By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.
We are continuing our series on whether a global pandemic will allow (or force) an adjournment of pending court proceedings.
In Kahil v R [2020] NSWCCA 56 Senior Counsel for the accused sought leave to withdraw from appearing for a co-accused on the 7th day of an estimated 3 week criminal trial. This was because he was aged 69, had a “compromised immune system” and was concerned about his exposure to one of the co-accused (his client) who he described as “fluey”. Counsel had tried to be tested for the COVID-19 coronavirus over the weekend and had been refused because “he did not qualify for a test”.
Essentially, this application also meant that the hearing would need to be aborted and the jury discharged.
The District Court judge refused an adjournment, summarising Senior Counsel’s position as: “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.”
The refusal to grant an adjournment was overturned by the Court of Appeal, concluding that it would be unfair to require the accused’s solicitor to run the case – given this was his first jury hearing and that he did not appear in criminal matters! The Court of Appeal found that: “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.”
In Part 1 of our series we concluded that appealing to the global COVID-19 coronavirus pandemic will not be enough to obtain an adjournment on its own.
From this case it would appear that the following additional conclusions may be drawn:
- Again, appealing to a global pandemic will not be enough on its own;
- If the global pandemic forces the loss of Senior Counsel – even if by limited connection to someone ‘fluey’, this may be enough.
Read the full judgment here: Kahil v R [2020] NSWCCA 56
The NSW Bar Association has compiled this useful document on the courts’ procedures as a result of COVID-19 protective measures.
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law, contact Andrew Hack at andrewh@matthewsfolbigg.com.au or a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au.
