R v Williams (No. 3)

1. [1]

   Mejid Hamzy was shot dead as he left his home at 15 Simmat Avenue, Condell Park at about 7:30am on 19 October 2020.

2. [2]

   It is the Crown case that the accused, Bryce Williams, was one of two men who waited in a car on Simmat Avenue for some hours that morning and when Mr Hamzy emerged, left the car, and shot him.

3. [3]

   The Crown case against the accused is circumstantial. One of the circumstances explored through the evidence led up to 29 September 2025, day 18 of the trial, is what the records kept by telecommunications companies show, by data and call charge records of the accused’s mobile devices, about the accused’s location(s) at dates and times relevant to the murder.

4. [4]

   The Crown has called a NSW Crime Commission intelligence analyst, Aaron Meyer, who prepared two statements dated 28 November 2023 and 7 December 2023 (MFIs 53 and 58 respectively). These statements contain, amongst other things, detailed mobile device data analysis.

5. [5]

   In his evidence in chief, Mr Meyer explained what the data that he had analysed revealed about the location of the mobile device user by the proximity to various known and mapped cell phone towers.

6. [6]

   Cross-examination of Mr Meyer by counsel for the accused focussed on phone data that suggested that at the time of Mr Hamzy’s murder, the accused’s phone(s) were located in their usual overnight location for that period, in proximity to a cell tower at Burke Road, Cronulla.

7. [7]

   Counsel for the accused cross-examined Mr Meyer, occasionally using tables prepared by the accused’s legal team, which set out extracts of material from larger, more complex tables Mr Meyer had prepared as part of his analysis.

8. [8]

   The jury were taken through three such tables by counsel for the accused on 22 September 2025 during the cross-examination of Mr Meyer. The layout and information contained in those tables was explained. Those tables became Exhibits 28, 29 and 30. The layout of each of these tables was slightly different, and dealt with call charge records of a phone service attributed to the accused using a phone number ending in 970.

9. [9]

   The cross-examination of Mr Meyer was paused on 22 September, and other witnesses interposed on 23, 24, 25 and 26 September.

10. [10]

    Mr Meyer’s cross-examination resumed at 10:20am on Monday 29 September 2025. After a series of questions about Mr Meyer’s investigation of data from the “5th Williams’s phone service”, phone number ending in 812, counsel for the accused tendered what became Exhibit 44.

11. [11]

    Exhibit 44 is a seven-page table titled “Call Charge Records (CCR) - 047272812 - 17-19 October 2020”. There was no objection to the tender. My Associate’s record of proceedings noted that the tender was made at 10:28am. The exhibit was distributed to the jury.

12. [12]

    The transcript of the hearing then records the following:

13. [13]

    The record of proceedings made by my Associate noted that the jury handed back their copies of Exhibit 44 at 10:32am. The copies were sealed in an envelope and not returned to the jury. At 12:30pm the jury were released for the day, while the parties considered their positions and legal discussion occurred.

The problem with Exhibit 44

1. [14]

   On page 2 of Exhibit 44 there are sixteen entries of telephone data, SMS, and call activity between 16:14:05pm and 16:34:41pm on 17 October 2020 from the accused’s “5th” phone. In the “Party Start Location Text” column, in capital letters, the location “CONDELL PARK 63 SIMMAT AVE” appears sixteen times.

2. [15]

   There is already evidence before the jury, Exhibit KK, showing the location of that cell tower, coincidentally on the same street as Mejid Hamzy’s house.

3. [16]

   The jury have previously had explained to them sufficient information to understand that this information means that Simmat Avenue is the closest cell tower to the location of the user of the phone in that 20-minute period on that day. Self-evidently that day is two days before the murder.

4. [17]

   What is not before the jury, and does not comprise any part of the Crown case, is that the accused was present on Simmat Avenue, Condell Park on 17 October 2020.

5. [18]

   The Crown Prosecutor was correct to intervene to pause the proceedings. The exhibit had been placed in the hands of the jury, but at the time it was retrieved, the questions asked of Mr Meyer had directed the jury’s attention only to the first page of the seven-page exhibit.

