R v Diallo & Ors (No 14)

1. [1]

   Panashe Karise objects to evidence of a conversation in which he allegedly told a friend that he “digs it” when he thinks about the killing of Darcy Moore. Mr Moore died of stab wounds on 1 September 2021. The conversation was recorded in a telephone intercept on 28 October 2021 when Mr Karise was speaking with someone named Phillip Nkpolukwu. Mr Karise, along with three other men (AG, AD and Ibrahima Diallo), is on trial for Darcy Moore’s murder and the attempted murder of two other men, EC and EO. [1] The offences were allegedly committed in what is said to be a dispute between rival gangs in suburban Sydney.

2. [2]

   The objection falls to be determined by reference to well established principles although, in this instance, the application of those principles presents some difficulties. Counsel for Mr Karise, Mr Smith, relies on the provisions of ss 55-56, 97-101, 135 and 137 of the Evidence Act 1995 (NSW). Putting to one side the question of whether the evidence is inadmissible tendency evidence, I am applying the same principles I discussed in a judgment relating to 300 evidentiary rulings made earlier in the trial: R v Diallo & Ors (No 4) [2024] NSWSC 882 (“Diallo & Ors (No 4)”). Other judgments provide the factual background and evidentiary context in which the ruling is made: see, for example, R v Diallo & Ors (No 2) [2024] NSWSC 853, Diallo & Ors (No 4) and R v Diallo & Ors (No 6) [2024] NSWSC 917.

The conversation to which objection is taken

1. [3]

   The recording to which objection is taken was tendered on the voir dire in the form of a DVD which was marked Ex VD 32A. There is a transcript (Ex VD 32B) which is disputed in a critical respect. The transcript is in the following terms with the disputed passage italicised (it is coloured red in the exhibit):

2. [4]

   I have emboldened the word “dig” in the italicised portion of the transcript for two reasons. First, it is the critical word in the passage. Secondly, Mr Smith says the word used is not “dig” but “deep”.

The arguments

1. [5]

   This objection was not resolved during the lengthy pre-trial hearing which meandered along between 1 and 30 July 2024. The parties were in discussions about the content of several telephone intercepts that the prosecution intended to adduce and to which objection was taken. The parties advised that there may be some minor objections to be considered during the trial proper which commenced with the empanelment of the jury on 31 July 2024. The parties are to be congratulated on reaching agreement on most of the issues. However, it seems the discussions continued well into the conduct of the trial and finally fall to be resolved in the fifth week of the trial and within days of the prosecution closing its case.

2. [6]

   Evidence on the voir dire was taken and arguments were heard on 21, 26 and 27 August 2024. [2] Mr Karise filed written submissions after the first of the oral arguments in response to questions raised from the bench and arguments made by the other side. [3] More focused written submissions were then filed prior to the third tranche of oral submissions and these were directed to the principles discussed in the case of Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 (“Elomar”). [4] The issue must now be determined urgently.

3. [7]

   There is no dispute that an inference can readily be drawn that the reference to “M” is a reference to murder and that the conversation relates to the killing of Darcy Moore. There is no suggestion it could relate to anything else.

4. [8]

   On the Prosecutor’s case, the word “dig” gives the conversation its probative value. On Mr Karise’s case, the word “dig” was not spoken and, even if it is open to the jury to find that it was said, it causes incurable prejudice to Mr Karise. The parties seem to agree that, in context, the jury would be entitled to infer that saying one “digs” something is akin to saying one likes it, or is pleased by it, or enjoys it. That joint position accords with the colloquial meaning of the word “dig” over many decades. [5]

5. [9]

   The Prosecutor submits that the jury would be entitled to infer that Mr Karise’s comment that he “digs” the fact that somebody caught an “M” and “digs” that “there’s a dead n***er” is relevant to his state of mind. He submits it is consistent with the prosecution case that Mr Karise joined a criminal enterprise to kill or inflict serious injury on members of the other “gang”. He argues it is admissible circumstantial evidence and, in circumstances where Mr Karise admits to stabbing EO, [6] that he acted with the relevant intent and did not act in self-defence.

