The case against Raiders star Josh Papalii will not continue after the ACT Magistrates Court granted him a permanent stay on the charges.
Papalii was charged with intimidating police and refusing to leave the Gungahlin Raiders Club in Canberra’s north in September last year.
But his hearing was delayed when his lawyers discovered a reference to a group chat on the encrypted messaging app Signal in evidence handed over by the prosecution.
Chat included official and social remarks
The court previously heard the group chat included 12 officers, including one officer who was an alleged victim and others who were investigators on Papalii’s case.
The chat, which began in 2022 and contained both official and social commentary, was set to auto-delete, so no messages were kept.
But some of the discussion came to light as part of Papalii’s case.
In one exchange, officers discussed the preparation of the statement of facts.
One officer said to another, “I need to put something in my notebook”.
The officer who was the alleged victim of the intimidation charge also asked to be told on Signal if CCTV footage had been collected from the club.
The officers involved in the group chat previously gave statements to the court, but none could remember specifics of any discussion in the chat about the incident involving Papalii.
Josh Mr Papalii’s lawyers told the court he could not get a fair hearing because potentially relevant evidence from the chat had been destroyed. (Getty Images: Jason McCawley)
Chief Magistrate Lorraine Walker noted the use of apps like Signal was controversial for police.
“There is some concern in the police community about the use of encrypted apps,” she said.
Chief Magistrate Walker also noted that in other jurisdictions, the “use of disappeared messages” by law enforcement officers was banned.
Police took ‘cavalier approach’ to encrypted app use
Mr Papalii’s lawyers argued that potentially relevant evidence had been destroyed and he could not get a fair hearing as a result.
But the prosecution said the whole incident was captured on CCTV, so the material would not have been necessary anyway.
Chief Magistrate Walker said the use of Signal appeared to have been unexceptional, and the police took a “cavalier approach” to using it.
She said the main issue was the deletion of the messages.
“The unknown remains unknowable,” Chief Magistrate Walker said.
She added that if the practice was not stopped, there could be a risk to justice.
“The defence has been unable to establish practical unfairness,” Chief Magistrate Walker said.
But she said it would be an “irremediable affront to the process” if the prosecution were to proceed, when there was evidence of the destruction of evidence of an unknown kind.
A permanent stay has been placed on the charges and costs awarded in Mr Papalii’s favour.