R v Rokomaqisa (No 9)

Prior to the commencement of the Crown closing address on 18 September 2025, Mr Thomas, counsel for the accused, made an application to exclude evidence of photographs captured by a speed camera inside the M4 Tunnel on 27 May 2021, or limit the use that may be made of them. [1]

The photographs depict the front of an Audi sedan bearing cloned licence plates EKH27G. This was the car used in the murder of Bilal Hamze on 17 June 2021. In these photographs, a driver wearing a white t-shirt can be seen but the face of the driver cannot be seen.

The evidence comprised a digital version on a USB storage device as well as hard copy images. They were tendered by the Crown and admitted over objection by Mr Thomas on 15 September 2025 and were marked Exhibits KB, KC respectively. [2]

I refused the application to exclude, or to limit the use of, the evidence. The following are my reasons for doing so.

Related to these exhibits is audio of a conversation of what was said by the accused upon seeing a television news story which aired on at least two networks on 9 December 2021 following a release by police of these images to the media. The accused was heard to call out to another inmate: [3]

The Crown contended that this could be taken as being an admission.

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.

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.

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]

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.

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.

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.

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.

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.

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.