R v Williams (No.4)

1. [1]

   At 9.50am on Tuesday, 12 November 2024, which is the sixteenth day of the trial of Mr Bryce Williams on the charge of murder of Mr Mejid Hamzy, the Crown, in an email, informed the lawyers for the accused that it had been notified that New South Wales Police held material which had not been previously disclosed to, or served on, the Crown or the accused.

2. [2]

   The material was categorised by reference to the names of 22 individuals. The material, in electronic form, was not provided at the time of that email, but has since been provided during the course of the morning and prior to 1pm.

3. [3]

   I am informed that the electronic files provided comprise 24.7 gigabytes of information set out in 35 separate folders, and within those folders a total of 109 files. Some of the material described in the itemised lists has not been produced.

4. [4]

   For example, an item containing CCTV footage from the home address of a potential suspect to the murder, which apparently demonstrates that he was at home on the morning of the day of the murder, is listed for disclosure, but no copy has been provided. As well, audio files of telephone intercept records in respect of a number of different individuals do not seem to be provided, and various records of telephone calls made from jail, by way of audio files, also do not seem to have been provided.

5. [5]

   A further example is that in respect of one of the named people, it is said that a single item, being a Cellebrite download of ANOM Communications, believed to be used by that individual, has been provided, but is in the order of 6,300 pages and it is the fact that on many, if not all, of those pages there are multiple entries.

6. [6]

   The quantity of material listed to be disclosed, that has been disclosed, and which may be yet to come, is very large, complex and dense.

7. [7]

   In the course of the trial to date, the accused, through his counsel, has determined to follow at least one approach to the defence of the accused which involves a challenge that part of the Crown case, dealing with the topic of who was the person responsible for instigating and paying for the obviously carefully planned shooting of the deceased, Mr Mejid Hamzy. The accused has determined to highlight evidence (or the absence of evidence) which shows that instigation and carrying out of the murder of Mr Hamzy would have nothing to do with the individual identified in the Crown case.

8. [8]

   As well, the accused has chosen, based upon police intelligence reports that have been either disclosed or produced on subpoena, to put before the jury evidence, through various police witnesses, that the police had information that someone, often one or more different people, other than the accused, were reported as being involved in the murder.

9. [9]

   An issue arises, which I do not propose to determine, about whether any or all of this material that is now being disclosed was part of the required pre-trial disclosure, because it falls within the words of s 15A(1) of the Director of Public Prosecutions Act 1986 (NSW), being:

10. [10]

    The extent of this disclosure of obligation will vary from case to case. As well, I have not seen the information that is to be disclosed. I have had no opportunity of determining whether that is information that might reasonably be expected to assist the case for the prosecution or the accused. That is why I do not determine the status of this further disclosed material in terms of the relevant disclosure obligation.

11. [11]

    However, I am assisted in the determination of this application by the attitude of the Crown. The Crown does not oppose an order for the discharge of the jury.

12. [12]

    The Crown accepts that, had this material been disclosed prior to the commencement of the trial, and certainly before the cross-examination of various witnesses, the case for the accused may have been conducted in an entirely different way. The Crown accepts that the timing of the disclosure, allied with the nature of the disclosure and, I infer also, the volume of the disclosure, is such that the accused is in a position where it is at least arguable that he might not receive a fair trial.

13. [13]

    I should indicate that I do not necessarily accept all of the submissions advanced by counsel for the accused. In my view, in this case, some of those submissions would have placed an unrealistic burden of disclosure on the police. However, as I say, I do not need to make a final determination on that question.

14. [14]

    I should also say this: in respect of the 22 named people, some matters of disclosure seem to be more important than others. In respect of one individual, the disclosure is simply of an email inviting that person to undergo an interview and the person’s solicitor subsequently declining. That is a matter of ongoing disclosure. I do not think that disclosure of that kind could, in any way, adversely affect a fair trial for this accused. Some others appear to be, at least on their face, either irrelevant or of such little consequence that they could not be regarded as impacting upon a fair trial. Others, on the other hand, might be regarded as having a potentially significant impact on a fair trial.

15. [15]

    Telling against the discharge of the jury is the fact that today is day 16 of the trial. There has been significant evidence led from a range of witnesses, including non-police witnesses who merely came to Court to give evidence of what they saw or heard, or of what they knew, or did not know. Some of those witnesses, at least, have previously given evidence at an earlier trial of a co-accused. It would be most unfortunate if they have to give their evidence all over again at a third trial. And indeed, considerable time has been taken up by police witnesses giving evidence, most of which was not substantially challenged, about what they did, or did not, do and investigations which they made, or did not, make.

16. [16]

    Finally, I need to consider the fact that a jury of 15 was empanelled to hear this trial. They have been taken away from their ordinary day-to-day lives, whether working or otherwise, and they will inevitably feel that their time has been wasted.

17. [17]

    However, ultimately, my task is to determine whether this development by way of very late disclosure, as I have described it, may prejudice the right of the accused to a fair trial. His counsel submits that it does, having regard to the way in which the trial to date has been conducted. The Crown accepts that the accused’s right to a fair trial has been, or may have been, adversely impacted, by what has occurred with this disclosure.

18. [18]

    In all of those circumstances, it is the accused’s right to a fair trial which must prevail, and given what I have been told on this application, the nature of the disclosure which has been made, and the submissions of both parties, in my view, the only proper course is to order that the jury be discharged and that the matter be listed for directions with respect to fixing a new trial date, and so I will make formal orders to that effect.

Orders

1. [19]

   I make the following orders:

   1. (1)

      Order that the jury be discharged.

   2. (2)

      Matter be listed for directions with respect to fixing a new trial date.