R v Rokomaqisa (No 7) - [2025] NSWSC 1129

Supreme Court

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. (2) Application to discharge the jury refused. (3) The statement of Witness B is admissible.
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 CRIME – Murder – Trial by jury – Application to discharge jury – Potential prejudice arising from a failure to call the witness on a Basha inquiry EVIDENCE – Rulings – Admissions – Application for exclusion of evidence under ss 90 and 138 – Admissions subsequently reported by witness to police not captured by s 90 – Statement obtained illegally or improperly assumed for expedience – Balancing exercise favours admissibility
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5DA Evidence Act 1995 (NSW), ss 38, 90, 138, 192 Jury Act 1977 (NSW), pt 7A
Cases Cited:	Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Blewitt v The Queen [1988] HCA 43; 62 ALJR 503 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 R v Basha (1989) 39 A Crim R 337 Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 Watson v R [2022] NSWCCA 208
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 (Crown) Ace Legal Practice (Accused)
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. Publication of this Judgment is restricted until the conclusion of the Trial before a Jury.

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…

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 1129
Decision Date: 29 September 2025

CaseChat Overview and Summary

The matter before the court involved a defendant charged with the murder of a person. The trial was conducted before a jury, and the defendant applied for the jury to be discharged due to potential prejudice arising from the failure to call a particular witness during a Basha inquiry. Additionally, the defendant sought to cross-examine an unfavourable witness under section 38 of the relevant legislation, as well as to exclude certain admissions made by the witness on the basis of sections 90 and 138.

The court was required to determine whether the jury should be discharged due to potential prejudice, whether the defendant's right to a fair trial was compromised by the failure to call the witness during the Basha inquiry, and whether the unfavourable witness should be cross-examined under section 38. Furthermore, the court had to decide whether the admissions made by the witness, which were not captured by section 90, should be excluded from evidence under sections 90 and 138.

In its decision, the court held that the defendant's application to discharge the jury was not successful, as there was no evidence of prejudice arising from the failure to call the witness during the Basha inquiry. The court also found that the unfavourable witness should be cross-examined under section 38, despite the witness's earlier charge of knowingly giving false evidence. Regarding the admissions, the court held that the balancing exercise favoured admissibility, as the benefits of admitting the evidence outweighed any prejudice to the defendant. The court found that the statement obtained illegally or improperly was assumed for expedience, and the evidence was not excluded under sections 90 and 138.

The court did not discharge the jury, allowed the cross-examination of the unfavourable witness, and admitted the witness's admissions. The case proceeded to the jury, who ultimately delivered a verdict.

Orders