R v Rokomaqisa (No 4)

(5) If -

(a) the Commission makes evidence available to a court in accordance with subsection (4), and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

1. The meaning of the phrase, "the interests of justice so require" and the factors relevant to a determination under s 45(5) have been considered by a number of judges of the Common Law Division, including Hamill J in R v Quami (No 11) [2016] NSWSC 252; N Adams J in R v Hawat (No 1) [2019] NSWSC 1583; Fagan J in R v Munshizada, Danishyar and Baines [2020] NSWSC 566; Davies J in R v Jaghbir (No 1) [2020] NSWSC 762 ; and N Adams J again in R v Parkes; R v Sloan [2024] NSWSC 16. I gratefully accept what their Honours have said on the subject and, aside from indicating my agreement with a qualification made by Davies J at [21]-[22] in R v Jaghbir (No 1), have nothing to add to it.
2. I have had regard to the reasons for a non-publication direction being given on each day at the commencement of the hearing before the Crime Commission pursuant to s 45(1). They included in each case that a failure to make such a direction might prejudice the safety of the examinee. It is standard practice that assurances are given to the examinee about confidentiality and privacy of the examination. I agree with the observation of Fagan J in R v Munshizada and others at [8] that "[o]verriding these assurances by a Court-ordered dissemination under s 45(5) has the potential to leave the examinees with serious concerns about their personal safety and with a strong sense of having been dealt with by authorities in less than good faith." Additionally, I have had regard to the fact that the examinations involved an abrogation of the examinee's right to silence and that the examinee was informed that a failure to respond to questions would render them liable to criminal penalties.
3. I have borne in mind that the significance of the evidence given before the Crime Commission should be assessed in the light of the issues in the trial, insofar as the issues are known at a pre-trial stage. In this regard I have the benefit of the pre-trial disclosure notice of the prosecution pursuant to s 142 of the Criminal Procedure Act 1986 (NSW) (including the Crown Case Statement, recently amended), the defence response pursuant to s 143, and the Crown response to the defence response pursuant to s 144. There is also a report of the outcome of a pre-trial conference pursuant to s 140.
4. The issues in the trial are, relatively speaking, reasonably well identified at this pre-trial stage. The primary issues are whether the accused was one of two people in a car from which shots were fired which killed Bilal Hamze and, two months later, was one of two people who intended to kill Ibrahem Hamze in a car which was in the vicinity of his home but which fled the scene after being detected and pursued by a passing police officer for traffic infringements. The pursuit was terminated and the occupants then carried out an aggravated carjacking to obtain another car to remove themselves from the area.
5. The Crown will endeavour to prove the accused was one of the occupants of the vehicles used on each of the two occasions by circumstantial evidence, including by reliance upon coincidence reasoning based on the similarities between the two events.
6. I formed a preliminary view about whether the evidence should be released to the parties. In respect of Person 1, I was not so satisfied. According to the index to the brief of evidence annexed to the Crown Case Statement, there is no statement or other proof of evidence from this person. However, in a list of witnesses the Crown proposes to call, this person's name appears, but in the column in which the date of a witness' statement is intended to appear there is merely "-". So, it appears that the person is a potential prosecution witness, although I had assumed from the fact the examination was the subject of a non-publication direction under s 45(1) that neither party was aware of the evidence the person was able to give. After having read the transcript of the Crime Commission hearing, I came to the view that Person 1 would not be of assistance, directly or indirectly, to either party.
7. I was satisfied on a preliminary basis that in respect of Person 2 the interests of justice may require the evidence before the Crime Commission to be made available. My Associate communicated this to the solicitor for the Crime Commission in order that contact could be made with the person, or their legal representative, to ascertain whether they wished to be heard.
8. The parties were informed on 16 May 2025 that the Court would convene at 10am on Friday 23 May 2025 for me to receive information about the outcome of the inquiries that had been made and to allow the parties an opportunity to make any further submissions.
9. On 20 May 2025, my Associate received an email from the Crown to the effect that it intended to provide materials confidentially to me in advance of the hearing on Friday 23 May 2025. She replied by indicating that I was uncomfortable accepting material from one party which has not been served on the other without knowing the basis on why I should. The defence were copied into that email, and they responded later that afternoon to the effect that they agreed that I should not receive the material. The Crown made no response in terms of explaining why I should receive the material it had proffered on a confidential basis.
10. The defence relied upon two affidavits affirmed by Mr Asem Taleb, solicitor. Annexed to the affidavit dated 21 May 2025 was a copy of the Crime Commission's disclosure certificate pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW) dated 9 May 2023. Amongst other things it disclosed that there is relevant material that is the subject of statutory publication restrictions, namely material relating to hearings conducted by the Crime Commission which are subject to restrictions on publication or disclosure pursuant to s 45 of the Crime Commission Act.
11. A further annexure to that affidavit was a copy of an email Mr Taleb had sent to the Crown in the late afternoon of 20 May 2025 seeking disclosure of material concerning communications between the Crown and the Crime Commission.
12. On 21 May 2025 the Crown forwarded by email a document entitled, "Crown Submissions in Respect of Section 45 Application". It included:

"The Crown cannot make open submissions as to why it says it may be in the interests of justice for any transcripts of evidence given before the Commission to be disclosed to the parties. Submissions on this can be made in closed court if the Court would be assisted by them."

1. Later in the submissions, as to the potential relevance of the material produced by the Crime Commission, it said:

"The Crown is provided only with a summary of evidence by the Commission. At this stage of the application, the Crown is not privy to the complete transcript. The submissions rely on the accuracy and completeness of the summary provided to the Crown by the Commission." (Emphasis added)

1. Mr Taleb's affidavit of 22 May 2025 annexed an email sent to the Crown that evening seeking further disclosure arising from the reference in the Crown's written submissions to having been provided "only with a summary of evidence by the Commission". Concern was expressed about aspects related to that.
2. At the hearing on 23 May 2023, the defence handed up written submissions. They raised concerns about disclosure as between the Crime Commission and the Crown and the lack of further disclosure of such material to the defence. One concern was that regardless of the Court's determination of the motion, the Crown was in possession of a summary (or summaries) of evidence given before the Crime Commission and may make derivative use of it without disclosure to the accused.
3. Ms Guirguis, a Senior Lawyer with the Crime Commission, provided a confidential affidavit. A number of matters in the affidavit required clarification and so the court was closed with just Ms Guirguis and a junior lawyer with the Commission remaining. (The parties accepted this was an appropriate and preferable procedure.)
4. After clarifying matters in closed court, there was one outstanding issue which involved gaining access to some relevant court papers. I indicated to the parties that the court would adjourn to allow me time to consider matters further and to receive further information.
5. What concerned me most was that it emerged through the confidential affidavit and the clarification by Ms Guirguis in closed court that the Crime Commission has followed in this case what I was told is a standard practice. It acknowledges its duty of disclosure under s 15A of the Director of Public Prosecutions Act and seeks to comply with it, first by disclosing in a s 15A certificate that relevant material in its possession includes material relating to s 24 hearings. But, while wanting to remain "neutral", it also seeks to "give the Crown enough information to be able to determine whether they should make an application" under s 45.[1] They do so (and did so in this case) by varying the s 45(1) non-publication direction to allow the release, but only to the Director of Public Prosecutions, of the names of examinees and the hearing dates. Here, this was done in a covering letter accompanying the s 15A certificate dated 9 May 2023.
6. According to the covering letter, the variation to the s 45(1) non-publication direction also extended to allow the provision to the Director (only) of summaries of the evidence given by those examinees, to permit consideration of whether the Director may wish to seek further information. The summaries were annexed to the confidential affidavit. They are boldly endorsed with warnings that they are not to be disclosed beyond the Office of the Director of Public Prosecutions. The summaries, for each of the examinees in the present case, are quite detailed and each extend over two pages. They do not merely indicate the topics about which the witness gave evidence but instead summarise what the witnesses said.
7. The duty of disclosure in s 15A(1) of the Director of Public Prosecutions Act requires law enforcement or investigating officers[2] to disclose "... to the Director all relevant information, documents or other things obtained during an investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person". However, according to s 15A(6)(b), this does not require the provision of information, documents or things that, inter alia, would contravene a statutory publication restriction. If there are such things, pursuant to s 15A(7), the Director is to be informed of:

(a) the existence of any information, document, or other thing of that kind, and

(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.

1. There is a proviso in s 15A(7): "However, a law enforcement or investigating officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided."
2. The Crime Commission advised the Court that there had been no request made by the Director to be provided with information that went beyond that which was required to be disclosed under s 15A(7). That requirement was met, and not exceeded, by what was provided in the disclosure certificate dated 9 May 2023. In Schedule 2 the "Yes" box was ticked against:

"There is relevant material, not contained in the brief of evidence, that is the subject of a statutory publication restriction and the existence of which I can disclose without contravening the statutory publication restriction. That material is described in this Schedule below. [Describe the material only to the extent not prohibited by the statutory publication restriction]"

1. The "Description of item" below was as follows:

"Material relating to the preparation and conduct by the NSW Crime Commission of hearings pursuant to section 24 of the Crime Commission Act 2012 (NSW) which remain subject to restrictions on publication or disclosure under section 45 of that Act."

