R v Yousif

[2019] NSWDC 615

District Court

New South Wales

Medium Neutral Citation:	R v Yousif [2019] NSWDC 615
Hearing dates:	23 October 2019
Date of orders:	23 October 2019
Decision date:	23 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Application to vacate trial date of 23 October 2019 granted; Matter adjourned for trial to 24 February 2020 at Albury, 10am; I direct that any further evidence to be relied upon by the Crown be served on the legal representatives for the accused on or before 5pm 29 October 2019. I direct that counsel attend a pre-trial conference pursuant to s 140 of the Criminal Procedure Act on or before 5pm 1 November 2019. I direct that counsel agree upon the facts that are not in issue which can be put before the jury by way of an agreed statement pursuant to s 191 of the Evidence Act on or before 8 November 2019. I direct that if not already served, s 142 notice is to be served on the legal representatives for the accused on or before 5pm 25 October 2019. I direct that the s 143 response be served on the Crown on or before 5pm 28 October 2019. Bail is to continue until further order.
Catchwords:	CRIMINAL PROCEDURE — Trial — Adjournment
Legislation Cited:	Legal Profession Uniform Conduct (Barrister) Rules 2015
Category:	Procedural and other rulings
Parties:	Regina (Crown) Alina Yousif (Accused)
Representation:	Counsel: D Robinson (Crown) W Terracini SC (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Oxford Lawyers (Accused)
File Number(s):	2017/00368997

Judgment

1. The accused, Alina Yousif, with a co-accused, Mr Parkinson, was due to face trial today for serious drug matters. Yesterday, 22 October 2019, her solicitor filed a notice of motion seeking that the trial be vacated. In support of the application is an affidavit from the accused, dated 22 October 2019, and an affidavit from her solicitor, Mr Asem Taleb, dated 21 October 2019.

2. It is necessary to set out some of the chronology of events to understand the application.

• 17 July 2018. The matter was first mentioned before the Courts.    

• 19 September 2018. A call over was conducted and the matter was listed for trial before this Court on 13 May 2019. The trial did not proceed on that date.

• 5 February 2019. Sittings for Albury were gazetted. Those sittings were to take place on 14 October 2019 for a period of two weeks. This trial was listed in those sittings - see affidavit at [30] of Mr Taleb.

• 20 February 2019. Mr Taleb consented to the Yousif matter being fixed for trial.

• 22 August 2019. A readiness hearing was conducted before the Chief Judge of the District Court. This matter was listed as the backup trial for 14 October 2019.

• The Chief Judge made a s 140 direction for a pre-trial conference between counsel. The direction was not complied with. The Chief Judge further directed counsel to agree upon facts not in issue and prepare a statement pursuant to s 191 of the Evidence Act. This direction was not complied with.

• The matter was stood over to 29 August 2019 for a readiness hearing. A readiness hearing was conducted on that day. The accused was not represented. Her solicitor says he was incorrectly informed of the date. It would appear he made little, if any, inquiries about what happened at the readiness hearing.

• What is clear is that the matter was listed as the backup trial for 14 October 2019.

• 11 October 2019. A telephone call over/readiness hearing was conducted by the Court. Mr Terracini of senior counsel indicated that if the matter was listed as the second trial for the sittings commencing 4 November 2019 he would have difficulties.

3. He says that he complied with Rule 111 of the Legal Profession Uniform Conduct (Barrister) Rules 2015 which provides:

“A barrister must promptly inform the instructing solicitor or the client as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated”.

4. He says he promptly informed his instructing solicitor. Rule 107 of the Rules is applicable and provides:

“A barrister must not return under r 105 a brief to defend a charge of a serious criminal offence unless:

(a) The barrister believes on reasonable grounds that:

(i) The circumstances are exceptional and compelling, and

(ii) There is enough time for another legal practitioner to take over the case properly before the hearing, or

(b) The client has consented after the barrister has clearly informed the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule.”

5. Mr Terracini submitted that he believed on reasonable grounds that exceptional and compelling circumstances existed for him to return the brief. It was said by him and contained in his solicitor’s affidavit that:

“Mr Terracini commences a longstanding specially fixed murder trial ... on 4 November 2019 at the Supreme Court of New South Wales sitting at Newcastle”.

6. Mr Terracini appeared on a release application for the accused on 18 December 2017 and was retained thereafter. Mr Terracini says that he was briefed in the Newcastle matter before 18 December 2017 but was unable to provide a date when he was so briefed.

7. I was unable to make a finding on counsel’s assertion from the bar table as to which brief was the brief first in time. No evidence was put before me when he received the Newcastle brief.

8. I do not accept that the need to appear in a murder trial as opposed to a serious drug trial where the accused has been a solicitor who has relinquished her practising certificate but seeks to re-join the profession is an exceptional and compelling reason to return the brief.

9. Mr Terracini submits that in relation to r 107(a)(ii) there is enough time from the 11 October 2019 for another legal practitioner to take over the case properly before the hearing. This is not supported. There is no support for this assertion and indeed the evidence is to the contrary. Mr Taleb in his affidavit says that he has been unable to find counsel to accept the brief.

