R v Williams (No.5)

1. [1]

   On 30 January 2024, upon an application being made by the accused, Bryce Mark Williams, I ordered that the trial of the accused, which had commenced, be adjourned to a date to be fixed later in 2024. A jury was not empanelled at that time.

2. [2]

   At the time that order was made, I indicated that I would deliver reasons in due course. These are those reasons.

Background Procedural History

1. [3]

   On 15 March 2023, the accused, Bryce Mark Williams, was committed from the Local Court to this Court to stand trial for the offence of the murder of Mejid Hamzy at Condell Park on 19 October 2020.

2. [4]

   On 5 May 2023, in this Court, the accused was arraigned on that charge. He pleaded not guilty.

3. [5]

   Counsel for the accused was engaged at that time to appear and has appeared at all interlocutory proceedings leading up to when the matter was listed for the trial to commence on 29 January 2024.

4. [6]

   In late November 2022, and prior to committal, the Police Brief had been served in six separate tranches and comprised approximately 100,000 pages. In addition, there had been a number of electronic files served.

5. [7]

   On 5 April 2023, Detective Senior Constable Elizabeth Lock swore an affidavit in which she identified herself as the informant in the proceedings. In that affidavit, Ms Lock said that she had provided to the Director of Public Prosecutions (“DPP”) a copy of the Brief and other relevant material that had come into her possession relating to the matter. She also said that there was a claim for public interest immunity over material which was identified by topic or description.

6. [8]

   She then said this:

7. [9]

   On 2 June 2023, this Court fixed the trial of the accused for a period of four weeks, preceded by one week for pre-trial legal argument, to commence on 29 January 2024.

8. [10]

   The Court fixed the matter for trial based on estimates given by representatives of the Crown and the accused, which were given based upon the Brief which had been served, and the contents of Ms Lock’s affidavit affirming that full disclosure had been provided.

9. [11]

   On 2 November 2023, the Police served a further Brief. It contained an additional 32,777 pages. This Brief contained, for the first time, the transcripts prepared by the police of conversations between the accused and W1, a central witness in the proceedings.

10. [12]

    Two pre-trial directions hearings were held by me. The first on 1 December 2023, and the second on 15 December 2023.

11. [13]

    The purpose of those hearings was to ensure that the parties were ready for trial, that all relevant documents had been provided, and that the issues for trial had been clearly identified and articulated. As well, those hearings were held to enable an accurate identification of what matters needed to be dealt with prior to the jury being empanelled and counsel delivering their respective openings.

12. [14]

    On 15 December 2023, the Court was informed that the Crown witness list had been reduced to a total of 23 witness, subject to any request by the accused for any further witness to be called. Both counsel agreed that, of the witnesses identified in that list, they each anticipated that only two of those witnesses would be the subject of lengthy cross-examination.

13. [15]

    There was an indication that the Court would be required to make some pre‑trial rulings with respect to the contents of various recorded conversations but, otherwise, the Court was assured that the matter would be ready for trial commencing at the end of January 2024 and continuing for a period which was estimated to be in the order of four weeks.

14. [16]

    At various times between 23 November 2023 and 24 January 2024, inclusive (less than a week before the trial was due to commence), either the police disclosed further material, or else the Crown served further material on the accused. Also in that period, the Department of Corrective Services produced, on subpoena, 404 audio files, and the police produced, on subpoena, over 1,200 pages of documents, which had not previously been disclosed.

15. [17]

    The further material served by the Crown included three statements and annexures of a witness, who is an intelligence analyst in the NSW Crime Commission. Those three statements, together with annexures, comprised almost 87,000 pages. The statements of this witness produce and analyse telecommunications data and intercept material, as well as the contents of numerous telephone devices which had been seized during the investigation from a range of people. The statements were served iteratively.

16. [18]

    On 18 January 2024, material was served which included a USB containing 37.3 gigabytes of data consisting of the complete Cellebrite download of the mobile telephone of the accused, which had been actively used during the period before, during and after the murder with which he is charged. That mobile telephone was seized when the accused was first arrested in 2022. The complete Cellebrite download had not previously been served.

17. [19]

    In respect of this material, in the sixth Service of the Brief, served on or about 12 December 2022, the police included a 780 page document which consisted of extracts from the Cellebrite review of the phone principally used by the accused. They also served an 11 page extract of the contents of a Cellebrite review of a second phone used by the accused.

18. [20]

    These extracts expanded on previous material served in or about October 2022, which was a preliminary review of parts of the Cellebrite download of the telephone seized by the police and belonging to the accused.

19. [21]

    On 16 January 2024, the Crown served a 70 page extract of the Cellebrite download material which it proposed to tender at the hearing. This Crown extract was considerably less than, and derived from, the 780 page extract of the Police.

20. [22]

    At that time, the Crown indicated to the Accused that it was in possession of the full Cellebrite download and indicated that a copy of the full download could be provided if the Accused wished.

21. [23]

    As I was informed, a Cellebrite download from a mobile telephone provides the records of all aspects of a telephone’s use, including telephone calls which are made, emails and text messages sent from the telephone, location data recorded by the phone, and all other information recorded by, or stored on, the mobile telephone.

22. [24]

    The Crown, properly, accepted that the complete Cellebrite was, in the circumstances of this case, available to, and properly disclosable by, the police, at least by the time the first extract of 780 pages was served in December 2022.

23. [25]

    The Crown was not able to provide the Court with any reason why such disclosure had not been made by the police at any time prior to January 2024, when the Crown notified the accused of the existence of the full download (see [22]), and declined the opportunity, having taken instructions, to seek a short adjournment to provide any evidence with respect to that failure.

