Ruling notes insufficient evidence on client’s instructions to senior counsel
The Australian High Court refused a conspirator’s sentence appeal, which asserted a miscarriage in the sentencing proceedings because of a procedural irregularity due to the conflict between senior counsel’s duty to the two men who pleaded guilty to conspiracy.
On 28 September 2022, before the Local Court of New South Wales, the appellant in Farrugia v The King [2026] HCA 28 pleaded guilty to:
Simultaneously, Mr Kanmaz pleaded guilty to:
Contrary to the submission of the Crown, represented by the federal director of public prosecutions (DPP), senior counsel asserted that the appellant’s offending’s gravity or objective seriousness exceeded Mr Kanmaz’s.
Senior counsel also argued that each offender’s offending was less serious than that alleged by the Crown.
On 8 December 2023, the appellant received a sentence of 11 years’ imprisonment with a non-parole period of seven and a half years for conspiracy. At the same time, Mr Kanmaz received a sentence of nine years’ imprisonment with a non-parole period of six and a half years.
The sentencing judge found the appellant more “deeply involved” than Mr Kanmaz in the criminal enterprise.
Before the Court of Criminal Appeal of the Supreme Court of New South Wales, the appellant applied for leave to bring a sentence appeal. He sought to quash and remit his sentence to the District Court. Alternatively, he requested a lesser sentence.
The appellant contended that he should have received separate representation and that his offending’s objective seriousness was similar to or less than Mr Kanmaz’s.
While granting the appellant leave to appeal, the Court of Criminal Appeal ultimately dismissed his sentence appeal. The appeal court found no conflict on the part of senior counsel.
Before the High Court, the appellant obtained special leave to appeal.
The NSW DPP received leave to intervene in the appeal regarding issues of principle impacting offenders’ applications for leave to file a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW).
The High Court’s majority dismissed the appeal.
First, when determining a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act, the High Court’s majority decided that there should be satisfaction of a threshold of materiality before the Court of Criminal Appeal could find a specific error or procedural irregularity vitiating a sentence.
The majority ruled that:
Second, the High Court’s majority acknowledged that the alleged procedural irregularity would have been material if the appellant could establish it. However, the majority saw:
Without direct evidence about senior counsel’s advice to the appellant or the appellant’s instructions to senior counsel, the majority held that the Court of Criminal Appeal correctly concluded that the appellant failed to prove a conflict or a real or substantial possibility of a conflict on the part of senior counsel.
Third, given its determination on the second issue, the High Court’s majority considered it unnecessary to answer whether the Court of Criminal Appeal could remit the proceedings to the District Court under s 12(2) of the Criminal Appeal Act for resentencing without finding a legal justification for a lesser sentence, upon the establishment of a material specific error in a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act.
Here are some other recent decisions by the High Court of Australia.
While the costs applicants’ delay in applying for leave to file a bill of costs in each of the appeals had been lengthy, the High Court made a 7 August 2026 decision also describing the delay in the completion of the principal arbitration as substantial.
In a proceeding brought by a former part-time then full-time employee of Woolworths Limited, a High Court justice issued a 28 July 2026 order summarily dismissing the plaintiff’s application for a constitutional or other writ as an abuse of process.
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