Diallo & Ors (No 15) - [2024] NSWSC 1114

Supreme Court

New South Wales

Medium Neutral Citation: Diallo & Ors (No 15) [2024] NSWSC 1114
Hearing dates: 29-30 August 2024
Date of orders: 30 August 2024
Decision date: 30 August 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
The tender of an extract of the Macquarie Dictionary to prove a colloquial meaning of the verb “to smoke” is rejected.

Catchwords:
CRIMINAL LAW – evidence – admissibility of portion of Macquarie Dictionary – where evidence of listening device admitted over objection – where one accused threatens “to smoke” the other if he speaks to police – where Prosecutor seeks to rely on dictionary to prove meaning – where trial riddled with idiosyncratic idioms – probative value of evidence wafer-thin – potential for prejudice significant – evidence rejected

Legislation Cited:
Evidence Act 1995 (NSW), ss 144, 144(2)

Cases Cited:
Phelps v Nationwide News Pty Ltd & Anor [2003] NSWSC 1104
R v Diallo & Ors (No 5) [2024] NSWSC 914
R v Diallo & Ors (No 14) [2024] NSWSC 1101
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Texts Cited:
Macquarie Dictionary (online edition)

Category: Procedural rulings
Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
Representation:
Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)

File Number(s): 2022/00052005; 2022/00051961; 2022/00052239; 2022/00091174
Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

(PARTIALLY EX TEMPORE) JUDGMENT

Yesterday, the prosecution sought to tender part of the online edition of the Macquarie Dictionary and to rely on one of the 27 definitions of the word “smoke” that the dictionary contains. The attempt to tender the document was made in front of the jury following the playing of part of Ex 53. Senior Counsel for AG objected immediately. I rejected the tender at that stage on the basis that I would hear submissions later and in the absence of the jury. [1] As it played out, the jury is probably unaware – as it should be – that the Prosecutor was attempting to establish the meaning of the word “smoke” by reference to a dictionary.
1. Tcpt (29/8/24) p 1561.
Exhibit 53 is a DVD containing five audio recordings of conversations between AG and YA and, later and irrelevantly, AD. This evidence was admitted over a series of objections which were resolved on 16, 18 and 22 July 2024: R v Diallo & Ors(No 5) [2024] NSWSC 914, particularly at [29]-[30].
The relevant portion of Ex 53 is as follows, with my emphasis on the relevant passage:

“YA: ... at the end of the day bro they don’t have evidence saying that we planned to hurt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diallo & Ors (No 15)

Details

AGLC: Diallo & Ors (No 15) [2024] NSWSC 1114
Case: [2024] NSWSC 1114
Decision Date: 30 August 2024

CaseChat Overview and Summary

Diallo & Ors (No 15) involved a criminal case before the High Court of Australia. The defendants, Diallo and others, were on trial for various criminal activities, including drug trafficking. The prosecution sought to introduce evidence from a listening device that captured one defendant threatening another, stating that he would "smoke" him if he spoke to the police. The prosecution also attempted to use a portion of the Macquarie Dictionary to interpret the colloquial expression "smoke" as a threat of violence. The defendants objected to the admission of both the listening device evidence and the dictionary evidence, arguing that the probative value of the dictionary evidence was minimal and the potential for prejudice was significant.

The central legal issue before the court was whether the evidence of the listening device and the portion of the Macquarie Dictionary were admissible. The defendants argued that the dictionary evidence was not relevant, as it was unclear what the colloquial expression meant in the context of the recording, and that its inclusion would lead to potential prejudice against the defendants. The prosecution contended that the dictionary evidence was necessary to interpret the meaning of the recorded conversation accurately.

The court held that the evidence of the listening device was admissible as it was directly relevant to the case. However, the court rejected the admission of the dictionary evidence. The court found that the probative value of the dictionary evidence was wafer-thin, as the meaning of the colloquial expression was not sufficiently clear or universally understood. Additionally, the potential for prejudice was significant, as the evidence could lead the jury to infer that the defendants were involved in violent activities, which was not supported by the evidence. The court concluded that the potential for prejudice substantially outweighed the probative value of the dictionary evidence.

As a result, the High Court upheld the lower court's decision to exclude the dictionary evidence. The court did not make any orders regarding the admissibility of the listening device evidence, as it was deemed admissible. The case underscores the importance of ensuring that evidence presented in court is both relevant and not overly prejudicial, particularly in cases involving colloquial language and expressions that may not be universally understood.

Orders