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Supreme Court 29 July 2024

R v Diallo & Ors (No 6)

[2024] NSWSC 917

Homicide
CRIMINAL LAW APPLICATION FOR SEPARATE TRIAL UNUSUAL POSSIBLY UNIQUE CASE WHERE STATEMENT ALSO IMPLICATES CO ACCUSED WHERE STATEMENT NOT TENDERED AGAINST CO

Citation: [2024] NSWSC 917
Court: Supreme Court of New South Wales
Date: 29 July 2024
Judge(s): Hamill J

Background

Five men were jointly charged with murder and attempted murder arising from stabbings on 1 September 2021. All were arrested in February 2022. Four of the accused (the applicants) had been in custody for over two and a half years, while the fifth accused (YA) had been granted bail in April 2023.

Three days before his bail application, YA signed a lawyer-prepared statement that made admissions against his own interest and implicated each of his four co-accused. The prosecution case statement initially said this statement was "not relied upon in the Crown case." That changed abruptly on 2 July 2024, during the pre-trial hearing, when YA's Senior Counsel announced that "deep discussions" with the prosecution had produced an agreement: the statement would be tendered, and YA would give evidence.

The four applicants immediately sought orders under s 21(2) of the Criminal Procedure Act 1986 (NSW) for separate trials. They argued the tender of YA's statement in a joint trial would cause them substantial prejudice that no jury direction could cure, particularly given that YA's decision to actually give evidence could not be guaranteed.

  • Whether the four applicants should be tried separately from YA under s 21(2) of the Criminal Procedure Act 1986 (NSW) on the ground that a joint trial would cause them "positive injustice."
  • Whether the prejudice arising from the tender of YA's statement (which implicated the co-accused but was not admissible against them) could be adequately addressed by jury directions.
  • What weight to give Senior Counsel's repeated indications that YA would give evidence, given that an accused person is not compellable and is not bound by counsel's representations.
  • If the trials were separated, which trial should proceed first, given the applicants' lengthy remand in custody and the prosecution's interest in potentially calling YA as a witness at the applicants' trial.

Decision

Hamill J acknowledged this was an "unusual possibly unique case" for which neither counsel nor the Court could locate a direct precedent. The central tension was clear: YA's statement contained substantial admissions implicating all four co-accused, yet it was not admissible against them. If YA gave evidence, the prejudice could be significantly alleviated because counsel for the applicants could cross-examine him. But if YA changed his mind and did not give evidence, the result would be, in the prosecution's own words, "dire."

His Honour stressed that the decision to give evidence belongs to the accused, not to counsel. Senior Counsel cannot bind an accused to testify, no matter how firmly or repeatedly the intention is expressed. Hamill J characterised reliance on counsel's indication as "acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process." Circumstances may change at any point during a trial estimated at two to three months, and YA might simply change his instructions.

His Honour also found the statement itself could not simply be "adopted" by YA if he gave evidence. Much of it was expressed in general terms referring to multiple co-accused collectively doing or saying things, without specifying who did what. Even if YA testified, the evidence would need to be given in a more specific form to be admissible against each applicant.

Weighing the risk of irremediable prejudice, the length of custody, the estimated trial duration, and the absence of any enforceable mechanism to ensure YA would testify, Hamill J concluded that positive injustice would result from a joint trial. His Honour ordered that YA be tried separately from the four applicants. The prosecution indicated it would call the applicants' trial first (not YA's), which rendered moot the question of whether the Court could control the order of trials.

Orders Made

  • The four applicants were granted orders for separate trial from YA under s 21(2) of the Criminal Procedure Act 1986 (NSW).
  • The prosecution indicated the trial of the four applicants would proceed first.
  • Consequential orders regarding postponement of YA's trial became unnecessary given the prosecution's indication on the order of trials.

Key Takeaways

  • A late change in the prosecution's approach to tendering a co-accused's out-of-court statement, even one previously disclaimed as part of the Crown case, could fundamentally alter the prejudice calculus and justify separation of trials.

  • The Supreme Court was emphatic that the decision whether an accused will give evidence belongs to the accused alone and that circumstances can change at any point during a lengthy trial. Counsel's indication that an accused would testify could not be treated as a binding commitment or as a sufficient safeguard against prejudice.

  • Where statements implicate co-accused in collective, generalised terms (attributing actions or words to a group without identifying individuals), both admissibility and prejudice problems arise that jury directions may not be sufficient to cure, even if the maker of the statement gives evidence.

  • Over two and a half years of pre-trial custody weighed significantly in the separate trial application, particularly against the backdrop of a further two-to-three-month trial that might need to be aborted if the co-accused refused to testify.

  • Agreements between the Crown and one accused that fundamentally alter trial dynamics for co-accused carry significant risk, and where the basis for tendering such evidence proves invalid mid-trial, the consequences (including potential jury discharge) are severe.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 21(2)(b), 21(3), 29, 143
- Crimes Act 1900 (NSW), s 33
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Evidence Act 1995 (NSW), ss 26-29

Key Cases:
- R v Middis (Supreme Court (NSW), 27 March 1991, unreported)
- Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
- McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- R v Pham [2004] NSWCCA 190
- R v Ditroia and Tucci [1981] VR 247
- R v Noble [2002] 1 Qd R 432; [2000] QCA 523
- R v Hawkins; R v Garland [2023] NSWSC 1201
- Hanna v R [2022] NSWCCA 7