R v Diallo & Ors (No 6)

1. [1]

   By separate notices of motion filed during what has been a cumbersome pre-trial hearing, four of the accused men (AD, Panashe Karise, AG and Ibrahima Diallo, to whom I will refer collectively as “the applicants”) seek orders under s 21(2) of the Criminal Procedure Act 1986 (NSW) that they be tried separately from the fifth accused, YA. The applications were triggered when the applicants were notified that, contrary to previous indications, the prosecution would tender in its case a statement made by YA. That notification came in an email sent by junior counsel for YA and said “[YA] will be required for cross-examination”. Amended notices of motion were filed in court when counsel made oral submissions. [1] These sought additional or consequential orders including that the trial of YA be postponed and that the trial of the four applicants “continue forthwith”.

The background and trigger to the applications for separate trials

1. [2]

   There is a little to unpack in that opening paragraph. To explain the timing and basis of the separate trial applications and the circumstances in which the consequential orders became otiose, I will explain what (relevantly) happened until the point where the decision on the separate trial was reserved.

2. [3]

   The five accused men are charged jointly with the murder of Darcy Moore (count 1) and the attempted murders of EO and EC (counts 2 and 4) on 1 September 2021. There are alternative charges under s 33 of the Crimes Act 1900 (NSW) (counts 3 and 5) in relation to the attempted murder charges. The accused men were all arrested on 22 February 2022. The four applicants have remained in custody since that day. YA was granted bail by the Supreme Court on 21 April 2023.

3. [4]

   YA’s statement is dated 18 April 2023 and was obviously prepared by a lawyer. It was signed by YA three days before the bail application. [2] Investigating police became aware of the statement during the bail application on 21 April 2023 and asked for a copy. YA’s solicitors “subsequently” provided one. [3] YA’s statement formed part of the volumes of evidence served on all the accused as the case made its way through the process of committal from the Local Court to this Court. Until 2 or 3 July 2024, there was no suggestion that YA’s statement would form part of the prosecution case at the trial. To the contrary, the prosecution case statement of 8 May 2024 (Ex VD 3) said:

4. [5]

   Various forms filed by the accused, and some statements made by counsel during court mentions of the case in October 2023 and May 2024 indicated that separate trial applications may be pursued in particular circumstances. However, none of those potential applications were based on the possibility that YA’s statement would be tendered by the Prosecutor. By the first day of the pre-trial hearing (1 July 2024) each counsel was confident that there was no “serious possibility” of a separate trial application on the part of their client. [5] However, the next day Senior Counsel for AG informed the court:

5. [6]

   The pre-trial hearing adjourned early that day (before 1:00pm) and the next day Senior Counsel for YA informed the Court that, following “deep discussions” with the Prosecutor, it had been agreed at 5:00pm on 2 July 2024 that YA’s statement would be tendered in the prosecution case and that “we will be giving evidence”. [7] “We” was a reference to YA. This was the scheduled third day of the trial which was listed by Wilson J in the arraignments list back on 6 October 2023. Mr Terracini SC repeated “we will be giving evidence, and plainly we can be cross-examined about that statement.” Counsel for the applicants foreshadowed immediately that there would be a separate trial application.

6. [7]

   A loose timetable was set for the filing of notices of motion, evidence and submissions on the separate trial application. The pre-trial hearing continued with several evidentiary disputes and objections being ventilated. [8] Over the next two to three weeks the separate trial application was canvassed in broad terms several times and the applicants filed their documents and evidence. On 4 and 11 July 2024 Mr Terracini said some more things concerning his client’s intention to give evidence at the trial:

7. [8]

   In the course of discussions along the way, and with a view to arranging jury panels for either one long trial or two trials, the Prosecutor was asked on 5 July 2024 about the potential order in which the trials would occur. Junior counsel indicated:

8. [9]

   The fact that YA was at liberty on bail while the other four accused had been in custody for two and a half year was raised then and on subsequent occasions. Another significant consideration was also canvassed: if YA’s trial proceeded first, he could be called by the prosecution to give evidence on the trial of the four applicants. [14] As will be seen, his statement implicates each of his co-accused in the stabbings which occurred on 1 September 2021.

9. [10]

   On 18 July 2024, the lead Prosecutor (for want of a better expression) indicated or confirmed, “I may well present the YA indictment first” and “we’d want YA to go first”. [15]

10. [11]

    After the evidence and written submissions were filed and marked, the arguments proceeded over two days. [16]

11. [12]

    On the second day of submissions on the present applications (23 July 2024), the Prosecutor indicated that, if the trials were separated and contrary to previous indications, he would call the applicants – not YA – for trial first. [17] This relieved me of the need to determine (if an order for separation was made) whether the Court had power to control the order in which the Director of Public Prosecutions called the accused for trial (a matter upon which there was considerable discussion on the first day of oral arguments) and, if it did, what the interests of justice demanded in the unusual circumstances of the case. There were weighty considerations on each side of the scale. On the one hand, the applicants had been in custody for a very long time while YA is on bail. On the other, proceeding with YA’s trial first would allow the Prosecutor to call YA at the proposed joint trial of the other four accused.

12. [13]

    However, the issue of the order of the trials would only be an issue if an order was made to separate the trial. I now turn to that issue, which is complex and difficult, at least at a factual level.

