determined if it is unfairly prejudicial to ST having regard to the balancing act in ss 135 and 137 of the Evidence Act.

4. [16]

   The two matters relied upon as prejudice are; first, if any of the calls were played, the jury would be aware that ST was in custody at the time; secondly, many of the extracts involve language or attitudes which cast those participating in the conversations including ST as people of bad character who endorse violence.

5. [17]

   ST accepts that the evidence that he had a family connection and a gang association with other accused, and in particular his brother Tafuna, is relevant as to whether he participated in a joint criminal enterprise. ST will not object to evidence from witnesses and from the social media bundle to the effect that he was a member of the Claymore Boys and the South West Crew. He admitted being a member of the South West Crew when interviewed by the police, but was not asked about the Claymore Boys.

6. [18]

   However, Mr Wilson SC for ST submitted that the extracts of the phone calls objected to, which the Crown wishes to tender as further evidence of those uncontested facts, have no probative value and are prejudicial for the reasons outlined above. He submitted that all of the calls post-date the killing of the deceased, and in that way do not say anything relevant about the nature of the gang relationship at the relevant time. He submitted that there is sufficient other evidence about the gang relationship, that the evidence in the calls adds little to that, and is, for the reasons given, unfairly prejudicial.

7. [19]

   The Crown submitted that the extracts not only evidence a continued association with other persons with whom ST “repped”, but also evidence that ST continued to define his world by reference to this practice of “repping” and “area beefs”. The term “repping” was not properly explained by the parties, but it appears to refer to groups of young men who protect their neighbourhoods or wider areas from those who would come to those areas from other places. This may involve threats of, or perpetration of, violence on outside groups, as the submissions of Mateaki Taumalolo (hereinafter “Mateaki”) seem to assert. However, there is some evidence that persons can “rep” their area through rap music. The term may derive from the verb “to represent” (see the definition in the Macquarie Dictionary).

8. [20]

   The Crown submitted that the extracts also show a strong culture of group loyalty with those that ST “repped” with, including collecting funds for persons in custody and looking after family members of those who are in custody. In this regard, the Crown submitted that the focus should be not so much on individual extracts but on the whole of the extracts read together. When considering the probative value of each of the challenged extracts I have borne that submission in mind.

9. [21]

   Whilst it may be accepted that there is some prejudice to ST on the basis that the jury would become aware that he was in custody at the time of these calls, I do not think that such prejudice is unfair prejudice, nor is it prejudice which could not be appropriately dealt with by directions to the jury. It is not uncommon for juries to become aware of the fact that an accused person is in custody, whether because bail has been refused, or for some other reason such as the offence being committed whilst in custody. In practice, it is the exception rather than the rule that a person charged with murder is released to bail. Juries are often told that the usual position is that a person who is accused of murder is held on remand rather than being released on bail, and that they should not draw any adverse inference about that fact.

10. [22]

    The aspect of prejudice said to arise from the nature of the conversations will be dealt with in relation to each relevant extract. However, most conversations do not contain content related to violence.

11. [23]

    A matter left unresolved by the parties was whether only the extracts put forward by the Crown (and to which objection is taken) or the whole of the content of the calls is to be adduced. The Crown submitted that only the extracts identified were relevant, and it was only intending to adduce those extracts. Context is frequently important. It is also frequently the case that it is necessary at a trial to hear all of a telephone call to appreciate the significance of the part relied upon. The issue arises particularly in some of the extracts discussed below at [48, [53] and [120].

12. [24]

    The parties, and the Crown in particular, were to give further consideration to whether extracts only, or the whole content of the calls, would be adduced.

13. [25]

    For the sake of clarity, I will set out the extracts sought to be adduced by the Crown, rather than refer to them by page and line numbers.

14. [26]

    In this extract, V.1 is ST, V.2 is his sister Lute Taumalolo; the reference to “Meki” is a reference to their brother Elimeliki Taumalolo, and the reference to “Funa” is a reference to Tafuna Taumalolo.

15. [27]

    The Crown relies on this, and a number of other extracts, which concern friends and family of ST providing, or offering to provide, money to him and his brother Tafuna, whilst they are in custody. The offer and provision of money is said to point to the continuing membership and cohesion of the gang or group to which ST and the others are said to have belonged.

16. [28]

    It does not seem to me at all surprising that family members and other friends of the accused might support the accused whilst he was in custody by providing money for him. It seems to me that the provision of money of itself says very little or nothing about gang membership unless there was some express reference to the gang in that regard.

17. [29]

    However, the above extract clearly relates to the provision of money to Tafuna and ST, and the need for the Claymore Boys to “step up now”. That is relevant to a determination of the existence and scope of the joint criminal enterprise: R v Hawi (No 1) [2011] NSWSC 1647 at [46]. ST submitted that it is others, and not ST, who says anything that might be considered significant. I do not agree. ST accepts that “Funa” needs money, and speaks of “the boys” and “revenge”. He appears to agree to the statement that the Claymore Boys should “step up”.

18. [30]

    It may be accepted that this extract raises for consideration the second aspect of prejudice identified. However, ST is suggesting only that the others (not his gang or group) might seek revenge. I do not think that amounts to unfair prejudice, and I do not think the jury will misuse the evidence.

19. [31]

    This extract should be allowed.

20. [32]

    In this extract, V.1 is ST, V.2 is Elimeliki Taumalolo and V.3 is Mateaki (also referred to as “Aki”). The reference to “Noneh” is a reference to ST.

21. [33]

    It does not seem to me that these passages have any probative value for the fact in issue. The people to whom ST is speaking are two of his brothers and nothing is said that relates to any gang membership. The provision of money by extended family members has no probative value on the issue of gang membership.

22. [34]

    These extracts should be excluded.

23. [35]

    In this call V.1 is Lute Taumalolo, V.2 is ST and V.3 is Tapaita Taumalolo.

24. [36]

    I do not consider that these extracts have any probative value. All that it concerns is “the boys” who want to provide some form of support for ST by writing to him. Even if there is an inference that “the boys” means the “Claymore boys”, such support is as likely to come from their friendship as from any involvement in a gang. If the suggestion in the last sentence is that other gang members who were not arrested feel guilty, that is a hearsay statement reported by Lute and not ST. The extract does not seem to me to assist in determining the existence or scope of the joint criminal enterprise.

