R v Rokomaqisa (No 9)

"Ah Luko, hey that second photo, you know the photo of the (indecipherable) that that that photo their got on the M4, what the fuck Einstein, he's pretty wide eh."

1. The Crown contended that this could be taken as being an admission.
2. The application was based on what Mr Thomas contended was unfair prejudice outweighing probative value pursuant to s 137 of the Evidence Act 1995 (NSW). It was submitted in the alternative, pursuant s 136, that there should be a limitation. However, the proposed limitation was not in respect of the use of the evidence; it was that the digital version of the image (Ex KB) should be excluded and the evidence on the subject should be confined to the hard copy images (Ex KC). The limitation suggested is not what s 136 is concerned with so that aspect of the argument could be immediately rejected.
3. It seemed the issue arose from a concern that the evidence was an attempt by the Crown to adduce identification evidence, notwithstanding it being common ground between the parties that it is impossible to identify the driver because their face is not visible.
4. Mr Thomas expressed considerable concern that there had been, when the image was displayed on the large screens in court in the presence of the jury, a process of "zooming in" and thereby "manipulation". He sought to explain:[4]

In order to comprehend this as an admission, whether it is or it isn't, and what it means, the jury must necessarily refer back to the image. The still image. Not a manipulation of the image, but the still image. That involves identification of the accused and the Crown has never sought to make a case for identification.

HIS HONOUR: Is it possible to identify the accused?

THOMAS: It's not, and that's the danger of unfair prejudice and the miscarriage, in my respectful submission.

HIS HONOUR: Because it is impossible to identify the accused, it is dangerous because the jury might identify him. Is that the argument?

THOMAS: Yes, particularly if they are invited as they were by reasonable inference, through the process of manipulation of the electronic image that was playing out before their very eyes, to manipulate the image to then embark upon an identification of the accused in order to comprehend what is put forward as an admission.

...

But to then dig in to a manipulation of the image, in circumstances where there is no notification of a case of identification, as there cannot because the identification evidence is inherently unreliable and would have been excluded - it was never advanced - but through this secondary back-door process, the advancing of the case in respect of the alleged admission necessarily engages the need to undertake an investigation, an experiment by the jury, manipulating this electronic image to determine whether there is identification of the accused. And that is so inherently unfair that the trial would miscarry, in my respectful submission.

1. The implication in Mr Thomas' concern is that having a digital image allows for zooming in to obtain a clearer view of an item of interest. The same result is achieved by simply viewing the image on a larger screen, such as those in the courtroom.
2. It was asserted on an alternative basis that as this was identification evidence, it should be the subject of a direction, pursuant to s 116, that a special degree of caution be exercised before such evidence could be accepted.
3. Both arguments were premised on the non-sequitur and mistaken assumption that the accused could in fact be identified from the evidence. He could not. It was suggested that manipulating the photograph by zooming into the front windscreen of EKH27G identifies the driver. It does not. (Nor does viewing the image on a larger screen.) It was further suggested that the jury would misuse this evidence by equating the identity of the driver with the accused and concluding that he was in fact the driver. They could not.
4. Mr Thomas accepted that the evidence is otherwise relevant given it squarely proves facts in issue in these proceedings, being the movement of EKH27G in close proximity with the movement of CYA73Q on the night of 27 May 2021, they being stolen vehicles bearing cloned number plates in which the accused is alleged to have been an occupant on 17 June 2021 and 14 August 2021 respectively.
5. On no view does the evidence the subject of this application tend to reveal the identity of the driver. The Crown's reliance upon this evidence as an "admission" was based on an inference that the accused "knew full well that that is him".[5] It had no intention of suggesting the jury could independently identify him from the image.
6. The evidence is not "identification evidence" for the purposes of Part 3.9 and there was otherwise no basis for exclusion, limitation or direction to the jury about a need for a special degree of caution.

[1] Tcpt, 18 September 2025, pp 2311-2315.

[2] Tcpt, 15 September 2025, pp 2196-2199.

[4] Tcpt, 18 September 2025, pp 2313(27)-2314(33).

[5] Tcpt, 18 September 2025, pp 2315(13).