R v Seller; R v McCarthy

HIS HONOUR: The trial of these matters is scheduled to commence on Monday 24 August 2015, or two full working days from today. That date has been known for a considerable time.

The proceedings were listed before me today on the application of Mr D K L Raphael of counsel for the accused Mr Seller. In essence, Mr Raphael seeks leave to withdraw from the proceedings as defence counsel for Mr Seller because Mr Seller has neither provided Mr Raphael with funds sufficient to cover his anticipated legal costs of appearing at the trial nor has he otherwise satisfied Mr Raphael that he will be able to do so.

The application is made pursuant to rule 107 of the Legal Profession Uniform Conduct (Barristers) Rules 2015. That rule is in these terms:

Rule 105(d) provides that a barrister may return a brief to appear before a court if the barrister has reasonable grounds to doubt that his fees will be paid reasonably promptly or in accordance with a costs agreement.

Mr Raphael’s application is supported by an affidavit sworn by him today. It reveals that Mr Raphael has been retained as counsel for Mr Seller since August 2014. On 3 July 2015 Mr Raphael wrote to Mr Seller in the following terms:

Annexed to that correspondence was a schedule of outstanding costs owed to Mr Raphael by Mr Seller for a variety of matters totalling $139,870. Of that sum, $62,338 would appear to be owing in respect of the present matter.

On 20 July 2015 Mr Raphael wrote to Mr Seller again, this time in the following terms:

Mr Seller replied later the same day as follows:

Mr Raphael deposed to the following matters in paragraphs 5 to 9 inclusive of his affidavit:

There was no other material relied upon in support of the present application. Significantly, there is no evidence that Mr Seller consented to Mr Raphael returning his brief. Mr Seller was present in court when the matter came before me. He gave no evidence and was not asked to do so. Mr Raphael did not suggest that his application was based upon Mr Seller’s consent to the course that is proposed.

It is important to observe that this is not an application by Mr Seller based upon Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. Mr Seller does not contend that he is without funds or assets and that, through no fault of his own, he is unable to obtain or retain suitable legal representation at his trial.

Mr Raphael has, for better or worse, quite apparently extended considerable generosity to Mr Seller with respect to payment of his outstanding fees. Mr Raphael has not however, as far as I can determine, ever indicated to Mr Seller that he proposed to return his brief if his fees were not paid or were not adequately secured. That may be a function of the friendship between the two men but it does not reduce or remove Mr Raphael’s ethical obligation to conform to the rule. Experience indicates that postponement of difficult decisions is often generated by a hope, far less an expectation, that things will work out for the best given time. Unfortunately, in the context of a looming criminal trial of a serious criminal offence, the luxury of indecision is not available.

I indicated in open court that Mr Raphael would in these circumstances have to remain in the matter as defence counsel for Mr Seller. The foregoing are my reasons for coming to that decision.

My formal order is that the application is refused.