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The majority adopted a test drawn from Brawn v The King. Adapted to sentencing, the question is whether the specific error or procedural irregularity “could realistically have affected” the sentencing judge’s reasoning to the sentence imposed ([6], [35]). This does not require an appellate court to determine whether the error actually changed the outcome. The inquiry is about realistic capacity to affect the reasoning process, not a counterfactual assessment of what sentence would otherwise have been imposed ([35]).

The majority applied that approach to procedural fairness. It said that the concern is to avoid practical injustice. For sentencing, this includes providing an offender a reasonable opportunity to present the case in mitigation ([37]-[39]). Not every procedural irregularity vitiates the exercise of sentencing discretion. The irregularity has to meet the materiality threshold ([39]).

The majority then considered what would be needed to establish a conflict between counsel’s duties. A barrister’s duty under r 35 includes promoting and protecting the client’s best interests, and the associated obligation not to act in a position of conflict between duties owed to different people ([41]). Whether a conflict exists is assessed objectively, by reference to the particular facts and circumstances. The client’s interests and instructions are relevant, including when identifying the scope of the duties counsel undertook ([42], [45]).

The majority did not treat joint representation itself as conclusive proof of a conflict. It noted there was no rule prohibiting counsel from representing multiple accused. But it emphasised that a complaint about conflicting duties generally requires a close factual inquiry. Communications between counsel, the instructing solicitor and the client may be important because they can clarify both the client’s instructions and the scope of counsel’s duties ([45]).

On the facts, the majority considered the agreed facts and counsel’s conduct. It accepted that counsel could have adopted the Crown’s initial position about relative seriousness. But the agreed facts also gave a basis for the judge to find Farrugia more deeply involved, including his profit-sharing role ([51]-[52]). Counsel could reasonably have considered that acknowledging Farrugia’s relative seriousness made the submissions for reduced objective seriousness more persuasive. Counsel also pursued different mitigation routes for each offender ([52]).

The evidence about what Farrugia was told and what he instructed was absent. In the Court of Criminal Appeal, his counsel accepted that the appeal should be considered on the basis that Farrugia knew Senior Counsel would appear for both offenders and had been transparently informed about the proposed submission. The majority considered that this statement either suggested the issue had been raised with Farrugia or, if it was not a factual concession, highlighted the lack of evidence ([53]). It weakened rather than strengthened the assertion that counsel was conflicted.

The majority’s conclusion was therefore evidentiary, not a general finding that joint representation is safe whenever a client’s instructions are unknown. It held that the record did not establish a conflict or a real or substantial possibility of one. Without that foundation, the Court did not need to determine whether the alleged irregularity was material, although it said that a proved conflict would have been material here given the possible significance of relative seriousness to parity ([7], [39], [60]).

Before and after state of the law

The judgment describes the existing sentence-appeal framework as requiring demonstrated error before appellate intervention. It distinguishes a specific error from a sentence that is manifestly excessive or inadequate. In the latter situation, the appellate court’s assessment of the sentence itself may engage its sentencing function without a separate materiality inquiry. For specific errors, however, the error must vitiate or affect the sentencing discretion ([31]-[35]).

The judgment’s principal clarification is the formulation of the materiality threshold for procedural irregularities in sentencing. Drawing on Brawn, the majority states that an error must be capable realistically of affecting the sentencing judge’s reasoning. The formulation accommodates different descriptions of error, including errors of principle and procedural unfairness, without treating every defect as sufficient for appellate intervention ([35], [39]).

The decision also explains how practical injustice relates to sentencing fairness. An offender’s opportunity to present mitigation is central. The appellate inquiry is not simply whether counsel could have made another argument; counsel has a wide forensic discretion. Rather, the question is whether the offender was denied a reasonable opportunity to present the case, for example because counsel’s incompetence or competing duty prevented an available submission on an important topic ([48]-[49]).

On conflicts in joint representation, the majority confirms a fact-specific inquiry. The duties, the clients’ interests and the available evidence matter. Instructions and communications are relevant to identifying whether the asserted conflict existed and whether informed consent is said to have addressed it ([42]-[45]). The judgment does not establish a blanket prohibition on representing co-offenders together ([45]).

One issue remains expressly unresolved: whether s 12(2) authorises remittal for resentencing where a material irregularity vitiates the sentence but the appellate court has not first concluded that another sentence is warranted. The majority declined to decide it because the conflict was not proved, and observed that the question might warrant legislative consideration ([8], [62]-[64]).

Key passages with plain-English translation

At [6], the majority states that the error must “could realistically have affected” the sentencing judge’s reasoning. In plain English, the appeal does not require proof that the judge would certainly have imposed a different sentence. It does require more than a theoretical possibility: the error must have had a realistic capacity to affect the reasoning that produced the sentence.

At [37], the majority says the law’s concern is “to avoid practical injustice”. Applied to sentencing, that means attention is paid to whether the offender had a reasonable opportunity to put forward relevant mitigation. A procedural defect matters in this setting if it deprived the offender of a meaningful opportunity, not merely because a process could have been conducted differently.

At [45], the majority says conflict complaints “will almost invariably involve a consideration” of communications and instructions. The plain-English point is that the public record of a hearing may not reveal everything needed to decide whether counsel’s duties actually conflicted. The client’s instructions can be relevant to what counsel was retained to do and to the client’s interests.

At [57], the majority says it was only possible that a conflict existed, and that without evidence of advice and instructions “the analysis cannot be taken further”. That passage explains the decisive evidentiary limitation. The Court did not infer the necessary conflict from joint representation and the submission about relative seriousness alone.

At [60], the majority identifies the burden Farrugia had to meet: he needed to show practical injustice arising from an actual conflict or a real or substantial possibility of one, resulting in the effective denial of a reasonable opportunity to present mitigation. The Court held he had not discharged that burden.

What fact patterns trigger this precedent

The decision is most directly relevant to sentence appeals where an offender alleges that a specific procedural irregularity, including counsel’s conflicting duties, vitiated the sentencing exercise. The central appellate question is whether the alleged error could realistically have affected the judge’s reasoning, rather than whether a different sentence is shown to have been inevitable ([35], [39]).

Joint representation of co-offenders is a relevant context, particularly where submissions about comparative culpability or parity could benefit one offender while disadvantaging another. But the majority did not treat joint representation alone as establishing a conflict. It called for examination of the particular duties and facts, including the roles described in agreed facts, the submissions actually made, and any relevant instructions ([42]-[45], [50]-[52]).

The precedent also identifies evidence that may matter in such a claim. The Court said communications and instructions may bear on the scope of counsel’s duties and on whether there was a conflict ([45]). In this appeal, their absence meant the alleged conflict could not be established. A case with evidence showing that counsel’s conduct was constrained by a competing duty could therefore present a materially different factual question, but the judgment does not decide the outcome of such a hypothetical case.

The materiality issue is especially significant where the alleged procedural defect concerns a topic capable of influencing sentencing. The majority accepted that comparative seriousness could realistically affect reasoning on parity, while holding that the appellant had not proved the conflict said to have prevented proper representation ([39], [50]).

How later courts have treated it

The supplied judgment contains no decisions of later courts applying or interpreting Farrugia. It therefore does not provide a basis for describing subsequent treatment, whether by approval, distinction or limitation.

The judgment itself places its reasoning in relation to earlier authorities. It applies the materiality approach in Brawn to sentence appeals, explains Kentwell’s treatment of specific sentencing error, and uses Lam’s practical-injustice formulation in the sentencing context ([34]-[39]). It also considers Mills in discussing the relevance of a client’s instructions to assessing conflicting duties ([45]). Those are the authorities’ roles within Farrugia, not evidence of how later courts have treated Farrugia.

The majority also refers to Betts when discussing procedural irregularity and the unresolved remittal issue ([36]-[37], [63]-[64]). It does not decide the remittal question. Any later account of the law on that point would need to be grounded in later sources, which are not included in the supplied judgment.

Still-open questions

The most explicit open question is the scope of s 12(2) of the Criminal Appeal Act 1912 (NSW). The majority did not determine whether the Court of Criminal Appeal can remit a matter for resentencing after finding a material irregularity but without first deciding that a different sentence is warranted ([8], [64]). Its reasons note that the matter might warrant consideration by the New South Wales Parliament ([64]).