6. [10]

   Mr Smith submits the evidence is, in truth, tendency evidence and is inadmissible in the absence of a proper notice and because of its potential for prejudice. [7] It is submitted the evidence is not otherwise relevant because there is no rational way in which the evidence can impact on the facts in issue. Essentially, at the risk of oversimplifying a well-reasoned argument, the submission is that whatever state of mind Mr Karise may have had on 28 October 2021 it cannot (rationally) establish his state of mind leading up to, and at the time of, the stabbings (1 September 2021). Further, the layers of ambiguity in the impugned passages give rise to incurable prejudice. Finally, whether or not it is properly categorised as tendency evidence, it will lead the jury to infer that Mr Karise is a person of bad character and gives rise to a significant danger of unfair prejudice.

The controversy over the transcript: Dig v Deep

1. [11]

   While Mr Smith contends the words spoken are “I deep it” rather than “I dig it”, he acknowledged at the outset that this is ultimately a question for the jury:

2. [12]

   Listening to the recording, the word used has the longer “ee” sound (as in “sleep” or, relevantly, “deep”) rather than the shorter “i” sound (as in “pig” or “slip” or, relevantly “dig”). I understood the Prosecutor to concede this when he referred to the “perhaps … strong accent” in the word (as he contends) “dig”. [9] Against that, “deep” is not generally used as a verb although that assertion may betray an antiquated understanding of modern Australian usage. As to that possibility, see the tables below. Either way, I must accept Mr Smith’s concession – repeated with a hint of reticence on the second occasion the objection was canvassed – that this is not a matter for me to resolve other than insofar as it feeds into the submission that the words are ambiguous and therefore either not relevant or capable of misuse. [10]

3. [13]

   I raised the question of what “deep” could possibly mean in the context of the conversation because, at first blush, it makes little sense. However, Mr Smith referred me to a few occasions where the word was used in various communications that are part of a table of communications tendered earlier in the trial: see Diallo & Ors (No 4) and Ex 27, which is a long table of social media communications and other items derived from telephones used by the accused. After the first portion of the argument (on 21 August 2024), Mr Smith provided succinct written submissions which included a helpful table giving examples of the use of the verb “to deep” from Ex 27.

4. [14]

   The following table is different to, but borrows extensively from, the table prepared by Mr Smith:

5. [15]

   I have italicised the examples where “deep” or “deeping” appear to be used as a verb to mean to think, to contemplate and/or to ruminate upon. Based on these examples, the putative verb “to deep” might mean, in context, to consider, to ruminate, or to consider something to be profound or important.

6. [16]

   Applying this usage of “deep” to the conversation under consideration, one possible meaning of Mr Karise’s observation that he “deeped” the situation involving somebody catching an “M” and somebody being dead is that he was ruminating on, or preoccupied by, the occurrence or that he considered it to be a profound or important event while thinking about it. If, in truth, that is what was being communicated, there is no basis upon which the conversation could be incriminating or could be used rationally to impact on the probability of a fact in issue in the trial.

7. [17]

   It will be seen from the third column in the table at [14] that none of the evidence from Ex 27 that might explain the somewhat idiosyncratic, and possibly inconsistent, usage of the word “deep” as a verb has been tendered in Mr Karise’s case. However, the Prosecutor accepted that the evidence could be tendered in Mr Karise’s case and its use limited pursuant to s 136 of the Evidence Act. The jury would be permitted to use the evidence simply to make an assessment as to whether the word(s) used in the impugned passage was “dig it” or “deep it”.

8. [18]

   The Prosecutor also agreed that, if the jury find the word used may have been “deep”, the conversation cannot be used in the case against Mr Karise. He undertakes to address the jury in that way. Further, the jury could be directed in a similar fashion by being told that if the word used was deep, the conversation is consistent with Mr Karise’s innocence and no guilty inference can be drawn.

9. [19]

   On the second day the issue was canvassed in Court, the Prosecutor played five recordings where the word “deep” was used and one recording where it was alleged that the word “dig” was used. A table of these communications was tendered as Ex VD 34 and the recordings were Ex VD 35A, 35B and 35C. Ex VD 34 records these as follows (with my emphasis on the words “deep” and “dig”:

10. [20]

    I understood (erroneously) that on each occasion the word “deep”, “deeping” or “dig” was used in these examples, the speaker was Mr Karise. [11] However, Mr Smith indicated that it was not conceded that the call on 12/10/2021 was a recording of Mr Karise’s voice. Further, and significantly, it was not conceded that the word “dig” is used in the recording on 17/10/2021. As with the conversation to which objection is taken, it was submitted that the word used was “deep”, used as a verb as in the italicised examples in the table at [14].

