Diallo & Ors (No 15)

Yesterday, the prosecution sought to tender part of the online edition of the Macquarie Dictionary and to rely on one of the 27 definitions of the word “smoke” that the dictionary contains. The attempt to tender the document was made in front of the jury following the playing of part of Ex 53. Senior Counsel for AG objected immediately. I rejected the tender at that stage on the basis that I would hear submissions later and in the absence of the jury. [1] As it played out, the jury is probably unaware – as it should be – that the Prosecutor was attempting to establish the meaning of the word “smoke” by reference to a dictionary.

Exhibit 53 is a DVD containing five audio recordings of conversations between AG and YA and, later and irrelevantly, AD. This evidence was admitted over a series of objections which were resolved on 16, 18 and 22 July 2024: R v Diallo & Ors (No 5) [2024] NSWSC 914, particularly at [29]-[30].

The relevant portion of Ex 53 is as follows, with my emphasis on the relevant passage:

I held the portion was admissible on the basis that, taken at its highest, it was capable of establishing a consciousness of guilt on the part of both YA and AG. In relation to the emphasised portion and the use of the word “smoke”, I said:

When the jury left the courtroom yesterday, and I asked whether the tender of the dictionary was actually pressed, the Prosecutor said that it was and said he had tendered it on the voir dire. [2] If that was meant to imply that there was some issue resolved on the voir dire as to the admissibility of the dictionary, it should be understood clearly that no ruling was made as to the admissibility of the dictionary. It was admitted on the voir dire without objection, but no concession (or ruling) was made as to its admissibility.

To the contrary, Ms Avenell said “I don’t know whether they propose to tender a copy of the Macquarie Dictionary to the jury”. [3] I remarked in the course of argument “I’m not suggesting for a moment that the Macquarie Dictionary’s, I don’t know, eleventh (sic) [4] definition of ‘to smoke’ might apply.” [5] No reference was made to the dictionary in the judgment and it did not form part of my reasoning in deciding to allow the prosecution to tender this part of the listening device recording. What I held, contrary to Ms Avenell’s submission at the time, was that the words used by AG were capable of being seen as a threat directed to YA if the latter spoke to police. As such it was admissible as evidence of a consciousness of guilt.

The Prosecutor also submitted yesterday:

The italicised portion was a reference to the fact that the jury will receive evidence as to the idiosyncratic use of the word “deep” by Mr Karise and others. Deep is, most unusually, used in various communications as a verb to mean “to think about something or ruminate upon it”: see Diallo & Ors (No 14) [2024] NSWSC 1101 at [13]-[15], [19]-[20].

Upon examination, this argument in fact proves the opposite of what the Prosecutor was attempting to establish. The evidence in the trial is riddled with unusual idioms that would not readily be found in a dictionary. An interrogation of the Macquarie Dictionary discloses some 39 definitions of the word “deep” and not a single one of them suggests that the word can be used as a verb. [6]

The Prosecutor said he was “trying to pull up the relevant section of the Evidence Act that does allow --”. At that I point, I spoke over the Prosecutor very rudely to mark the extracts of the dictionary on the voir dire. It became Ex VD 36. This afternoon, the Prosecutor has taken me to s 144 of the Evidence Act 1995 (NSW), being the provision relating to matters of common knowledge, and, in particular, the fact that a judge may acquire knowledge of that kind, that is common knowledge, in any way the judge thinks fit. I accept, as a matter of general principle, that this process may include resort to research books, textbooks and the like. Dictionaries may be one such source. However, in a case of this kind, as the reference to the word “deep” shows, such an approach is fraught with danger.

The Prosecutor also referred to the statements of principle in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) concerning the extent or extremity of matters relied on in establishing consciousness of guilt as possibly meaning that the evidence has far more probative value if it is accepted that when AG said he would “smoke” YA he was threatening to kill him.

The only reference in the case law that I was able to find overnight is a reference by Miles AJ in a defamation case out of the Australian Capital Territory: Phelps v Nationwide News Pty Ltd & Anor [2003] NSWSC 1104. In that case, the defendants sought a discharge of the jury because counsel for the plaintiff referred to a definition from the Macquarie Dictionary during their opening. Miles AJ declined to discharge the jury but said:

The definition of “to smoke” relied upon by the Prosecutor is, as I alluded to earlier, the twentieth item in the Macquarie Dictionary entry for smoke and is as follows:

Part of the concern is the reference to shooting which would seem, at least on its face and on the evidence in the trial – and as the prosecution case is just about to close – quite out of place. There is nothing to suggest, as Ms Avenell submitted, that this young man, who was a child by definition of law at the time, had access to firearms. The Prosecutor suggested we can just redact that part of the definition, which means we are giving the jury something said to be common knowledge, but changing it in the process of doing so.

To place that definition before the jury, with or without the word “firearm”, but particularly with its reference to shooting, would be dangerously prejudicial and potentially misleading.

There may be occasions where a research book, such as a dictionary, could be tendered to prove the common meaning of a word, although it is far from common practice when there is a jury involved. I do not think s 144(2) would generally be available to use to allow things of this nature to be proved by way of a dictionary definition or an encyclopedia.

My assessment is that the probative value of this part of the evidence – and I am not here referring to what AG said, but to the attempt to define what he said by use of a dictionary given the idiosyncratic use of language that is seen throughout the evidence – is slight to the point of being wafer-thin. As Ms Avenell submitted, in conformity with the judgment allowing the evidence of the listening device over her objection:

She also submitted, allowing herself to be constrained by the earlier judgment and in answer to the Prosecutor’s complaint as to how he was to address the jury:

I accept those submissions.

I do not accept that the decision in Baden-Clay supports the tender of the dictionary to bolster or enhance the meaning of the word uttered by AG.

The tender of the extract from the Macquarie Dictionary is rejected.