R v Diallo & Ors (No 2)

1. [1]

   YA is to stand trial along with four co-accused. [1] Each is charged jointly with the murder of Darcy Moore (count 1), the attempted murders of EO and EC (counts 2 and 4) and, in the alternative, wounding EO and EC with intent to inflict grievous bodily harm (counts 3 and 5). This judgment relates to the first of many pre-trial arguments and objections to be determined before a jury is empanelled.

2. [2]

   YA objects to evidence of the things he said to police when he was arrested shortly after the events giving rise to the charges. He was arrested while hiding under a carport in a suburban house a short distance from where the stabbings occurred. YA raises the objection because he was a child at the time and the “admissions” were made in the absence of a responsible adult, support person or lawyer. To place the objection in context it is necessary to set out, in very short form, the case the prosecution is expected to present.

3. [3]

   The incident in which Darcy Moore was killed took place at about 10:00pm on 1 September 2021 in or near William Street in Blacktown, a suburb in Western Sydney. The prosecution case is that the offences arose out of some differences between so-called “street gangs” based in, and relatively proximate to, the murder scene. It alleges that members of a gang called “MOB”, an acronym for “Money Over Bitches”, targeted the victims because of their membership of a rival gang known as “Murda” or “Murda60” and/or an associated group known as “QSB”, an acronym for the “Queen Street Boys”. The deceased was associated with both Murda and QSB, as were the alleged victims of counts 2-5. YA was associated with MOB.

4. [4]

   The prosecution case is that YA was part of a joint criminal enterprise to kill or inflict serious bodily harm on Darcy Moore himself or other members of the rival gangs. In the alternative, the prosecution will assert that YA joined a less serious criminal enterprise (to assault or wound) but was aware of the real (not remote) possibility that murder may be committed. The alternative case is based in the Australian concept of criminal liability by “extended joint criminal enterprise”. [2] In the case of some of the co-accused the prosecution will assert that they are principals in the first degree – that is, they did the relevant stabbing with the requisite intention – but in all cases the prosecution will put a case based on joint criminal enterprise and, alternatively, extended joint criminal enterprise.

5. [5]

   In many respects, the evidence relied on by the prosecution is circumstantial. It relies on the stabbing of the three victims, the death of Mr Moore and injuries to the other two men, the presence of the accused at or near the scene, the purchase or possession of a knife or knives, and communications between the co-accused in the lead up to and around the time of the stabbings. While I was reserved in this (and other) evidentiary rulings the parties advised the Court that, contrary to earlier indications, no agreement has been reached as to the many communications to be tendered in the prosecution case, and that there are, in fact, literally hundreds of individual objections to be determined before the trial will be ready to commence. I have heard submissions by two of the five accused (AD and AG) as to the material derived from AD’s telephone and indicated preliminary rulings on all but three of those objections. Despite case management orders and directions made on 10 and 30 May 2024, the state of those objections is best described as a schemozzle. On Thursday 11 July 2024 (the ninth day of the pre-trial hearing), yet more case management directions were made and arguments on the admissibility of these volumes will commence on 16 July 2024. Nobody suggested that the fate of those objections impacts on the controversy around the admissions made by YA in the body worn video.

6. [6]

   There is expected to be some eye-witness testimony of what occurred on 31 August and 1 September 2021. Much of this evidence will come from nearby residents. It is also expected that certain members of the rival gangs will be called to give evidence. However, based on evidence given on a Basha inquiry over the last seven days or so, [3] these witnesses will be distinctly unhelpful. One such witness said on the voir dire that he had been to the gym and then slept through the killing (seemingly for many, many hours). [4] Another claimed he had no memory of virtually anything because he had been drinking. [5] A third, having received legal advice and when asked if he would take the affirmation or the oath, indicated he would take the contempt charge and walked out of the AVL suite. [6] A fourth answered some questions but when the examination ventured close to the events of 1 September 2021 repeated a mantra of “no comment” despite being directed to answer and having the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (NSW). [7] What these witnesses might say if they give evidence before the jury is anybody’s guess.

7. [7]

   For the purposes of the present argument, it is unnecessary to be comprehensive in summarising the case against YA. However, one piece of evidence that is expected to be led in his case is a statement he made with the help of his lawyers on 18 April 2023 which was then given to the investigating police. [8] The agreement between the Prosecutor and Senior Counsel for YA that this statement would be led in the prosecution case, reached after court on 2 July 2024, came as a surprise to the four co-accused. All four have now indicated that they will seek a separate trial (from YA) because the statement implicates them as well. On one view the statement comes perilously close to an admission of guilt by YA to murder by extended joint criminal enterprise. Relevantly, the statement refers to the evidence to which objection was taken. It says at paragraph [42]:

8. [8]

   The prosecution seeks to lead evidence of the conversation upon which that paragraph of YA’s statement is based. The prosecution agrees that if the evidence it seeks to tender is ruled to be inadmissible, paragraph [42] of YA’s statement should be removed.

9. [9]

   YA’s arrest and the impugned conversation was recorded by a body worn video camera worn by Senior Constable Keith Furner. It includes a conversation, or series of four conversations, between YA and the police officers who arrested him. It occurred a short time after the killing. YA was found hiding under a car in a carport at a house around the corner from where the stabbings occurred and the conversations occurred at that location and a short distance away after he was moved. The recording was played via a DVD in court on the voir dire and I have since watched it again in chambers. In addition to the DVD, a transcript was tendered without objection (Ex VD 1) and, when various errors in the transcript were pointed out to the parties, a more accurate version was provided and became Ex VD 1A.

