R v Rokomaqisa (No 10)
[2025] NSWSC 1132
•29 September 2025
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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) |
Representation: | Counsel: |
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. |
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 the Crown case would be concluding within the next few days.[8] Also, the evidence of Kamara did not seem to be critical. If it was, I would have been minded to allow the evidence and would have also allowed the defence time to meet it. This was against a backdrop of there having been repeated complaints by the defence about late service of material; several witness statements and expert reports were brought into existence and served within days of the authors being called to give evidence.[9]
[7] Tcpt, 1 September 2025, p 1537.
[8] Tcpt, 1 September 2025, p 1513.
[9] See, eg, Tcpt pp 870, 1019, 1916.
It was during the discussion about Kamara giving evidence that the prospect of the jury being directed in the terms referred to in Mahmood v The State of Western Australia (2007) 232 CLR 397; [2008] HCA 1 at [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ) was first raised. I tentatively expressed doubt about the appropriateness of such a direction being given when a reason for the witness not being called was that there had been a successful defence objection.[10] The parties had no issue with my informing the jury why the person had not been called.[11]
[10] Tcpt, 1 September 2025, p 1536(42).
[11] Tcpt, 1 September 2025, p 1537(5)-(24).
Mitchell Forbes was another potential witness who had been the subject of a short-service subpoena, which for him was issued earlier in the day on 1 September 2025.[12] He, like Kamara, had previously declined to co-operate with police, in that he refused to make a statement.[13][REDACTED].[14]
[12] Tcpt 1 September 2025, p 1514(47).
[13] Tcpt, 1 September 2025, p 1538(3); Tcpt, 5 September 2025, p 1705(32).
[14] Tcpt, 29 August 2025, pp 1452-1455; Tcpt, 27 August 2025, pp 1280-1283.
After the ruling was made in respect of Kamara, the Crown inquired whether the same would apply to Forbes. Mr Thomas confirmed that he would be objecting to Forbes being called on the same basis. I confirmed that the same ruling would be made.
In subsequent evidence, it was indicated that Kamara was believed by the police to be an associate of the KVT, a gang affiliated with the Alameddine OCN.[15]
[15] Tcpt, 5 September 2025, p 1703(22).
After the evidence had concluded but before closing addresses commenced, I informed the jury about the circumstances pertaining to Kamara and Forbes not having been called.[16]
[16] Tcpt, 16 September 2025, pp 2305-6.
In broad discussions on 16 September 2025 regarding directions that would be required in my summing up to the jury, Mr Thomas indicated he would be seeking a Mahmood direction in relation to a number of “witnesses”.[17]
[17] Tcpt, 16 September 2025, p 2310.
In his address to the jury, Mr Thomas said:[18]
Very quickly, in relation to Crown failure to call evidence, Mitchell Forbes and the individual Kamara were the subject of reference by his Honour, Witness A's girlfriend, Yop and Alicia, the Khalils, Joseph Vokai, Jake Roko‑Morgan, David Kaisuva, Jamal Alameddine, Charbel Chedid, Ezzedine Omar, Assad Alahmad, Saro Adler in relation to the topic of Summer Hill and the accused and drug supply, members of the family of the accused concerning his whereabouts on the two relevant dates, David Kaisuva and the Ayoub brothers that you have heard some evidence about.
[18] Tcpt, 19 September 2025, pp 2401(46)-2402(3).
Most of these people were mentioned during the trial but the reason why they might have been expected to have been called was not in all cases so obvious that it need not have been stated. What the jury were to make of the fact that they had not been called was left unstated.
Mr Thomas was directed to provide a list of the names and a short statement as to the material evidence each of these people would have been able to give so that I could consider whether a Mahmood direction was warranted. That statement was provided to my Associate via email on the afternoon of 19 September 2025.
The Crown responded with short submissions and opposed the giving of a Mahmood direction for each witness.
