A Sydney drug trial has been aborted after an alleged smuggler’s elderly lawyer withdrew over fears his client could have COVID-19.

East Hills man Michael Kahil and his co-accused Tony Haddad have pleaded not guilty to a charge of conspiracy to import a commercial quantity of drug precursors into Australia from China.

Their joint Downing Centre District Court trial began in early March but had already been delayed by sick jurors when three Supreme Court of Criminal Appeal judges discharged the jury in Kahil’s trial on Monday.

It came after judge Michael King refused to vacate the trial despite an application from Kahil’s 69-year-old barrister, who also wanted to withdraw due to coronavirus concerns and was supported by the Crown.

Last Monday the defence barrister told the court he wanted to self-isolate because of his age, his compromised immune system and his recent proximity to Kahil whom he described as “fluey”, according to the CCA judgment.

“He told the court that over the preceding weekend, (Kahil) tried to get tested for the COVID-19 virus at Bankstown Hospital but had been turned away on the basis that he did not qualify for a test,” NSW Supreme Court Justice Christine Adamson said.

The Crown prosecutor backed the defence barrister’s application to abort Kahil’s trial, stating there was a potential devastating risk to the man’s health, but judge Michael King dismissed it.

“I am not prepared to stop this trial simply because of the possibility that (Kahil’s barrister) may have been exposed, or may be exposed to COVID-19 because of his presence in this courtroom,” he said.

“Like anyone else, I am concerned for members of the public and members of the profession who might be exposed to a virus which clearly can have significantly adverse effects.”

When the defence barrister withdrew anyway, Judge King questioned Kahil’s instructing solicitor – who also had flu like symptoms – about his experience “and learned that this was his first jury trial and that he did not appear in criminal matters.”

On Monday Justice Adamson ruled it was unfair for Kahil to be forced on unrepresented.

“It was plain that his solicitor could not reasonably be expected to step into the shoes of his trial counsel and continue the trial,” she said.

“Thus, the withdrawal of his counsel left the applicant, through no fault of his own, without adequate representation.”

Kahil and Haddad’s matter has been adjourned to October.

-Lucy Hughes-Jones