R v Diallo & Ors (No 5)

1. [1]

   This is the fifth judgment published in the pre-trial stage of the trial of AD, Panashe Karise, AG, Ibrahima Diallo and YA, each of whom stands jointly charged with the murder of Darcy Moore and the attempted murder of two other men. [1] There are various summaries of the case against each man, and a discussion of parts of the evidence expected to be called, in other judgments published over the last four weeks: R v Diallo & Ors (No 2) [2024] NSWSC 853, R v Diallo & Ors (No 4) [2024] NSWSC 882 and R v Diallo & Ors (No 6) [2024] NSWSC 917. I will not repeat those matters for the purpose of this judgment but where necessary these reasons should be taken as incorporating those summaries and discussions.

2. [2]

   This judgment concerns the admissibility of around 20 portions of recordings of conversations between YA, AG and AD on 22 February 2022. The recordings were made using a surveillance device which was placed covertly in a police van transporting the three young men to a juvenile detention facility after their arrest. The parties advised that there was a total of about six hours of recording and the full transcript is 166 pages in length (Ex VD 16). The original version of the transcript tendered on 16 July 2024 identified 23 discrete portions of the six-hour long recording which required my ruling. Those were highlighted in green. Ongoing discussions between counsel resulted in a minor narrowing of the dispute. An amended transcript was tendered on 18 July 2024 (Ex VD 16A).

3. [3]

   Objection is taken by the accused to portions upon which the prosecution seeks to rely. Exhibit VD 16A has those portions highlighted in green. Exhibit VD 23 is a USB drive containing the actual product (audio files) captured by the surveillance device. It contains 19 audio “clips”, there being some cross-over or overlap between the clips and the green highlighted passages. Exhibit VD M, tendered by AG, is an edited transcript of a recorded interview with AG. Its relevance is that it establishes to some extent the things police officers disclosed to AG which has the capacity, in some instances, of explaining some of the things he said in the conversations under consideration.

4. [4]

   Revised written submissions were filed by AG (MFI 28A), AD (MFI 29A) and YA (MFI 30A). The Prosecutor’s submissions (MFI 31) identified the evidence by reference to the putative portion numbers. Like defence counsel, I have adopted those portion numbers for the purpose of this judgment and have set out the relevant passages of transcript in full below. The transcript is largely agreed to be accurate, but one potentially significant part of the transcript is in dispute. It is highlighted in yellow in Ex VD 16A and relates to portion 11.

5. [5]

   Oral submissions were made on 18 July 2024 and the audio clips in Ex VD 23 were played in court on 22 July 2024. Judgment was reserved and delayed by my hearing separate trial applications on behalf of four of the accused and focusing on that judgment before returning to the present, more prosaic, decision.

6. [6]

   I discussed the legal principles concerning relevance, probative value, unfair prejudice and the operation of ss 135 and 137 in R v Diallo & Ors (No 4) [2024] NSWSC 882. I have applied the same principles to the issues that arise here. I will not repeat myself.

Relevant portions and rulings

1. [7]

   I will set out the relevant portions of the transcript and record my rulings with very brief reasons. As noted, for the sake of clarity (for the parties), I have referred to the portions by the same numbers as those adopted by counsel in their written and oral submissions. These correspond with the original 23 portions identified in the first version of the transcript (Ex VD 16). Those missing are no longer pressed.

2. [8]

   The Prosecutor does not propose to tender the entire six hours of recordings. That is a small mercy because the recordings are quite difficult to hear, punctuated by the occasional loud banging and other irritating noises and, with respect to the participants, are quite mundane and tedious.

3. [9]

   Portion 1 on page 2 of the transcript is as follows:

4. [10]

   The observation by YA that “I’m fucked” cannot rationally be said to reflect a consciousness of guilt on his part: cf R v Qaumi & Ors (No 54) [2016] NSWSC 1067. YA’s colourful exclamation may be a reaction to things he had been told by police, or his knowledge of the case against him (by reference to the fact sheet or otherwise), or it may reflect the reality of his predicament: earlier that day he was arrested for, and charged with, extremely serious offences. Equally, it could have nothing to do with the case at all and be an expression of exhaustion.

