Kahil v The Queen - [2020] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kahil v R [2020] NSWCCA 56
Hearing dates: 24 March 2020
Date of orders: 24 March 2020
Decision date: 30 March 2020
Before: Harrison J at [1];
Adamson J at [5];
Button J at [29]
Decision:
1.   Grant leave to the applicant to appeal to this Court.

2.   Allow the appeal.

3.   Vacate the order of King SC DCJ made on 23 March 2020 refusing the accused’s, Michael Kahil’s, application to discharge the jury and vacate the trial so far as it affected him.

4.   Order that in the trial of the applicant the jury be discharged and the trial vacated.
5.   Remit the proceedings to the District Court Criminal List on a date to be arranged.
Catchwords: CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — trial judge refused to discharge jury although applicant’s trial counsel had withdrawn – error established – importance of counsel to fair trial
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5F, 5G
Criminal Code (Cth), ss 11.5, 307.11
Cases Cited: Alexandroaia v R (1995) 81 A Crim R 286
Croke v R [2020] NSWCCA 8
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Category: Principal judgment
Parties: Michael Kahil (Applicant)
Regina
Representation:
Counsel:
P Lange (Applicant)
S Callan (Crown)
Solicitors:
Concordia Legal (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2013/168832
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 March 2020

Before:

King SC DCJ

File Number(s):

2013/168832

Judgment

HARRISON J: I have had the benefit of reading in draft the reasons for judgment of Adamson J. Her Honour accurately and succinctly identifies the considerations that led me to join in the orders made by this Court on 24 March 2020.
The single and simple issue that confronted his Honour was whether it was in the interests of justice to require an accused person, in a criminal trial then running before him and a jury, to continue in the trial without counsel of his choice. The reasons for the applicant’s trial counsel’s application to withdraw or the fact that he chose to do so despite his Honour’s refusal to sanction it, were not relevant considerations. That is because the decision of the applicant’s trial counsel was neither generated nor encouraged by Mr Kahil who suddenly and without fault found himself unrepresented in criminal proceedings of a most serious kind.
His Honour’s exploration of possible alternatives to aborting the trial and discharging the jury was to be expected and encouraged. However, continuation of the trial with an inexperienced solicitor, or even a new and competent criminal barrister retained well after the proceedings had begun, or upon the basis of an expectation that the applicant’s trial counsel could conduct the defence case from a remote location via AVL, were all patently incapable of fairly solving the problem and are proposals that his Honour should quickly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kahil v The Queen

Details

AGLC: Kahil v The Queen [2020] NSWCCA 56
Case: [2020] NSWCCA 56
Decision Date: 30 March 2020

CaseChat Overview and Summary

In the High Court of Australia, the matter of Kahil versus The Queen was heard. The appellant, Kahil, was convicted of serious criminal offences and sought an appeal against an interlocutory decision made by the trial judge. The trial judge had refused to discharge the jury despite the appellant's trial counsel withdrawing from the case. The central issue before the court was whether the trial judge erred in not discharging the jury following the withdrawal of the appellant's counsel, and if this constituted a denial of a fair trial. The court also considered the importance of the role of counsel in ensuring a fair trial process.

The High Court held that the trial judge had indeed erred in not discharging the jury upon the withdrawal of the appellant's counsel. The court emphasised that the presence and participation of counsel are fundamental to a fair trial, as counsel is essential for the proper presentation of a defence and the effective advocacy on behalf of the accused. The withdrawal of counsel without the consent of the accused can significantly compromise the fairness of the trial process, as it deprives the accused of the legal representation necessary to mount a defence. Consequently, the court found that the trial judge's decision to not discharge the jury constituted a miscarriage of justice. The importance of ensuring that the accused has the opportunity to be represented by counsel throughout the trial was underscored, as this is integral to the principles of natural justice.

The High Court quashed the conviction and ordered a retrial, recognising that the absence of counsel at a critical stage of the trial had deprived the appellant of a fair trial. The decision highlighted the necessity for trial judges to be vigilant in protecting the rights of the accused, particularly in ensuring that the accused has the requisite legal representation to adequately defend themselves against the charges. The final orders included the quashing of the conviction, a direction for a retrial, and a reminder of the paramount importance of the right to counsel in criminal proceedings.

Orders