R v Diallo & Ors

Relevant portions and rulings

1. I will set out the relevant portions of the transcript and record my rulings with very brief reasons. As noted, for the sake of clarity (for the parties), I have referred to the portions by the same numbers as those adopted by counsel in their written and oral submissions. These correspond with the original 23 portions identified in the first version of the transcript (Ex VD 16). Those missing are no longer pressed.
2. The Prosecutor does not propose to tender the entire six hours of recordings. That is a small mercy because the recordings are quite difficult to hear, punctuated by the occasional loud banging and other irritating noises and, with respect to the participants, are quite mundane and tedious.

Portion 1

1. Portion 1 on page 2 of the transcript is as follows: "V: Isn't that a surprise? (THUDDING) (GRUNTING) (SHUFFLING) V: Jesus Christ. (METAL CLANKING) Senior Constable Tim HALL: Jump in, mate. Won't be long, all right. V: Mmm. (THUDDING) YA: …..I'm fucked (?) bro. AG: Are you playing us? YA: Hmm? AG: 13:50 Are you playing us? YA: No, I'm just saying this it's weak but, like, this whole thing. Just like, fuck it AG: ..... back on court now."
2. The observation by YA that "I'm fucked" cannot rationally be said to reflect a consciousness of guilt on his part: cf R v Qaumi & Ors (No 54) [2016] NSWSC 1067. YA's colourful exclamation may be a reaction to things he had been told by police, or his knowledge of the case against him (by reference to the fact sheet or otherwise), or it may reflect the reality of his predicament: earlier that day he was arrested for, and charged with, extremely serious offences. Equally, it could have nothing to do with the case at all and be an expression of exhaustion.
3. Similarly, in the absence of context, the question by AG "are you playing us?" is of minimal probative value but has a potent capacity for misuse. I accept that it could be thought he was inquiring as to whether YA was dealing with the police to set up the co-accused. However, even if that is so, it does not rationally lead to a logical inference that AG was evincing a consciousness of guilt. The danger of unfair prejudice includes the possibility that the jury may misuse the evidence or give it too much weight. That danger outweighs the probative value of the evidence.
4. Portion 1 is not admissible.

Portion 2

1. Portion 2 on pages 5-6 of the transcript is as follows: "YA: That was it and then what ..... that was it they offered me the interview obviously. Obviously the interview would help them. AG: Yeah. YA: I stabbed the cunt. AG: OK what do you mean? Youi, you're the weak link in our group. Just saying, you gotta stay staunch cuz YA: Yeah, I know, don't worry..... AG: ….. YA: Yeah, I know, don't worry. Nuh, no, cuz I'm going to tell them the truth about how we were victims, don't worry. AG: What do you mean, tell the truth? YA: That we were victims, that, that we were chased and that for the marijuana transaction. So they're trying to force it. AG: ..... don't talk ..... YA: Obviously, obviously."
2. YA's statement that "I stabbed the cunt" has a capacity to impact in a rational way on the facts in issue at the trial. He previously objected to evidence of a Snapchat video he made in which he boasted of stabbing "that fat cunt AK". That video related to the events of 31 August 2021. I determined it was admissible despite "AK" denying that he was stabbed and YA claiming it was no more than a boast to impress his fellow "street gang" members. It does have a capacity for misuse given the stabbings subject of the indictment occurred on 1 September 2021. The jury would need to be directed (i) not to confuse the two events and (ii) in a standard "anti-tendency" manner. I take the same approach to this evidence as I did with the Snapchat video: R v Diallo & Ors (No 3) [2024] NSWSC 877.
3. The conversation between YA and AG about telling the truth, staying staunch, and YA suggesting that they tell the police they were going to buy drugs and were the victims, is capable of supporting the prosecution case that the accused were exhibiting a consciousness of guilt. Properly directed, there is no real concern that the jury will misuse this evidence. I would allow this part of the conversation against both men.
4. I would not allow the evidence of AG advising YA not to talk to police. That was sensible advice given by lawyers to people in custody every day. It may be that AG would prefer that part stay in but that will be a matter for him and his lawyers.
5. I would not allow the evidence of AG saying YA is the "weak link" as it seems clear that was something that the police said to AG. Once that is understood, the evidence is devoid of probative value but has a real capacity to result in unfair prejudice.
6. Portion 2 is admissible except for (i) AG saying YA is the weak link and (ii) AG telling YA not to talk to police.