A second issue concerns the evidence needed to prove a conflict in a particular case. The majority says instructions and communications will commonly matter, but the judgment does not set out a universal evidentiary requirement or decide every circumstance in which the public record alone might establish a conflict ([45], [55]-[60]). The conclusion is tied to this record, including the missing evidence and the concessions made in the Court of Criminal Appeal.

A third issue is how far informed consent can address a conflict under the relevant professional rules. The majority discusses informed consent and observes that some conflicts may be so pronounced that counsel must cease acting irrespective of consent ([43]). It expresses doubt about whether r 119 excludes the general law of informed consent, but does not need to resolve that question to decide this appeal ([44]).

Finally, the decision does not resolve the different analyses advanced by the dissenting judges. Edelman J considered there was an actual conflict under the statutory professional obligations, while Jagot J concluded that the conflict was irreconcilable and material. Those are dissenting reasons, not the Court’s holding. The binding disposition in the supplied judgment is the majority’s dismissal of the appeal, based on the failure to establish the alleged conflict and practical injustice.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.

Crimes Act 1914 (Cth), s 16BA.

Criminal Code (Cth), ss 11.5, 302.2, 400.3, 400.4.

Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 12.

Legal Profession Uniform Law (NSW), ss 419, 423.

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 4, 7, 23, 35, 42, 119.

1. GAGELER CJ, GORDON, STEWARD, GLEESON AND BEECH-JONES JJ. Senior Counsel appeared at a sentencing hearing in the District Court of New South Wales for the appellant and one of his co-offenders, Deniz Kanmaz. Both offenders had entered a plea of guilty to the offence of conspiring to traffic a commercial quantity of a controlled drug (the "conspiracy offence").¹ Senior Counsel submitted, contrary to the submission of the Crown, represented by the Director of Public Prosecutions (Cth), that the gravity² or objective seriousness³ of the appellant's offending was greater than that of Mr Kanmaz but also contended that the offending of each offender should be characterised as less serious than that contended for by the Crown. The sentencing judge found that the appellant was more "deeply involved" than Mr Kanmaz in the criminal enterprise. The appellant received a longer custodial sentence than Mr Kanmaz.

2. The appellant applied to the Court of Criminal Appeal of the Supreme Court of New South Wales for leave to appeal against his sentence.⁴ The appellant contended that the sentencing proceedings "miscarried" because of a procedural irregularity in that Senior Counsel was placed in a position of conflict between his duty to the appellant and his duty to Mr Kanmaz. The appellant contended that he should have been separately represented and a submission made on his behalf that the objective seriousness of his offending was similar to or less than Mr Kanmaz's offending. The appellant did not adduce evidence before the Court of Criminal Appeal as to any advice he received from, or the instructions he gave to, Senior Counsel. The appellant sought an order that the sentence be quashed and remitted to the District Court and, in the alternative, that a lesser sentence be imposed.

3. The Court of Criminal Appeal granted the appellant leave to appeal but dismissed the appeal. The Court found that the evidence did not establish that Senior Counsel was so conflicted.

4. The appellant was granted special leave to appeal to this Court. The Director of Public Prosecutions (NSW) ("the NSW DPP") was granted leave to intervene on the appeal to address issues of principle affecting applications by offenders under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against sentence imposed on their conviction on indictment.⁵

5. Two issues arise for determination.

6. The first issue is whether, when determining an appeal against sentence pursuant to ss 5(1)(c) and 6(3) of the Criminal Appeal Act, there is a threshold of materiality that must be satisfied before the Court of Criminal Appeal can conclude that a specific error or procedural irregularity "vitiates"⁶ a sentence. The answer is that there is a threshold. That threshold accords with the principle stated in Brawn v The King⁷ as to when errors or irregularities in the course of a trial that are not fundamental errors amount to a miscarriage of justice within the meaning of the third limb of the "common form" criminal appeal provision.⁸ Adapted to sentencing appeals, that threshold requires that the specific error or procedural irregularity "could realistically have affected" the reasoning of the sentencing judge to the sentence that was imposed.

7. The second issue is whether the appellant established that his sentencing was affected by the alleged procedural irregularity. The answer is that the Court of Criminal Appeal was correct to conclude that, in the absence of any direct evidence as to any advice the appellant received from or the instructions he gave to Senior Counsel, the appellant did not establish that Senior Counsel had a conflict or a real or substantial possibility of a conflict. Accordingly, no issue of the materiality of the alleged procedural irregularity arose although, had the alleged irregularity been established, then it would have been material. Ultimately, it was not demonstrated that any practical injustice was occasioned to the appellant in that it was not shown that he was denied a reasonable opportunity to present his case.⁹

8. The parties and the intervenor also debated whether, upon the establishment of a material specific error in an appeal against sentence pursuant to ss 5(1)(c) and 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal can remit the proceedings to the District Court under s 12(2) of the Criminal Appeal Act for resentencing without determining whether a lesser sentence is warranted in law.¹⁰ Given the outcome of the second issue, it is not necessary to address this question.

Background

9. On 28 September 2022 the appellant pleaded guilty in the Local Court of New South Wales to a charge of conspiring to traffic a commercial quantity of controlled drugs between about 17 April 2013 and 7 October 2015, namely 20kg of MDMA and 3kg of methamphetamine.¹¹ He also pleaded guilty to a charge of dealing with proceeds of crime being money worth more than $100,000, namely $957,218, between 20 March 2014 and 7 October 2015.¹²

10. At the same time Deniz Kanmaz pleaded guilty to the same conspiracy offence¹³ save that the quantity of the controlled drugs was particularised as being 21kg of MDMA and 9.18kg of methamphetamine. He also pleaded guilty to a charge of dealing with proceeds of crime being money worth more than $1,000,000, namely $1,785,000, between 17 April 2013 and 24 April 2015.¹⁴

11. The appellant and Mr Kanmaz were committed to the District Court for sentence.¹⁵ In the District Court, the appellant and Mr Kanmaz maintained their pleas of guilty.¹⁶

12. On 8 December 2023 the appellant was sentenced for the conspiracy offence to a period of imprisonment of 11 years with a non-parole period of seven and a half years. At the same time Mr Kanmaz was sentenced for the conspiracy offence to imprisonment for nine years with a non-parole period of six and a half years. The offences of dealing with proceeds of crime were taken into account by the sentencing judge for each offender in the manner provided for by s 16BA of the Crimes Act 1914 (Cth).

The sentencing proceedings

13. After the appellant and Mr Kanmaz were committed for sentence to the District Court, the appellant, Mr Kanmaz and an agent for the Crown signed a document entitled "Agreed Facts" which was later tendered before the sentencing judge.

14. The agreed facts record that the appellant, Mr Kanmaz and the other conspirators were participants in a criminal group which organised the importation of border-controlled drugs for wholesale distribution and sale on the "domestic market". Two other conspirators were described as the "lead members of the group". The agreed facts listed individual drug and cash transactions the appellant and Mr Kanmaz engaged in. The appellant's role was described as "sourc[ing] drugs for and receiv[ing] drugs from the group" as well as supplying and receiving "large amounts of cash". Mr Kanmaz was described as having stored drugs and cash for the group and as having been "involved in preparing the drugs for sale at the request and direction of others". The agreed facts record him as having acted "in return for a wage" and not as a "stakeholder".

15. Prior to the sentencing hearing in the District Court, the Crown filed written submissions. Those submissions contended that Mr Kanmaz's conduct in committing the conspiracy offence "approach[ed] the higher end of the mid-range" of such offences whereas the appellant's conduct fell "within the mid-point of the mid-range". The conduct of each offender in committing the respective offences of dealing with proceeds of crime¹⁷ was said by the Crown to fall into the "high range" for offending of that kind, "noting the offence to be taken into account in relation to [Mr] Kanmaz is a more serious offence than" the appellant's offence of dealing with proceeds of crime.

