R v Williams (No. 6)

1. [1]

   In this trial, which involves a determination as to whether the accused was one of two men who shot and killed Mejid Hamzy on 19 October 2020, a witness known in the proceedings as W1 has alleged that he was able to identify and/or recognise the accused from CCTV footage published by authorities on Facebook in September 2021.

2. [2]

   W1 asserted that he has known the accused since they were teenagers and, in that context, named a number of other men whom he says frequented the same places and did the same things as him and the accused around the same time.

3. [3]

   Whether this is true or not is a significant issue in the case and underpins questions of W1’s overall reliability and truthfulness.

4. [4]

   There were six individuals in this category, namely Michael Pollard, Bryce Penfold, Chris Proctor, David Knevitt, Chris King and Rabie Daher. Each of them denied being in the location(s) and being involved in the activities attributed to them by W1, other than two of the men who agreed that they smoked drugs at certain locations. [1]

5. [5]

   Separately the Crown also sought leave to put specific propositions in cross examination to Jason Papallo, on the basis that he was mentioned in W1’s evidence as having been involved in a particular telephone conversation about the “hit” on Mejid Hamzy having been ordered by a certain person whom he knew and was in contact with because of a drug rip carried out by Mejid Hamzy involving close to $38 million. Mr Papallo denied the assertions W1 made were true. [2]

6. [6]

   In all but two instances (Mr Proctor and Mr Knevitt), the Crown’s application was initially opposed, despite the parameters of cross-examination being strictly limited to matters necessary to deal with confined and specific aspects unfavourable to the Crown case. General cross-examination on credibility was not sought, nor was any leave sought to cross-examine on the basis of previous inconsistent statements.

7. [7]

   In respect of each individual, having discussed with the Crown Prosecutor precisely what questions were proposed to be asked, I accepted that the terms of s 38(1)(a) were engaged and I granted each of the applications. Before I did so, I gave specific consideration to the matters set out in s 192 of the Evidence Act 1995 (NSW).

8. [8]

   The application in respect of each witness was the subject of oral debate and the reasons for granting them were in broad terms articulated on the record, however the Court thought it useful to gather those reasons and references into one judgment as the applications extended over a number of individual days and are spread over a number of pages of transcript.

The Evidence Act provides for the cross-examination of an unfavourable witness with leave of the court.

1. [9]

   Section 38 provides:

2. [10]

   Section 192 grants courts the authority to give leave, provided that in deciding whether to give that leave, the Court takes into account: the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to do so would be unfair to a party or to a witness; the importance of the evidence in relation to which the leave is sought; the nature of the proceeding; and the power of the Court to adjourn the hearing or to make another order to give directions in relation to the evidence.

3. [11]

   Given the discrete and limited nature of the questions to be posed in cross- examination of each witness, there was no risk those questions would add unduly to the length of the hearing. Before I granted leave, particularly in relation to Mr Papallo, the form and content of each question to be asked was first discussed with counsel.

4. [12]

   It would have been unfair to the Crown to not allow it to put the propositions it needed to in order to be able to make necessary submissions in its closing address. It would have been unfair to each of the witnesses to not provide them with an opportunity to respond to the assertions that had been made about them by W1.

5. [13]

   The evidence was important for the reasons set out at paragraphs [1], [2] and [3] of this judgment, specifically the credibility of the basis upon which W1 claimed to have been able to recognise the accused on the CCTV footage, and the allegations made by W1 about a conversation he had with Jason Papallo about why Mejid Hamzy was murdered.

6. [14]

   There was no need to make any ancillary orders or adjourn the proceedings, given the very confined nature of the questions sought to be asked.

7. [15]

   The s 38(1)(a) applications were granted.