25. [37]

    These extracts should be excluded.

26. [38]

    There is a further extract from this same call:

27. [39]

    This extract appears to me to have some reasonable probative value because it provides support for the notion that ST belonged to a gang that protected its area against gangs from outside the area. The Crown informed me that “OneFour” is a reference to a “repping” group associated with the Mount Druitt area. If that is the evidence, it adds to the probative value of the extract.

28. [40]

    I do not consider there is any unfair prejudice in anything said in this extract. This extract should be allowed.

29. [41]

    In this extract V.1 is ST and V.4 is an unidentified female, thought to be Angel (Angel Papalii was Tafuna’s girlfriend or partner).

30. [42]

    This extract relates both to monetary support from “the boys” but also to “repping”. It refers to the “South West” and to “046” which is the former area telephone code for Campbelltown. There is further reference to “OneFour”.

31. [43]

    There is no unfair prejudice. This extract should be allowed.

32. [44]

    In this extract V.1 is ST and V.2 is Lute Taumalolo.

33. [45]

    The reference to “Klapper” is a reference to the accused Sione Mayol. The probative value of this extract is the apparently close relationship between ST and Tafuna on the one hand, and Mr Mayol on the other. That is significant in terms of the joint criminal enterprise, because Mr Mayol was not said to be a member of any particular gang. Although Mr Wilson submitted that the information was all coming from Lute, it is clear from ST’s agreement with her, and from his own positive statements about Mr Mayol, that he regarded him as loyal and as being “family”. Some of the statements, and the evidence of Lute in her ERISP, provide evidence of Mr Mayol’s aggression towards the deceased.

34. [46]

    There is no prejudice. This extract should be allowed.

35. [47]

    Further extracts from this same call are these:

36. [48]

    These extracts appear to me to have probative value for a similar reason to that given for the previous extract. The Crown should give consideration to including the material that appears in the call between the two extracts and the material that follows the second of the extracts to give a proper context to these two extracts.

37. [49]

    There is no prejudice. These extracts should be allowed.

38. [50]

    In this call V.1 is an unidentified female, V.2 is ST and V.4 is an unidentified female.

39. [51]

    ST submitted that what was being discussed here was a reference to events in custody. Whilst that may be so, it is clear that the inter-gang rivalry persisted into the prison situation, and in that way tends to support the allegation that the joint criminal enterprise arose from, or was fuelled by, gang-related issues.

40. [52]

    There is no prejudice. This extract should be allowed.

41. [53]

    In this call V.1 is an unidentified male thought to be a person called Cooka, V.2 is ST, V.3 is an unidentified male thought to be ET, V.4 is an unidentified male thought to be Larry, and V.5 is Lute Taumalolo. What is produced below consists of the particular extracts challenged with all of what appears between those extracts, for the purpose of context. The portions in between the extracts appear in italics.

42. [54]

    The conversation amongst these persons clearly relates to gang membership and has probative value as a result of the participants in the conversation and what is said in that conversation. Mr Wilson submitted, as with the previous extract, that the conversation related only to the issue of gangs or groups within the custodial setting in which ST was placed. Even if that is the inference to be drawn, it has probative value as to ST’s membership of a gang in any event.

43. [55]

    The Crown accepted that the four lines of dialogue relating to “running shit in there” (in bold) should be excluded on the basis that the probative value is outweighed by the unfair prejudice, given what inferences could be drawn from those words. Otherwise, the extract should be allowed.

44. [56]

    There is a further extract from this call involving only ST (V.2) and another unidentified male (V.7).

45. [57]

    All that is said by ST is that he misses everyone, particularly his brothers, and wants his love to be sent to Tafuna who he describes as his “best brother”. I do not consider that this extract has any probative value on the issue of gang membership. It should be excluded.

46. [58]

    In this call V.1 is ST and V.2 is Lute Taumalolo.

47. [59]

    Mr Wilson submitted that this extract adds nothing to the evidence that ST and Tafuna were in a gang together. In my opinion, it is an important acknowledgement of ST’s relationship with his brother in relation to a gang or group.

48. [60]

    There is no prejudice. The extract should be allowed.

49. [61]

    In these extracts V.1 is ST, V.2 is an unidentified male, V.4 is an unidentified male, V.5 is an unidentified male thought to be ET, and V..6 is an unidentified male thought to be Lennox.

50. [62]

    What is discussed in these two extracts seems to have probative value because of the reference to gang life and “my boys”. Further, Lennox is said in some of the statements to have been involved in the altercations at the party that involved members of the Taumalolo family. George Fuesaina says in his statement that Lennox was one of the Claymore Boys.

51. [63]

    There is no prejudice. These extracts should be allowed.

52. [64]

    There is a further extract from this call as follows:

53. [65]

    The reference to “Clakka” (i.e. Claymore) and “Greater West” relates to rival gangs.

54. [66]

    Although the conversation does not cast ST in a very good light, I do not consider that adducing this evidence amounts to unfair prejudice. Any prejudice can be cured by appropriate directions to the jury. This extract should be allowed.

55. [67]

    There is a further extract from this call as follows:

56. [68]

    This conversation is along similar lines and concerns various gangs. Any prejudice from the substance of the conversation can be dealt with by appropriate directions. It should be allowed.

57. [69]

    In this call V.1 is an unidentified male thought to be a person named Belly (more likely Peli – see ST’s Facebook page, and [72] and [125] below), V.2 is ST and V.3 is an unidentified male thought to be Johnny Clapper (Klapper), AKA Sione Mayol.

58. [70]

    These extracts have some probative value because of the reference to 2559, which is the postcode for Claymore, and to Johnny Klapper, who is a co-accused under the name Sione Mayol.

59. [71]

    There is no prejudice. They should be allowed.

60. [72]

    There are two further extracts from this call as follows:

61. [73]

    In my opinion, these extracts have some probative value in relation to the issue of gangs. The conversation is principally between ST and Mr Mayol, and concerns “the boys” and what has happened since ST and Tafuna were arrested and placed in custody.

62. [74]

    There is no prejudice. These extracts should be allowed.

63. [75]

    In this call V.1 is ST and V.2 is Lute Taumalolo.