16. The Crown submitted Mr Kanmaz should receive a more substantial penalty than the appellant having regard to: the larger quantities of trafficked drugs the subject of Mr Kanmaz's conspiracy offence; the fact that Mr Kanmaz's offence of dealing with the proceeds of crime carried a higher maximum penalty and involved a larger amount of money than the appellant's conduct the subject of the proceeds of crime offence; the greater number of drug supply and cash transactions in which Mr Kanmaz was involved; and Mr Kanmaz's "more extensive criminal record".

17. In written submissions filed in response on behalf of the appellant and Mr Kanmaz, Senior Counsel submitted that Mr Kanmaz's conspiracy offence fell "just below the midrange" and that the appellant's conspiracy offence was "at the bottom of the midrange" (ie, that the appellant's offence was more objectively serious than Mr Kanmaz's offence but their respective offences were each objectively less serious than that contended for by the Crown). Senior Counsel's submission canvassed relevant features of the appellant's and Mr Kanmaz's subjective cases but adopted different approaches in seeking leniency for each offender. The submissions sought leniency for Mr Kanmaz in the form of backdating his sentence to run at least partly concurrently with a term of imprisonment he was already serving "to incorporate a measure of totality". The submissions sought leniency for the appellant by an adjustment of his non-parole period "on the basis of [alleged non-exculpatory] duress, mental health concerns and Bugmy type principles",¹⁸ as well as on account of his limited criminal history.

18. As noted, Senior Counsel appeared for both the appellant and Mr Kanmaz at the sentencing hearing. Senior Counsel advised the court of the dispute with the Crown about the characterisation of the objective seriousness of the offending. The sentencing judge asked whether Senior Counsel agreed that "Mr Kanmaz is more culpable than" the appellant. Senior Counsel replied, "[n]o, I say the opposite". Senior Counsel then drew the sentencing judge's attention to aspects of the agreed facts that were said to support his submission. Counsel for the Crown later conceded to the court that Senior Counsel was correct in contending that the objective seriousness of the appellant's offending was worse than that of Mr Kanmaz.

19. The sentencing proceedings were adjourned. When the proceedings resumed, Senior Counsel repeated his submissions concerning the characterisation of the objective seriousness of each offender's conspiracy offence and his submission that the seriousness of Mr Kanmaz's offending was "below that" of the appellant.

20. In his reasons, the sentencing judge accepted Senior Counsel's submissions so far as they relied on Bugmy v The Queen¹⁹ considerations to diminish the appellant's moral culpability but did not accept that any "non-exculpatory duress" was established. His Honour did not make any express findings as to the objective seriousness of either the appellant's or Mr Kanmaz's offending by reference to some hypothetical range of offending. In addressing parity, his Honour found that the appellant was "more deeply involved than [Mr] Kanmaz, the latter of whom was not a profit sharer, merely being paid a wage, albeit a substantial one" whereas the appellant "was getting his share of the profits". However, his Honour also noted that "[t]heir motivations for becoming part of this drug trafficking conspiracy are also different as are their subjective features" and that "[t]hese differences have to be taken into account when the sentences I will impose are compared".

Proceedings in the Court of Criminal Appeal

21. The appellant retained different counsel in the Court of Criminal Appeal. As previously noted, the appellant did not adduce evidence before that Court of his communications with Senior Counsel or his instructing solicitor. While his application for leave to appeal was pending, the Crown advised the appellant that consideration was being given to obtaining evidence from the appellant's lawyers and inquired of the appellant whether he would waive privilege over those communications. The appellant responded that he was maintaining his claim of legal professional privilege.

22. The appellant's written submissions in the Court of Criminal Appeal conceded that it could be inferred that the appellant "was advised in advance that his criminality or culpability would be pitched at a certain level, above that of Mr Kanmaz, and that the [appellant] acquiesced in that" submission. However, the appellant contended that any such advice, if given, was contrary to the appellant's best interests, and that any "acquiescence" to the submission made by Senior Counsel was "no answer to the complaint".

23. During oral argument in the Court of Criminal Appeal, counsel for the appellant accepted that the Court was obliged to determine the appeal on the "basis" that the appellant "knew that [Senior Counsel] was appearing for both offenders and that [the appellant] was informed transparently in advance ... about the submission that would be put and about continuing to act for [both the appellant and Mr Kanmaz] and that [the appellant] was informed about those issues" although counsel added that "[t]hese are not concessions as a matter of fact" (emphasis added).

The Court of Criminal Appeal's reasons

24. Hamill J, with whom Campbell J agreed, identified the issue for determination on the appeal as being whether the sentencing proceedings amounted to a "miscarriage of justice". Hamill J noted that "[t]wo intrinsically connected anterior questions" to resolving that issue were whether the appellant should have had separate representation and whether Senior Counsel who appeared before the sentencing judge had a "conflict of interest" (ie, conflicting duties). His Honour concluded that, as there was no evidence of the instructions given by the appellant to Senior Counsel or any advice he may have received, the evidence did not support such a conclusion. Price A-JA also agreed with Hamill J, adding that in a case such as the present the "concern of [the] Court is to avoid practical injustice" and that no such practical injustice had been established because the appellant "ha[d] not demonstrated that there [was] a significant possibility senior counsel's joint representation adversely affected the sentence imposed upon him".

25. So far as remitting the sentencing of the appellant if error had been demonstrated was concerned, Hamill J was "prepared to proceed" on the basis that a remittal may be appropriate in a rare case where a "defect or irregularity in the sentencing hearing is such that the applicant was denied procedural fairness and/or, in effect, endured a sentencing hearing which was so flawed as to amount to no hearing at all". However, it was not necessary for his Honour to address resentencing or remittal as no "miscarriage of justice" was established.

The appeal to this Court

26. In this Court the appellant submitted that, as the relative objective seriousness of the appellant's and Mr Kanmaz's offending was a live issue in the sentencing proceedings, Senior Counsel was placed in a position of conflict between the duty owed to the appellant and the equivalent duty that was owed to Mr Kanmaz. It was submitted that this conflict arose when Senior Counsel appeared on both co-offenders' behalf at the sentencing hearing (or perhaps when Senior Counsel settled and filed written submissions prior to the sentencing hearing). The appellant contended that the effect of the conflict was to occasion a "practical injustice" through a loss to the appellant of an "opportunity to advance his case",²⁰ being either the failure of Senior Counsel to embrace the Crown's initial assessment of the relative seriousness of the offending or the inability of Senior Counsel to form a judgment on that topic free of any competing duty owed to Mr Kanmaz. This irregularity was said to be material to the exercise of the sentencing discretion in that it "could realistically" have affected the "outcome"²¹ of the exercise of the sentencing discretion.

27. The Crown embraced the Court of Criminal Appeal's reasoning and submitted that there was an absence of evidence to establish any conflict between duty and duty, as well as an absence of evidence as to whether the appellant gave "fully informed consent" to any such conflict.²² Otherwise, the Crown contended that if there was such a breach, it was not demonstrated how the breach could realistically have affected the exercise of the sentencing discretion, and hence any such breach was immaterial.

28. The NSW DPP relevantly contended that a separate threshold of materiality is inapposite in sentencing appeals because the Court of Criminal Appeal's power under s 6(3) of the Criminal Appeal Act to quash a sentence and proceed to resentence is conditioned on the Court relevantly forming an opinion, in the exercise of its independent discretion,²³ that a less severe sentence is warranted.

"Material" errors and the exercise of the sentencing discretion

29. It is necessary to first describe the statutory framework in which the appellant's complaint about the sentencing proceedings falls to be determined.

30. The appellant's application to the Court of Criminal Appeal for leave to appeal his sentence was governed by s 6(3) of the Criminal Appeal Act. That provision requires the Court of Criminal Appeal, "if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal".

