R v Diallo (No 6)

Case [2024] NSWSC 917


Supreme Court


New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 6) [2024] NSWSC 917
Hearing dates: 22-23 July 2024
Date of orders: 29 July 2024
Decision date: 29 July 2024
Jurisdiction:Common Law
Before: Hamill J
Decision:

(1) Pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW), I direct that YA be tried separately from AD, Panashe Karise, AG and Ibrahima Diallo in relation to each of the offences on the indictment.

(2) Based on the Prosecutor’s indication that he will call AD, Panashe Karise, AG and Ibrahima Diallo for trial first, I order that YA’s trial be postponed pursuant to s 21(3) of the Criminal Procedure Act 1986 (NSW).

(3) YA’s trial is listed for mention and directions on Friday 6 September 2024 at 11:30am (or at such other date as notified by my Associate).

(4) YA’s legal representatives are directed to liaise with the Prosecutor and my Associate to determine whether the mention will be in this Court before me or in the arraignments list.

Catchwords:

CRIMINAL LAW – application for separate trial – unusual possibly unique case – where Prosecutor agrees to tender statement of co-accused based on understanding the accused will give evidence in joint trial – where statement makes substantial admissions – where statement also implicates co-accused – where statement not tendered against co-accused and not admissible against them – where length of trial estimated to be 2-3 months – where four accused in custody for more than 2 years – dire consequences if basis of tender proves invalid – length of remand – relevance of Senior Counsel’s indication of accused intention to give evidence – acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process – counsel and Court unable to find precedent – assessment of prejudice – consideration of possible jury directions – extent to which the accused giving evidence may alleviate the prejudice – summary of relevant principles – whether positive injustice established

CRIMINAL PROCEDURE – accused person’s decision to give evidence – decision for accused not counsel – accused not bound by counsel’s current understanding – many reasons accused may change his mind about decision to give evidence

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 13

Crimes Act 1900 (NSW), s 33

Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 21(2)(b), 21(3), 29, 143

Evidence Act 1995 (NSW), ss 26-29

Cases Cited:

Caleo v R [2021] NSWCCA 179; (2021) 290 A Crim R 352

Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13

Gan v Xie [2023] NSWCA 163

Hanna v R [2022] NSWCCA 7

LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688 Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551

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

Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23

R v Diallo & Ors…

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AGLC
R v Diallo (No 6) [2024] NSWSC 917
Case
[2024] NSWSC 917
Decision Date

CaseChat Overview and Summary

In the case of R v Diallo (No 6), the accused person, Diallo, sought an application for a separate trial, presenting a unique situation. The dispute involved the admissibility of a statement made by a co-accused, which implicated Diallo and made substantial admissions, but which was not tendered against the co-accused and was inadmissible against them. The statement was tendered based on the understanding that Diallo would give evidence in a joint trial, a length of which was estimated to be two to three months. Diallo had been in custody for over two years, and the consequences of the basis of the tender proving invalid were dire. The court had to decide whether a positive injustice had been established, warranting a separate trial.

The legal issues before the court were whether the accused person's decision to give evidence was a matter for them alone, and not bound by counsel's current understanding. Additionally, the court had to consider the extent to which prejudice could be mitigated by the accused giving evidence, and whether the principles governing such decisions warranted a separate trial. The court also needed to assess the potential prejudice caused by the statement, and whether any directions to the jury could alleviate it. The court had to balance the potential prejudice against the accused with the length of remand and the risk of the basis of the tender proving invalid.

In reaching its decision, the court considered the unpredictability of the criminal trial process and the many reasons an accused person might change their mind about giving evidence. The court found that the accused person was not bound by their counsel's understanding of their intention to give evidence. The court found that a positive injustice had been established, and granted the application for a separate trial. The court considered that the length of remand, the potential prejudice, and the risk of the basis of the tender proving invalid outweighed the potential for any jury directions to mitigate the prejudice. The court found that the accused person's decision to give evidence was a matter for them alone, and that the principles governing such decisions warranted a separate trial.

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Orders of the court

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Background

Background to the litigation

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Evidence Before The Court

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Decision

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Legal Principle Established

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