Supreme Court New South Wales Medium Neutral Citation: R v Diallo & Ors (No 3) [2024] NSWSC 877 Hearing dates: 4 July 2024 Date of orders: 18 July 2024 Decision date: 18 July 2024 Jurisdiction: Common Law Before: Hamill J Decision: The evidence from YA's Snapchat social media account in exhibit VD 7 is admissible Catchwords: EVIDENCE – admissions – assessment of probative value – where accused admits or boasts that he stabbed "AK" – where AK gives evidence that he was not harmed – whether probative value of evidence diminished by virtue of AK's denial – where stabbing not subject of charge or incident giving rise to charges – where incident subject of admission occurred on night before alleged murder – whether evidence "transactional" – evidence of context – probative value of evidence – danger of unfair prejudice – potential for misuse of evidence – tendency evidence – bad character evidence – whether prejudice can be cured by direction Legislation Cited: Evidence Act 1995 (NSW), ss 97, 98, 135, 137, 164 Cases Cited: R v Diallo & Ors (No 2) [2024] NSWSC 853 R v Diallo & Ors (No 4) [2024] NSWSC 882 Salgado v R [2022] NSWCCA 58 Category: Procedural rulings Parties: Rex (Prosecution) Ibrahima Diallo (Defendant) AG (Defendant) YA (Defendant) AD (Defendant) Panashe Morgan Ryan Karise (Defendant) Representation: Counsel: E Balodis and J Sfinas (Rex) R Wilson SC (Diallo) M Avenell SC (AG) W Terracini SC KC and P Kondich (YA) B Robinson (AD) M Smith (Karise) Solicitors: Office of the Director of Public Prosecutions (Rex) Crimcorp Defence Lawyers (Diallo) Sydney Criminal Law Specialists (AG) King & York Lawyers (YA) Wiltshire & Wroughton Legal (AD) McGirr & Associates (Karise) File Number(s): 2022/00052005; 2022/00051961; 2022/00052010; 2022/00052239; 2022/00091174 Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW). JUDGMENT 1. 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)"). 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: "if YA was armed and enjoyed, as he seemed to, the combative aspects of the 31st, then it is well open to conclude that he returned on the 1 September 2021 with that aim and thus must have been armed with the intention of using a knife, at least at the time he exited from the car that took him." [1] 1. 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] 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: "4. The asserted fact which the Crown relies upon is that Mr Akot Akot was stabbed on the evening of the 31st August 2021. 5. The indisputable evidence given by Mr Akot Akot in court was that he was NOT stabbed whatsoever on the 31 August 2021. On that basis, we suggest that the probative value of YA's account of 31 August 2021 in stabbing Mr Akot Akot is of now no probative value whatsoever and instead is outweighed by the danger that it will be unfairly prejudicial to YA and/or misleading or confusing." [3] 1. 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): "TERRACINI … Firstly, there is no connection whatsoever of us with any knife. There are no fingerprints, DNA, et cetera. Secondly, so far as we are concerned and I've looked at this even with a magnifying glass, there is no evidence that we ever left a motor vehicle of any kind located in proximity to where your Honour has seen the revving up of the engine and the lights and all of that sort of thing. You see some human forms but they may well be the persons you later hear on an audio talking about what others did. That does not include us and there is no attempt as I understand it by the Crown to identify us as leaving a motor vehicle and being involved in an assault other than of course what they claim are admissions by us. Coupled with that we have the sworn evidence and I'm not going to go into the unsatisfactory nature of that witness' evidence but it is there and he says that he was not stabbed by anyone let alone us. When we are challenged with it we say we don't know what you're talking about and that is sufficient for a denial from our point of view. Almost of equal importance is the suggestion my friend says that the word 'Chinging', means stabbing and then nominates yet another person that apparently was stabbed and that's a relative of Akot Akot and that is Joseph Akot Akot (sic) the fellow who was in the witness box was otherwise known as David Akot Akot so a different person and we've apparently stabbed a Joseph Akot (sic) as well. There's never been anything that falls from that. There's no suggestion that that person is coming along to say he was stabbed or there's no evidence in the brief that indicates that that is true. So what we're left with is a statement made by the accused and I'll interrupt myself. There's no denial that he is there on 31 August in or around the scene that is not an issue; the issue is whether it's sufficiently probative vis a vis the prejudicial effect that it goes before the jury that he stabbed someone or indeed stabbed two people. There being no confirmation whatsoever from any source at all other than what we say happened on the night. The prejudice, I won't labour it with your Honour, the prejudice is obvious. The reason why we have relied on the discretionary sections is because it's also obvious that it does have some probative value, we don't deny that, but in the circumstances of a murder trial that it's alleged we've been involved closely or otherwise jointly in a murder and then we have to deal with a separate event involving separate persons and then we have to meet that despite the fact the Crown can't call anyone to support what we have said is prejudice that cannot be overcome. One example I hope will suffice: assume that my friend calls in some way either audio visual or assisted to the witness box physically, that is Mr David Akot Akot and he then puts on a performance of some kind in addition to what he gave in the witness