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Supreme Court 4 July 2025

R v Rokomaqisa (No 4)

[2025] NSWSC 696

HomicidePublic order & justice offences
CRIME E VIDENCE M URDER CRIME COMMISSION ACT 2012 (NSW) S 45(5) W HERE WITNESS IS PROTECTED PROCEDURAL FAIRNESS IN PRE

Citation: R v Rokomaqisa (No 4) [2025] NSWSC 696
Court: Supreme Court of New South Wales
Date: 4 July 2025
Judge: R A Hulme AJ

Background

The accused faces trial, commencing 4 August 2025, on three charges: the murder of one person in June 2021, a conspiracy to murder a second person in August 2021, and an aggravated carjacking on the same occasion in August 2021. The Crown's case is largely circumstantial, relying on coincidence reasoning drawn from the similarities between the two incidents to establish that the accused was an occupant of the relevant vehicles.

Before trial, the Crown applied under s 45 of the Crime Commission Act 2012 (NSW) for the release of evidence given by two persons (referred to as Person 1 and Person 2) at four Crime Commission hearings held in 2021 and 2022. A certificate under s 45(4) was issued, making that evidence available to the Court for examination. The Court then had to determine whether to release that evidence to the parties.

A procedural dispute arose mid-process when the Crown indicated it wished to provide materials to the Court on a confidential basis without serving them on the defence. The defence objected, and the Crown did not explain its position. The Court declined to receive the materials in that manner.

  • Whether the interests of justice required the release of Crime Commission evidence under s 45(5) of the Crime Commission Act 2012 (NSW), in respect of each of the two witnesses.
  • What factors are relevant to that assessment, including the personal safety of witnesses, the coercive nature of Crime Commission examinations, and the relevance of the evidence to the trial issues.
  • Whether procedural fairness permitted the Crown to provide confidential materials to the Court without notice to the defence.
  • What restrictions should attach to any evidence released under s 45(5).

Decision

His Honour reviewed the evidence of both persons in light of the known trial issues. For Person 1, the Court was not satisfied that the interests of justice required release. After reading the transcript, the Court formed the view that Person 1's evidence would not assist either party directly or indirectly, even though that person appeared on the Crown's witness list.

For Person 2, the Court was satisfied that the interests of justice required release. Although the Court acknowledged the significant countervailing factors, including the non-publication directions made at the Crime Commission hearings to protect the witness's safety, the coercive nature of the examination (which abrogated the right to silence), and the potential good faith concerns for the examinee, those factors were not weighty enough to withhold the evidence in the circumstances of this case. Notably, Person 2's account before the Crime Commission was exculpatory of the accused, which reduced the personal impact considerations that might otherwise have militated against disclosure.

The Court also addressed the Crown's disclosure position. The Crown had acknowledged in written submissions that it held only a summary of Person 2's evidence rather than the full transcript. In those circumstances, and given that summary covered a wide range of topics, the Court concluded that the entirety of Person 2's transcript should be released to both parties, rather than selected passages only.

On the procedural fairness point, the Court declined to receive materials from the Crown on a confidential basis without those materials being served on the defence. The Crown offered no explanation for why that course was appropriate, and the Court's Associate communicated that the approach was not acceptable before the hearing.

Orders Made

  • The evidence given before the Crime Commission by Person 1 and Person 2, subject to redaction of personal and irrelevant information, is to be made available to both the defence and the Crown.
  • Release of the transcripts by the Crime Commission is confined to counsel for the Crown, counsel for the accused, their respective instructing solicitors, and the Director of Public Prosecutions or her delegate.
  • The evidence is not to be published or disseminated beyond those persons without a further order of the Court, made on application with not less than 24 hours' notice to the Crime Commission.

Key Takeaways

  • Under s 45(5) of the Crime Commission Act 2012 (NSW), a court may release Crime Commission evidence to the parties in a criminal trial only where it is satisfied the interests of justice so require; this threshold involves weighing the relevance of the material against factors such as witness safety, the coercive nature of the examination, and the assurances of confidentiality given to examinees.
  • Personal safety concerns and the abrogation of the right to silence in Crime Commission hearings are genuine countervailing factors in any s 45(5) application, but they are not automatically determinative; their weight depends on the circumstances of the particular case.
  • Where the Crown holds only a summary of Crime Commission evidence rather than a full transcript, that circumstance may support releasing the entirety of the transcript to both parties rather than selected portions.
  • Courts applying s 45(5) assess evidence against the trial issues as known at the pre-trial stage, informed by disclosure notices, Crown case statements, defence responses, and pre-trial conference reports under the Criminal Procedure Act 1986 (NSW).
  • The Supreme Court declined to receive material from the Crown on a confidential basis without prior service on the defence, reinforcing that procedural fairness obligations apply to the conduct of pre-trial applications of this kind.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), ss 24, 45
- Criminal Procedure Act 1986 (NSW), ss 140, 142, 143, 144
- Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases:
- R v Quami (No 11) [2016] NSWSC 252
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Jaghbir (No 1) [2020] NSWSC 762
- R v McCloskey (No 1) [2020] NSWSC 771
- R v Danishyar [2023] NSWSC 922
- R v Parkes; R v Sloan [2024] NSWSC 16