64. [76]

    This conversation appears to relate to the boys, and possibly the Claymore Boys, recording a new song and video. The fact that ST tells Lute to tell them to stop doing so because it might get them locked up leads to an inference that the song and the video by these people is gang related. The conversation appears, therefore, to have probative value.

65. [77]

    There is no prejudice. It should be allowed.

66. [78]

    In this conversation V.1 is ST and V.2 is an unidentified person.

67. [79]

    When taken with the previous extract, this conversation has probative value linking the new song recorded in relation to Claymore, and in that way to gang membership.

68. [80]

    There is no prejudice. The extract should be allowed.

69. [81]

    In this extract V.1 is ST and V.2 is an unidentified male thought to be “John”:

70. [82]

    The evidence relates to an assault by ST on another person at the party, Aaron Harrison, at the front of the house on the roadway after people had been evicted from the party. Mr Harrison does not remember the assault due to his level of intoxication, but two other witnesses, Manatu Ofa Lolohea and Taya Paxton, give evidence of that assault. The Crown seeks to rely on the evidence as to ST’s conduct to demonstrate a particular state of mind on the part of ST, which can be relied upon inferentially to show that ST had that same state of mind at the time of the alleged attack on the deceased.

71. [83]

    Mr Wilson submitted that there is no dispute that ST injured his hand on the night of the murder when, during the early altercation, he punched Mr Harrison. ST ultimately pleaded guilty to assaulting Mr Harrison occasioning actual bodily harm, and was sentenced by the Children’s Court.

72. [84]

    Mr Wilson submitted that it is not clear how ST’s state of mind is relevant to the murder. He submitted that there was no connection between the altercation with Mr Harrison and the assault on the deceased. He submitted that even if it was relevant, it adds nothing and has no probative value. He submitted that it is prejudicial for the reasons earlier identified.

73. [85]

    In R v Adam (1999) 47 NSWLR 267; [1999] NSWCCA 189 the Court of Criminal Appeal (Spigelman CJ, James and Bell JJ) said at [30]:

74. [86]

    That passage was cited and followed by the Court of Criminal Appeal (Smart AJ with whom Priestley JA agreed) in R v Player [2000] NSWCCA 123. In that case, the accused was charged with maliciously damaging a shop window. Evidence had been admitted at trial that the accused was in an aggressive state, and had been seen kicking over a bin in the same street as the shop window that was damaged, and then walking some distance where he kicked and slashed or karate chopped a “For Sale” sign. He was then seen kicking another bin. The evidence had been objected to, but the trial judge admitted it on the basis that it was evidence that the appellant was in an aggressive state when seen close to the shop window that was damaged. It had been submitted that the evidence was tendency evidence, and that no notice had been given to lead tendency evidence.

75. [87]

    The Court followed Adam, holding that the smashing of the window was part of the same connected series of events, namely, “a drunken aggressive and destructive rampage in the early hours of Saturday morning".

76. [88]

    The evidence in the present case is similarly admissible. The aggression that ST demonstrated towards Mr Harrison occurred after he and the others had been ejected from the party, and took place out in the front street shortly before ST was seen to be involved in the altercation with the deceased. The evidence tends to show his aggressive state of mind shortly before the altercation with the deceased.

77. [89]

    Although Mr Lolohea and Ms Paxton give evidence about the altercation with Mr Harrison, the extract is a significant acknowledgement by ST of that altercation. In that way its probative value provides corroboration for their evidence.

78. [90]

    The evidence may be prejudicial in that it shows ST was generally aggressive at least on the night in question, and that he assaulted Mr Harrison. However, in the light of Adam and Player, and that the assault on Mr Harrison was part of the relevant events leading up to the assault on the deceased, I do not consider that the extract constitutes unfair prejudice.

79. [91]

    The extract is allowed.

80. [92]

    The following extracts are said by the Crown to constitute admissions by ST, particularly by references to “snitches” and “snitching”. One of the issues between the parties in this regard was the meaning of the verb “to snitch”. Mr Wilson relied on the second meaning of the word in the Macquarie Dictionary where the word as a verb was said to mean “to turn informer”. The Crown submitted that the understood meaning of the word is to “inform on someone, give them up, tell on them”, and when used as a noun was said to be “a person who tells someone in authority about something wrong that someone has done”.

81. [93]

    Mr Wilson submitted that unless “snitching” had what he described as the narrow meaning given by the Crown, that is, telling the police the truth about something that actually happened, as opposed to simply being someone who is cooperating with the police and providing evidence or assistance to the police, the evidence in the extracts where snitching is referred to is irrelevant. He submitted that the only evidence which I had was the dictionary meaning from the Macquarie Dictionary and, by implication, that I should accept that meaning. That submission presupposes either that the members of the jury would all understand the meaning of the word to be the meaning given to it in the Macquarie Dictionary, or that I would need to give a direction to the jury that that is the meaning of the word. I do not consider that I should approach the matter in that way.

82. [94]

    It will be up to the jury to draw whatever inferences the jury think appropriate after they hear what ST says in the calls. Any such inferences will doubtless be drawn on the basis of the jury’s own understanding of what this colloquial term means in common parlance. For my own part, I should have thought that the Crown’s understanding of the word was closer to the meaning of the word when used generally than the rather formal and limited definition provided in the Macquarie Dictionary. Moreover, the way the word is used in the extracts tends to support the meaning the Crown suggests it conveys.

83. [95]

    In the light of that conclusion, I will now consider each of the extracts objected to.

84. [96]

    In this call V.2 is ST and V.7 is an unidentified male.

85. [97]

    Whichever meaning of the word is used, there is an inference open to the jury that, whether or not the person snitching is an informer or not, they are purporting to implicate ST, at least in his own mind. Mr Wilson submitted that the reference to “telling all this shit, talk shit” is inconsistent with the people concerned actually saying anything to the police about what he did.

86. [98]

    It seems to me that it is ultimately a matter for the jury what they make of this conversation, particularly because ST appears to include a threat to these people at the end of the extract. Mr Wilson submitted, however, that the issue of unfair prejudice was significant, because there was a significant risk that the evidence would be given more weight than it deserved.

87. [99]

    In my opinion, the passage has probative value, and I do not consider that there is a significant risk that it will be given more weight than is deserved. Its probative value is not outweighed by any unfair prejudice.

