Citation: R v Rokomaqisa (No 7) [2025] NSWSC 1129
Court: Supreme Court of New South Wales
Date: 29 September 2025
Judge: R A Hulme AJ
Background
The accused stands trial for murder. The Crown subpoenaed a witness referred to as Witness B, who had made a statement to police on 24 October 2022 containing evidence directly relevant to the Crown case. Locating Witness B proved difficult, ultimately requiring a bench warrant and her arrest on the morning she was due to give evidence.
Once called, Witness B claimed she could not remember the events described in her 2022 statement, attributing her memory gaps to drug addiction during the relevant period. This pattern was not entirely new: she had given similar "I don't recall" evidence on two prior occasions in 2022, which led to a guilty plea for knowingly giving false and misleading evidence.
Three interlocutory applications arose from her evidence. The Crown sought leave to cross-examine her under section 38 of the Evidence Act 1995 (NSW). Defence counsel then applied to discharge the jury. Finally, the defence sought exclusion of evidence of admissions allegedly made by the accused and reported by Witness B to police.
Legal Issues
- Whether the Crown should be granted leave under section 38 of the Evidence Act 1995 (NSW) to cross-examine Witness B as an unfavourable witness
- Whether the jury should be discharged on the basis that the Crown's failure to conduct a Basha inquiry before calling Witness B caused irreparable prejudice to the accused
- Whether evidence of admissions allegedly made by the accused should be excluded under section 90 of the Evidence Act (discretion to exclude admissions) or section 138 (exclusion of improperly or illegally obtained evidence)
Decision
Section 38 leave to cross-examine
Hulme AJ granted leave to cross-examine Witness B on all three grounds under section 38(1). Her evidence was unfavourable to the Crown (section 38(1)(a)); her body language, demeanour, and selective memory loss demonstrated she was not making a genuine attempt to give evidence (section 38(1)(b)); and her oral evidence was inconsistent with her signed 2022 statement (section 38(1)(c)). The court noted that if drug-induced amnesia truly impaired her recall of 2021 events, one would expect that impairment to have been evident in October 2022, yet her statement from that date contained detailed recollections. The defence did not oppose the application.
Discharge of jury
The application for discharge was refused. Defence counsel argued that the Crown had cynically bypassed a Basha inquiry (a pre-trial hearing to test a witness's evidence in the jury's absence) after learning from its conference with Witness B that she would claim memory loss, and that this created a "perjury trap" and a suspicion of collusion between the accused and the witness. Hulme AJ found these assertions were largely speculative. The Crown's prior written statement from Witness B dispensed with the need for a Basha hearing, and the High Court majority in Adam v The Queen (2001) 207 CLR 96 expressed no criticism of a Crown calling a witness in the expectation of then relying on that witness's prior statement.
The court applied the principle that discharging an entire jury is a last resort, warranted only where necessary to prevent a miscarriage of justice. A high degree of satisfaction is required before taking that step. Any residual prejudice could be addressed through appropriate jury directions, and the application did not reach the threshold for discharge.
Exclusion of evidence of admissions
The defence sought exclusion under section 90, which allows a court to refuse to admit evidence of an admission if it would be unfair to the defendant. The court held that section 90 did not apply on these facts: the admissions in question were allegedly made by the accused to Witness B and subsequently reported by her to police. Section 90 is directed at admissions made to, or in the presence of, law enforcement, not to third parties who later pass information to police.
On the section 138 application, the court assumed (without deciding) that the statement had been improperly obtained because of Witness B's asserted state of intoxication when interviewed. Even on that assumption, the balancing exercise under section 138(3) favoured admissibility. The probative value and importance of the evidence in a serious murder trial significantly outweighed the assumed impropriety, which the court characterised as deliberate but moderate at best. The evidence was admitted.
Orders Made
• The evidence of Witness B was held to be admissible
Key Takeaways
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Under section 38 of the Evidence Act 1995 (NSW), leave to cross-examine a witness may be granted across all three limbs of section 38(1) where the witness gives unfavourable evidence, displays selective memory loss of material matters, and has made a prior inconsistent signed statement, particularly where earlier conduct suggests deliberate non-cooperation.
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A Basha inquiry is not a mandatory precondition to calling a Crown witness; where a prior written statement exists, that statement may dispense with the need for preliminary evidence in the jury's absence.
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Discharging a whole jury at common law remains a measure of last resort, exercised only where necessary to prevent a miscarriage of justice and not available merely because the Crown pursued a legitimate forensic strategy of calling a witness to rely on their prior statement.
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Section 90 of the Evidence Act does not extend to admissions made by an accused to a private individual who subsequently reports them to police; the discretion targets admissions made directly to investigating authorities.
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Where improper conduct in obtaining a witness statement is assumed rather than proven, the section 138(3) balancing exercise may still favour admissibility when the proceedings involve very serious charges and the evidence carries significant probative weight.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 18, 38, 90, 128, 138, 192
- Jury Act 1977 (NSW), Pt 7A
- Criminal Appeal Act 1912 (NSW), s 5DA
Cases
- 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