Citation: R v Williams (No. 9) [2025] NSWSC 1434
Court: Supreme Court of New South Wales
Date: 27 November 2025
Judge(s): Lonergan J
Background
This is a procedural ruling arising during a criminal trial in the Supreme Court. The ruling addresses a dispute about a document the defence sought to use as an aide memoire (a memory aid) for the jury during closing addresses.
The document had originally been the subject of contested tender proceedings on 29 October 2025, where it was marked for identification as MFI 233. It was described by the defence as a summary of three exhibits already in evidence, but both the Crown and Lonergan J took issue with that characterisation.
Legal Issues
- Whether MFI 233 qualified as a legitimate summary document for the purposes of s 50 of the Evidence Act 1995 (NSW)
- Whether it was appropriate to permit the defence to deploy the document as an aide memoire for the jury during closing addresses
- Whether permitting one party to hand written material to the jury during closing addresses, when the other party had not done so, created an unfairness
Decision
Lonergan J found that MFI 233 was not a genuine summary of the exhibits it purported to summarise. Rather than setting out the full content of those exhibits, the document selectively extracted certain text messages while omitting others. The Judge described it as a submission in documentary form, not a summary.
The Judge also noted that Exhibit FFF already contained the complete text message conversations relevant to the defence's purpose. Recreating a document that cherry-picked particular messages from that exhibit was characterised as an attempt to dress up a submission as evidence.
A further concern was the procedural unfairness that would result if the jury received a written document from only one party during closing addresses. The Crown had not used any written aide memoire, and providing the jury with the defence document in that context would give it a disproportionate prominence. The Judge indicated that no documents would be provided to the jury during the summing-up either.
On that basis, Lonergan J declined to permit the deployment of MFI 233 during the defence closing address and confirmed the earlier ruling rejecting its tender.
Orders Made
No orders were made in this decision.
Key Takeaways
- A document that selectively extracts portions of exhibits already in evidence does not qualify as a "summary" under s 50 of the Evidence Act 1995 (NSW); it is more properly characterised as a submission.
- Lonergan J drew a clear distinction between a true summary document (which faithfully condenses existing material) and a document that cherry-picks content to advance a party's argument.
- Procedural fairness considerations extend to the use of written aids during closing addresses: where only one party provides the jury with a written document, the resulting imbalance can itself be a ground for refusing to permit its use.
- Judicial commentary during an interlocutory debate does not necessarily constitute pre-approval of a course of action; the Supreme Court here rejected the suggestion that remarks made while first reviewing a document amounted to endorsement of its later use.
- The decision references Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226 as authority highlighting the dangers of deploying documents that purport to be summaries but are not.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 50 (the provision permitting use of summaries of voluminous documents)
Cases
- Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226