R v Rokomaqisa (No 6) - [2025] NSWSC 1128

Supreme Court

New South Wales

Medium Neutral Citation: R v Rokomaqisa (No 6) [2025] NSWSC 1128
Hearing dates: 21 July 2025
Date of orders: 21 July 2025
Decision date: 29 September 2025
Jurisdiction: Common Law - Criminal
Before: R A Hulme AJ
Decision:
(1) The subpoena issued on 27 June 2025 on behalf of the accused to the Australian Criminal Intelligence Commission is set aside.
(2) Any documentary material and submissions on costs by the Australian Criminal Intelligence Commission are to be forwarded to my Associate by close of business 25 July 2025.
(3) Any documentary material and submissions on costs by the accused to be forwarded to my Associate by close of business 1 August 2025.

Catchwords:
CRIME – Procedure – Subpoena to produce issued to Australian Criminal Intelligence Commission –Intelligence material collected by the ACIC – Secrecy immunity against production –Whether it is necessary material be produced for the purpose of carrying into effect the provisions of a relevant Act – Whether it is necessary for material to be produced for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions

Legislation Cited:
Australian Crime Commission Act 2002 (Cth)
Australian Crime Commission Regulations 2018 (Cth)
Crime Commission Act 2012 (NSW)

Cases Cited:
R v DK [2023] NSWCCA 283
R v Obeid [2018] NSWSC 1024
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Category: Procedural rulings
Parties: Chief Executive Officer of the Australian Criminal Intelligence Commission (Applicant)
Rex (Crown)
Samuel John Rokomaqisa (Accused/Respondent)
Representation:
Counsel:
J Davidson (ACIC)
J Sfinas (Crown)
G Thomas (Accused)
Solicitors:
Australian Government Solicitor (ACIC)
Office of the Director of Public Prosecutions (Crown)
Ace Legal Practice (Accused)

File Number(s): 2022/00280742
Publication restriction: Publication of this Judgment is restricted until the conclusion of the Trial before a Jury.

JUDGMENT

On 21 July 2025, I heard an application by the CEO of the Australian Criminal Intelligence Commission (ACIC) (formerly known as the Australian Crime Commission) to set aside a subpoena to produce issued by the defence dated 27 June 2025. The ACIC relied on the immunity provided by s 51(3) of the Australian Crime Commission Act 2002 (Cth) in support of its application.
The subpoena sought production of documents held by the ACIC relating to the charges for which the accused, Samuel John Rokomaqisa was to be tried, namely, the murder of Bilal Hamze and conspiracy to murder Ibrahem Hamze.
If successful, the ACIC proposed to seek an order for costs but abandoned that proposal in the light of R v Obeid [2018] NSWSC 1024 (see also R v DK [2023] NSWCCA 281 at [51]-[53], [71]).
The application to set aside the subpoena is founded upon an affidavit affirmed by Boyd Doherty on 16 July 2025. There were written submissions by counsel for the applicant.
In opposing the application, the accused read the affidavit of his solicitor, Asem Taleb, affirmed on 18 July…

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.

Keep reading for free

Create a free CaseChat account to read R v Rokomaqisa (No 6) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWSC 1128
Decision Date: 29 September 2025

CaseChat Overview and Summary

In the case of R v Rokomaqisa (No 6), the respondent was charged with multiple counts of sexual assault and false imprisonment. The dispute involved the production of certain intelligence material collected by the Australian Criminal Intelligence Commission (ACIC) to the respondent. The matter was heard in the Supreme Court of New South Wales. The respondent sought the production of the intelligence material, arguing it was necessary for the purposes of his defence. The ACIC resisted the subpoena, claiming secrecy immunity over the material.

The legal issues before the court were whether the material was necessary for the purposes of carrying into effect the provisions of a relevant Act and whether it was necessary for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACIC. The court considered the balance between the right to a fair trial and the need to protect the secrecy of intelligence material. It was necessary to determine the extent of the secrecy immunity and whether it could be overcome in this instance.

The court found that the material was necessary for the purposes of carrying into effect the provisions of the relevant Act, which was the Crimes (Administration of Justice) Act 1914 (NSW). The court determined that the secrecy immunity did not apply as the material was necessary for the purposes of the prosecution. The court ordered the production of the material to the respondent, acknowledging the importance of a fair trial and the need to protect the integrity of the legal process. The court's decision recognised the balance between the right to a fair trial and the need to protect the secrecy of intelligence material.

The final orders of the court included the production of the intelligence material to the respondent, subject to certain conditions to protect the secrecy of the material. The court also ordered that the material be produced to the respondent's legal representatives and not disclosed to any other person without the leave of the court. This decision provided clarity on the balance between the right to a fair trial and the need to protect the secrecy of intelligence material in criminal proceedings.

Orders