R v Diallo (No 4)

[2024] NSWSC 882

Supreme Court

New South Wales

Medium Neutral Citation:

R v Diallo & Ors (No 4) [2024] NSWSC 882

Hearing dates:

10, 30 May 2024, 16 July 2024

Date of orders:

22 July 2024

Decision date:

22 July 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Around 300 evidentiary rulings made (see table of rulings at [89])

Catchwords:

CRIMINAL LAW – intersection of artistic endeavour in the form of “drill rap” lyrics and s 137 of the Evidence Act – evidence derived from telephones – determination of relevance – whether probative value outweighed by danger of unfair prejudice – over 300 objections to be determined – overview of relevant legal principles – evidence to be taken at its highest –assessment of potential for misuse of the evidence – a fine balance – application to specific examples

CASE MANAGEMENT – fail

Legislation Cited:

Evidence Act 1995 (NSW), ss 55, 56, 87, 87(1), 135, 137

Cases Cited:

Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15

Bendix Autolite Corporation v Midwesco Enterprises Inc 486 US 888 (1988)

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365

Laughton v R [2019] NSWCCA 74

McConnachie v Director of Public Prosecutions(NSW) [2019] NSWSC 318

McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7

R v Diallo & Ors (No 2) [2024] NSWSC 853

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

R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

R v SJRC [2007] NSWCCA 142

R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121

The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Webb v R [2012] NSWCCA 216; (2012) 225 A Crim R 550

Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Texts Cited:

Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), (August 1985)

D Hamer, “The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM v The Queen” (2017) 41(2) Melbourne University Law Review 689

Chin, G Edmond and A Roberts, “Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law” (2022) 50(1) Federal Law Review 104

Stephen Odgers, Uniform Evidence Law (18th ed, 2023, Thomson Reuters)

The Hon Chris Maxwell AC, “Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper” (2019) 93 Australian Law Journal 642

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

1. AD, Panashe Karise, AG, Ibrahima Diallo and YA are jointly charged with the murder of Oliver Coleman, and the wounding of two other men on 1 September 2021. They are due to stand trial on an indictment alleging three counts and two alternative counts. The case is at pre-trial stage and various applications and objections are being resolved in advance of the empanelment of a jury. Regrettably, the estimate of the length of the pre-trial hearing (1-2 weeks) was unduly optimistic and several jury panels have been called off or postponed and, by the time this judgment is published, we will be in the fourth week of pre-trial skirmishes. It is a large case and one that I imagine is very difficult to prepare for counsel and their solicitors. Accordingly, nothing I say should be seen as a criticism of any individual counsel or any solicitor who appears on either side of the record. I make these remarks to explain the brevity of this judgment and the absence of specific reasons for a number of the individual rulings that it traverses.

Background to the present objections

2. Case management orders were made on 10 May 2024, and I must accept there were earnest endeavours on the part of counsel to resolve their differences. During the first week of the pre-trial hearing counsel (or most of them) seemed optimistic that an agreed position would be reached in relation to approximately 1,400 to 1,500 communications, social media posts, “notes” and other items derived from the five accused men’s telephones. However, on the seventh day of the pre-trial hearing I was told that no such agreement would be reached. [1] The Prosecutor could not identify the number of individual objections, so large was the number and so absolute the failure of the case management orders. On the eighth day, a table was tendered which encompassed the items derived from AD’s telephone (Ex VD 11) and arguments were made concerning that material. [2] At the conclusion of that argument a table was tendered concerning material derived from Mr Diallo’s telephone. [3]

   1. Tcpt (9/7/24) p 286-287.

   2. Tcpt (10/7/24) pp 292-326.

   3. Ex VD 12.

3. The following day – Thursday 11 July 2024 – further discussions resulted in the adjournment of the proceedings for two days with further case management orders. Those orders were in substance the same as those made in May. The issue was listed on Monday 15 July 2024 to ensure there was compliance and to obtain an update on the progress made in identifying with a degree of precision the objections to be resolved. By that stage, the Prosecutor had abandoned his reliance on some of the material from AD’s telephone, and I had indicated informally the rulings I proposed to make on all but three of the items derived from AD’s telephone. [4]

   4. Tcpt (11/7/24) pp 341-342.

4. On Monday 15 July 2024, the Prosecutor tendered a draft table of the material including its source, the accused against whom it was tendered and which of the accused had indicated an objection to each piece of evidence. [5] The matter was adjourned overnight to allow discussions between the lawyers and for each accused to identify their objections and the legal bases upon which it was asserted the impugned evidence was inadmissible.

