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R v Diallo (No 2)

R v Diallo (No 2)

Case [2024] NSWSC 853 15 July 2024

Admissibility of Evidence

Compensatory Damages

Criminal Law

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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:
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)
Solicitors:
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…

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 2)

Details

AGLC: R v Diallo (No 2) [2024] NSWSC 853
Case: [2024] NSWSC 853
Decision Date: 15 July 2024

CaseChat Overview and Summary

In the case of R v Diallo (No 2), the defendant was charged with murder. The case involved a dispute between the defendant and a group, resulting in a violent confrontation that led to the death of the victim. The trial took place in the Supreme Court of New South Wales. The primary legal issue the court had to address was the admissibility of statements made by the defendant near the scene of the murder, without the presence of an adult, lawyer, or support person. These statements were challenged on the grounds of statutory prohibition on admissibility, and the court needed to determine if an exception to this prohibition could be established.

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