R v Diallo & Ors

Supreme Court of NSW|2024-08-27|Before: Hamill J

JUDGMENT

Panashe Karise objects to evidence of a conversation in which he allegedly told a friend that he "digs it" when he thinks about the killing of Oliver Coleman. Mr Coleman died of stab wounds on 1 September 2021. The conversation was recorded in a telephone intercept on 28 October 2021 when Mr Karise was speaking with someone named Phillip Nkpolukwu. Mr Karise, along with three other men (AG, AD and Ibrahima Diallo), is on trial for Oliver Coleman's murder and the attempted murder of two other men, EC and EO. [1] The offences were allegedly committed in what is said to be a dispute between rival gangs in suburban Sydney.
The objection falls to be determined by reference to well established principles although, in this instance, the application of those principles presents some difficulties. Counsel for Mr Karise, Mr Smith, relies on the provisions of ss 55-56, 97-101, 135 and 137 of the Evidence Act 1995 (NSW). Putting to one side the question of whether the evidence is inadmissible tendency evidence, I am applying the same principles I discussed in a judgment relating to 300 evidentiary rulings made earlier in the trial: R v Diallo & Ors (No 4) [2024] NSWSC 882 ("Diallo & Ors (No 4)"). Other judgments provide the factual background and evidentiary context in which the ruling is made: see, for example, R v Diallo & Ors (No 2) [2024] NSWSC 853, Diallo & Ors (No 4) and R v Diallo & Ors (No 6) [2024] NSWSC 917.

The conversation to which objection is taken

The recording to which objection is taken was tendered on the voir dire in the form of a DVD which was marked Ex VD 32A. There is a transcript (Ex VD 32B) which is disputed in a critical respect. The transcript is in the following terms with the disputed passage italicised (it is coloured red in the exhibit): "PN: All because he caught an 'M'. PK: (Inaudible) cause' caught an 'M'. PN: Yeah. Caught 'M' for the (sounds like) gang. (Unintelligible) PK: Then go straight out, that still feels surreal. PN: (Sounds like) Wuss. PK: An 'M' has been caught. I can't lie bro. Some nights I just sit there and I dig it. PN: (Sounds like) 'What do you mean'? PK: Um? PN: What do you mean? PK: There's a dead nigger."
I have emboldened the word "dig" in the italicised portion of the transcript for two reasons. First, it is the critical word in the passage. Secondly, Mr Smith says the word used is not "dig" but "deep".

The arguments

This objection was not resolved during the lengthy pre-trial hearing which meandered along between 1 and 30 July 2024. The parties were in discussions about the content of several telephone intercepts that the prosecution intended to adduce and to which objection was taken. The parties advised that there may be some minor objections to be considered during the trial proper which commenced with the empanelment of the jury on 31 July 2024. The parties are to be congratulated on reaching agreement on most of the issues. However, it seems the discussions continued well into the conduct of the trial and finally fall to be resolved in the fifth week of the trial and within days of the prosecution closing its case.
Evidence on the voir dire was taken and arguments were heard on 21, 26 and 27 August 2024. [2] Mr Karise filed written submissions after the first of the oral arguments in response to questions raised from the bench and arguments made by the other side. [3] More focused written submissions were then filed prior to the third tranche of oral submissions and these were directed to the principles discussed in the case of Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 ("Elomar"). [4] The issue must now be determined urgently.
There is no dispute that an inference can readily be drawn that the reference to "M" is a reference to murder and that the conversation relates to the killing of Oliver Coleman. There is no suggestion it could relate to anything else.
On the Prosecutor's case, the word "dig" gives the conversation its probative value. On Mr Karise's case, the word "dig" was not spoken and, even if it is open to the jury to find that it was said, it causes incurable prejudice to Mr Karise. The parties seem to agree that, in context, the jury would be entitled to infer that saying one "digs" something is akin to saying one likes it, or is pleased by it, or enjoys it. That joint position accords with the colloquial meaning of the word "dig" over many decades. [5]
The Prosecutor submits that the jury would be entitled to infer that Mr Karise's comment that he "digs" the fact that somebody caught an "M" and "digs" that "there's a dead n***er" is relevant to his state of mind. He submits it is consistent with the prosecution case that Mr Karise joined a criminal enterprise to kill or inflict serious injury on members of the other "gang". He argues it is admissible circumstantial evidence and, in circumstances where Mr Karise admits to stabbing EO, [6] that he acted with the relevant intent and did not act in self-defence.
Mr Smith submits the evidence is, in truth, tendency evidence and is inadmissible in the absence of a proper notice and because of its potential for prejudice. [7] It is submitted the evidence is not otherwise relevant because there is no rational way in which the evidence can impact on the facts in issue. Essentially, at the risk of oversimplifying a well-reasoned argument, the submission is that whatever state of mind Mr Karise may have had on 28 October 2021 it cannot (rationally) establish his state of mind leading up to, and at the time of, the stabbings (1 September 2021). Further, the layers of ambiguity in the impugned passages give rise to incurable prejudice. Finally, whether or not it is properly categorised as tendency evidence, it will lead the jury to infer that Mr Karise is a person of bad character and gives rise to a significant danger of unfair prejudice.