   5. Ex VD 14.

5. On Tuesday 16 July 2024, the Prosecutor’s table was tendered in revised form and four of the accused filed tables identifying the objections taken. [6] Several other items of evidence were tendered. Mr Smith indicated that his client (Mr Karise) had resolved all objections in consultation with the prosecution’s legal team. Mr Smith was offered “the gold star” but he indicated, with admirable humility and generosity, that the award should be shared. [7]

   6. Ex VD 14A, MFIs 24, 25, 26 and 27.

   7. Tcpt (16/7/24) p 379.

6. Oral arguments were then made to supplement the brief submissions contained in the accused’s tables. The issues were refined in the course of those submissions and, in some instances, entrenched positions were softened. While it is bemusing that this had not happened before the pre-trial hearing commenced, I am grateful to counsel and the solicitors for their assistance in what is a large and far from “straightforward” undertaking. [8]

   8. Contra Tcpt (9/7/24) p 287 ln 10.

7. On a quick calculation, there are around 300 objections to be resolved, although a number of these were in groups and gave rise to similar issues. There are also issues as to which of the accused the evidence is admissible against. In relation to a few of the objections, I called on the Prosecutor and then rejected the tender of the evidence. In view of the delay in the trial to this point, the existence of further applications and objections to be resolved, the significance of this evidence to the parties, and the need for these things to be resolved before the jury can be empanelled, it was necessary to make decisions on the present objections as quickly as possible.

8. As discussed with counsel at various times, there has been a distinct failure in case management.

The evidence on the voir dire

9. The 126-page table (Ex VD 14A) included the description of more than 1,400 items derived from the telephones of the five accused. In some instances, the whole message, note or communication is reproduced. In others, separate exhibits were tendered and audio and video files were played in court.

10. Exhibit VD 14A included the items from the table relating specifically to AD (Ex VD 11) that were ruled to be admissible during argument as well as the items upon which I remained reserved in AD’s case. [9] At the end of the table are lists identifying the “members” of various Snapchat groups. The entries related to those groups were shaded and colour coded throughout the table. A number of the items were struck through to indicate that they were no longer pressed by the prosecution.

    9. In Ex VD 14A, these were items 109-112, 114, 1300, 1304, 1404 and 1408 (reserved) and items 123-124, 133 (ruled to be admissible). In Ex VD 11, the items were 4, 5, 6 and 134 (ruled to be inadmissible), 50-53, 54, 58, 64, 470, 471, 510 and 513 (either reserved or ruled to be admissible).

11. In addition to the table, the Prosecutor tendered a statement of Garry Fisk, the owner of the property where YA was arrested by police (Ex VD 17), a photograph of a mask found on YA upon arrest (Ex VD 18), three Google maps providing various views of the surrounding suburbs (Ex VD 19A, B and C), and a DVD containing 24 items such as videos, screenshots, social media posts, contact lists and the like (Ex VD 20). The video and audio files were played in open court and I have reviewed them in chambers as these reasons were prepared. [10]

    10. Tcpt (16/7/24) pp 371-378.

12. In addition to the matters tendered specifically during this part of the pre-trial hearing, other evidence of significance is the Prosecution Case Statement dated 8 May 2024 (Ex VD 3) which provided overall context to the present objections, and the reports and evidence of an expert witness (Renee Summerside), which explained how the material was extracted from the devices, the meaning of certain terms relating to the creation dates of those items, and the limitations on conclusions that might be drawn from the metadata behind the items on the table. [11]

    11. Tcpt (9/7/24) pp 242-282; Ex VD 9 and 10.

13. In YA’s case, an important document is his statement (Ex VD 4) which the Prosecutor has agreed to tender in the trial, a decision which provoked separate trial applications by the four other accused men. Arguments on those applications will follow delivery of this judgment and a further admissibility argument, concerning the product of a surveillance device, has been argued in the meantime.

14. More detail of the charges, and a very broad overview of the case, can be found in a judgment published last week: R v Diallo & Ors (No 2) [2024] NSWSC 853. In addition to that summary, two matters of importance to some of the objections are the timing of events on 31 August 2021 and 1 September 2021. The incident on 31 August 2021 occurred at around 9:20pm or 9:30pm. The incidents on 1 September 2021 occurred or commenced just after 9:30pm.

An overview of relevant principles

15. Because of the number of objections involved, it is impractical to provide reasons for every decision I am called upon to make. I will provide individual reasons for some of the evidentiary rulings. In other instances, where there are common themes or a series of related items, I will provide a short explanation for the rulings. However, in each case, the principles I have applied are reflected in the following paragraphs.

16. The objections are mostly based on the provisions in ss 135 and 137 of the Evidence Act 1995 (NSW). A series of communications at around the time of, or shortly before, the stabbings on 1 September 2021 raise the operation of s 87. In a few cases, it was submitted that the evidence is not relevant and excluded by s 56.

17. Relevant evidence is defined in s 55 of the Evidence Act as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

18. Sections 135 and 137 respectively provide:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

19. Probative value is defined in the dictionary as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” While the words “If it were accepted” are not included in that definition, the High Court has held that those words must be read into an assessment of probative value. [12] Another way of putting this is that, at the point of determining admissibility, the evidence is to be “taken at its highest”. [13]

    12. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[45] (French CJ, Kiefel, Bell and Keane JJ).

    13. The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [69] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [778]; JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365 at [80]-[81].