Portion 3

1. Portion 3 on pages 7-8 of the transcript is as follows: "AG: Unruly got arrested. (CONTINUOUS RUMBLING) (CONTINUOUS INDISTINCT VOICES IN BACKGROUND) YA: But is he a..... in terms of, like, being smart, is he, is he gunna be smart? AG: Unruly? YA: Yeah he should be, yeah. (INDISTINCT VOICES) V: …any problems… (INDISTINCT VOICES) V: …that's the thing… AG: Will… literally rat us out .....those two, I don't know. YA: We have nothing to rat us out about, bro, like I said we're victims..... and God will, God will ..... AG: Don't say anything, bro --- YA: ..... AG: Don't say anything. YA: Exactly. They're gunna, they're gunna try and force guilt on innocent people… AG: Mmm. YA: Just have patience. Just ..... have patience. AG: Yeah. I'm calm bro, I'm calm... I'm calling it, everything's up there, bro. YA: Yep. AG: Everything's up there bro. YA: I also ---"
2. The reference to "Unruly" is a reference to Mr Diallo. He has taken a separate objection and I am of the view in a joint trial, the evidence should be excluded because of its potential to cause incurable prejudice to Mr Diallo.
3. However, YA's comments where he speaks of "Unruly" being smart and "not ratting us out" are capable of being used in support of an argument that he was evincing a consciousness of guilt. Those are YA's words and they are admissible against him. AG's contribution is to state the fact (that Mr Diallo has been arrested), to repeat his advice to YA not to say anything and to make some other cryptic remarks.
4. Portion 3 is admissible against YA (in his separate trial) [2] but not against AG or in the joint trial involving Mr Diallo.

Portion 4

1. Portion 4 on page 12 of the transcript is as follows: "YA: ..... think about it, they need me to take the stand. Their case is already weak. Why would they need me if they got all the evidence? AG: They said they're gunna pressure you, you're the weak link. YA: Exactly. But then they would only need that if the case isn't that strong. AG: True. YA: ..... our innocence, bro. We just have to wait, that's all. AG: Are we gonna be there what at the same time?"
2. This is the portion that shows the idea that YA is "the weak link" came from the police. The fact that AG told YA that the latter was the "weak link" is specifically tied to what the police told him. Any probative value in this evidence is outweighed by the danger of unfair prejudice.
3. Portion 4 is not admissible.

Portion 5

1. Portion 5 on pages 13-14 of the transcript is as follows: "(BEEP) AG: So they didn't tell you the evidence? They got --- YA: ..... AG: They got video. YA: Of what? CCTV? AG: Snapchats and that ..... YA: ..... really? AG: ..... P: You guys all good? AG: …for nothing… YA: ...did, did they say it was or they, they didn't ..... they said? AG: I'm not sure YA: ..."
2. This portion appears to be AG and YA discussing what the police have told them and parts of the evidence. The snippet of conversation is obscure and adds little if anything to the case. If it has relevance, the probative value is very low. The danger of unfair prejudice lies in the jury attempting to interpret what is being said and attributing a guilty mind to one or other or both of the accused.
3. Portion 5 is not admissible.