13. [14]

    One final matter about this chronology should be noted. Contrary to the email notifying the applicants that the statement was to be tendered, YA cannot be “required for cross-examination”. These are criminal proceedings. YA is not a compellable witness. He is not the deponent of an affidavit in civil proceedings who might be “required for cross-examination”. Nor can there be any binding or enforceable “undertaking” by a lawyer to the effect that their accused client will give evidence. The most that can be said is that the prosecution decided to tender the statement on the understanding that YA will give evidence in the trial. The precise circumstances and content of the “deep discussions” which led to the agreement between two of the six parties to these proceedings has not been disclosed. Whether the late decision to tender the statement is, as Senior Counsel for AG put it “irregular”, the circumstances are unusual and the timing extremely inconvenient.

The issue of prejudice in the present cases and an unusual factual circumstance

1. [15]

   Before indicating the legal principles and then dealing with the finer detail of the facts and evidence, I should canvass some broad factual circumstances and legal propositions.

2. [16]

   First, the tender of YA’s statement will create prejudice in a joint trial to the four applicants. The experienced Prosecutors do not contest this proposition. I will come back to the detail, but YA’s statement makes several admissions concerning the events of 31 August 2021 and 1 September 2021 against his own interests, and also implicates each of his co-accused in various ways and to varying degrees.

3. [17]

   Second, the statement is not admissible against any of the co-accused. Even if YA gives evidence, many parts of the statement are in inadmissible form and he would not be permitted to give evidence in the terms of his statement or simply “adopt” the statement for the purpose of the case against the applicants. This is not merely a technical issue concerning the form of the statement. It is a matter of substance. The statement often makes reference to more than one co-accused doing or saying something expressed in general terms. If YA were to give evidence he would need to indicate (if he could) who said or did these things and what was actually said. This is not to insist on the evidence being given in direct speech, but to require some certainty in the evidence.

4. [18]

   Third, speaking generally, the “fact” that YA will give evidence and therefore be available for cross-examination by counsel for the accused has a strong potential to alleviate the prejudice of his statement being tendered. However, two things must be noted. First, YA is not compellable, and it cannot be predicted with any degree of certainty that he will ultimately give evidence. Second, as noted in the last paragraph, the statement itself could not be tendered in its current form against the applicants.

5. [19]

   As has been seen, Mr Terracini has repeatedly indicated that YA will be called to give evidence. However, the applicants are correct to argue that Senior Counsel cannot bind his client or make an enforceable undertaking to call him to give evidence at the trial. Circumstances may change or YA may simply change his instructions. The Prosecutor acknowledges that, if this were to occur, it would create a “dire” situation. [18] It would certainly provoke a renewal of the current applications (if they are refused at this point) and consideration would have to be given to a discharge of the jury at least in respect of four of the accused. That possibility must be considered in the context that the trial is estimated to be one of two-to-three months duration.

6. [20]

   The present application must also be considered against the uncontroversial proposition that, absent the tender of the statement, if YA was to give evidence generally in accordance with that statement (putting aside issues of form) and thereby implicated his co-accused, there would be little substance in an application for a discharge of the jury or to separate the trials at that point. The issue arises here and now because the prosecution intends to tender the statement but only in its case against YA. There are sound reasons for the Prosecutor to tender the statement. It contains significant admissions on the part of YA; on one view it admits the elements of murder by way of an extended joint criminal enterprise. It may give rise to issues of duress (although Mr Terracini conceded it “falls short of duress in a murder”) [19] and, perhaps withdrawal from the enterprise or a lack of participation in the enterprise. Even so, it is powerful evidence in support of the prosecution case against YA.

7. [21]

   Despite the diligence of six highly capable legal teams, my staff and the Supreme Court librarians, nobody has found an authority in which a separate trial application was considered by reference to an understanding that the accused person from whom separation is sought has indicated, through counsel, that they would give evidence at the trial.

8. [22]

   The extent of the prejudice to the remaining accused must be considered in those unusual, if not unique, circumstances.

An overview of relevant legal principles

1. [23]

   As to the relevant legal principles, I have been assisted by the thoroughness and diligence of counsel on both sides. Many cases have been brought to my attention and counsel have presented nuanced submissions on the current state of the law. The cases demonstrate that the outcome of an application such as the present turns on the circumstances of the case. I accept that the general principles remain well-settled. There are some fundamental rules which guide the exercise of the discretion but, in the end, it is an examination of the facts of the case which is critical.

2. [24]

   The High Court considered the issue in McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1 (“McNamara”), especially at [30]-[42] (Gageler CJ, Gleeson and Jagot JJ) and [112]-[114] (Gordon and Steward JJ). The Court determined authoritatively at [31]-[34] that s 21 of the Criminal Procedure Act is the guiding statutory provision and that s 29 does not apply to proceedings “on indictment”. There was debate about the following passage in the judgment of the Chief Justice, Gleeson and Jagot JJ at [42] (footnotes and citations omitted):

3. [25]

   The Prosecutor submitted that this passage may have the effect of setting the bar higher than was contemplated in earlier cases. I was also initially preoccupied by that view. However, defence counsel took me patiently to the authorities cited by the High Court (which I omitted from the passage above) including R v Ditroia and Tucci [1981] VR 247; R v Jones and Waghorn (1991) 55 A Crim R 159; R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248; Caleo v R [2021] NSWCCA 179; (2021) 290 A Crim R 352. That analysis satisfied me that the plurality was essentially stating the law as it has been understood and applied for many years, since at least Justice Hunt’s important statements of principle in R v Middis (Supreme Court (NSW), 27 March 1991, unrep) (“Middis”).