5. [11]

   Similarly, in the absence of context, the question by AG “are you playing us?” is of minimal probative value but has a potent capacity for misuse. I accept that it could be thought he was inquiring as to whether YA was dealing with the police to set up the co-accused. However, even if that is so, it does not rationally lead to a logical inference that AG was evincing a consciousness of guilt. The danger of unfair prejudice includes the possibility that the jury may misuse the evidence or give it too much weight. That danger outweighs the probative value of the evidence.

6. [12]

   Portion 1 is not admissible.

7. [13]

   Portion 2 on pages 5-6 of the transcript is as follows:

8. [14]

   YA’s statement that “I stabbed the cunt” has a capacity to impact in a rational way on the facts in issue at the trial. He previously objected to evidence of a Snapchat video he made in which he boasted of stabbing “that fat cunt AK”. That video related to the events of 31 August 2021. I determined it was admissible despite “AK” denying that he was stabbed and YA claiming it was no more than a boast to impress his fellow “street gang” members. It does have a capacity for misuse given the stabbings subject of the indictment occurred on 1 September 2021. The jury would need to be directed (i) not to confuse the two events and (ii) in a standard “anti-tendency” manner. I take the same approach to this evidence as I did with the Snapchat video: R v Diallo & Ors (No 3) [2024] NSWSC 877.

9. [15]

   The conversation between YA and AG about telling the truth, staying staunch, and YA suggesting that they tell the police they were going to buy drugs and were the victims, is capable of supporting the prosecution case that the accused were exhibiting a consciousness of guilt. Properly directed, there is no real concern that the jury will misuse this evidence. I would allow this part of the conversation against both men.

10. [16]

    I would not allow the evidence of AG advising YA not to talk to police. That was sensible advice given by lawyers to people in custody every day. It may be that AG would prefer that part stay in but that will be a matter for him and his lawyers.

11. [17]

    I would not allow the evidence of AG saying YA is the “weak link” as it seems clear that was something that the police said to AG. Once that is understood, the evidence is devoid of probative value but has a real capacity to result in unfair prejudice.

12. [18]

    Portion 2 is admissible except for (i) AG saying YA is the weak link and (ii) AG telling YA not to talk to police.

13. [19]

    Portion 3 on pages 7-8 of the transcript is as follows:

14. [20]

    The reference to “Unruly” is a reference to Mr Diallo. He has taken a separate objection and I am of the view in a joint trial, the evidence should be excluded because of its potential to cause incurable prejudice to Mr Diallo.

15. [21]

    However, YA’s comments where he speaks of “Unruly” being smart and “not ratting us out” are capable of being used in support of an argument that he was evincing a consciousness of guilt. Those are YA’s words and they are admissible against him. AG’s contribution is to state the fact (that Mr Diallo has been arrested), to repeat his advice to YA not to say anything and to make some other cryptic remarks.

16. [22]

    Portion 3 is admissible against YA (in his separate trial) [2] but not against AG or in the joint trial involving Mr Diallo.

17. [23]

    Portion 4 on page 12 of the transcript is as follows:

18. [24]

    This is the portion that shows the idea that YA is “the weak link” came from the police. The fact that AG told YA that the latter was the “weak link” is specifically tied to what the police told him. Any probative value in this evidence is outweighed by the danger of unfair prejudice.

19. [25]

    Portion 4 is not admissible.

20. [26]

    Portion 5 on pages 13-14 of the transcript is as follows:

21. [27]

    This portion appears to be AG and YA discussing what the police have told them and parts of the evidence. The snippet of conversation is obscure and adds little if anything to the case. If it has relevance, the probative value is very low. The danger of unfair prejudice lies in the jury attempting to interpret what is being said and attributing a guilty mind to one or other or both of the accused.

22. [28]

    Portion 5 is not admissible.

23. [29]

    Portion 6 on pages 16-17 of the transcript is as follows:

24. [30]

    This portion of the conversation is capable of establishing a consciousness of guilt in both AG and YA. The comment by AG that he will “smoke” YA is capable of being seen as a threat to YA if YA “breaks” and both accused express concern about the content of “group chats”. Given the significance of group chats to proof of the charges, the evidence has some relevance and probative value. The prejudice or potential for misuse is small and can be addressed by judicial direction.

25. [31]

    Portion 6 is admissible.

