Thursday, March 30, 2006

The next superstar

Lady Sovereign - the up-and-coming superstar of the new millenium - http://www.ladysovereign.com/flash.php

Exchange between Gillard J and Con Heliotis, QC

see below - an explosive exchange between Gillard J and Con Heliotis, QC (the lead barrister for alleged drug lord Tony Mokbel) - copied across from The Age's website. Fascinating stuff... Barristers have strict ethical rules which are generally well-understood within the bar (although generally poorly-understood outside the bar) - unusual to see such heated (and public) disagreement between senior practitioners.



Full courtroom exchange

March 30, 2006

This is the complete courtoom exchange between Justice Bill Gillard and Tony Mokbel's lead barrister Con Heliotis, QC, that took place on March 23.

It followed the earlier announcement by Mr Helitois that he and junior counsel Nicola Gobbo intended to withdraw from the trial.

HIS HONOUR: I have given some anxious thought to the continuation of this trial and the position of counsel for the defence in relation to this trial, and I'm about to say something which I will prohibit the publication of until verdict, and I request counsel to consider closely what I'm about to say.

(The view of the law presented by Justice Gillard immediately following the above comment is yet to be released, but he stated that, while he could not demand they stay, the defence team had an over-riding duty to remain in the interests of the court, their client and the administration of justice).

HIS HONOUR: In the circumstances, I will give you, Mr Heliotis, and your junior, time to consider what I have said in the light of the clear obligations which rest upon counsel to assist the court in the doing of justice according to law and their duty to their client. In my view, the accused (Mokbel) could not be prejudiced by counsel remaining to the end and performing their retainer carefully and in his interests, and I will give you some time to consider what I have said, Mr Heliotis.

MR HELIOTIS: Might I say, Your Honour - I address you only on my behalf - I consider, with respect, the language you chose to use unnecessarily strong and almost offensive, with respect. If Your Honour thought for a moment that we have not given very careful consideration to the decision we have made, Your Honour would be wrong, and I certainly would have expected more of Your Honour. The reality is that I have tormented a lot with this since last Monday as to what should happen. It is a matter of instinct, and my instinct has always been unquestionable, how can I ... I did not go to the (Victorian Bar) Ethics Committee for permission to withdraw.

I wanted to know whether there was any way they considered I could continue. How can a person continue without instruction (s)? It is interesting that as of Monday, I think it was, Your Honour's view was the same. Your Honour's view of instinct, having read but two or three cases, was that it was probably appropriate for us to withdraw, and common sense at that stage seemed to dictate to Your Honour that's what we should to. Now it would seem that instinct, common sense and duty are on the other side of the fence. The fact is that we consulted a panel of some ten very senior members of the Ethics Committee, including the chair. Between them there were many, many years of experience, common sense, instinct as to duty, and their clear and, I understand, unanimous view was that we had no option but to withdraw. I am prepared in the circumstances, I guess for no other reason but because of the strong language you used, I'm prepared to go and reconsult with them. Unless they tell me that in the circumstances I should continue, my instinct as to my duty to the court and my duty to the client unfortunately are totally opposed to Your Honour's in this matter.

HIS HONOUR: In the end it's a matter for you Mr Heliotis. I have made quite clear what I think your obligations are and you obviously don't agree with them. If you think they are offensively stated, I disagree with that. I'm stating purely and simply what the law says. I quoted Sir Gerald Brennan and Sir Owen Dixon and in my view, I find it fanciful, you mustn't treat the court as somebody who has has never sat in a trial, Mr Heliotis. I've had a lot of experience and I know what goes on down there. I know how one should approach matters and I find it fanciful in the least for you to tell me, as you did the other day, that you needed Mr Mokbel to tell you whether you should take certain points in your (final) address. That is a matter for you, Mr Heliotis, not your client.