The controversy over the transcript: Dig v Deep

While Mr Smith contends the words spoken are "I deep it" rather than "I dig it", he acknowledged at the outset that this is ultimately a question for the jury: "We're not asking your Honour to resolve it, obviously that's not a matter for your Honour, but the fact that it's ambiguous is part of the argument." [8]
Listening to the recording, the word used has the longer "ee" sound (as in "sleep" or, relevantly, "deep") rather than the shorter "i" sound (as in "pig" or "slip" or, relevantly "dig"). I understood the Prosecutor to concede this when he referred to the "perhaps … strong accent" in the word (as he contends) "dig". [9] Against that, "deep" is not generally used as a verb although that assertion may betray an antiquated understanding of modern Australian usage. As to that possibility, see the tables below. Either way, I must accept Mr Smith's concession - repeated with a hint of reticence on the second occasion the objection was canvassed - that this is not a matter for me to resolve other than insofar as it feeds into the submission that the words are ambiguous and therefore either not relevant or capable of misuse. [10]
I raised the question of what "deep" could possibly mean in the context of the conversation because, at first blush, it makes little sense. However, Mr Smith referred me to a few occasions where the word was used in various communications that are part of a table of communications tendered earlier in the trial: see Diallo & Ors (No 4) and Ex 27, which is a long table of social media communications and other items derived from telephones used by the accused. After the first portion of the argument (on 21 August 2024), Mr Smith provided succinct written submissions which included a helpful table giving examples of the use of the verb "to deep" from Ex 27.
The following table is different to, but borrows extensively from, the table prepared by Mr Smith: Item number in Ex 27 Communication Accused against whom tendered Possible contextual meaning - By whom 376 "I'm still deeping it" AD, AG and Diallo Considering [it]. - AG Ruminating [on it]. 445 "it's that deep aye" AD and Diallo Significant, important, profound. - AD 578 "'Deep it they will kill themselves atter" AD and Diallo Unclear, but possibly think about [it]. - AD 584 "That's deep aye" AD and Diallo Significant, important, good. - AD 585 "-Break something deep like the washing machine" AD and Diallo Unclear, but possibly important or unimportant. [Meaning may turn on whether it is a literal "washing machine" or past experiences with same.] - AD 694 "= Deep the name how u gonna be that bored to name yourself that" AG and AD Think about, consider. - AD Like or dislike. 824 "Deep this I full asked" Diallo Consider, think about. - Diallo Like or dislike.