4. [26]

   In R v Hawkins; R v Garland [2023] NSWSC 1201 I set out the principles at a little length. Apart from my erroneous reference to s 29, [20] I do not understand anything I said there to be controversial and now repeat that summary of the law:

5. [27]

   The Prosecutor took me to the judgment of Adamson J (as her Honour then was) in R v Houda [2022] NSWCCA 179 (“Houda”) at [225]-[255], a judgment with which Ward P and Dhanji J agreed. Her Honour acknowledged at [252] that “the three conditions in Middis are met in this case”. Even so, the Court was not persuaded that any miscarriage was occasioned by the failure of the trial court to separate the trials. Ms Avenell SC was correct to observe that in Houda did not involve an examination of the correctness of the decision not to accede to the separate trial application but was concerned with whether, in retrospect, a miscarriage had occurred. Even so, the decision demonstrates that there is no hard and fast rule that ticking the boxes of the criteria referred to in Middis will automatically result in an order for a separate trial. Rather, the trial Judge is to exercise a discretion based on the individual facts and circumstances of the case. Adamson J noted at [228] that in performing the assessment of whether there had been, in retrospect, an “injustice to the accused in the manner the trial unfolded” it was important that “the directions given by the trial judge must be taken into account”. [21]

6. [28]

   Without meaning to be exhaustive, the following propositions are important in determining the present application:

The statement of YA

1. [29]

   I will now describe and analyse aspects of YA’s statement which provokes the current application.

2. [30]

   I said earlier, echoing the submissions of counsel on both sides, that YA’s statement was clearly prepared by a lawyer. That observation was based on the use of language such us:

3. [31]

   From a comparison with other evidence tendered during the pre-trial hearing in which YA is heard to speak, it is apparent that the language in the statement is not his. [27] This is not to criticise his lawyers or YA himself. Nor does it raise doubts about the admissibility of the document against YA himself. However, it serves to underscore one of the significant differences between the tender of such a statement in a joint trial and the situation if YA were called to give evidence.

4. [32]

   When it comes to YA’s account of what his co-accused and others said, it is unlikely to bear close resemblance to the actual words spoken. It is also the case that many of the conversations are recounted in something other than direct speech. I accept the Prosecutor’s submission that this does not render the statement inadmissible, [28] but the evidence may not reflect what was actually said and is not in the form that would be expected if YA testifies in the trial.

5. [33]

   YA’s statement includes several significant admissions. These include, but are not limited to:

   1. (1)

      He is, or was at relevant times, a member of a street gang called MOB.

   2. (2)

      On 31 August 2021 he travelled with other members of MOB to William Street, Blacktown to the home of Darcy Moore.

   3. (3)

      At that time, he was aware that two of his confederates were armed with knives and he had previously seen “knives and knife casings” in AD’s vehicle.

   4. (4)

      The men arranged to purchase drugs from Mr Moore.

   5. (5)

      Near the Moore home the driver of the car swerved in an attempt to “sideswipe” Mr Moore and another member of a rival group known as “Murda”.

   6. (6)

      Two of his group chased some of the Murda people down the street.

   7. (7)

      Afterwards, one member of his group claimed to have stabbed a man called Joshua.

   8. (8)

      Members of his group later discussed returning to the Moore house for a second confrontation “with the intention of inflicting serious injury and death upon members of Murda”. He was aware of those discussions and the planning that followed.

   9. (9)

      With that knowledge he (i) attempted (but failed) to acquire a “legal” car to be used to transport members of the group to the Moore house and (ii) agreed to, and did, return with the group to the Moore house on 1 September 2021 “to deal with the situation”.

   10. (10)

       He was present outside the Moore house when attempts were made via social media to get members of Murda to come outside.

   11. (11)

       He was part of a group who stood outside the Moore home shouting for the occupants to come outside.

   12. (12)

       After an exchange of messages between the groups, he heard members of his group reminding everyone “of their intention to inflict harm” on members of the other group and one member of the group saying “we should ching [stab] some of these guys”.

   13. (13)

       He was aware “that many of the individuals in the car had knives” and that three of them were “in an extremely agitated state”.

   14. (14)

       On return to the Moore home, he and others “alighted from the vehicle” 50-100 metres from the house.

   15. (15)

       He did not leave the vicinity until seven or eight members of the Murda group came out of the home.

   16. (16)

       He met with and communicated with members of the MOB gang after he was released on bail. This was in breach of his bail undertaking.

   17. (17)

       He was a party to group communications after the event when members of MOB boasted about “inflicting fatal injuries.”

6. [34]

   Those admissions are capable of establishing that YA joined a criminal enterprise to inflict harm or to stab or “inflict serious injury and death” on members of the other group and that he participated in the enterprise by attempting to obtain a car and by attending the Moore home on 1 September 2021.

7. [35]

   His knowledge that members of the group were carrying knives and were “extremely agitated” is capable of giving rise to an inference that he was aware of the real (not remote) possibility that someone from the group would inflict fatal injuries with a murderous intent.