1. In R v Hawat (No 1), N Adams J referred (at [34]-[35]) to the Crime Commission varying the s 45(1) non-publication direction in relation to five specified witnesses, the dates of their hearings and the general nature of their evidence. There was also a variation so that the names and dates could be disclosed (presumably by the Crown). The day after this occurred, the Crown disclosed that information to the defence. Her Honour set this out in a table in her judgment (anonymising the names of the witnesses). It shows that the "general nature of their evidence" was merely a statement of the topic about which each witness gave evidence. For example, in respect of the first witness it said the evidence was:

"Regarding, inter alia, the attendance by persons of interest in the investigation of the murder of Hamad Assaad at Café on the Boulevard in Punchbowl around the time of the murder."

1. In R v Munshizada and others, Fagan J referred (at [4]) to a s 45(1) non-publication direction having been varied to enable the provision to the Director of:

"[T]he names of the persons who had been compulsorily examined before the Commission, the dates upon which the examinations had taken place and a summary of the general nature of the evidence given. This variation of the s 45(1) orders did not permit republication of those particulars beyond the Director's office." (Emphasis added)

1. Fagan J ultimately dismissed the Crown's application at the s 45(5) stage of the inquiry, primarily because the application was brought so close to the date the trial was due to commence.
2. In R v McCloskey (No 1) [2020] NSWSC 771 at [10], Davies J referred to an affidavit by a solicitor at the Office of the Director of Public Prosecutions which set out that the Crown received communication that the Crime Commission may be in possession of material that could be relevant to a particular case and that it subsequently "... received communication giving a brief summary of what material the NSW Crime Commission may possess". (Emphasis added) The content of the "brief summary" was not indicated in the judgment.
3. Similarly, in R v Danishyar [2023] NSWSC 922 at [4], N Adams J referred to the ODPP having been provided a "... brief summary of the material that the NSWCC may possess". Her Honour referred later (at [32]) to the submissions made by the Crown on the merits of the application, which included that "The evidence was said to pertain to the circumstances of the shooting with which the accused is charged." Her Honour observed that this submission was based solely on the fact the Crime Commission indicated that it had potentially relevant material but the Crown was not aware of the contents of the material. It may be inferred that the "brief summary" was similar in style to the summaries provided in R v Hawat (No 1), namely a bare statement of the topic about which the witness gave evidence.
4. According to the material from the Crime Commission, the Crown in this case received the summaries of the examinees' evidence over two years ago and the defence only recently heard opaque reference to this having occurred. These summaries are well beyond a general indication of the topic with which a witness' evidence was concerned. This suggests that the Crime Commission's standard practice is one where the extent of the information provided to the Crown might vary from case to case. It may be that the defence are not always provided with the same material as the Crown and perhaps, such as in the present case, not ordinarily informed that the Crown has it.
5. During the closed court hearing I raised with Ms Guirguis what seems to be a difficult position in which the Crown is potentially placed by being provided with information which would be disclosable to the defence, but which cannot be disclosed because of a s 45(1) non-publication direction.
6. If an examinee's Crime Commission evidence is not made available pursuant to s 45(5) (bearing in mind the high "interests of justice so require" threshold for release), the Crown may call the person as a witness who might give inculpatory evidence of the accused, while the Crown knows from a summary it has received that the witness gave an exculpatory account when called before the Crime Commission. How can the Crown, in fairness to the accused, call the witness to give evidence knowing that there exists material potentially adverse to the witness's credibility which cannot be disclosed to the defence? Should the Crown decline to call the witness because it would be unfair to the accused to do so, thereby denying its case the benefit of the witness' testimony?
7. It may be that if the examinee gave evidence at the trial that was entirely consistent with that which was given in evidence before the Crime Commission there would be no concern. But that is not to be known with certainty until the evidence is given at the trial. If it emerges that the trial evidence is inconsistent in some material respect with the Crime Commission evidence, what is to be done? Revisiting a s 45(5) application at that late stage might be possible but also problematic. The potential problems might include that disclosure of the material at that late stage might include something that is damaging to the defence of a co-accused. Or that there is some matter that conflicts with the defence case theory that had been formulated in ignorance of the existence of that matter.
8. Even providing the Crown with a bare indication of the topic upon which a witness gave evidence before the Crime Commission, such as what occurred in R v Hawat (No 1), is not without problem. It may be, for example, that a witness is proposed to be called by the Crown to give evidence on topic X, but the Crime Commission advises the Crown that the witness gave evidence on topic Y. If the application to make evidence available under s 45(5) is dismissed, unless there is disclosure that the witness can give evidence about topic Y, the defence will be unaware of the need for caution about cross-examining the witness about topic Y, or perhaps will be unaware that the witness might be able to give exculpatory evidence concerning topic Y. The Crown could be forewarned about an issue of which the defence is ignorant.
9. In the present matter, the Court was unassisted by any submissions of the parties in respect of these issues. There may well be aspects that they could have raised that have not been apparent to the Court. They have been discussed here not only because they have a bearing upon the determination of the present application but also to highlight the potential problems that may arise if what was said to be a "practice" (whether "standard" or otherwise) is to continue.
10. While some of these matters have come to the attention of the Court confidentially, the extent to which they are disclosed in this judgment has been with the consent of the Crime Commission. This has been confirmed in an email to my Associate of 27 June 2025 and reconfirmed in an email of 3 July 2025 after a review of this judgment in draft.
11. The email of 27 June 2025 included that the "practice" has been the Commission's "... usual practice since around 2020 and that the evidence included in the summary is intended to be limited to evidence which is, on a sensible appraisal, assessed to be disclosable in the proceedings". That begs the question how it can be disclosable in the proceedings when it is only the Crown who receives it and who is prohibited by a s 45(1) non-publication direction from disclosing it further.

