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Supreme Court 28 August 2024

R v Diallo & Ors (No 14)

[2024] NSWSC 1101

Homicide
CRIMINAL LAW EVIDENTIARY RULING TELEPHONE INTERCEPT DISPUTE OVER WORDS USED WHERE WORD SOUNDS LIKE “DEEP” WHETHER USED AS A VERB

Citation: R v Diallo & Ors (No 14) [2024] NSWSC 1101
Court: Supreme Court of New South Wales
Date: 28 August 2024
Judge(s): Hamill J

Background

Four men, including Panashe Karise, stand trial for murder and attempted murder arising from what the Crown alleges was a dispute between rival gangs in suburban Sydney. The victim, Darcy Moore, died of stab wounds on 1 September 2021. Two other men were also allegedly attacked.

The prosecution sought to adduce a telephone intercept recorded on 28 October 2021, approximately eight weeks after the killing. In it, Mr Karise allegedly told a friend that when he thinks about someone having "caught an M" (a reference to murder), he "digs it," followed by the statement "there's a dead n***er." The prosecution argued this showed a state of mind consistent with willing participation in a criminal enterprise.

Mr Karise's counsel objected. He contended the critical word was not "dig" (slang for "like" or "enjoy") but "deep" (slang for "think about" or "ruminate on"), and that even if the jury could find either word was used, the evidence was too ambiguous and prejudicial to be admitted.

  • Whether the word spoken in the intercept was "dig" (carrying an incriminating meaning) or "deep" (carrying a non-incriminating meaning), and how that ambiguity affected admissibility.
  • Whether the evidence was relevant under ss 55 and 56 of the Evidence Act 1995 (NSW), given the conversation occurred almost two months after the alleged offences.
  • Whether the evidence was, in substance, inadmissible tendency evidence under ss 97 to 101 of the Evidence Act.
  • Whether the evidence should be excluded under s 137 because its probative value was outweighed by the danger of unfair prejudice.

Decision

Hamill J conducted a careful analysis of the recording, noting that phonetically the word sounded more like "deep" (with a long "ee" sound) than "dig" (with a short "i" sound). His Honour acknowledged that "deep" used as a verb was unfamiliar to him, but accepted (with characteristic candour about "antiquated judicial understanding of modern Australian usage") that the trial evidence contained multiple examples of the accused and their associates using "deep" as a verb meaning "to think about," "to ruminate on," or "to consider significant."

The court found that if the word was "deep," the passage was consistent with Mr Karise simply reflecting on the gravity of events, and no incriminating inference could arise. If the word was "dig," the passage would be probative of a state of mind consistent with willing participation in the alleged joint criminal enterprise. Taking the prosecution case at its highest (that the word was "dig"), the evidence had some probative value as circumstantial evidence of intent and state of mind.

However, Hamill J concluded that the ambiguity created a significant danger of unfair prejudice. Even with directions and the ability for the defence to adduce contextual evidence about the slang use of "deep," the risk that the jury might misuse the evidence was substantial. His Honour considered whether limiting directions or other remedies could cure the prejudice but determined they could not adequately address the problem.

Ultimately, the court excluded the evidence under s 137 of the Evidence Act, finding that its probative value was outweighed by the danger of unfair prejudice to Mr Karise. Hamill J also gave consideration to the tendency evidence argument and the authorities, including Elomar v R and IMM v The Queen, although the exclusion under s 137 was the primary basis for the ruling.

Orders Made

  • The telephone intercept conversation of 28 October 2021 between Mr Karise and Phillip Nkpolukwu was excluded from the evidence in the trial.

Key Takeaways

  • The Supreme Court carefully examined evolving slang and vernacular in intercepted communications, analysing linguistic evidence including social media and other communications to determine how particular words were used within a specific cohort, finding that a single ambiguous word was potentially determinative of whether an intercept was incriminating or innocuous.

  • Where the Crown characterised evidence as circumstantial rather than tendency evidence, Hamill J scrutinised whether the material functionally operated as tendency evidence under ss 97 to 101 of the Evidence Act 1995 (NSW), confirming that the distinction between the two categories warranted close examination regardless of how the prosecution framed the material.

  • Inferring a state of mind at the time of the offence from a conversation nearly two months later posed significant difficulty, and the temporal gap between the offence date and the date of the intercepted communication was found to be a material consideration in assessing whether a post-offence statement could serve as reliable circumstantial evidence of intent at the earlier time.

  • Under s 137 of the Evidence Act 1995 (NSW), the Court held that the evidence must be excluded in a jury trial where it carried layers of ambiguity and a real risk of emotional misuse by the jury (specifically, the implication that the accused "enjoyed" a killing), finding that no combination of directions, cross-examination rights, or contextual evidence could sufficiently cure the prejudice.

  • Although the dispute over the transcript of the intercepted communication (whether the word used was "dig" or "deep") was ultimately a question for the jury to resolve, Hamill J used the unresolved ambiguity as a factor weighing in favour of exclusion in the prejudice analysis under s 137.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 97 to 101, 135, 136, 137

Cases:
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365
- Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398
- 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 Rolfe (No 8) [2022] NTSC 11
- The Queen v Dennis Bauer (A pseudonym) (2018) 266 CLR 56; [2018] HCA 40