11. [21]

    I have listened to the recordings involving Mr Karise on several occasions in chambers as well as listening to them in the courtroom in the presence of the parties.

12. [22]

    While the authorities suggest it is not relevant, it is appropriate that I record that – based on the audio recordings alone – I am unable to reach a positive conclusion that Mr Karise said “dig it” in the telephone intercept of 28 October 2021 (Ex VD 32B). The same applies to the recording of 17 October 2021. On the other hand, I cannot rule out that he said “dig it”.

13. [23]

    Based on Mr Karise’s and other participant’s use of the word “deep” and “deeping” as a verb, on balance but without great certainty, I think that Mr Smith’s interpretation of what Mr Karise said in the intercept of 28 October 2021 is correct. That is, if I were the tribunal of fact, I would find that he said:

14. [24]

    However, I accept that it would be open to the jury to come to the contrary view and that is an issue of fact for the jury to determine.

Elomar and the cases following it: tendency v state of mind evidence

1. [25]

   The parties provided helpful submissions on the decision of the Court of Criminal Appeal in Elomar where the Court (Bathurst CJ, Hoeben CJ and Simpson J) explained the distinction between using evidence in support of tendency reasoning and using it as circumstantial evidence going to an accused person’s state of mind.

2. [26]

   In Elomar, the accused were charged with terrorism offences. There was evidence tendered to support an inference that the accused were supportive of certain extremist beliefs. The evidence included the attendance of one accused at a military style training camp in Pakistan which was said to have “a clear Islamic focus”. Other evidence was described as “extremist” including “gruesome” imagery including ritualist beheadings and similar which was found on the accused men’s computers and other devices. The Court held the evidence was not used in support of tendency reasoning and some relevant statements of principle drawn from the judgment are as follows:

3. [27]

   As to some of the extremist material found on one of the accused’s computers the Court held:

4. [28]

   The Prosecutor submitted in the present case that the distinction between using evidence in support of tendency reasoning and using evidence to support an inference concerning a person’s state of mind is “subtle but real”. [12] That submission is correct and is supported by the approach taken by the Court of Criminal Appeal in Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 (“Medich”).

5. [29]

   In Medich, the issue arose in the context of telephone intercepts in which the appellant said things capable of supporting an inference as to his state of mind concerning his former business associate (McGurk) and the latter’s wife. McGurk was murdered, execution style, on 3 September 2009 and the appellant was convicted of that murder. He was also convicted of an intimidation offence committed again McGurk’s wife on 8 August 2010. The relevant communications occurred between May 2010 and the date of the intimidation charge. I said at [886] (footnotes omitted):

6. [30]

   Having cited relevant passages from Elomar, I concluded at [887]:

7. [31]

   Bathurst CJ at [120] agreed that the evidence was admissible “essentially for the reasons” I provided in the passages of the judgment quoted above.

8. [32]

   Given the submissions made by Mr Smith in this case, it should be observed that the relevant evidence in Medich derived from comments made after the commission of the murder. Of course, the “continuing” state of mind in question was also relevant to the intimidation offence which occurred afterwards.

9. [33]

   I went on to find (dissenting on the issue based on my analysis of the summing up) that given the potential for the evidence to be misused by the jury, the directions provided by the trial Judge were inadequate to cure the danger of unfair prejudice. I said at [888]-[889]:

10. [34]

    Mr Smith took me to the decision of Burns J in the Supreme Court of the Northern Territory in R v Rolfe (No 8) [2022] NTSC 11 (“Rolfe (No 8))”. It is unnecessary to set out the factual circumstances because Mr Smith largely relied on the discussion of Elomar and the suggested approach to such evidence. That approach is encapsulated in [11]:

11. [35]

    I accept that his Honour’s suggested approach is a sensible and helpful one and I have adopted it.

12. [36]

    However, the idea of a “continuing state of mind” – referred to in both Medich and Rolfe (No 8) – ought not to be construed as a continuing and identical state of mind. The facts of the present case demonstrate the problem. Mr Karise’s state of mind before the killing of Darcy Moore is unlikely to be identical to his state of mind after he became aware of his death. Nevertheless, a state of mind indicating an approval of what happened, or indicating happiness with the outcome, can still inform the state of mind at the time of the alleged joint criminal enterprise and when, on the defence case, Mr Karise is said to have acted in self-defence.

