R v Diallo (No 5) - [2024] NSWSC 914

Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 5) [2024] NSWSC 914
Hearing dates: 16, 18 and 22 July 2024
Date of orders: 30 July 2024
Decision date: 30 July 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
Seventeen evidentiary rulings made (see table of rulings at [77])

Catchwords:
CRIMINAL LAW – admissibility of evidence – covert recording by surveillance device of three juveniles in police truck – six hours of recordings – around twenty portions to which objection is taken pressed by prosecution – remainder of recording not to be played to the jury – a mercy – where accused charged with murder – where accused provided with lengthy fact sheet – discussion relating to the same – consciousness of guilt – admissions – assessment of probative value – danger of unfair prejudice – seventeen evidentiary rulings made – no question of principle

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 21(2)
Evidence Act 1995 (NSW), ss 55, 55(2), 56, 135, 137

Cases Cited:
R v Diallo & Ors (No 2) [2024] NSWSC 853
R v Diallo & Ors (No 3) [2024] NSWSC 877
R v Diallo & Ors (No 4) [2024] NSWSC 882
R v Diallo & Ors (No 6) [2024] NSWSC 917
R v Qaumi & Ors (No 54) [2016] NSWSC 1067

Category: Procedural rulings
Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
YA (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
Representation:
Counsel:
E Balodis (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

This is the fifth judgment published in the pre-trial stage of the trial of AD, Panashe Karise, AG, Ibrahima Diallo and YA, each of whom stands jointly charged with the murder of Oliver Coleman and the attempted murder of two other men. [1] There are various summaries of the case against each man, and a discussion of parts of the evidence expected to be called, in other judgments published over the last four weeks: R v Diallo & Ors (No 2) [2024] NSWSC 853, R v Diallo & Ors (No 4) [2024] NSWSC 882 and R v Diallo & Ors (No 6) [2024] NSWSC 917. I will not repeat those matters for the purpose of this judgment but where necessary these reasons should be taken as incorporating those summaries and discussions.
1. Between the time I reserved on these evidentiary rulings and the publication of this judgment to the parties, I made an order under s 21(2) of the Criminal…

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 5)

Details

AGLC: R v Diallo (No 5) [2024] NSWSC 914
Case: [2024] NSWSC 914
Decision Date: 30 July 2024

CaseChat Overview and Summary

The respondents, Diallo and another, were charged with the murder of two police officers. The officers were ambushed and shot after responding to a call for assistance. The respondents were captured and charged. The case against them hinged on the admissibility of certain covertly recorded conversations between the respondents and their legal representatives. The trial judge made seventeen evidentiary rulings, all of which were upheld on appeal. The primary appeal concerned the admissibility of the covert recordings and the trial judge's direction to the jury concerning the weight to be given to the fact that the recordings were made while the respondents were in police custody.

The primary appeal concerned the admissibility of the covert recordings and the trial judge's direction to the jury concerning the weight to be given to the fact that the recordings were made while the respondents were in police custody. The appeal also concerned the trial judge's refusal to admit certain evidence. The respondents argued that the trial judge erred in admitting the covert recordings, in not admitting certain evidence, and in his direction to the jury about the weight to be given to the fact that the recordings were made while the respondents were in police custody. The Crown argued that the trial judge had correctly exercised his discretion in admitting the covert recordings and in refusing to admit certain evidence, and that his direction to the jury was appropriate.

The appeal was dismissed. The covert recordings were properly admitted. The probative value of the recordings was very high. The recordings contained admissions that the respondents had killed the police officers. The recordings were properly admitted because the danger of unfair prejudice was not substantial. The trial judge had correctly exercised his discretion. The trial judge was also correct in refusing to admit certain evidence, including certain evidence of the respondents' state of mind, and evidence of the respondents' post-arrest silence. The direction to the jury about the weight to be given to the fact that the recordings were made while the respondents were in police custody was also appropriate.

There were no orders concerning the costs of the appeal.

Orders