Defence lawyer Mark Ryan made a last-minute application to adjourn his client’s sentencing, much to the presiding judge’s frustration. Photo / NZME
A judge has slammed the conduct of an experienced defence lawyer who failed to send qualified counsel in his absence to the sentencing of his client in a “high-stakes” meth dealing case that has already suffered a number of delays.
Judge Tony Greig made clear his discontent with barrister Mark Ryan during a hearing in New Plymouth District Court which ended with the judge referring his concern with the lawyer’s actions to the New Zealand Law Society.
At the centre of the case was defendant Marlon Jon Bird, of Taranaki, who on Tuesday was transported from prison custody to court for sentencing on a raft of drug-related offences, including possession of methamphetamine for supply.
But Bird’s lawyer wasn’t there despite him having the court’s consent to appear via audio-visual link (AVL) due to his involvement in a Palmerston North trial at the same time.
Instead, Ryan, from Auckland’s Vulcan Chambers, directed his junior counsel Jamie-Anne Tulloch to attend via AVL on his behalf.
She told the judge her instruction from Ryan was clear – that she was to be firm in seeking an adjournment.
Yesterday Ryan filed an application to adjourn the sentencing, despite the date being set four months ago, in order for a cultural report to be completed.
Judge Greig’s frustration with the application, and the reason for it, was apparent.
However, Tulloch said it was Bird’s wish to have the report before the court and that process was already underway with Dr Jarrod Gilbert.
She said it would explain how the 35-year-old had “found himself” involved in drug offending and that there may be sentencing errors without it.
But the judge said a “very thorough” pre-sentence report had been provided to the court and questioned what additional information a cultural report could provide.
Crown prosecutor Rebekah Hicklin agreed with Judge Greig, submitting the pre-sentence report already showed there was a connection between Bird’s background and his offending.
It included him being exposed to drug-taking from a young age and would warrant a discount to his sentence, she submitted.
Hicklin opposed the adjournment and noted her concern with the case being dragged out any further, with it already having been before the court since 2019.
When Tulloch continued to push for it to be rescheduled, she said it was a “high-stakes sentencing” involving “serious drug offending” and Bird was entitled to have his lawyer, Ryan, present.
The senior lawyer’s instructions to Tulloch were limited to seeking an adjournment, she said, before revealing the high-level sentencing was beyond her legal aid qualifications.
“I’m not appropriately qualified to appear on this sentencing and I am concerned with the prospect that Mr Bird is to be sentenced absent his counsel.”
From the dock, Bird made his own appeal for a further remand.
“I would really just like this to get adjourned so I get a fair chance,” he pleaded.
But Judge Greig said comprehensive submissions had been provided to the court and sentencing would continue as scheduled, drawing a gasp from Bird’s mother who was seated in the public gallery.
Tulloch, though, repeatedly attempted to persuade the judge otherwise, explaining she had limited knowledge of the file and did not have the benefit of the pre-sentence report or remorse letters.
“This matter is most untidy for junior counsel to appear.
“I am not in a position to properly advocate for Mr Bird. Mr Bird is entitled to proper legal representation and this is not happening in this court.”
Eventually, Judge Greig conceded he would need to put it off but was clear that the fault for the further delay was Ryan’s.
“He knew about this, he knew he was in a trial today and he has done nothing to instruct other counsel.”
Judge Greig sympathised with Tulloch and the “position she has been put in” by the senior lawyer.
In granting the adjournment, he made clear a qualified lawyer will need to be present in court at Bird’s sentencing on November 16.
Ryan did not respond to Open Justice’s request for comment on today’s hearing.
The prosecution follows two police raids at Bird’s address, one in 2019 and the other in 2021 while he was on bail for the previous offending.
Both searches turned up tens of thousands of dollars, large quantities of P and cannabis, and chemicals and equipment needed to manufacture methamphetamine.