6. [19]

   What is not known is whether any juror turned to page 2, noticed the sixteen references to Simmat Avenue, or drew any conclusion about what those references meant.

7. [20]

   The question for the Court is how to manage this situation to ensure the maintenance of a fair trial – (to use the terminology adopted in R v Bartle & Ors [2003] NSWCCA 329 at [80]) – now that this event has occurred, and in circumstances where neither party has applied for a discharge of the jury.

8. [21]

   Counsel for the accused confirmed that the deployment of this document was an error. I was informed that there had been an agreement in place for the last trial, the details of which have not been provided to me by way of evidence in writing but only by way of a general understanding, that no evidence regarding the “William’s phone no. 5” was to be led at trial.

9. [22]

   In the absence of any documentation about the nature, extent, and reasons for that agreement, I am left to speculate why that agreement was made, and so it forms no part of my decision.

10. [23]

    I was informed by counsel for the accused that there is evidence available in the Crown brief that indicates that a drug dealer to whom the accused occasionally went to obtain drugs around this time, lived in Simmat Avenue. Counsel for the accused said that there may also be evidence available that indicated that this was in fact what the accused was doing in Simmat Avenue at that time on 17 October 2020.

11. [24]

    That material was revealed to be a Cellebrite download extract that shows that the accused messaged a person on 17 October 2020 at around 16:30 (4:30pm) about possibly buying some drugs, and a Cellebrite download extract showing that he had withdrawn cash shortly after 15:00 (3:00pm) that day, as well as telephone intercept material from earlier in 2020 that referred to a drug dealer the accused sometimes attended, living at Simmat Avenue.

12. [25]

    Self-evidently, this material is not sufficient on its own to prove that the accused was physically present in Simmat Avenue at that time to buy drugs from the dealer in Simmat Avenue, and even if it was interpreted that way, it is not sufficient to prove that was the only reason he was there.

13. [26]

    The potential prejudice to the accused caused by the receipt into evidence of that phone data that indicates his physical presence in that location at that time, is serious.

Submissions

1. [27]

   The Crown Prosecutor initially argued that the document had been deliberately tendered and “effectively cross-examined into evidence”, and so could not be withdrawn. He also noted, fairly, that he was unlikely to be instructed to agree that the only reason the accused was there at that time was to buy drugs, in circumstances where the Crown cannot know what was in the mind of the accused at that time.

2. [28]

   Counsel for the accused initially argued that they should be permitted to withdraw the exhibit and substitute an altered document to replace it, removing the offending part, and that the Court should give a direction to the jury to disregard Exhibit 44 as it was no longer evidence in the trial.

3. [29]

   In clarification of the accused’s position, an email was circulated at 2:52pm, (MFI 102), attaching the proposed “updated” exhibit, and advised that a further note was being prepared, together with evidence relevant to the accused’s drug-related attendance in Simmat Avenue on 17 October 2020.

4. [30]

   Attached to the email was a single page containing a series of bullet point submissions regarding withdrawal of Exhibit 44 stating, in short:

5. [31]

   By email forwarded at 3:16pm, documents were provided to the Court and the Crown by counsel for the accused comprising an extract of the accused’s Cellebrite record which was asserted to show text messages of a drug purchase at the corresponding time – that is around 4:30pm on 17 October 2020 – an extract of the accused’s Cellebrite record which showed a cardless cash withdrawal at 3:01pm, shortly before the alleged purchase, and advising of the existence of telephone intercepts from March 2020, which were not able to be attached, but that were said to include conversations about a drug dealer in Simmat Avenue: (MFI 103).

6. [32]

   In support of the argument that the Crown ought not be able to rely on the accused’s presence on Simmat Avenue on 17 October 2020, counsel for the accused also provided a copy of page 27 of Mr Meyer’s 7 December 2023 statement which identified that both the 1st and 5th “Williams phone services” connected to the Condell Park 63 Simmat Avenue cell tower on the afternoon of 17 October 2020, and so the Crown had this material for a lengthy period, but had not chosen to rely on it as any part of its case.

7. [33]

   It was common ground that nothing at all was said in the Crown Case statement about the accused’s presence on Simmat Avenue on 17 October 2020, nor was anything at all said about this in the Crown Prosecutor’s opening address.

