R v Diallo & Ors (No 3)

YA objects to certain evidence derived from an interrogation of his Snapchat social media account. The evidence comprises of a video of him boasting that he “stabbed that fat cunt AK on the road when he was turning right into the street when he was running away.” Inferentially, and as agreed by the parties, the evidence relates to the events of 31 August 2021 and to the supposed stabbing of a young person called Akot Akot, who is a member of a group or gang said to be the target of the violent assaults and woundings which occurred the following night (1 September). The incident on 1 September 2021 resulted in the alleged murder of one man and the wounding with intent of two others. Five young men, including YA, stand charged with murder and two offences of wounding with intent to murder, or in the alternative to inflict grievous bodily harm. For a general overview of the case, the reader could refer to the judgment relating to another objection taken by YA which resulted in the exclusion of some “admissions” he made to police shortly after the incident: R v Diallo & Ors (No 2) [2024] NSWSC 853 (“Diallo & Ors (No 2)”).

The Prosecutor relies on the evidence currently under consideration as “transactional” and/or “contextual”. That is to say that (i) the incident on the evening of 31 August 2021 is part of the same transaction which culminated in the violence the next night and/or (ii) it provides some context in which the events of 1 September 2021 occurred. The Prosecutor submits that the evidence provides an “explanation for the return on the 1st” and that:

In the alternative, and against the possibility that the Court rejects its primary submission or concludes the evidence would otherwise fall foul of ss 97-98 of the Evidence Act 1995 (NSW), the Prosecutor has served a coincidence notice under s 98 and submits that the evidence is also relevant to establish that, given the “similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally, that is, that YA had a knife and used it on one night but did not have a knife and did not intend to use one on the following night”. [2]

In written submissions, YA submitted that “the basis of the exclusion is ss 135 and/or 137 of the Evidence Act 1995 (NSW).” That submission was explained as follows:

YA’s oral submissions were more detailed, particularly in terms of the danger of unfair prejudice to the accused. The substance of the submission as to the probative value of the evidence (and its relevance) remained the same although it was more expansive. That is, it was submitted that, because David (or Akot) Akot denied being injured on 31 August 2021, the impugned admission recorded by YA had very limited capacity to rationally affect the issues in the trial. As to the danger of unfair prejudice it was submitted (as recorded in the transcript):

For the sake of clarity, and to put to bed one issue raised in the passage set out above, I should indicate that the person referred to by YA as “AK” was called to the witness box (in the Basha inquiry) as “David Akot” but gave his name as “Akot Akot”. [5] Senior Counsel’s reference (in the italicised passage above) to “Joseph Akot Akot” may be mistaken and is perhaps meant to be a reference to “Joshua Akot”. [6] There is a Joshua Okot who is also known as “J-money” and is referred to elsewhere in the evidence. [7] Assuming there is evidence at the trial that “Joseph” (or Joshua) Akot also goes by the name Akot Akot (which I take from Senior Counsel’s oral submissions), I can see no potential for confusion. A jury will be able to understand who is who, especially when assisted by experienced and fastidious counsel and given, if necessary, clear directions. At this stage, I have not been called upon to consider the suggestion of a second stabbing committed by YA on the brother of David (Akot) Akot.

The second matter that arises out of Mr Terracini SC’s oral submissions is the assertion that “the difficulty with the [prosecution] case there is they cannot put in accordance with their case that he did in fact do these things”. The Prosecutor disputed this:

Whether, ultimately, the evidence is such that the Prosecutor can positively and ethically put that YA stabbed David Akot is not determinative of the present objection. It is an issue which, if necessary or appropriate, can be dealt with later once the full extent of the evidence is known. However, there is some force in the position taken by the Prosecutor. The absence of evidence from the victim of an alleged offence is not novel. It occurs frequently in both domestic violence cases and in cases involving defendants and victims involved in gangland activity. I note again, as I did in Diallo & Ors (No 2) that none of the four witnesses called on the Basha inquiry provided any evidence capable of assisting the Court; they were asleep, or at the gym, or too drunk to remember; or preferred to be charged with contempt rather than to take the oath. [9] Further, evidence does not need to be corroborated: Evidence Act, s 164. As I have said, the boundaries of the Prosecutor’s cross-examination and closing address could potentially be subject of a further ruling and I do not accept that this issue which, right now, is purely speculative is a matter that would lead to exclusion of the evidence under ss 135 or 137.

