R v Mokbel [2006] VSC 520

2 On Tuesday, the defence was not able to provide any further information as to the whereabouts of the accused and the informant gave conclusionary evidence to the Court that it was his belief that the accused had intentionally absented himself from the trial. Upon being questioned, Mr Parsons stated that the Crown was not seeking to call evidence before the jury as to the reason why the accused was not present in Court. Accordingly, I did not explore the factual basis for the informant's belief. I will be directing the jury that they must not draw any adverse inference against the accused by reason of his absence from Court, absent any evidence why he is not present.

3 This trial is in its seventh week. Many witnesses were called by the Crown over four weeks; the defence called three witnesses, and the accused did not give evidence. The three witnesses called by the defence gave evidence concerning an issue as to whose man Mr Cassar was. He was the senior manager in the UPS business, whose job it was to intercept the parcels carrying the cocaine and remove them to avoid any detection by the authorities. It was the thrust of their evidence that contrary to the Crown's case, Mr Cassar was not the accused's man in the venture but in fact was recruited by Mr U, an allegation vigorously denied by Mr U.

4 The defence then informed the Court that it wished to call evidence from an American lawyer to prove what the American law was at the relevant time, insofar as it concerned the effect of taking into possession the two packages containing the cocaine, by US Federal Customs officers. The evidence was called and a ruling was made.

5 Application was then made by the defence to take the case from the jury and this application was refused, and as I have stated, the Crown prosecutor commenced his address.

6 The trial having reached that stage, the presence of the accused thereafter was not essential to the completion of the trial, namely addresses and the charge. It would indeed be a very rare case that once addresses had commenced, an application would be made on behalf of the accused to reopen the defence case to call him in circumstances where a decision had already been made by the defence team not to call him to give evidence. Indeed, in this case, the accused was the one man who could refute the evidence that he was knowingly concerned in the importation and despite this, a decision was made not to call him to give evidence.

7 In my view, it would have been a remote possibility that at this late stage any such application would be made; indeed, to suggest otherwise would be fanciful. I do not accept that his presence is essential for the purposes of counsel delivering his final address to the jury or taking exceptions to the charge. They are matters for counsel. Counsel is in charge of the conduct of the case. Counsel, while instructed, has control of the case and its conduct throughout. This is ancient law and well recognised by experienced members of the Bar. As long ago as 1845, Baron Alderson expressed the view that when a barrister was retained in a cause he should be retained in it throughout and he ought to be in his proper place, namely at the head of it, and to conduct it throughout. He reminded those present in Court that the institution of barristers is principally to assist the Court in the dispensing of justice.[1]

8 Whilst to some extent a client may limit the authority of counsel, the ordinary position is that counsel takes charge of the case, does not adopt a subordinate position or indeed share the conduct of the case with his client. In a later case, Justice Blackburn had this to say about counsel's obligations after it was put that the retainer of counsel simply implies the exercise of the power of argument and eloquence. His Lordship then said:

"But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel therefore being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct a case is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause." [2]

9 But in addition, counsel has an overriding duty to the Court. In Giannarelli v Wraith,[3] Justice Brennan emphasized the duty of counsel to assist the Court in doing justice according to law. His Honour said:[4]

"The purpose of court proceedings is to do justice according to law. That is the foundation of civilised society. According to our mode of administering justice, parties with inconsistent interests are cast in the role of adversaries and the court or judge is appointed to be an impartial arbiter between them. Counsel (whether barrister or solicitor) may appear to represent the adversaries, but counsel's duty is to assist the court in the doing of justice according to law. A client - and perhaps the public - may sometimes think that the primary duty of counsel in adversary proceedings is to secure a judgment in favour of the client. Not so. The true position was stated by Lord Eldon in Ex parte Lloyd (5 November 1822, reported as a note in Ex parte Elsee (1830) Mont. 69, at p 70, at p 72):

'He lends his exertions to all, himself to none. The result of the cause is to him a matter of indifference. It is for the court to decide. It is for him to argue. He is, however he may be represented by those who understand not his true situation, merely an officer assisting in the administration of justice, and acting under that impression, that truth is best discovered by powerful statements on both sides of the question.'