26. [32]

    Portion 9 on pages 54-57 of the transcript is as follows:

27. [33]

    This evidence essentially involves AG and YA discussing the police fact sheet. It is capable of misuse because the fact sheet will not be in evidence. The jury would essentially be guessing as to the meaning of the conversation and will have no rational basis to decide what is being independently said by the accused and what is the pair parsing the fact sheet. The Prosecutor says that YA’s comment that “those guys had zombie knives as well” should be (or is capable of being) an admission that YA’s group had knives; that is, it should be interpreted as meaning “we had [zombie] knives, and they had zombie knives as well”. In the context of overwhelming evidence that some members of the MOB group had knives, this evidence adds very little to the narrative. If it is read to mean that MOB had “zombie knives” – which is the logical extension of the Prosecutor’s submissions – it is potentially misleading.

28. [34]

    The reference to “cap”, which Senior Counsel for AG told me authoritatively means “a lie” or similar, [3] is otherwise mysterious and adds very little.

29. [35]

    Portion 9 is not admissible.

30. [36]

    Portion 10 on pages 64-66 of the transcript is as follows:

31. [37]

    I am unable to identify any probative value in this evidence. It does not contain any relevant admissions and could not rationally be used to establish a consciousness of guilt in either participant. The only truly intelligible part is where YA tells the police officer that the case arose from an “incident where we got attacked”.

32. [38]

    Portion 10 is inadmissible except insofar as it is relied on by the accused.

33. [39]

    Portion 11 on page 72 of the transcript is as follows:

34. [40]

    The accuracy of the transcript is disputed with respect to the words which are italicised and emboldened in the above passage. For what it is worth, I think I can hear the words contended for by the Prosecutor although I do not rule out the possibility of confirmation bias. However, what is said would be a matter for the tribunal of fact.

35. [41]

    Even assuming those words are capable of being heard, the passage provides evidence of nothing more than AG musing that some people are “snitches”. Of whom he makes that accusation is not completely clear and YA’s response or comment does nothing to clarify the meaning.

36. [42]

    The evidence in portion 11 is not admissible.

37. [43]

    Portion 12 on pages 76-77 of the transcript is as follows:

38. [44]

    In oral argument, the Prosecutor said of this portion:

39. [45]

    The indecipherable or unfinished sentences means the evidence has a very limited capacity rationally to affect an assessment of a fact in issue.

40. [46]

    In the absence of objection, I rule that portion 12 may be tendered but solely for the purpose of voice identification and only if necessary.

41. [47]

    Portion 13 on page 78 of the transcript is as follows:

42. [48]

    AG acknowledges that the reference to the emoji is “presumably” a reference to a coffin emoji which was included in a message sent by him at 12:45 pm on 1 September 2021. The communication can be seen at item 808 on page 72 of Ex VD 14A and there is little room for doubt that it is this message to which AG was referring.

43. [49]

    His assertion that he “never said” those things is relevant evidence. It is not taken to be irrelevant even if it only goes to his credibility (if he becomes a witness): cf Evidence Act 1995 (NSW), s 55(2). However, its relevance may go beyond that and suggest that the message – by his false assertion that it was “never said” – has the sinister overtones the prosecution will assert that it has.

44. [50]

    While the jury should be directed to proceed carefully in drawing inferences in relation to evidence of this kind, the prospect that portion 13 will be misused by the jury or afforded excessive weight is small.

45. [51]

    Portion 13 is admissible against AG but I can see no basis upon which it could be admitted against any other accused.

46. [52]

    Portion 16 on pages 97-98 of the transcript is as follows:

47. [53]

    This portion appears to involve AG and YA discussing what each was told by police and in particular referring to a video depicting YA wearing a balaclava saying, “I got J-money, this guy got this guy”. It is not clear whether this is a reference to the video which I ruled to be admissible in R v Diallo (No 3) but if it is, AG seems to have the details wrong: cf R v Diallo (No 3) at [1] and [6]. Either way, AG recalling what he was shown by police cannot rationally impact on a consideration of the facts in issue. As to the balance of the exchange, it is not known what “ank” means – although in context, it may be a reference to a knife – and AG says he didn’t “really look at” the video. In YA’s case, the evidence could conceivably demonstrate his concern about what evidence the police possessed to inculpate him in the offences. However, its probative value in that regard is not significant. There is a danger of unfair prejudice which lies in the likelihood that the jury would give too much weight to this evidence, or would speculate about this possible stabbing which is not one of the counts on the indictment. Section 137 requires this evidence to be excluded.

