R v Rokomaqisa (No 10) - [2025] NSWSC 1132

Supreme Court

New South Wales

Case Name:	R v Rokomaqisa (No 10)
Medium Neutral Citation:	[2025] NSWSC 1132
Hearing Date(s):	29 August, 1, 18-19, 22-23 September 2025.
Date of Orders:	22 September 2025
Decision Date:	29 September 2025
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme AJ
Decision:	The application to give a Mahmood direction concerning the fact that witnesses were not called by the Crown to give evidence is allowed in relation to Mitchell Forbes only and is otherwise declined.
Catchwords:	CRIME – Murder – Jury trial – Defence application for Mahmood direction as a result of Crown not calling some twenty persons to give evidence – Consideration of relevant factors – Where anticipated evidence is largely speculative and peripheral to relevant issues – Where anticipated evidence is highly unlikely to be admissible – Mahmood direction given only in relation to non-OCN witness where prosecution was on notice
Legislation Cited:	Evidence Act 1995 (NSW), s 102.
Cases Cited:	Mahmood v The State of Western Australia (2007) 232 CLR 397; [2008] HCA 1
Category:	Procedural rulings
Parties:	Rex (Crown) Samuel John Rokomaqisa (Accused)
Representation:	Counsel: K Ratcliffe with J Sfinas (Crown) G Thomas with R Deppeler (Accused Solicitors: Office of the Director of Public Prosecutions (Crown) Ace Legal Practice (Accused)
File Number(s):	2022/00280742
Publication Restriction:	Any evidence or information which reveals, or tends to reveal, the identity of Witness A is subject to a suppression order. Publication of this judgment is restricted until the conclusion of the trial before a jury.

JUDGMENT

David Kamara (aka “Darkie”) was said to have been an associate of the accused and Sailosi Vatubua.[1] He was mentioned a number of times in the evidence and there was some DNA evidence relevant to him. A particular reason the Crown sought to call him was that he had contact with the accused’s telephone service at around the time the Ciphr phone was wiped.[2] (It had come into the possession of police after the Mercedes CYA73Q had been abandoned in Miller Street at the time Mr Nesci’s Camry had been carjacked on 14 August 2021.)
[1] Tcpt, 12 August 2025, p 509(13).
[2] Tcpt, 1 September 2025, p 1535(46).
Kamara was spoken to by police in March 2022 and offered the opportunity to participate in an interview but declined.[3]
[3] Tcpt, 5 September 2025, p 1705(28).
The Crown issued a subpoena with short service to Kamara on 29 August 2025.[4] He attended Court in compliance with that subpoena on 1 September 2025, the 21st day of the trial. The Crown sought to call him on a Basha inquiry to determine the evidence he was able to give.[5]
[4] Tcpt, 29 August 2025, pp 1511-2.
[5] Tcpt, 1 September 2025, pp 1526, 1533.
Mr Thomas, counsel for the accused, objected to Kamara giving evidence based on it coming at such a late stage of the proceedings.[6]
[6] Tcpt, 1 September 2025, p 1534.
The objection was upheld.[7] I was conscious that at that stage, it was thought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1132
Decision Date: 29 September 2025

CaseChat Overview and Summary

In the case of R v Rokomaqisa (No 10), the defendant stood accused of the murder of a person. The case was heard in the Supreme Court of Queensland. The dispute centred around the defendant's right to a fair trial, specifically whether the Crown was required to call certain witnesses to testify in the defendant's favour. The defendant argued that the Crown's failure to call certain witnesses warranted a Mahmood direction, which would allow the jury to draw an adverse inference against the Crown's case.

The primary legal issue the court had to address was whether the anticipated evidence from the uncalled witnesses was such that it warranted a Mahmood direction. The court had to consider whether the evidence was largely speculative or peripheral to the relevant issues and whether it was highly unlikely to be admissible. The court also had to consider whether the prosecution was on notice of the anticipated evidence and whether the defendant's right to a fair trial would be prejudiced if a Mahmood direction was not given.

The court held that the anticipated evidence from the uncalled witnesses was largely speculative and peripheral to the relevant issues. The court found that the evidence was highly unlikely to be admissible and that the prosecution was on notice of the anticipated evidence. However, the court held that a Mahmood direction should only be given in relation to the non-OCN witness, as the prosecution was on notice of the anticipated evidence from that witness. The court found that the defendant's right to a fair trial would not be prejudiced if a Mahmood direction was not given in relation to the other uncalled witnesses.

The court ultimately granted a Mahmood direction in relation to the non-OCN witness. The court held that the defendant's right to a fair trial would be prejudiced if the jury was not allowed to draw an adverse inference against the Crown's case in relation to that witness. The court found that the Crown's failure to call the non-OCN witness warranted a Mahmood direction. The court did not grant a Mahmood direction in relation to the other uncalled witnesses, as the anticipated evidence from those witnesses was largely speculative and peripheral to the relevant issues.

Orders