8. [36]

   The statement, as Mr Terracini acknowledged, is unlikely to give rise to a defence of duress because there is no evidence that YA was threatened (expressly or impliedly) with death or really serious injury. This is not to pre-judge the issue of whether duress might be left to the jury but based on the contents of the statement Mr Terracini’s concession is correct.

9. [37]

   The statement may leave open questions about whether YA participated in the joint criminal purpose or whether he withdrew from the enterprise. YA claims he was “the first person to flee” and that he does “not know what occurred” after he ran away. However, the statement does not suggest he “withdrew” in the sense that his “countermand or withdrawal” was accompanied “with such action as he can reasonably take to undo the effect of his previous encouragement or participation”: White v Ridley (1978) 140 CLR 342; [1978] HCA 38 at 350-351 and Tierney v R [2016] NSWCCA 144 at [17], [22]; cf R v Sully (2012) 112 SASR 157; [2012] SASCFC 9 at [75]. In Tierney v R, the Court of Criminal Appeal found no fault with a direction that an accused who relies on their withdrawal from a joint criminal enterprise “must take all reasonable and practical steps to prevent the commission of the crime and to frustrate the joint enterprise of which he had been a member”.

10. [38]

    The foregoing analysis demonstrates that the statement is highly probative of YA’s guilt and is clearly admissible against him. The Prosecutor correctly acknowledges that if it is to tender the inculpatory parts of the statement, it must also tender any parts that are exculpatory or favourable to the accused: Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23.

11. [39]

    However, the statement is not admissible against any of YA’s co-accused. It is hearsay, it is not in proper form in many respects, it contains ambiguities, it contains inadmissible opinion evidence and the manner and circumstances in which it was created is not disclosed or clear.

12. [40]

    The statement implicates each of the applicants in various ways. In some instances, the statement is unclear as to whom the allegations are directed. For example YA speaks of “various members” communicating about “inflicting serious injury and death upon members of Murda”.

13. [41]

    The statement provides direct evidence that AD was a member of the street gang known as MOB, that there were often knives and knife casings in AD’s car and that AD said that he had a knife on 31 August 2021.

14. [42]

    YA asserts that AD said he intended to “inflict harm” on Darcy Moore and other associates of Murda, was present when there was an attempt to sideswipe Mr Moore and another person, and that AD exited the car and chased two Murda members down the street. Upon returning to the car, AD wrote in a group chat that “he was not able to stab anyone during the altercation”.

15. [43]

    YA says that, on 1 September 2021, AD invited YA for a drive to “deal with the situation in person” and asked him to sort out a “legal” [car]. AD (with another MOB member) said they “could not let this slide” and confirmed their “intention to inflict harm on some of the guys”. AD was in an “extremely agitated state” and said:

16. [44]

    The statement includes an allegation that AD (with another member of the group) led the way on foot from the car to the Moore house. YA saw members of Murda get to about a metre away from AD.

17. [45]

    It is also asserted that, after 1 September 2021, AD boasted about getting “Orbski down” and said “it was a proper night. There were some good chingings [stabbings].” [29] YA states that, in a group chat with the five accused men, AD said “I got the main point” and YA explained that he understood this to mean “AD was the one who had fatally stabbed the deceased”. YA also stated that, in the context of concocting alibis, AD suggested the group claim that the incident was a “drug deal gone wrong”.

18. [46]

    YA’s statement includes the assertion that Mr Karise is a member of the street gang known as MOB, that on 31 August 2021 he told YA that he had a knife and that he intended to “inflict harm” on Darcy Moore and his associates. YA said that Mr Karise swerved his car towards Darcy Moore and another person in an attempt to run them down. After exiting his car, Mr Karise chased the two people down the street. YA says that, in person and in a group chat, Mr Karise boasted about stabbing “Joshua”.

19. [47]

    YA states that on the evening of 1 September 2021, Mr Karise encouraged AG to message Mr Moore on Instagram mocking him for not coming outside earlier in the night. He claims that Mr Karise said, “they could not let this slide”, repeated that he intended “to inflict harm on some of the guys” and said, “I’m not going to leave here without getting some of these boys down”.

20. [48]

    He says that Mr Karise parked his car 50-100 metres from the Moore house and was one of the first to exit the car and approach the house.

21. [49]

    YA says that Mr Karise messaged him regularly after the incident, asking how he was and whether he had heard from the police. In a group chat involving the five accused, Mr Karise wrote that he got “5 points” during the 1 September incident. YA expressed the opinion that the communications after the incident were an attempt to check up on him to see if he was communicating with the police.

22. [50]

    YA’s statement implies (at least) that AG was a member of MOB. That implication arises from YA saying that “members of MOB” discussed certain things and AG is alleged to have been part of such conversations.

23. [51]

    The statement says that AG was involved in planning the attack on 1 September 2021 and, with or like AD, requested YA to organise a “legal” car.

24. [52]

    Either AG or AD was said to have sent an Instagram message to a member of Murda, goading them to come out of the Moore house and face MOB. When nobody came outside, YA stated that AG sent a message to Darcy Moore, mocking him for not coming outside.

