Citation: R v Diallo and Ors (No 13) [2024] NSWSC 1088
Court: Supreme Court of New South Wales
Date: 26 August 2024
Judge(s): Hamill J
Background
This ruling arose during a joint criminal trial in which the accused, referred to as AG (a 17-year-old at the time of the relevant events), faced charges of murder and related offences. The prosecution case alleged that on 1 September 2021, the accused and others attended premises where a young person was killed and two others were seriously injured. The Crown alleged a common purpose or joint criminal enterprise.
The prosecution sought to tender a portion of a telephone intercept recorded on 19 January 2022, in which AG spoke with his sister. In the conversation, AG told his sister to mentally prepare herself because he was "definitely going to gaol for something" and that "none of us are getting out of this clear." The Crown argued this amounted to circumstantial evidence of consciousness of guilt.
Senior counsel for AG objected, submitting that the evidence had very limited probative value in context, carried a significant risk of misuse by the jury, and should be excluded under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether a recorded conversation in which the accused discussed the prospect of imprisonment was admissible as consciousness of guilt evidence
- Whether the evidence was "intractably neutral" as between murder and manslaughter, and also as between homicide and the lesser charge of affray
- Whether the danger of unfair prejudice outweighed the probative value of the evidence under s 137 of the Evidence Act 1995 (NSW)
Decision
Hamill J accepted that, viewed in isolation, the intercepted conversation was capable of supporting an inference that AG knew he had acted unlawfully on the day in question and was involved in the alleged joint criminal enterprise. However, His Honour held that the evidence had to be assessed in its proper context.
By the date of the call, AG had already been charged with affray in connection with the same events. He was aware that the deceased had died. He was also aware of his own role in social media communications goading the deceased. His Honour found that the accused appeared to be preparing his sister for the worst outcome, rather than making admissions of guilt for a particular offence. Notably, later in the same call AG told his sister, "I know I didn't do nothing."
Hamill J concluded that the evidence was intractably neutral in two respects. First, it could not distinguish between murder and manslaughter. Second, and critically, it could not distinguish between anxiety about the existing affray charge and anxiety about potential homicide charges. An equally rational inference was that AG feared being wrongly charged and convicted of a more serious offence. His Honour found this second layer of neutrality could not be cured by judicial direction (unless the jury were told they could not use the evidence for any count at all, effectively rendering it pointless).
The potential for jury misuse was significant: jurors might give the evidence too much weight or use it to bolster the homicide case through speculation. Hamill J ruled that the probative value, while "real," was "not great" and was outweighed by the danger of unfair prejudice. The evidence was excluded under s 137.
Orders Made
- The telephone intercept of 19 January 2022 (commencing at 14:02:00) was ruled inadmissible
Key Takeaways
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The Supreme Court extended the principle of "intractable neutrality" beyond its familiar application (where post-offence conduct is neutral as between murder and manslaughter) to a second axis: the evidence was also neutral as between homicide and a lesser, already-charged offence (affray). This compounding neutrality proved fatal to admissibility.
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Defence counsel successfully relied on a later passage in the intercepted conversation in which the accused asserted his innocence, demonstrating that the full context of the recording bore directly on the admissibility ruling. The Crown had properly offered to tender additional passages for fairness, but the broader context ultimately supported exclusion.
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Where no practical judicial direction could cure the prejudice arising from the neutrality problem, Hamill J reasoned that if the only effective direction would require telling the jury to ignore the evidence entirely, that outcome undercut the rationale for admitting it in the first place. This logic informed the exclusion under s 137 of the Evidence Act.
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Intercepted communications between an accused and family members may be tendered as consciousness of guilt evidence even in the absence of direct admissions. Although the evidence was ultimately excluded in this case, the Court accepted that such conversations were capable, viewed in isolation, of supporting the relevant inference.
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Under the "highest" standard applied at the admissibility stage, context need not be ignored. Hamill J held that while a trial judge should not resolve factual disputes, competing inferences arising from uncontested circumstances remained relevant to the probative value assessment under s 137.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases:
- R v Diallo & Ors (No 2) [2024] NSWSC 853
- R v Diallo & Ors (No 4) [2024] NSWSC 882
- R v Diallo & Ors (No 6) [2024] NSWSC 917
- R v Brooks [2017] NSWSC 188
- R v Hawkins (No 10) [2020] NSWSC 1931
- Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v White [1998] 2 SCR 72