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Supreme Court 22 July 2024

R v Diallo & Ors (No 4)

[2024] NSWSC 882

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE DERIVED FROM TELEPHONES DETERMINATION OF RELEVANCE OVER 300 OBJECTIONS TO BE DETERMINED OVERVIEW OF RELEVANT LEGAL PRINCIPLES EVIDENCE TO BE TAKEN AT ITS HIGHEST

Citation: R v Diallo & Ors (No 4) [2024] NSWSC 882
Court: Supreme Court of New South Wales
Date: 22 July 2024
Judge(s): Hamill J

Background

Five accused persons are jointly charged with the murder of one man and the wounding of two others on 1 September 2021. The case is at the pre-trial stage, and the Crown sought to tender more than 1,400 items derived from the accused's mobile phones, including text messages, social media posts, notes, videos, and "drill rap" lyrics.

Defence counsel raised approximately 300 objections to this material, primarily under sections 135 and 137 of the Evidence Act 1995 (NSW). The objections centred on whether the probative value of the phone evidence (particularly artistic content such as drill rap lyrics) was outweighed by the danger of unfair prejudice to the accused. Pre-trial case management had significantly overrun its estimated timeframe, with the hearing extending into a fourth week.

  • Relevance: Whether various items from the accused's phones were relevant within the meaning of s 55 of the Evidence Act (that is, capable of rationally affecting the assessment of a fact in issue).
  • Exclusionary discretion (s 135): Whether probative value was "substantially outweighed" by the danger of unfair prejudice, confusion, or undue waste of time.
  • Mandatory exclusion (s 137): Whether, in a criminal proceeding, the probative value of prosecution evidence was outweighed by the danger of unfair prejudice to the defendants.
  • Admissions via group communications (s 87): Whether certain Snapchat and other group messages at or around the time of the alleged offences constituted admissions.
  • Drill rap lyrics as evidence: Whether artistic expression in the form of drill rap lyrics could be treated as probative of the accused's involvement, motive, or state of mind, and how the risk of misuse by a jury should be assessed.

Decision

Hamill J set out detailed guiding principles for resolving the 300-plus objections, acknowledging that it was impractical to provide individual reasons for every ruling. His Honour emphasised that, at the admissibility stage, evidence must be "taken at its highest" (that is, assessed on the assumption the jury will accept it). The court confirmed that ambiguous evidence capable of competing inferences is not automatically excluded, but there must be a rational basis upon which a jury could reason from the evidence to a fact in issue.

On the intersection of drill rap lyrics and s 137, the court identified the core tension: such lyrics may be relevant to issues like motive, group affiliation, or state of mind, but carry a significant risk that a jury will treat them as evidence of bad character or propensity to violence. Hamill J acknowledged this as "a fine balance." The court applied the exclusionary test item by item (or in groups of related items), weighing the specific probative contribution each piece made against the realistic danger of misuse by the jury.

In some instances, the court excluded evidence where the connection to the charged offences was too tenuous or where the prejudicial impact of violent or boastful lyrics outweighed any legitimate probative purpose. In other instances, items were admitted, particularly where communications were proximate in time to the alleged offences or shed light on the relationships and coordination between the accused. The court provided specific worked examples to illustrate how the principles applied to different categories of evidence.

Hamill J also commented on the "distinct failure in case management," noting that the parties' inability to resolve objections before the hearing had caused significant delay. His Honour was careful to direct no criticism at individual counsel or solicitors, acknowledging the difficulty of a large joint trial.

Orders Made

  • Rulings were made on approximately 300 individual objections (or grouped objections) to phone-derived evidence, with some items admitted and others excluded.
  • Certain items were rejected at tender after the prosecutor was called upon to justify their admission.
  • Items no longer pressed by the prosecution were struck from the evidence table.
  • Further pre-trial applications (including separate trial applications and a surveillance device admissibility argument) were flagged for subsequent determination.

Key Takeaways

  • The Supreme Court established a detailed framework for assessing the admissibility of artistic or expressive content, including social media posts and drill rap lyrics, under ss 135 and 137 of the Evidence Act 1995 (NSW), requiring a specific probative connection between the material and the charged offence rather than accepting general relevance to "gang culture" or character as sufficient.

  • Under the "taken at its highest" principle applied to s 137 assessments, ambiguity or competing inferences does not automatically reduce probative value. Hamill J held that exclusion required identification of a concrete and realistic danger of misuse by the jury, not merely the existence of alternative interpretations.

  • Significant case management challenges arose in this large multi-accused trial, where over 1,400 items and more than 300 unresolved objections consumed weeks of pre-trial time. The Court noted with approval instances where counsel resolved objections through consultation before the hearing, and the proceedings highlighted the consequences of inadequate early engagement with specific objections and their legal bases.

  • Communications in Snapchat and similar group chats proximate to the alleged offending were treated as capable of constituting admissions under s 87 of the Evidence Act 1995 (NSW), with a party's membership of, or silence in, such group chats considered relevant to the evidentiary significance of the communications.

  • Expert evidence concerning metadata, creation dates, and the limitations of phone extraction data played a material role in the Court's reasoning. Forensic extraction methodology and its constraints were treated as significant considerations in assessing both the reliability and admissibility of phone-derived evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 87, 87(1), 135, 137

Key Cases:
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365
- R v SJRC [2007] NSWCCA 142
- Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487
- R v Diallo & Ors (No 2) [2024] NSWSC 853
- R v Diallo & Ors (No 3) [2024] NSWSC 877
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371
- Webb v R [2012] NSWCCA 216; (2012) 225 A Crim R 550
- Laughton v R [2019] NSWCCA 74
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121