88. [100]

    I would allow this extract.

89. [101]

    In this call V.1 is ST and V.2 is Lute Taumalolo.

90. [102]

    The word “itch-snay” is pig Latin for “snitch”.

91. [103]

    The reference to Tanaya is likely to be a reference to Tanaya Graham who made a statement on 11 June 2019. In that statement she described the assault on the deceased and said:

92. [104]

    Mr Wilson submitted that ST was simply telling his sister what other people had told him, and in that way it was coming to him secondhand. He submitted that ST does not admit what he reports having been said, and the hearsay evidence should not be admissible against him. Mr Wilson submitted that ST was not served with a copy of Tanaya’s statement until after the date of this phone call. Mr Wilson also submitted that the context did not leave open the implication that Tanaya had done anything except assist the police.

93. [105]

    In the light of what Tanaya Graham said in her statement implicating ST in the assault on the deceased, and given that ST says that he has heard that Tanaya has snitched on him, there is an available inference that the reference to snitching is a statement against his interest in the outcome of the proceedings. That is a factual question for the jury to decide. It is not to the point that he had not seen the statement himself. If he did not believe that he had done anything in respect of which Tanaya had (in his mind) said things to the police asserting his involvement, he would not have accused her of snitching. That is a statement against his interest.

94. [106]

    The extract should be admitted.

95. [107]

    In this recording V.1 is ST and V.2 is Lute Taumalolo.

96. [108]

    If the Crown only intends to play the extract set out, the extract does not have any probative value. The fact that ST knows that Tanaya Graham made a statement about him does not advance the matter at all. However, if the Crown intends to play the whole of the call (because of the extract which I have held to be admissible at [58]-[59] above), there is no prejudice to ST from the extract set out above being played to the jury. In those circumstances, it should be allowed.

97. [109]

    In this recording V.1 is ST and V.2 is an unidentified male thought to be Elimeliki Taumalolo.

98. [110]

    Nothing contained in this extract can amount to an admission by ST. It is Elimeliki who makes the assertion that the Molina twins were snitching on ST. ST does not adopt what Elimeliki says. This extract should be rejected.

99. [111]

    In this recording V.1 is Lute Taumalolo and V.2 is ST.

100. [112]

     Mr Wilson submitted that this extract is so obtuse that it is impossible to work out what the two persons are talking about, but that in any event most of what was being said was being said by Lute. However, there is an available inference that what ST said at the end is an admission. Although Lute had not been arrested by that stage, Tafuna and ST knew that she had advised them to burn their clothes after the deceased’s death, and they had done so with her in the backyard of their home.

101. [113]

     There is no prejudice. This extract should be allowed.

102. [114]

     In this recording V.1 is ST and V.2 is Lute Taumalolo.

103. [115]

     The portion the Crown seeks to have admitted and played is the portion of the call in italics above. In order to understand Mr Wilson’s submissions, I have included the two surrounding portions of the call.

104. [116]

     Mr Wilson first submitted that there is no pause in what is said where a full stop has been placed after the first reference to “[ET]” in the portion which reads:

105. [117]

     Mr Wilson submitted that “they” is a reference to ST’s lawyers, particularly because, when Lute asks at the end of the extract who said that, ST replies “the lawyer”.

106. [118]

     Mr Wilson submitted that the statement “if you want to help the police” points to somebody else and not the police saying that. I do not agree. It is clear that the reference to “they” right up to this point is a reference only to the police. The first reference to the lawyer and legal advice arguably occurs when ST says that he “can’t get found innocent” because he makes it clear that that is what the lawyer said to him.

107. [119]

     I accept that it would be highly prejudicial, and arguably inadmissible for a breach of client legal privilege, if “they” is a reference to ST’s lawyers. I do not, however, consider that such an inference is open when the earlier portion set out is read. It is clear that “they” is a reference to the police. Further, when asked by Lute at the end of the extract, “who said that?”, ST says “the lawyer” and not “the lawyers”.

108. [120]

     In my opinion, it is essential that this extract in italics must be heard with the portion of the extract which precedes it. Moreover, the sentence “Look, apparently I can't like, get found innocent” must be excluded, because it is apparent from what follows that this was legal advice that ST was given. The Crown particularly wants the extract in italics because of the references to snitching and for the statement that “if [ET] snitches on me, then I'm fucked.”

109. [121]

     In my opinion, the italicised portion should be admitted down to, but not including, the last italicised sentence [“Look, apparently, etc”], and with the preceding portion played before the italicised portion.

110. [122]

     The Crown seeks to tender nine pages of photographs and postings on ST’s Facebook page. ST does not object to the bundle as a whole, and accepts that it shows his association with other accused persons.

111. [123]

     There were two objections to it. The first is on the first page under the heading “Intro” where the following appears:

112. [124]

     Ultimately, the Crown agreed that all that would be adduced of that was “#2559 #the area”.

113. [125]

     The second objection was to a series of postings where Vayoh Taumalolo has commented on a picture posted on ST’s page, and that comment has led to a conversation involving ST and another person, Peli Fotofili, both of whom have tagged Vayoh Taumalolo.

114. [126]

     It is not necessary to set out the conversation, because during the course of argument Mr Wilson and the Crown prosecutor agreed that the first three posts could be adduced but that the last three posts would be omitted.

(2) Application by Mateaki Taumalolo

1. [127]

   The Crown seeks to adduce evidence to demonstrate that Mateaki was a member of the South West gang. Paragraph 5 of the Crown case statement asserts that fact.

2. [128]

   The particular evidence relied upon by the Crown comes from a number of witnesses, particularly Bryce Stewart, and Detective Senior Constable Brendan McManus when taken together with a statement of Freda Tuese. The Crown also relies upon Mateaki’s participation in a music video entitled “On the Block”, which was filmed at the Ingleburn Railway Station and the Ingelburn Bowling Club.

3. [129]

   Bryce Stewart attended the party with a number of other people including ET. He was one of the people, like ET, who armed himself with a baseball bat on arrival at the party and walked over to the area where the altercation involving the various accused and the deceased was taking place in front of the house.

4. [130]

   After Mr Stewart left the party he said that he and “all the boys, met up at Eaglevale McDonald’s”. The statement went on to say:

5. [131]

   In that way, he identifies Mateaki as an “Ingleburn” boy.