20. The Prosecutor is correct to argue that evidence giving rise to more than one interpretation – that is, evidence which is “ambiguous” or capable of “competing inferences” – does not, of itself, diminish the probative value of the evidence or result in a finding that the probative value is outweighed by the danger of unfair prejudice: R v SJRC [2007] NSWCCA 142 at [38]-[39] (James J, Rothman and Harrison JJ agreeing). [14] As the High Court said in The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [69] “reference to competing inferences is unhelpful, and likely to lead to error”. On the other hand, while the weight to be afforded to evidence and the rational inferences to be drawn from it is ultimately a question for the tribunal of fact,[15] it was accepted in argument that “there has to be a basis and … a rational form of reasoning” available for the jury to choose between inferences. [16] This acceptance reflects what was said in Bauer at [69]:

“The only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

14. See also Laughton v R [2019] NSWCCA 74 at [23] (Meagher JA, Schmidt and Button JJ agreeing); Webb v R [2012] NSWCCA 216; (2012) 225 A Crim R 550 at [103] (Johnson J, Macfarlan JA and Beech-Jones J agreeing).

15. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [38]-[39], [49]-[50], [52] (French CJ, Kiefel, Bell and Keane JJ), contra J Chin, G Edmond and A Roberts, “Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law” (2022) 50(1) Federal Law Review 104; The Hon Chris Maxwell AC, “Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Role of the Trial Judge as Gatekeeper” (2019) 93 Australian Law Journal 642; D Hamer, “The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM v The Queen” (2017) 41(2) Melbourne University Law Review 689.

16. Tcpt (18/7/24) p 465.

21. The Prosecutor’s acceptance that there are limits also reflects the following passage in JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365:

“[80] The requirement that evidence of an admission be ‘taken at its highest’ in assessing its probative value is not without limit: in the context of tendency evidence, see IMM at [39], [50] and [62]; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69]. As French CJ, Kiefel, Bell and Keane JJ said in IMM at [39]:

‘The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words ‘if it were accepted’, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.’

[81] At [50] their Honours confirmed the proposition that, at the stage of determining admissibility, the evidence is to be taken ‘at its highest’ but noted, by reference to the well-known example of ‘an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified’, that the probative value may ultimately be assessed differently by the tribunal of fact:

‘It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all’.”

22. The application of s 137 presents difficulties because it “calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other”: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [71] (Spigelman CJ, Simpson and Adams JJ agreeing). The Chief Justice referred to Justice Scalia’s analogy where his Honour said it was like asking “whether a particular line is longer than a particular rock is heavy.”[17] Similar observations as to the incommensurable nature of the comparators were made by McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528; [1995] HCA 7. [18]

    17. Bendix Autolite Corporation v Midwesco Enterprises Inc 486 US 888 (1988) at 897.

    18. See also R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [194]-[196] (Blanch J); McConnachie v Director of Public Prosecutions (NSW) [2019] NSWSC 318 at [127] (Hamill J); R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487 at [34] (Hamill J).

23. While s 135 engages a discretion, s 137 mandates exclusion if the statutory pre-condition is met. The Court “must” exclude the evidence if the probative value is outweighed by the danger of unfair prejudice. [19]

    19. Stephen Odgers, Uniform Evidence Law (18th ed, 2023, Thomson Reuters), p 1342.

24. The word “danger” is important in the statutory formulation. To some extent this involves a predictive exercise. [20]

    20. Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), (August 1985) vol 1 at [644].

25. The word “unfairly” in the phrase “unfairly prejudicial” (and “unfair” in the phrase “unfair prejudice”) is also significant. The fact that evidence is highly probative may, in one sense, make it prejudicial to an accused person’s predicament, but that fact does not give rise to relevant “unfair” prejudice. [21] Unfair prejudice in this context generally involves the possibility that the jury might misuse the evidence in some way or might give it more weight than it truly deserves. [22] In some instances unfair prejudice may arise because the evidence is highly emotive.

    21. See, for example, Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91] and [98] (McHugh J).

    22. Ibid.

22. In considering whether there is unfair prejudice, the court should consider whether judicial directions are capable of curing any potential prejudice. An example is the evidence I have ruled to be admissible over the objection of YA which concerns his self-recorded video boast that he “stabbed that fat cunt AK”: R v Diallo & Ors (No 3) [2024] NSWSC 877. That evidence is capable of misuse, for example the jury may engage in impermissible tendency or “bad character” reasoning, but directions to the jury will ensure that it is not misused in those ways. In making this assessment, a judge must proceed on an assumption that juries will obey the directions provided by the trial Judge. However, the existence of provisions such as ss 135 and 137 and the power of a court to order separate trials or to sever an indictment show that this assumption can only be taken so far.

23. I have also considered the need for the jury to have a realistic understanding of the prosecution’s case as a whole and am conscious of the danger that the case will become disjointed if the chronology of communications and items found on the accused’s telephones is edited based on upholding individual and piecemeal objections. In other words, while the individual objections must be dealt with item by item, they ought not be considered in a vacuum but rather in a holistic manner.

24. Against that, the jury can be directed that not all communications or items have been tendered into evidence and that it must not speculate as to matters outside of the evidence.

25. Relatedly, in making individual rulings it must be kept firmly in mind that the jury will be called upon to assess the prosecution’s circumstantial case as a whole rather than in a piecemeal fashion.

