Citation: R v Rokomaqisa (No 10) [2025] NSWSC 1132
Court: Supreme Court of New South Wales
Date: 29 September 2025
Judge: R A Hulme AJ
Background
This decision arose during a jury trial for murder before the Supreme Court. The accused was alleged to have been involved in a fatal shooting connected to the Alameddine Organised Crime Network (OCN) and its affiliated gang, the KVT. The Crown case drew on a broad network of associates, vehicles, and telecommunications evidence spanning events in August 2021.
During the trial, the Crown was unable to call approximately twenty persons who had been mentioned in evidence or were otherwise said to have relevant knowledge. Some of those persons had declined to cooperate with police. Others attended court on late-served subpoenas but were excluded from giving evidence after the defence successfully objected on the basis of lateness.
After closing addresses commenced, defence counsel sought a direction to the jury, known as a Mahmood direction, in relation to each of those uncalled witnesses. A Mahmood direction informs the jury that it may draw an adverse inference against the party who failed to call a witness it would have been natural to expect that party to call. The Crown opposed the direction for each of the persons identified.
Legal Issues
- Whether the court should give a Mahmood direction in respect of approximately twenty persons who were not called to give evidence during the Crown case
- How to assess whether a Mahmood direction is warranted where a witness was not called primarily because a defence objection was upheld
- Whether the anticipated evidence of each uncalled witness was sufficiently material, admissible, and not speculative to justify the direction
- How deeply embedded a witness's connection to an organised crime network should bear on the assessment
Decision
Hulme AJ gave the Mahmood direction in respect of only one witness: Mitchell Forbes. The court found that the Crown had been on notice for a considerable time about the potential materiality of Forbes's evidence, and that he was not a person entrenched in the criminal milieu of the Alameddine OCN or its affiliates. Those features distinguished him from the large majority of the other persons sought to be covered by the direction.
For most of the other persons on the defence list, the court found the anticipated evidence was largely speculative and peripheral to the issues in the trial. Several of those persons, particularly those at senior levels of the Alameddine OCN or affiliated gangs, were described by police as the kind of individuals from whom a statement would not ordinarily be sought. The court accepted that it was highly unlikely any of those persons would give evidence about OCN-based activity, making it unsurprising that the Crown had not called them.
The court also declined to give a direction in respect of the accused's partner. Although she was said to be capable of giving evidence about vehicle movements and the accused's whereabouts, the vehicle movements were already reliably established by a tracking device. The court noted that any explanation of statements made by the accused could only properly come from the accused himself, not from his partner.
Regarding Kamara, who was excluded from giving evidence after the defence's successful late-service objection, the court noted that it had not been asked to give a Mahmood direction in respect of him at all. The court had earlier expressed doubt about whether such a direction would be appropriate in circumstances where the witness was not called precisely because a defence objection had been upheld, and the court informed the jury of that context separately.
Orders Made
No orders were made in this decision.
Key Takeaways
- A Mahmood direction, which permits the jury to draw an adverse inference from a party's failure to call a witness, is not given automatically simply because a witness was mentioned in the evidence and was not called to testify.
- The Supreme Court confirmed that the anticipated evidence must be material, not merely speculative or peripheral, and must be likely to be admissible before a Mahmood direction will be warranted.
- Where a witness is deeply embedded in an organised crime network and was assessed by police as unlikely to cooperate, that context bears directly on whether the Crown could reasonably have been expected to call that person.
- A witness's exclusion from trial following a successful defence objection on grounds of lateness complicates the basis for any Mahmood direction, since it was the defence's own objection, rather than the Crown's decision, that prevented the evidence from being given.
- Hulme AJ drew a distinction between OCN-affiliated witnesses and Forbes, a non-OCN witness in respect of whom the Crown had long been on notice of potential materiality, granting the direction only in the latter case.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 102 (rule against credibility evidence)
Cases
- Mahmood v The State of Western Australia (2007) 232 CLR 397; [2008] HCA 1