31. Leaving aside any question of remitting sentencing proceedings to the District Court, the function the Court of Criminal Appeal must perform under s 6(3) involves three steps. The first step reflects the settled position that the Court's authority to intervene is dependent upon the demonstration of error.²⁴ The second step is that, upon such error being demonstrated, the Court must undertake its own independent exercise of the sentencing discretion²⁵ and in doing so form a conclusion as to whether a lesser, the same, or a greater sentence is warranted in law.²⁶ The third step involves the Court either substituting a different sentence or dismissing the appeal.²⁷

32. So far as the first step and materiality is concerned, in Kentwell v The Queen a majority of this Court referred to and approved the distinction between a "specific error" of the kind described in House v The King²⁸ and a conclusion of manifest excess (or manifest inadequacy in the case of a Crown appeal).²⁹ Where a court concludes that, even though no specific error is disclosed by the reasons of the sentencing judge, the sentence imposed is manifestly excessive no separate question of materiality need be addressed. The task of the court in those circumstances will be to determine in the exercise of its own discretion what sentence should be imposed and then to impose it.³⁰

33. With specific errors, the NSW DPP contended that, in endorsing the judgment of Spigelman CJ in Baxter v The Queen,³¹ the plurality in Kentwell rejected any materiality threshold for a specific error to engage the obligation of the Court of Criminal Appeal to re-exercise the sentencing discretion.

34. This submission misconstrues Baxter and Kentwell. In Baxter, Spigelman CJ relevantly agreed with Kirby J,³² who accepted that an error had to be "material"³³ but did not accept that, for an error to be material, an offender had to establish that the sentence was manifestly excessive. Instead Kirby J concluded that a material error arises where an error "may ... have infected the reasoning of the sentencing judge".³⁴ In the case of specific errors of the kind described in House v The King, in Kentwell the plurality confirmed that it is only errors that "vitiate"³⁵ or "affect"³⁶ the exercise of the sentencing discretion that enliven the court's power to intervene on appeal. Their Honours instanced an example of a legal error that of itself did not "affect" the exercise of the sentencing judge's discretion, and which did not engage any obligation on the court to re-exercise the sentencing discretion.³⁷ Thus Kentwell contemplates a distinction between material and non-material (specific) errors.

35. As to what constitutes a material error, the plurality in Kentwell referenced the description of the specific errors in House v The King³⁸ in stating that when a sentencing judge "acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome".³⁹ Identifying whether an error is material by asking, for example, whether the error "guided or affected" the reasons (without inquiring into whether the error influenced the outcome of the proceeding) accords with Brawn. Brawn held that an error or irregularity that is not "fundamental" to a trial⁴⁰ constitutes a miscarriage of justice for the purposes of the third limb of the common form criminal appeal provision if the error or irregularity "could realistically have affected the reasoning of the jury to a verdict of guilty".⁴¹ Adapted to a sentencing appeal, the question is whether the specific error or procedural irregularity could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed. Similar to the conclusion in Kentwell that the court does not assess whether and to what degree a specific error influenced the outcome of the sentencing process,⁴² the approach in Brawn "does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty".⁴³

36. However, manifest excess and the specific errors described in House v The King do not exhaust the types of errors which engage the Court of Criminal Appeal's obligation to undertake its own independent exercise of the sentencing discretion. In Betts v The Queen, this Court noted decisions of the Court of Criminal Appeal to the effect that error may be revealed by new or fresh evidence.⁴⁴ It is not necessary to address those grounds for intervention on a sentence appeal other than to note that the question of materiality of the equivalent grounds for conviction appeals was specifically not addressed in Brawn.⁴⁵

37. Of present relevance is that in Betts this Court noted that a sentencing hearing may have been "tainted by procedural irregularity".⁴⁶ The most obvious form of such a procedural irregularity is a denial of procedural fairness. There are numerous examples of the Court of Criminal Appeal intervening on sentencing appeals where such a denial has been established.⁴⁷ Those decisions bear out the observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that "[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice".⁴⁸ In Lam no such injustice was shown in that the visa holder in that case "lost no opportunity to advance his case".⁴⁹ In the context of a sentencing hearing, where serious interests of the offender are at stake, the concern to avoid practical injustice is reflected in an offender being afforded a reasonable opportunity to present their case in mitigation.

38. Sometimes a material denial of procedural fairness or some other procedural irregularity in sentencing proceedings has been described by the Court of Criminal Appeal,⁵⁰ and by this Court,⁵¹ as a "miscarriage of justice" even though that phrase has no statutory foundation in relation to sentencing appeals. The better description is that the exercise of the sentencing discretion has been vitiated.

39. Similar to what was recognised in Kentwell,⁵² not all procedural irregularities are such as to warrant the Court of Criminal Appeal undertaking an independent exercise of the sentencing discretion to determine whether a more or less severe sentence is warranted. Adapting and adopting the approach stated in Brawn to specific errors and procedural irregularities harmonises the various formulations of a materiality threshold.⁵³ In this case, if the appellant had demonstrated the procedural irregularity alleged (ie, a conflict or a real or substantial possibility of a conflict) then it would have been concluded that the exercise of the sentencing discretion was vitiated. Given the sentencing judge's reasoning and the potential significance of the relative objective seriousness of participants in a criminal enterprise when addressing parity in the sentencing exercise,⁵⁴ such an irregularity could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed.

Conflicting duties in criminal proceedings

40. Sentencing proceedings following a trial or a plea of guilty are part of the process of a criminal trial and, as such, are accusatorial and adversarial.⁵⁵ Counsel appearing for a defendant at a criminal trial or hearing, including sentencing proceedings, is vested with control over and responsibility for the manner in which the proceedings are conducted on behalf of the defendant.⁵⁶ In so acting, counsel exercises a wide discretion in deciding what issues to contest, which witnesses to call, what evidence to lead or to seek to have excluded and what lines of argument to pursue.⁵⁷

41. By accepting instructions to act on behalf of a defendant in proceedings which clearly have the capacity to affect their interests in a legal or practical sense, counsel assumes or is taken to assume a duty to act in their client's interests when exercising the authority vested in them to conduct those proceedings.⁵⁸ This duty of loyalty is sufficiently described by r 35 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)⁵⁹ ("the Conduct Rules") as requiring the barrister to "promote and protect fearlessly and by all proper and lawful means the client's best interests to the best of the barrister's skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person" (emphasis added). As contemplated by the concluding clause of this rule ("without regard ..."), this duty has a (fiduciary) proscriptive component, namely an obligation not to be in a position of conflict either between the barrister's own interests and the duty owed to their client or between the duty owed to their client and a duty owed to another person (including another client) ("the proscriptive obligation").⁶⁰

42. The proscriptive obligation is breached where a barrister acts or continues to act, without informed consent, in circumstances where there is a "conflict or a real or substantial possibility of a conflict".⁶¹ The question of whether there is such a conflict is assessed objectively by reference to the facts and circumstances of the particular case.⁶² Consistent with r 35, determination of whether a conflict arises requires consideration of the client's "interests". The instructions provided by the client will at least bear upon an assessment of the client's "interests".

43. In some circumstances, the informed consent of the client to a conflict between a barrister's duty and interest, or between multiple duties owed by the barrister, may negate what would otherwise be a breach of the proscriptive obligation.⁶³ What constitutes informed consent is a question of fact that must be assessed in all the circumstances of the particular case.⁶⁴ Informed consent has been described as extending to disclosure of all "material circumstances"⁶⁵ including of knowledge that there is or may be a conflict and any limitation that the competing duty imposes on the performance of the barrister's duty to the client.⁶⁶ However, there are some conflicts that are so pronounced that counsel must cease to act irrespective of whether the client's consent has been obtained.⁶⁷ In such cases, the proper discharge of one duty necessitates a breach of another.⁶⁸ An example of such a pronounced conflict is demonstrated by the facts of R v Tay,⁶⁹ where a solicitor acted for two clients at a sentencing hearing in circumstances where each client disputed the alleged facts concerning their own and each other's involvement in the relevant importation and supply of heroin.⁷⁰

44. The appellant sought to rely on r 119 of the Conduct Rules, which provides that "[a] barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief" for all, or one or more, of the clients depending on the circumstances. The appellant contended that this rule made no allowance or exception for any informed consent to the conflict that the client may have given and thus excluded any contention that informed consent negated a breach of the proscriptive obligation. Given that the Conduct Rules do not purport to exclude the "general law",⁷¹ it is doubtful whether the rule has that effect.⁷² In any event, the appellant overstates the scope of the rule, which simply obliges the barrister to make a bona fide judgment as to whether there is a real possibility of conflict by reference to the interests of each client. As indicated,⁷³ ultimately whether there is such a conflict involves an objective inquiry.

