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Supreme Court 9 October 2025

R v Williams (No. 3)

[2025] NSWSC 1170

Homicide
EVIDENCE NOT PART OF THE CROWN CASE PREJUDICE TO THE ACCUSED ROLE OF DIRECTIONS TO THE JURY NO APPLICATION MADE FOR DISCHARGE ACCUSED DOES NOT WANT JURY DISCHARGED

Citation: R v Williams (No. 3) [2025] NSWSC 1170
Court: Supreme Court of New South Wales
Date: 9 October 2025
Judge: Lonergan J

Background

The accused stands trial for the murder of Mejid Hamzy, who was shot dead outside his home at Simmat Avenue, Condell Park on 19 October 2020. The Crown's case is circumstantial and includes mobile phone location data tending to show where the accused was at relevant times. The Crown called an intelligence analyst from the NSW Crime Commission to explain call charge records and cell tower proximity data for multiple phone services attributed to the accused.

During cross-examination of that analyst, counsel for the accused tendered a seven-page table of call charge records for a phone service attributed to the accused (the "5th Williams phone service"). The document was admitted without objection and distributed to the jury. Within minutes, the Crown Prosecutor intervened, and the exhibit was retrieved from jurors.

The problem was on page 2 of the document. It contained sixteen entries showing the accused's phone in the vicinity of a cell tower at Simmat Avenue, the same street as the murder victim's home, during a 20-minute window on 17 October 2020, two days before the murder. That information formed no part of the Crown's case and had not been led in evidence.

  • Whether the accidental tender of a document containing highly prejudicial material, not part of the Crown's case, required the jury to be discharged.
  • Whether a direction to the jury to disregard the exhibit was sufficient to cure any resulting prejudice to the accused.
  • How the court should exercise its discretion to manage a fair trial in circumstances where neither party applied for a discharge.

Decision

Lonergan J identified the core difficulty clearly: the exhibit placed before the jury suggested the accused was physically present in the very street where the murder victim lived, two days before the killing. That information was not tendered as part of the Crown's case and its introduction, however brief, carried serious potential for prejudice.

The court considered whether there was a "high degree of necessity" to discharge the jury, the established threshold for such a step. Counsel for the accused confirmed the tender was an error and, critically, did not seek a discharge. No application for discharge was made by either party, and the accused positively did not want the jury discharged.

Lonergan J accepted that the risk of prejudice, while real, had to be weighed carefully. The copies of the exhibit had been retrieved quickly, the jury's attention had at that point been directed only to the first page of the document through the questions asked, and it was unknown whether any juror had turned to page 2 or drawn any inference from what appeared there. Tendering a replacement document with the problematic material removed risked drawing attention to the very entries the court wished the jury to forget.

In those circumstances, the court concluded that the best course was to withdraw Exhibit 44 entirely, have the jury's copies securely destroyed, and give a clear direction to disregard anything seen in the document. The court was satisfied there was no high degree of necessity for discharge and proceeded accordingly.

Orders Made

No formal orders were made. The court exercised its discretion to:
- Withdraw Exhibit 44 and have the jury's copies securely destroyed.
- Direct the jury to disregard the withdrawn exhibit and treat it as forming no part of the evidence.

Key Takeaways

  • The threshold for discharging a jury following an accidental tender of prejudicial material is a "high degree of necessity," and that threshold was not met here given the speed of retrieval, the absence of any discharge application, and the accused's express position against discharge.

  • Where prejudicial material enters evidence by error, a trial judge retains a range of curative options short of discharge, including withdrawing the exhibit, destroying jury copies, and giving a carefully framed direction.

  • The decision confirms that the absence of an application for discharge from either party is a relevant factor in the court's discretion, though it is not determinative on its own.

  • Tendering a replacement or redacted version of a problematic exhibit may itself create prejudice by highlighting what has been removed, and Lonergan J regarded complete withdrawal as preferable in the circumstances.

  • Remarks made by a judge during exchanges with counsel to test arguments or ventilate alternative analyses do not constitute findings or reasons, and Lonergan J expressly noted that earlier observations made during argument did not form part of her ultimate reasoning.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW)

Cases
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- R v Ahola (No. 6) [2013] NSWSC 703
- R v Bartle & Ors [2003] NSWCCA 329
- Rassi v R [2023] NSWCCA 119
- Seo v R [2025] NSWCCA 131