Solicitors:
Office of the Director of Public Prosecutions (Crown)
Katsoolis & Co (Applicant)
File Number(s): 2021/288739
[2]
Judgment
The applicant has been charged with the murder of Alex Ioane on 24 May 2019. He is one of six persons charged with the deceased's murder. The six co-accused have been charged in the alternative with manslaughter, and in the alternative with affray. One of those charged, Tafuna Taumalolo has pleaded guilty to murder. The other persons charged have all pleaded not guilty, as has the applicant.
The applicant was arrested and charged on 18 May 2021 and has been remanded in custody since that time. The trial which had been due to commence on 5 October 2021 has now been fixed to commence on 27 June 2022.
The applicant now seeks bail. Because the applicant has been charged with murder, he 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 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 at 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 evidence tends to show that the applicant arrived at the party at a later time than the accused ST, Suliasi Taumalolo, Mateaki Taumalolo and Tafuna Taumalolo, and before the arrival of the other co-accused, ET.
The applicant submitted that cause was shown by a combination of the weakness of the Crown case and the fact that he was allowed to remain at large for a period of 12 months after the police had the evidence which is now relied upon against him. The issue of the applicant's remaining at large was submitted to be an indication of the weakness of the Crown's case.
There are two principal witnesses who give evidence of the applicant's involvement in the assault on the deceased. In this regard it should be noted that the applicant was also known as Johnny Klappa.
Sione Taeiloa gave a statement to the police on 12 May 2020. He was driven to the party by Taya Paxton, who subsequently picked up the applicant and another person known as Lila. Mr Taeiloa said that he observed a fight between Tafuna Taumalolo and the deceased. At one stage a car pulled up and other people alighted including ET, carrying a baseball bat. He said that Tafuna tackled the deceased to the ground and a lot people were kicking him. He then said:
10. I saw Johnny Klappa running towards Alex and kick him around the upper body and his head. He was kicking in a stomping downwards motion.
In her ERISP dated 18 March 2020, Lute Taumalolo (the sister of ST and Tafuna) said that she saw the applicant (whom she described as both Sione Mayol and Johnny Klappa) stomping on the deceased's head three or four times (see Q. 161 to Q. 179).
Ms Davenport SC for the applicant submitted that Lute Taumalolo had no credibility because she had first of all denied seeing what happened to the deceased, denied that her brothers were involved at all, and said that she would do anything to protect her brothers. Ms Davenport submitted that the allegations she made against the applicant had to be seen in the light of her endeavouring to exculpate her brothers from any responsibility for the deceased's death.
That might have been a powerful submission had it not been for the fact that Lute's evidence in that regard corroborates the evidence of Mr Taeiola, who does not appear to have any axe to grind. On the basis of the evidence of both of those witnesses, I consider the case is a strong one against the applicant.
It is also clear from the evidence from various recorded telephone calls made from gaol that the applicant was a close friend to the various Taumalolo men involved in the assault, and financially assisted two of them when they were arrested and placed in custody. His close relationship in that regard is relied upon by the Crown to support his involvement in the joint criminal enterprise alleged.
The fact that the applicant was not charged for some 12 months after the police had conducted the ERISP of Lute, and taken the statement from Mr Taeiloa says nothing about the strength or weakness of the Crown case. There could be any number of reasons why the applicant was not charged at a time proximate to that evidence becoming available. What appears to be a late arrest does not diminish the strength of the evidence of those witnesses.
It is not without significance that in a conversation between Lute and the applicant on 22 May 2020, recorded on a listening device, when she told him that she had informed the police of his involvement, he had not disagreed with what she said. It is important to set out that part of the conversation (V1 is Lute and V2 is the applicant):
V.1 I full told them how I seen you with the stomps.
V.2 Yeah.
V.1 About three stomps, I told them how Harmonie was stopping you. Yeah, I mentioned one of the twins…
V.2 Yeah.
V.1 …that I pushed him.
V.2 They're still looking for the one with the bat hey, like did they ask you anything about who hit him with the bat?
V.1 Not really, but they already caught [ET].
If the applicant is remanded in custody until the trial he will have spent approximately 14 months in custody. I do not consider in all the circumstances that this is an unduly long period, given the charge and the strength of the Crown case against the applicant.
A further consideration in relation to whether the applicant's continued detention is justified is the fact that, on his own admission, he sought to avoid the police, and seemingly destroyed relevant evidence that might implicate him. This appears in the same recorded conversation with Lute where the following appears:
V.1 I told them how I seen you, Yeah.
V.2 So they're asking what happened to me and that hey?
V.1 I think yeah, but they don't know you
V.2 They don't, because they still don't know me hey.
V.1 Nah.
V.2 It's all good. I play Tom and Jerry with them.
V.1 Huh.
V.2 I play Tom and Jerry with them.
V.1 What do you mean?
V.2 They can chase me and see if they can find me. How's the boys?
V.1 Yeah, they're the same.
V.2 Just let Noneh know that, he's probably tried to call me cause I've bro-ken my sim card.
V.1 Oh.
V.2 Sami Felemi came over and he said he heard from Suli and Suli told him that they are looking for me, so I broke everything and I deleted everything.
…
V.2 …and then when fucken Sam came around, I broke my SIM and deleted everything.
Ms Davenport submitted that the applicant might have deleted the information and destroyed his sim card to protect Suliasi and Mateaki Taumalolo. Whilst that is an available inference, the much stronger inference is that it was to protect himself ("they are looking for me"), and to avoid detection.
One of the bail concerns in s 17 of the Bail Act 2013 (NSW) is whether the accused will fail to appear at any proceedings for the offence. Bail concerns may be considered when determining the showing of cause: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24]. The fact that the applicant was trying to avoid the police before he was charged is a strong indication that, if released to bail having been charged with murder, he may fail to appear.
Having regard to the strength of the Crown case, the time which the applicant will spend in custody if bail is refused, and the serious concern that he may not appear if released to bail, the applicant fails to show cause that his continued detention is not justified.
Although there may be inconvenience to the applicant in relation to the preparation of his case, particularly having regard to the COVID pandemic, I do not consider that this inconvenience demonstrates that the applicant shows cause why his continued detention is unjustified in the light of the other matters I have determined.
For these reasons, bail is refused.
[3]
Amendments
05 July 2022 - Publication restriction lifted
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Decision last updated: 05 July 2022