45. Although concerns have been raised about the practice of counsel appearing for multiple accused,⁷⁴ there is no rule prohibiting that practice.⁷⁵ Instead, it follows from the above that the resolution of complaints about counsel being subject to conflicting duties requires a close factual inquiry that will almost invariably involve a consideration of counsel's communications with their instructing solicitor and the client, including any instructions provided by the client. Such communications and instructions may bear upon a determination of the scope of the duty owed by counsel,⁷⁶ although that scope may be sufficiently apparent from the barrister assuming the conduct of particular proceedings in court. Of more relevance is that those communications and dealings will almost invariably bear upon an assessment of whether there is a conflict. Thus in Mills v The Queen Lord Steyn observed that counsel engaged on behalf of more than one defendant must consider whether there is a conflict of interest between the defendants by reference to "the prosecution case and the instructions he receives from the defendants".⁷⁷ Further, communications between lawyers and a client will also be relevant to an assessment of whether a breach of the proscriptive obligation has been negated by any "informed consent" given by the client.

Conflicting duties and criminal appeals

46. In determining an appeal or an application for leave to appeal against a conviction, the Court of Criminal Appeal will often have occasion to consider the conduct of counsel who conducted the trial on the convicted person's behalf. The proscriptive obligation is but one of many standards that are applicable to counsel and solicitors conducting criminal proceedings on behalf of an accused. They are also expected to act skilfully and with competence and diligence.⁷⁸ Sometimes it is contended that counsel failed to comply with both.⁷⁹

47. Where an appellant's complaint is that the conduct of their counsel at a criminal trial that yielded a conviction may have fallen below an acceptable standard of competency, the ultimate question for the Court of Criminal Appeal is whether what did or did not occur at the trial reveals a miscarriage of justice within the meaning of the third limb of s 6(1) of the Criminal Appeal Act. In such cases, the question of whether counsel departed from the applicable standard is addressed as an aspect of the inquiry into whether a miscarriage of justice was occasioned.⁸⁰ Whether there was such a departure is determined by an objective assessment of counsel's conduct that generally avoids considering counsel's subjective views for why they took the course they did in the trial.⁸¹ Further, counsel's conduct is generally assessed by reference to the objective features of the trial,⁸² although it can be material to know that counsel took a certain course upon instructions⁸³ or that certain materials were available to counsel to deploy. This approach reconciles the adversarial nature of the criminal justice system and the authority and function of counsel on the one hand with the concern to ensure fair trials as reflected in s 6(1) of the Criminal Appeal Act on the other.⁸⁴

48. As with conviction appeals, the Court of Criminal Appeal is sometimes required to address whether the conduct of counsel in sentencing proceedings which fell below an acceptable standard of competency caused the exercise of the sentencing discretion to be vitiated. One such example is where counsel unjustifiably failed to adduce available evidence of the offender's deprived background.⁸⁵ In addressing such complaints, the Court of Criminal Appeal has adopted the same approach to addressing whether counsel was incompetent as that described above in relation to conviction appeals.⁸⁶ As some of those decisions recognise, the error or irregularity warranting a court's intervention is that the conduct or failings of counsel occasioned either a denial of procedural fairness or some other procedural irregularity akin to a denial of procedural fairness.⁸⁷ As noted, the concern of the law in such cases is to avoid practical injustice. If, by reason of the incompetence of their counsel, an offender has been denied a reasonable opportunity to put their case in mitigation, then depending on the circumstances a practical injustice may have resulted. This concern to avoid practical injustice is also applicable to a complaint that counsel appearing at the sentencing proceedings was subject to conflicting duties. The appellant pitched his complaint in those terms.

49. Accordingly, the ultimate question in such a case is whether the offender has established, based on all the circumstances of the case, including the duties owed by counsel and the extent, if any, of their departure from those duties, that the offender was denied a reasonable opportunity to put their case in mitigation. Where an offender was represented by counsel at a sentencing hearing and their counsel decided on rational grounds, and free of any competing duty to another client, not to make an available submission, the offender will not have been denied a reasonable opportunity to put their case.⁸⁸ However, an offender whose counsel, for example through incompetence or a concern not to jeopardise the interests of another client, failed to make such an available submission or adduce relevant evidence on a topic of importance may, depending on the circumstances, not have had that opportunity.

No procedural irregularity demonstrated

50. In sentencing both the appellant and Mr Kanmaz, the sentencing judge was obliged to address parity by comparing the co-offenders' conduct and antecedents so as to avoid an unjustified disparity in the punishment each was to be afforded.⁸⁹ In addressing parity his Honour was required to consider matters such as the co-offenders' ascending levels of participation in the criminal enterprise, any differences in the applicable maximum sentences for their offences and their personal circumstances.⁹⁰

51. The proceedings in the Court of Criminal Appeal, and in this Court, were conducted on the basis that Senior Counsel had no role in the preparation of the agreed facts but instead was briefed on the basis that the contents of the agreed facts were not to be disputed. While it may have been open to Senior Counsel to adopt the Crown's initial submission on the relative seriousness of the appellant's and Mr Kanmaz's offending, the contents of the agreed facts concerning the appellant's and Mr Kanmaz's role in the criminal enterprise and the reward they each derived from that enterprise made it far more likely that the sentencing judge would not accept the Crown's initial submission that Mr Kanmaz's offending was worse than the appellant's offending, but would instead draw the opposite conclusion.

52. As noted, Senior Counsel's concession to the sentencing judge that the appellant's offending was more serious than Mr Kanmaz's offending was accompanied by a submission that the objective seriousness of each of their offending was less than that contended for by the Crown. Senior Counsel did not submit that, overall, the appellant should receive a longer sentence than Mr Kanmaz by reason of parity considerations or any other matter. Given that it was more likely that the sentencing judge would conclude that the agreed facts revealed the appellant's offending to be more serious than Mr Kanmaz's offending, Senior Counsel could reasonably have concluded that his submission concerning the objective seriousness of each of their offending was more likely to be persuasive if it were accompanied by an appropriate concession as to the relative seriousness of that offending. Otherwise, Senior Counsel pursued different and appropriate routes in seeking to mitigate each of the offenders' sentences.⁹¹

53. Further, the effect of the concession made by the appellant's counsel in the Court of Criminal Appeal was that the appellant was aware that a submission would be made at his sentencing hearing pitching the objective seriousness of his offending as greater than that of Mr Kanmaz and that he gave instructions to that effect. The statement by the appellant's counsel to the Court of Criminal Appeal that the Court should decide the application for leave to appeal on the "basis" that the appellant was informed "transparently" about the submission that would be made and that Senior Counsel would continue to act for Mr Kanmaz only invites further inquiry. If that statement was not intended to be treated as a concession of fact then its status is unclear. If the statement was a concession of fact then it suggests that the potential to make different submissions and seek different representation was raised with the appellant. Either way the statement only highlights the paucity of the evidence adduced by the appellant and weakens the contention that Senior Counsel was placed in a position of conflict.

54. The appellant contended that the conflict between Senior Counsel's duty to the appellant and his duty to Mr Kanmaz was overt or obvious. The appellant submitted that an obvious conflict was conclusively demonstrated by the objective record of the sentencing proceedings, specifically Senior Counsel's appearance for both parties when the issue of the relative objective seriousness of the appellant's and Mr Kanmaz's offending was a live one. Accordingly, it was contended that the terms of any advice given to, and instructions given by, the appellant are irrelevant and that Senior Counsel's conflict could not have been absolved by the appellant giving "fully informed consent" to any conflict.

55. These contentions should not be accepted. The contents of the agreed facts, the course of the sentencing hearing, and the concessions made in the Court of Criminal Appeal do not reveal that at any stage during the sentencing proceedings Senior Counsel was placed in a position of conflict that was overt or obvious, much less so stark or obvious as to render the advice given to and instructions received from the appellant irrelevant. As the passage from Mills cited above confirms,⁹² those instructions were capable of bearing upon whether there was a conflict and not just whether the appellant provided informed consent. Why should the views of the client be ignored in determining where that client's interests lay?