Portion 6

1. Portion 6 on pages 16-17 of the transcript is as follows: "YA: ..... at the end of the day bro they don't have evidence saying that we planned to hurt people, you know. And that's the most --- AG: ..... YA: --- important thing in this whole charge. AG: Nah they do YA: Huh? AG: Nah they do. YA: Nah but they don't have plans saying we, we planned to hurt people ..... AG: ..... YA: Yeah, we don't, they don't have evidence of that and that's the most important factor in this charge, 'cause it's a big charge, bro. AG: Is that what they told you? YA: …that's what one of the, like, one of the detectives who's not, not as bad as other ones, he told me like in a different way, so he worded it different ..... AG: You know what they told me today, they were in our group chat. YA: Group chat? AG: In our group chat, they said you have intent…They showed me a lot of stuff today. YA: I, I don't know why they didn't show me. AG: Trying to keep it away from you, that's what I'm saying ..... it's all good…. I believe you brother (CONTINUOUS RATTLING AND RUMBLING) AG: Just don't, just don't break. YA: I won't, don't worry. Same goes brother AG: I-I say one word, I'll smoke you man, you know just cool, calm and collected, even in this situation man YA: ..... AG: You get the call, bro and you can't tell me that YA: Thing is, they've had those group chat chats for maybe the first month or the second month after they, they arrested us. So why did they wait this whole 4 months. (NOISE)."
2. This portion of the conversation is capable of establishing a consciousness of guilt in both AG and YA. The comment by AG that he will "smoke" YA is capable of being seen as a threat to YA if YA "breaks" and both accused express concern about the content of "group chats". Given the significance of group chats to proof of the charges, the evidence has some relevance and probative value. The prejudice or potential for misuse is small and can be addressed by judicial direction.
3. Portion 6 is admissible.

Portion 9

1. Portion 9 on pages 54-57 of the transcript is as follows: "Senior Constable Tim HANNON: Whilst you boys are sitting here, have you actually seen which paperwork yet or not? AG: Um, no. Senior Constable Tim HANNON: Do you want to read it whilst you're sitting here? Senior Constable Tim HANNON: It's a big document, have a read of it. YA: Paperwork for what? Senior Constable Tim HANNON: That's for your charge paperwork. YA: Uh okay Senior Constable Tim HANNON: No, but, like, you might be sitting here doing nothing, have a read of it ….. just try and keep it in order, yeah. AG: Yeah ….. (PAGES RUSTLING NOISES INTERMITTENLY) (INDISTINCT BACKGROUND NOISES INTERMITTENLY) (INDISTINCT BACKGROUND CHATTER INTERMITTENLY) (EXHALING NOISES INTERMITTENLY) you see how big that is ….. (NOISE) YA: That's everyone's offences. AG: Everyone's offences are there. YA: Everyone even, um, people at the house… AG: ….. YA: Well, a lot of this is bullshit. AG:…..Yep YA: Well this is bullshit. Who's EO? You know? AG: I dunno man… YA: These are all phone records, bro ….. what the fuck is this? AG: ….. YA: This is cap, bro, what the fuck is this shit. AG: They're using my name, bro. YA: Look, ….. this is cap. You see, they say it counts for everyone, you see my one, you see my one's over here. AG: Uh, the charges. YA: Yeah. AG: What, he gets the charge as well? YA: So, these are, these are what, these are statements and phone records. AG: Cuz it's the whole brief, the whole brief. YA: I'm trying to find me, where's, where's my name? 'Cause, 'cause the thing is about this case for weeks now it's different. AG: Wait, let me just read this. (SHOUTING IN BACKGROUND) YA: Is everything all right, is everything all right, uh, is everything OK? Senior Constable Tim HANNON: Yeah, yeah, just ….. (BANGING NOISES) AG: This is cap. YA: Look, this is cap. This is easily criminal defence. AG: ….. I was in… about like farrk…I mean…torn around her…wow, what, look, look, look ….. read this. YA: ….. AG: ….. YA: ….. AG: persons in…present look, my name, AD, Ibrahima Diallo, YA, that's you…present at…that's the biggest cap YA: These are cap, bro… AG: I see your name, but where's my name though….. YA: What the fuck. AG: What? YA: What the fuck, bro. AG:….. YA: I fucking stabbed no one, this is such bullshit. Cap as fuck, bro, this is cap, last thing that's come of I thought, …like, the thing. AG: Mmm. YA: Remember? AG: What paragraph? Is it in order? YA: I don't know ….. look see it says, those guys had zombie knives as well, like ….. AG: It's all cap. YA: No, they're saying they had knives and shit. AG: ….. I know YA: It's all ….. AG: ….. that's cap, look, look ….. it's cap ….. fuck me.. the rest ….. as well Senior Constable Tim HANNON: You boys all good? YA: Yeah. Senior Constable Tim HANNON: Sorry it's taking so long. It doesn't usually take this long."
2. This evidence essentially involves AG and YA discussing the police fact sheet. It is capable of misuse because the fact sheet will not be in evidence. The jury would essentially be guessing as to the meaning of the conversation and will have no rational basis to decide what is being independently said by the accused and what is the pair parsing the fact sheet. The Prosecutor says that YA's comment that "those guys had zombie knives as well" should be (or is capable of being) an admission that YA's group had knives; that is, it should be interpreted as meaning "we had [zombie] knives, and they had zombie knives as well". In the context of overwhelming evidence that some members of the MOB group had knives, this evidence adds very little to the narrative. If it is read to mean that MOB had "zombie knives" - which is the logical extension of the Prosecutor's submissions - it is potentially misleading.
3. The reference to "cap", which Senior Counsel for AG told me authoritatively means "a lie" or similar, [3] is otherwise mysterious and adds very little.
4. Portion 9 is not admissible.

