R v Diallo & Ors (No 6) [2024] NSWSC 917

Supreme Court New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 6) [2024] NSWSC 917 Hearing dates: 22-23 July 2024 Date of orders: 29 July 2024 Decision date: 29 July 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW), I direct that YA be tried separately from AD, Panashe Karise, AG and Ibrahima Diallo in relation to each of the offences on the indictment. (2) Based on the Prosecutor's indication that he will call AD, Panashe Karise, AG and Ibrahima Diallo for trial first, I order that YA's trial be postponed pursuant to s 21(3) of the Criminal Procedure Act 1986 (NSW). (3) YA's trial is listed for mention and directions on Friday 6 September 2024 at 11:30am (or at such other date as notified by my Associate). (4) YA's legal representatives are directed to liaise with the Prosecutor and my Associate to determine whether the mention will be in this Court before me or in the arraignments list. Catchwords: CRIMINAL LAW – application for separate trial – unusual possibly unique case – where Prosecutor agrees to tender statement of co-accused based on understanding the accused will give evidence in joint trial – where statement makes substantial admissions – where statement also implicates co-accused – where statement not tendered against co-accused and not admissible against them – where length of trial estimated to be 2-3 months – where four accused in custody for more than 2 years – dire consequences if basis of tender proves invalid – length of remand – relevance of Senior Counsel's indication of accused intention to give evidence – acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process – counsel and Court unable to find precedent – assessment of prejudice – consideration of possible jury directions – extent to which the accused giving evidence may alleviate the prejudice – summary of relevant principles – whether positive injustice established CRIMINAL PROCEDURE – accused person's decision to give evidence – decision for accused not counsel – accused not bound by counsel's current understanding – many reasons accused may change his mind about decision to give evidence Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 13 Crimes Act 1900 (NSW), s 33 Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 21(2)(b), 21(3), 29, 143 Evidence Act 1995 (NSW), ss 26-29 Cases Cited: Caleo v R [2021] NSWCCA 179; (2021) 290 A Crim R 352 Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 Gan v Xie [2023] NSWCA 163 Hanna v R [2022] NSWCCA 7 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; [2001] NSWSC 688 Hamilton-Smith v George (2006) 247 FCR 238; [2006] FCA 1551 McNamara v The King [2023] HCA 36; (2023) 98 ALJR 1 Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 R v Diallo & Ors (No 1) [2024] NSWSC 852 R v Diallo & Ors (No 2) [2024] NSWSC 853 R v Diallo & Ors (No 3) [2024] NSWSC 877 R v Diallo & Ors (No 4) [2024] NSWSC 882 R v Diallo & Ors (No 5) [2024] NSWSC 914 R v Ditroia and Tucci [1981] VR 247 R v Hawkins; R v Garland [2023] NSWSC 1201 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Houda [2022] NSWCCA 179 R v Jones and Waghorn (1991) 55 A Crim R 159 R v Middis (Supreme Court (NSW), 27 March 1991, unrep) R v Noble [2002] 1 Qd R 432; [2000] QCA 523 R v Pham [2004] NSWCCA 190 R v Sully (2012) 112 SASR 157; [2012] SASCFC 9 R v Wright (1985) 19 A Crim R 17 Tierney v R [2016] NSWCCA 144 White v Ridley (1978) 140 CLR 342; [1978] HCA 38 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)