26. I accept the Prosecutor’s submission that probative value is not to be elevated (or diminished) because there is other evidence available to prove the same thing or because the accused say they do not dispute a matter subject of that evidence. [23] In other words, it is for the Prosecutor – not for the Court – to determine what evidence is to be tendered in proof of the charges and the guilt of the individual accused men. Even so, s 137 provides an important safeguard to ensure, amongst other things, that the trial does not miscarry because of an over-abundance of evidence on the same issue.

    23. Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15 at [25]-[30] (French CJ, Hayne, Crennan and Bell JJ); Stephen Odgers, Uniform Evidence Law (18th ed, 2023, Thomson Reuters) at pp 1325-1326.

27. Another matter that arises in this case concerns the balancing of the interests of the different accused. The High Court has held that the reference to a “party” in s 135 might include a party against whom the evidence is not technically tendered. [24]

    24. McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1 at [1], [71] (Gageler CJ, Gleeson and Jagot JJ); at [91] (Gordon and Steward JJ).

A fine balance and the table of rulings

32. There are judgments and evaluations to be made and, in several instances in the present case, there is a fine and delicate balance to be struck. The table at the end of this judgment sets out the rulings I make. Short and specific reasons are provided below for some of these rulings. However, for the most part, the decisions have been guided by the principles set out above and by considering particular items of evidence, or groups of items, in the context of the whole of the evidence and the issues which will arise in the case.

33. The evidence I have determined to be admissible over objection goes, directly or indirectly, to a variety of issues in the trial. These issues include the nature and substance of the alleged joint criminal enterprise, the incident which occurred the night before the alleged stabbings, the accused’s knowledge and participation of that enterprise, whether an individual accused (YA) withdrew from the enterprise, the state of mind of the various accused men, the planning before each incident, and self-defence.

34. The parties are directed to ensure that all rulings arising under the table in Ex VD 14A and in this area of the case have now been made. Counsel should bring to my attention any ambiguity in the rulings and any outstanding issue to be resolved. While I am reluctant to encourage yet more litigation over this evidence, this may include whether a particular item of evidence is admissible against all accused against which the Prosecutor seeks to tender it.

Specific reasons for some of the rulings

35. I will now provide brief additional reasons for some of the specific rulings set out in the table.

Items 109-110: image and video files of AD in a car rapping (previously items 50-51 in Ex VD 11)

36. This video (and an image derived from it) depicts AD in a car singing or rapping. Its creation (at around 8:13pm on 31 August 2021) [25] is temporally proximate to the incident that occurred the day before the alleged murder. It is obviously relevant and has some probative value in placing AD at the scene on 31 August 2021. At the conclusion AD says something like “let’s go get it” or words to similar effect.

    25. Ex 14A records the date of item 109 incorrectly as 1 August 2021.

37. Apart from its relevance to the events of 31 August 2021, it also has a capacity to place the events that occurred the next night into a realistic context.

38. There is no real potential for misuse of this evidence. Any danger of prejudice can be cured by direction.

39. The evidence is admissible.

Items 111-112: image and video files of AD brandishing a knife (previously items 52-53 in Ex VD 11)

40. Items 111 and 112 are an image and a video of AD in a car. He appears to be brandishing a knife. These items were created at around 8:42pm on 31 August 2021 and the image appears to be a still shot derived from the video.

41. AD submitted that this evidence should be excluded under s 137 of the Evidence Act. It was submitted that the prosecution case as to “what in fact happened on 31 August is a little unclear” and that there is nothing to “suggest in any way that he stabbed anyone on 31 August.” [26] Accordingly, it was submitted that the evidence was capable of being misused by the jury. Further, there is no evidence capable of establishing that the knife depicted in the video was used in the incident on 1 September 2021. It is a generic item and several knives were found in and around the scene after the stabbings. The evidence will not establish that the knife shown in items 111-112 was present at the scene on 1 September 2021, let alone that AD used it to stab anybody. As a result, it was submitted that there is a risk that the evidence could be given too much weight or that the jury might conclude that AD is a person of bad character or one who has a tendency to use knives.

    26. Tcpt (10/7/24) p 307-308 and following.

42. The prosecution case is that AD stabbed the deceased on 1 September 2021, around 24 hours after this video was created.

43. The evidence that AD possessed a knife and wielded it in the fashion shown in the video has a reasonably high degree of probative value. I accept there is some danger of unfair prejudice, because the evidence has a capacity to evoke an emotional response and is capable of being misused, including as a foundation for a form of tendency reasoning. However, I am satisfied that directions to the jury as to how the evidence can, and cannot, be used will diminish the danger of unfair prejudice. Once the jury is properly directed, the potential for misuse is not significant.

44. Accordingly, the probative value of the evidence is not outweighed by the danger of unfair prejudice and the evidence is admissible.

Oscar: items 236-241, 297-303, 304, 308, 318, 319-322, 323, 324-326, 327, 328-335, 337-340, 342, 343, 344-346, 347, 348, 483, 575-593, 605-609, 610, 611-616, 1066-1071, 1074, 1079, 1080, 1081, 1098 and 1099

45. Items 236-241, 297-303, 304, 308, 318, 319-322, 323, 324-326, 327, 328-335, 337-340, 342, 343, 344-346, 347, 348, 483, 575-593, 605-609, 610, 611-616, 1066-1071, 1074, 1079, 1080, 1081, 1098 and 1099 concern communications involving various accused and other people making reference to a person called “Oscar”.