48. [54]

    Portion 16 is not admissible.

49. [55]

    Portion 17 on page 102 of the transcript is as follows:

50. [56]

    It appears that this is the first portion of the recording which took place after AD got into the police van. It should be observed that none of the portions before this moment are admissible against AD.

51. [57]

    The evidence in portion 17 is not relevant as that expression is defined in s 55 of the Evidence Act. Even if it is relevant, its probative value is slight and the jury would be left to speculate on the contents of the 170-page fact sheet.

52. [58]

    It is conceivable that the accused may want this evidence to put in context other things said by them. That is, their reading the fact sheet may explain the things they said. However, putting that aside, the evidence should be excluded under ss 56, 135 or 137 of the Evidence Act.

53. [59]

    Subject to AD, AG or YA wanting the evidence before the jury, portion 17 is not admissible.

54. [60]

    Portion 18 on page 103 of the transcript is as follows:

55. [61]

    The probative value of this evidence, which appears to lie in the use of the letter “M” to signify murder, is slight.

56. [62]

    Evidence of the use of the letter “M” as a shorthand for “murder” in the social media communications has already been excluded: R v Diallo & Ors (No 4) at [45]-[54] and the table of rulings at [89] (items 576 and 951). Accordingly, the evidence in portion 18 of this recording cannot add to the understanding of those earlier communications.

57. [63]

    The potential for this evidence to be misused is real. Section 137 of the Evidence Act commands the exclusion of this evidence.

58. [64]

    Portion 18 is not admissible.

59. [65]

    Portion 19 on page 108 of the transcript is as follows:

60. [66]

    This portion has a distinct capacity to be confusing and misleading. Ostensibly, it involves nothing more than one co-accused confirming or asking about what other accused were charged with.

61. [67]

    Portion 19 is not admissible.

62. [68]

    Portion 20 on pages 121-122 of the transcript is as follows:

63. [69]

    Taken at its highest, this portion of the surveillance device recording may give rise to an inference that AD and YA, in the presence of AG, were discussing a factually plausible narrative that might explain in an innocent way their involvement in the events of 1 September 2021. It is capable of being used as evidence supporting a consciousness of guilt.

64. [70]

    AG submits the recording is “too disjointed to make much sense of it” and notes some aspects of the portion which create confusion about what was being discussed. He goes on to submit “there is a risk the jury may read this as AD and YA trying to concoct a false explanation for being at William Street, when it is not clear that is what they were speaking about.” AD submits “the jury is likely to misinterpret” this passage and relies on the submissions of AG. I do not understand YA to raise objection to this passage.

65. [71]

    The asserted lack of clarity and the availability of other inferences are factual matters for the jury to consider.

66. [72]

    A risk that the jury may misinterpret this part of the conversation does not render the evidence inadmissible. One possible inference is that the accused were attempting to concoct an innocent explanation. That is the inference the prosecution will invite the jury to draw. Any risk of misuse will be overcome by proper directions on circumstantial reasoning and the care that must be taken in using evidence said to establish a consciousness of guilt. The disjointed nature of the recording and any confusion apparent in the mind of the speakers are matters that can be canvassed by counsel in their addresses.

67. [73]

    Portion 20 is admissible.

68. [74]

    Portion 21 on page 125 of the transcript is as follows:

69. [75]

    This evidence has limited probative value and some capacity to be misused. Pursuant to s 137 of the Evidence Act it is not admissible.

70. [76]

    Portion 21 is not admissible.

Rulings

1. [77]

   The following table sets out the evidentiary rulings by reference to the portion numbers used by the Prosecutor:

2. [78]

   I repeat what I said at [56] above, that none of the portions recorded before AD was placed in the van are admissible against him. Neither are any of the portions admissible against either Mr Diallo or Mr Karise.

3. [79]

   It will be for the parties to decide how the evidence is best presented to the jury. It may be that the four to six individual portions or clips are played to the jury. I assume there will be evidence that allows the jury to understand that these brief passages are derived form six hours of covertly recorded conversations so that the evidence is placed in a realistic context. It may even be, given the limited number of portions to be admitted into evidence, that the prosecution will reconsider whether it will rely on this material. Such an approach would no doubt be accompanied by some form of undertaking by defence counsel that they will take no unfair forensic advantage. I do not mean to intrude into the province of the Prosecutor, but merely raise these matters for consideration by all counsel.