10. Rule 107(b) allows counsel to return a brief if the client has consented. There was no evidence in the affidavit of the accused, or the solicitor, that she had consented. The matter was raised during the course of submissions and there was a temporary adjournment to enable Mr Terracini to obtain instructions.

11. Mr Terracini read a note to the Court which read in part “that on or about 11 October 2019 the accused informed her solicitor that Mr Terracini could return the brief due to his unavailability”.

12. It is not clear if the accused was informed of the circumstances in which the barrister wished to return the brief and the terms of the rule. This part of the rule is to ensure full disclosure and valid consent, however, for the purposes of this application I assume it was done.

13. The consent of the accused who could have refused means that she is responsible for the debriefing of her counsel. If she had not consented Mr Terracini would have been obligated to appear.

14. The Crown says I should not draw the inference that the accused consented to the return of the brief so that the trial would not proceed today. I am deeply troubled by the actions of the accused. She is a former solicitor who has had experience in briefing barristers. She would have known that if she did not consent then Mr Terracini was obligated to appear but she chose to consent and it has not been properly explained to me why she so consented other than for the convenience of Mr Terracini.

15. At the time she consented she would have known that the preparation was lost and a cancellation fee was to be charged. Under these circumstances I do not understand why she consented.

16. I accept the Crown’s submission that I should not draw the inference that she consented to the return of the brief to prevent the trial proceeding.

17. A simple question remains which has not been satisfactorily answered and that is this. Mr Terracini is here. He has been paid a preparation fee for the trial. He has no fixed engagements next week, and on one estimate the trial would conclude before his engagement before the Supreme Court. The unsatisfactory answer is that the accused has consented for him to return the brief. If she had not the trial would have started today.

18. The conduct of Mr Taleb leaves a lot to be desired. He knew on 11 October 2019 Mr Terracini had returned the brief. He did nothing about retaining new counsel. He failed to take steps to protect his client’s interests. It was not until 17 October as a result of an email that my associate sent on 16 October that Mr Taleb was spurred into action. His endeavours to find alternative counsel were tardy, including one instance where he had a colleague approach counsel rather than approach counsel directly himself.

19. One must also look at the form of the retainer that was being offered. In this day and age I have difficulty understanding how a solicitor would allow a client to enter into a fees agreement even with senior counsel which had a cancellation fee. It would appear it was done in this case.

20. I find it difficult to understand how a solicitor would allow a client to enter into a fees agreement, which means counsel can charge a fee for not appearing in this matter when he is available to appear in another matter on 4 November and to paraphrase counsel’s words he may have some matters on the books for next week. I find it difficult to understand how a solicitor would allow his client to be put in such a position.

21. The brief that was offered to alternative counsel was one where there was limited to no fees payable for preparation and there was a possibility that some accommodation costs had to be covered by counsel. Those two matters came about directly as a result of the preparation fee charged by Mr Terracini and the cancellation fee charged by him and the accused’s agreement to both of those fees.

22. The brief that was being offered was highly unlikely to be acceptable by any member of the bar.

23. As I have noted, the accused did sign the fees agreement. Contrary to Mr Terracini’s inquiries which were wrong and inaccurate the Court made arrangements for the civil circuit to be conducted in the Dean Street courthouse and therefore the trial would proceed before me in this building. The Court specifically moved the civil sittings to another courthouse to enable Mr Terracini to appear in this trial. It would appear that that effort was to no avail.

24. It does appear to me that the conduct of the accused has resulted in Mr Terracini returning the brief and that alternative counsel have not been briefed.

25. The question is should I force the trial on where she would be represented by her solicitor as a result of her actions.

26. Mr Crown in his helpful and sensible submission said that there would be no utility in the trial proceeding. He relied upon practical considerations for that submission, they being that it was a complex trial with an amount of electronic material. The Crown does not oppose the application. Part of the reasons for that is because one of the police officers who plays a significant role in the trial and is required to assist counsel will be unavailable after Thursday of this week. But it was the Crown’s intention if the trial proceeded to call the officer today and complete his evidence before Thursday.

27. It is with great reluctance that I grant the application and I vacate the trial date of 23 October 2019.

ORDERS

28. I make the following consequential orders.

29. The matter is adjourned for trial to 24 February 2020 at Albury at 10am. I have reset matters that were due to proceed on that day to ensure that this trial will proceed. The trial will proceed whether Mr Terracini is available or not.

30. I direct that any further evidence to be relied upon by the Crown be served on the legal representatives for the accused on or before 5pm 29 October 2019.

31. I direct that counsel attend a pre-trial conference pursuant to s 140 of the Criminal Procedure Act on or before 5pm 1 November 2019.

32. I direct that counsel agree upon the facts that are not in issue which can be put before the jury by way of an agreed statement pursuant to s 191 of the Evidence Act on or before 8 November 2019.

33. I direct that if not already served, s 142 notice is to be served on the legal representatives for the accused on or before 5pm 25 October 2019.

34. I direct that the s 143 response be served on the Crown on or before 5pm 28 October 2019.

35. In relation to Ms Yousif’s bail, I order that that bail continue until further order.

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Decision last updated: 01 November 2019