Portion 10

1. Portion 10 on pages 64-66 of the transcript is as follows: "Senior Constable Tim HANNON: ..... what are your names again? YA: That's your number. AG: ..... Senior Constable Tim HANNON: What's your name? AG: A. YA: Yeah ..... AG: A --- Senior Constable Tim HANNON: A? AG: A. Senior Constable Tim HANNON: A. AG: A. Senior Constable Tim HANNON: A. YA: Yeah so, so ..... in terms of ..... the mobile number Senior Constable Tim HANNON: What's your surname? AG: G. YA: [telephone number REDACTED]. Senior Constable Tim HANNON: What's his name? AG: YA. Senior Constable Tim HANNON: YA. YA: OK, OK, thank you. Senior Constable Tim HANNON: YA. YA: Sorry? Senior Constable Tim HANNON: ..... YA: I will be, yeah, yeah. Senior Constable Tim HANNON: All good. AG: Sorry what are these for? YA: ..... AG: What is this? Senior Constable Tim HANNON: Oh they just want, I dunno know, the Sergeant in there just wanted to double check your names. (16:07) AG: Oh OK. Senior Constable Tim HANNON: All good? AG: Yeah, all good. Senior Constable Tim HANNON: Hey, you've got a lot of reading in there to do. AG: Yeah ..... YA: Man that's good ..... Senior Constable Tim HANNON: What is it? AG: The incident, you know. Senior Constable Tim HANNON: Huh? AG: The incident where we got attacked. YA: ..... yeah. An incident where we got attacked Senior Constable Tim HANNON: It's all about that is it?"
2. I am unable to identify any probative value in this evidence. It does not contain any relevant admissions and could not rationally be used to establish a consciousness of guilt in either participant. The only truly intelligible part is where YA tells the police officer that the case arose from an "incident where we got attacked".
3. Portion 10 is inadmissible except insofar as it is relied on by the accused.