8. [34]

   Neither the Crown Prosecutor nor counsel for the accused were in favour of the jury being polled as to whether any of them had seen the entries on page 2 of the exhibit, or had discussed them with another juror. Given that situation, I was reluctant to impose such an approach. I also note that the potential pitfalls of such an approach were highlighted in Rassi v R [2023] NSWCCA 119.

9. [35]

   Ultimately the Crown Prosecutor agreed that the tender could be withdrawn and that it was a matter for the Court and counsel for the accused to decide how best to manage the situation.

Authorities

1. [36]

   My attention was drawn by counsel for the accused to Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [112]-[115] summarising the relevant principles in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, in support of the position that the Court should proceed with the trial and that there was no need to discharge the jury:

2. [37]

   The practical approach taken and survey of authorities made by Button J in R v Ahola (No. 6) [2013] NSWSC 703 (“Ahola”) at [11]-[18] was also of assistance. I agree with Button J that regardless of the time, expense and witnesses inconvenienced, if a trial is prejudiced to the point of becoming unfair, it must not continue.

3. [38]

   The Court must, however, proceed on the basis that a jury will follow directions given by the Court.

4. [39]

   The Crown Prosecutor referred to Seo v R [2025] NSWCCA 131 (“Seo”), a case in which the Court of Criminal Appeal held that a series of irregularities that occurred whilst the jury was on the verdict should have led to a discharge of the jury despite there being no application by the Crown or the defence to discharge. Price AJA, with whom Cavanagh and Yehia JJ agreed, held that the directions given by the trial judge were inadequate to cure or alleviate the prejudice created. The appeal was allowed and the convictions quashed, and a retrial ordered.

5. [40]

   The first irregularity was the provision to the jury of transcript of exchanges between counsel and the trial judge which contained prejudicial information about the accused. The second irregularity was the discharge of Juror H who was a dissentient, and the continuation of the trial with a jury of 11, with a direction that the jury were to disregard any reasoning of Juror H that related to enquiries he had made outside the case.

6. [41]

   The discharge of Juror H was for making an enquiry outside the case comprising a Google search the previous afternoon for the words “circumstantial evidence” because, as he explained in answers to questions from the trial judge, he was thinking about “what is the direct evidence and circumstantial evidence”, and that he found part of the Bench Book which had an explanation about circumstantial evidence and he read about “the difference between circumstantial and direct evidence”.

7. [42]

   In answer to additional questions from the trial judge he explained his thought process was “to help other jurors understand his position”. He had taken things even further by writing down a question tree that he had discussed with other jurors that morning, which was different to directions the trial judge had given as to how the jury should go about their task in determining the guilt or innocence of the accused.

8. [43]

   Juror H was discharged but neither counsel made an application that the rest of the jury should be discharged. A direction was given by the trial judge that was found by the Court of Criminal Appeal to be inadequate to address the prejudice caused to the accused by what had transpired.

9. [44]

   By the time of discharge of Juror H, the jury had already been out for two days and had already indicated that they could not reach a unanimous decision. A Black direction had been given. A majority verdict direction had also been given. The Court had been informed that it was unlikely that the jury would reach a majority verdict.

10. [45]

    It was after this on the morning of the third day of deliberations that the particular issue arose regarding Juror H, prompted by a note Juror H had made that the Court Officer saw, (although nothing yet sent in to the trial judge), referring to whether they could be given the “Bench Book”.

11. [46]

    After discharge of Juror H, the Trial Judge gave a further direction that a majority verdict was still available, meaning that the jury could deliver a verdict of 10/11, or a unanimous verdict of 11/11. An hour later, a verdict of guilty by majority was returned.

12. [47]

    As can be seen from the judgment of Price AJA, this combination of irregularities analysed in context required the discharge of the jury once the content of Juror H’s activities was known. It was clearly demonstrated by the history of events that the accused lost the chance of an acquittal. The failure to discharge the jury gave rise to a substantial miscarriage of justice.

