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Robbery Retrial Ordered Over Counsel’S Withdrawal

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal yesterday ordered a retrial for a man who was convicted of robbery, after he argued the trial judge did not give him adequate time to prepare his defence after his counsel withdrew from his case.

In 2015, Kiko Hanna was accused of stealing Janeth Evans’ handbag, which contained a manicure kit, one make-up kit, a black purse and $41 cash. A jury found him guilty of robbery on March 22, 2018, and he was sentenced to five years in prison a little over three months later.

According to a judgment published on the Court of Appeal’s website, Hanna’s trial attorney asked the judge if he could withdraw from the case. At the time, he made the request in the presence of the jury. The judge granted the lawyer’s request, but told Hanna he would need to instruct new counsel or represent himself. The appellant was able to find another attorney who requested a brief adjournment to get further instructions from Hanna. However, the judge denied his request, and in the circumstances, the new attorney said he would not be able to represent Hanna. He was subsequently left to represent himself.

The appellant appealed his conviction on the grounds the judge erred by failing to discharge the jury after his trial attorney made prejudicial statements at the outset of his trial. He also argued the judge failed to give him adequate time to prepare his defence without representation.

Yesterday, Justices Sir Michael Barnett, Jon Isaacs and Milton Evans set aside Hanna’s sentence and ordered a retrial, after concluding the appellant was “deprived” of a fair hearing since he was “required to undergo his trial unrepresented”.

In his appeal, Hanna’s current counsel, Brendalee Rae, said the exchange which took place on the day the appellant’s first attorney withdrew from the case, was prejudicial to her client. She argued the judge should have declared a mistrial in light of the circumstances.

“(Mrs Rae) contended that in this conversation, the attorney for the intended appellant indicated in the full hearing of the jury that he had spoken to the intended appellant on several occasions as to how he, the attorney, felt that trial should proceed, but that the intended appellant would not take his advice, therefore he was requesting to be released as the intended appellant’s attorney,” the court documents read.

“Counsel further argued that even though the judge said that the attorney was being released at the intended appellant’s instance, it was clear that it was the attorney who’d asked to be released, specifically because, according to the trial attorney, ‘Reason being, Mr Kiko Hanna is not taking my advice.’ It was (the) counsel’s contention that as the conversation in relation to the attorney’s withdrawal took place in the presence of the jury, it cannot be ruled out that the attorney may have given the impression to the jury that he thought that the appellant was guilty.”

In his judgment, Justice Evans said he believed Hanna’s first attorney should have asked the trial judge to excuse the jury before he made his request to be released from the case.

“Although counsel did not go into great detail he did indicate that the accused was not taking his advice,” he said. “This left the jury to speculate as to the nature of that advice and the danger is that as this was at the commencement of the trial they may have assumed that the advice was that he should plead guilty.”

He also said it appeared as if the trial judge did not make any effort to persuade Hanna’s first counsel to continue to represent him, or try to find out if their differences could be resolved.

“The appellant in my view did not receive a fair trial as is guaranteed to him by the Constitution. The only proper remedy in these circumstances is for him to be given the benefit of that right and so I would order that a retrial take place.

“…Attorneys who place themselves on the record should not be permitted to withdraw as a matter of course and should only be permitted to do so for good cause. Likewise defendants ought not to be allowed at their whim to dismiss their counsel. Adhering to the practice of avoiding perfunctory handling of these applications would inevitably reduce some of the delays in the criminal justice system and assist in ensuring that defendants receive the benefit of proper representation before the court. Further, I would wish to admonish judges regarding allowing certain discussions such as occurred in this case, taking place in the presence of the jury.”

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