Top Adelaide defence lawyer calls for SA magistrate’s recusal from AN0M case after previous career as commonwealth prosecutor
A leading Adelaide barrister has urged a magistrate to disqualify himself from a high-profile AN0M case because of his past career.
Amid the chaos of one of the state’s biggest days in legal history, a top Adelaide defence lawyer pleaded with a Magistrate to disqualify himself from hearing his client’s AN0M matter due to his past career as a commonwealth prosecutor.
Inside one of three packed courtrooms – set aside for 55 alleged criminals arrested after a statewide AN0M sting – leading barrister David Edwardson KC made an application for Magistrate John Clover to recuse himself from the case of his client Michael Theoharis, 29, of Paradise – who was applying for home detention bail.
Mr Clover, Mr Edwardson argued, was “privy” to AN0M matters after holding a “senior position” during the prosecution of an alleged AN0M pioneer – whose identity is suppressed.
“Your Honour was the commonwealth DPP in a number of AN0M matters; and in those circumstances, having been the key senior prosecutor within the commonwealth, in my submission it would be inappropriate for Your Honour to deal with my matter,” Mr Edwardson said.
“It’s the peculiarity – and sensitivity – of the AN0M matter. Your Honour certainly has been privy to – and party to – a senior prosecution level in relation to AN0M matters.
“Your Honour had an active role in prosecuting (name suppressed). That immediately raises the spectre of a connection between my client and the alleged device, and that in itself would be sufficient.”
“To cause a reasonable apprehension of bias in simply a bail application?,” Mr Clover responded.
“If bail is refused, it raises the spectre of apprehended bias,” Mr Edwardson said.
“Your Honour, I can’t articulate it any clearer than I am. I simply say to Your Honour there is a unique nature about this particular device. These prosecutions are really confined to a relatively small number of people.
“We’re talking about you holding a senior position as a prosecutor, determining one way or another whether my client should or should not get bail. My client is entitled to make an application if he perceives – or I perceive – that there is a reasonable apprehension of bias in Your Honour determining or resolving that question.”
It comes after SA Police made multiple arrests in relation to the encrypted messaging app AN0M, created by the Australian Federal Police and FBI to track criminal activity early on Wednesday morning.
Twenty-eight men and women faced the Adelaide Magistrates Court on Wednesday, while a further 26 fronted court on Thursday.
From former SANFL rising stars to business owners and junior sports coaches, South Australians well-known in their communities were among dozens of alleged criminals caught up in the latest Operation Ironside bust.
On Wednesday, Mr Clover refused Mr Edwardson’s recusal application but, instead, ordered a home detention report.
Mr Theoharis, who is charged with 21 counts of drug trafficking – including large commercial drug trafficking, was remanded in custody to return to court next week. He has not entered any pleas.