6. [132]

   In her statement dated 25 May 2019 Ms Tuese says this:

7. [133]

   Earlier in her statement Ms Tuese indicated that she knew each of Suliasi, Mateaki, Tafuna and ST.

8. [134]

   In September 2019 Senior Constable McManus spoke with Ms Tuese to ask about aspects of her statement. His statement in that regard relevantly reads as follows:

9. [135]

   Mr English of counsel for Mateaki submitted that any evidence that Mateaki was a member of a gang was irrelevant to the issues in the trial, and submitted that the evidence underpinning the contention of gang membership was based either on inadmissible hearsay and/or lay opinion evidence that did not satisfy s 78 of the Evidence Act.

10. [136]

    The evidence in relation to the video will be that it was made in about October 2019 in the places I have mentioned. The words “Ingleburn, South West Sydney” appear at the introduction to the clip. Some of the persons in the video can be seen wearing a hooded jumper saying “Ingleburn, South West” along with the postcode for Ingleburn “2565”.

11. [137]

    In a recorded statement from a witness Taeafato Meafua, that witness suggests that one of the ways that individuals “rep” their area is through rap music.

12. [138]

    In the statement from Tafuna Taumalolo’s former girlfriend, Angel Papalii, she said that she knows of a local gang called “the Ingleburn Boys” through their music.

13. [139]

    Mr English submitted that, at its highest, the music video was only capable of proving that Mateaki was a member of the Ingleburn gang as at the date of the video’s creation, which post-dated the murder by some five months. He submitted further, that unless Mr Stewart’s evidence was admitted identifying Mateaki as a member of the Ingleburn Boys in May 2019, the music video was not capable of rationally affecting the assessment of the probability of the existence of that fact.

14. [140]

    The Crown relied on s 66 of the Evidence Act for the admissibility of the evidence of Mr Stewart, Ms Veatupu and Ms Tuese. The Crown submitted that in relation to Mr Stewart, his evidence was based on what he saw, heard or otherwise perceived, referring to s 66(2)(b). The Crown submitted that Mr Stewart had the knowledge through his interactions with Mateaki and the others within the gang.

15. [141]

    In relation to the video the Crown submitted that it must be looked at in the context of the remainder of the evidence to suggest that Mateaki maintained a connection with the other persons who repped the area. She submitted that the video had high probative value because it was the best evidence of Mateaki’s actual membership of the Ingleburn Boys.

16. [142]

    It should first be noted that the only assertion that Mateaki is a member of any gang is from Mr Stewart. Ms Tuese simply makes reference to the “Taumalolo brothers” without identifying which of the two sets of brothers she is speaking about. The fact that it is known that Tafuna and ST are members of the Claymore Group might suggest that she is speaking of them rather than Mateaki and his brother Suliasi.

17. [143]

    In any event, the issue devolves to proving the basis of Mr Stewart’s knowledge in an admissible way. For the matter to be admitted under the exceptions to the hearsay rule, there would need to be a representation which amounted to firsthand hearsay and fell within the exception in s 66(2). What Mr Stewart says concerning Mateaki is:

18. [144]

    It does not seem to me that that statement comes within s 66(2) because Mr Stewart is not giving evidence of a representation by a person who saw, heard or otherwise perceived the representation being made. There is in fact no representation. Rather, Mr Stewart is giving evidence of either a conclusion he has reached, or an opinion he holds, that Mateaki was a member of the Ingleburn Boys.

19. [145]

    To the extent that his statement is a conclusion, it is not admissible. He would need to give evidence of facts that he had seen, heard or otherwise perceived, from which that conclusion could be drawn. He has not done that.

20. [146]

    In relation to lay opinion evidence, in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 the joint judgment of French CJ, Heydon and Bell JJ said at [48]:

21. [147]

    Where what is being dealt with is so-called membership of an amorphous group with no formal structure or membership, it seems to me that so-called “knowledge” of someone’s membership of such a group could only derive from an admission by that person to that effect, an implied acceptance by the person concerned of an assertion made that he or she was a member of the group, or some behaviour by the person that demonstrated membership; for example, wearing clothing with the gang name on it, such as occurs with outlaw motor cycle gangs.

22. [148]

    No amount of observation that the person was frequently seen in the company of other persons would amount to knowledge that the person concerned was a member of such a group, even if it could be established that there was such a group. At best, Mr Stewart’s statement is an opinion which is prima facie inadmissible under s 76 of the Evidence Act, and would only be admissible under s 78 if it fell within the terms of that section. Section 78 provides:

23. [149]

    On the basis of what is said by the High Court in Lithgow City Council v Jackson, Mr Stewart’s opinion does not fall within s 78.

24. [150]

    In the absence of other evidence pointing to Mateaki’s membership of a gang, the video in which he is a participant has no probative value. It shows that he was a member of a music group in October 2019 that might be promoting Ingleburn and the South West, but it does not go further than that. Ms Papalii says in her statement of May 2020 (12 months after the murder, and seven months after the video was made) that she knows of a local gang called “the Ingleburn Boys” through their music, but says that she only knows one person in that gang, being Noah Albert.

25. [151]

    In my opinion, none of this evidence sought to be relied upon by the Crown to show that Mateaki is a member of any gang is admissible.

26. [152]

    As with ST, Mateaki objects to the Crown playing and relying on a number of telephone calls in which he was participant either before or after his arrest and incarceration. As with ST, I will set out each gaol call and then consider whether the call should be allowed to be adduced or should be rejected.

27. [153]

    This is the call set out at [32] above.

28. [154]

    For similar reasons I gave in relation to ST, it does not seem to me that the mere provision of funds to those who have been arrested and placed into custody says anything about gang membership. Further, in the above extract, Mateaki does not even offer to pay money towards ST or Tafuna.

29. [155]

    I would exclude this extract.

30. [156]

    In this call, V.1 is ST, V.2 is Elimeliki, V.3 is Mateaki and V.4 is an unidentified male.

31. [157]

    The Crown appears to rely on this call for two purposes; first, Mateaki confirms that the photo the police have posted on Facebook is a picture of him; secondly, the statements made in the call amount to admissions. Those remarks are:

32. [158]

    Mr English accepts that the photo which the police posted on Facebook was a picture of Mateaki.

