CRIME – Evidence – Murder – Application to release
evidence given before the Crime Commission – Crime Commission Act 2012
(NSW) s 45(4) – Where material relevant to murder trial – Whether
disclosure ‘may’ be desirable in the interests of justice
Source
Original judgment source is linked above.
Catchwords
CRIME – Evidence – Murder – Application to releaseevidence given before the Crime Commission – Crime Commission Act 2012(NSW) s 45(4) – Where material relevant to murder trial – Whetherdisclosure ‘may’ be desirable in the interests of justice
Judgment (4 paragraphs)
[1]
Publication of this judgment is restricted to the parties until the conclusion of proceedings involving a jury.
[2]
HIS HONOUR: Samuel Rokomaqisa is charged with the murder of Bilal Hamze, conspiracy to murder Ibraham Hamze and aggravated carjacking. He is due to stand trial on 4 August 2025.
By notice of motion filed on 9 April 2025, the Office of the Director of Public Prosecutions sought an order under s 45(4) of the (NSW) that a certificate be issued to the New South Wales Crime Commission requiring it to make available to the Court evidence given by certain witnesses to the Commission on specified days. The ODPP sought a second order that, in the event I made the order under I then make an order pursuant to of the Act that, if satisfied that the interests of justice so require, the evidence be made available to the ODPP and the accused's legal representatives.
On 16 November 2023, the accused was committed to this Court for trial. A trial date was fixed in July 2024. On 20 November 2024, the Commission provided a disclosure certificate to the ODPP. On 9 April 2025, the ODPP wrote to the Commission informing it that it intended to make a s 45 application in relation to the evidence identified in Schedule 2 of the disclosure certificate.
The motion came before me for hearing today, 5 May 2025.
There are potentially two steps or tests in the consideration of an application under s 45. Today I am only concerned with the first, namely whether pursuant to s 45(4)(b), I consider that "it may be desirable in the interests of justice that particular evidence given before the Commission ... be made available to the person or to a legal practitioner representing the person and to the prosecutor".
N Adams J in R v Parkes; R v Sloan[2024] NSWSC 16 at [28] described this test as "... clearly a less stringent test than the second one; it simply requires a satisfaction that it 'may be desirable in the interests of justice' that the particular material be provided to the court." That is indeed the case here.
This first test is considered without access to the material. The only evidence I have before me in support of the application is the Crown Case Statement which is annexed to the affidavit filed in support of the notice of motion. Because of the confidentiality attaching to the material in question, only limited assistance in the determination of this first test could be provided by the parties or by the Commission.
There were no submissions by the Crown or the defence. The Commission confined itself to submissions concerning the legislation and procedure. Very helpful written submissions were provided in that respect.
I agree with the observation of N Adams J in R v Parkes; R v Sloan at [43] that if the Commission gives the ODPP a disclosure certificate indicating that there may be relevant material and there is no objection to that material being produced to the court in order for it to determine whether it should be released, that will ordinarily be sufficient to meet the low threshold in s 45(4) of the Act.
For these reasons I am satisfied that the order sought in prayer 1 of the notice of motion should be made.
Accordingly, I order:
[3]
(1) That the NSW Supreme Court give to the NSW Crime Commission ('the Commission') a certificate pursuant to s 45(4) of the Crime Commission Act 2012, requiring the Commission to make the following "particular evidence given before the Commission" available to the Court:
(a) The transcripts of evidence and any exhibits tendered during the hearings before the Commission in relation to the murder of Bilal Hamze and conspiracy to murder Ibrahim Hamze on the following days:
(i) 30 November 2021
(ii) 13 July 2022
(iii) 30 March 2022
(iv) 13 April 2022
[4]
with the exception of any evidence given by any person who has been charged in relation to that murder or conspiracy, or broader related criminal activity.