I resolved to give a direction in respect of Forbes only. Despite the fact that he was not called directly because of a defence objection being upheld, it remained that the Crown were on notice for a considerable time as to the potential materiality of evidence he could give. Further, and in contrast to a large number of people in respect of who the direction was sought, he was not a person entrenched in the criminal milieu of the Alameddine OCN or its affiliates.
I did not consider whether a direction should be given in respect of Kamara as one was not sought. My reasons for declining to give a direction as to the others were as follows.
Witness A’s girlfriend
Witness A’s girlfriend was said to have been generally present at a time when he first met the accused [REDACTED]. There was no dispute that this was the first meeting, although certain details as to what occurred were in dispute. That dispute was insignificant, given nothing about the occasion was relied upon by the Crown in proof of any of the charges.
This person was approached by police for a statement without success.[19]
[19] Tcpt, 16 September 2025, p 2284.
She is not a person the Crown should have been expected to call to give material evidence of anything of significance in the trial. At most, she might have been in a position to give evidence that was relevant to the credit of Witness A, but that would have been subject to the rule against credibility evidence in s 102 of the Evidence Act 1995 (NSW).
Yop and Alisha
[REDACTED].[20] There is no suggestion either of these people saw or heard anything of significance. [REDACTED].
[20] Tcpt, 27 August 2025, pp 1283-1287, 1293-1295.
[REDACTED].[21] [REDACTED].
[21] Tcpt, 22 September 2025, p 2427(5).
Clarissa Hardy
Ms Hardy was the accused’s partner. She was said to be able to give evidence of the movements of the Mercedes bearing cloned registration plates EOS24G and the movements of the accused during the relevant period.
She was approached by police and declined to provide a statement.
The movements of the Mercedes were reliably proved by a computerised tracking device.[22] Further, the prospect of her giving reliable evidence about the accused’s movements over four years ago, in the absence of a statement is highly unlikely.
[22] Ex 13.
In his supplementary closing address on 22 September 2025, Mr Thomas referred to a text message sent to her by the accused stating he would, “hand myself in”. (This was not even referred to in the Crown’s closing address.) Mr Thomas contended that Ms Hardy could have given evidence “to give tone and context, substance to what the accused was actually talking about”.[23] Later, he submitted she would have been “able to give colour and tone and context” to conversations she was a party to.[24]
[23] Tcpt, 22 September 2025, p 2419(38).
[24] Tcpt, 22 September 2025, p 2427(13).
The person who could explain what the accused said was the accused himself, not Ms Hardy.
The Khalils
These three persons were involved in preparing and storing stolen vehicles for future use in the commission of serious crimes. They were said to be able to give evidence as to that activity as well as evidence concerning the persons from whom they received vehicles and persons to whom the vehicles were provided.
Jacob Khalil fled overseas in July 2021.
Brendan and Simon Khalil were arrested and pleaded guilty to various charges. They did not make any statements nor participate in interviews. The likelihood they would give evidence on the subjects suggested is remote. In any event, it was not part of the Crown case that the accused was involved with the acquisition, preparation and storage of stolen cars prior to them being deployed for specific criminal actions.
Joseph Vokai
This person was said to be at a senior level of the Alameddine OCN and head of the KVT affiliate. Counsel for the accused contended he would have been able to give evidence about any agreement (i.e. conspiracy), the garaging of cars and “associations”.
Detective Inspector Maree gave evidence that at one point, Vokai was charged in relation to the conspiracy to murder Ibrahem Hamze. He fell into the category of “persons you do not normally ask for a statement”.[25] That was a reference to evidence he had earlier given, “They’re not the sort of people you turn up and knock on the door and ask them whether they would like to assist the investigation.” [26]
[25] Tcpt, 16 September 2025, p 2285(20)-(32).
[26] Tcpt, 16 September 2025, p 2268(29)-(31).
It is highly unlikely that this person would give any evidence about an Alameddine OCN based conspiracy to murder a member of a rival OCN.