56. For example, it may have been the case that Senior Counsel advised the appellant that he should be represented separately because another counsel might adopt the Crown's initial submission, but the appellant nonetheless instructed Senior Counsel that he would not under any circumstances countenance a submission being made on his behalf that might lead to a longer sentence for Mr Kanmaz than himself. The appellant may have had his own reasons for taking that course. While it can be accepted that the appellant had an "interest" in securing as short a custodial sentence as he could,⁹³ that is not the same as having an "interest" in securing a lesser sentence than Mr Kanmaz.

57. In the end result the most that can be said is that it is possible that there was a conflict but without evidence of what advice and instructions were given and received the analysis cannot be taken further.

58. The appellant sought to draw on an alleged analogy with cases dealing with incompetence of counsel in appeals against convictions to support his contention that his complaint should only be judged by reference to the objective record of the sentencing proceedings, and without regard to what communications could have transpired between him and Senior Counsel. However, as discussed, those authorities accept that knowledge of the client's instructions can be of significance in determining whether counsel's conduct resulted in an unfair trial.⁹⁴ Moreover, Mills confirms that where the standard said to be contravened by counsel is the obligation to avoid conflicting duties, that will almost invariably necessitate the court being apprised of the client's instructions, whether by direct evidence or by inference from what transpired in the earlier proceedings (as occurred in Mills).⁹⁵ Nothing in the above analysis involves ascertaining Senior Counsel's subjective reasons for why he acted in the way he did, as opposed to identifying the objective circumstances that Senior Counsel confronted including his instructions.

59. The appellant also contended that, were an inquiry to extend beyond the objective record of the sentencing proceedings, this would undermine the privilege that attached to his communications with Senior Counsel (and his solicitor). However, this overlooks the fact that the persuasive and evidentiary burden of demonstrating specific error was his.⁹⁶ In any event, in the Court of Criminal Appeal there was no relevant privilege to undermine. As has been explained, contrary to the appellant's submissions the communications between the appellant, Senior Counsel and the instructing solicitor were relevant to an assessment of his claim that Senior Counsel was in a position of conflict. Given that, the appellant's conduct in seeking to maintain a claim of privilege over communications that bore upon the matters the subject of his application for leave to appeal was necessarily inconsistent with the assertions made in his notice of appeal and submissions contending that Senior Counsel was in a position of conflict.⁹⁷ Further, the concessions made on behalf of the appellant to the Court of Criminal Appeal concerning the effect of advice given by Senior Counsel and the appellant's instructions most likely effected a waiver over the contents of the communications referable to that advice and those instructions.⁹⁸

60. Ultimately, to demonstrate the error or procedural irregularity for which he contended, the appellant had to show he suffered a practical injustice in that, by reason of an actual conflict or a real or substantial possibility of such a conflict on the part of Senior Counsel, he was effectively denied a reasonable opportunity to put his case in mitigation. A conclusion to this effect could not be reached in this case without evidence of the advice given to the appellant and the instructions received from him. The concessions that were made in the Court of Criminal Appeal weakened the suggestion of a real or substantial possibility of conflict. The evidence was otherwise silent as to the balance of what transpired between the appellant, Senior Counsel and the instructing solicitor. While the Crown did not press the appellant on his assertion of privilege in the Court of Criminal Appeal, it was, as noted, the appellant who bore the burden of demonstrating error.⁹⁹ He did not discharge that burden.

61. It follows that the appellant's appeal must be dismissed.

Power to remit for resentencing?

62. Section 12(2) of the Criminal Appeal Act provides that the "Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made".

63. The context and origin of this provision was explained in Betts.¹⁰⁰ The Court noted the decision of the Court of Criminal Appeal in O'Neil-Shaw v The Queen,¹⁰¹ where, following a finding that the exercise of the sentencing discretion at first instance was affected by a denial of procedural fairness,¹⁰² the Court of Criminal Appeal concluded that it was not in a position to sentence the appellant but instead quashed the sentence and remitted the matter for "retrial" pursuant to s 12(2).¹⁰³ In Betts this Court accepted the utility of that course but did not decide whether it was available under the Criminal Appeal Act. The Court observed that "[i]t might be a matter for consideration by the legislature".¹⁰⁴ Many jurisdictions have legislated to make that power of remittal available to an appellate court in circumstances where a sentence is quashed.¹⁰⁵ To date New South Wales has not.

64. As was the case in Betts, the question of whether the remittal power conferred by s 12(2) is available to be invoked (along with a power to quash the sentence at first instance) in circumstances where the Court concludes that a material procedural irregularity vitiates the sentence imposed at first instance, but has not concluded that a lesser sentence is warranted, is not a question that requires resolution in this case. We reiterate that this is a matter that might warrant the consideration of the New South Wales Parliament.

Conclusion

65. The appeal should be dismissed.

EDELMAN J.

Introduction: apparent conflict, potential conflict, and actual conflict

66. Can counsel represent two offenders in sentencing where it is open to argue that either offender should receive a more substantial penalty than the other? That is the simple question on this appeal. The simple answer is "no".

67. Mr Farrugia and Mr Kanmaz were represented by the same Senior Counsel at a sentencing hearing. Both had pleaded guilty to a charge of conspiring to traffic a commercial quantity of controlled drugs.¹⁰⁶ Both had also pleaded guilty to a charge of dealing with proceeds of crime: Mr Farrugia to an offence for proceeds valued at $100,000 or more and Mr Kanmaz to a more serious offence for proceeds valued at $1,000,000 or more.¹⁰⁷

68. The written submissions of the Crown for the sentencing hearing made plain the apparent conflict of duty that existed for Senior Counsel representing both offenders. The written submissions of the Crown asserted that Mr Kanmaz "should receive a more substantial penalty" than Mr Farrugia. That submission was reasonably open. As the Crown noted: Mr Kanmaz had a more extensive criminal record; Mr Kanmaz had pleaded guilty to offences concerning more drug transactions and more proceeds of crime transactions; and Mr Kanmaz's offences involved larger quantities of drugs and substantially greater proceeds of crime. Further, Mr Kanmaz had provided much of the intellectual capital for the drug enterprise. He had set up and maintained the front company and business which concealed the drug enterprise.

69. These matters, together with Mr Farrugia's contrasting circumstances, which included his reliance upon submissions of non-exculpatory duress (that he had committed the offences under threat of violence), mental health concerns, and a disadvantaged upbringing, meant that it was reasonably and fairly open to Senior Counsel for Mr Farrugia to accept the Crown submission that Mr Kanmaz should receive a more substantial penalty. If the sentencing judge had accepted that submission, Mr Farrugia might have received a lower penalty than he would otherwise have received. But that submission would not have assisted, and might have been to the detriment of, Mr Kanmaz.

70. Senior Counsel representing both Mr Farrugia and Mr Kanmaz disputed the Crown submission, arguing that his other client, Mr Farrugia, was more culpable (a submission with the inevitable consequence in this case that Mr Farrugia should receive greater punishment than Mr Kanmaz). The Crown changed position and agreed. After initial doubts about the correct position, the sentencing judge in the District Court of New South Wales (Acting Judge Berman SC) also agreed. The sentencing judge took into account the proceeds of crime offences when sentencing for the conspiracy offences¹⁰⁸ and sentenced Mr Farrugia to 11 years' imprisonment with a non-parole period of seven years and six months. Mr Kanmaz was sentenced to a lesser term of nine years' imprisonment with a non-parole period of six years and six months. Mr Farrugia was aggrieved by his sentence. He appealed to the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal (Hamill J; Price A-JA and Campbell J agreeing) unanimously dismissed his appeal.

71. From the perspective of a reasonable observer without knowledge of all the information confidential to Mr Farrugia, Senior Counsel representing Mr Farrugia and Mr Kanmaz was in a position of apparent conflict of duty. But an apparent conflict is not a potential or actual conflict: "[a]pparent conflicts of [duty] (strictly so-called) are no more conflicts of [duty] than counterfeit money is money".¹⁰⁹ The question in this appeal is whether that apparent conflict solidified (at the time Senior Counsel was instructed) into a potential conflict or (at the time that submissions of the Crown were filed) into an actual conflict. A majority of this Court concludes that no potential or actual conflict has been proved without sufficient evidence of the instructions given by Mr Farrugia to Senior Counsel. With respect, I disagree.

