R v Rokomaqisa (No 2) - [2025] NSWSC 176

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rokomaqisa (No 2) [2025] NSWSC 176
Hearing dates: 18 February 2025
Date of orders: 11 March 2025
Decision date: 11 March 2025
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
(1) Rulings made as to the admissibility of evidence as set out within this judgment and summarised in its annexure.
(2) Trial date of 4 August 2025 confirmed, noting the Court’s expectation that a jury will be empanelled on that date.
(3) The attention of the parties was drawn to the need for compliance in all respects with paragraph 14 of Supreme Court Practice Note SC CL 2. In this respect it was noted that the prosecution notice pursuant to s 142 of the Criminal Procedure Act 1986 (NSW) is to be filed and served by 28 April 2025; the defence response under s 143 is to be filed and served by 19 May 2025; and the prosecution’s response to the defence response under s 144 is to be filed and served by 2 June 2025.
(4) Pursuant to s 140 of the Criminal Procedure Act, there is to be a pre-trial conference to be held on or before 6 June 2025.
(5) Pursuant to s 140(4)(d) of the Criminal Procedure Act, the parties are to determine matters which are to be the subject of agreed facts and the content of such agreed facts.
(6) The pre-trial conference form is to be filed within seven days after the holding of such conference. It is to include a report upon the outcome of the parties’ determination of facts which are to be agreed.
(7) A copy of the Crown Submissions in reply on the admissibility of various pieces of evidence dated 19 February 2025 shall be placed with the Court file and marked for identification ‘3’.

Catchwords:
EVIDENCE — Advance ruling — Three counts alleging murder, conspiracy to murder and assault — Admissions — Admissions referring to unavailable video evidence — Discretion to exclude admissions under Evidence Act 1995 (NSW) s 90 — Objections to evidence — Prejudicial evidence — Evidence of criminal association — Probative value of indecipherable conversation captured by surveillance recording device
CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 140(4)(d), 142, 144
Evidence Act 1995 (NSW) ss 90, 98, 137

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
R v Rokomaqisa [2024] NSWSC 511
The Queen v Swaffield (1998) 192 CLR 159; [1998] 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 (NSW)(Crown)
Ace Legal Practice (Accused)

File Number(s): 2022/00280742
Publication restriction: Publication of this judgment is restricted to the parties until the conclusion of proceedings involving…

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 176
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the case of R v Rokomaqisa (No 2), the accused faced three charges: murder, conspiracy to murder, and assault. The dispute arose from the admissibility of certain evidence that the prosecution sought to introduce during the trial, which included admissions by the accused referring to video evidence that was not available. The case was heard in the Supreme Court of New South Wales. The accused objected to the evidence on the grounds that it was prejudicial and lacked probative value, particularly the indecipherable conversation captured by a surveillance recording device.

The primary legal issues that the court needed to resolve were whether the admissions were admissible under section 90 of the Evidence Act 1995 (NSW) and whether the prejudicial effect of the evidence outweighed its probative value. The court also needed to consider the potential impact of evidence of criminal association on the fairness of the trial. The accused argued that the video evidence was indecipherable and therefore of little value, while the prosecution contended that the admissions made by the accused were crucial to establishing the context and relevance of the video.

The court carefully considered the provisions of section 90 of the Evidence Act, which allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice to a party. The court found that the admissions in question, while referring to unavailable video evidence, were still admissible because they provided context and helped to understand the accused's state of mind. The court also acknowledged the prejudicial nature of the evidence but determined that its probative value was not substantially outweighed by the potential prejudice. The court emphasised that the probative value of the indecipherable conversation was minimal, but the context provided by the admissions was still valuable in understanding the circumstances surrounding the charges.

The final orders of the court were that the admissions made by the accused, which referred to the unavailable video evidence, were admissible as they provided necessary context and helped to understand the accused's state of mind. The court ruled that the probative value of the indecipherable conversation was minimal but did not substantially outweigh the prejudicial effect. The court allowed the evidence to be presented at the trial, subject to any further objections regarding its admissibility during the proceedings.

Orders