Kahil v R

The facts

1. The applicant and his co-accused, Tony Haddad, were charged with conspiracy to import a commercial quantity of a border control precursor into Australia contrary to ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). Their joint trial by jury commenced before the trial judge on 9 March 2020 in the District Court sitting at the Downing Centre. The jury was given an estimate of three weeks for the trial. As a result of adjournments due to sick jurors and for other reasons, Monday 23 March 2020 was only the seventh day of the trial.
2. On that day, in the absence of the jury, the applicant's trial counsel applied for leave to withdraw from the trial. He informed the court that he wanted to self-isolate because of his age, 69, his compromised immune system and his recent proximity to the applicant whom he described as "fluey" and to his instructing solicitor who was also exhibiting the same symptoms. He told the court that over the preceding weekend, the applicant tried to get tested for the COVID-19 virus at Bankstown Hospital but had been turned away on the basis that he did not qualify for a test.
3. Before determining the application, the trial judge also heard from the Crown about the applicant's co-accused, who had absented himself from the trial and was unrepresented. When the debate returned to the application, the applicant's trial counsel clarified that the application was not merely one that he be permitted to withdraw, but also an application that the jury be discharged and the trial be aborted.
4. The Crown began to make submissions which were not completed before the trial judge purported to refuse all three applications. His Honour then proposed that the applicant either return to the dock (where his co-accused had been sitting before he absented himself) or that he sit in a remote location and watch the trial via audio-visual link (AVL). His Honour asked the applicant's trial counsel which alternative he would prefer.
5. The applicant's trial counsel sought the opportunity to obtain instructions from his client. At this point, his Honour said to the applicant's trial counsel, at tr. 239.43: "I have already told you … I'm not going to grant your application to withdraw. You have indicated that, at best, that you think that you could have been in contact with someone who has not been diagnosed with COVID-19, that perhaps you may have been in contact with it, and you are concerned. I accept that you are concerned, but I don't accept that that is on a basis on which I should grant you leave to withdraw and/or abort the trial, which would be the effect of granting you leave."
6. The jury was brought into the courtroom in order that the trial could continue. The applicant's trial counsel continued to represent him. A DVD was played to the court before the luncheon adjournment. When the court resumed after the luncheon adjournment, the Crown informed the trial judge that he had instructions to support the application made for the discharge of the jury. The Crown said at tr. 255.3-.22: "I have instructions, your Honour, which I need to convey to the Court. I'm instructed by those who instruct me, of course, the Commonwealth Director of Public Prosecutions, to support the application made [by applicant's trial counsel] for the vacation, as it were - with the discharge of the jury in respect of his client only. My instructions are if your Honour acceded to his application in the light of what I'm saying to you now, the Crown's position is that the trial of Mr Haddad could continue, and should continue, but the concern of the Crown - and I should say this, being concern expressed generally by the New South Wales Bar Association, is that practitioners, for example, in the situation that [the applicant's trial counsel] finds himself, ought not, through being required to perform their professional obligations in representing clients, be exposed to unnecessary risk with respect to their health. [The applicant's trial counsel] may have more to say about the precise nature of how those risks exist in his case, but the position would appear, to the Crown, at least, to be that there does appear to be potentially, at the very least, significant risk to [the applicant's trial counsel]'s health. The Crown does not wish for him to be in that position, essentially, your Honour, given the current extremely unusual circumstances, and the Crown's position is that it supports his application for the discharge of the jury in respect of Mr Kahil. His trial could go over to a future date …"
7. The trial judge invited the applicant's trial counsel to respond before raising with him the possibility that his instructing solicitor could continue the trial on behalf of the applicant. The applicant's trial counsel submitted that such a course would be unfair to his client because his solicitor was not sufficiently experienced to run a criminal trial.
8. His Honour then proceeded to give reasons ex tempore, which included the following: "… As I understand it, in relation to Mr Kahil, his attempts to obtain a diagnosis over the weekend failed. If [the applicant's trial counsel] has already been exposed to COVID-19, and contracted it as a result, then his continuation in the trial achieves nothing at least until such time as he is either diagnosed with COVID-19, or cannot continue because of the result of ill health. While I accept that the Commonwealth DPP has indicated that it would not oppose the application, I am not prepared to stop this trial simply because of the possibility that [the applicant's trial counsel] may have been exposed, or may be exposed to COVID-19 because of his presence in this courtroom, together with either his client and/or his instructing solicitor, who I note was absent all of this morning, but is now here this afternoon, sitting at the back of the Court. In my view, it is not in the interest of justice or the accused to take that course. Like anyone else, I am concerned for members of the public and members of the profession who might be exposed to a virus which clearly can have significantly adverse effects. I'm particularly concerned that [the applicant's trial counsel], at his age, and with a compromised immune system may be more likely to suffer an adverse effect than anyone else present in the courtroom. In the circumstances, I do not propose to vacate the trial or grant [the applicant's trial counsel] leave to withdraw, as he has assured me that his instructing solicitor does not have the experience to conduct or is competent to continue the trial in [the applicant's trial counsel's] absence. [The applicant's trial counsel] has made no arrangements or enquiries as to obtaining alternative counsel in circumstances where the issues are not complex and where to date, the trial has proceeded almost entirely by the playing of intercepted telephone calls, few of which directly involve Mr Kahil, and the playing of recorded evidence from the Committal of an unavailable witness Mr Meng. So … that leaves the alternative. We can continue with the trial with your client seated in the dock, or I will make the arrangements as I have suggested for him to be present in a remote location to further decrease the risk of any further or future exposure to you.
9. His Honour pronounced the following orders: "The application by [the applicant's trial counsel] for leave to withdraw and to vacate the trial in respect of Mr Kahil is refused."
10. After the orders refusing leave to withdraw and to vacate the trial, the applicant's trial counsel withdrew. The trial judge required the applicant's solicitor to come to the bar table. The jury was brought back to court and the matter resumed. After the jury was sent away for the afternoon, the trial judge questioned the applicant's solicitor about his experience and learned that this was his first jury trial and that he did not appear in criminal matters. His Honour purported to give the solicitor advice about the matter and the stage which the trial had reached. The matter was adjourned part-heard to 24 March 2020. Overnight, the applicant filed a notice of application for leave to appeal to this Court against the trial judge's orders.

