The Right to Competent Legal Representation Is Fundamental, Court Finds

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By Paul Gregoire and Ugur Nedim

Towards the end of December 2019, former Sydney solicitor Michael Croke found that his barrister John Korn was no longer available to attend his trial at the end of January 2020, because another of Mr Korn’s client had to be retried on sexual assault charges after a trial resulted in a hung jury.

So, Mr Croke’s solicitor Kiki Kyriacou filed a notice of motion on 21 January 2020 to have Mr Croke’s trial put off until a later date. The DPP opposed this move, on the basis that a delay would be arrangements had already been made for US inmate Owen Hanson to be flown here to appear as a key prosecution witness.

The Kings Cross-based lawyer and his co-accused, Craig Haeusler, were committed to stand trial in October 2016. However, the initial trial date had to be vacated as Hanson – who’s serving 21 years in the US for drug trafficking – wasn’t available to give evidence.

Then, in July 2019, Mr Croke applied for his new August 2019 trial date to be vacated, as Mr Korn – who had agreed to appear without being fully paid until after the trial – wouldn’t be available to provide representation in court until January 2020. This application was successful.

However, in January 2020, District Court Judge Helen Syme refused two applications by Mr Kiriacou for adjournment stating that Hanson was already in the country and Croke had a competent solicitor, being Mr Kiriacou, despite the lawyer having no experience as a jury trial advocate.

The charges

Mr Croke was facing six charges arising from his alleged part in a criminal operation, whereby he stood accused of trying to help a drug supply ring to persuade police and the NSW Supreme Court that $702,000 seized in a Sydney hotel in April 2011 was not the proceeds of crime.

The former solicitor was facing two counts of attempting to pervert the court of justice, contrary to section 319 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years’ imprisonment.

Mr Croke was further charged with three counts of publishing a statement with the intention of obtaining a financial advantage, contrary to section 192G(b) of the Crimes Act, which carries a maximum of five years prison time.

And the legal professional was also facing a single count of participating in a criminal group, contrary section 93T(1A) of the Crimes Act, which comes with a maximum penalty of 10 years behind bars.

The right to a fair trial

Mr Croke’s solicitor, Mr Kyriacou, tendered an affidavit on 29 January 2020 – the day the trial was scheduled to commence – stating that a new barrister, David Dalton SC, had been secured to act as counsel if the trial was delayed until 2 March 2020. The solicitor made clear in the affidavit that he could not run the trial himself because he was too inexperienced.

On the following day, Judge Syme refused this second adjournment application on the basis that Mr Croke himself was vastly experienced in criminal law, and his solicitor Mr Kiriacou was competent enough as a lawyer. Her Honour remarked that it was the duty of both the prosecution and the court “to ensure fairness of trial proceedings”.

Mr Croke then appealed this decision to the NSW Court of Criminal Appeal (NSWCCA) on 4 February this year.

The appeal contained seven grounds: the first two stated that the judge had made an error by not waiting for counsel, grounds three to six related to “giving undue weight” to various matters and the last was that her Honour’s reliance on the requirement of running a “fair trial” wouldn’t rule out the unfairness caused by essentially forcing the solicitor on.

The right to legal representation

NSWCCA Justices Christine Adamson, Robert Beech-Jones and Mark Ierace reasoned that it was only necessary to focus on the first two grounds, which involved Mr Croke – “through no fault of his own” – being left without proper legal representation as the trial was about to commence.

Their Honours turned to the leading authority on this issue, which is the 1992 High Court of Australia case Dietrich versus The Queen.

“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,” stated High Court Chief Justice Anthony Mason and Justice Michael McHugh.

In Dietrich, the justices further set out that an accused who may not have enough money to afford legal representation should not be forced to stand trial without any. And the NSWCCA justices found in February that this rule extends further than just financial considerations.

The appeals court set out that the trial judge had made her decision based in part on Croke’s experience as a lawyer, as if he would be playing some sort of paralegal role in advising his inexperienced solicitor, whereas the King Cross lawyer would hardly be acting in this capacity.

The trial judge also stated that it was “not a complicated trial”, however the appeals court countered that a trial that involved six weeks of proceedings, a brief of 30 volumes coming from the prosecution and a witness from the States hardly guaranteed a straightforward case.

And while their Honours maintained it was the duty of the court and the prosecution to ensure a fair trial, they outlined that this doesn’t guarantee that no disadvantages would take place when an underrepresented accused goes before the jury.

The NSWCCA panel of justices outlined that Judge Syme had neglected to apply the principle in Dietrich, and therefore, the decision to refuse the adjournment and temporary stay was “unreasonable or plainly unjust”.

Found guilty at trial

On 10 February 2020, the NSWCCA ruled that the appeal be allowed, and the trial should take place at a later time when Mr Croke’s barrister was available.

However, this further adjournment failed to save the former lawyer from prison. In July 2020, a jury found him guilty on all charges, after Hanson was again flown to Australia to testify that the money in question was the proceeds of his cocaine imports.

During the sentencing proceedings, Judge Syme made clear that Mr Croke was pivotal to the conspiracy and showed “an arrogant belief he was above the law”.

The former solicitor is now serving a sentence of 5 years and 9 months in prison, with his non-parole period expiring after 3 years and 9 months.

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