Kahil v R [2020] NSWCCA 56

Kahil v R [2020] NSWCCA 56 · Read the judgment on AustLII

Catchwords: COVID-19 – withdrawal of counsel for health reasons

Some practitioners likely have health concerns which place them at particular risk if they contract COVID-19. Those practitioners may also feel compromised by the lengthy history of some matters, so that they don’t feel they can withdraw, especially if there is no other representation available (for example in regional areas). This decision provides at least a little guidance.

The applicant was listed for trial in the District Court for a Commonwealth offence. For Constitutional reasons, that meant judge-alone trial was therefore not available. The matter was said to have an unfortunate history with long delays over several years, although none of that history was recounted. Whatever the history, a jury trial was commenced for the applicant and his co-accused, shortly before COVID-19 forced changes to the court system. On 23 March 2020, his counsel sought leave to withdraw from the trial, along with orders aborting the trial. His reasons involved his advanced age, his compromised immune system, and his recent proximity to the applicant and his solicitor who were both showing symptoms of illness. The applicant himself had tried to get himself tested for COVID-19 but had been turned away because he didn’t qualify for a test. The trial judge interrupted the Crown’s submissions in reply to peremptorily refuse the applications. The trial continued (with the jury) until lunch. After lunch, the Crown returned to the topic and made submissions positively supporting the application made by the applicant to abort his trial. The trial judge raised the possibility of the instructing solicitor running the trial, but was told by counsel that would be unfair because the solicitor was insufficiently experienced to be running a criminal trial. The trial judge refused the applications to discharge the jury and to allow counsel leave to withdraw. Trial counsel withdrew anyway. The trial judge asked the solicitor to come to the bar table, the jury were brought in, and the trial resumed. At the end of the day, the trial judge asked the solicitor about his experience and was told that this was his first jury trial and that he did not appear in criminal matters. His Honour then purported to give the solicitor advice about the matter and the stage the trial had reached. Overnight the applicant filed an application to the CCA, which was heard immediately.

The CCA (Adamson J; Harrison J agreeing with some additional observations, Button J agreeing with each) allowed the appeal. Adamson J, in delivering the primary judgment, sidestepped the question about whether it was an error to refuse counsel leave to withdraw: the fact was that counsel did withdraw, notwithstanding the judge’s refusal of leave (at [21]). The solicitor could not reasonably have been expected to step into the shoes of trial counsel and continue the trial, so withdrawal of counsel left the applicant unrepresented, through not fault of his own (at [22]).

In the circumstances, the trial judge was bound to treat the applicant has being unrepresented (at [23]). His Honour failed to address the key question: whether the trial was likely to be unfair if the applicant were forced on, unrepresented. The result was that his Honour’s discretion to grant or refuse the adjournment miscarried (at [25]). The only legally reasonable conclusion was that the trial of the applicant would be likely to be unfair if he were required to continue without competent representation. Although the judge said the Crown did not oppose the application, they in fact positively supported it – and the Crown took the same position on appeal (at [26]). The Court went out of their way to say that nothing they said should be taken to criticise the decision of counsel to withdraw, in the circumstances in which he believed he had been placed (at [28]).

Although subsequent events (including the suspension of practically all defended matters in the Local and District Courts) have to some degree overtaken this decision’s direct application to practitioners affected by age or health conditions by COVID-19, the principles have some broader application. If a practitioner is unable to appear because of genuine health concerns, and no arrangements are able to be made for adequate representation of the accused (so as to secure a fair trial), then an adjournment would appear to be strongly called for, if not actually mandated.