46. The accused men, or most of them, raise strong objections to all of these entries. However, in the course of argument Senior Counsel for Mr Diallo submitted “it’s not all or nothing”. [27] The Prosecutor, in response to that acknowledgement, said his “fallback position” was that parts of the evidence relating to Oscar might be excluded while those “lesser in prejudice” might be ruled to be admissible. The Court is left to resolve what appear to be the ambit claims of the parties in circumstances where there has been a failure at attempts at case management. [28] While it is tempting to make some general observations and rely on the parties to give effect to those observations, I have no confidence that this will result in agreement or a saving of court time. Accordingly, I will proceed to make a ruling on each of these objections.

    27. Tcpt (16/7/24) p 396.

    28. Order 7 of the case management directions made in May 2024 was directed specifically to this part of the evidence.

47. Contrary to the submissions of several of the accused, the fact that the identity of “Oscar” is not known does little, if anything, to reduce the probative value of the evidence. Based on the messages, it seems that Oscar was a member of what is described as “Snapchat Group 1”. Again, the fact that he did not respond to various impugned messages does not diminish the relevance of the messages themselves. He was the topic of the messages rather than the author of any of them. His failure to respond was the subject of disparagement by some of the accused.

48. The messages show that Oscar was a person who the accused, or some of them, hoped would participate in the enterprise. His putative role was to drive some of the members of the group. His car (“whip”) was “legal” which was considered a better option than a car that might attract attention. The Prosecutor is correct to submit that these messages demonstrate a degree of planning in the days leading up to the event. They also provide some insight into the state of mind of the accused. They are almost all “relevant” in the broad sense in which s 55 has been interpreted.

49. However, many of the messages have a capacity to be misused or simply to create prejudice. Some of the items refer to what somebody thinks is in Oscar’s mind. For example, items 575-580 involve AD saying to Mr Diallo “he wants us to catch Ms” and to “Cheff up opps” while he (Oscar) stays at home. Putting aside the obscurity of the language – where “M” means murder, “Cheff” means stab and “opps” means an opposition group not clearly identified – these messages about “what Oscar wants” add little to the narrative in any meaningful way. Other messages involve the group, or members of the group, being highly critical of Oscar’s failure to respond or to be involved in the plan. Other messages emanate from a seemingly unidentified member of one of the chat groups. A series of messages refer to a member of the group “vouching” for people not identifiable absent speculation and conjecture.

50. Speaking generally of the items referred to in the preceding paragraphs, some of the messages are relevant and admissible to establish the accused’s state of mind but many are of little probative value and such probative value as can be discerned is outweighed by the danger of unfair prejudice.

51. I have made rulings accordingly and they are contained in the table at the end of this judgment.

Objection to blank messages by YA; pressed by AG: items 398, 412, 414-415, 417-418, 469, 1072 and 1082-1083

52. Items 398, 412, 414-415, 417-418, 469, 1072 and 1082-1083 created a divergence of approaches between YA and AG. YA objects to these messages because they are “blank”. For forensic reasons, AG wants the evidence in. It is my understanding – which may be wrong – that the Prosecutor would not seek to press these items but for the request by Senior Counsel for AG to include them.

53. In argument, Ms Avenell SC indicated there may be another way to achieve her forensic purpose and the table of rulings reflects this where it says, in each case, “parties to consult as to alternative method for AG to put before jury.”

Items 814-827 and 951-957: Snapchat Group 5 messaging involving AG

54. There are messages involving people called Ishmael Kamara, Omer Mustafa and AG, a few of which are objected to be AG and/or Mr Diallo. A significant part of the messaging is not subject to objection. The messaging occurs on 1 September 2021 in the middle of the day (between 12:45pm and 1:15pm).

55. Some of the messaging to and from AG to which objection is not taken is potentially very incriminating. There are references to “chinging” (stabbing), putting a “n****” “in the ground” and to putting “one of n****z in [coffin emoji]”. These messages occurred about seven hours before the three stabbings subject of the current indictment.

56. The messages to which objection is taken flows on from that exchange and refers to some participants (AG in particular) being underage and, by inference, subject to less serious punishment. The later exchange commences with Ishmael asking “who’s the M role” and AG replying “whoever jumps out the whip [car]” before each of the two participants purports to “vouch for” various people. The messages are obscure in both language and meaning. However, given their timing they have some probative value.

57. I accept AG’s submission that there is significant risk of misuse of this evidence and that the jury might give it undue weight by reasoning, as Senior Counsel put it, that “AD and AG considered they had a licence to offend because of their ages.” [29] I also accept that it is “unclear what they are talking about” in the second group of messages. As to the people who are being “vouched for” I accept the submission that it is not known to whom the messages refer. That is, the jury would be left to guess or speculate as to the identity of “yk”, “the kid” and “my close n****z”.

    29. AG written submissions (MFI 25).

58. While the evidence has some capacity to impact on an assessment of the facts in issue – in particular AG’s state of mind a relatively short time before the stabbings and alleged murder – I accept AG’s ultimate submission that the probative value is outweighed by the danger of unfair prejudice.