MR HELIOTIS: I didn't tell you that at all. What I said was my client has a right to instruct me what to do. I have the ... of ... overriding view. Of course Mr Mokbel could come to me and say, ``I don't want you to address.'' I have the overriding duty to say to him, ``I think it's in your best interests to do so, and I will do so,'' but I also have a duty to listen to whatever instruction he wants to give me. But the reality is that we don't agree with Your Honour, that Your Honour has the right to continue this trial but for a finding that Your Honour makes that he voluntarily absconded. If Your Honour finds, as I understand Your Honour will find, that it is probable he has abscond, then of course, we agree Your Honour has the power to continue with the trial. The authorities make that clear. The authorities - and we say the authorities, not common sense, Your Honour, but the authorities also make it clear that in those circumstances, counsel should not continue without instructions. We have not found one case - there are many cases where the courts have ordered the trial to continue where an accused by his conduct has indicated he proposes to waive his right to be present. We have not come across one case that suggested that counsel should remain in those circumstances. Of course what Sir Owen Dixon and other eminent jurists have said about the duties of counsel is, with respect, almost trite, Your Honour, but they are addressed in situations that have nothing to do with the present situation. If Mr Mokbel had in fact absconded, and if Mr Mokbel had intended by his conduct to try to seek a new trial, then it could seem to us that the very least that can be inferred, and must be inferred by us, is that he intended our instructions to come to an end. We say it's almost bordering on fanciful to suggest that Mr Mokbel's intentions might be by his absence to get himself a new trial, and yet should want us to continue so that we can, by our presence and behaviour, make it more difficult for him to get a new trial.

HIS HONOUR: Just a minute. You don't understand your obligations when you tell me that, Mr Heliotis. What you're saying is that if that's what he intended to do, you go along with it. I don't see that, Mr Heliotis.

MR HELIOTIS: No, I don't.

HIS HONOUR: What were you just putting to me? Would you listen? Mr Heliotis, would you listen, please? You just said something, you said it also some weeks ago, about calling the American law. I don't think you fully understand some of some of your obligation. For you to suggest that if that is the real purpose of Mr Mokbel's absence, to get himself a retrial, that you shouldn't do anything which might cut across that, you have an overriding duty to the court, and it's not a question of assisting your client to do something that is quite improper. Now, do you say that that was what you were putting to me or not?

MR HELIOTIS: Not at all.

HIS HONOUR: You tell me what you are were saying.

MR HELIOTIS: If Mr Mokbel chooses is to withdraw his instruction from me ...

HIS HONOUR: He hasn't.

MR HELIOTIS: He has.

HIS HONOUR: No, he hasn't. Has he told you?

MR HELIOTIS: Has he told me to continue?

HIS HONOUR: No, listen. You're missing the point. Has he been in touch to tell you to withdraw your instructions?

MR HELIOTIS: No, he hasn't.

HIS HONOUR: Of course, he hasn't. Well, you tell me that.

MR HELIOTIS: Your Honour thinks you're correct in this. The Court of Appeal in South Australia says it's difficult, if not impossible, to imagine a situation where a man absconds, but intends his instructions to continue. If the Court of Appeal says that, why does Your Honour find it so fanciful that I should be suggesting something different to you? The reality is he has gone. If he has gone voluntarily as Your Honour finds, then in those situations his instructions come to an end. Whether he has contact with me or my solicitor to say don't appear, his instructions come to an end. I don't understand the comment Your Honour made in relation to the American law and once again I'd ask Your Honour to explain that.

HIS HONOUR: You told me, when I got very annoyed that it was raised so late, that you took a decision not to raise it earlier, which you could have by the end of February - you obviously had some instructions to cross-examine those witnesses, and you said you might of have done something which was contrary to the interests of your client and he'd want to sue you. With respect, Mr Heliotis, that is not the way the law is run. You have an overriding duty to the court. I do suggest you go and read what Sir Gerard Brennan said.

MR HELIOTIS: If Your Honour suggests for the moment that I am obliged to the court to raise a submission of no case early that would result in the prosecution . ..

HIS HONOUR: I didn't say that. You're missing the point, Mr Heliotis. Please don't waste my time.

MR HELIOTIS: I made it clear to Your Honour that the reason I would did not make that submission, would not make that clear to the opposition (prosecution), would be that they would destroy the point.

HIS HONOUR: I hear what you say. Go on.

MR HELIOTIS: We have made our position clear. Insofar as Your Honour has made comments that would seem to indicate that we or I do not understand my duty to the court or in some way are seeking to facilitate any plan Mr Mokbel might have to get another trial, we, of course, totally reject those suggestions.