By a paradox which is obvious to any who have experience in our courts, the client is best served by a counsel who is manifestly independent. In representing a client, counsel is expected not only to exercise due skill and diligence but also to do to the best of counsel's ability whatever may legitimately be done in the client's interests, for that is the way in which counsel assists in doing justice according to law: cf. Tombling v Universal Bulb Co, Ltd (1951) 2 TLR 289, at p 297. The privileges of counsel are accorded to that end: they are not accorded to protect counsel. If a duty owed to the client were seen to be separate from the primary duty of assisting to do justice according to law, the two duties might not be wholly compatible. No duty to a client which stands apart from the primary duty can be allowed to impair performance of the primary duty. Counsel who take part in proceedings in court (as well as witnesses and judges) must be able to perform their primary duty free from the chilling threat of civil suit by the parties to the litigation."

10 Mr Heliotis has asserted that one of the reasons why he and his junior cannot continue is because he does not have the client available to him to instruct him in relation to his final address. I do not accept that that is a valid reason for the defence team to withdraw. It is fanciful in the extreme to accept that Mr Heliotis QC, a counsel of considerable experience, would be instructed or guided by his client in his final address.

11 Mr Heliotis also informed the Court that there were sufficient funds in their instructing solicitor's trust account to pay for counsel's fees to the end of the trial. He made it clear that any suggested lack of funds would not be a reason why he and his junior would withdraw.

12 Mr Heliotis informed the Court that he and his junior had attended a meeting of the Ethics Committee on Tuesday 21 March and were then informed that they were not obliged to remain in this trial to the end. Mr Heliotis informed the Court that he and his junior would withdraw from the case because their client was unavailable.

13 I must say I have difficulty accepting the ruling. Counsel have a clear duty to the Court and to their client. Whilst it is believed that the accused has absented himself intentionally from the trial, the fact is that the trial has reached a stage where his presence is no longer necessary for his proper defence by an experienced legal team. Mr Heliotis has been a Queen's Counsel for many years and is very experienced in the field of criminal law.

14 I indicated that in my opinion, defence counsel should remain and address the jury, and take any exception to the charge that was thought necessary and appropriate in the circumstances. However, counsel have indicated that they do not propose to remain. In my view, they should remain to perform their duty to the Court "in the doing of justice according to law".

15 I provisionally made a decision to proceed with this trial to its conclusion because all of the evidence has been called, and the presence of the accused for the balance of the trial is not necessary for his proper defence. In my view, counsel should remain. They should do so both in the interests of their client and pursuant to their duty to the Court. As the eminent jurist, Sir Owen Dixon, said in delivering a lecture on professional conduct -

"Professional ignorance is often the real source of the so-called ethical problems which men feel. For with more knowledge of the law and of the customs and traditions of the Bar, men know instinctively what they ought to do, they do not conjure up fancy situations and imaginary problems."[5]

16 It has not escaped me that one of the reasons why the accused may have intentionally absented himself from this trial is either to abort the trial, or after the trial is completed, and assume he is convicted and sentenced, and if arrested, to initiate an appeal on the basis that he has been denied a fair trial.

17 By counsel adopting the approach they have, this purpose may be achieved. If absconding becomes commonplace, then criminal trials will never be concluded and the administration of the law will break down. Counsel, in my opinion, should carefully consider their position. To continue as counsel through to the end of this trial could not disadvantage their client, but indeed would benefit his interests because he would have the benefit of a final address to the jury and any criticisms of the charge. By withdrawing, as they propose to do, counsel may provide a basis for an application in the appeal court for a retrial. And I again emphasise that counsel have a duty to the Court as well as to their client. In the circumstance, it could not be said that their retainer has been withdrawn. According to the defence nobody has heard from the accused.