1. Earlier I briefly set my preliminary assessment of the evidence given by Person 1 before the Crime Commission. That assessment was made after consideration of the various factors of potential relevance discussed in the cases cited above (at [5]).
2. It was after making that assessment that the Court was told of the problematic disclosure to the prosecution. While it is not apparent to me that the person's evidence would be of utility to either party, having regard to the intention of the Crown to call Person 1 to give evidence, and to the fact that the Crown has a detailed summary of the evidence given before the Crime Commission, fairness in the context of adversarial criminal proceedings in respect of alleged offences of the utmost seriousness militates in favour of the scales being put back into balance by making the evidence available to the defence.
3. The Court has been advised that Person 1 has no objection to their evidence given before the Crime Commission being disclosed to the parties.[3]
4. I am satisfied that the interests of justice require the evidence being made available to both parties.

1. In respect of Person 2, the factors of potential relevance have been taken into account, but particular regard has been had to the following:

The person is a prospective Crown witness.

The person is expected to give evidence in respect of an important aspect of the Crown's circumstantial case.

The witness gave conflicting evidence before the Crime Commission. This may be an important factor in any challenge to the evidence given by the witness at trial on a credibility basis.

The Crown has been provided with a summary of the evidence given before the Crime Commission which has not been provided to the defence.

1. I have had regard to the fact that the witness objects to the evidence being made available on three bases which are set out in Annexure E to the confidential affidavit of Ms Guirguis sworn on 23 May 2023. One is personal and of significance, but in circumstances where the account given before the Crime Commission was exculpatory of the accused it does not have the same impact it otherwise might. The other matters raised are not matters of substance, with one of them involving a misunderstanding of the correct position.
2. I reiterate; my consideration has involved the various factors discussed in the cases previously mentioned that may militate against making the evidence before the Crime Commission available. They are not of such significance in respect of Person 2 to withhold release of the evidence to the parties.
3. While I was initially minded only to release some relatively short passages of the transcript of Person 2's evidence, given the Crown has a broad summary of a wide range of topics covered by their evidence, the interests of justice require that the entirety be made available to both parties.

1. The Crime Commission has been privy to the possibility of the evidence of both witnesses being disclosed. In that event, it has proposed certain redactions be made based on privacy of the witnesses and/or other persons and the lack of relevance of such information. I have reviewed those proposed redactions and agree that they be made.

(1) The evidence given before the Crime Commission by Person 1 and by Person 2, subject to the redaction of personal and irrelevant information, be made available to the defence and to the Crown.

(2) The release of this evidence by way of provision of transcript by the Crime Commission is confined to counsel for the Crown and counsel for the accused, and their respective instructing solicitors, and the Director for Public Prosecutions or her delegate. The evidence is not to be published or disseminated by them beyond themselves without further order of the Court made upon application with not less than 24 hours' notice to the Crime Commission.

08 July 2025 - Minor typographical errors and heading levels fixed.

[2] The definition in 3(1) of the Director of Public Prosecutions Act adopts the definition in s 3(1) of the Criminal Procedure Act which includes officers or members of staff of the Crime Commission.

[3] Confidential affidavit, 1 July 2025 at [5].