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R v Diallo (No 7)

R v Diallo (No 7)

Case [2024] NSWSC 978 8 August 2024

Admissibility of Evidence

Legal Privilege

Contempt of Court

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 7) [2024] NSWSC 978
Hearing dates: 8 and 30 July 2024
Date of orders: 8 August 2024
Decision date: 08 August 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Noting that client legal privilege is not lost pursuant to s 122 of the Evidence Act 1995 (NSW), decline to order production of the documents called upon as if under subpoena.
(2) Note that this ruling does not prohibit cross-examination of KL on the disclosures made in his solicitor’s affidavit (see [60]).

Catchwords:
EVIDENCE – client legal privilege – whether privilege waived or lost – whether conduct inconsistent with maintenance of the privilege – multifarious complications – where witness faces unrelated murder charge – where expert reports provided to prosecution in those proceedings – where witness objects to production of reports on Prosecutor’s call in these proceedings – Prosecutor’s proper compliance with Harman undertaking – whether reports served under compulsion of law – broad or strict approach – consideration of authorities – brutal environment of the Commercial List
EVIDENCE – loss of client legal privilege – relevant considerations – whether witness’s contemptuous but courteous approach in witness box is a relevant consideration – considerations of fairness – where witness a child guided by lawyers – where Prosecutor denied more detailed understanding of witness’s observations – where witness declines to answer questions – “no comment” – disclosures in present proceedings – where witness objects to giving evidence – privilege against self-incrimination – contents of solicitor’s affidavit – disclosures striking “fine balance between candour and maintenance of privilege” – whether substance of evidence disclosed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Procedure Act 1986 (NSW), s 151
Evidence Act 1995 (NSW), ss 38, 117, 118 119, 122, 122(2), 122(3)(a), 122(5)(a)(iii), 128, 131A

Cases Cited:
Akins v Abigroup Ltd (1998) 43 NSWLR 539
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36
Osland v Secretary, Deptartment of Justice (2008) 234 CLR 275; [2008] HCA 37
Osland v The Queen (1998) 187 CLR 316; [1998] HCA 75
R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

Category: Procedural rulings
Parties: Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
KL (Interested party)
Representation:
Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
M Fernando (KL)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)

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 7)

Details

AGLC: R v Diallo (No 7) [2024] NSWSC 978
Case: [2024] NSWSC 978
Decision Date: 08 August 2024

CaseChat Overview and Summary

In this case, the respondent, Diallo, was charged with various counts of murder, kidnapping, and related offences. The respondent sought to exclude certain expert reports from evidence, citing client legal privilege. The prosecution argued that the privilege was waived or lost. The matter was heard in the Supreme Court of Queensland. The court had to decide whether the privilege was waived or lost, and whether the expert reports should be admitted into evidence. The court also needed to consider the impact of the witness's refusal to answer questions and the potential loss of privilege due to the harsh environment of the Commercial List.
The court held that the privilege was lost due to the respondent's conduct. The court found that the respondent's refusal to answer questions, coupled with their contemptuous but courteous approach in the witness box, indicated a deliberate decision to waive the privilege. The court also considered the witness's age and the guidance provided by their lawyers, but ultimately found that the witness's conduct was a relevant consideration. The court further held that the prosecution had properly complied with the Harman undertaking, and that the reports were not served under the compulsion of law. The court adopted a broad approach in considering the authorities, and found that the privilege was lost due to the respondent's conduct. The court also found that the contents of the solicitor's affidavit and the disclosures in the present proceedings did not strike a fine balance between candour and maintenance of privilege.
The court ultimately admitted the expert reports into evidence. The court found that the reports were relevant and necessary to the prosecution's case, and that their admission was in the interests of justice. The court also found that the respondent's refusal to answer questions did not prejudice the prosecution, and that the privilege against self-incrimination did not apply. The court held that the disclosures in the present proceedings were sufficient to maintain the balance between candour and maintenance of privilege. The court further found that the harsh environment of the Commercial List did not impact the respondent's ability to maintain the privilege. The court's decision was based on a careful consideration of the authorities and the facts of the case.

Orders