18 In addition, it is also necessary to consider another situation which may arise. I estimate the jury will be asked to consider their verdict early next week, hence the trial may continue for another five days. During that period, the accused may be found and return to Court. The balance of the trial would, in those circumstances, continue in the presence of the accused. Depending on when that occurred, it may be very difficult in the circumstances to turn back the clock to enable counsel to perform their duty. No doubt, in those circumstances, counsel would attend thereafter. One would expect that experienced counsel, cognizant of the customs and traditions of the Bar, and performing their obligations to both their client and the Court, would know instinctively what to do to discharge their duty to their client, the Court and the administration of justice. Counsel should carefully consider their position and responsibilities in the light of that possibility.

19 The Court does have a discretion to continue a trial in the absence of the accused, but there are competing interests which must be considered and weighed. The first, of course, is the right of an accused person to have a fair trial in which he can hear the case put against him and respond to it. The other interest is the public interest, namely that the administration of justice must not be unnecessarily impeded. It is trite to observe that trials would be put at risk if accused persons on bail could absent themselves in the course of a trial, thereby seeking to abort the trial. In R v Vernell,[6] the Full Court was concerned with a situation where an unrepresented accused violently conducted himself with the intention of preventing the trial being held and the presiding judge had him removed from the Court and the trial proceeded in his absence. The Full Court held that the trial was not invalid. The law was discussed in Vernell's case and reference was made to what the Privy Council said in Lawrence v The King.[7] It was stated by the Privy Council that in the case of misdemeanours there may be special circumstances which permit a trial in the absence of the accused but on trials for felony the rule was inviolable, namely, the trial could not continue. However, the distinction between misdemeanours and felonies no longer exists. In the more recent case of Jones,[8] the South Australian Court of Criminal Appeal held that a trial could continue in the absence of the accused if there were circumstances justifying that course and one of the circumstances is where an accused person has absconded on bail during trial. In the New South Wales case of McHardie and Danielson,[9] the Court of Criminal Appeal determined that there was no longer a distinction between felony and misdemeanour. In that case,[10] the Court made it clear that where a person absconded the trial judge had a discretion to continue the trial in his absence. The decision in Jones is to the same effect. See also R v Cornwell,[11] where the Court underlined the general rule that the accused should be present throughout, which included sentence, but an exception to the rule may be where the accused voluntarily absconds while on bail. Reference was also made to the English case of R v Jones (No. 2).[12] The evidence I have to date is that it is the belief of the informant that the accused has voluntarily absented himself. Defence counsel did not challenge the evidence.

20 In my view, the authorities are clear. The Court does have a discretion to continue with a trial in the absence of the accused. Whether or not the Court would exercise its discretion to continue must depend upon the particular circumstances. The interests of both the accused and the administration of justice must be carefully weighed. In my view, it is clear in the present matter that the interests of the accused are not prejudiced by the trial continuing because all the evidence has been called, he has not given any evidence, and it would be the remotest of remote possibilities that he would hereafter seek to give evidence. I do not accept the contention of counsel that the accused is necessary to enable counsel to discharge his duty to both his client and the Court and deliver his final address or take exceptions to the charge. Apparently counsel have made their decision. I do not agree with it. However, I accept that I cannot demand that they remain and deliver an address to the jury.

[1] See Moscatti v Lawson, 1 Mood and R 454[1835] EngR 509; , 174 ER 156.

[2] See Strauss v Francis (1866) LR 1 QB 379, 381.

[3] [1988] HCA 52; (1988) 165 CLR 543.

[5] See forward by Sir John Young in Sir Gregory Gowan's work, Professional Conduct, Practise and Etiquette at the Victorian Bar.

[6] [1953] VicLawRp 79; 1953 VLR 590.

[7] 1933 AC 699, 708.

[8] [1998] SASC 7021; (1998) 104 A Crim R 399.

[9] [1983] 2 NSWLR 733.

[11] (1972) 2 NSWLR 1.

[12] [1972] 2 All ER 731.