Portion 11

1. Portion 11 on page 72 of the transcript is as follows: "AG: ..... look at this. YA: Um, we didn't touch that ..... them chasing ..... (BACKGROUND VOICES) AG: These niggas are snitches. That's their name and everything. YA: Videos time stamped, videos of the car… See, they recorded it after, after the incident with, with the guy so it's, like, they were chasing, they were chasing us see ..... (PAPERS RUSTLING) (INTERMITTENT INDISTINCT VOICES IN BACKGROUND)."
2. The accuracy of the transcript is disputed with respect to the words which are italicised and emboldened in the above passage. For what it is worth, I think I can hear the words contended for by the Prosecutor although I do not rule out the possibility of confirmation bias. However, what is said would be a matter for the tribunal of fact.
3. Even assuming those words are capable of being heard, the passage provides evidence of nothing more than AG musing that some people are "snitches". Of whom he makes that accusation is not completely clear and YA's response or comment does nothing to clarify the meaning.
4. The evidence in portion 11 is not admissible.

Portion 12

1. Portion 12 on pages 76-77 of the transcript is as follows: "YA: Is Lee Coleman his dad? AG: Huh? YA: I said, is Lee Coleman the father of the…? AG: ..... (RUSTLING) (BUMPING) AG: Lee Coleman, Lee Coleman's not the dad ….. YA: Who is it? AG: Clearly some guy now… I think it is YA: ..... nah cuz AG: It is? YA: Yeah, yeah and EC isn't the dad, is the guy who got….."
2. In oral argument, the Prosecutor said of this portion: "there doesn't appear to be an objection. If there is, again, it's for context to understand that they are speaking about these police facts". [4]
3. The indecipherable or unfinished sentences means the evidence has a very limited capacity rationally to affect an assessment of a fact in issue.
4. In the absence of objection, I rule that portion 12 may be tendered but solely for the purpose of voice identification and only if necessary.

Portion 13

1. Portion 13 on page 78 of the transcript is as follows: "AG: Today in the cop shop --- YA: Oh --- AG: --- today in the cop shop they said that I said this. YA: Oh, what's that? AG: Today in the cop shop --- YA: Yeah. AG: --- they said that I said this. YA: Mmm. Who said these words, who said all this talk? AG: I never said put one of these niggas in that, that emoji bro. (INDISTINCT) (DOOR SLAMS) (INDISTINCT VOICES IN BACKGROUND)."
2. AG acknowledges that the reference to the emoji is "presumably" a reference to a coffin emoji which was included in a message sent by him at 12:45 pm on 1 September 2021. The communication can be seen at item 808 on page 72 of Ex VD 14A and there is little room for doubt that it is this message to which AG was referring.
3. His assertion that he "never said" those things is relevant evidence. It is not taken to be irrelevant even if it only goes to his credibility (if he becomes a witness): cf Evidence Act 1995 (NSW), s 55(2). However, its relevance may go beyond that and suggest that the message - by his false assertion that it was "never said" - has the sinister overtones the prosecution will assert that it has.
4. While the jury should be directed to proceed carefully in drawing inferences in relation to evidence of this kind, the prospect that portion 13 will be misused by the jury or afforded excessive weight is small.
5. Portion 13 is admissible against AG but I can see no basis upon which it could be admitted against any other accused.

Portion 16

1. Portion 16 on pages 97-98 of the transcript is as follows: "YA: Oh, yeah. Ay, the video they showed you at the cop shop, did they, was, was militant, was I carrying my ank --- AG: Hm? YA: --- in the video? There was no ank like?-- AG: It was you, was you, in a balaclava saying I got Jmoney, this guy got this guy --- YA: But, but no ank? AG: Not sure, I can't recall. But it's dark, though, I didn't really look at it. YA: Nuh, nuh ..... I, I know what it mean, nuh, nuh, there's no, it's not ..... actually, I remember. I know, I know, yeah, yeah. Um, if you want to take the papers now, yeh? Senior Constable Tim HALL: Are you done with it? YA: Yeah. Senior Constable Tim HALL: Just chuck it all in the boot. YA: Yep. Thank you. AG: Thank you. (SOUND OF DOOR)."
2. This portion appears to involve AG and YA discussing what each was told by police and in particular referring to a video depicting YA wearing a balaclava saying, "I got J-money, this guy got this guy". It is not clear whether this is a reference to the video which I ruled to be admissible in R v Diallo (No 3) but if it is, AG seems to have the details wrong: cf R v Diallo (No 3) at [1] and [6]. Either way, AG recalling what he was shown by police cannot rationally impact on a consideration of the facts in issue. As to the balance of the exchange, it is not known what "ank" means - although in context, it may be a reference to a knife - and AG says he didn't "really look at" the video. In YA's case, the evidence could conceivably demonstrate his concern about what evidence the police possessed to inculpate him in the offences. However, its probative value in that regard is not significant. There is a danger of unfair prejudice which lies in the likelihood that the jury would give too much weight to this evidence, or would speculate about this possible stabbing which is not one of the counts on the indictment. Section 137 requires this evidence to be excluded.
3. Portion 16 is not admissible.