Jake Roko-Morgan
This person is a cousin of the accused.[27] He featured prominently in conversations with the accused in gaol calls. It is said he would have been able to give evidence about the meaning of the conversations. He had been approached in relation to making a statement, but none was obtained.[28]
[27] Tcpt, 5 September 2025, p 1705(43).
[28] Tcpt, 16 September 2025, p 2285(34)-(43).
In his supplementary closing address, Mr Thomas claimed that this person, as a party to a conversation with the accused, could have provided evidence “to give colour and tone and context for the conversation that was taking place”.[29]
[29] Tcpt, 16 September 2025, p 2420(5)-(8).
The significant part of the recorded conversations between this person and the accused was what the accused said. Evidence of what his cousin thought he meant, or was referring to, in various conversations would not have been admissible.
David Kaisuva
It was contended that this person would have been able to give evidence about the meaning of what was said in gaol calls (plural).
His name was mentioned a bare three times in the entire trial transcript and that was in relation to a single gaol call made by the accused. The accused was alleged to have said to him, “A lot of our boys got charged. We all got separated. A few of the Alameddine boys. Everyone got separated”. The Crown relied upon this as evidence of the accused’s association with the Alameddines and as demonstrating that he lied in his interview in 2022 when he denied having anything to do with the Alameddines and had not known any prior to coming into gaol.[30]
[30] Tcpt, 18 September 2025, p 2331.
The relevance of this conversation was the representations made by the accused. They required no interpretation. Even if they did, the accused was the person to provide it, not this person.
Jamal Alameddine
This person was in gaol at the same time as the accused and they shared a cell for some period. He was said to be able to give evidence about the meaning of the content of conversations recorded by way of telephone intercept and surveillance device. This would have been of unlikely admissibility.
He was not part of the Alameddine central hierarchy.[31] Police did not obtain a statement from him.[32] There was meagre reference to him in the closing address for the Crown.[33]
[31] Tcpt, 18 September 2025, p 2329(4).
[32] Tcpt, 16 September 2025, p 2286(1).
[33] Tcpt, 18 September 2025, p 2328(18).
The only mention of him in the defence closing address, aside from him being a person not called to give evidence, was to him having been the accused’s upline drug supplier.[34]
[34] Tcpt, 19 September 2025, p 2406(10); Tcpt, 22 September 2025, p 2428(3).
Charbel Chedid
This person was involved in the garaging of vehicles in preparation for criminal activity. It was said he would have been able to give evidence of that activity.
There is no suggestion of involvement of the accused in such activity. No statement was obtained from him.[35]
[35] Tcpt, 16 September 2025, p 2285(45)-(50).
The sole mention of him in the defence closing address was that he was a person not called to give evidence.[36] In the supplementary closing address, Mr Thomas added a description of the evidence this person could have given, in much the same terms as summarised above.[37] Given the lack of involvement of the accused in that activity his evidence would have added nothing of substance.
[36] Tcpt, 19 September 2025, p 2401(49).
[37] Tcpt, 22 September 2025, p 2428(6).
Ezzedine Omar
This person was said to have been able to give evidence about the storage and movement of vehicles, dealings with the Khalils, persons who provided vehicles to him and persons to whom he provided vehicles.
There is no connection between him and the Khalils in relation to activity with which the accused was concerned. His involvement was in relation to the murder of Mejid Hamze and he was excluded in relation to the Bilal Hamze murder.[38]
[38] Tcpt, 18 September 2025, p 2338(47).
Aside from being a person not called to give evidence, the only mention of this person in the defence address was that there was no evidence the accused had any connection or association with Khalil or the premises operated by Khalil where vehicles were stored and that the accused “had any connection with Ezzedine Omar who did have a connection with Khalil”.[39] The Crown did not seek to prove otherwise.
[39] Tcpt, 19 September 2025, pp 2402-2403.
