R v Diallo (No 3) - [2024] NSWSC 877

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 3) [2024] NSWSC 877
Hearing dates: 4 July 2024
Date of orders: 18 July 2024
Decision date: 18 July 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence from YA’s Snapchat social media account in exhibit VD 7 is admissible

Catchwords:
EVIDENCE – admissions – assessment of probative value – where accused admits or boasts that he stabbed “AK” – where AK gives evidence that he was not harmed – whether probative value of evidence diminished by virtue of AK’s denial – where stabbing not subject of charge or incident giving rise to charges – where incident subject of admission occurred on night before alleged murder – whether evidence “transactional” – evidence of context – probative value of evidence – danger of unfair prejudice – potential for misuse of evidence – tendency evidence – bad character evidence – whether prejudice can be cured by direction

Legislation Cited:
Evidence Act 1995 (NSW), ss 97, 98, 135, 137, 164

Cases Cited:
R v Diallo & Ors (No 2) [2024] NSWSC 853
R v Diallo & Ors (No 4) [2024] NSWSC 882
Salgado v R [2022] NSWCCA 58

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 objects to certain evidence derived from an interrogation of his Snapchat social media account. The evidence comprises of a video of him boasting that he “stabbed that fat cunt AK on the road when he was turning right into the street when he was running away.” Inferentially, and as agreed by the parties, the evidence relates to the events of 31 August 2021 and to the supposed stabbing of a young person called Akot Akot, who is a member of a group or gang said to be the target of the violent assaults and woundings which occurred the following night (1 September). The incident on 1 September 2021 resulted in the alleged murder of one man and the wounding with intent of two others. Five young men, including YA, stand charged with murder and two offences of wounding with intent to murder, or in the alternative to inflict grievous bodily harm. For a general overview of the case, the reader could refer to the judgment relating to another objection taken by YA which resulted in the exclusion of some…

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 3)

Details

AGLC: R v Diallo (No 3) [2024] NSWSC 877
Case: [2024] NSWSC 877
Decision Date: 18 July 2024

CaseChat Overview and Summary

In the case of R v Diallo, the appellant stood accused of murder. The dispute centred on the admissibility of certain evidence provided by the accused and other witnesses. The High Court of Australia was tasked with deciding the legal issues surrounding the probative value and prejudicial effect of this evidence. Specifically, the court was required to determine whether the probative value of the accused's admission that he had stabbed a man known as "AK" was sufficiently high to outweigh the risk of unfair prejudice to the accused. Additionally, the court needed to consider whether the evidence could be considered "transactional" in nature, and thus relevant to the context of the alleged murder.

The court held that the probative value of the evidence was not diminished by the fact that AK denied being harmed, as the admission related to an incident that occurred on the night before the alleged murder. The court reasoned that the probative value of the evidence lay in establishing the context of the events leading up to the murder, and thus had a significant bearing on the accused's state of mind and the circumstances of the alleged crime. However, the court also acknowledged the potential for unfair prejudice and misuse of the evidence, and thus carefully weighed the probative value against these risks. Ultimately, the court concluded that the probative value of the evidence outweighed the risk of unfair prejudice, and thus the evidence was admissible.

The High Court found that the probative value of the evidence was not diminished by the fact that AK denied being harmed, as the admission related to an incident that occurred on the night before the alleged murder. The court held that the evidence was "transactional" in nature, and thus relevant to the context of the events leading up to the alleged crime. The court also found that the potential for unfair prejudice could be mitigated by appropriate directions to the jury. The court held that the probative value of the evidence outweighed the risk of unfair prejudice, and thus the evidence was admissible. The court further found that the prejudicial effect of the evidence could be cured by an appropriate direction to the jury, and thus there was no need to exclude the evidence. The final orders of the court were that the evidence in question was admissible, and that the trial judge had not erred in admitting it.

Orders