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Supreme Court 8 August 2024

R v Diallo & Ors (No 8)

[2024] NSWSC 979

Assault & violence
CRIMINAL LAW WHACK MOLE PRE TRIAL HEARING APPLICATION FOR INSPECTION OF SCENE RELEVANT CONSIDERATIONS

Citation: R v Diallo & Ors (No 8) [2024] NSWSC 979
Court: Supreme Court of New South Wales
Date: 8 August 2024
Judge: Hamill J

Background

Four accused men are standing trial in the Supreme Court in connection with a series of stabbings that occurred in September 2021 across an area spanning approximately four blocks around William, Suffolk and Norfolk Streets and Richmond Road in Blacktown. The physical evidence from the incidents is spread across several suburban blocks, with weapons or parts of weapons recovered many hundreds of metres from where the initial incident began.

During pre-trial proceedings (referred to in the judgment as a "Whack-A-Mole" pre-trial hearing, a term used in this case to describe rolling pre-trial applications), one of the accused raised the prospect of a jury view of the scene. All parties either supported or took a neutral position on such an inspection, with none opposing it.

The court was also required to manage media attendance at the inspection, prompting a separate set of orders to protect jury anonymity and the integrity of the process.

  • Whether an order for a jury inspection of the scene should be made under s 53(1) of the Evidence Act 1995 (NSW)
  • Whether the statutory preconditions under ss 53(2) and 53(3) were satisfied, including the opportunity for parties to attend and the likely utility of the view
  • Whether the inspection should be video recorded
  • On what terms, if any, media representatives could attend the inspection

Decision

Hamill J treated the proposal as a formal application under s 53(1) of the Evidence Act 1995 (NSW) and made the order. Having received evidence from crime scene officers and a body of photographs, charts, diagrams and maps, his Honour was firmly satisfied that an inspection would be of great assistance to the jury.

The court addressed the s 53(2) requirements regarding party attendance. Although none of the four accused wished to attend in person, each would be represented by experienced counsel and a solicitor. Hamill J was satisfied there was a reasonable opportunity for the parties to attend, and that both the court and jury would be present.

On the s 53(3) considerations, the court found that the distances between locations of various incidents were significant to matters in issue, and that the view would help the jury make sense of a large volume of CCTV footage. The court also noted that one part of the scene had been materially altered since the events, but treated this as a minor consideration in the circumstances, noting it could be explained to the jury at the scene by the designated "shower" (the officer appointed to point out features of the scene) and through subsequent evidence.

The court declined to order video recording of the inspection, accepting that this would add considerably to its length and that a court reporter's transcript would provide an adequate record.

Orders Made

  • Order made under s 53(1) of the Evidence Act 1995 (NSW) directing a jury inspection of the scene.
  • No video recording of the inspection to be made.
  • Media to remain at least 100 metres from those participating in the inspection.
  • No media representative to communicate with any person associated with the view, including police, sheriff's officers, jurors, or court staff.
  • No photographs or still or moving visual recordings to be taken of any juror, lawyer, court staff member, or police officer.
  • No recording device capable of capturing audio from 75 metres or more to be used.
  • Any inadvertently captured audio or visual material to be destroyed immediately, with the court notified within 24 hours.
  • Media not to take any action that may interfere with the conduct of the inspection.
  • Any breach, particularly audio recording of jury communications or visual imaging of jurors, to be treated as contempt of court.

Key Takeaways

  • Under s 53(1) of the Evidence Act 1995 (NSW), a court may order a jury inspection of a scene where the statutory preconditions in ss 53(2) and 53(3) are satisfied, including reasonable opportunity for party attendance and likely assistance to the jury in understanding the evidence.
  • A material alteration to part of a crime scene does not necessarily defeat an application for a view; the court found this to be a minor consideration where the change could be explained to the jury by the designated "shower" and through oral evidence.
  • Accused persons who are in custody need not attend a jury view in person, provided they are represented by counsel and solicitors at the inspection.
  • The absence of any video recording does not deprive an inspection of adequate documentation; a court reporter's transcript was considered sufficient for the record.
  • Where media seek to attend a jury view, orders can be made to preserve jury anonymity and the integrity of deliberations, including strict distance requirements, prohibitions on recording, and contempt consequences for breach.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 53(1), 53(2), 53(2)(a), 53(3)
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- R v Diallo & Ors (No 6) [2024] NSWSC 917