R v Williams (No. 4)

1. [1]

   By notice of motion dated 7 October 2025, the accused, Bryce Williams, sought an order that the subpoena issued at the request of the Director of Public Prosecutions (“the DPP”), directed to the Department of Communities and Justice (“DCJ”), dated 25 September 2025 seeking certain identified gaol call recordings, be set aside.

2. [2]

   Written submissions were provided by Ms Carroll for the accused on 8 October 2025 and Mr Hughes for the DPP on 10 October 2025. Reply submissions were provided on 21 October 2025 by Ms Carroll. The issue was debated on 22 October 2025.

3. [3]

   At the conclusion of the oral argument, I dismissed the notice of motion and refused to set aside the subpoena, and provided the accused with first access to the material produced. These are my reasons for making those orders.

The evidence and the subpoena in issue

1. [4]

   The notice of motion was supported by an affidavit of Jessica Fahmy sworn 7 October 2025.

2. [5]

   The subpoena in issue was prefaced by a subpoena to DCJ issued on 16 September 2025 that sought the following:

3. [6]

   There was no objection to this subpoena. I understand that records were produced in response, and access granted to both parties by the Registrar.

4. [7]

   Inspection of those records led to the issue of the subject subpoena on 25 September 2025 which sought the following:

5. [8]

   Ms Fahmy’s affidavit referred to advising the DPP on 25 September 2025 that the accused objected to general access. On 30 September 2025, the DPP responded, indicating that it pressed the subpoena.

6. [9]

   Electronic material was produced by DCJ to the Registry in response to the subpoena. At the return of the subpoena before the Registrar on 2 October 2025, an adjournment to this Court was obtained, pending the filing of this notice of motion. The results of police inquiries as to those numbers were confirmed with Ms Fahmy on 3 October 2025 by email to the effect that the “997” number was subscribed to Chris O’Brien’s wife, Faten Hammouda, and the “394” number was subscribed to Joseph Vokai.

Rules regarding setting aside a subpoena

1. [10]

   By operation of Pt 75 r 3(1)(g) of the Supreme Court Rules 1970 (NSW), the provisions of Pt 33 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) apply to criminal proceedings such as this, being proceedings under Sch 3 of the Supreme Court Act 1970 (NSW).

2. [11]

   Rule 33.4(1) provides that the Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

Relevant authorities

1. [12]

   There is an obligation on the issuing party to identify expressly and precisely the legitimate forensic purpose for which access to the document is sought: R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406 at 18C; NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22]; Attorney-General for (NSW) v Dylan Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (“Chidgey”) at [5].

2. [13]

   The issuing party needs to first identify the legitimate forensic purpose for which access is sought, and second, establish that it is “on the cards” that the documents will potentially assist its case: R v Saleam (No. 2) [1999] NSWCCA 86 at [11].

3. [14]

   A fishing expedition is not permitted: Chidgey at [58]-[59] and [66].

4. [15]

   Mere relevance or possible relevance is not sufficient: Chidgey at [59]-[63].

5. [16]

   If the issuing party fails to establish a legitimate forensic purpose, then the subpoena is an abuse of process and should be set aside: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown Council”) at [60].

6. [17]

   Blacktown Council was a civil case in which Bell P (as the Chief Justice then was) cautioned against dogmatically applying “the language of “tests”” and held that so long as the material has an apparent relevance to the issues in the case and/or bears upon the cross-examination of witnesses expected to be called in the proceedings, it will have a legitimate forensic purpose: Blacktown Council at [80].

7. [18]

   This appears however to be confined to civil cases:

8. [19]

   Sound contextual reasons are set out in other parts of the judgment as to why the “apparent relevance” approach may be inappropriate for criminal matters: see Bell P at [72] and [74]-[79]; Brereton JA at [84] and [91].

9. [20]

   The question has been left open in decisions made in criminal proceedings after Blacktown Council, on the basis that in the context of those matters, a conclusion as to whether what was said in Blacktown Council does or should apply in criminal proceedings, was not required: Waters v Secretary of the Attorney-General’s Department (Cth) [2021] NSWCCA 193 at [26]-[27] per Davies J; Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 per N Adams J at [47]; R v Abdaly; R v Hosseinishoja (No 1) [2022] NSWSC 1482 per Hamill J at [19]. A similar approach was taken by Baker J in the Supreme Court of the ACT in DPP v Enoch (No. 2) [2025] ACTSC 332 (restricted) at [26]. See in particular her Honour’s discussion of the authorities at [21] to [25].

