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)

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.
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.
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).
The…

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 8)

Details

AGLC: R v Diallo (No 8) [2024] NSWSC 979
Case: [2024] NSWSC 979
Decision Date: 08 August 2024

CaseChat Overview and Summary

The appellant, Diallo, faced charges of several offences relating to a series of violent incidents occurring over a broad area in suburban Sydney. The prosecution sought an inspection of the scene for the purpose of evidence gathering, arguing that the physical evidence was scattered over several blocks, making it difficult to fully understand the events. The application was made during a pre-trial hearing. The Supreme Court of New South Wales was tasked with determining whether an inspection of the scene was warranted.

The court considered various factors, including the large geographical area over which the incidents occurred, the scattering of physical evidence, the distances between the locations, and the perspectives from which the events could be observed. The presence and location of CCTV cameras were also examined to assess their contribution to the understanding of the events. The court further evaluated whether any material alteration to the scene had occurred and if a shower could be used to identify certain evidence. The court recognised that an inspection of the scene might be of significant assistance in understanding the sequence and nature of the events.

In granting the application for an inspection of the scene, the court held that the extensive area over which the incidents occurred and the scattering of physical evidence made an inspection necessary to fully understand the events. The court found that the inspection would likely be of significant assistance in providing a comprehensive view of the scene and its various components, including the locations of evidence, distances, perspectives, and the role of CCTV. The court emphasised that the inspection would aid in ensuring a fair trial by providing a clearer understanding of the context in which the offences were committed.

The court ordered that the inspection of the scene take place within a specified timeframe, with both parties allowed to be present and to call witnesses and experts as necessary. The court also directed that any evidence collected during the inspection be made available to both parties and that any findings or observations be documented and shared with the court prior to the trial.

Orders