Citation: R v Rokomaqisa (No 8) [2025] NSWSC 1130
Court: Supreme Court of New South Wales
Date: 29 September 2025
Judge(s): R A Hulme AJ
Background
This decision arose as a mid-trial procedural ruling during the murder trial of the accused. The prosecution relied on evidence from two witnesses, referred to throughout the trial as "Witness A" and "Witness C," each of whom had interactions with the accused connected to the alleged offending.
Witness A gave evidence that the accused showed him a news video of the Bilal Hamze shooting and claimed responsibility for it, and that the accused later tried to arrange a sale of a 9-millimetre firearm through him. Witness C gave evidence that, at the accused's request, he obtained a jerry can of fuel from a service station in exchange for drugs. That jerry can was later found in a vehicle allegedly used by the accused in an attempted murder the following day.
The defence sought unreliability warnings under s 165 of the Evidence Act 1995 (NSW) for both witnesses, arguing that each was criminally concerned in the relevant events, and also that both were drug users whose evidence warranted a warning on that basis.
Legal Issues
- Whether Witness A was "criminally concerned" in the events giving rise to the proceeding within the meaning of s 165(1)(d) of the Evidence Act 1995 (NSW), such that a warning to the jury was required.
- Whether Witness C was similarly "criminally concerned" by reason of his involvement in obtaining fuel for the accused.
- Whether the drug use of Witnesses A and C independently warranted an unreliability warning under s 165, noting that drug use is not a category listed in s 165(1) but the list is not exhaustive.
Decision
On Witness A, the court rejected the submission that he was criminally concerned in the relevant events. Although Witness A was shown a video by the accused and later approached about selling a firearm, he denied having apprehended that the gun was connected to the Hamze murder. Defence counsel did not identify any act by Witness A that would constitute criminal involvement, such as agreeing to assist in disposing of the weapon. The court found no basis under s 165(1)(d) to treat him as a person criminally concerned in the proceeding.
On Witness C, the defence submitted that by obtaining the fuel for the accused while suspecting something was amiss, Witness C may have entered into a conspiracy. However, defence counsel expressly conceded during argument that there was insufficient evidence to establish any identified conspiracy that Witness C could have joined, describing the submission as "reasonably remote." The court accepted that concession and rejected the submission.
On drug use, the court acknowledged that the categories listed in s 165(1) are not exhaustive. However, drawing on the principle stated in R v Baartman [2000] NSWCCA 298, the court noted that unreliability warnings are warranted where the jury needs to be acquainted with court experience about certain evidence types, or where there is a risk of overestimating probative value. Drug use is a matter the jury would be fully alive to without judicial direction, and there was nothing peculiar about these witnesses or the nature of their drug use that required a warning.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 165(1)(d) of the Evidence Act 1995 (NSW), a witness is only "criminally concerned" in the relevant events if there is an identifiable act of involvement; mere exposure to incriminating information or a request for assistance, without more, does not meet the threshold.
- A concession by the party seeking a warning that there is insufficient evidence to support the criminal involvement contended for will ordinarily be fatal to the application.
- The categories in s 165(1) are not exhaustive, but the Supreme Court confirmed that a warning about drug use is not routinely warranted because juries can be expected to assess that matter without judicial assistance.
- Where there is nothing peculiar about a witness's drug use, or about the nature of their evidence, no additional direction is required under the Baartman principle that warnings arise where juries risk overestimating probative value.
- Submissions seeking s 165 warnings must identify a concrete basis for unreliability; speculative or concededly weak arguments about criminal complicity will not suffice.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165
Cases:
- R v Baartman [2000] NSWCCA 298