33. [159]

    In my opinion, the call is relevant for providing a confirmation from Mateaki that the photo the police had posted on Facebook was a picture of him. Further, the two particular comments referred to amount to admissions, inasmuch as the representations are adverse to Mateaki’s interest in the outcome of the proceedings. The statements form part of the circumstantial material admissible against Mateaki. The Crown did not make clear whether it wished to use the statements as consciousness of guilt. Whether, in any event, the comments constitute a consciousness of guilt is more difficult to determine, particularly because they could be a reference to Mateaki’s involvement in the affray or other wrongdoing that night. The fact that another offence (affray) is charged against Mateaki, and also against ST, would not preclude reliance upon the statements as consciousness of guilt: R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 at [37]-[39] and at [63]-[66]; Mulvihill v R [2016] NSWCCA 259 at [227]-[232].

34. [160]

    The extract is allowed.

35. [161]

    There is a series of 20 calls between July 2019 and 1 April 2020 involving Mateaki and various people. To avoid this judgment becoming unnecessarily lengthy, I will not set out the texts of these calls.

36. [162]

    The first group of these calls which should be considered at this point are related to Mateaki’s girlfriend, Marlee Lusio, and to her arrest and charging for concealing a serious indictable offence, being the murder of the deceased. These calls are identified as product numbers 3109, 19180, 54712, 54905, 54911, 54932, 54954, 54986 and 55001 (the last three being sms texts).

37. [163]

    All of these calls are relevant to the issue of Mateaki’s involvement in the death of the deceased. They disclose admissions by Mateaki that Ms Lusio was with him at the party and that she has information that would be relevant to the police. An inference is available that her information might implicate Mateaki in the deceased’s death.

38. [164]

    All of these calls and texts should be allowed.

39. [165]

    In this call V.1 is Isabella Border, V.2 is Mateaki and V.3 is an unknown male.

40. [166]

    The Crown relies upon this call as showing Mateaki’s involvement with the gang. Mr English submitted that the call was equivocal, it occurs almost 12 months after the murder, and suggests that Mateaki was indicating a willingness to fight someone from Ingleburn, which was contrary to the Crown case.

41. [167]

    In my opinion, the conversation tends to suggest that Mateaki was minded to engage with persons from other areas than his own, even though he was in prison at that time. I accept that there is some risk of prejudice because Mateaki appears to be threatening violence against people from Mount Druitt. I do not, however, consider that the prejudice is unfair prejudice, nor that it outweighs the probative value of the evidence.

42. [168]

    This extract is allowed.

43. [169]

    In this call V.1 is Isabella Border, V.2 is Mateaki and V.3 is Milika Taumalolo.

44. [170]

    The probative value of this extract arises from Mateaki’s remark that he refers to Lisa (i.e. Lisa Tagoiaega) as a snitch. Mateaki confirms to his sister Milika that he has seen all of the statements. In paragraphs 10 and 11 of her first statement, Lisa Tagoiaega identifies Mateaki, Suliasi and Tafuna as being involved in altercations on the night of the party. Whilst in her later statement she identifies Lennox and ET as the persons who hit the deceased, it is open to the jury to infer that Mateaki was referring to Ms Tagoiaega snitching on him, amongst others, as a result of what was said in the first statement.

45. [171]

    I do not consider there is any prejudice. This extract should be allowed.

46. [172]

    In this call V.1 is Isabella Border and V.2 is Mateaki.

47. [173]

    Mr English submitted that it was not apparent how Mateaki discussing his brother’s charges was capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceedings. Nor was it clear how those statements could amount to an admission against Mateaki.

48. [174]

    The Crown submitted that this call had to be seen in the light of the later call of 4 June 2020, and the further call of 14 June 2020 where Mateaki says he will just do the time and man up.

49. [175]

    The Crown’s submission should be accepted. Although this call on its own may not be capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceedings, when taken in the context of the surrounding calls it is capable of doing so. It is also connected with the arrest of Ms Lusio, and the conversations with and concerning Ms Lusio’s mother.

50. [176]

    Ms Carroll of counsel for Suliasi submitted that this call might be prejudicial to her client, because he was originally charged only with affray when he was arrested on 14 April 2020. Thereafter, perhaps in May 2020 although (she acknowledged) before this call, a prosecutorial decision was made to charge Suliasi with murder. She submitted that knowledge by the jury of that course of events would be prejudicial to her client. What Mateaki says in that call discloses the upgrading of the charge.

51. [177]

    It was not made clear why a knowledge of the upgrading of the charge might be prejudicial. The Crown agreed that it would not be leading evidence of any decision by the DPP to upgrade the charge against Suliasi. Ms Carroll appeared to accept that the matter could be dealt with appropriately by directions to the jury. The extract is not, as I understand it, tendered against Suliasi, although I acknowledge the difficulties in a joint trial from material that can be used against one accused but not another. I do not think this is a basis for excluding the extract, but the matter can be revisited at the relevant time in the trial. The parties and I will have a better sense of what material is at that stage prejudicial, depending on the evidence that has preceded its being adduced.

52. [178]

    The extract should be allowed.

53. [179]

    In this call V.1 is Mateaki and V.2 Milika Taumalolo.

54. [180]

    Mr English submitted that the statements attributed to Mateaki in the call are intractably neutral between murder (with manslaughter as a common law alternative), affray towards the deceased, and Mateaki’s further charge of affray. He submitted that it would be speculative to attribute the admission to any particular offence. He submitted that the statements attributed to Mateaki were equivocal and open to a number of interpretations. He submitted that they don’t have the capacity to amount to an implied consciousness of guilt.

55. [181]

    In my opinion, statements made by Mateaki in the call are capable of amounting to admissions against him. The concept of being intractably neutral relates to consciousness of guilt, but the Crown is entitled to use these statements as admissions without relying on them as consciousness of guilt. They are merely statements adverse to the interest of Mateaki.

56. [182]

    Mr Wilson raised an issue with the following portion of the extract:

57. [183]

    Noneh is ST. Mr Wilson submitted that an inference available from this portion is that Mateaki has heard that ST was trying to pass on the blame to him (and probably Suliasi), and that Mateaki was responding by saying that ST should just “own up to it”. Mr Wilson said that such a statement by Mateaki was inadmissible against his client, and was highly prejudicial for the jury to hear it.

