R v Rokomaqisa (No 8)

[2025] NSWSC 1130

Supreme Court

New South Wales

Case Name:	R v Rokomaqisa (No 8)
Medium Neutral Citation:	[2025] NSWSC 1130
Hearing Date(s):	4 September 2025
Date of Orders:	29 September 2025
Decision Date:	29 September 2025
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme AJ
Decision:	No unreliability warning, pursuant to s 165 of the Evidence Act 1995 (NSW), in respect of Witness A’s and Witness C’s evidence to the jury is warranted.
Catchwords:	EVIDENCE – Unreliable evidence – Warning to the jury pursuant to s 165 – Where witness is not “criminally concerned” with events giving rise to the proceeding – Submission that witness joined conspiracy to murder conceded to lack merit – Drug use not a matter requiring a warning
Legislation Cited:	Evidence Act 1995 (NSW), s 165
Cases Cited:	R v Baartman [2000] NSWCCA 298
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 identities of Witnesses A and C is subject to a suppression order. Publication of this Judgment is restricted until the conclusion of the Trial before a Jury.

JUDGMENT

1. In a mid-trial discussion about directions proposed to be included in the summing up, the defence sought warnings be given to the jury about the possible unreliability of two prosecution witnesses known in the trial as “Witness A” and “Witness C”.[1] Judgment was reserved.

   [1] Tcpt, 4 September 2025, pp 1671(35)–1675(47).

2. For the following reasons, it was subsequently communicated to the parties that the directions would not be given.[2]

   [2] MFI 87.

Witness A

1. Mr Thomas sought a direction that the jury be warned pursuant to s 165(1)(d) of the Evidence Act 1995 (NSW) on the basis that the evidence of Witness A may be unreliable because he was a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to [this] proceeding”.

2. The basis for this contention was said to be because Witness A gave evidence of an occasion when the accused showed him a video of a news story of the Bilal Hamze shooting and told Witness A, “that was me, that is what we do with the cars”.[3]

   [3] Tcpt, 27 August 2025, p 1298(31).

3. Witness A also gave evidence of a subsequent occasion when he met the accused, by chance it seems, and for the last time. The accused asked him if he knew someone who might buy a gun. It had to be sold out of the Western Suburbs because it was “red hot in that area”. He showed Witness A a photograph of it on his phone.[4] The accused said that it was a 9-millimetre.[5] The Crown had opened to the jury that such a calibre of firearm was of the type used in the Bilal Hamze murder.[6]

   [4] Tcpt, 27 August 2025, pp 1285(1)–1286(37).

   [5] Tcpt, 27 August 2025, p 1295(34).

   [6] Tcpt, 4 August 2025, p 31(48).

4. It was submitted that this rendered Witness A “an accessory after the fact or as a person to whom there is a supply of a firearm which he would have reasonably apprehended was a firearm used in the murder of Bilal Hamze”.[7]

   [7] Tcpt, 4 September 2025, pp 1673–1674.

5. The submission was maintained despite Mr Thomas indicating that Witness A denied having apprehended that the firearm offered to him was used in the Bilal Hamze murder. Further, Mr Thomas did not identify any act of Witness A that would inculpate him as an accessory after the fact, such as agreeing to the accused’s proposal to get rid of the gun.[8]

   [8] Tcpt, 4 September 2025, p 1673(44).

6. There was no basis to consider Witness A was criminally concerned in the sense referred to in s 165(1)(d). No warning to the jury was warranted.

Witness C

1. Mr Thomas sought a warning about the potential unreliability of the evidence of Witness C on the same statutory basis, that being s 165(1)(d). Witness C had also been shown by the accused a video of a news story of the Bilal Hamze shooting. Subsequently, on 13 August 2021 he co-operated with a request by the accused to obtain a jerry can of fuel from a service station for him which would be handed over in exchange for drugs.[9] This jerry can was found in the vehicle with cloned number plates CYA73Q that was used, allegedly by the accused, in an unsuccessful attempt to murder Ibrahem Hamze at North Sydney the next day.

   [9] Tcpt, 29 August 2025, pp 1442(19)–1446(41).

2. It was contended Witness C had given evidence to the effect that he thought it was suspicious, and so this would render him concerned in the commission of the offence that culminated in the events the following day. It was submitted that “it could be argued that he [Witness C] became a participant, entered into the conspiracy at that point in time”.[10] However, when asked what the object of such a conspiracy was to Witness C’s knowledge, Mr Thomas responded:[11]

   “To commit - I can't put it any higher. There is not enough evidence to suggest that he had knowledge that there was to be - there is no evidence to suggest that there is an identified conspiracy that he could have entered. It is reasonably remote, in my respectful submission.”

   [10] Tcpt, 4 September 2025, pp 1674(32)–1675(1).

   [11] Tcpt, 4 September 2025, p 1675(5).

3. That acknowledgement of the unmeritorious nature of the submission, if that is what it was intended to be, was accepted. The submission was rejected.

Witnesses A and C

1. Finally, Mr Thomas sought a s 165 unreliability warning on the basis that both Witness A and C were drug users. While drug use is not a matter listed in s 165(1) as a matter that potentially renders evidence unreliable, that list is inexhaustive.

2. It has been said that “… the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence”: R v Baartman [2000] NSWCCA 298 at [62]. Drug use is a matter the jury would be fully alive to without a warning. There was nothing peculiar about this case, these witnesses, or the nature of their drug use that would require a warning to be given.

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