R v Williams (No. 9)

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. Counsel for the defence sought to deploy a document in her closing address as an aide memoire to the jury. That particular document had been sought to be tendered on 29 October 2025, and at that time, there was relatively lengthy debate about the nature and content of that document. That document was marked for identification as MFI 233.

2. In support of the deployment of the document to the jury as an aide, Ms Carroll referred me to page 2660 of the transcript. Ms Carroll's submission implied that I had led her to take this course, or preapproved this course being taken.

3. That is not an accurate reflection of page 2660 of the transcript, or an accurate reflection of the debate regarding that particular document, which spanned transcript pages 2657 to 2664.

4. What occurred on that day was a document, purported to be a summary document of three different documents, was sought to be tendered. Objection was taken by the Crown. The Crown argued the document is not a summary as allowed by the Evidence Act 1995 (NSW) under s 50. I noted on the transcript when I was given a copy of the document that it certainly was not a summary, but was more correctly a submission type of document which cherrypicked certain matters and left out others.

5. At transcript page 2660, in the flow of exchange about the nature of the document as I had just been provided with it for the first time and was running my eye over it, I said this:

“It's a submission. If you were providing this as an aid to the jury in your closing address, then that would be different, but to suggest it's a summary, that's just not accurate”.

6. Then there was an exchange about when the document had been provided to the Crown, and the dangers of recreating a document that only has some of a document that is already in evidence. I said this at page 2661 at line 40:

“Exhibit FFF has the whole conversations in it, doesn't it? You agreed to that document going in. Recreating a document that cherrypicks out messages you want focussed on is a submission. It's a submission, it's not evidence.”

7. The argument developed further, and my concerns became more heightened when it became clear that it definitely was not a summary document. I was referred to the decision of Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226, the dangers of documents purporting to be summary documents being deployed when they are not in reality summary documents.

8. In light of all of that, I rejected the tender of the document that I had marked as MFI 233.

9. I note that there is a distinct unfairness in closing address in the jury being provided with one written piece of material. The Crown did not use as an aide any written document. The defence, it appears, wants to use this purported summary document as an aide, but it would have the effect that the jury is given one singular document during closing addresses, which would give it a heightened importance that I think is problematic.

10. I do not propose giving any documents to the jury during the summing up, and in the circumstances, it seems to me the deployment of that particular document ought not occur, and that is the reason for making the ruling that I did.

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