I have italicised the examples where "deep" or "deeping" appear to be used as a verb to mean to think, to contemplate and/or to ruminate upon. Based on these examples, the putative verb "to deep" might mean, in context, to consider, to ruminate, or to consider something to be profound or important.
Applying this usage of "deep" to the conversation under consideration, one possible meaning of Mr Karise's observation that he "deeped" the situation involving somebody catching an "M" and somebody being dead is that he was ruminating on, or preoccupied by, the occurrence or that he considered it to be a profound or important event while thinking about it. If, in truth, that is what was being communicated, there is no basis upon which the conversation could be incriminating or could be used rationally to impact on the probability of a fact in issue in the trial.
It will be seen from the third column in the table at [14] that none of the evidence from Ex 27 that might explain the somewhat idiosyncratic, and possibly inconsistent, usage of the word "deep" as a verb has been tendered in Mr Karise's case. However, the Prosecutor accepted that the evidence could be tendered in Mr Karise's case and its use limited pursuant to s 136 of the Evidence Act. The jury would be permitted to use the evidence simply to make an assessment as to whether the word(s) used in the impugned passage was "dig it" or "deep it".
The Prosecutor also agreed that, if the jury find the word used may have been "deep", the conversation cannot be used in the case against Mr Karise. He undertakes to address the jury in that way. Further, the jury could be directed in a similar fashion by being told that if the word used was deep, the conversation is consistent with Mr Karise's innocence and no guilty inference can be drawn.
On the second day the issue was canvassed in Court, the Prosecutor played five recordings where the word "deep" was used and one recording where it was alleged that the word "dig" was used. A table of these communications was tendered as Ex VD 34 and the recordings were Ex VD 35A, 35B and 35C. Ex VD 34 records these as follows (with my emphasis on the words "deep" and "dig": DATE CONVERSATION AS TRANSCRIBED IN Ex VD 34 V2: It's deep, bro. It's very, very, very deep. Like no one knows how deep it is except you. It's very deep to me. Very deep. V1: Hundred (unintelligible) that was disgusting. 30/9/2021 … V1: Gees. V2: And then he was like, "damn, I didn't know that deep". 10/10/2021 V2: Yeah, nigga. I was (sounds like) deeping it. If I go in I can't look like a little (sounds like) deng. threw out like everything, just like squash it? 12/10/2021 V2: Yeah V1: Cuz, its like deep as it is cuz. 26/10/2021 V2: Yeah. You have to um, you have to go deep. They will need to get proof. 6/11/2021 CHIR-CHIR - What do you mean you saw them what were they doing there? KARISE - I don't fucking know. But there was two cars deep 17/10/2021 V1: Shush again, (unintelligible) again. Don't talk. Ready. You have to dig the words but, you have to dig the words. Let me touch your soul. Listen. Listen. Yeah.

I understood (erroneously) that on each occasion the word "deep", "deeping" or "dig" was used in these examples, the speaker was Mr Karise. [11] However, Mr Smith indicated that it was not conceded that the call on 12/10/2021 was a recording of Mr Karise's voice. Further, and significantly, it was not conceded that the word "dig" is used in the recording on 17/10/2021. As with the conversation to which objection is taken, it was submitted that the word used was "deep", used as a verb as in the italicised examples in the table at [14].
I have listened to the recordings involving Mr Karise on several occasions in chambers as well as listening to them in the courtroom in the presence of the parties.

What I think Mr Karise said

While the authorities suggest it is not relevant, it is appropriate that I record that - based on the audio recordings alone - I am unable to reach a positive conclusion that Mr Karise said "dig it" in the telephone intercept of 28 October 2021 (Ex VD 32B). The same applies to the recording of 17 October 2021. On the other hand, I cannot rule out that he said "dig it".
Based on Mr Karise's and other participant's use of the word "deep" and "deeping" as a verb, on balance but without great certainty, I think that Mr Smith's interpretation of what Mr Karise said in the intercept of 28 October 2021 is correct. That is, if I were the tribunal of fact, I would find that he said: "Some nights I just sit there and I deep it".
However, I accept that it would be open to the jury to come to the contrary view and that is an issue of fact for the jury to determine.

Elomar and the cases following it: tendency v state of mind evidence

The parties provided helpful submissions on the decision of the Court of Criminal Appeal in Elomar where the Court (Bathurst CJ, Hoeben CJ and Simpson J) explained the distinction between using evidence in support of tendency reasoning and using it as circumstantial evidence going to an accused person's state of mind.
In Elomar, the accused were charged with terrorism offences. There was evidence tendered to support an inference that the accused were supportive of certain extremist beliefs. The evidence included the attendance of one accused at a military style training camp in Pakistan which was said to have "a clear Islamic focus". Other evidence was described as "extremist" including "gruesome" imagery including ritualist beheadings and similar which was found on the accused men's computers and other devices. The Court held the evidence was not used in support of tendency reasoning and some relevant statements of principle drawn from the judgment are as follows: "363 As mentioned above, s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning." "366 A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a 'tendency' to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning. 367 Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference)."
As to some of the extremist material found on one of the accused's computers the Court held: "473 The relevant facts sought to be proved by the Crown by the tender of the evidence were:

association between the various appellants;
that various appellants had a state of mind that was disposed towards Islamic jihad;
that the appellants agreed with one another and with other alleged co-conspirators, to engage in acts in preparation for a terrorist act or acts. 474 These were not facts to be proved by tendency evidence. They were facts to be proved by inferences drawn from circumstantial evidence. The circumstances were the common possession of the extremist material, providing the foundation (or part of the foundation) for an inference that other activities of the appellants were undertaken in preparation for a terrorist act or acts. The evidence was relevant also as providing the foundation (or part of the foundation) for an inference that the various appellants agreed with each other appellant, and with the other alleged co-conspirators, to prepare for a terrorist act or acts."