box even though your Honour told the jury not to speculate there is a very real risk. Bearing in mind that the jury would form the view that at the very least he is a hoodlum and that we at least know him but there's some suggestion that somebody could have put him up to deny it or giving a self-serving statement in an attempt to help us. We can deny that because again I reiterate our instructions which are obviously signed is that he's going into the witness box and he can deny it of course but the speculation is there. What is going to be difficult and your Honour has probably already gleaned the difficulty with the Crown case there is they cannot put in accordance with their case that he did in fact do these things because they don't have a witness to confirm it let alone the victim. The best they can do is to say 'You said you did it.' That is a risk in itself as the jury being able to interpret the technical and sometimes semantic differences between what lawyers can put and what they can't. It's a very real problem because on their case they can't say 'Categorically, you did this.' Because the victim says it never happened. That's a prejudice just in itself. Plus the final submission is that an event the previous night involving in some cases identical dramatis personae as I've said I don't deny that it has probative value but the real probative value that my friend seeks is not that we are there, not that we are there in some way presumably to help or aid but in fact stabbed two people. It's one thing to say that you're there and one thing to say that you may at least in theory are in a position of perhaps helping if something happens but it's a very different proposition to have before the jury that the Crown can rely on two other stabbings. It's not without interest of course if the major allegation is that the deceased man unfortunately was the subject of a stabbing. So in a nutshell they are our submissions." [4] (Italics added) 1. 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. 2. 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: "BALODIS: So, the difference between the admission and the evidence of Akot Akot is not to the point. That's a jury issue to resolve. HIS HONOUR: Are you going to put to [the jury] that [YA] stabbed him? BALODIS: Yes, I'm going to say that the admission should be accepted in terms, 'I did that act', and there, again, we see its probative value. Because it's not just the scared would-be member in the car; it's the active participant out of the car. HIS HONOUR: And is there any other evidence, and this doesn't affect the probative value in a sense because I take it at its highest, but is there any [other] evidence that Akot Akot was stabbed on 31 August? BALODIS: No. I pointed to some circumstances that say that he was outside, but that's as, yes, I know, in answer to your Honour's question. HIS HONOUR: [Part of this exchange was mistranscribed and is of no moment] … But I'm really trying to focus in on the force of Mr Terracini's submission that there is no other evidence. I mean he's putting across the bar table that you can't go to the jury on the basis that [David Akot was] stabbed. But you're saying 'Yes, I can.' BALODIS: I can. HIS HONOUR: Because his client admitted it. BALODIS: Yes." [8] 1. 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. 2. 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: "Q. On the night before Oliver Coleman died did somebody injure you? A. No. Q. Did somebody try to run you over? A. No. Q. Did somebody chase you? A. No. Q. Did somebody threaten you? A. No. Q. Are you telling me the truth? A. I'm telling you the truth." [10] 1. 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] The probative value of the evidence 1. 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. 2. 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. 3. 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. 4. 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: "17. I wanted to give the impression that I had exited the vehicle and engaged in the fight to prove my dedication and loyalty to the group, as well as prevent any repercussions from anyone discovering that I had not actually engaged in the altercation. 18. Accordingly, later that night, I recorded a video of myself, saying, 'I stabbed the fat cunt, AK', and sent it to the MOB group chat. In saying this, I was referring to David 'AK', a member of Murda. I did not actually do this, as I had remained in the car. I only said this to bolster my position in the eyes of the others." 1. 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. The evidence is not misleading or confusing 1. 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. The potential for unfair prejudice 1. 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. 2. 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. 3. 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. 4. These kinds of prejudice can be cured by appropriate directions to the jury. 5. 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. 6. 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. 7. 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. Conclusion 1. 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. 2. The evidence is admissible. ********** Endnotes 1. Prosecutors' written submissions (MFI 9) at [7]. 2. Ibid at [8]. 3. YA's written submissions (MFI 10) at [3]-[5] 4. Tcpt (4/7/24) p 126-128. 5. Tcpt (1/7/24) p 53. 6. There is confusion in the transcript between the identity and spelling of Akot and Okot: Tcpt (4/7/24) p 132. 7. Prosecution case statement (Exhibit VD 3) at [45]. 8. Tcpt (4/7/24) p 130. 9. R v Diallo & Ors (No 2) [2024] NSWSC 853 at [6]. 10. Tcpt (1/7/24) pp 59-60. 11. Tcpt (4/7/24) p 130. 12. Evidence Act 1995 (NSW), Dictionary. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2024