Item 1300: Free all my G’s gone missin

59. Item 1300 is a “note” found on AD’s telephone. The note was created on 30 August 2021 at 7:00pm (that is, before the incident on 31 August 2021) and modified on 1 September 2021 at 8:32pm (that is, after the 31 August incident but before the stabbings on 1 September 2021). As recorded in Ex VD 14A, the item is in the following terms:

Notes

Title: free all my Gs gone missin,

Summary: Some on the run,

Body: free all my Gs gone missin,

Some on the run,

And some are in prison,

Some pull guns,

And some go fishing,

Ain’t going back home,

Till we finish this mission,

Creepin , creepin,

Tryna put my blade in a vital position,

spill that juice till the yute starts twitching, chest shot gang watch the yute start glitching,

2 got …. In a day,

Please tell me why that rap boys fibbing, please tell my why that rap boy fibs,

MM got in the face quiet ashamed how he still got knicked,

Why’s tryna send for the gang,

I swear that the yute got ripped,

In his chest, lunges Nd neck

but he still wants to run his lips,

And I swear that there getting me pissed,

How’s tryna chat on gang,

When he saw us he ran and dipped,

Should of got dipped, should of got ripped, Should of been deaded and packed in my spliff,

60. If it were not for the timing of the modification of this message and the reference to “MM” – the name of one of the witnesses (who, in effect, claims to remember nothing) [30] and who is a member of the group which was the target of the stabbings – I would find the probative value of this evidence to be slight. However, I accept when one considers other evidence in the case and the timing of this entry it has some capacity to affect an assessment of the probability of a fact in issue. It could go (as an admission or otherwise) to what happened to MM the night before the fatal stabbing of (his good friend) Oliver Coleman. It could also go to AD’s state of mind at around the time of both incidents or to the issue of self-defence.

    30. Tcpt (1/7/24) pp 36-52.

61. However, the tender of this item and others to which I will turn involve an attempt to use the lyrics of a “drill rap” song, or a proposed drill rap song, against the author, artist or lyricist, as an admission or evidence of a state of mind. Such an approach may be available in some circumstances, but it is necessary to pay close attention to the words of the song to determine what rational impact the evidence could have on the serious issues to be determined by the jury.

62. There are real issues in allowing an artist’s or musician’s words or works to be used in this way. It would set a dangerous precedent to do so. The kind of art in question in this case is well known for its use of violent language and bragging in the context of competition between rap artists.

63. Many of the things described in the subject note or lyric could relate to the events surrounding this trial but most are incomprehensible and/or find no support in the evidence. The reference to some pulling guns and some going to prison could easily be misused by the jury. I cannot imagine a direction that would guide the jury in such a way as to reduce or eliminate the danger of unfair prejudice.

64. The evidence is not admissible.

Item 1304: tryna push my blade

65. Item 1304 was created on 1 September 2021 at 8:38pm:

Notes

Title: Tryna push my blade,

Body: Tryna push my blade,

66. This appears to be, at most, a work in progress or an unformulated and incomplete idea for a possible song. Any probative value of this evidence is outweighed by the danger of unfair prejudice by a substantial margin.

Items 1313-1331, 1334-1337 and section 87 of the Evidence Act: communications by AG to “Orbski”

67. Items 1313-1331 and 1334-1337 comprise mostly of communications or attempts at communication between AG and “Orbski”. It seems not to be in dispute that Orbski is a reference to the deceased Oliver Coleman. The communications took place at around 9:50pm on 1 September 2021, that is around the time of the alleged murder. At 9:53 and 9:54 AG sent messages “6-2 you ain’t coming out” and “your a Fkn bitch”. At 9:55 AG wrote “Come out your crib”. There is also a series of what are recorded as “video chats” and video messages. The contents of two audio messages (items 1334 and 1337) involves more of the same with a similar colourful choice of words.

68. In relation to this series of communications, the Prosecutor relied on s 87(1) of the Evidence Act which provides relevantly:

87 ADMISSIONS MADE WITH AUTHORITY

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that--

…

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

69. Only YA sought to have this evidence excluded. The initial submission did not deal with s 87 and I found the submissions made on the issue, when Senior Counsel was asked to address that provision, unpersuasive. There is ample evidence that YA was involved in a joint enterprise (“common purpose”) with AG at the time, or at least shortly before, AG uttered these words. It is “reasonably open to find” that the words were uttered in furtherance of the common purpose. The purpose was to get the deceased to come out of his home (“crib”).

70. This evidence has significant probative value to several issues including any assertion of self-defence and the nature and scope of the alleged joint criminal enterprise. The evidence has some capacity to cause prejudice because of its graphic nature which may give rise to an emotional response. However, that danger does not outweigh the probative value of the evidence.

69. The evidence is admissible.

Item 1336: Orbski’s response to AG

72. The response by “Orbski” at 9:57pm (item 1336) is not caught by s 87 and it will not be admitted against YA if he maintains his objection to that item in the face of the admission against him of AG’s taunts to Mr Coleman.