25. [53]

    There were discussions among the members of MOB about their intention to inflict harm. YA states that he and AG expressed concerns about police attending but eventually they “did say that we would do whatever we needed to”. AG allegedly said “Yeah, you guys are right, let’s do it” after which AD said they should “ching [stab] some of these guys”.

26. [54]

    The statement asserts that AG was present when the group returned to the Moore house on foot and when seven or eight members of the Murda group came outside.

27. [55]

    YA stated that, sometime after 1 September 2021, AG met with and communicated with members of MOB and boasted about what had occurred that night and, like AD, spoke of the “good points” they scored.

28. [56]

    AG discussed potential “alibis” with the others and agreed “[Moore] was a drug dealer. The police should know this”, suggesting it was a plausible explanation for the incident. YA also stated that AG was a party to group chats where the group boasted about “inflicting fatal injuries” and where AG boasted that he had scored three points.

29. [57]

    The statement’s capacity to incriminate Mr Diallo is less straightforward, although Mr Wilson SC submitted it is more “insidious” as a result. I do not accept that submission. Reference to Mr Diallo is less prominent in the statement but YA places Mr Diallo at the scene of the alleged murder.

30. [58]

    YA states that Mr Diallo was part of the group who stood outside the Moore house on 1 September 2021 and shouted for the occupants to come outside. When they returned to the vehicle, YA says Mr Diallo was in an “extremely agitated state” and (by necessary implication) present during discussions about some of the participants’ intention to inflict harm.

31. [59]

    The statement says that Mr Diallo returned to the Moore home on foot with the other MOB members and was still present, albeit retreating with YA, when seven or eight members of the Murda group came out of the house.

32. [60]

    YA asserts that after the events of 1 September 2021, Mr Diallo was a party to group communications where members of MOB boasted about “inflicting fatal injuries”.

33. [61]

    There is no dispute that significant prejudice will attend the tender of YA’s statement in the prosecution case. The statement is not admissible against AD, AG, Mr Diallo or Mr Karise but contains incriminating evidence against each of them. While directions can be formulated to ameliorate that prejudice, the extent to which those directions will achieve their end is difficult to predict. To understand the nature and extent of the prejudice, it is necessary to consider the case against each of the applicants more closely.

34. [62]

    During the argument on these applications, the Prosecutor tendered a revised prosecution case statement (Ex VD 24) as well as a series of edited transcripts of telephone intercepts to be admitted in Mr Karise’s case (Ex VD 25). While the intercepts are still subject to discussions between counsel, Mr Smith indicated I could determine the separate trial application by reference to the document in its current form. In addition to those documents, I have considered the table of items derived from the telephones of the five accused (Ex VD 14A) and made evidentiary rulings on around 300 of those items: R v Diallo & Ors (No 4) [2024] NSWSC 882. I have also received into evidence several video and audio recordings. I have the defence disclosures under s 143 of the Criminal Procedure Act and evidence included in the material filed by the applicants in support of the present notices of motion and annexed to their solicitors’ affidavits.

35. [63]

    My knowledge of that material gives me some – although not a complete or perfect – insight into the prosecution case against each applicant and the issues to be raised in their defence.

36. [64]

    AD is alleged to have stabbed Darcy Moore and he admits that he did stab him. However, he will raise the issue of self-defence and denies that he acted with a murderous intention or was part of the joint criminal enterprise alleged. The other applicants are said to be liable for the murder on the basis of a joint criminal enterprise or extended joint criminal enterprise.

37. [65]

    Mr Karise is alleged to have stabbed EO and has admitted to doing so. However, he denies the specific intention alleged or that he was part of the joint criminal enterprise alleged by the prosecution and will raise self-defence. The other applicants are alleged to be liable for the stabbing of EO based on joint criminal enterprise or extended joint criminal enterprise.

38. [66]

    Each of the applicants is alleged to be responsible for the wounding with intent of EC based on principles of joint criminal enterprise and extended joint criminal enterprise. Each denies being part of the common purpose alleged by the prosecution, having the requisite intention and common purpose or the foresight that another person would commit the essential elements of the charged offences. The issue of self-defence may also arise.

39. [67]

    There are many common issues in the case of each accused although there are differences between the cases of AD and Mr Karise, each of whom admits stabbing one of the victims, and those of AG and Mr Diallo who are either not alleged to have committed a stabbing or “take issue” with such a suggestion. One issue is whether AG and Mr Diallo were “present pursuant to any joint criminal enterprise,” and AG “is not to be taken as admitting” that he was in the “immediate presence” of any of the stabbings.

40. [68]

    The case against each of the accused is, at least with respect to the main facts in issue, largely circumstantial. However, it could not be said that any of the cases are particularly weak. For example, the telephone intercepts to be admitted against Mr Karise include some admissions and evidence that gives rise to a consciousness of guilt. The communications by AG shortly before the stabbings might be considered powerful evidence in his case (and the others).

41. [69]

    An issue pressed strongly and cogently on behalf of AG was the fact that YA’s statement purports to interpret (or provide his subjective understanding of) many electronic and other communications between the group. Accordingly, the jury would be left to draw inferences as to the meaning of those communications on two different bases. In YA’s case, it would be able to use his stated understanding of the meaning of the communications while, in the applicants’ cases, it would engage in purely circumstantial reasoning. This is, as Ms Avenell submitted, analogous to the situation which troubled the members of the court in Pham. [30] On the other hand, as the Prosecutor submitted, it is somewhat different to the situation prevailing in Pham where the jury was called upon to make credibility assessments of the same witness by references to different bodies of evidence.

