R v Diallo and Ors (No 13)

AG objects to the Prosecutor tendering a portion of a telephone intercept in which he is recorded speaking to his sister on 19 January 2022. There is a 21-page transcript of the call which commenced just after 2:00pm (Ex VD 33). The Prosecutor relies on a relatively short portion of the call which is transcribed at pp 11-12 of the transcript. The Prosecutor seeks to use the evidence to lay the foundation AG’s words and conduct betrayed a consciousness of guilt. Senior Counsel for AG submitted that, considered in context, the evidence has very limited probative value, may be misused by the jury and, accordingly, the probative value is outweighed by the danger of unfair evidence.

The context of the criminal trial in which this objection is made, and the principles I have applied, can be discerned in earlier judgments: see 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.

The extract of the recording upon which the Prosecutor seeks to rely is as follows (where V1 is AG and V2 is his sister):

Standing alone and without context this evidence is capable of being used by the jury as circumstantial evidence from which an inference could be drawn that AG knew that he acted unlawfully on 1 September 2021 when Darcy Moore was killed and two others were seriously injured. It could support an inference that he was involved in the unlawful common purpose or joint criminal enterprise asserted by the Prosecutor.

However, the “extent to which” the evidence is capable of serving that purpose must be considered by reference to the context in which the conversation occurred. By 19 January 2022, AG had been charged with an offence of affray arising from his involvement in the events of 1 September 2021 which gives rise to the current charges. Further, he was aware that he and his confederates attended the premises and that he personally engaged in social media communications in which he goaded the deceased to come out of the home. He would almost certainly have been aware that Darcy Moore had died as a result of injuries sustained during the incident.

In addition to those matters, Ms Avenell pointed to an exchange later in the conversations where the following is recorded (with my emphasis following the lead of Senior Counsel):

The Prosecutor, very properly, is prepared to tender any other parts of the recording identified by Ms Avenell which would place the passage upon which he relies in a fair and proper context.

I accept the evidence must be taken as its highest and that it is not for the trial Judge, in determining questions of admissibility to resolve factual disputes involving a choice between competing inferences. However, in some cases involving conduct said to evince a consciousness of guilt it is properly said the evidence is “intractably neutral” (particularly as between murder and manslaughter): see, for example, Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435 and R v Hawkins (No 10) [2020] NSWSC 1931. In others, the conduct is so extreme it has been held to support a consciousness of guilt for the more serious crime: Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”). In Baden-Clay the High Court unanimously held at [74] that “there is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter”. The High Court adopted what was said by Majors J in the Supreme Court of Canada in R v White [1998] 2 SCR 72 at 91 [32]

Read as a whole, the conversation involved AG musing as to his legal predicament in the aftermath of Mr Moore’s death and the serious affray that occurred on 1 September 2021. I accept Ms Avenell’s submission that AG appears to be attempting to prepare his sister for the worst. That does not discount that the evidence may be capable of use as consciousness of guilt of evidence.

The evidence showing that AG was anxious or afraid that he may be sent to gaol is incapable of distinguishing between murder and manslaughter and is, in that sense, intractably neutral. That is a matter that could potentially be cured by judicial direction. However, it is also neutral as between a serious affray on the one hand and homicide (in either form) on the other. An equally rational inference is that AG was concerned he would be sent to gaol for the affray or that he would be wrongly (from his perspective) charged and convicted of murder (or manslaughter). That is not a matter capable of being cured by a direction unless the jury was directed that the evidence could not be used to bolster the prosecution case in relation to any of the counts on the indictment.

The potential for the jury to misuse the evidence is significant. It could give it too much weight, or use it to bolster a homicide case based on guesswork or speculation rather than a rational reasoning process. The probative value is real but not great.

The probative value of the evidence is outweighed by the danger of unfair prejudice and the evidence must excluded pursuant to s 137 of the Evidence Act 1995 (NSW).

For those reasons, I rule that the evidence of the telephone intercept of 19 January 2022 commencing at 14:02:00 is inadmissible.