R v Diallo (No 8)

[2024] NSWSC 979

Supreme Court

New South Wales

Medium Neutral Citation:

R v Diallo & Ors (No 8) [2024] NSWSC 979

Hearing dates:

2 July 2024, 7-8 August 2024

Date of orders:

8 August 2024

Decision date:

08 August 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Make an order for an inspection (view) of the scene pursuant to s 53(1) of the Evidence Act 1995 (NSW) (at [8]).

(2) Decline to order the inspection to be video recorded (at [10]).

(3) Various orders relating to media attendance (at [13]).

Catchwords:

CRIMINAL LAW – Whack-A-Mole pre-trial hearing – application for inspection of scene – relevant considerations – large area over which various incidents occurred – physical evidence scattered over several suburban blocks – perspective and distances – location of CCTV cameras – material alteration to one area of scene – shower can identify – inspection likely to be of significant assistance

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Criminal Procedure Act 1986 (NSW), s 21(2)

Evidence Act 1995 (NSW), ss 53(1), 53(2), 53(2)(a), 53(3)

Cases Cited:

R v Diallo & Ors (No 6) [2024] NSWSC 917

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)

Representation:

Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)

Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)

File Number(s):

2022/00052005; 2022/00051961; 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).

EX TEMPORE JUDGMENT (REVISED)

1. In the course of the Whack-A-Mole pre-trial hearing, YA suggested it would be appropriate and useful for the jury to be taken on a view of the scene of what was a series of stabbings that took place back in September 2021. [1] AD, Mr Karise and the Prosecutor were also in support of an inspection of the scene. [2] Neither AG nor Mr Diallo opposed a view being held but did not actively support it.

   1. Tcpt (2/7/24) p 79. I have since made an order under s 21(2) of the Criminal Procedure Act 1986 (NSW) that YA be tried separately to the other four accused men: R v Diallo & Ors (No 6) [2024] NSWSC 917.

   2. Tcpt (2/7/24) p 79.

2. Since the matter was raised, it has been assumed by all concerned that an inspection of the scene – which spans about four blocks around William, Suffolk and Norfolk Streets and Richmond Road in Blacktown would take place. Various tentative arrangements have been made.

3. Having been reminded (very helpfully) by the Prosecutor of the need formally to make an order for the view, I have taken this to be an application pursuant to s 53(1) of the Evidence Act 1995 (NSW).

4. The position of each of the parties is that either they actively encourage me to make an order under s 53(1) or they take a neutral position. No party opposes the jury being taken to inspect the scene.

5. Having now heard the evidence of a number of crime scene officers and received into evidence a variety of photographs, charts, diagrams and maps, I am firmly of the view that an order or direction for an inspection or view of the scene is appropriate. That is provided there are no factors militating against such an order or direction.

6. The four young men who are currently standing trial are all in custody of some kind. There is nothing to suggest that this would create an insurmountable problem to their attendance on a view, as per s 53(2)(a). However, none of the accused men wish to attend and each will be represented at the view by experienced counsel and their solicitor. I am satisfied that there is a reasonable opportunity for the parties to be present, and both myself and the jury will be present: see s 53(2).

7. I am satisfied, for the purpose of s 53(3):

(a) The parties – or their lawyers – will be present.

(b) The inspection will be of great assistance to the jury in understanding the evidence and resolving issues of fact. The distances between the various incidents are significant to some of the issues expected to be ventilated. The view will allow the jury to understand in a more meaningful way where items were located. There were weapons or parts of weapons found many hundreds of metres from where the incident started. The view will also allow the jury to follow a large body of CCTV footage which will be provided later in the trial. [3]

(c) There is no danger that the inspection will be unfairly prejudicial, or mislead or confuse the jury or be a waste of time. On the contrary, it will be quite enlightening.

(e) I am told two things have changed at the scene, one of some significance and one of little or no importance. This can be made plain to the jury both at the scene by the Officer appointed as “shower” or “pointer” and subsequently during the evidence. I have taken into account the material alteration of one part of the scene but consider it to be a minor consideration in the circumstances of this case.

3. As it turned out, the CCTV evidence was tendered and watched by the jury on 6 August 2024, that is two days before the inspection was scheduled to take place.

8. Accordingly, I am satisfied that an order under s 53(1) should be made.

Video recording of the inspection

9. After the formal order was made, there was some discussion as to the details and logistics. One issue that arose was whether the inspection should be video recorded. No party pressed for such a recording to be made. Mr Smith, who appears for Mr Karise and has some experience with views being recorded indicated that it was likely to add considerably to the length of the view. My experience is that the transcript taken by the court reporters provides an adequate record of the inspection.

10. I declined to make an order that the inspection be video recorded.

Media attendance

11. The day before the inspection was to be held, I became aware that some media representatives wished to attend upon the view.

12. To ensure the integrity of the inspection, the maintenance of the anonymity of the jury and the privacy of its deliberations, I foreshadowed certain orders and invited the journalists to make submissions if they sought any variation to the ground rules upon which their attendance was welcomed. [4] In an email to my
    

    4. Tcpt (7/8/24) pp 386-387.

    Associate, the reporter in question indicated that she did not seek to be heard and did not seek any variation to the view.

13. Accordingly, the following additional orders were formalised on the morning the inspection took place:

1. The media is not to approach within 100 metres of those participating in the inspection.

2. No media representative is to communicate with any person associated with the view, including the police, sheriff's officers, jurors, or court staff.

3. The media representatives are not to take any photographs, or make any still or moving visual recordings of any member of the jury, any solicitor or barrister, any member of the court staff, or any police officer.

4. Media representatives in attendance are not to use any device capable of recording any conversation from a distance of 75 metres or more.

5. If any audio or visual image is captured inadvertently, it is to be destroyed immediately and the Court is to be notified of the mistake within 24 hours.

6. The media is to do nothing generally which may interfere in any way with the conduct of the inspection.

7. If any amendment or variation of these orders is sought, the application is to be made at 10:00 am on 8 August 2024.

8. Any breach of the orders, and in particular, any audio recording of a jury communication or the taking of visual images of jurors or other participants will be treated in the first instance as a contempt of the Court.

**********

Endnotes

Decision last updated: 14 November 2024