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[2025] NSWSC 1391
General information, not legal advice.
Supreme Court of NSW
2025-11-25
Lonergan J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Williams (No. 6) [2025] NSWSC 1391
Hearing dates: 3, 4, 10 and 12 November 2025
Date of orders: 3, 4, 10 and 12 November 2025
Decision date: 25 November 2025
Jurisdiction: Common Law
Before: Lonergan J
Decision: The witnesses called by the Crown and referred to in this judgment are allowed to be cross-examined pursuant to s 38(1)(a) in relation to specified evidence which is unfavourable to the Crown.
Catchwords: EVIDENCE – unfavourable evidence – leave to cross-examine various prosecution witnesses – no question of principle
Legislation Cited: Evidence Act 1995 (NSW), s 38
Category: Procedural rulings
Parties: Rex (Crown)
Bryce Mark Williams (Accused)
Representation: Counsel:
N Marney & A Hughes (Crown)
N Carroll & S Dayeian (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Fahmy Lawyers (Accused)
File Number(s): 2022/00069385
Publication restriction: Nil
In this trial, which involves a determination as to whether the accused was one of two men who shot and killed Mejid Hamzy on 19 October 2020, a witness known in the proceedings as W1 has alleged that he was able to identify and/or recognise the accused from CCTV footage published by authorities on Facebook in September 2021.
W1 asserted that he has known the accused since they were teenagers and, in that context, named a number of other men whom he says frequented the same places and did the same things as him and the accused around the same time.
Whether this is true or not is a significant issue in the case and underpins questions of W1’s overall reliability and truthfulness.
There were six individuals in this category, namely Michael Pollard, Bryce Penfold, Chris Proctor, David Knevitt, Chris King and Rabie Daher. Each of them denied being in the location(s) and being involved in the activities attributed to them by W1, other than two of the men who agreed that they smoked drugs at certain locations. [1]
Separately the Crown also sought leave to put specific propositions in cross examination to Jason Papallo, on the basis that he was mentioned in W1’s evidence as having been involved in a particular telephone conversation about the “hit” on Mejid Hamzy having been ordered by a certain person whom he knew and was in contact with because of a drug rip carried out by Mejid Hamzy involving close to $38 million. Mr Papallo denied the assertions W1 made were true. [2]
In all but two instances (Mr Proctor and Mr Knevitt), the Crown’s application was initially opposed, despite the parameters of cross-examination being strictly limited to matters necessary to deal with confined and specific aspects unfavourable to the Crown case. General cross-examination on credibility was not sought, nor was any leave sought to cross-examine on the basis of previous inconsistent statements.
In respect of each individual, having discussed with the Crown Prosecutor precisely what questions were proposed to be asked, I accepted that the terms of s 38(1)(a) were engaged and I granted each of the applications. Before I did so, I gave specific consideration to the matters set out in s 192 of the Evidence Act 1995 (NSW).
The application in respect of each witness was the subject of oral debate and the reasons for granting them were in broad terms articulated on the record, however the Court thought it useful to gather those reasons and references into one judgment as the applications extended over a number of individual days and are spread over a number of pages of transcript.
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b) the party is a witness in the proceeding.
Section 192 grants courts the authority to give leave, provided that in deciding whether to give that leave, the Court takes into account: the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to do so would be unfair to a party or to a witness; the importance of the evidence in relation to which the leave is sought; the nature of the proceeding; and the power of the Court to adjourn the hearing or to make another order to give directions in relation to the evidence.
Given the discrete and limited nature of the questions to be posed in cross- examination of each witness, there was no risk those questions would add unduly to the length of the hearing. Before I granted leave, particularly in relation to Mr Papallo, the form and content of each question to be asked was first discussed with counsel.
It would have been unfair to the Crown to not allow it to put the propositions it needed to in order to be able to make necessary submissions in its closing address. It would have been unfair to each of the witnesses to not provide them with an opportunity to respond to the assertions that had been made about them by W1.
The evidence was important for the reasons set out at paragraphs [1], [2] and [3] of this judgment, specifically the credibility of the basis upon which W1 claimed to have been able to recognise the accused on the CCTV footage, and the allegations made by W1 about a conversation he had with Jason Papallo about why Mejid Hamzy was murdered.
There was no need to make any ancillary orders or adjourn the proceedings, given the very confined nature of the questions sought to be asked.
The s 38(1)(a) applications were granted.
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Tcpt, 3 November 2025, p 2890-2893 (Michael Pollard); Tcpt, 4 November 2025, p 2957-2958 (Bryce Penfold); Tcpt, 4 November 2025, p 3018-3019 (Chris Proctor); Tcpt, 4 November 2025, p 3032 (David Knevitt); Tcpt, 10 November 2025, p 3083 (Chris King); Tcpt, 10 November 2025, p 3109-3120, p 3137 (Rabie Daher). Note: there had been similar denials in their evidence given on the Basha inquiries held in August 2025.
Tcpt, 12 November 2025, p 3258-3260, p 3265-3267 (Jason Papallo).
R
Williams