High-profile criminal barrister Charles Waterstreet may face contempt of court charges for alleged social media posts which had the potential to prejudice the trial of his client Glen McNamara and co-accused Roger Rogerson.
On Thursday, Justice Geoffrey Bellew formally vacated the trial of Mr McNamara and Mr Rogerson for the murder of university student Jamie Gao during a botched drug deal.
The trial was scheduled to go ahead on Monday, but will not proceed until early next year.
Justice Bellew ordered the registrar of the Common Law Division of the Supreme Court to investigate Mr Waterstreet for contempt of court.
On Tuesday, as pre-trial hearings were under way, Justice Bellew was told of a post on an Instagram account in Mr Waterstreet's name, being charleswaterstreet.
The post contained a picture of Mr Waterstreet and another man and was taken in the vicinity of the Darlinghurst Supreme Court.
It had a caption, the contents of which Justice Bellew has suppressed.
Mr Waterstreet told Justice Bellew he did not post the picture and caption.
The court also heard a Twitter account in Mr Waterstreet's name at @ccwaterstreet posted a link to the Instagram post.
Justice Bellew said he had "no practical alternative" to vacate the trial despite the considerable expense to the taxpayer.
He said it was no fault of the court, the "criminal justice system", the Crown, Mr Rogerson's solicitor and barrister or Mr McNamara's solicitor and said each had worked diligently to ensure the trial proceeded efficiently.
"To say the vacation of the trial is unfortunate would be a gross understatement," he said.
But he said Mr McNamara, through no fault of his own, was suddenly left without a barrister on Wednesday morning, just days from the opening date, and to proceed would potentially rob him of a fair trial.
Former Liberal NSW Attorney-General Greg Smith, SC, appeared in court, saying Mr McNamara wanted to retain him and Mr Waterstreet's junior counsel Peter Lange. However, he would not be able to take on the case until next year.
Mr Rogerson's barrister, George Thomas, argued strongly for the trial to be put back for only two weeks, arguing a competent and experienced barrister who is available to take on the case could get across the brief in that time.
He also accused Mr McNamara of instructing Mr Waterstreet to act in a way that caused the case to go off the rails.
However, Justice Bellew dismissed any suggestion Mr McNamara was behind Mr Waterstreet's alleged actions.
He also said any barrister taking over the case would need much more than two weeks to get across the volumes of material to be tendered during the trial.
Mr Smith said he was hoping the Legal Aid Commission would approve his retainer.
Mr Thomas said that, as Mr McNamara's defence was funded by Legal Aid, he did not have the luxury of choosing his own barrister and should take whoever was available.
Both Mr Rogerson and Mr McNamara have pleaded not guilty to the murder of Mr Gao in a storage unit in Padstow last year.
Following the revelation of the social media posts, Mr Waterstreet was given time to get legal advice. He consulted noted appeal barrister Tim Game, SC.
On Wednesday, Mr Waterstreet sought the court's leave to withdraw from the case.
Mr Game, appearing for Mr Waterstreet, told the court he had advised his client to step down, although this did not constitute an admission of wrongdoing.
Crown Prosecutor Chris Maxwell, QC, and Mr Game agreed Mr Waterstreet should be referred to the registrar for investigation.
In referring Mr Waterstreet, Justice Bellew ordered the registrar to seek and adhere to the "advice of the Crown Solicitor as to whether proceedings for contempt should be taken against Mr Waterstreet".
He also ordered the registrar to inform the Attorney-General, Gabrielle Upton.
