Spare a thought for Nicholas Newton of Syd’s Bar n’ Grill.

There he is in Canberra at the Last Chance Saloon, junior to the mighty Guy Reynolds SC for the State of NSW in an appeal by a woman injured by the coppers at a protest demonstration.

Except that Reynolds was not there, being suddenly dispatched to hospital and undergoing urgent treatment.

What is the poor junior to do with their Highnesses bearing down?

Newton: May it please the court, I appear for the respondent. Unfortunately, your Honours, Mr Reynolds of senior counsel cannot appear this morning. So I am appearing on my own at the moment  (instructed by the Crown Solicitor for NSW).

Gageler CJ: Very well, do you have some application to make?

Newton: I do have an application, your Honours. I have an application for an adjournment. I do not have any evidence in support of the application, because the —

Gageler CJ: You can just state the circumstances.

Newton: Overnight, Mr Reynolds was taken ill and is in hospital this morning and having treatment and is not available to appear today.

Mr Junior said he was unable to proceed, presumably because Reynolds had the entirety of the speaking parts.

The CJ showed no mercy, inviting the respondent to make an application for costs.

The hard-pressed State of NSW was promptly ordered to stump-up the money thrown away by the adjournment.

The appellant is Laura Cullen, seriously injured by the police at an Invasion Day rally on January 26, 2017. She had a strong lineup waiting to go, led by Dominic Toomey SC, prez of the NSW Bar n Grill.

Handily, the NSW Bar has published a “compendium of suggestions by leaders for what makes a good junior”.

Essentially, the expectation of the Bar Association is that the unsilked will be “Super Juniors”. The following tips are included:

•  “You will never satisfy everyone.”

•  “Your role is to make the silk look good and to work as part of a seamless team.”

•  “Assume that you are going to be running the matter. This not only prepares you in case your leader cannot appear, but ensures that you know the material, improves your chances of getting a speaking role and shows you are committed to the case.”

•  “Communicate with your leader beforehand about whether they want you to have a speaking role.”

And in October 2022, Geoffrey Watson SC, Justin Hogan-Doran SC, and Anna Garsia ran an online CPD on the topic, “What to do when your leader does not appear“.

Cullen v State of New South Wales

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The New South Wales Court of Criminal Appeal stepped in last month to prevent Richard (Riccardo) Tripodi appearing in an appeal from a Land and Environment Court decision.

Tripodi was acting in private prosecutions arising under the Protection of the Environment Operations Act (NSW).

He had prepared written advice, which was “of some significance at the hearing” and that advice was in evidence.

Riccardo found himself called as a witness at the Parks & Gardens proceedings by one of the numerous respondents.

He gave oral evidence and, in effect, was cross-examined.

At the leave to appeal, Richard McHugh JA said he had read the transcript of Tripodi’s evidence and “putting the matter neutrally his evidence is relevant to the resolution of some of the issues proposed to be raised in the appeal, if leave is granted …”

Then the uniform conduct barristers rules loomed into view. Specifically, rule 101(e):

“A barrister must refuse to accept or retain a brief or instructions to appear before a court if: … (e) the brief is to appear on an appeal and the barrister was a witness in the case at first instance …”

Riccardo valiantly tried to explain that the rule does not apply to him, for a variety of reasons, including:

•  He gave evidence under compulsion;

•  It’s arguable that there are legal errors by the first instance judge (Nicola Pain) allowing him to be called as a witness;

•  Calling Tripodi was a strategy to defenestrate him from the appeal – which itself is an abuse of process;

•  It’s oppressive  and unjust for his client who would have to find alternate counsel, involving extra expense;

•  The bar rule was not intended to apply in this situation.

None of which washed with McHugh, Peter Garling or Natalie Adams.

Meanwhile, brother Joe (The Tripod) Tripodi, former NSW politician and Labor powerbroker, has been at the centre a string of unpleasant accusations concerning corrupt conduct and seedy behaviour.

The Tripod is due to face trial on a charge of wilful misconduct in public office – allegedly working with Eddie Obeid to influence government ministers to enter into a public-private partnership with Australian Water Holdings – the water infrastructure company with links to the Obeid family. Arthur Sinodinos was chairman of this outfit, on a fee of $200,000.

Earlier this month the jury was discharged after failing to reach a verdict  in the trial of former minister Tony Kelly, who was charged for doctoring a cabinet document to benefit Australian Water Holdings.

The Crown’s star witness “Laurie” Brown, who had been Kelly’s chief of staff, told the court “I can’t remember anything about anything”.

Obeid and The Tripod are due to have separate trials.

M & S Investments Pty Ltd v Affordable Demolitions and Excavations Pty Ltd