R v Rokomaqisa (No 7)
[2025] NSWSC 1129
•29 September 2025
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New South Wales |
Case Name: | R v Rokomaqisa (No 7) |
Medium Neutral Citation: | [2025] NSWSC 1129 |
Hearing Date(s): | 11, 12 September 2025 |
Date of Orders: | 26 September 2025 |
Decision Date: | 29 September 2025 |
Jurisdiction: | Common Law - Criminal |
Before: | R A Hulme AJ |
Decision: | (1) Leave granted for the Crown to question as though cross-examining Witness B about her evidence which is unfavourable to the Crown and about her prior statement to police. |
Catchwords: | EVIDENCE – Rulings – Unfavourable witnesses – Application to cross-examine witness pursuant to s 38 – “I don’t recall”-style evidence – Unpredictable witness earlier charged with knowingly giving false evidence |
Legislation Cited: | Criminal Appeal Act 1912 (NSW), s 5DA |
Cases Cited: | Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 |
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 B is subject to a suppression order. |
JUDGMENT
The Crown issued a subpoena for “Witness B” to attend court and give evidence. Police experienced difficulties locating her, but she was ultimately served. She did not comply with the subpoena and on 29 August 2025, I issued a bench warrant for her arrest. She remained elusive for a time but was arrested on the morning of 10 September 2025.
The Crown had a brief conference with her before she was called to give evidence.[1] She had made a statement to police on 24 October 2022 concerning her interactions with the accused and events and matters which, if accepted, were directly relevant to facts in issue and highly probative of the Crown case against the accused.
[1] Tcpt, 10 September 2025, p 1961.
A series of applications were made during her evidence. Rulings were made at the time with reasons to be provided later. The following are those reasons.
Application by Crown to “cross-examine Witness B
Part-way through Witness B’s evidence, the Crown made an application, pursuant to s 38 of the Evidence Act 1995 (NSW), to cross-examine. I granted leave for the Crown to question Witness B based on each of the matters in s 38(1).
First, unfavourable evidence: s 38(1)(a). Witness B’s evidence differed from what was expected by the Crown and unfavourable to its case in accordance with her earlier statement to police. For example, when Witness B was questioned about what she told police, she said:[2]
“I don’t know and I can’t honestly remember that far back. Like I told you earlier, around those years I was in active addiction. I was high all the time. I was a very bad drug addict so I can’t remember most of those years.”
[2] Tcpt, 10 September 2025, p 1996(15).
Second, no genuine attempt to give evidence: s 38(1)(b). It became quickly apparent from Witness B’s reluctance to answer questions, body language, demeanour and supposed deficiencies in memory caused by what she effectively described was drug-induced amnesia she was not making a genuine attempt to give evidence. She was able to remember certain things but when asked about anything of significance concerning events relevant to this trial, she had a complete absence of recall.
Third, prior inconsistent statement: s 38(1)(c). Witness B’s statement to police was indicative of her ability to recall but in oral evidence she claimed an inability to recall. It would be expected if she had an addiction to drugs and alcohol in 2021 which impaired her ability to recall, this would have been evident the year after, yet on 24 October 2022 she was able to recall details of events and conversations that were recorded in the statement she signed.
In addition to these matters, Witness B was unpredictable. She had adopted an “I don’t recall”-style when giving evidence on two occasions earlier in 2022. This led to her being charged with knowingly giving false and misleading evidence to which she pleaded guilty. At her sentencing hearing on 14 April 2023, she provided evidence of acceptance of guilt and an expression of remorse in a handwritten letter.
It is significant to note that in response to the Crown application, experienced defence counsel’s initial response was, “matter for the court.”[3] Subsequently, several matters were highlighted that may be of relevance to the Court’s ruling, but it remained the case that the Crown’s application was not opposed.
[3] Tcpt, 10 September 2025, p 2005(32).
Section 192 is relevant to the grant of leave: Stanoevski v The Queen (2001) 202 CLR 115; HCA 4. Neither party referred to any of the matters relevant to the grant of leave outlined in s 192(2). Granting leave did not appear to create any unfairness for either party or the witness; the evidence was important, and the proceedings were concerned with the prosecution of exceedingly serious offences.
Having regard to the above matters, the Crown was granted leave to question as though cross-examining Witness B about her evidence which was unfavourable to the Crown and about her statement of 24 October 2022.
