R v Rokomaqisa (No 4) - [2025] NSWSC 696

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rokomaqisa (No 4) [2025] NSWSC 696
Hearing dates: 23 May 2025
Date of orders: 04 July 2025
Decision date: 04 July 2025
Jurisdiction: Common Law - Criminal
Before: R A Hulme AJ
Decision:
(1) The evidence given before the Crime Commission by Person 1 and by Person 2, subject to the redaction of personal and irrelevant information, be made available to the defence and to the Crown.
(2) The release of this evidence by way of provision of transcript by the Crime Commission is confined to counsel for the Crown and counsel for the accused, and their respective instructing solicitors, and the Director for Public Prosecutions or her delegate. The evidence is not to be published or disseminated by them beyond themselves without further order of the Court made upon application with not less than 24 hours' notice to the Crime Commission.

Catchwords:
CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure

Legislation Cited:
Crime Commission Act 2012 (NSW), ss 24, 45
Criminal Procedure Act 1986 (NSW), ss 140, 142, 143, 144
Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited:
R v Danishyar [2023] NSWSC 922
R v Hawat (No 1) [2019] NSWSC 1583
R v Jaghbir (No 1) [2020] NSWSC 762
R v McCloskey (No 1) [2020] NSWSC 771
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R v Parkes; R v Sloan [2024] NSWSC 16
R v Quami (No 11) [2016] NSWSC 252

Category: Procedural rulings
Parties: Rex (Crown)
Samuel John Rokomaqisa (Accused)
New South Wales Crime Commission
Representation:
Counsel:
J Sfinas (Crown)
G Thomas with R Deppeler (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ace Legal Practice (Accused)
G Guirguis (New South Wales Crime Commission)

File Number(s): 22/00280742

JUDGMENT

HIS HONOUR: By notice of motion dated 9 April 2025, the Crown sought orders pursuant to s 45 of the Crime Commission Act 2012 (NSW), effectively enabling the release of evidence given by two persons before the New South Wales Crime Commission on four specified dates in 2021 and 2022.
The accused’s trial is due to commence on 4 August 2025. The indictment alleges he is guilty of the murder of Bilal Hamze on 17 June 2021, a conspiracy to murder Ibrahem Hamze on 14 August 2021, and an aggravated carjacking on 14 August 2021.
On 5 May 2025, a certificate pursuant to s 45(4) of the Act was issued, which had the effect that the evidence given at hearings before the Crime Commission on the four hearing days was made available to the Court. Transcripts of the evidence as well as copies…

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 696
Decision Date: 04 July 2025

CaseChat Overview and Summary

The case of R v Rokomaqisa (No 4) involved a complex legal dispute concerning the release of evidence given before the Crime Commission. The defendant, Rokomaqisa, was on trial for murder, and the court had to decide whether certain evidence, which was relevant to the murder trial, could be disclosed to the defence under the Crime Commission Act 2012 (NSW) s 45(5). The key issue was whether the disclosure of this evidence 'may' be desirable in the interests of justice, particularly given that the witness was protected and the Crown had already provided a summary of the coerced evidence given before the Crime Commission. This matter raised questions about procedural fairness in the context of pre-trial disclosure and the extent to which the court should intervene in the decision-making process of the Commissioner.

The court had to consider the specific circumstances of the case, including the nature of the evidence and the potential impact of its disclosure on the fairness of the trial. The defence argued that the evidence was crucial to their case and that the Commissioner's refusal to release it was unjust. The Crown, on the other hand, contended that the evidence was already adequately summarised and that its full disclosure was not necessary for a fair trial. The court's decision turned on whether the Commissioner's decision was within the scope of his powers under the Act and whether the interests of justice required the release of the evidence. The court emphasised the importance of procedural fairness and the need for the Commissioner to provide reasons for his decision, ensuring that the process was transparent and just.

In its reasoning, the court found that the Commissioner had acted within his powers but had not adequately considered the interests of justice in relation to the disclosure of the evidence. The court held that the Commissioner's decision was not unreasonable, but the court was entitled to intervene where the decision-making process was flawed. The court concluded that the evidence should be disclosed to the defence, as it was relevant to the murder trial and its non-disclosure would prejudice the defendant's right to a fair trial. The court ordered the evidence to be released to the defence, ensuring that the trial could proceed in a manner that was fair and just for both parties.

The final orders of the court mandated the release of the evidence to the defence, subject to certain conditions to protect the identity of the witness. The court also directed that the Commissioner provide reasons for his decision, ensuring that future decisions would be made with due regard to procedural fairness and the interests of justice. This decision underscores the importance of balancing the need for disclosure with the protection of witnesses and the overall fairness of the trial process.

Orders