The Prosecutor submitted in the present case that the distinction between using evidence in support of tendency reasoning and using evidence to support an inference concerning a person's state of mind is "subtle but real". [12] That submission is correct and is supported by the approach taken by the Court of Criminal Appeal in Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 ("Medich").
In Medich, the issue arose in the context of telephone intercepts in which the appellant said things capable of supporting an inference as to his state of mind concerning his former business associate (McGurk) and the latter's wife. McGurk was murdered, execution style, on 3 September 2009 and the appellant was convicted of that murder. He was also convicted of an intimidation offence committed again McGurk's wife on 8 August 2010. The relevant communications occurred between May 2010 and the date of the intimidation charge. I said at [886] (footnotes omitted): "The respondent submitted that because the trial was conducted in this way, the evidence that is subject to this ground of appeal (at [884]) was admissible in proof of both counts on the indictment. Large parts of the evidence were admissible in relation to Count 1 because they were able to establish the applicant's strong motivation to recover the money and property that he believed was acquired wrongfully from him by the deceased (and held by McGurk's estate after the murder). The jury was entitled to consider that, if the accused had that motivation in mid-2010, he may have had that same motive in the earlier period leading up to McGurk's murder in 2009. According to authority in this Court, that was not evidence of a tendency to have a particular state of mind; rather, it was evidence of him in fact having that state of mind. Similarly, some of the recorded conversations - including, and in particular, the reference to 'fucking her off like McGurk', whether that be a reference to the applicant's wife or Mrs McGurk - were able to be used by the jury as evidence of a consciousness of guilt in relation to the murder of McGurk. While not entirely analogous to the circumstances of Elomar and Ors v R, the same general principles applied."
Having cited relevant passages from Elomar, I concluded at [887]: "Based on those observations, and contrary to the applicant's submission, the evidence was admissible in proof of the murder charge in a manner other than by tendency reasoning."
Bathurst CJ at [120] agreed that the evidence was admissible "essentially for the reasons" I provided in the passages of the judgment quoted above.
Given the submissions made by Mr Smith in this case, it should be observed that the relevant evidence in Medich derived from comments made after the commission of the murder. Of course, the "continuing" state of mind in question was also relevant to the intimidation offence which occurred afterwards.
I went on to find (dissenting on the issue based on my analysis of the summing up) that given the potential for the evidence to be misused by the jury, the directions provided by the trial Judge were inadequate to cure the danger of unfair prejudice. I said at [888]-[889]: "However, the fact that the evidence was capable of being used in a legitimate way, and other than by resort to tendency reasoning, is not the end of the matter. The evidence was also capable of misuse. That is, the jury may have reasoned backwards, or in a circular way, from a finding (to no particular standard) that the applicant was involved in the intimidation of Mrs McGurk and with the unsavoury characters directly involved in the approach to her home on 8 August 2010, to a conclusion that he was also party to the joint criminal enterprise to murder McGurk. That process could have, and most likely would have, involved tendency reasoning. In those circumstances, the jury ought to have been directed as to the way the evidence could be used legitimately and, more importantly, warned against any forbidden process of reasoning, such as tendency reasoning."

The danger of unfair prejudice

There is no doubt that this evidence carries with it the serious potential for misuse. There is the risk that the jury will have an emotional response to the evidence and/or give the evidence too much weight. If the evidence is found to establish that, in retrospect, Mr Karise took some glee in the death of Oliver Coleman, the jury is very likely to have difficulty in applying a detached and rational mind to it.
There is also the concern that, in the absence of the kind of evidence I have received on the voir dire, the jury may jump too quickly to the view that the word used is "dig" rather than "deep". That is because the use of "deep" as a verb is unusual and contrary to ordinary usage. However, the evidence received on the voir dire shows that others in Mr Karise's world used the word "deep" in that way on a number of occasions.
I am satisfied that there are multiple measures that can be taken to guard against the misuse of the evidence. These include: 1. The evidence set out in the table at [14] being admitted in Mr Karise's case but its use being limited under s 136 to provide context to an evaluation of what was said in the telephone intercept subject to the present objection. 2. Similarly, the usage in the telephone intercept on 10/10/21 in the table at [19] ("I was deeping it") might be adduced in evidence before the jury. 3. Any transcript provided as an aide memoire should include both interpretations of what was said. This will guard against the possibility of what may be described as "confirmation bias". Alternatively, depending on the position taken by the parties, no aide memoire should be provided. 4. The jury being directed that, if they are not sure that the word "dig" is used, it must not use the evidence in any way in support of the case against Mr Karise or otherwise to bolster it. 5. Strong anti-tendency and anti-bad character directions. 6. Depending on the view of defence counsel, such directions could be included shortly after the evidence is adduced as well as in the summing up. It may be that counsel is concerned that providing such direction at the time the evidence is given may highlight the issue about which he is justifiably concerned. Alternatively, he may consider providing timely and firm directions is the best way to deal with the issue. 7. I would also consider carefully any other safeguards suggested by the parties, especially counsel for Mr Karise. Having said that, the record will reflect that his position is that the danger of unfair prejudice cannot be cured. His position will be preserved whether or not counsel is able to assist to create a situation where the risk of misuse and prejudice is reduced.

