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Supreme Court 30 July 2024

R v Diallo & Ors (No 5)

[2024] NSWSC 914

Homicide
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE SIX HOURS OF RECORDINGS A MERCY WHERE ACCUSED CHARGED WITH MURDER DISCUSSION RELATING TO THE SAME

Citation: R v Diallo & Ors (No 5) [2024] NSWSC 914
Court: Supreme Court of New South Wales
Date: 30 July 2024
Judge(s): Hamill J

Background

Five co-accused were jointly charged with the murder of one man and the attempted murder of two others, arising from events on 1 September 2021. Three of the accused (referred to as YA, AG, and AD) were juveniles at the time of their arrest on 22 February 2022.

After their arrest, the three juveniles were transported to a juvenile detention facility in a police van fitted with a covert surveillance device. The device captured approximately six hours of conversation, producing a 166-page transcript. The prosecution sought to rely on around 20 discrete portions of this recording at trial, arguing they contained admissions and evidence of consciousness of guilt.

Each accused objected to the admission of various portions. The court was required to rule on each portion individually, assessing probative value against the danger of unfair prejudice.

  • Whether individual portions of the covert recording were relevant to the facts in issue under ss 55 and 56 of the Evidence Act 1995 (NSW)
  • Whether the probative value of each portion was outweighed by the danger of unfair prejudice, requiring exclusion under s 137 of the Evidence Act 1995 (NSW)
  • Whether particular statements constituted admissions or evidence of consciousness of guilt
  • Whether certain portions should be excluded in the joint trial but admitted in a separate trial (YA having been granted a separate trial)
  • Whether ambiguous or contextually obscure statements carried sufficient probative value to justify admission

Decision

Hamill J made seventeen individual evidentiary rulings across the identified portions. There was no single question of legal principle; each ruling turned on a fact-specific assessment of probative value versus the danger of unfair prejudice.

Several portions were excluded entirely. For example, Portion 1 (YA saying "I'm fucked" and AG asking "are you playing us?") was excluded because the statements were too ambiguous to support a consciousness of guilt inference and had a potent capacity for misuse. Similarly, Portion 4 was excluded because it revealed the police had planted the idea that YA was "the weak link," stripping the conversation of independent probative value. Portion 5 was excluded because the discussion was too obscure and risked the jury attributing a guilty mind based on speculation about meaning.

Other portions were admitted, sometimes with conditions. Portion 2 was admitted in part: YA's statement "I stabbed the cunt" was admissible (with appropriate jury directions to distinguish it from the charged offending on a different date), and the discussion about "staying staunch" and telling police they were victims supported a consciousness of guilt argument. However, AG's advice not to talk to police was excluded (reflecting ordinary legal advice), as was his description of YA as the "weak link" (sourced from police). Portion 6, in which AG appeared to acknowledge that police did hold evidence of planning, was admitted against both AG and YA as a potential admission with consciousness of guilt significance.

Portion 3 illustrated the complexity of joint trials: it was admissible against YA in his separate trial (his comments about a co-accused being "smart" and not "ratting us out" supported a consciousness of guilt argument) but was excluded from the joint trial because references to co-accused Diallo by his nickname "Unruly" carried a risk of incurable prejudice.

His Honour described the decision not to tender the full six hours as "a small mercy," noting the recordings were difficult to hear, punctuated by banging noises, and largely mundane.

Orders Made

  • Seventeen individual rulings on the admissibility of portions of the covert recording
  • Some portions excluded entirely (e.g. Portions 1, 4, 5)
  • Some portions admitted in full or in part (e.g. Portions 2, 3, 6), sometimes only against specific accused or only in a particular trial
  • The remainder of the six-hour recording (beyond the pressed portions) was not to be played to the jury
  • Specific jury directions were flagged as necessary for admitted portions (including anti-tendency directions and directions not to conflate events on different dates)

Key Takeaways

  • Admissibility of covert recordings may differ between co-accused and between a joint trial and a severed trial; the Supreme Court held that a statement admissible against one accused may nonetheless be excluded from the joint trial because of its prejudicial effect on another.

  • Vague or contextually unclear statements (such as "I'm fucked" or "are you playing us?") may lack sufficient probative value to survive a s 137 challenge, particularly where multiple innocent explanations exist. Hamill J scrutinised whether the inference the prosecution sought was truly rational before admitting any "consciousness of guilt" evidence.

  • Where police had introduced a relevant concept to the accused before the covert recording began (here, describing YA as "the weak link"), the apparent significance of later statements on that topic dissolved. The record of the police interview (tendered as Exhibit VD M) was critical in demonstrating that the statements reflected information fed by police rather than independent knowledge of guilt.

  • Advice not to speak to police, even between co-accused, is not inherently incriminating. The Court noted that such advice mirrors what lawyers give clients every day, and AG's statements to that effect were excluded on this basis.

  • In assessing a 166-page transcript, the Supreme Court evaluated individual portions on their merits rather than applying blanket rulings, noting that narrowing disputes through negotiation between counsel was both expected and productive.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Evidence Act 1995 (NSW), ss 55, 55(2), 56, 135, 137

Cases:
- R v Diallo & Ors (No 2) [2024] NSWSC 853
- R v Diallo & Ors (No 3) [2024] NSWSC 877
- R v Diallo & Ors (No 4) [2024] NSWSC 882
- R v Diallo & Ors (No 6) [2024] NSWSC 917
- R v Qaumi & Ors (No 54) [2016] NSWSC 1067