As an aside, I note that counsel for the accused appeared to have fully appreciated that the questioning of Witness B on her statement included reference to “admissions” allegedly made by the accused.[4] Indeed, counsel contemplated that as an alternative, the statement could have been tendered (rather than read to Witness B) and there could then have been cross-examination about individual paragraphs within it.[5] The utility of this having occurred is unclear.
[4] Tcpt, 11 September 2025, p 2027(15)-(18).
[5] Tcpt, 11 September 2025, p 2027(21)-(29).
Application for discharge of jury
Before Witness B’s evidence resumed on 11 September 2025, counsel for the accused made an application that the jury be discharged because of a potentially prejudicial event said to have arisen in the presence of the jury whilst Witness B was giving evidence.[6]
[6] Tcpt, 11 September 2025, p 2023.
The prejudice asserted was essentially twofold. First, Witness B was spoken to by the Crown but not first called to give evidence in the absence of the jury in a dress rehearsal, otherwise known as a Basha-inquiry: see R v Basha (1989) 39 A Crim R 337.[7] There were references in her evidence before the jury to having previously told the Crown about her inability to recall: see above at [5].The second asserted prejudice was the creation of a suspicion of collusion between the accused and the witness.
[7] Tcpt, 11 September 2025, p 2024.
These matters were largely based upon speculation. Counsel submitted:[8]
“It is perfectly clear, in my respectful submission, that when the Crown conferenced this witness, the witness informed the Crown that there was an absence of memory concerning what she had stated in that statement. The Crown, notwithstanding the apprehension that there would be some kind of Basha, doesn't undertake a Basha; knowing what the Crown knew from that conference, straight before the jury.
The purpose, we respectfully submit, the dominant purpose, if not the singular purpose, was to thoroughly discredit Witness B in the presence of the jury. [REDACTED], and this discrediting in the nature of a perjury trap, because the Crown knew what the witness was going to say about that statement and set the witness up to perjure herself in court in the presence of the jury and raise also the very real suspicion that there was some collusion between the accused and this perjured position of the witness.”
[8] Tcpt, 11 September 2025, p 2026.
The Crown rejected these assertions and submitted it was not to know how Witness B would respond to questioning under oath or affirmation. Her earlier statement to police dispensed with the need to call preliminary evidence on the Basha.
Counsel for the accused also raised:
(1)Witness B was not adequately appraised of her rights created by the privilege in respect of self-incrimination. I inquired as to whether the Crown had arranged for Witness B to receive legal advice. It had not but it was said that Witness B had previously had legal representation. I was satisfied that Witness B was aware of and understood her rights in this regard, and in any event, explained the effect of s 128 and her entitlement to object if she became concerned about self-incrimination at any time.
(2)Witness B’s compellability pursuant to s 18 to give evidence, but for reasons which were subsequently accepted, she was not a person to whom s 18(2) applied and was accordingly presumed to be compellable to give evidence.
How those submissions were relevant to there being such unfair prejudice to the accused that a discharge of the jury was required is not self-evident.
Principles
Discharging a jury for potentially prejudicial events occurring during the trial is a significant step in criminal proceedings; it would be the cause of substantial delay and expense to the court, parties and the community. It can be described as a final step to cure otherwise irreparable harm to the trial process only to be taken after all efforts are exhausted to overcome any prejudice through the ordinary course of giving appropriate jury directions.
There is no precise formulation or absolute rule governing a decision to discharge a jury. Unlike a decision to discharge a single juror in the more commonly arising circumstances contemplated by provisions of Pt 7A of the Jury Act 1977 (NSW), at common law, a decision to discharge the whole jury squarely falls within the exercise of discretion “to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice”: Watson v R [2022] NSWCCA 208 at [25], [34], [36]; Crofts v The Queen (1996) 186 CLR 427; HCA 22. Thus, a high level of satisfaction is necessary before making an order of the kind sought.
To the extent that the complaint was that the Crown had a forensic reason for calling Witness B knowing she would, or might, claim an inability to recall, so as to then get into evidence the substance of her statement, there was no criticism of such a purpose being pursued by the Crown by the majority in the High Court in Adam v The Queen (2001) 207 CLR 96; HCA 57 at [18]. In the present case, Mr Thomas seemed to have based his objection upon the outmoded basis described in Blewitt v The Queen [1988] HCA 43; 62 ALJR 503 at 505, which was referred to in Adam at [18] as being the position at common law prior to the enactment of the Evidence Act.
