The NSW trial of two men accused of drug importation offences has been aborted because one of the accused's lawyers feared he could contract coronavirus.
The Supreme Court on Monday discharged the jury and ordered a retrial after overturning a decision by District Court Judge Michael King.
Michael Kahil and Tony Haddad were accused of importing a commercial quantity of a border-controlled precursor. Their trial, which began on March 9, was expected to last three weeks.
Judge King refused to abort the trial after Kahil's lawyer, a 69-year-old, said he was at risk of becoming ill.
Kahil's counsel last week applied for leave to withdraw because "he wanted to self-isolate because of his age" and was worried about "his compromised immune system".
He said he was concerned because his client - who had sought testing for COVID-19 at Bankstown Hospital but been turned away - and his instructing solicitor had both exhibited flu-like symptoms.
Judge King offered the option for Kahil to appear via audio-visual link but denied the lawyer's application. The lawyer then withdrew from the case.
"I have already told you ... I'm not going to grant your application to withdraw," Judge King said.
"You have indicated that, at best, you think that you could have been in contact with someone who has not been diagnosed with COVID-19, that perhaps you may have been in contact with it and you are concerned."
It would have left Kahil in the position of being represented by an instructing solicitor who had never appeared in a jury trial and did not appear in criminal matters.
Kahil took his application to the Court of Appeal, which ordered the trial be aborted and a new trial commenced at a later date.
Supreme Court Justice Christine Adamson, who heard the application alongside Justice Ian Harrison and Justice Richard Button, said it was unfair for the trial to continue as the defendant did not have access to proper legal representation.
"It was plain that his solicitor could not reasonably be expected to step into the shoes of his trial counsel and continue the trial," Justice Adamson said.
"Thus the withdrawal of his counsel left the applicant, through no fault of his own, without adequate representation."
Australian Associated Press