Portion 17

1. Portion 17 on page 102 of the transcript is as follows: "(SOUND OF CAR DOOR CLOSING) (CLINKING) AD: Did they read to you, what's the evidence? YA: They gave us, like, the whole fact sheet ..... AD: ..... YA: 170, 170 pages long ….."
2. It appears that this is the first portion of the recording which took place after AD got into the police van. It should be observed that none of the portions before this moment are admissible against AD.
3. The evidence in portion 17 is not relevant as that expression is defined in s 55 of the Evidence Act. Even if it is relevant, its probative value is slight and the jury would be left to speculate on the contents of the 170-page fact sheet.
4. It is conceivable that the accused may want this evidence to put in context other things said by them. That is, their reading the fact sheet may explain the things they said. However, putting that aside, the evidence should be excluded under ss 56, 135 or 137 of the Evidence Act.
5. Subject to AD, AG or YA wanting the evidence before the jury, portion 17 is not admissible.

Portion 18

1. Portion 18 on page 103 of the transcript is as follows: "AD: --- the highest charge you can get is M. YA: Mmm AG: Mmm V: and what's called the two --- YA: They gave, they gave two attempted --- (BEEPING)."
2. The probative value of this evidence, which appears to lie in the use of the letter "M" to signify murder, is slight.
3. Evidence of the use of the letter "M" as a shorthand for "murder" in the social media communications has already been excluded: R v Diallo & Ors (No 4) at [45]-[54] and the table of rulings at [89] (items 576 and 951). Accordingly, the evidence in portion 18 of this recording cannot add to the understanding of those earlier communications.
4. The potential for this evidence to be misused is real. Section 137 of the Evidence Act commands the exclusion of this evidence.
5. Portion 18 is not admissible.

Portion 19

1. Portion 19 on page 108 of the transcript is as follows: "AD: Huh? Did, did you, did they charge you for M? YA: Yeah, they charged all, all of us. We all got the same bro … AG: PS got the M, uh, fuckin' ---"
2. This portion has a distinct capacity to be confusing and misleading. Ostensibly, it involves nothing more than one co-accused confirming or asking about what other accused were charged with.
3. Portion 19 is not admissible.

