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Court of Criminal Appeal 30 March 2020

Kahil v R

[2020] NSWCCA 56

Drugs
ERROR ESTABLISHED IMPORTANCE OF COUNSEL TO FAIR TRIAL

Citation: Kahil v R [2020] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 30 March 2020
Judges: Harrison J at [1]; Adamson J at [5]; Button J at [29]

Background

The applicant and his co-accused were jointly tried in the District Court on charges of conspiring to import a commercial quantity of a border control precursor into Australia, contrary to the Criminal Code (Cth). The trial commenced on 9 March 2020 before King SC DCJ and was estimated to run three weeks. By 23 March 2020, only seven trial days had been completed due to various adjournments.

On that day, the applicant's trial counsel applied to withdraw from the proceedings. He was 69 years old, had a compromised immune system, and had recently been in proximity to the applicant (who had attempted, unsuccessfully, to obtain a COVID-19 test) and to his own instructing solicitor, both of whom were displaying flu-like symptoms. He also applied for the jury to be discharged and the trial aborted. The Crown ultimately supported those applications.

The trial judge refused all three applications and proposed alternatives, including having the applicant's inexperienced instructing solicitor continue the trial or having trial counsel appear remotely via audio-visual link (AVL). Despite the refusal, trial counsel withdrew anyway. The applicant sought leave to appeal the trial judge's order requiring the trial to continue.

  • Whether the trial judge erred in refusing to discharge the jury and vacate the trial after the applicant's counsel withdrew, leaving him unrepresented in a serious criminal matter.
  • Whether the principles in Dietrich v The Queen (1992) 177 CLR 292, concerning an accused's right to competent representation, applied where counsel's inability to attend was not the fault of the accused.
  • Whether any of the alternatives proposed by the trial judge could have adequately protected the applicant's right to a fair trial.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, acting with urgency: the matter was listed, heard, and determined on 24 March 2020, the day after the impugned order was made.

The Court applied the principle from Dietrich v The Queen that a trial of a serious criminal charge is likely to be unfair if the accused is forced to proceed unrepresented. Adamson J, with whom Harrison J and Button J agreed, held that this principle extends beyond cases where an accused cannot afford a lawyer. Drawing on the Court's earlier decision in Croke v R [2020] NSWCCA 8, her Honour confirmed that the principle also applies where an accused's representative is unable to attend for a reason that is not the fault or responsibility of the accused.

The trial judge's error was in failing to address the correct question: whether the trial was likely to be unfair if the applicant were required to continue without competent representation. Instead, the trial judge focused on the circumstances of counsel's withdrawal and possible workarounds. Harrison J noted that the proposed alternatives, including reliance on an inexperienced solicitor, a newly retained barrister unfamiliar with the proceedings, or counsel appearing by AVL while the Crown appeared in person, were all plainly inadequate and should have been quickly discarded.

The Court found that the only legally reasonable conclusion on the facts was that the trial would likely be unfair if continued without competent representation. Remitting the matter to the District Court to remake the order on the correct basis was therefore not appropriate. The Court also noted that the Crown had positively supported the application to discharge the jury, not merely declined to oppose it, which the trial judge had understated in his reasons. The Court declined to express any view on whether trial counsel's decision to withdraw was itself correct.

Orders Made

  • Leave granted to the applicant to appeal.
  • Appeal allowed.
  • The trial judge's order of 23 March 2020 refusing the application to discharge the jury and vacate the trial (as it affected the applicant) was vacated.
  • The jury in the applicant's trial was discharged and the trial vacated.
  • Proceedings remitted to the District Court Criminal List on a date to be arranged.

Key Takeaways

  • The Dietrich principle, that a serious criminal trial is likely to be unfair if an accused is forced to proceed unrepresented, is not confined to cases of financial inability to retain counsel. It also applies where counsel withdraws for reasons entirely outside the accused's control or fault.
  • Where a trial judge exercises discretion on whether to grant an adjournment or discharge a jury on representation grounds, the key question is whether the trial is likely to be unfair if the accused proceeds without competent representation. Failure to address that question constitutes an error of discretion.
  • Proposed alternatives to discharge, such as substituting inexperienced solicitors, late-retained counsel, or remote AVL appearances against an in-person Crown, will not always suffice to cure the unfairness caused by the loss of established trial counsel.
  • In cases where only one legally reasonable conclusion is available on the facts, the Court of Criminal Appeal may itself make the requisite order rather than remit the matter to the primary court for reconsideration.
  • Harrison J emphasised that an accused's right to competent representation must not be compromised by institutional pressure to keep a long-delayed or administratively difficult trial on foot.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F, 5G
- Criminal Code (Cth), ss 11.5, 307.11

Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Croke v R [2020] NSWCCA 8
- Alexandroaia v R (1995) 81 A Crim R 286