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
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 (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
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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…
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- R v Diallo (No 5) [2024] NSWSC 914
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- [2024] NSWSC 914
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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