Assad Alahmad
This person was part of the Alameddine OCN as head of its affiliate, the R4W (Ready for War) subgroup. He had been the subject of a non-fatal shooting on 7 June 2021 as part of the violent public Alameddine OCN and Hamze OCN feud. This was the subject of a covertly recorded conversation between senior Alameddine OCN members the following day in which retaliatory action was discussed. Assad Alahmad was not present.
It was contended that he would have been in a position to give evidence as to any agreement, or conspiracy.[40] That is purely speculative.
[40] Tcpt, 22 September 2025, p 2426(25).
Saro Adler
This person was said to be able to give evidence in relation to the meaning of conversations in intercepted telephone calls and in relation to drug supply.
The Crown in address, referred to the accused having said in a gaol call on 22 November 2021, “all the commo boys are here too Saro’s boys”.[41]
[41] Ex FD; Tcpt, 18 September 2025, p 2331(28).
This person’s name appears five times in the trial transcript, all on a single page in relation to evidence that the accused attended his home in Summer Hill for the purpose of drug supply.
The admissibility of evidence concerning the interpretation of the meaning of statements made by others is doubtful. The relevance of the accused’s drug supply activity is also doubtful, but in any event, it was a matter the accused readily conceded.
Family members of the accused
It was contended that the accused’s father, and other unnamed members of the family, would have been able to give evidence about the accused’s movements on 17 June 2021 and 14 August 2021.
This is speculative. There is no evidence as to whether they would know where he was or what he was doing at any specific time. There is no suggestion any of his family were involved in his criminal activities.
Johnny and Isshak Ayoub
It was contended these people would have been able to give evidence of their involvement with storage of the Audi RS3 (EKH27G).
This was raised in the cross-examination of Detective Inspector Maree and was based upon a summary in the “Jarjoura Profile Document”. This was a document completed by another officer, drawing from information from various sources and intelligence reports, each with varying ratings as to the credibility of the source and the reliability of the information. It included reference to the Ayoubs having various involvement in criminal activity, but seemingly nothing to do with the present matter aside from some uncorroborated intelligence about having stored the Audi used in the Bilal Hamze murder at the premises of a panel beater in Rydalmere. Investigators had look at the latter but were unable to find any corroboration for the claim.[42]
[42] Tcpt, 15 September 2025, pp 2229-2231.
Detective Maree put them into the class of those in respect of whom “it’s not as simple as knocking on a door and asking some questions about a stolen car that may or may not have been put at a certain premises.[43]
[43] Tcpt, 22 September 2025, p 2231(16).
No reference was made to the Ayoub brothers, panel beaters or Rydalmere in the defence closing address aside from stating that the brothers had not been called. In the supplementary closing address, Mr Thomas referred to the above topic and added that they could have given evidence about “their connection or association with Jarjoura, Aouli, Elkoudssi, the Khalils and Ezzedine Omar”.[44] This was both speculative and peripheral in the extreme.
[44] Tcpt, 22 September 2025, p 2428(26).
Conclusion
Few of these people were able to give material evidence.
This became particularly evident following a concession made by Mr Thomas at the conclusion of his supplementary closing address that it would be open to the jury to find that the accused was associated with the KVT and the Alameddines and that he had involvement in the storage and movement of the vehicles used in the commission of the offences on 17 June 2021 and 14 August 2021.[45] With that concession, the utility of witnesses being called who might have either confirmed or refuted the accused’s involvement with any activity connected to these events largely fell away.
[45] Tcpt, 22 September 2025, p 2425.
Aside from that, none of them could be described as people “who might have been expected to be called”. Many were people entrenched in the activities of, or related to, an organised criminal network who had either indicated a lack of cooperation with authorities or were assessed by police with particular experience in dealing with such networks as being unlikely to cooperate.
It was for these reasons that a direction in accordance with Mahmood v The State of Western Australia was not given in respect of any person other than Mitchell Forbes.
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