The Middis factors and s 21 of the Criminal Procedure Act

1. [70]

   The remarks of Hunt J (as his Honour was) in the case of Middis have been cited and applied on many occasions including in the judgment of Gordon and Steward JJ in McNamara. [31] However, the “relevant principles” articulated in that case are not a substitute for the words of s 21(2). As the decision of the Court of Criminal Appeal in Houda shows, the fact that all three factors referred to in Middis coalesce in a given case will not result necessarily in a separate trial. Equally, the fact that one or all of those considerations do not exist does not automatically result in the refusal of an application to separate the trials. The focus is on the court’s opinion that an accused person “may be prejudiced or embarrassed in his or her defence” (s 21(2)(a)) or that “it is desirable” that an accused person be tried separately for any one or more of the offences. In assessing the prejudice, the availability of directions must be considered and the policy considerations in favour of a joint trial are powerful in the case of joint criminality. In cases of joint criminality, the applicant must convince the court they will suffer a “positive injustice”.

2. [71]

   Even so, it will often be helpful to consider the “three conditions in Middis” as they were described in Houda. In the case of each of the applicants here, the three conditions exist to a greater or lesser extent.

3. [72]

   As to the first condition, it is difficult to make a relative assessment of the strength of the case because the evidence against each accused is quite different. However, as demonstrated at [33], the tender of YA’s statement makes the prosecution case against him very strong. I would consider the case against AG and Mr Diallo to be “significantly weaker”, although AG’s communications around the time of the offence may be considered to be powerful evidence against him. The assessment is more complicated in the case of Mr Karise and AD because each of those men will admit that they stabbed one of the victims. The telephone intercepts of Mr Karise speaking with Nettie Foya (“I did want to dip someone … now I feel like I’m calm”) and Phillip Nkpolukwu (“one of the YG’s might snitch”) create a strong circumstantial case. In Pham, Adams J doubted at [40] that the relative strength of the case against each accused was a particularly relevant consideration.

4. [73]

   In each instance, the second Middis condition is firmly established. The evidence in the prosecution case will contain material – YA’s statement – that is “highly prejudicial to the applicant although not admissible against him”. That factor must be considered against the indication by Senior Counsel for YA that he will give evidence in the trial. However, as will be seen, that will not make the statement itself admissible. Contrary to the email notifying the applicants that it would be tendered, he cannot be “required for cross-examination” and his evidence will not be given by the tender or adoption of his statement.

5. [74]

   There is, in accordance with the third factor discussed by Hunt J, a “real risk” that the case against each of the accused will be made substantially stronger by the evidence contained in YA’s statement.

6. [75]

   It is necessary then to consider the significance of the unusual circumstance that Senior Counsel has foreshadowed that YA will give evidence in the trial.

The prospect that YA will become a witness and its capacity to eliminate or reduce the prejudice

1. [76]

   As I have said, if YA was called as a witness and gave evidence which inculpated the applicants, there would be no basis to separate the trials, barring some unusual and highly prejudicial circumstance. In that circumstance, the evidence would be admissible in the applicants’ cases and their counsel would have the opportunity to cross-examine YA.

2. [77]

   The prospect that a co-accused may give evidence unfavourable to another is always a possibility in a joint trial but is not usually known in advance because (i) as a matter of professional practice, although not always, the final decision whether an accused will give evidence is usually made at a late stage in the trial and (ii) as a matter of tactics, an accused who will incriminate their co-accused does not generally broadcast that fact before they venture into the witness box.

3. [78]

   It is also to be remembered that “the decision as to whether an accused person gives evidence at his trial is for that person, not his counsel”: Hanna v R [2022] NSWCCA 7. [32]

4. [79]

   The applicants submitted that the decision as to whether to separate the trial cannot be made on the basis that YA will give evidence, even if I accept that that is his present intention. I have already set out the occasions when, and the firmness with which, Mr Terracini informed the court of YA’s intention to give evidence in the trial. [33] Despite these assurances, and without doubting the veracity with which they were proffered, one real possibility is that YA will change his mind during the trial. That is, contrary to the present indication, YA may not give evidence.

5. [80]

   As the Prosecutor submitted this could result in a “dire” situation. I am not sure that it is correct (as submitted in writing) [34] that it would place YA in the situation that he would have to continue with the trial without legal representation but I suppose that is one possibility.

6. [81]

   What is close to certain is that each of the applicants would seek a discharge of the jury and renew their application for an order under s 21(2). There would be considerable force in those applications. Each accused would have conducted their case on the expectation that YA would be available for cross-examination and made forensic choices based on the expectation that evidence generally in accordance with YA’s statement, but in admissible form, would ultimately be admitted against them.

7. [82]

   In considering that possibility, it is to be remembered that the trial is expected to run for 2-3 months and that, by the time the prosecution case closes, each of the applicants will have been in custody for more than 2½ years. To adopt the Prosecutor’s adjective, albeit to a different aspect of the circumstances we are attempting to anticipate, it would be a “dire” situation for four young accused men to face the prospect of their trial being aborted through no fault of their own and having to stand for trial again at some stage next year. As with the question of whether YA will give evidence, it is not possible to predict the outcome of any possible application for discharge or separate trial that may follow many weeks down the track. It will depend on the circumstances as they unfold.

