Josh Papali’i is facing charges over an alleged incident at a club in September last year. Photo: Liv Cameron.
Lawyers for a Canberra Raiders star have urged a court to stay legal proceedings against him after reports that police might have used an encrypted app to discuss their investigation.
An ACT Policing spokesperson previously alleged that Josh Papali’i was one of three men who had been behaving aggressively or were verbally abusive towards staff during a 16 September incident at the Raiders Gungahlin club.
He has pleaded not guilty to charges of intimidating police and failing to leave a licensed premises.
The now-33-year-old was set to face a hearing in August, but this was adjourned when his defence raised concerns about police behaviour during the investigation.
They alleged that police officers might have used Signal, an encrypted messaging app, to discuss their investigation.
At least some of the messages in the chat were deleted through the app’s auto-delete function, with several officers saying they didn’t recall seeing any messages about Mr Papali’i, the court heard.
Mr Papali’i wasn’t present when his case returned to the ACT Magistrates Court on Thursday (25 September) as his lawyers applied for a permanent stay of the proceedings.
Defence lawyer Steven Boland said the group chat (and its deleted messages) risked exposing his client to an abuse of process and could bring the administration of justice into disrepute if the case were to continue.
He said the Signal group chat might have contained “relevant or irrelevant material” about the case, but the deletions meant there was no way of knowing.
“That is precisely the practical unfairness, which is a relevant consideration about whether there’s been an affront to the administration of justice.”
He also said the defence became aware of the chat’s existence when it was referenced in an email they received.
The court heard the group chat had been created in 2022.
Mr Boland also said the deletions meant that any chance to establish the probative value of any messages about Mr Papali’i was taken away, placing him in an “incurable bind”.
Mr Boland said any reasons for the police to be unclear on their legal requirements around the use of digital communications (including apps like Signal) would be “not just untenable but outrageous”.
He raised the possibility that the Signal chat was being used to discuss other cases.
“We’ve received no evidence that this group has been shut down … [There is] no evidence that the Crown has told them it’s wrong, no evidence they’ve [the police] received internal legal advice that they’re contravening Commonwealth legislation.”
The court also heard allegations that one police officer had described its use as “routine procedure” in a statement tendered to the court.
Prosecutor Marcus Dyason pushed back on allegations that the officers had broken the law, arguing that the messages didn’t fall under the definitions given in legislation.
He also said there was no evidence that suggested the messages had reached the bar of something the prosecution needed to disclose, even if Mr Papali’i was discussed.
“He and his teammates are routinely discussed in many group chats around the city and many water coolers in many offices in this city.
“The mere [reference to] Mr Papali’i or the Raiders is not disclosable.”
He suggested that cross-examination could be used to shed light on the existence of any messages relating to Mr Papali’i and their contents.
Mr Dyason also told the court that while other jurisdictions had banned the use of Signal, that wasn’t the case in the ACT.
“The use of Signal is banned on professional devices in other jurisdictions. That is not the state of play here,” he said.
“There is no barrier to either personal or professional use of the Signal application as a matter of principle, as enforced by the AFP.”
Chief Magistrate Lorraine Walker said that while several things were unknown, the known elements of the allegations were “concerning”.
She is expected to hand down her decision on the stay application in October.
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