Citation: R v Williams (No. 6) [2025] NSWSC 1391
Court: Supreme Court of New South Wales
Date: 25 November 2025
Judge(s): Lonergan J
Background
The accused stands trial on charges arising from the fatal shooting of Mejid Hamzy on 19 October 2020. A central question in the trial is whether the accused was one of two men who carried out the shooting.
A key prosecution witness, referred to throughout proceedings as W1, gave evidence that he recognised the accused from CCTV footage published on Facebook in September 2021, on the basis that he had known the accused since their teenage years. In support of that claimed familiarity, W1 named six other men he said had socialised and spent time in the same places as himself and the accused. Each of those six men, when called by the Crown, denied most or all of W1's account. A seventh witness, Jason Papallo, similarly denied W1's assertion that they had spoken about why the murder had been ordered.
The Crown applied for leave to cross-examine each of these witnesses as unfavourable witnesses under s 38 of the Evidence Act 1995 (NSW). This judgment consolidates the reasons for those rulings, which had been delivered orally across several days of hearing.
Legal Issues
- Whether each witness had given evidence unfavourable to the party that called them, satisfying the threshold in s 38(1)(a) of the Evidence Act 1995 (NSW)
- Whether leave should be granted under s 38, having regard to the discretionary factors in s 192 of the Evidence Act 1995 (NSW)
Decision
Lonergan J was satisfied that s 38(1)(a) was engaged in respect of each witness. The six men named by W1 denied being in the locations or engaged in the activities W1 attributed to them, and Jason Papallo denied W1's account of a conversation about the motive for the murder. In each case, that denial constituted evidence unfavourable to the Crown, which called those witnesses in the first instance.
The Crown did not seek general credibility cross-examination or leave to put prior inconsistent statements. The proposed questioning was deliberately narrow, confined to specific propositions directly relevant to W1's credibility and reliability. Before granting leave in each instance, particularly in relation to Mr Papallo, Lonergan J reviewed the precise questions proposed to be asked with counsel.
The s 192 considerations were also addressed. Because the questioning was tightly confined, there was no risk of unduly extending the hearing. Denying the Crown the opportunity to put the relevant propositions would have been unfair to it in terms of its ability to make closing submissions, while denying the witnesses an opportunity to respond to W1's assertions about them would itself have been unfair to those witnesses. The evidence was important because it went to the credibility of the foundation on which W1 claimed to recognise the accused in the CCTV footage, and to the account of a conversation about the reasons for the murder. No ancillary orders or adjournments were required.
Leave was granted on all seven applications.
Orders Made
• The s 38(1)(a) applications were granted.
Key Takeaways
- Section 38(1)(a) of the Evidence Act 1995 (NSW) permits a party to seek leave to cross-examine its own witness where that witness gives evidence unfavourable to the calling party, subject to the court's discretion.
- Under s 192, a court weighing a s 38 leave application must consider factors including the likely effect on hearing length, fairness to parties and witnesses, and the importance of the evidence in question.
- The Supreme Court granted leave in all seven instances, finding that tightly confined questioning raised no risk of undue delay and that fairness to both the Crown and the witnesses supported allowing the cross-examination to proceed.
- Where proposed s 38 questioning is narrow and specific, the court may actively review the precise form of each question with counsel before granting leave, as occurred here in relation to Mr Papallo.
- This decision confirms no novel point of law. As Lonergan J noted, no question of principle arises. The ruling consolidates procedural rulings made across multiple hearing days into a single reference document.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses)
- Evidence Act 1995 (NSW), s 192 (discretionary factors for granting leave)
Cases cited: None cited in the judgment.