72. In the absence of evidence of Senior Counsel's instructions, it is not possible to know the content of any assumed obligations that Senior Counsel had to avoid potential and actual conflicts of duties. But the obligations to avoid potential and actual conflicts are not merely assumed duties based on instructions. Those obligations are also imposed by the law, relevantly for counsel under the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW). Those imposed obligations required Senior Counsel to use the best of his skill and diligence to promote and protect the best interests of both Mr Farrugia and Mr Kanmaz, not merely what either of those clients perceived to be their best interests and not necessarily always based upon what those clients had instructed Senior Counsel.

73. When faced with a choice about how to respond to submissions concerning which client should receive a more substantial penalty, Senior Counsel was in a position of actual conflict of the duties imposed upon him. The submissions made by Senior Counsel could realistically have affected the reasoning process of the sentencing judge. The exercise of the sentencing discretion was vitiated. The appeal should be allowed.

The agreed facts and Crown position in written sentencing submissions

74. Neither Mr Farrugia nor Mr Kanmaz was alleged to be a "lead member[]" of the criminal group that had organised the trafficking operation to which Mr Farrugia's and Mr Kanmaz's offending related. The agreed facts and common ground included the following with respect to Mr Farrugia and Mr Kanmaz.

Mr Farrugia

Mr Farrugia had a limited criminal history with no prior convictions for drug offences. Mr Farrugia obtained drugs for, and received drugs from, the criminal group. He was involved in six drug transactions over an 11-month period in respect of 20.0 kg of MDMA and 3.0 kg of methamphetamine. Mr Farrugia also supplied and received large amounts of cash. He dealt with proceeds of crime of $957,217, including by way of deposits into his bank account, in six transactions over a ten-month period.

Mr Kanmaz

Mr Kanmaz had a criminal history including imprisonment for the offences of possessing an unauthorised pistol and knowingly dealing with proceeds of crime. Mr Kanmaz stored drugs and cash for the criminal group at his home or at premises in Kings Park, New South Wales, for which he received a wage rather than a share of the profit. Mr Kanmaz also performed stocktakes and audits, and prepared and delivered drugs and cash, as well as making drugs and cash available to other members of the criminal group on instruction. Mr Kanmaz also set up a company of which he was the sole director and shareholder, Overstock Solutions Pty Ltd ("Overstock"), for the sole purpose of storing and distributing drugs and proceeds of crime for the criminal group. Overstock was the lessee of the premises in Kings Park, and Mr Kanmaz signed the lease for that premises as guarantor. Overstock had a website, corporate branded uniforms, email accounts, an Australian Business Number, bank accounts, back to base alarm monitoring, invoice books, and invoices with false customer and work details. Mr Kanmaz was involved in seven drug transactions over an eight-month period in respect of 21.0 kg of MDMA and 9.18 kg of methamphetamine. Mr Kanmaz dealt with proceeds of crime of approximately $1,785,000 in 13 transactions over a 12-month period.

75. In written submissions for the sentencing hearing, the Crown said the following.

Mr Farrugia

Mr Farrugia's conduct fell "within the mid-point of the mid-range" of seriousness for the conspiracy offence (for which he was an "entrusted member" of the criminal group, acquiring and supplying drugs for substantial profit in six transactions) and his conduct was in the "high range" of seriousness for the proceeds of crime offence with the quantum involved being "just below the statutory threshold beyond which he would have been guilty of the [then] most serious of the money laundering offences".

Mr Kanmaz

Mr Kanmaz's conduct "approach[ed] the higher end of the mid-range" of seriousness for the conspiracy offence and was in the "high range" of seriousness for the proceeds of crime offence, "noting [that] the [proceeds of crime] offence to be taken into account in relation to [Mr] Kanmaz [was] a more serious offence" than the proceeds of crime offence committed by Mr Farrugia. Mr Kanmaz was also an entrusted member of the criminal group with direct involvement in seven drug transactions and had "control and operation" of Overstock, which "concealed the group's criminal activities" and existed for the sole purpose of storing and distributing drugs and proceeds of crime for the criminal group's benefit. With respect to the proceeds of crime offence, Mr Kanmaz was in possession of large amounts of cash, and was responsible for collecting and distributing cash on instructions from members of the criminal group.

76. The Crown's written submission that Mr Kanmaz "should receive a more substantial penalty" than Mr Farrugia relied upon the following: (i) Mr Kanmaz's conspiracy offence involving a greater quantity of drugs than Mr Farrugia's; (ii) Mr Kanmaz's proceeds of crime offence carrying a greater maximum penalty than Mr Farrugia's; (iii) Mr Kanmaz having dealt with $1,785,000 in respect of the proceeds of crime offence compared with the $957,217 with which Mr Farrugia had dealt; (iv) Mr Kanmaz having been involved in more drug supply and proceeds of crime transactions than Mr Farrugia; and (v) Mr Kanmaz having a more extensive criminal record than Mr Farrugia.

The issues in the Court of Criminal Appeal and this Court

77. The Court of Criminal Appeal dismissed Mr Farrugia's appeal. Hamill J (with whom Price A-JA and Campbell J agreed) held that there was no "conflict of interest". Price A-JA (with whom Campbell J also agreed) added that there was no significant possibility that the joint representation had adversely affected the sentence imposed upon Mr Farrugia and, therefore, there was no practical injustice and no miscarriage of justice.¹¹⁰ This aspect of Price A-JA's reasoning is addressed later in these reasons.

78. As to the issue of "conflict of interest", the case before the Court of Criminal Appeal may have been put in those generic terms, although at least at one point in the submissions of counsel for Mr Farrugia to the Court of Criminal Appeal, counsel separated the two duties of counsel: (i) not to place themselves in a position of potentially conflicting duties; and (ii) not to have an actual conflict of duties. Counsel in the Court of Criminal Appeal relied upon both "a possibility" of conflict and "an actual conflict" of duties.¹¹¹ In any event, both allegations of conflict were rejected by the Court of Criminal Appeal's reasoning that no "conflict of interest" was established. The reason for that rejection was, as Hamill J explained:¹¹²

"There is no evidence as to [Mr Farrugia's] instructions to his solicitor and barrister, and no evidence as to the discussions between Mr Farrugia, his solicitor and senior counsel as to what [Mr Farrugia] said about his role, and what submissions were to be made in relation to his role and objective criminality relative to Mr Kanmaz or otherwise. There is no evidence of the advice provided by counsel and nothing to suggest that [Mr Farrugia] was not provided with advice as to his representation."

79. In this Court, Senior Counsel for Mr Farrugia (who was a different counsel from his sentencing hearing) submitted that a potential conflict of duty arose "[a]t the very outset of the sentencing proceeding" due to the "potential for differences between views of available arguments ... arguments [that] have the potential to go in opposite directions". This potential conflict of duty was said to arise in any case where multiple clients are represented jointly unless there was a "sufficient and obvious difference" which made relative culpability "unarguable".

80. Nevertheless, perhaps due to the difficulty that there may be no practical injustice if a potential conflict of duty does not manifest as an actual conflict of duty, Senior Counsel for Mr Farrugia accepted that the practical injustice of Mr Farrugia's case lay in the failure to make (or adopt) the submission that was "broadly articulated" in the written submissions of the Crown concerning relative culpability. The vitiation of the exercise of the sentencing discretion, as alleged in this Court, was therefore one of a potential conflict of duties that became an actual conflict of duties.

Counsel's obligations to avoid potential and actual conflicts of duty to a client

Two different obligations

81. Where an alleged or apparent conflict is identified between a principal's duties to two or more persons, it is necessary to identify the scope of those duties to determine whether the principal has a potential conflict or an actual conflict in breach of their obligations. There are two relevant obligations: (i) an obligation upon a person not to place themself in a position of potential conflict of duty and duty; and (ii) an obligation upon a person not to act in a position of actual conflict of duty and duty. The distinction between those obligations has been cogently explained as follows:¹¹³

"Generally, conflicts of [duty] are easier to tolerate when they are 'potential' rather than 'actual'. A conflict of [duty] is potential if and only if P has a conflict of [duty] with respect to a certain judgment but is not yet in a situation in which [they] must make that judgment. Potential conflicts of [duty], like time bombs, may or may not go off. A conflict of [duty] is actual if and only if P has a conflict of [duty] with respect to a certain judgment and is in a situation in which [they] must make that judgment."