Portion 20

1. Portion 20 on pages 121-122 of the transcript is as follows: "AD: Hold up. You know, you know you can ..... YA: Yeah. AD: You have to figure out how ..... the best way to go. YA: Uh-huh. AD: Yeah, just think of that. That's what you got to think of. …finding out, if you can explain it the best way possible, it will be good. YA: (CLEARING THROAT) AD: He's gunna be like, Oh, yeah, wow that's… YA: Uh-huh. AD: ..... just a, just a disagreement between the prices ….. V: ..... AD: Yeah. And I wasn't, and I wasn't, and I wasn't involved in the disagreement between the prices of the ..... so, uh ..... but, um (CLEARING THROAT) and then we went on Friday..... that's why we got ..... that's where we… YA: Where's the disagreement, is it on the socials, or is it, 'cause with socials, it's really bad ..... AD: Uh ..... V: ..... YA: …..Tell them the truth, we stepped out to go to their like…their crib and ..... they came out chasing us… AG: But we wouldn't be separated..... V: Nuh, we would….same, same, same with… YA: I, I don't know. AD: Nuh, fuck."
2. Taken at its highest, this portion of the surveillance device recording may give rise to an inference that AD and YA, in the presence of AG, were discussing a factually plausible narrative that might explain in an innocent way their involvement in the events of 1 September 2021. It is capable of being used as evidence supporting a consciousness of guilt.
3. AG submits the recording is "too disjointed to make much sense of it" and notes some aspects of the portion which create confusion about what was being discussed. He goes on to submit "there is a risk the jury may read this as AD and YA trying to concoct a false explanation for being at William Street, when it is not clear that is what they were speaking about." AD submits "the jury is likely to misinterpret" this passage and relies on the submissions of AG. I do not understand YA to raise objection to this passage.
4. The asserted lack of clarity and the availability of other inferences are factual matters for the jury to consider.
5. A risk that the jury may misinterpret this part of the conversation does not render the evidence inadmissible. One possible inference is that the accused were attempting to concoct an innocent explanation. That is the inference the prosecution will invite the jury to draw. Any risk of misuse will be overcome by proper directions on circumstantial reasoning and the care that must be taken in using evidence said to establish a consciousness of guilt. The disjointed nature of the recording and any confusion apparent in the mind of the speakers are matters that can be canvassed by counsel in their addresses.
6. Portion 20 is admissible.

Portion 21

1. Portion 21 on page 125 of the transcript is as follows: "YA: ... I reckon, we talk individually here, listen we all stay staunch and stay eetswa but other than that, individually."
2. This evidence has limited probative value and some capacity to be misused. Pursuant to s 137 of the Evidence Act it is not admissible.
3. Portion 21 is not admissible.

Rulings

1. The following table sets out the evidentiary rulings by reference to the portion numbers used by the Prosecutor: Portion Ruling Paragraph of judgment 1 Inadmissible 12 2 Admissible except for (i) AG saying YA is the weak link and (ii) AG telling YA not to talk to police 18 3 Admissible against YA in his separate trial 22 Inadmissible against AG or in the joint trial involving Mr Diallo 4 Inadmissible 25 5 Inadmissible 28 6 Admissible 31 9 Inadmissible 35 10 Inadmissible except insofar as it is relied on by the accused 38 11 Inadmissible 42 12 Admissible for the purpose of voice identification if necessary 46 13 Admissible against AG but inadmissible against any other accused 51 16 Inadmissible 54 17 Inadmissible, subject to AD, AG or YA seeking to rely on it 59 18 Inadmissible 64 19 Inadmissible 67 20 Admissible 73 21 Inadmissible 76

1. I repeat what I said at [56] above, that none of the portions recorded before AD was placed in the van are admissible against him. Neither are any of the portions admissible against either Mr Diallo or Mr Karise.
2. It will be for the parties to decide how the evidence is best presented to the jury. It may be that the four to six individual portions or clips are played to the jury. I assume there will be evidence that allows the jury to understand that these brief passages are derived form six hours of covertly recorded conversations so that the evidence is placed in a realistic context. It may even be, given the limited number of portions to be admitted into evidence, that the prosecution will reconsider whether it will rely on this material. Such an approach would no doubt be accompanied by some form of undertaking by defence counsel that they will take no unfair forensic advantage. I do not mean to intrude into the province of the Prosecutor, but merely raise these matters for consideration by all counsel.

Endnotes

1. Between the time I reserved on these evidentiary rulings and the publication of this judgment to the parties, I made an order under s 21(2) of the Criminal Procedure Act 1986 (NSW) that YA be tried separately to the other four accused men: R v Diallo & Ors (No 6) [2024] NSWSC 917.
2. See R v Diallo & Ors (No 6) 2024 NSWSC 917.
3. Tcpt (18/7/24) p 453.
4. Tcpt (18/7/24) p 445. 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: 15 November 2024