R v Diallo (No 13) - [2024] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo and Ors (No 13) [2024] NSWSC 1088
Hearing dates: 21 August 2024
Date of orders: 26 August 2024
Decision date: 26 August 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence of the telephone intercept of 19 January 2022 commencing at 14:02:00 is inadmissible.

Catchwords:
EVIDENCE – telephone intercept – conversation between 17-year-old accused and his sister – consciousness of guilt – accused musing as to the prospects of being sent to gaol – where accused charged with affray in which another young person was killed – accused subsequently charged with murder – intractable neutrality – evidence excluded

Cases Cited:
R v Brooks [2017] NSWSC 188
R v Diallo & Ors (No 2) [2024] NSWSC 853
R v Diallo & Ors (No 4) [2024] NSWSC 882
R v Diallo & Ors (No 6) [2024] NSWSC 917
R v Hawkins (No 10) [2020] NSWSC 1931
R v White [1998] 2 SCR 72
Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

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).

JUDGMENT

AG objects to the Prosecutor tendering a portion of a telephone intercept in which he is recorded speaking to his sister on 19 January 2022. There is a 21-page transcript of the call which commenced just after 2:00pm (Ex VD 33). The Prosecutor relies on a relatively short portion of the call which is transcribed at pp 11-12 of the transcript. The Prosecutor seeks to use the evidence to lay the foundation AG’s words and conduct betrayed a consciousness of guilt. Senior Counsel for AG submitted that, considered in context, the evidence has very limited probative value, may be misused by the jury and, accordingly, the probative value is outweighed by the danger of unfair evidence.
The context of the criminal trial in which this objection is made, and the principles I have applied, can be discerned in earlier judgments: see R v Diallo & Ors (No 2) [2024] NSWSC 853, R v Diallo & Ors (No 4) [2024] NSWSC 882 and R v Diallo & Ors (No 6) [2024] NSWSC 917.
The extract of the recording upon which the Prosecutor seeks to rely is as follows (where V1 is AG and V2 is his sister):

“V1: And I’ve just accepted man like shit things go left you just…

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 R v Diallo (No 13)

Details

AGLC: R v Diallo (No 13) [2024] NSWSC 1088
Case: [2024] NSWSC 1088
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the matter of the Crown versus Diallo, the defendant faced a charge of affray, related to an incident where another young person was killed. The case proceeded through the Supreme Court of Victoria, where the primary issue was whether certain intercepted telephone conversations between the defendant and his sister could be admitted as evidence. The conversations in question contained musings by the defendant about the prospect of being sent to gaol, which the Crown sought to introduce as evidence of consciousness of guilt.

The legal issue at hand centred on the admissibility of the intercepted conversations. The court had to determine whether the evidence was relevant and whether its probative value outweighed any prejudicial effect it might have. The court was also required to consider whether the conversations were obtained in a manner consistent with the law, given the sensitive nature of intercepting private communications. Furthermore, the court had to assess the neutrality of the evidence, ensuring it did not unfairly sway the jury towards a particular conclusion.

The court held that the intercepted conversations were inadmissible due to their intractable neutrality. The content of the conversations, which included the defendant’s musings about gaol, did not directly link him to the crime of murder. Instead, it merely suggested that the defendant was aware of the potential legal consequences of his actions. The court found that the probative value of this evidence was substantially outweighed by the risk of unfair prejudice, as it could lead the jury to convict the defendant based on speculative thoughts rather than concrete evidence of his involvement in the murder. Consequently, the evidence was excluded from the trial.

Orders