R v Diallo (No 6)

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.