58. [184]

    The Crown accepted that the sentence, “I heard Noneh … one of the statements” should be excised. Mr Wilson submitted that the following sentence should also be excised, but the Crown seeks to rely on that sentence as an admission against Mateaki. The Crown submitted that if the first sentence was omitted, a direction could be given regarding Mateaki’s assertion that ST should man up and own up.

59. [185]

    It seems to me that if the first sentence is omitted, the sting is taken out of the second sentence because ST is no longer mentioned. I would allow the second sentence to be adduced.

60. [186]

    This extract is otherwise allowed.

61. [187]

    In this call V.1 is Mateaki and V.2 is Milika Taumalolo.

62. [188]

    This call falls into a similar category to the previous one. It contains what may be regarded as an admission by Mateaki (the portion in bold). There is also a reference to Lute Taumalolo being a snitch.

63. [189]

    The extract should be allowed.

64. [190]

    In relation to Mateaki, the Crown relies on evidence that Mateaki changed his physical appearance shortly after the police posted a media release on the Campbelltown police Facebook page on 6 November 2019. The release included an image of Mateaki which had been taken in the backyard of the property where the party was held on 24 May 2019. The image was accompanied by a caption which said:

65. [191]

    The photograph was a somewhat blurred image of a male person showing his head, upper torso and, seemingly, his upper right leg. The male person appears to have a dark beard under, but not on, his chin, and he may a faint moustache but it is difficult to tell.

66. [192]

    The second group of intercepted telephone calls between Mateaki and other people contains conversations relevant to this Facebook post and Mateaki’s appearance. Again, I do not intend to set out the full content of these intercepted calls, but they are identified as product numbers 23003, 23015, 23027, 23029, 23031, 23032, 23033, 23034 and 23035.

67. [193]

    On 6 November 2019 at 14.22 hours, in an intercepted call, Suliasi tells Mateaki to go to his Facebook and deactivate it. On the same day at 16:25 hours Mateaki tells Suliasi that he has deactivated everything.

68. [194]

    Later that day at 17:26 hours, Elimeliki tells Mateaki that he spoke to the lawyer who said, “Shave your head and shave your beard”, “Even just go short, like a crew cut”, “and shave your beard off”. Mateaki agreed. Mateaki then rang someone looking for Xavier. He told the person who answered. “Fuck, I need a haircut ASAP hey. Hey they posted another photo…on Facebook of me”, and, “They posted another photo of me on Facebook and I fucken’ talked to the lawyer – he said, fuck you’ve gotta save, shave, shave your head, fucken bald and fucken cut, cut your beard off”.

69. [195]

    In a series of texts which followed, it became clear that Xavier was not able to cut Mateaki’s hair. Accordingly, he rang Elimeliki at 17:44 hours and asked “Can you get your guy to cut my hair”. Elimeliki agrees but says to him, “But you’ve just gotta fucken try not to go out and shit, try to keep on the low”, to which Mateaki responded, “Yeah sweet”. That is followed shortly afterwards by the gaol call (set out at [155] above at 21.10 hours). It is an available inference from that conversation that Mateaki agreed that it was his picture that the police had put on Facebook.

70. [196]

    A picture of Mateaki reporting to the police in respect of bail for the unrelated affray charge the following day shows that he was clean shaven and his hair had been cut at the sides and the back.

71. [197]

    The Crown submitted that the conduct of Mateaki, seeking to alter his appearance immediately after the posting of the Facebook post by the police, is related to the murder of the deceased and should not be seen as having anything to do with the unrelated affray charge. In any event, the Crown submitted that the mere availability of another explanation for Mateaki’s conduct does not preclude the evidence being placed before the jury if the evidence has the capacity to satisfy the requirements for consciousness of guilt. They are that the conduct must be deliberate, it must relate to a material issue, and the motivation for the conduct is a realisation of guilt and fear of the truth. It must be capable of being seen as an indication of a consciousness of guilt for the specific offence, namely, murder.

72. [198]

    Mr English submitted that evidence of consciousness of guilt may be inadmissible on the grounds of relevance if it is equally consistent or intractably neutral as between multiple counts on an indictment and the proposition that the admission was referable to the accused’s realisation of involvement in perceived unlawful conduct, relying on what was said in R v Brooks [2017] NSWSC 188 at [40].

73. [199]

    Mr English submitted that the evidence of change of appearance is not capable of amounting to an implied admission of guilt for four reasons. First, Mateaki changed his appearance, not from independent behaviour on his part, but in response to instructions of family members, said to be based on legal advice.

74. [200]

    Secondly, it was submitted that the statement published by the police with the photograph indicated that the police were interested in interviewing Mateaki, not that he was wanted in connection with the crime. His change of appearance can then be seen as a desire by him not to be identified as someone who may be able to assist the police’s enquiries into Alex’s murder. Thirdly, it was submitted that as the later photograph on 8 November 2019 shows, he did not change his appearance as instructed, nor did he avoid the police. Finally, it was submitted that the evidence was inadmissible on the grounds of relevance, because it was equally consistent or intractably neutral between the counts on the indictment and the proposition that it was referable to his realisation of having been involved in unlawful conduct on the evening rather than the murder, manslaughter or affray.

75. [201]

    Mr English submitted further that, even if the evidence was relevant and admissible, it should be excluded under ss 135(a) and 137 of the Evidence Act on the basis that its probative value was outweighed by its prejudicial effect. The prejudice would be that, if the photograph of Mateaki on 8 November 2019 reporting for bail was tendered, it would disclose his prior bad character in that regard.

76. [202]

    In my opinion, the Crown has, as the Court in Kuehne v R [2012] NSWCCA 270 at [68] requires, identified with precision the conduct relied upon and has identified its capacity to constitute an implied admission of the offence charged. On the same day police posted Mateaki’s picture and asked for assistance in identifying him, Mateaki took steps to alter his appearance by changing his haircut and removing his beard. It is open to the jury to infer that his reason for doing so came from a realisation of his involvement in the murder of the deceased. I do not consider that the evidence is intractably neutral between that and a fear that he may have done something else or illegal at the party that night. The wording on the Facebook page is directed to the police’s enquiries into the deceased’s murder and nothing else. It is also open to the jury to conclude that the change in his appearance was not intended simply so that he could avoid being questioned by the police as a witness who was not otherwise involved in the assault on the deceased.