24. [26]

    The absence of any evidence being adduced is not without significance, particularly as earlier noted, Detective Senior Constable Lock had sworn an affidavit in April 2023 averring to the fact that all disclosure had been made. The fact of the complete Cellebrite download being in existence could not have escaped the attention of Detective Senior Constable Lock or her fellow officers. After all, an extract from the complete download had first been provided in October 2022, and a more expanded extract had been provided in December 2022.

25. [27]

    It was not suggested by the Crown, nor could it be in the absence of evidence, that the non-disclosure had been simply inadvertent. Nor was it suggested that the relevant police officers did not understand their obligation of disclosure.

26. [28]

    In the circumstances of this case, the police were obliged to disclose the full download and not just the extracts which they had chosen to select and provide. However, without any reason advanced, or explanation given, I concluded that the material was withheld deliberately, then only provided to the Crown after a request was made by the DPP at a very late stage in the preparation for trial, namely, about two weeks before the trial was due to commence.

27. [29]

    It would be a very serious finding to make that police officers, conscious of their disclosure obligations, had deliberately determined that they would not disclose material which they ought. It may also follow that the affidavit which was filed did not accurately disclose the true position. However, for the purposes of this application, I do not have to reach a concluded view.

28. [30]

    I note these matters because the conduct is most concerning. At the least, that is because the police are not attending to a critical part of the pre-trial procedure which is necessary to ensure that a fair trial can be held. But more importantly, this conduct has resulted in the adjournment of this trial, with the consequence that there has been a complete waste of public monies expended in preparation for this trial, and a waste of the scarce judicial resources allotted for the conduct of the trial over a period of four weeks. Other accused who are in custody and whose trials are ready, could have been listed earlier had an accurate statement been made to the Court. Such waste may properly be described as a scandal.

29. [31]

    Although the fact is that the solicitors for the accused must have realised prior to arraignment that the police had in their possession the full Cellebrite download (because otherwise they would not have received the 780 page extract), I note that they did not ask for disclosure of that material. Had they done so, then this late disclosure might have been avoided. However, the obligation of disclosure falls on the police, and the DPP. It is not the role of the accused to seek to interrogate the prosecuting authorities as to their compliance with disclosure obligations.

Other Reasons for Adjournment

1. [32]

   It became apparent in the course of address of counsel for the accused seeking the adjournment that, in addition to the very significant late disclosure of the materials as described above, counsel herself did not feel prepared to commence the trial on the day fixed.

2. [33]

   Ms Carroll, counsel for the accused, accepted that she had told the Court at the directions hearing on 15 December 2023, that the matter was ready to commence on the date fixed, 29 January 2024. She informed the Court that she had allocated the months of November, December 2023 and January 2024 to review the Crown material and prepare herself to conduct the trial. In her submissions, she acknowledged that she “had significantly underestimated how much time was required to review this brief”. Counsel also said, in the course of her submissions, this:

3. [34]

   Counsel informed the Court that had she realised how much preparation work was required, “I may have approached Legal Aid to seek funding for an additional counsel to work with me …”.

4. [35]

   Ms Carroll’s frank concessions about the inadequacy of the preparation time which she allocated to the matter were exacerbated by the late and ongoing service of material after 15 December 2023.

5. [36]

   As earlier indicated, the material was significant in volume and quantity, even before the Crown’s service of the entirety of the Cellebrite download. The Crown, in her oral submissions, accepted that there was further work which needed to be done by defence counsel before the trial could start, but submitted that only a short adjournment was required rather than a vacating of the trial date as a whole.

6. [37]

   The Crown’s submissions also made plain that there were outstanding issues between the Crown and counsel for the accused about what editing was required with respect to a series of recorded conversations involving W1 and others. It was apparent that had there been nothing else outstanding, then the Court could have expected agreement to have been reached, or substantially reached, with respect to those recordings, but such a process which, although it may have taken a few days, was within reach by the time the trial was derailed by the provision of so much more information which was required to be considered by defence counsel and placed into the context of such preparations as defence counsel had managed to do.

7. [38]

   In discussing the provision on 18 January 2024 of the complete Cellebrite download, the Crown accepted, entirely properly, that, having regard to the material available from that download, the accused was entitled to have full access to the material and to engage in an analysis of it in order to determine, not just the content of the messages and information or other data on it, but also whether there were significant or conspicuous gaps in active usage around the time that the murder occurred. The Crown candidly added:

8. [39]

   The Crown also drew attention to the fact that, insofar as counsel for the accused had identified that the police had produced material on subpoena, those subpoenas had only been served in the short period leading up to the commencement of the trial and the application being made.

9. [40]

   That said, the Crown accepted that late disclosure of, and the later service of, documents in an otherwise complex trial in which many thousands of pages of documents had been disclosed, would be disadvantageous to the orderly preparation of an accused for trial.

Discernment

1. [41]

   The entirety of the evidence and submissions put before the Court on this application could be properly reduced to these difficulties:

2. [42]

   Confronted by the confluence of these matters, and in light of all of the evidence discussed above, I was not persuaded that the accused could have a fair trial at that point in time. Accordingly, notwithstanding the likelihood of significantly wasted costs, and the impact which adjourning a four-week trial would have on the availability of judicial resources and the resultant waste of them, I concluded that it was necessary, in the interests of justice, to adjourn the trial and to vacate the hearing date.

3. [43]

   It is for these reasons that I made the orders which gave effect to that conclusion.