8. [83]

   The Prosecutor suggested that he will not tender the statement until late in the trial, when YA’s decision about giving evidence may be more certain. If YA has by then changed his mind, the statement would not be tendered. It was also suggested the order in which the defence cases are to proceed could be changed, meaning that the tender of the statement will not occur until a relatively short time before YA ventures into the witness box. YA is currently the last named accused on the indictment, meaning his case would be presented last. I am not sure whether this would involve an amendment to the indictment to change the order in which the accused’s names appear, or whether each accused is expected to reach an agreement as to a different order of cross-examination, presentation of the case, and (perhaps critically) the order of addresses. The Prosecutor’s ideas and suggestions are resourceful but whether they can be accommodated on a practical or procedural level, I do not know. They have a capacity to reduce the potential for prejudice or unfairness, but they cannot eliminate it.

9. [84]

   One of the matters urged by counsel for Mr Karise is that, even if YA gives evidence, his statement will not be admissible against the applicants. This is because it contains assertions in inadmissible and ambiguous form, contains inadmissible opinion evidence and evidence of the bad character of the applicants. Mr Smith addressed carefully the many matters that fall into these categories and his written submission included a table which set out 18 significant examples. [35] There are other instances where YA’s statement canvasses, paraphrases or purports to explain communications that are not pressed by the Prosecutor in the case against the co-accused.

10. [85]

    Mr Smith stressed that the “undertaking” to call YA does not obviate the risk of an unfair trial because the assumptions underlying the proposition that it would do so are invalid. I have placed “undertaking” in inverted commas because no such undertaking could be, or has been, made. [36] I accept Mr Smith’s submissions (which are common to the other applicants) that it cannot be assumed that (i) YA will give evidence despite the current indication, (ii) his evidence will reflect his statement, and (iii) the totality of the statement will become admissible.

11. [86]

    To allow the joint trial to continue based on the first two of those assumptions, the Court would act on a predictive evaluation based more on hope or optimism than on its understanding of the fluidity and unpredictability of the criminal trial process. As to the third assumption, it can confidently be predicted that the totality of the statement will not be admitted in the trial of any of the applicants. While some of the problems with form and ambiguity might be rectified in oral evidence, the opinions, bad character evidence and YA’s “suspicions” and subjective understanding of conversations and communications (all of which were made more than a year after the event) would not be admissible evidence except in his own case (in which that evidence will constitute admissions).

12. [87]

    As Mr Wilson submitted, there are many reasons why YA may change his mind whether to give evidence. He may observe the cross-examination of other witnesses and decide he is better off not facing cross-examination at the hands of five skilled and experienced barristers. He may decide the evidence has fallen well for him and that his evidence will add little to assist his case. He may come to understand better the risks of giving evidence that have been explained to him by counsel but without reference to the reality of observing a witness under interrogation in the courtroom. As Mr Smith submitted, if YA changes his mind, he “is not a compellable witness and he has no obvious motivation to avoid the discharge of the jury.” [37]

13. [88]

    There will also be issues arising from the order of cross-examination and the forensic difficulties in confronting (or deciding not to confront) issues raised in the statement. For example, it would seem odd to a lay jury that counsel for one of the accused does not cross-examine on certain matters in the statement that are inadmissible in their case or which had not been pressed against them by the Prosecutor (who would cross-examine YA last). Examples of such matters are ambiguous statements as to who said certain things, evidence of bad character or tendency, and inadmissible opinion evidence. These are matters that could be managed by changing the order of cross-examination, or allowing further questioning, [38] and – to a degree, maybe – by judicial direction.

14. [89]

    I am satisfied that the prospect that YA will give evidence has a capacity to reduce the potential prejudice that inheres in the tender of his statement. However, that prospect does not eliminate the prejudice and will make the directions to the jury even more complex. Moreover, in deciding how the discretion in s 21(2) should be exercised, I must approach the possibility that YA will become a witness in around two months’ time with circumspection because of the matters I have catalogued above and those raised by counsel appearing for the applicants.

The capacity of directions to cure the prejudice

1. [90]

   The evidence that has been subject to rulings and discussion over the four weeks of the pre-trial hearing demonstrate that directing the jury in the trial will involve considerable complication as it is. That is because there are many parts of the evidence which are admissible against one or more of the accused men but not others. There is nothing unusual about this in a joint trial.

2. [91]

   The tender of YA’s statement creates a layer of complexity which is somewhat unusual, although far from unique. That is because it will, amongst other things, mean that the inferences to be drawn from the whole of the evidence – including the large schedule of communications, videos and posts derived from the telephones – will be evaluated in his case on a different basis to that which will apply in the case of each of the applicants. In the cases of the applicants, the process of reasoning will be entirely, or almost entirely, circumstantial. In YA’s case, his admissions will eliminate the jury’s need to exercise caution in drawing inferences about what some of the communications mean because he admits what certain words meant to him. These admissions will not be admissible in the case of any of the applicants.