77. [203]

    I do not consider, simply because other people suggested to Mateaki that he should change his appearance in that way, that that means the evidence is incapable of amounting to a consciousness of guilt on his part. To put it bluntly, if Mateaki believed that he had not been involved in the events leading to the deceased’s murder, he could reasonably have ignored the advice he was being given, on the basis that there was no need for it. It is the fact that he agreed to go along with it that is the significant matter; where the suggestion originated is not the significant matter.

78. [204]

    The Crown submitted that it relied not only on Mateaki seeking to alter his appearance, but that he in fact did so. It will be a matter for the jury to determine if that is so based chiefly, no doubt, on the photos taken at the time he was reporting to the police station. Those photographs when compared with his appearance both in the Facebook post and other photos taken at the party are capable of showing a significant difference. The evidence of Bryce Stewart concerning Mateaki’s appearance at the time of the party (at [130] above) is further evidence of the change of appearance shown in the photo of Mateaki reporting for bail.

79. [205]

    Moreover, the evidence of his having deactivated his own Facebook page at the same time is another piece of circumstantial evidence relevant to consciousness of guilt, particularly because it was done immediately after the police’s Facebook post.

80. [206]

    In my opinion, the evidence is admissible and is capable of amounting to consciousness of guilt evidence. There is nothing in the CCTV stills that identifies where Mateaki is or where he was going when they were taken. The jury does not need to know that they were taken at or near the police station or in connection with any obligations he had to report to the police for the unrelated affray charge.

(3) Application by Sione Mayol

1. [207]

   There were initially two issues between the Crown and Mr Mayol. The first concerned the intention by the Crown to lead evidence that Mr Mayol destroyed his SIM card, and to rely on that evidence as consciousness of guilt. Subsequent to hearing argument from Ms Davenport SC for Mr Mayol and from the Crown prosecutor, the Crown indicated that, whilst it would adduce evidence of Mr Mayol’s conduct in that regard, it would not rely upon that conduct as constituting a consciousness of guilt. Ms Davenport did not oppose the evidence being led.

2. [208]

   The second matter concerned objections to portions of Mr Mayol’s ERISP.

3. [209]

   A version of the ERISP was provided to the Court which contained green, pink and orange highlighting. The green highlighting denoted agreed redactions to the ERISP; the orange highlighting denoted portions that the Crown proposed to defer until after the evidence of the witnesses referred to in those portions of the ERISP; and the pink highlighting denoted material the Crown pressed but which was resisted by Mr Mayol.

4. [210]

   Prior to, and during, the argument about the ERISP, additional agreement was reached between Ms Davenport and the Crown prosecutor concerning a number of the portions highlighted in pink. I will now deal with those portions where dispute remains.

5. [211]

   Questions 209 and 210 and their answers read as follows:

6. [212]

   Only question and answer 209 were denoted in pink, but Ms Davenport’s submissions embraced question and answer 210 as being in the same category.

7. [213]

   Ms Davenport submitted that the questions were unfair because they assumed that Mr Mayol agreed that he joined in the altercation. Ms Davenport submitted that, throughout the interview, Mr Mayol had said that he did not know whether he had joined in or not.

8. [214]

   Earlier in the interview, Mr Mayol had been asked about how he got to the party. He said that he walked there. He was asked what happened when he arrived, and the questions and answers then read:

9. [215]

   In the light of that evidence, where Mr Mayol volunteered that he thought he jumped in, it does not seem to me that there was any unfairness in questions 209 and 210. In any event, Mr Mayol made it clear in answer to question 210, as he had in answer to question 52, that he was not 100% sure because his memory of the night was not good. These questions and answers should be allowed.

10. [216]

    Objection was taken to questions 470 to 475 which read as follows:

11. [217]

    The questions, particularly question 470, were objected to on the basis of what were said to be the assumptions that were built into the question, and on the basis that the question really amounted to cross-examination.

12. [218]

    These questions have to be seen in the light of earlier answers which Mr Mayol had provided. He said the following in answer to questions 187 and 188:

13. [219]

    When Mr Mayol had volunteered that it was not his type of style to kick or stomp on someone, the suggestion in question 470 that he would remember kicking someone if he had done so was not unfair. Furthermore, it only contained the assumption that Mr Mayol had by his own earlier answers provided. These questions and answers should be admitted.

14. [220]

    Finally, objection was taken to questions 487 to 490 and 493 to 495 which read as follows:

15. [221]

    The background to these questions was a statement from a person called BSC (Junior) Mahina of 26 May 2020. Mr Mahina was at the party. He said that at one stage he went out through the backdoor of the house into the back garden. He then said that as soon as he went out of the backdoor “Johnny Klapper” (that is, Mr Mayol) threw a closed punch at the right side of his face and hit him in the lip. Mr Mayol then apologised and hugged Mr Mahina, and they walked through the house into the front garden together.

16. [222]

    The probative value of this evidence derives from the concept of state of mind referred to in Adam and Player at [85]-[86] above.

17. [223]

    Ms Davenport submitted that the questions were analogous to “Why would they lie?” questions. She submitted also that the Crown had agreed not to lead other questions of a similar type. She submitted that the Crown cannot pick and choose between some questions of that type and others. An example of questions which the Crown was not pressing were questions 491 and 492, and 496 to 500.

18. [224]

    In my opinion, questions 487 to 490 and 493 to 495 are admissible. They are not properly analogous to “Why would they lie?” questions. They are legitimate questions to get an understanding of whether there was in fact bad blood or some other issues between Mr Mayol and persons who had made statements implicating him, so that the strength of the evidence of those persons can be assessed. A “Why would they lie?” question has a tendency to shift the onus onto the interrogated person.

19. [225]

    The Crown is entitled to take the view that other questions and answers may be inappropriate, or that it will not lead particular evidence. That does not, of itself, prevent the Crown from seeking to lead other admissible evidence of a similar type. The Crown is entitled to take that view and to distinguish between portions of the ERISP, provided no unfairness arises from that course.

20. [226]

    In my opinion, questions 487 to 490 and 493 to 495 should be admitted.

Conclusion

1. [227]

   Accordingly, I make the 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.