As to David Akot, his evidence on the voir dire was brief. The Prosecutor did not seek leave to cross-examine him and, if accepted, his knowledge of the events in question was very limited. For present purposes the critical part of his evidence was:

The Prosecutor conceded that there is no other evidence expected to be given at the trial which will establish that AK was stabbed on 31 August 2021. [11] For example, the CCTV footage taken from the premises at 36 William Street (Exhibit VD 5K) shows a car being driven very quickly and possibly placing people on the street in some peril, but it does not depict a stabbing incident. However, I do not accept that this diminishes the probative value of the evidence that the Prosecutor seeks to tender. Obviously, the tribunal of fact is less likely to accept that YA stabbed Mr Akot if Mr Akot denies that he was stabbed and that he was injured. But that does not reduce the probative value of the evidence which is concerned with the extent to which it “could rationally affect the assessment of the probability of the existence of a fact in issue”. [12] In a judgment handed down at the same time as this one, I explained in more detail the approach that must be taken to an assessment of probative value: R v Diallo & Ors (No 4) [2024] NSWSC 882 at [19]-[22] and [29]-[30]

Senior Counsel for YA conceded that it is “obvious that [the evidence] does have some probative value”. I turn to explain the basis upon which I accept this concession.

I do not accept that the events of 31 August 2021 and the events of 1 September 2021 were part of the same “transaction”, as contended by the Prosecutor. The events were separated by about a day. They were, on the prosecution case and even on YA’s statement, connected transactions but they were not the same transaction.

However, I do accept that the events of the day before are relevant to provide context to the events surrounding the alleged murder and associated woundings on 1 September. It would be unrealistic to present the case in a way whereby the jury remains unaware of the events that took place 24 hours earlier. Those events, whatever they may have been, place the stabbings of 1 September in a true context. The evidence has real and significant probative value in that respect.

Further, based on his statement (Exhibit VD 4), YA will present a case whereby he was reluctant to be part of the fray or event and attend the scene. The video depiction of him boasting of having stabbed AK – whether that admission be true or not – is relevant to an assessment of that assertion. He provided an explanation in his statement:

Again, based on his statement, YA will present himself as being both reluctant to be involved and, perhaps, that he either did not join or participate in the criminal enterprise or that at some stage that he withdrew from the enterprise. The very fact that he made this video, and his demeanour while making it, is capable of impacting in a rational and quite significant way on an assessment of those issues.

No submissions were directed specifically to the proposition that the evidence might be misleading or confusing. The fact that the alleged victim denies that he was stabbed does not mean it is misleading in any relevant way. Nor is it misleading because the maker of the statement says, in a document that will be tendered by the Prosecutor, that the assertion was merely a (false) boast.

I accept that this evidence has a capacity to cause prejudice to YA. It is evidence either of the commission of an uncharged act or of YA boasting of committing a criminal act in a quite unseemly way. Either way, the jury may feel it reflects poorly on the young man’s character. However, the probative value of the evidence is not outweighed by the danger of unfair prejudice.

As Mr Terracini submitted, if Mr Akot gives evidence the jury may be inclined to speculate as to what motivates him to deny that he was stabbed. Mr Akot, whatever he may say, will present a forensic challenge for the cross-examiner. On the other hand, the jury might accept Mr Akot’s evidence that he was not stabbed and proceed on the basis that YA was boasting to ingratiate himself with, or to be accepted by, the other members of the group. That is YA’s explanation for making the video which, there is no doubt, paints him in a bad light.

Similarly, the jury might be tempted to reason – impermissibly – that YA is a person of bad character, or has a tendency to commit such offences, and therefore is more likely to have been involved in the murder and wounding offences. That kind of risk arises whenever evidence of uncharged criminal acts are admitted. It is less of a risk in circumstances where Mr Akot is expected to deny that any such stabbing occurred. Even so, it is a serious risk warranting appropriate caution in deciding whether to allow the evidence to go to the jury.

These kinds of prejudice can be cured by appropriate directions to the jury.

Context evidence is frequently accompanied by what are often referred to as “anti-tendency” directions: see, for example, Salgado v R [2022] NSWCCA 58. Similarly, the jury can be directed that the evidence is admitted for particular and limited purposes, namely to place in context the events of 1 September 2021 and as evidence relevant to YA’s intentions, and his participation in (or withdrawal from) the joint criminal enterprise.

The jury would be directed that it must not reason that the accused is a person of bad character and therefore more likely to commit the offence on 1 September 2021. Further – assuming Mr Akot repeats his denial that he was injured or chased on 31 August 2021 – the jury will be warned of the dangers of acting on the “admission” in the video especially in light of YA’s explanation in his statement.

It is significant that the potential for unfair prejudice is greatly diminished by the Prosecutor’s agreement to tender YA’s statement in his case. That statement provides an explanation for the making of the video.

For the foregoing reasons I am not satisfied that either the general discretion in s 135 to decline to admit the evidence or the mandatory exclusion of unfairly prejudicial evidence in s 137 should be invoked in the circumstances.

The evidence is admissible.