R v Williams (No. 5)

1. [1]

   On 22 October 2025 I declined to set aside a subpoena issued by the Prosecution for certain gaol calls made by the plaintiff to a phone subscribed to the wife of his co-accused and to Joseph Vokai, a member or associate of the Alameddine OCN. The Alameddine OCN was a group known to be in conflict at the time of the murder with the Hamzy OCN, of which the deceased, Mejid Hamzy, was at that time of his murder a senior figure.

2. [2]

   My reasons for that decision are set out in R v Williams (No. 4) [2025] NSWSC 1279. The written reasons were provided to the parties on 29 October 2025. The reasons were however articulated during the submissions and argument on 22 October 2025. Orders were made at the end of argument, granting the accused’s legal team first access for the period requested, to 10:00am Monday 27 October 2025. This was later extended by consent to 10:00am Wednesday 29 October 2025.

3. [3]

   On Wednesday 29 October 2025 counsel for the accused sought “more time”, but really was requesting that the Court not permit the Crown team to access the material at all, submitting also that the Court should not listen to the material produced.

4. [4]

   This was a strange submission to make in circumstances where (a) the Court will not be deciding the guilt or innocence of the accused; (b) it is the usual practice for the Court seized of the issues to read or listen to material produced on subpoena to make the necessary rulings about access as the appropriate person seized of the issues in the trial and; (c) the Court is expected to disregard any irrelevant or inadmissible material and does so many times during a criminal trial as part of his/her role as the judge of the law.

5. [5]

   Concerns were raised by Ms Carroll that there was much irrelevant and private material, a conversation of another person using Mr Williams’ phone, and potentially offensive, irrelevant remarks about persons involved in the trial, trial delays, the “defence case” and court processes. Whilst those concerns are understandable, the Court would not let such subject matter divert it from its necessary tasks.

6. [6]

   A proposal was made by Ms Carroll that a barrister outside the trial should be briefed to determine the relevance of the material and whether access to the calls should be permitted. The Court rejected that suggestion as unnecessary and an abdication of judicial responsibility.

7. [7]

   A document prepared by the accused’s legal team (MFI 229) set out the concerns and objections to the Crown having access to the calls.

8. [8]

   On the evening of 29 October 2025, the Court listened to the 28 calls, comprising just over four hours of listening time and formed a preliminary view that the content of the calls was not relevant to the issues for determination in the trial.

9. [9]

   Given the forensic purpose of the subpoena was to provide access to calls between the accused and Chris O’Brien, not calls between the accused and Chris O’Brien’s wife, 20 out of the 21 calls would be considered to be irrelevant on that basis alone. Nothing relevant to the issues for determination in the trial was discussed. There was gossip, evaluative discussions about court processes, perceptions of personalities, opinions about delays with the trial and the role and effect of non-publication orders.

10. [10]

    The vast majority of the conversations comprised private family matters, irrelevant to the proceedings.

11. [11]

    Three calls were chats between the accused and Mr Vokai.

12. [12]

    In one call, the accused put another person on the phone almost immediately and a conversation was held entirely in a foreign language.

13. [13]

    Given none of the conversation in the foreign language was conducted by Mr Williams, no steps were taken to have that conversation translated. Given the subpoena sought calls between the accused and Mr Vokai, this conversation may be considered to be not responsive to the subpoena.

Decision

1. [14]

   I provided the following indication of my preliminary views on 30 October 2025:

2. [15]

   On 31 October 2025, the Crown indicated by email that they would not be pressing for access to the material produced (MFI 268). In those circumstances, no formal ruling was made in respect of the material produced in relation to access, relevance or any privilege that may apply.