13. [48]

    The situation dealt with in Seo was complicated further by the application of s 53C of the Jury Act 1977 (NSW) which required the trial judge to specifically consider whether there was a risk of a substantial miscarriage of justice in continuing the trial after the discharge of Juror H. As Price AJA explained at [97], in BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215, Adamson J, (with whom McLellan CJ at CL and McDougall J agreed), concluded that there were three categories of case in which the question may arise as to whether the trial should continue with a reduced number of jurors when one juror had been discharged:

14. [49]

    Unsurprisingly, Price AJA determined that the situation for analysis in Seo demonstrated the case fell within the second of the three categories identified by Adamson J’s analysis, and so the jury should have been discharged. As can be seen from what I have outlined in [39]-[49] above, the situation here is very different to the circumstances of Seo.

Decision

1. [50]

   The accused’s primary position was that Exhibit 44 can be withdrawn, it was only with the jury for “moments”, and the proper course is to direct the jury to forget about the exhibit as it was tendered in error.

2. [51]

   The question for the Court is whether it should disregard the accused’s position – that he specifically did not want the jury discharged – and take a pre-emptive decision to discharge the jury on the basis that there was a high degree of necessity for discharge of the jury established in the circumstances: see Ahola at [18].

3. [52]

   I am not satisfied that has been established.

4. [53]

   There were eight very short questions asked after the exhibit was placed in the hands of the jury, all directing specific attention to the column headings on the first page.

5. [54]

   Exhibit 44 was a “busy” document, with the first page containing crowded columns bearing numbers and letters in very small typeface which required some time and focus to process and understand what it meant. Whilst it had a similar broad function to the tables tendered as Exhibits 28, 29 and 30, the layout was quite different, and the contents were still in the early part of being outlined via questions to Mr Meyer.

6. [55]

   It is not known whether any member of the jury turned to page 2. The document was stapled in the left corner and page 2 was on the flip side of page 1. If a jury member did turn the page, it is not necessarily the case that person would have looked first at page 2, or had sufficient time or forensic focus to see and understand the implications of the sixteen “Condell Park 63 Simmat Avenue” references in the short space of time the exhibit was in the hands of the jury.

7. [56]

   The exhibit was taken back and secured with a minimum of fuss. The jury was later told that the exhibit had been given to them in error, the Court having decided that this was the best way to address the situation, and relying on the many authorities that emphasise that courts must proceed on the basis that the jury will do what they are directed to do and disregard things they may see and hear that they are instructed to disregard.

8. [57]

   It was the beginning of week five of a trial where much evidence had been led about phone data and many other matters, 27 witnesses had been called, and there were two to three more weeks of evidence to come, including the Officer in Charge of the investigation, the second Officer in Charge and a significant witness whose role had already been referred to in the Crown opening.

9. [58]

   At my encouragement, although not direction, counsel for the accused adopted the course of not attempting to tender a “replacement” exhibit with the problematic entries removed. This was so as not to focus the jury on what was now omitted or changed, but instead to move on to other matters with the witness. The forensic purpose of the tender of Exhibit 44 was limited to adding to a point already made that phone data, (in this instance from the “Williams number 5” phone service), suggested that the phone was, like other phone services attributed to the accused, present near the cell tower location in Burke Road Cronulla overnight on 18 to 19 October 2020 and so supporting a submission that the accused was at home in Cronulla at 7:30am that morning when the murder occurred. The withdrawal of Exhibit 44 altogether, and refraining from tendering anything that looked like that document in substitution, seemed to me to be the best course to remove any possible prejudice to the accused that may have been created by the brief and erroneous tender of Exhibit 44.

10. [59]

    In all the circumstances, I was satisfied that there was no high degree of necessity to discharge the jury, and so the jury’s copies of Exhibit 44 were securely destroyed and I provided the following direction to the jury:

11. [60]

    It may be noted in my exchanges with counsel, particularly on 19 September 2025, that I offered alternative views to the one I have reached in this judgment. Those views were articulated to ventilate possible ways of analysing the problem presented from different perspectives and to allow me to test my initial thoughts and responses. They do not, in end result, form part of my reasons for proceeding the way that I did, in the exercise of my discretion not to discharge the jury and to confine my direction to the jury in the form that I chose.