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District Court 23 October 2019

R v Yousif

[2019] NSWDC 615

Drugs

Citation: R v Yousif [2019] NSWDC 615
Court: District Court of New South Wales
Date: 23 October 2019
Judge: Grant DCJ

Background

The accused and a co-accused were due to stand trial on serious drug matters at Albury on 23 October 2019. The accused had been represented by senior counsel who had been retained since at least December 2017. The matter had been listed as a backup trial for the Albury sittings commencing 14 October 2019 and had a lengthy history of adjournments and procedural non-compliance.

On 11 October 2019, senior counsel indicated at a telephone call-over that he would have difficulties if the matter ran in the following sittings, citing a specially fixed murder trial commencing 4 November 2019 in the Supreme Court at Newcastle. He purported to return the brief to defend, and the accused consented to that return. Her solicitor took no meaningful steps to retain replacement counsel until prompted by the court's associate on 16 October 2019.

The day before trial, the accused filed a notice of motion to vacate the trial date. The motion was supported by affidavits from both the accused and her solicitor. The Crown did not oppose the application, citing practical difficulties including the unavailability of a key police witness after Thursday of that week.

  • Whether senior counsel's return of the brief to defend a serious criminal charge was permitted under rules 107 and 111 of the Legal Profession Uniform Conduct (Barrister) Rules 2015
  • Whether the accused's consent to the return of the brief was valid and fully informed under rule 107(b)
  • Whether the trial should be vacated in circumstances where the accused's own conduct had contributed to the absence of representation

Decision

Grant DCJ found that the conditions in rule 107(a) permitting a barrister to return a brief in a serious criminal matter were not established. His Honour was unable to find that the Newcastle murder trial constituted "exceptional and compelling" circumstances, particularly given that no evidence was placed before the court as to which brief was received first. The assertion from the bar table that sufficient time remained for another practitioner to properly take over was contradicted by the solicitor's own evidence that no replacement counsel could be found.

His Honour then considered rule 107(b), which permits return of a brief where the client has consented after being clearly informed of the circumstances and the terms of the rule. A note was read to the court indicating the accused had consented on or about 11 October 2019. Grant DCJ assumed, for the purposes of the application, that proper disclosure had been given. However, the court was deeply troubled by the consent, noting that the accused was a former solicitor who would have understood that withholding consent would have obligated senior counsel to appear. No satisfactory explanation was offered for why she agreed to the return.

The court was highly critical of the solicitor's conduct. His Honour found that the solicitor knew of the return of brief on 11 October 2019, took no action for almost a week, and when he did act, his efforts to find alternative counsel were tardy and indirect. The fees arrangement that had been negotiated, which included both a preparation fee and a cancellation fee payable to departing counsel, left any replacement brief commercially unattractive and effectively unmarketable.

Despite significant reluctance, and noting that the Crown identified no utility in proceeding with the accused represented only by her solicitor in a complex matter involving substantial electronic material, Grant DCJ vacated the trial date. His Honour fixed a new trial date for 24 February 2020, stating expressly that the trial would proceed on that date regardless of whether senior counsel was available.

Orders Made

  • Trial date of 23 October 2019 vacated
  • Matter adjourned for trial to 24 February 2020 at Albury at 10:00 am
  • Any further Crown evidence to be served on the accused's legal representatives by 5:00 pm on 29 October 2019
  • Counsel to attend a pre-trial conference under s 140 of the Criminal Procedure Act by 5:00 pm on 1 November 2019
  • Counsel to agree on facts not in issue and prepare an agreed statement under s 191 of the Evidence Act by 8 November 2019
  • Section 142 notice to be served on the accused's legal representatives by 5:00 pm on 25 October 2019
  • Section 143 response to be served on the Crown by 5:00 pm on 28 October 2019
  • Bail for the accused continued until further order

Key Takeaways

  • A barrister seeking to return a brief to defend a serious criminal charge under rule 107(a) of the Legal Profession Uniform Conduct (Barrister) Rules 2015 must establish on reasonable grounds both that circumstances are exceptional and compelling, and that sufficient time exists for another practitioner to properly take over. The District Court found neither limb was satisfied here.

  • Where a client consents to the return of a brief under rule 107(b), that consent shifts responsibility for the absence of representation to the client. The court found the accused, as a former solicitor, bore responsibility for the situation her consent had created.

  • Fees arrangements that include preparation and cancellation charges payable to departing counsel can render any replacement brief financially unacceptable, effectively frustrating the prospect of obtaining new representation in time.

  • Procedural non-compliance by both counsel and solicitor, including failure to attend readiness hearings, failure to comply with pre-trial directions from the Chief Judge, and delay in seeking replacement counsel, attracted pointed criticism from the court.

  • Granting a last-minute adjournment application in these circumstances was described as a matter of great reluctance. The court reset the new trial date by displacing other listed matters and stated unequivocally that the February 2020 trial would proceed irrespective of the availability of the original senior counsel.

Legislation and Cases Referenced

Legislation:
- Legal Profession Uniform Conduct (Barrister) Rules 2015 (NSW), rules 105, 107, 111
- Criminal Procedure Act 1986 (NSW), ss 140, 142, 143
- Evidence Act 1995 (NSW), ss 191

Cases cited: None stated in the judgment.