Citation: R v Diallo & Ors (No 15) [2024] NSWSC 1114
Court: Supreme Court of New South Wales
Date: 30 August 2024
Judge: Hamill J
Background
This decision arises from an ongoing criminal trial involving multiple accused. During the trial, a listening device recording (Exhibit 53) captured one accused, AG, telling a co-accused, YA, "I say one word, I'll smoke you man" in the context of a conversation about not speaking with police. That recording had previously been admitted as capable of evidencing a consciousness of guilt on the part of both accused.
The prosecution sought to tender an extract from the online Macquarie Dictionary to establish the meaning of the word "smoke" as used by AG. Specifically, the prosecution relied on the twentieth of twenty-seven definitions in the dictionary entry, which reads: "Verb -- colloquial to kill (someone), especially by shooting." The prosecution's position was that proving this meaning would bolster the significance of the threat as evidence of consciousness of guilt, potentially engaging principles from the High Court's decision in Baden-Clay.
Defence counsel objected to the tender. The court deferred ruling until submissions could be heard in the absence of the jury, and this judgment records the court's reasons for rejecting the tender.
Legal Issues
- Whether an extract from the Macquarie Dictionary was admissible to prove the meaning of a word used in a covertly recorded conversation
- Whether section 144 of the Evidence Act 1995 (NSW), concerning matters of common knowledge, supported the use of a dictionary definition to prove meaning before a jury
- Whether the probative value of the dictionary evidence was outweighed by its potential for prejudice or misleading effect, particularly given the idiosyncratic use of language throughout the trial evidence
Decision
Hamill J rejected the tender of the dictionary extract. His Honour began by observing that the voir dire admission of the dictionary did not constitute a ruling as to its admissibility before the jury, and that no such concession had been made by the defence. The dictionary had not featured in the earlier judgment admitting the listening device recording, and its definition had played no part in that reasoning.
The prosecution argued that section 144(2) of the Evidence Act, which permits a judge to acquire common knowledge from sources including research books, supported the tender. His Honour accepted as a general principle that dictionaries may serve as one such source, but found that approach "fraught with danger" in this trial. The evidence was described as "riddled with unusual idioms," and the word "deep" -- used throughout the trial communications as a verb meaning to think about something -- was a striking example. That word appears in thirty-nine Macquarie Dictionary definitions, none of which captures its idiosyncratic usage in this case.
The prosecution's analogy to the word "deep" actually undermined rather than supported its argument. If the dictionary could not capture the non-standard meaning of "deep," it provided equally unreliable guidance on the meaning of "smoke" as used among this group. The authority in Phelps v Nationwide News Pty Ltd & Anor [2003] NSWSC 1104 confirmed that dictionary meanings are generally not receivable in evidence before a jury, as they may carry an unwarranted air of authority on a question of meaning that properly belongs to the jury.
His Honour found the probative value of the dictionary evidence "slight to the point of being wafer-thin," while the potential for prejudice was significant. The dictionary definition's reference to killing "especially by shooting" was particularly problematic given that nothing in the evidence suggested AG had access to firearms. Even a redacted version of the definition would amount to presenting altered material as common knowledge. The prosecution was free to address the jury on the basis that AG's words constituted a threat, without resort to the dictionary.
Orders Made
No formal orders were recorded in this decision. The court rejected the tender of the Macquarie Dictionary extract.
Key Takeaways
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Dictionary definitions are not generally receivable in evidence before a jury, as they risk lending unwarranted authority to one possible meaning of a word on a question that belongs to the jury.
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Under section 144 of the Evidence Act 1995 (NSW), a court may consult dictionaries and other reference works on questions of common knowledge, but this discretion must be exercised with caution, particularly in trials where language is used in non-standard or idiosyncratic ways.
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Where a trial record demonstrates that participants used words in ways that no dictionary definition captures (as illustrated here by the use of "deep" as a verb), a dictionary becomes an unreliable and potentially misleading guide to meaning throughout that evidence.
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Probative value that is "wafer-thin" alongside significant potential for prejudice or misleading effect will support rejection of evidence, even evidence relating to a concept (a threat) that has already been ruled admissible through other means.
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The High Court's reasoning in Baden-Clay concerning the significance of consciousness of guilt evidence does not, of itself, justify tendering a dictionary to enhance or bolster the meaning attributed to a word used by an accused.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 144, 144(2)
Cases
- Phelps v Nationwide News Pty Ltd & Anor [2003] NSWSC 1104
- R v Diallo & Ors (No 5) [2024] NSWSC 914
- R v Diallo & Ors (No 14) [2024] NSWSC 1101
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35