10. [21]

    Self-evidently, apparent relevance to the issues in the case is easier to demonstrate. However, I have concluded that I do not need to decide the question of whether the apparent relevance approach should be applied here, because I have decided that it is “on the cards” that the gaol calls sought will materially assist the Prosecution, and so on either approach, a legitimate forensic purpose is established.

Legitimate forensic purpose?

1. [22]

   I understand from the annexures to the affidavit of Ms Fahmy that a written request was made by Ms Fahmy to the DPP for the DPP to provide an outline of the legitimate forensic purpose of the subpoena, noting a concern that the subpoena was a “fishing expedition”.

2. [23]

   An unhelpfully brief response was provided by the DPP by email on 3 October 2025:

3. [24]

   In the written submissions provided on 10 October 2025, Mr Hughes provided the following more appropriately detailed outline of the forensic purpose:

4. [25]

   This response was significantly more revelatory and outlined in a thorough fashion an identifiable forensic purpose for seeking the gaol calls identified in the subpoena.

5. [26]

   The accused maintained his position that the subpoena was fishing, arguing that the relevance to the Crown case of Mr Vokai was “unknown” and that there was evidence available from the Officer in Charge – the statement of Sgt Latham of 22 November 2024 – that Mr Vokai had been excluded as a suspect.

6. [27]

   The accused submitted that calls to Mr O’Brien’s wife’s phone, even if these calls in fact were conversations with Mr O'Brien, would be of speculative assistance given that Mr O'Brien is not to be called as a Crown witness.

7. [28]

   These arguments were developed further in written submissions in reply and in the oral submissions made on 22 October 2025, to focus on the effluxion of time since the murder – October 2020 – and the time of the calls – January to September 2025 – to support the submission that the calls are too late in time to contain anything that would be relevant to the Crown case of joint criminal enterprise between the accused and Chris O’Brien, and that the current state of their relationship, to the extent it would be revealed in such calls, if at all, is not relevant.

8. [29]

   In relation to Mr Vokai, the written submissions in reply referred to “what the Crown perceives as it being the accused’s case that the Alameddine OCN were behind Mejid Hamzy’s murder” and argued that is was speculation to assert that phone calls in 2025 would materially assist the Crown.

Discussion and decision

1. [30]

   There is evidence that Mr Vokai, was at relevant times, a member and/or associate of the Alameddine OCN. It is the accused, and not the Crown, who has made Mr Vokai, and the nature, timing, and extent of his relationship with the accused, a relevant and potentially important issue.

2. [31]

   In her opening address, counsel for the accused, Ms Carroll, planted firmly in the minds of the jury, that Mejid Hamzy was shot dead as part of a feud between the Hamzy OCN, of which he was the head in October 2020, and the Alameddine OCN:

3. [32]

   This position was augmented and emphasised by repeated cross-examination of police witnesses as to their knowledge and understanding of the feud between the Alamaddines and the Hamzys around the time of the murder.

4. [33]

   Detective Blom was asked the following questions in cross-examination:

5. [34]

   On day 9, Detective Blom was asked the following questions in cross-examination about links between the Alameddine OCN and Ezzedine Omar, who by that stage had been the subject of evidence led by the Crown as to his activities on the night of the murder:

6. [35]

   Detective Blom was also asked questions about Mohammed Omar – revealed in other evidence to be Ezzedine Omar’s brother:

7. [36]

   The subject of a link between Ezzedine Omar and Rafat Alameddine was returned to later in the cross-examination of Detective Blom:

8. [37]

   Detective Hartigan was asked specifically about the Alameddine OCN by reference to a NSW Crime Commission chart that was tendered by the accused (Exhibit 34) which had photos and names of the members of the Alameddine OCN, including Joseph Vokai:

9. [38]

   Constable Simmons, a police officer who worked as an intelligence officer at the NSW Crime Commission, was asked the following questions in cross-examination:

10. [39]

    Aaron Meyer, an intelligence analyst from the NSW Crime Commission, was pressed by counsel for the accused in relation to the nature, extent and adequacy of investigation of another suspect, Aymen Manly, who was a likely associate of the Alameddine OCN:

11. [40]

    In addition to the tender of the photos and names of members and associates of the Alameddine OCN, counsel for the accused also tendered a NSW Police intelligence report regarding a suspected shooting at the residence of Rafat Alameddine on the evening of 18 to 19 October 2020 as evidence of the feud between the Alameddines and the Hamzys being active within hours of the time at which Mejid Hamzy was murdered. That intelligence report also cited a “home invasion” by the Alameddine OCN of a Hamzy OCN safe house in early 2020; an assault on 14 October 2020 by the Hamzy OCN of a member of the Alameddine OCN; and on 17 October 2020; the Alameddine OCN “shooting at the Hamzy OCN on Auburn Road Auburn”.

12. [41]

    The clear import of the opening statement, cross-examination of police and the tender of the Alameddine OCN Chart, (Exhibit 34), and the police intelligence report of 26 October 2020, (Exhibit 40), is that the accused says that the jury should entertain a reasonable doubt that the accused murdered Mejid Hamzy, because the Alameddine OCN was responsible for the murder, not him.

13. [42]

    The Crown is entitled to subpoena material that, on its face, appears to provide a link to or connection between Bryce Williams and the Alameddine OCN via Mr Vokai, even if that material comprises phone calls in 2025. The phone calls have the potential to materially assist the Crown case, because they show a link between the accused and an Alameddine OCN member/associate.

14. [43]

    The submissions of counsel for the accused overstate what the Crown is required to demonstrate under the approach in Saleam. It is not that the gaol calls sought must, in fact, “materially assist the Crown case”; only that it is “on the cards” that the documents will materially assist the Crown case.

15. [44]

    It cannot be demonstrated at this stage of the argument that the records produced will in fact materially assist the Crown case. This cannot be known until the records are accessed.

16. [45]

    Whether access should be permitted by the Crown and to what of the items produced and whether what is produced ends up being relevant and/or admissible is a separate issue for later consideration and determination. Those questions have no bearing on the decision being made now as to whether to set aside the subpoena or not.

17. [46]

    In respect of the calls to the phone subscribed to Chris O’Brien’s wife, there is reliable evidence from investigators from the NSW Crime Commission that persons involved in criminal activity would often use phones subscribed to family members or false identities. It is evident that Chris O’Brien was engaged in drug dealing. I have concluded that it is likely that the calls being made by the accused are to speak to Chris O’Brien, given other evidence led in the trial as to the closeness of their relationship, and I have proceeded on that basis.

18. [47]

    There has been an issue raised in the trial about a change to the relationship between the accused and Chris O’Brien in the year or so following the murder. Whether this is coincidental, and/or to do with drug deals gone wrong, or excessive drug use by the accused, or something else, is a live issue in the trial.

19. [48]

    Although much closer in time to this trial than to the time of the murder, the content of phone calls with Chris O’Brien will potentially shed light on his relationship to the accused, and so materially assist the Crown case. It will also potentially materially assist in the cross-examination of the accused, should he be called to give evidence, and in the examination or cross-examination of Mr O’Brien, should he be called to give evidence in the trial.

20. [49]

    Whether Mr O’Brien is to be called by the Crown, or for the defence, or not at all, remains unresolved. He was acquitted of the charge of murder in 2024. When the Court was last informed about whether he was to be called or not, the Crown was waiting for a response from Mr O’Brien’s solicitors as to whether he was prepared to be interviewed by police. His inclusion in the witness list was left to be determined at a later stage and although unlikely, it is not completely out of the question. The Court does not know whether the accused plans to call Mr O’Brien, or the accused, or call no evidence.

Access to produce material and admissibility issues

1. [50]

   Questions of any privilege that may apply, and whether to permit access by the Crown, are yet to be the subject of submissions and debate. First access to the accused’s legal team was agreed to by the Crown, with that access to be completed initially by 10:00am on Monday 27 October 2025. By consent that time has been extended to 10:00am on Wednesday 29 October 2025.