Series of YA objections about videos based on the expert evidence of Renee Summerside

73. The table of rulings will demonstrate that I do not accept YA’s submission that the evidence of Ms Summerside, or the asserted inadequacies in that evidence, is such as to render any of the entries inadmissible. Such inadequacies and limitations will be exposed before the jury and it will be for the jury to assess the weight to be afforded to the evidence.

YA’s telephone calls and communications with his father

74. The table of rulings will also show that I have partially accepted YA’s submission concerning communication between him and his father (and others) at around the time of the incident on 1 September 2021.

75. For the most part, I have excluded these items when they show discord between YA and his father. I accept these communications do not greatly impact on an assessment of the facts in issue and, as counsel submitted, are capable of being misused. It is clear that his father wanted YA to come home but it was the time of the COVID-19 lockdown.

76. However, I am not satisfied that the other communications should be excluded from evidence. I accept the Prosecutor’s submission that many of these items are relevant to matters raised in YA’s statement and more generally to his state of mind in terms of his participation in, and any suggestion of his withdrawal from, the enterprise.

Item 1404: They say we don’t do drills

77. Item 1404 was discovered on a telephone operated by AD and was a “note” that the evidence will suggest was created on 14 November 2021 at 10:06am and modified on 23 November 2021 at 6:02pm. The note is as follows:

Notes

Title: They say that we don’t do drills,

Body: They say that we don’t do drills,

LOL are you joking,

On a ride got evil intentions,

I just wanna hop out the whip and poke him,

My bros say I’m up in attack,

why you think that they call me foden,

And when the gangnem got down....

I laughed out loud and I fucking smoked him,

And he could of got put in my blunt,

But he got saved with a healing potion,

I got 2 bad bs on my side,

They all get wet when I’m rubbing them lotion,

Like fuck all the talking, they know we the ones causing commotion,

78. This evidence is capable of being used as an admission and has some probative value as such. The Prosecutor submits some of the words in this reflect what happened on 1 September 2021. In particular, it is the prosecution case that AD hopped “out the whip [car]” and “poke[d] him” (stabbed Mr Coleman). There is some force in these submissions.

79. However, other parts of the lyric do not represent events of 1 September 2021. For example, Mr Coleman died; he was not “saved with a healing potion”. As I understand, there is no evidence or allegation that AD “laughed out loud” and “fucking smoked him”. In a separate evidentiary argument, the Prosecutor tendered part of the Macquarie Dictionary (Ex VD 22) to rely on the definition of the verb “to smoke” as being “to kill (someone), especially by shooting”. [31] There is no evidence that firearms were used in this melee and Oliver Coleman was not shot.

    31. Tcpt (18/7/24) pp 431, 452

80. Again, I have paid close attention to the words of the lyric and the allegations that will be prosecuted in the trial.

81. There is a substantial danger that this evidence will be misused by the jury. There is no rational or logical way that the jury could use the evidence in assessing any of the facts in issue. The jury would be left or encouraged to cherry pick particular lyrics while ignoring others. I cannot imagine a form of direction that would adequately protect AD against the danger of unfair prejudice.

82. The tender of the evidence is rejected.

Item 1408: Pull up with my stainless steal (sic)

83. Item 1408 is another note created on 17 January 2022 at 4:32pm and modified on 22 January 2022 at 4:59pm. It is another of AD’s rap lyrics sought to be tendered against him:

Notes

Title: Pull up with my stainless steal ,

Summary: Itching to firm that drill ,

Body: Pull up with my stainless steal ,

Itching to firm that drill ,

Pull-up hop out, blood gets spilled,

5 man step when the Drill,

Ride for my guys for real ,

He ain’t ain’t about it he a capper in the field

He ain’t about it he a rapper in the field

My team just do it for the thrill

We the real top trappers in the field,

84. Based on the same process of reasoning as disclosed under items 1300 and 1404, I am satisfied that the danger of unfair prejudice outweighs the extent to which this evidence could rationally affect the assessment of a fact in issue.

85. I accept it would be open to the jury to find that “drill” means stab and “stainless steal [steel]” means knife. It is also the case that five men were involved on the side of those who now find themselves in the dock.

86. However, the lyric was created many months after the events of 31 August 2021 and 1 September 2021 and those events must have been subject to much ongoing discussion, rumour, and public reflections. Further, some of the details relied on by the Prosecutor are not very specific to the circumstances surrounding this case. The words may reflect something that happened, something that AD was told happened, or may simply be the produce of his artistic endeavour.

87. As with the other lyrics upon which the Prosecutor seeks to rely, I am unable to formulate a direction that would allow the jury to use this evidence in a rational way and not be overwhelmed by the prejudice or distaste which some people may have if they are unfamiliar with, or just don’t like, the artform and its reliance on violent language. Admission of the evidence could result in time being spent adducing evidence to show the nature of “drill rap” and other forms of Hip Hop going back many years. I can see no direction that would provide a logical pathway to using the lyricist’s words as some kind of truthful and accurate recollection of what occurred.