The danger of unfair prejudice

1. [37]

   There is no doubt that this evidence carries with it the serious potential for misuse. There is the risk that the jury will have an emotional response to the evidence and/or give the evidence too much weight. If the evidence is found to establish that, in retrospect, Mr Karise took some glee in the death of Darcy Moore, the jury is very likely to have difficulty in applying a detached and rational mind to it.

2. [38]

   There is also the concern that, in the absence of the kind of evidence I have received on the voir dire, the jury may jump too quickly to the view that the word used is “dig” rather than “deep”. That is because the use of “deep” as a verb is unusual and contrary to ordinary usage. However, the evidence received on the voir dire shows that others in Mr Karise’s world used the word “deep” in that way on a number of occasions.

3. [39]

   I am satisfied that there are multiple measures that can be taken to guard against the misuse of the evidence. These include:

   1. (1)

      The evidence set out in the table at [14] being admitted in Mr Karise’s case but its use being limited under s 136 to provide context to an evaluation of what was said in the telephone intercept subject to the present objection.

   2. (2)

      Similarly, the usage in the telephone intercept on 10/10/21 in the table at [19] (“I was deeping it”) might be adduced in evidence before the jury.

   3. (3)

      Any transcript provided as an aide memoire should include both interpretations of what was said. This will guard against the possibility of what may be described as “confirmation bias”. Alternatively, depending on the position taken by the parties, no aide memoire should be provided.

   4. (4)

      The jury being directed that, if they are not sure that the word “dig” is used, it must not use the evidence in any way in support of the case against Mr Karise or otherwise to bolster it.

   5. (5)

      Strong anti-tendency and anti-bad character directions.

   6. (6)

      Depending on the view of defence counsel, such directions could be included shortly after the evidence is adduced as well as in the summing up. It may be that counsel is concerned that providing such direction at the time the evidence is given may highlight the issue about which he is justifiably concerned. Alternatively, he may consider providing timely and firm directions is the best way to deal with the issue.

   7. (7)

      I would also consider carefully any other safeguards suggested by the parties, especially counsel for Mr Karise. Having said that, the record will reflect that his position is that the danger of unfair prejudice cannot be cured. His position will be preserved whether or not counsel is able to assist to create a situation where the risk of misuse and prejudice is reduced.

Conclusion

1. [40]

   With considerable hesitation, and based on the application of binding authority, I have concluded that the evidence is admissible.

2. [41]

   Taken at its highest, and used as evidence going to Mr Karise’s state of mind, the evidence has a substantial capacity to affect the probability of the facts in issues at the trial. If the jury find – once again adopting the Prosecutor’s expression – Mr Karise to have “approved” of the death of Darcy Moore, that is quite probative evidence when the jury is called upon to determine whether he joined the criminal enterprise alleged by the prosecution. It may also have some relevance to the issue of self-defence.

3. [42]

   In reaching this conclusion, I am conscious of what the High Court said in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 per French CJ, Kiefel, Bell and Keane JJ (footnotes omitted, but with my emphasis):

4. [43]

   This passage was explained in The Queen v Dennis Bauer (A pseudonym) (2018) 266 CLR 56; [2018] HCA 40 by Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ (footnotes omitted):

5. [44]

   See also JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365 at [80]-[81].

6. [45]

   I am satisfied with the safeguards against misuse referred to above, the probative value is not outweighed by the danger of unfair prejudice.

An invitation to the Prosecutor

1. [46]

   While preparing this judgment, and again after writing a first draft of the foregoing, I have listened many times to the recording in Ex VD 32A. The more I have listened to the recording, and the better my understanding of the verb usage of “to deep it” or “deeping it” became, the firmer I became in my subjective view that the words used are “[s]ome nights I just sit there and I deep it”. That view may have been fortified while observing Mr Karise’s reaction during the recorded interview that somebody had died during the incident on 1 September 2021. [13] That occurred while I was reserved on this decision.

2. [47]

   However, as the cases show and as Mr Smith concedes very properly, I cannot usurp the role of the tribunal of fact.

3. [48]

   Without in any way meaning to intrude on the role of prosecuting counsel, I would invite further consideration of the need for, or desirability of, the tender of this evidence against Mr Karise.

4. [49]

   The Prosecutor should know that the Court will well understand if he remains steadfast in the decision to lead the evidence. As I have said, the evidence does – potentially – have significant probative value. But it may be worth a further review of the recording.

Ruling

1. [50]

   Subject to the safeguards against misuse referred to in this judgment, especially at [39], the evidence is admissible.