R v Diallo (No 12); Re an application for bail by witness MM

[2024] NSWSC 1087

Supreme Court

New South Wales

Medium Neutral Citation:

R v Diallo & Ors (No 12); Re an application for bail by witness MM [2024] NSWSC 1087

Hearing dates:

21 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Conditional bail granted.

Catchwords:

CRIMINAL LAW – bail – where bench warrant executed on witness who failed to appear on subpoena – where witness appeared earlier in the trial – bail granted to appear the next day – condition that witness travel directly to and from their home to the court complex

Legislation Cited:

Bail Act 2013 (NSW)

Criminal Procedure Act 1986 (NSW), ss 311, 312

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).

EX TEMPORE JUDGMENT (REVISED)

1. MM is a young man who has been subpoenaed to give evidence at the trial of four young men (and a fifth who will have a separate trial) charged with murder. Yesterday a bench warrant was issued for his arrest following his failure to appear after he had been told by police he was required. He was arrested this morning and, in accordance with the warrant that was issued, brought directly to court.

2. He has now appeared for himself and, at my encouragement, made an application for bail. We have had a conversation. He has promised to attend tomorrow. I am prepared to accept that promise for a number of reasons. Most critically, MM did appear on the subpoena during the course of the Basha inquiry. In other words, he came to court on his own steam. Since that time, the trial has been moving quite slowly and I was told by a police officer who gave evidence yesterday that MM did come to court on another occasion to give evidence, but we did not reach his evidence at that stage.

3. MM tells me he has been busy and that is why he did not come. I am not entirely sure I accept that assertion. I think it more likely, perhaps, that he just became frustrated at the requirement to give evidence and the fact that he has now been, if you like, inconvenienced twice.

4. I have now explained to him that he will surely be arrested again and kept in custody until he gives evidence if he does not attend tomorrow. The provisions of ss 311 and 312 of the Criminal Procedure Act 1986 (NSW) allow for bail to be granted for a person who has been arrested pursuant to a bench warrant. The provisions of the Bail Act 2013 (NSW) apply. As I indicated in argument, there has not been very much material placed before me that would, normally, be before me in a bail application. However, the Prosecutor has indicated the reason for that is, simply, that he does not resist the course I propose to take, which is to grant this young man bail and give him a chance to turn up voluntarily tomorrow.

5. MM has provided me with an address on a piece of paper. That address is to remain confidential. He has also provided me with a mobile telephone number on a piece of paper. That mobile number will also remain confidential. It is all written on one sticky tab note, and that will be put in a sealed envelope, which is not to be opened, except by a judge of this Court or a court of higher jurisdiction; save that the address will need to go on the bail undertaking and the Registry staff may look at it for that purpose.

6. MM tells me he lives with his mum and dad at that address. I propose to grant bail on the strict condition that, once he has signed his bail papers, he goes directly from court to his nominated home address, and he stays there overnight with his mum or his dad, or both, and that he comes directly back to court tomorrow.

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Decision last updated: 15 November 2024