88. I would exclude the evidence under s 137 and would otherwise apply the discretion in s 135.

Rulings

89. The table below, which will be marked for identification and provided to the parties at the time I provide them with a copy of this judgment, sets out my rulings on the items to which objection was taken:

Item Number	Table Pg Ref	Tendered against	Objection by	Ruling (Evidence Rejected or Admitted)
11-21	2-3	AG	AG	Ruled in court on 16/7/24: Rejected
45-67	7-9	YA	YA	Rejected
69	10	YA	YA	Rejected
70-74	10	YA	YA	Admitted
87-89	11	YA	YA	Admitted
99	12	YA	YA	Admitted
106	15	AD YA	YA	Rejected
109-110 (50-51 in Ex VD 11)	17	AD	AD	(Reserved on 11/7/24) Admitted
111-112 (52-53 in Ex VD 11)	18-19	AD	AD	(Reserved on 11/7/24) Admitted
114 (54 in Ex VD 11)	19-20	AD	AD	Admitted
115	20	YA ID AG	YA	Admitted
116	21	YA	YA	Admitted
120-121	21-22	PK AD YA	YA	Admitted
123 (58 in Ex VD 11)	22	AD	AD	Admitted
124	22-23	AD	AD	Ruling advised on 11/7/24: Admitted
131-132	23-25	YA	YA	Admitted
133 (64 in Ex VD 11)	25-26	AD	AD	Admitted
161	28	YA AD PK AG	YA	Admitted
236-241	33-34	YA AD ID AG	YA AD ID	Admitted
297-303	38	AD ID AG	AD ID	Admitted
304	38	AD ID AG YA	AD YA	Admitted
308	38	ID AG AD	ID AD	Rejected
318	39	AD ID AG YA	AD ID YA	Admitted
319-322	39	AD ID AG	AD ID	Rejected
323	39	AD ID AG YA	ID	Admitted
324-326	40	AD ID AG YA	YA ID	Admitted
327	40	AD ID AG YA	AD ID YA	Rejected
328-335	40	AD ID AG YA	ID YA	Admitted
336	40-41	AD ID AG YA	YA	Admitted
337-340	41	AD ID AG YA	YA	Rejected
341	41	YA	YA	Admitted
342	41	AD ID AG YA	AD YA	Admitted
343	41	AD ID AG YA	AD YA ID	Admitted
344-346	41	AD ID AG YA	AD YA	Admitted
347	41	AD ID AG YA	AD YA ID	Admitted
348	41	AD ID AG YA	AD YA	Admitted
360	42-43	YA AG	YA	Decision reserved on 4/7/24 Admitted, see separate judgment: R v Diallo & Ors (No 3) [2024] NSWSC xxx
361	43-44	YA AG	YA	Decision reserved on 4/7/24 Admitted against AG and YA
363	44	AG	YA	Rejected
365	44	AG	YA	Rejected
388	46	AD ID AG YA	AD ID YA	Ruling in court on 16/7/24: Rejected
398	46	AD ID AG YA	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
412	47	AD ID AG YA	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
414-415	48	AD ID AG YA	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
417-418	48	AD ID AG YA	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
469	52	AD ID AG YA	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
483	53	AD ID AG YA	AD ID YA	Admitted
520-521	56	YA AD	YA	Admitted including as to duration
533	58	AG	YA	Admitted
575-593	61	AD ID	AD ID YA	Rejected
605-609	62	AD ID	AD ID	Admitted
610	62	AD ID	AD ID YA	Admitted
611-616	62-63	AD ID	AD ID	Admitted
814-827	72-73	AG	AG ID	Rejected
951-957	79	AG	ID AG	Rejected
958-966	79-80	AG	AG	Rejected
967	80	AG	AG	Admitted
1054-1062	85-86	YA AD AG ID	YA	Rejected
1066-1071	86-87	AD ID	AD ID YA	Admitted
1072	87	YA AD AG ID	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
1074	87	AD ID AG	AD ID YA	Rejected
1079	87	YA AD AG ID	YA	Rejected
1080	87	YA AD AG ID	YA AD ID	Rejected
1081	87	YA AD AG ID	ID YA	Rejected
1082-1083	87	YA AD AG ID	AG presses YA objects	Parties to consult as to alternative method for AG to put before jury
1098	88	YA AD AG ID	ID	Rejected
1099	88	YA AD AG ID	AD ID	Rejected
1235	105	AD ID	YA	Admitted (but confirming it is neither tendered nor admissible against YA)
1288-1291	110	YA	YA	Admitted
1294-1299	111	YA	YA	Admitted
1300 (470 in Ex VD 11)	111-112	AD	AD	Decision reserved on 11/7/24 Rejected
1301-1302	112	YA	YA	Rejected
1303	112	AG	YA	Rejected
1304 471 in Ex VD 11)	112	AD	AD	Decision reserved on 11/7/24 Rejected
1305	112	YA	YA	Rejected
1313-1331	113-115	YA AD AG ID	YA	Admitted
1334	116	YA	Admitted
1336	117	YA AD AG ID	YA	Admitted against all accused but rejected in YA’s case.
1337	117	YA AD AG ID	YA	Admitted
1338-1403	117-121	YA	YA	Admitted
1404 (510 in Ex VD 11)	121-122	AD	AD	Decision reserved on 11/7/24 Rejected
1408 (513 in Ex VD 11)	122	AD	AD	Decision reserved on 11/7/24 Rejected

**********

Endnotes

Decision last updated: 05 November 2024