This Court's jurisdiction

1. Section 5F of the Criminal Appeal Act relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to - (a) proceedings … for the prosecution of offenders on indictment in … the District Court, and … … (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings - (a) if the Court of Criminal Appeal gives leave to appeal, or … … (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal - (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. …"
2. The trial judge's orders refusing to vacate the trial or discharge the jury in respect of the applicant's trial were each interlocutory orders within the meaning of s 5F(3). These orders were relevantly equivalent to a refusal to discharge a jury and to grant an adjournment of a trial, in respect of which this Court exercised jurisdiction under s 5F in Alexandroaia v R (1995) 81 A Crim R 286. The Crown in this Court did not suggest otherwise. I am not persuaded that s 5G, which confers a right of appeal with leave on any party "for review of any decision by the court to discharge the jury", ought be construed to include a decision not to discharge a jury. It is not necessary to consider this further as s 5F is sufficient to confer jurisdiction on this Court to determine the application for leave and the appeal.

The appeal

1. The notice of appeal identified two orders against which leave to appeal was sought: first, the trial judge's refusal to discharge the jury in the applicant's trial; and, second, his Honour's refusal to grant leave to the applicant's trial counsel to withdraw.
2. For the reasons given above, I regard the order refusing to adjourn the trial to be an interlocutory order which can be reviewed by this Court. It is not, in the circumstances of the present case, necessary to address the trial judge's refusal to permit the applicant's trial counsel to withdraw or the reasonableness of the applicant's trial counsel's belief that it was not safe for him to continue to conduct the trial. Even aside from issues of standing, in circumstances where it can be taken that the applicant himself did not object to the withdrawal by his counsel, the fact was that the applicant's trial counsel did withdraw, notwithstanding the trial judge's refusal of leave.
3. It was plain that his solicitor could not reasonably be expected to step into the shoes of his trial counsel and continue the trial. Thus, the withdrawal of his counsel left the applicant, through no fault of his own, without adequate representation.
4. The application for discharge of the jury and vacation of the trial was made after the applicant's trial counsel was first refused leave to withdraw. In these circumstances, the trial judge was bound to treat the applicant as unrepresented. The approach to be taken was laid down in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 by Mason CJ and McHugh J at 311: "A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained." [Emphasis added.]
5. As this Court held in Croke v R [2020] NSWCCA 8, this dictum applies not only to circumstances where an accused is unrepresented because he or she is unable to afford legal representation, but also where an accused's legal representative is unable to attend for a reason which is not the fault or responsibility of the accused: [31].
6. The trial judge failed to address the key question: whether the trial was likely to be unfair if the applicant were forced on unrepresented. Thus, his Honour's discretion to grant or refuse an adjournment miscarried.
7. In the present case, it is not appropriate that the matter be remitted to the District Court for the making of orders on the correct basis. The only legally reasonable conclusion is that the trial of the applicant would be likely to be unfair if he were required to continue without competent representation. Although the trial judge said in the reasons that the Crown did not oppose the application, the extract from the transcript set out above showed that the Crown positively supported it. The Crown took the same position before this Court.
8. Having regard to the conclusion I have reached, it is not necessary to address the various other issues canvassed in argument before this Court, which included the fairness of a trial in which an accused's representative appeared by AVL and the Crown appeared in person; or the level of risk of infection of the COVID-19 virus which would warrant the vacation of a trial.
9. For the reasons given above, it was not necessary for this Court to review the trial judge's refusal of the application by the applicant's trial counsel for leave to withdraw. Nothing in these reasons ought be taken as a criticism of the decision by the applicant's trial counsel to withdraw in the circumstances in which he believed that he had been placed.
10. BUTTON J: My reasons for joining in the orders of the Court accord with those of Adamson J, and with the additional reasons of Harrison J.

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