10. [10]

    YA told lies to the police about how he came to be present at the scene. There is no dispute that the conversation is relevant because it is capable of establishing in YA a consciousness of guilt concerning the events that led to Darcy Moore’s death and the wounding of the other two men. It has a capacity to impact on the jury’s assessment of any assertion of self-defence and could possibly go to YA’s intention and participation in the joint criminal enterprise. As I understand the issues to be litigated in YA’s case, the probative value of the conversation is potentially quite high.

11. [11]

    The Prosecutor presses the whole of the conversation (or the whole of each conversation). [9] However, after the Court viewed the body worn video footage and during the oral argument on the issue, he submitted fairly and reasonably that he “could understand your Honour drawing a line somewhere” and that his “core request” related to the first relevant lie told by YA. [10] The first lie was that YA was brought to the scene by “Adam” (a reference to a person called Adam Darwish who has since confirmed that he did not see YA that night). The truth is that YA travelled to the scene with members of MOB, [11] a matter he acknowledged in his statement of 18 April 2023. [12]

12. [12]

    At the time of his arrest, YA was a child, as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (“the Act”). He was aged about seventeen years and three months. As such, he was entitled to the protection afforded by s 13 of the Act. Section 13 recognises the vulnerability of children when in police custody or when being questioned by people in authority. It mandates, as a general prerequisite for admissibility of admissions made by a child, the presence of a support person.

13. [13]

    The pre-cursor to s 13 [13] was considered in several cases cited in the written submissions of YA’s counsel and the Prosecutor. Those cases emphasised the need for children to receive “special protection… from themselves rather than from any impropriety on the part of the police” and the fact that a support person “is required to ensure that there is no unfairness or unconscionable conduct in the interview”. [14] In R v Phung and Huynh [2001] NSWSC 115 Wood CJ at CL emphasised at [39] that “the provisions need to be faithfully implemented and not merely given lip service or imperfectly observed”.

14. [14]

    Section 13 provides:

15. [15]

    An extremely helpful discussion of s 13 can be found in the judgment of Yehia J in R v KS (No 2) [2023] NSWSC 1475. Her Honour analysed several of the cases to which I have made passing references and said:

16. [16]

    One of the matters emphasised in the authorities is that s 13 (and its statutory predecessor) is concerned with the admissibility of admissions or other statements made by children. It is not designed to, and does not, interfere with police officers’ capacity to conduct investigations. For example, in R v Warren [1982] 2 NSWLR 360; (1982) 5 A Crim R 321 Lee J (with Street CJ and Moffitt P agreeing) said at 367:

17. [17]

    The evidence of the interactions between the police and YA is best considered by reference to what can be seen and heard in the audio-visual recording from the body worn camera. It is also contained in the transcript and the statements of Officers Furner, Wallace and Tuma. However, it is only the actual recording that demonstrates the speed with which certain things were said (including cautions or partial cautions as to the accused’s right to silence), YA’s demeanour as the officers spoke to him, the tone of the officers’ questioning, and the urgency with which YA repeatedly asked the police to remove him from the scene.

18. [18]

    My assessment of the evidence is that YA’s demeanour betrayed a state of fear and confusion. Some matters of significance include:

19. [19]

    There is more that could be said about the series of interactions but that is sufficient to explain my conclusions.

20. [20]

    Turning to s 13(1)(b)(i) of the Act, I am satisfied that there was a “proper and sufficient reason” for the absence of an adult from “the place where” and “throughout the period” of these conversations. The police arrested YA at the scene of a suspected murder and the suspicion that he was involved in the violent incident was real and obvious. There were people at or near the scene who had serious stab wounds, some of the people involved in the fracas were still near the scene or attempting to flee, and police were no doubt establishing crime scenes and searching for evidence. As Senior Constable Furner said, “there’s a lot going on right now.” These were proper and sufficient reasons for not arranging for an adult to attend the scene.

21. [21]

    However, moving on to s 13(1)(b)(ii), I do not consider the conversation should be admitted in evidence. I accept the evidence has some probative value as evidence supporting a consciousness of guilt. However, as others before me have said, the requirement of a support person in s 13 should not simply receive lip service and the provisions exist to protect children from themselves rather than from improper conduct by the police, although it also has work to do in that regard as well. It is a statutory recognition of a child’s vulnerability and YA’s vulnerability in the circumstances is palpable based on a review of the evidence.

22. [22]

    I accept the Prosecutor’s submission that most or all of the previous authorities were concerned with statements or admissions made in the course of formal interviews or when a child was in custody at a police station. However, the section is not reserved for such circumstances and the circumstances prevailing in this case meant that YA’s vulnerability was substantial.

23. [23]

    I also accept that YA was not a very young person at the time of the conversations (being just nine months short of being an adult at law), that the police told him on several occasions that he did not have to answer their questions, and that YA persisted in and expanded upon the lie he told at the outset. Even so, YA’s vulnerability and the confusion and fear he exhibited, taken with the purpose of, and policy behind, the exclusionary provision outweigh these matters.

24. [24]

    Accordingly, the evidence of YA’s statement as recorded on the body worn video is inadmissible.

ADDENDUM

1. [25]

   After this judgment was delivered, the Prosecutor sought clarification as to the scope of this ruling. Counsel for YA acknowledged that the objection was only to the words spoken by YA and that there was no objection to evidence of YA’s arrest and the finding of a mask or similar item(s) on his person. This coincided with my intention in making the ruling and, I think, the words employed in paragraphs [2], [21] and [24] of the judgment. In any event, for the sake of clarity, it is YA’s words which are inadmissible and the parties are in agreement that other aspects of his arrest will be admitted before the jury. I will leave it to the parties to determine the manner in which that evidence is presented.