HIS HONOUR: All right. I will give you an opportunity to consider your position. I will stand down for half an hour. One other matter that does disturb me, Mr Heliotis, is a report in the Herald Sun today. It quotes you. I don't know whether you have been talking to the Herald Sun or not, but if you have, then I am very concerned about what you are seeking to do through the media conveying to this jury. I don't know whether you have been talking to the media, Mr Heliotis, but I just draw your attention to what is in there, and I will consider after this trial is over what I will do about it. Are you prepared to tell me whether you talked to the press?

MR HELIOTIS: Yes, I talked to a reporter, yes. I did tell a reporter who ask asked me what would happen today that as far as I could foresee, if nothing else occurred as to the presence of Mr Mokbel, I would probably be withdrawing from the case.

HIS HONOUR: Mr Heliotis, you know where you stand in relation to this. You have said other things other than that, and I will wait till this trial is over before I decide what I should do with that. I will stand down for half an hour. You may consider your position. I will indicate here and now that I will be telling the jury very firmly that they must not draw any adverse inference, that I have ruled that the trial will continue in the absence of the accused. I will indicate that counsel for the defence have formed the view that they do not wish to continue. I do ask you to consider your position and I will return ... Mr Heliotis. And can I just remind counsel that this idea of talking to the press as barristers is, in my view, very wrong. We are not in America and you can see what can happen. I am prohibiting the publication of anything that has happened this morning until a verdict or formal order, and I will make a formal order afterwards.

(Resuming after a short adjournment.)

MR HELIOTIS: I have consulted again with the (Ethics) committee. I still maintain that I cannot continue and I don't propose to. I will, of course, be available if Mr Mokbel were to reappear and instruct me to come back for him, I would be available. I will be available, of course, at Your Honour's discretion at the end of the trial. I do ask Your Honour to hear me in relation to the suppression order you have made this morning before you lift that suppression order.

HIS HONOUR: I will make the order now.

MR HELIOTIS: What we would ask is that the order be made until further order rather than until verdict. There are matters that if they were to change ...

HIS HONOUR: Yes, I think in fairness to you, Mr Heliotis, I will do that. I order that publication by print, radio, television, electronic, or any other means whatever, of anything which was said or done in this court between 10.30am and 11.00am. this day shall be prohibited until further orderI will hear you, Mr Heliotis, at some convenient time.

Justice Gillard soon after told the jury: Madam Forewoman and members of the jury, as you have all observed, the accused is not present in court.

His absence could be due to one of a number of reasons. They range from intentionally absenting himself to being unable to attend for some reason. I just want to underline what I am about to say. In the absence of any evidence placed before you in this court, it is not possible for you to make a finding as to the reason. It therefore follows that you cannot draw any adverse inference against the accused because he has failed to answer his bail last Monday and has continued to do so. Accordingly, I direct you as a matter of law that you must not speculate as to the reason why he is not here, nor must you draw any adverse inference against him because of his absence.

There has been much media coverage, I have little doubt you have read it. Ignore it. It is all speculation, it is not evidence before you, and I suggest you just put the whole episode to one side.

I have ruled that this trial will continue in his absence. Defence counsel have formed the view that they cannot continue without the instructions of their client and accordingly they are proposing to withdraw.

What will now occur is that (Crown prosecutor David) Mr Parsons (SC) will complete his (final) address and I will then deliver my charge, and at the end of which I will ask you to retire and consider your verdict on Monday ... as I say, the trial will proceed in the absence of the accused.

I understand that Mr Heliotis and Ms Gobbo are seeking to withdraw, is that correct?

MR HELIOTIS: Yes, it is.

HIS HONOUR: You may withdraw.

(Mr Parsons then resumed his address).

Monday, March 20, 2006

Welcome back

It's been a while...
Life has been very busy, particularly settling into a new career.

A few tidbits:

  • have recently booked a holiday for august/september - Angkor Wat and Phnom Penh in Cambodia, various islands along the east coast of Malaysia and then about 4-5 days in the Northern Territory (of Australia);
  • have been helping out my friends Ben and Michael on their "hot new startup" gnoos.com.au;
  • am currently enjoying the Commonwealth Games in my hometown of Melbourne;
  • and much much more.