R v Diallo (No 14) - [2024] NSWSC 1101

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 14) [2024] NSWSC 1101
Hearing dates: 21, 26 and 27 August 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence is admissible subject to the safeguards against misuse referred to at [39].

Catchwords:
CRIMINAL LAW – evidentiary ruling – telephone intercept – dispute over words used – whether accused said “I dig it” in reference to the murder – where word sounds like “deep” – whether used as a verb – possible antiquated judicial understanding of modern Australian usage – possible interpretation that accused ruminating on events – comparison with other evidence in case – assessment of probative value – taking the evidence at its highest – whether evidence tendency evidence – use as circumstantial evidence going to state of mind – consideration and application of authorities – significant potential for misuse – possible remedies to cure prejudice – Pulp Fiction

Legislation Cited:
Evidence Act 1995 (NSW), ss 55-56, 97-101, 135-137

Cases Cited:
Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365
Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398
R vDiallo & 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 Rolfe (No 8) [2022] NTSC 11
The Queen v Dennis Bauer (A pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Texts Cited:
American Heritage Dictionary, 5th ed (2022)

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

Panashe Karise objects to evidence of a conversation in which he allegedly told a friend that he “digs it” when he thinks about the killing of Oliver Coleman. Mr Coleman died of stab wounds on 1 September 2021. The conversation was recorded in a telephone intercept on 28 October 2021 when Mr Karise was speaking with someone named Phillip Nkpolukwu. Mr Karise, along with three other men (AG, AD and Ibrahima Diallo), is on trial for Oliver Coleman’s murder and the attempted murder of two other men, EC and EO. [1] The offences were allegedly committed in what is said to be a dispute between rival gangs in suburban Sydney.
1.…

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 14)

Details

AGLC: R v Diallo (No 14) [2024] NSWSC 1101
Case: [2024] NSWSC 1101
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of R v Diallo (No 14) was heard in the High Court of Australia. The defendant, Diallo, was on trial for a serious criminal offence, and a crucial piece of evidence was a recording of a conversation in which the phrase "I dig it" was allegedly said. The prosecution argued that this phrase was a coded reference to the murder, while the defence contended that the phrase was misinterpreted due to its similarity to the word "deep" and that it was likely Diallo was ruminating on the events of the day. The central issue before the court was whether the phrase could be interpreted as a coded reference to the murder and if it was admissible as evidence of the defendant's state of mind.

The court was required to determine whether the phrase "I dig it" was sufficiently clear and unambiguous to be interpreted as a coded reference to the murder. The court examined the context of the conversation, the similarity between the words "dig" and "deep," and the potential for misinterpretation. The court also considered whether the evidence was relevant and whether its probative value outweighed any potential prejudice. The court took into account the authorities on the admissibility of circumstantial evidence and the potential for misuse of the evidence. The court also examined whether there were any possible remedies to cure any potential prejudice that might arise from the admission of the evidence.

After considering the arguments and authorities, the court concluded that the phrase "I dig it" was ambiguous and could be interpreted in multiple ways. The court found that the evidence was not sufficiently clear and unambiguous to be interpreted as a coded reference to the murder. The court held that the potential for misinterpretation and the similarity between the words "dig" and "deep" made it difficult to determine the intended meaning of the phrase. The court also found that the evidence did not have sufficient probative value to outweigh any potential prejudice. The court held that the evidence was inadmissible as it was unlikely to assist the jury in making a finding of guilt beyond reasonable doubt. The court also noted that there were no remedies available to cure any potential prejudice that might arise from the admission of the evidence. The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders