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Supreme Court 18 July 2024

R v Diallo & Ors (No 3)

[2024] NSWSC 877

Assault & violenceHomicide
EVIDENCE ADMISSIONS ASSESSMENT OF PROBATIVE VALUE WHETHER EVIDENCE “TRANSACTIONAL” EVIDENCE OF CONTEXT PROBATIVE VALUE OF EVIDENCE

Citation: R v Diallo & Ors (No 3) [2024] NSWSC 877
Court: Supreme Court of New South Wales
Date: 18 July 2024
Judge(s): Hamill J

Background

Five young men, including the accused referred to as "YA," stand charged with murder and two offences of wounding with intent arising from a violent incident on 1 September 2021. The violence on that night resulted in the death of one man and the wounding of two others. The accused persons are said to have targeted members of a rival group or gang.

The prosecution sought to adduce a Snapchat video recorded by YA in which he boasted about stabbing a person referred to as "AK" (identified as Akot Akot, also known as David Akot) the night before the alleged murder, on 31 August 2021. AK was a member of the group allegedly targeted in the 1 September violence. However, AK himself gave evidence in a pre-trial (Basha) inquiry that he was not stabbed at all on 31 August.

YA objected to the admission of this evidence, arguing that because AK denied being stabbed, the boast had no probative value. YA further submitted that even if it retained some probative value, it should be excluded under sections 135 or 137 of the Evidence Act 1995 (NSW) because the danger of unfair prejudice substantially outweighed its probative value.

  • Whether the Snapchat video in which YA boasted about stabbing AK had sufficient probative value, given AK's denial that any stabbing occurred.
  • Whether the evidence was admissible as "transactional" or "contextual" evidence, linking the events of 31 August to the charged offences on 1 September.
  • Whether, in the alternative, the evidence was admissible as coincidence evidence under section 98 of the Evidence Act 1995 (NSW).
  • Whether the danger of unfair prejudice to YA substantially outweighed the probative value of the evidence, warranting exclusion under sections 135 or 137 of the Evidence Act 1995 (NSW).
  • Whether any prejudice could be cured by judicial direction to the jury.

Decision

Hamill J's reasoning (with the full ruling delivered in a related judgment, R v Diallo & Ors (No 4) [2024] NSWSC 882) engaged with several important principles. On the question of probative value, the Court noted that AK's denial of being stabbed did not automatically strip YA's own admission of all probative value. The prosecution was entitled to rely on YA's own words as an admission and to invite the jury to accept that account over AK's denial. His Honour drew an analogy with domestic violence and gangland cases where victims frequently deny or refuse to confirm the offending, yet the prosecution's case is not thereby defeated.

The Crown's primary case was that the evidence was "transactional" or "contextual": YA's armed involvement the night before the murder was part of the same sequence of events and helped explain why he returned the following night. If YA was armed and an active, enthusiastic participant on 31 August, that bore on his state of mind, his intentions, and whether he was armed on 1 September. The prosecution also argued the evidence was relevant as coincidence evidence under section 98, contending that it was improbable YA would have a knife and use it one night but not have or intend to use one the next.

On the question of unfair prejudice, Hamill J acknowledged the force of YA's submissions. The evidence portrayed YA as someone who stabbed a person and then boasted about it on social media. In a murder trial where the deceased was also fatally stabbed, the risk of impermissible reasoning (that YA is "the type of person" who stabs people) was real. YA's counsel argued that the prosecution could not fairly put the stabbing as proven fact given AK's denial, creating a confusing and prejudicial dynamic for the jury.

However, Hamill J ultimately concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice and that any risk of misuse could be addressed by appropriate judicial directions. The ruling appears to have allowed the evidence to go before the jury, with the detailed reasoning and formal orders set out in the companion judgment, R v Diallo & Ors (No 4).

Orders Made

  • The Snapchat video evidence was not excluded on the basis of YA's objection under sections 135 and 137 of the Evidence Act 1995 (NSW).
  • The detailed ruling and formal orders were delivered in R v Diallo & Ors (No 4) [2024] NSWSC 882.

Key Takeaways

  • An accused's own social media admissions may be tendered as contextual or transactional evidence in a joint criminal enterprise trial, even where the alleged victim denies the underlying act. The Supreme Court found that a victim's denial reduces, but does not eliminate, the probative value of such admissions.

  • The Supreme Court admitted evidence of closely related prior conduct (occurring the night before the charged offences) as transactional evidence, holding that it explained the context in which the charged offences occurred and bore on motive, intention, and state of mind. Objections framed purely as discretionary exclusion under sections 135 and 137 of the Evidence Act faced a high bar where the evidence was closely connected in time and subject matter.

  • Where an alleged victim is uncooperative or provides contradictory evidence, the prosecution may nonetheless rely on an accused's own admissions to establish the relevant facts. This approach is consistent with the treatment of admissions in domestic violence and organised crime cases, where victims frequently deny or refuse to confirm the offending.

  • In addition to the primary "contextual evidence" argument, the prosecution served a coincidence notice under section 98 of the Evidence Act as an alternative basis for admissibility. The Court noted that even where the contextual evidence pathway succeeded, the coincidence notice provided a secondary admissibility route, reflecting a strategy available where the primary basis for admissibility is uncertain.

  • Significant weight was placed on the capacity of judicial directions to cure unfair prejudice when assessing discretionary exclusion. Objections on discretionary grounds required a clear articulation of why directions would be inadequate, rather than a mere assertion that prejudice was obvious.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 135, 137, 164

Cases:
- R v Diallo & Ors (No 2) [2024] NSWSC 853
- R v Diallo & Ors (No 4) [2024] NSWSC 882
- Salgado v R [2022] NSWCCA 58