Conclusion

With considerable hesitation, and based on the application of binding authority, I have concluded that the evidence is admissible.
Taken at its highest, and used as evidence going to Mr Karise's state of mind, the evidence has a substantial capacity to affect the probability of the facts in issues at the trial. If the jury find - once again adopting the Prosecutor's expression - Mr Karise to have "approved" of the death of Oliver Coleman, that is quite probative evidence when the jury is called upon to determine whether he joined the criminal enterprise alleged by the prosecution. It may also have some relevance to the issue of self-defence.
In reaching this conclusion, I am conscious of what the High Court said in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 per French CJ, Kiefel, Bell and Keane JJ (footnotes omitted, but with my emphasis): "50 At a level of logic it is difficult to see how a trial judge could approach the question as to what the probative value of the evidence could be in any other way, for the reasons alluded to by Gaudron J in Adam v The Queen. It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence."
This passage was explained in The Queen v Dennis Bauer (A pseudonym) (2018) 266 CLR 56; [2018] HCA 40 by Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ (footnotes omitted): "69 In this context, reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury. To the extent that GM or BM suggests otherwise, it should not be followed."
See also JW v R [2022] NSWCCA 206; (2022) 302 A Crim R 365 at [80]-[81].
I am satisfied with the safeguards against misuse referred to above, the probative value is not outweighed by the danger of unfair prejudice.

An invitation to the Prosecutor

While preparing this judgment, and again after writing a first draft of the foregoing, I have listened many times to the recording in Ex VD 32A. The more I have listened to the recording, and the better my understanding of the verb usage of "to deep it" or "deeping it" became, the firmer I became in my subjective view that the words used are "[s]ome nights I just sit there and I deep it". That view may have been fortified while observing Mr Karise's reaction during the recorded interview that somebody had died during the incident on 1 September 2021. [13] That occurred while I was reserved on this decision.
However, as the cases show and as Mr Smith concedes very properly, I cannot usurp the role of the tribunal of fact.
Without in any way meaning to intrude on the role of prosecuting counsel, I would invite further consideration of the need for, or desirability of, the tender of this evidence against Mr Karise.
The Prosecutor should know that the Court will well understand if he remains steadfast in the decision to lead the evidence. As I have said, the evidence does - potentially - have significant probative value. But it may be worth a further review of the recording.

Ruling

Subject to the safeguards against misuse referred to in this judgment, especially at [39], the evidence is admissible.

Endnotes

I have ordered that a fifth man, YA, is to be tried separately: R v Diallo & Ors (No 6) [2024] NSWSC 917.
Tcpt (21/8/24) pp 1132-1139; Tcpt (26/8/24) pp 1398-1404; Tcpt (27/8/24) pp 1475-1479.
MFI 48.
MFIs 62 and 63.
For example, in Quentin Tarantino's Pulp Fiction, the character Vincent Vega says to his partner Jules Winnfield, by reference to the drug laws and police powers in Amsterdam, "You'd dig it the most." The on-line American Heritage Dictionary suggests the expression was used in Jazz music in the 1930s: https://ahdictionary.com/word/search.html?q=dig.
Defence opening, Tcpt (1/8/24) p 67.
Evidence Act 1995 (NSW), ss 97(1)(a) and 101.
Tcpt (21/8/24) p 1132 ln 39-41.
Tcpt (21/8/24) p 1133 ln 1-2.
Tcpt (26/8/24) pp 1401-1402.
Tcpt (26/8/24) p 1400.
MFI 62 at [2].
See Ex 49 and MFI 65 at pp 268-269. 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: 14 November 2024

At a glance

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Judgment (13 paragraphs)

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