Supreme Court
New South Wales
Medium Neutral Citation: R v Diallo & Ors (No 2) [2024] NSWSC 853 Hearing dates: 1-3 July 2024 Date of orders: 15 July 2024 Decision date: 15 July 2024 Jurisdiction: Common Law Before: Hamill J Decision: The evidence of YA’s statement recorded on the body worn video is inadmissible
Catchwords: CRIMINAL LAW – evidence – admissions by conduct – lies and consciousness of guilt – statements made by accused near the scene of the murder – no adult, lawyer or support person present – statutory prohibition on admissibility – whether exception to prohibition established – where questions asked in urgent circumstances – accused member of suburban gang – differences leading to violent confrontation – overview of prosecution case – eye witness testimony by other witnesses – taking the contempt charge rather than an affirmation or oath – repeated mantra of “no comment” – circumstantial case – assessment of accused’s vulnerability – palpable fear and confusion – satisfactory explanation of absence of adult – a lot happening – other factors militating against admission of evidence – evidence not admissible
Legislation Cited: Child Welfare Act 1939 (NSW), s 81C
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 13, 13(1)(a), 13(1)(b)
Evidence Act 1995 (NSW), s 128
Cases Cited: McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30
Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King (2023) 276 CLR 299; [2023] HCA 5
R v Basha (1989) 39 A Crim R 337
R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)
R v H (A child) (1996) 85 A Crim R 481
R v Jogee [2017] AC 387; [2016] UKSC 8
R v KS (No 2) [2023] NSWSC 1475
R v Phung and Huynh [2001] NSWSC 115
R v Warren [1982] 2 NSWLR 360; (1982) 5 A Crim R 321
R v Williams (Supreme Court (NSW), 9 August 1982, unrep)
Texts Cited: N/A
Category: Procedural rulings Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
YA (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)Representation: Counsel:
Solicitors:
E Balodis and J Sfinas (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
W Terracini SC KC and P Kondich (YA)
B Robinson (AD)
M Smith (Karise)
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
King & York Lawyers (YA)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)
File Number(s): 2022/00052005; 2022/00051961; 2022/00052010; 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
-
YA is to stand trial along with four co-accused. [1] Each is charged jointly with the murder of Oliver Coleman (count 1), the attempted murders…
Continue reading R v Diallo (No 2)
Sign in free to access the full text
- AGLC
- R v Diallo (No 2) [2024] NSWSC 853
- Case
- [2024] NSWSC 853
- Decision Date
CaseChat Overview and Summary
The court examined whether the questions posed to the defendant were made in urgent circumstances and if the defendant's membership in a suburban gang played a role in the confrontation. The prosecution presented an overview of their case, which included eyewitness testimony and evidence of the defendant's repeated mantra of "no comment." The court assessed the defendant's vulnerability, noting palpable fear and confusion, and considered the satisfactory explanation for the absence of an adult. Other factors that militated against the admission of evidence were also evaluated.
After considering all the evidence and legal arguments, the court concluded that the statements made by the defendant were not admissible. The court found that the circumstances did not warrant an exception to the statutory prohibition on admissibility, and the defendant's vulnerability and fear did not provide sufficient grounds to admit the evidence. The court also took into account other factors that supported the inadmissibility of the evidence. The final orders of the court were not explicitly stated in the text, but the decision to exclude the evidence would likely impact the prosecution's case against the defendant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.