R v Diallo (No 16) - [2024] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 16) [2024] NSWSC 1221
Hearing dates: 19 September 2024
Date of orders: 30 September 2024
Decision date: 30 September 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Two charges of contempt, as identified in [22] and particularised in R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085, are to be dealt with summarily pursuant to Pt 55, Div 2 of the Supreme Court Rules 1970 (NSW).
(2) Expedite the disposition of the matter.
(3) Direct my associate to liaise with KL’s counsel and solicitors to determine a suitable date.
(4) KL’s legal representatives to advise the Court of KL’s plea within seven days.

Catchwords:
CRIMINAL LAW – contempt – refusal to answer questions when directed to do so – where court determined provisionally to refer the matter to the Prothonotary for institution of charges – where contemnor submits contemnor should not be prosecuted – contemnor submits alternatively that the alleged contempt should be dealt with summarily – where contemnor to be called in subsequent trial having refused to answer questions in related trial – where Prosecutor also urges contempt to be dealt with summarily due to likely delay in alternative procedure

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 25
Supreme Court Rules 1970 (NSW), Pt 55, Divs 2-3

Cases Cited:
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
R v Diallo & Ors (No 7) [2024] NSWSC 978
R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085
R v Taber andStyman; Re Shannon v Styman [2005] NSWSC 1329
Registrar of the Court of Appeal v Raad (Court of Appeal (NSW), 9 June 1992, unreap)

Texts Cited:
Justice Natalie Adams and Belinda Baker, ‘Sentencing for Contempt of Court’ (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020)

Category: Procedural rulings
Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
KL (Alleged Contemnor)
YA (Interested Party)
Representation:
Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
M Fernando (KL)
W Terracini SC KC & P Kondich (YA)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crim Corp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)
AA Criminal Lawyers (KL)
King & York Lawyers (YA)

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 the contemnor and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT

On 18 September 2024 I published a judgment in which I expressed the opinion…

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 16)

Details

AGLC: R v Diallo (No 16) [2024] NSWSC 1221
Case: [2024] NSWSC 1221
Decision Date: 30 September 2024

CaseChat Overview and Summary

The case of R v Diallo (No 16) involved the defendant, Diallo, and the state of New South Wales. The dispute centred on Diallo's refusal to answer questions when directed to do so during a court proceeding. The matter was brought before the Supreme Court of New South Wales. The court was required to determine the appropriate course of action regarding Diallo's contemptuous behaviour, specifically whether the matter should be referred to the Prothonotary for institution of charges, or if it should be dealt with summarily.

The legal issues before the court included whether Diallo's refusal to answer questions constituted contempt of court, and if so, what the appropriate remedy would be. The court had to consider the submissions made by Diallo that he should not be prosecuted and that the alleged contempt should be dealt with summarily. The court also had to take into account the Prosecutor's submission that the contempt should be dealt with summarily due to the likely delay in an alternative procedure. The court needed to balance the principles of justice and the efficient administration of the court's processes in reaching a decision.

The court found that Diallo's refusal to answer questions did constitute contempt of court. However, considering the submissions made by both parties and the potential for delay in referring the matter to the Prothonotary, the court decided that the appropriate course of action was to deal with the alleged contempt summarily. The court accepted that a summary disposal of the contempt charge would be more expeditious and in the interests of justice. The court ordered that Diallo be dealt with summarily for the contempt committed.

The final orders of the court were that Diallo's contempt would be dealt with summarily, and that the matter would proceed in accordance with the relevant provisions of the law. The court's decision aimed to ensure a fair and efficient resolution of the contempt issue while maintaining the integrity of the court's processes.

Orders