R v Williams (No.6)

At 9.50am on Tuesday, 12 November 2024, which was the 16th 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 parties.

When the trial resumed on that day, 12 November 2024, counsel for the accused made an application for the jury to be discharged. The Crown did not oppose an order for the discharge of the jury. I ordered that the jury would be discharged and I delivered my reasons in an ex tempore judgment on that day: see R v Williams (No.4) [2024] NSWSC 685. The following day, on 13 November 2024, the jury was formally discharged. The matter was adjourned for a new trial date to be fixed.

On 13 November 2024, the accused filed a Notice of Motion seeking a certificate pursuant to s 6A(1)(c) of the Suitors’ Fund Act 1951 (NSW) (“the Act”). Such certificate, generally referred to as a Suitors’ Fund Certificate, would, if granted, enable the accused’s legal representatives, who are funded through a grant of Legal Aid, to seek to recover their legal costs, or a part thereof. The precise payment that they receive is a matter to be determined by the Secretary of the Department of Communities and Justice.

The relevant provision of the Act states:

Counsel for the accused submits that the discharge of the jury was not attributable in any way to the fault of the accused or the accused’s counsel, as the jury was discharged due to the substantial amount of material served on the accused on the 16th day of the trial, which was in breach of the Court’s orders for the service of the brief by 8 March 2024. Counsel for the accused points to the lack of explanation provided as to why the disclosure occurred at that particular point of the trial and why the existence of the material was not disclosed previously.

The Crown accepted that s 6A(1)(c) of the Act is enlivened and that the Court is empowered to grant a Suitors’ Fund Certificate to the accused.

The circumstances here are identical to those discussed by Rothman J in R v Bushell; R v Tozer (No.19) [2023] NSWSC 1455.

It is appropriate to note the background and preparation of this matter, which although it has been recounted in other judgments, is convenient to reproduce here.

On 15 March 2023, the accused was committed from the Local Court to this Court to stand trial for the offence of murder.

Prior to committal, the Police Brief had been served in six separate tranches and comprised approximately 100,000 pages, as well as a number of electronic files. On 5 April 2023, Detective Senior Constable Lock swore an affidavit stating 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 this:

On 5 May 2023, the accused was arraigned in this Court on the charge of murder. The accused entered a plea of not guilty.

On 2 June 2023, the matter was listed for trial on 29 January 2024 for an estimated duration of five weeks, with the first week set aside for any pre-trial hearings.

On 2 November 2023, the police served a further Brief consisting of an additional 32,777 pages. This included, for the first time, the transcripts prepared by the police of conversations between the accused and Witness 1, a central witness in the proceedings.

The matter was listed for directions on 1 December 2023 and on 15 December 2023 before me. On the second occasion, it was determined that pre-trial issues would be dealt with on 29 January 2024 and that a jury would be empanelled on 30 January 2024. The Court was assured that the matter would be ready for trial.

At various times between 23 November 2023 and 24 January 2024, either the police disclosed further material, or the Crown served further material on the accused. This included three statements and annexures of a witness, who is an intelligence analyst in the NSW Crime Commission, which comprised almost 87,000 pages. Part of the material served was a USB containing 37.3 gigabytes of material, consisting of the complete Cellebrite download of the mobile phone of the accused, which was seized when the accused was arrested in 2022. A 780 page document consisting of extracts of this Cellebrite data, and an 11 page extract of the Cellebrite data of a second phone used by the accused, had previously been served in the sixth Service of the Brief dated 12 December 2022. Also, during that time, the Department of Corrective Services produced 404 audio files on subpoena, and the police produced over 1,200 pages of documents on subpoena.

On 29 January 2024, the parties commenced the hearing of pre-trial issues. Counsel for the accused indicated that an application for adjournment of the trial would be made on the basis of the significant volume of material that had recently been either disclosed by the police or served by the Crown. That application was heard the following day, on 30 January 2024.

The Crown accepted that the complete Cellebrite material was properly disclosable by the police at the time that the first extract of the Cellebrite data was served on 12 December 2024. The Crown was not able to provide the Court with any reason why such disclosure had not been made by the police, and declined the opportunity, having taken instructions, to seek a short adjournment to provide any evidence with respect to that failure.

In light of this, I determined that the matter was not ready for trial and the trial was vacated.

No application was made at that time for a Suitor’s Fund Certificate.

On 9 February 2024, the matter was listed for directions. I made the following orders:

On 19 February 2024, the trial was fixed to commence on 21 October 2024.

On 6 March 2024, Detective Sergeant Dean Latham swore an affidavit stating that he had provided to the DPP a copy of the Brief and other relevant material that had come into his possession. He used what appears to be a standard form of words (see also at [10] above). He stated:

On 11 October 2024, during a directions hearing, both parties confirmed that they were ready to commence the trial on 21 October 2024.

On 22 October 2024, the trial commenced and a jury of 15 was empanelled. The trial continued until 12 November 2024, the sixteenth day of the trial. At 9:50am on that day, the accused was informed by the Crown, in an email, the police held, and would be disclosing, material that had not previously been disclosed regarding 22 individuals. Counsel for the accused subsequently made an application to discharge the jury.

During the course of the morning, the material was provided to the accused. The material was provided on a disc comprising of 24.7 gigabytes of data, which included 35 folders, and a total of 109 files within those folders. It was not possible to determine how many pages of data this consisted of, as many of the files were lengthy Excel spreadsheets. Further, not all of the material which the police indicated they held had been provided on the disc. However, it is clear that the material was very extensive.

Counsel for the accused submitted that the defence of the accused was conducted on the basis of the information which had already been disclosed and, had the further material been disclosed prior to the commencement of the trial, the case for the accused may have been conducted in an entirely different way. The Crown did not oppose the application to discharge the jury and accepted that the timing and nature of the disclosure was such that it was at least arguable that the accused might not receive a fair trial.

Accordingly, I discharged the jury and delivered my reasons orally on 12 November 2024: see R v Williams (No.4) [2024] NSWSC 685.

The Crown proffered no excuse as to why the police had not disclosed the material at an earlier time. There was also no explanation as to why, for a second time in this matter, further material had been disclosed well after an officer of the NSW Police Force had sworn an affidavit averring to the fact that all necessary and proper disclosure had been made. Further, as occurred when this matter was adjourned in January, having taken instructions, the Crown declined the opportunity to seek a short adjournment to provide evidence which might explain that failure.

For the purpose of s 6A(1)(c)(ii) of the Act, it is absolutely plain that this trial was discontinued and a new trial was ordered for a reason not attributable to a disagreement on the part of the jury or to the act, neglect or default of the accused or the accused’s counsel or attorneys.

The discharge of the jury was due to the NSW Police’s late and significant disclosure of material at an advanced stage of the trial. There was no fault on the part of the accused’s lawyers or the accused himself. Accordingly, the preconditions in s 6A of the Act are established.

It is appropriate that a Suitors’ Fund Certificate should be issued to the accused, in the form annexed to this judgment.