3. [92]

   It is possible to formulate directions to the jury to explain that there is different evidence available in the case against each accused, that each case must be determined on its own merits and to identify what evidence is admissible against each individual. Such directions could include that there may be different processes of reasoning applicable where there is direct evidence (in the form of admissions) in one case but not in the others. It is possible to verbalise a direction that the jury should ignore YA’s admissions in interpreting the communications and messages in the case of the applicants. However, the question is whether the jury would be capable of complying with such directions when, in YA’s case, it will no doubt act on what he says the messages meant. Similarly, when it takes into account YA’s stated fears of the other members of the group, his reasons for those fears and his descriptions of their conduct in assessing whether he was part of (or withdrew from) the joint criminal enterprise or merely going along with the others, it is difficult to expect that the jury – even with the best intentions – would then put aside whatever findings it makes when it comes to consider the intentions and motivations of the other accused.

4. [93]

   In short, while directions can be formulated in principle and in practice, those directions would be quite confusing, may appear to a lay person to be contrary to common sense, and may involve such mental dexterity that the jury will be influenced unknowingly even if it does what judges expect it will do, namely attempt to obey the directions of the trial Judge.

5. [94]

   It will also be difficult, without infringing on YA’s right to a fair trial, to provide appropriate directions about the self-serving nature of parts of his statement, the fact that it appears not to be in YA’s words, his delay in making the statement and the fact that he had earlier exercised his right to silence when spoken to formally by the police.

6. [95]

   In the end, I am not confident that the kinds of directions the jury will receive, given the volumes of evidence involved, is capable of diminishing the potential for prejudice and embarrassment.

7. [96]

   That is not the end of the matter, as the decisions in cases such as McNamara and Houda demonstrate. Those concerns are to be balanced along with other matters to make an informed and lawful judgment about the exercise of the discretion that vests in the trial judge.

Conclusion

1. [97]

   I have begun and ended this analysis by accepting that these five men should, in the ordinary course of things, be tried together and by the same jury. They are alleged to have acted jointly to commit three very serious offences of violence, including murder, and their commission of those crimes is said to arise from the joint membership of some kind of “street gang”.

2. [98]

   While accepting that the case is not strictly one involving “cut-throat” defences, I have also proceeded on the basis that YA’s statement (and the evidence he is expected to give) means there is an element of one accused casting blame on his alleged co-offenders. For that reason, it is desirable that his evidence be heard by the jury determining the guilt or otherwise of the other four men.

3. [99]

   I have taken into account the strong policy considerations favouring a joint trial and considered the circumstances of the witnesses, the likely length of the trial and the impact on the Court’s resources.

4. [100]

   Against those things, I am satisfied that the tender of the statement prepared by YA’s lawyers at the trial will create significant prejudice against each of the other accused and that there is real doubt that directions are capable of curing that prejudice.

5. [101]

   In assessing the capacity of YA testifying in the trial to ameliorate the unfairness to the co-accused, I am extremely cautious in proceeding based on his lawyer’s expectation at this early stage that he will give evidence. I have considered the Prosecutor’s suggestion that the tender of the statement could come much later in the trial whereupon there may be more certainty as to the course YA will take. Even if YA does give evidence, in some respects the confusion and prejudice will get worse because much of the statement will remain inadmissible against the applicants. The directions will become quite baffling to a lay jury and there is a real risk the directions will not be followed. This is not to suggest the jury will defy the directions because, perhaps, it forms the view they are preposterous or cannot understand how it is to use evidence in different ways depending on whose case and which issue is under consideration. Rather, the concern is that it will be impracticable or impossible for the jury to put out of its mind findings it has made on one issue or one part of the evidence when it is considering another issue or the same issue in a co-accused’s case.

6. [102]

   I am satisfied in respect of each of the accused that the three conditions identified in Middis are satisfied. I have balanced that against the strong policy considerations favouring a joint trial and considered closely the reasoning of the Court of Criminal Appeal in Houda and the statements of principle in the judgments of the High Court in McNamara.

7. [103]

   I am satisfied that the condition in s 21(2)(a) is established – each of the applicants will be embarrassed or prejudiced in their defence if the trials are not separated. Further, the prospect that the trial may miscarry, combined with the custodial situation of four young accused and the anticipated length of the trial, leads to the conclusion that there is another reason why it is desirable to direct that YA be tried separately from the applicants: s 21(2)(b).

8. [104]

   The decision is finely balanced and there are weighty considerations on both sides. However, I am persuaded that each of the applicants has established that positive injustice will attend a joint trial with YA. The discretion should be exercised in favour of an order separating these trials.

Orders

1. [105]

   For those reasons, I make the following orders:

   1. (1)

      Pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW), I direct that YA be tried separately from AD, Panashe Karise, AG and Ibrahima Diallo in relation to each of the offences on the indictment.

   2. (2)

      Based on the Prosecutor’s indication that he will call AD, Panashe Karise, AG and Ibrahima Diallo for trial first, I order that YA’s trial be postponed pursuant to s 21(3) of the Criminal Procedure Act 1986 (NSW).

   3. (3)

      YA’s trial is listed for mention and directions on Friday 6 September 2024 at 11:30am (or at such other date as notified by my Associate).

   4. (4)

      YA’s legal representatives are directed to liaise with the Prosecutor and my Associate to determine whether the mention will be in this Court before me or in the arraignments list.