Determination
There was nothing unusual about the circumstances of Witness B being called to give evidence before the jury, even if the Crown were on notice she might or would profess an inability to recall the matters set out in her previous statement. Both parties were on notice of Witness B’s potential unpredictability given the nature of the evidence she gave in 2022 for which she was subsequently prosecuted and given her evasion of service and non-compliance with the subpoena served upon her.
Such events are more commonly encountered with witnesses who had been accomplices in some way with an accused person in the commission of an alleged crime who have pleaded guilty and obtained a discount on their sentence in exchange for their undertaking to give evidence for the prosecution at the accused’s trial. Section 38 of the Evidence Act is a tool to counter such witnesses becoming unfavourable to the Crown and s 5DA of the Criminal Appeal Act 1912 (NSW) is a tool to take back the reward on sentence the witness had received.
There was no merit in the speculative submission that the jury might perceive Witness B’s lack of cooperation as emanating from some collusion with the accused. [REDACTED].
Accordingly, I found there was no basis to discharge the jury.
Applications for exclusion under ss 90 and 138 of the Evidence Act
Just before the jury were about to re-enter the courtroom after the above application had been determined, Mr Thomas raised a further application: that evidence of the content of Witness B’s statement of 24 October 2022 be excluded pursuant to s 90 of the Evidence Act. This allows for a court refusing to admit evidence of an admission if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence”. He said, “the statement contains evidence of an admission” and “it is contained within a document that was obtained in circumstances that would engage section 90”. Those circumstances were said to be that Witness B had “given evidence about her drug addiction, her intoxicated state at the time” and “she said she hadn’t slept for three days and was nodding off.”[9]
[9] Tcpt, 11 September 2025, pp 2030(47)-2031(9).
Section 90 is inapt. It is concerned with the circumstances in which an admission was made, not the circumstances in which a witness subsequently recorded having heard the admission being made, which in this case was 14 months later.
Alternatively, s 138 of the Act was raised. On 24 October 2022, Witness B had been arrested for being in breach of extant bail conditions and taken to Granville police station. Mr Thomas accepted that this was lawful. However, it was the “use of her detention for this purpose, that is the taking of the statement, that converted the detention into an illegal detention because it was for a collateral purpose from that time on”.[10]
[10] Tcpt, 11 September 2025, p 2036(36).
This application was being presented “on the run” as it were. The jury had been waiting to return to court for almost an hour. The witness was in custody and would not be released until her evidence concluded. She had already been held overnight. There was almost a complete absence of the type of evidence that would usually be required to deal with an issue such as had been raised, for example, custody management records from the police station and oral testimony from the relevant police officers. For these reasons the Court determined to proceed upon an assumption that illegality or impropriety was established so as to focus upon the necessary balancing exercise as to whether despite such impropriety or illegality the evidence should be admitted.
When asked for submissions on the various criteria in s 138(3) of the Act, Mr Thomas responded unhelpfully, “We say the balancing of those matters favours the exclusion of the evidence.”[11]
[11] Tcpt, 11 September 2025, p 2036(46).
The Court then itemised the matters in s 138(3)(a)-(h). Mr Thomas submitted, in effect, that the fact Witness B had been released without charge after having made the statement “speaks highly about the circumstances in which the statement has been obtained”. In the circumstances, the police must have known “that she was in this state of addiction, nodding off, … hanging out … Those circumstances are very serious. We accept that these proceedings are serious but, then again, the circumstances in which this statement has been taken are serious as well.”
Finally, it was submitted that the probative value of the statement was limited “because of the circumstances in which the statement was made, based upon her evidence.”[12]
[12] Tcpt, 11 September 2025, p 2037(11)-(27).
Even if one were to assume the application was made with a proper evidential basis capable of proving that Witness B’s statement to police on 24 October 2022 was illegally or improperly obtained, contrary to Mr Thomas’ submission, the balancing of factors contained in s 138(3) did not weigh in favour of exclusion of Witness B’s evidence. The probative value of the evidence and its importance in the proceedings were significant in this trial of charges alleging very serious offences. The assumed impropriety or contravention, without deciding there was one, would have been deliberate but moderate at best. The former factors outweighed the latter by a considerable margin.
Accordingly, the evidence was held to be admissible.[13]
[13] Tcpt, 11 September 2025, p 2037(45).
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