The sources and types of conflict obligations owed to a client

82. The issues raised by the parties before this Court concern only whether conduct in breach of either of the conflict obligations discussed above vitiated the exercise of sentencing discretion because the conduct could realistically have had an effect upon a process of reasoning in the sentencing of Mr Farrugia. In this case, involving procedure in New South Wales, there are two different sources and types of relevant conflict obligations which can have different content.

Assumed obligations recognised at general law

83. The first type of conflict obligations is obligations that are assumed by a principal, and recognised in equity. Rule 7 of the Legal Profession Uniform Conduct (Barristers) Rules expressly preserves rules that arise from the general law, which includes equity. The equitable obligations are based upon what a principal undertakes and assumes responsibility to do. A principal who is a legal counsel and who accepts a brief to act for a client is often described, at a high level of generality, as having undertaken to act in the best interests of the client. However, "[t]he duty of loyalty is not a duty in the air. It is attached to the obligations the lawyer has undertaken pursuant to the retainer."¹¹⁴ The precise content of counsel's undertaking, and the duties that it involves, can be inferred from the common nature of a relationship between counsel and client based upon the matters that, "in general, [the client] is entitled to expect".¹¹⁵ The undertaking will rarely involve a strict duty for counsel to ensure that they act solely in the best interests of the client,¹¹⁶ although the undertaking will generally involve a non-fiduciary duty, with the same content as other duties of care undertaken at common law,¹¹⁷ to make a reasonable attempt to pursue the best interests of the client based on the client's instructions.¹¹⁸ The fiduciary duties that are encompassed within what is sometimes described at a high level of generality as a duty of loyalty¹¹⁹ are more precisely expressed as including fiduciary duties not to profit from the relationship and not to act in a position of potential or actual conflict.¹²⁰

Imposed obligations

84. The second type of obligations concerning conflicts of duty is those imposed by law, independently of an assumption of responsibility undertaken by the principal. The source of those imposed obligations in this case is legislative.¹²¹ It is unnecessary in this case to explore the extent to which these legislative obligations reflect imposed obligations at general law. As to the obligation concerning potential conflicts, r 119 of the Legal Profession Uniform Conduct (Barristers) Rules provides that a "barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict" and "if so" the barrister must return all briefs in cases of confidentiality or otherwise return the brief for one or more of the clients "so as to remove that possibility of conflict". This rule contains two obligations. The first is an obligation upon a barrister to consider, as soon as possible, whether there is a potential conflict (a "real possibility" of conflict) of duty and duty. But a barrister does not satisfy r 119 simply by prompt and good faith consideration. There is a further obligation, where a real possibility of conflict of duty and duty arises, for the barrister to return the brief for one or more clients.¹²²

85. The obligations concerning conflicts created by the Legal Profession Uniform Conduct (Barristers) Rules are not co-extensive with any assumption of responsibility by counsel. The duties exist independently of those which are expressly or impliedly assumed and are, in that sense, imposed by law.¹²³ Moreover, the duties are public duties owed by counsel to the court, not private duties owed to the client which are entirely shaped by instructions from the client.¹²⁴ Although instructions from a client will have a role in ascertaining the extent of counsel's obligations, there are limits to client autonomy.¹²⁵ A court would be entitled to assume, for instance, that counsel acting for a client in a sentencing hearing was not making submissions in accordance with instructions to obtain the highest possible penalty for their client.

86. As to the obligation concerning actual conflicts, r 35 of the Legal Profession Uniform Conduct (Barristers) Rules provides that a "barrister must promote and protect fearlessly and by all proper and lawful means the client's best interests to the best of the barrister's skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person". An actual conflict of duty breaches r 35 where the promotion of one client's best interests to the best of the barrister's skill and diligence is inconsistent with the promotion, in the same way, of the best interests of "any other person" (any other client).

Obligations concerning conflicts at general law (equity) are determined by the scope of the principal's undertakings

87. A preliminary step in all instances of obligations concerning conflicts is to identify the terms and scope of the duties that are said to be in potential or actual conflict. Where those duties depend upon an assumption of responsibility by an undertaking, such as in relationships of counsel and client, the terms and scope of the undertaking made by counsel must be identified. This requires consideration of the instructions given by the client (usually through a solicitor). Hence, the necessity for the "conflicting duty ... [to] be identified" requires identification with "specificity [of] the existence of any prior or concurrent engagement or undertaking".¹²⁶

88. The basic role of a principal's undertaking in determining the scope of the duties owed in these cases can be illustrated by simple examples from well-known fiduciary relationships. For instance, where an undertaking in a trust deed requires a trustee to make a gift of trust funds to a third party, the trustee will have no potential conflict between that duty to the third party and the trustee's duty to beneficiaries.¹²⁷ So too, where a person undertakes to act as a company director in a contract of engagement which expressly or impliedly (including by generally accepted practice¹²⁸) permits that person to serve on the board of a rival company, no conflict arises from that service for the rival company within the terms of the undertaking. That is why it is commonly said that merely acting as a director for a rival company is not a breach of fiduciary duty.¹²⁹ So too, the terms and scope of the undertaking by counsel to act for a client are an essential consideration in the identification of potential or actual conflict.¹³⁰

89. An example of a case in which no potential conflict arose from the terms of counsel's undertaking in the course of joint representation is the decision of the Privy Council in Mills v The Queen.¹³¹ In that case, counsel represented a father and his three sons, who were all accused of the murder of a man who had been killed by a group of men armed with machetes. A central issue was identification. One of the sons was alleged to have admitted to the police that he struck the victim after being provoked and was alleged to have invited the police to speak to another of the sons. There may have been potential for a conflict of duty for counsel representing all four men if one or more of the men blamed one or more of the others. But, on the assumption that the undertaking of counsel, based on instructions, was concerned only with making submissions on issues raising a common interest in the central issue of identification, their Lordships concluded that there was no potential conflict of duty.¹³²

90. An example of a case where the opposite result was reached and a conviction quashed due to an actual conflict is the decision of the Supreme Court of the United States in Holloway v Arkansas.¹³³ That case concerned the robbery of a restaurant during which two women were raped. The prosecution in that case charged each of the three accused men with one count of robbery and with two counts of rape. A central aspect of the prosecution case concerned identification evidence. Despite an obvious potential for cut-throat defences, the trial judge did not appoint separate counsel for the three accused men. When counsel was appointed to represent all three men, the counsel filed a motion seeking separate representation due to a potential conflict of duty arising from his instructions. As it turned out, the potential conflict became an actual conflict. As counsel explained to the trial judge, "[t]his conflict will probably be now coming up since each one of [the three accused men] wants to testify".¹³⁴ The Supreme Court did not need to resolve the question of "how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed".¹³⁵ The objection by counsel established the actual conflict by which the accused men had been deprived of the undertaken assistance of counsel.

Obligations concerning conflicts under legislation can extend beyond the scope of the principal's undertakings

91. Since the conflict obligations concerning multiple clients under rr 35 and 119 of the Legal Profession Uniform Conduct (Barristers) Rules are imposed by law, they can differ in scope from those that arise in equity from an assumption of responsibility. For instance, the obligation in r 35 to promote the client's "best interests" to the best of the barrister's skill and diligence applies "without regard to ... any consequences to ... any other person". A client's instructions to have regard to the consequences to any other person will not be conclusive of the scope of r 35. Although it will usually be in the best interests of a client for a barrister to follow the client's expressed intentions, r 35 is a public duty which is not necessarily satisfied by the barrister following whatever a client considers to be in the client's best interests. As Lord Reid said in Rondel v Worsley:¹³⁶

"as an officer of the court concerned in the administration of justice, [the barrister] has an overriding duty to the court, to the standards of [the] profession, and to the public, which may and often does lead to a conflict with [the] client's wishes or with what the client thinks are [their] personal interests".

92. A number of other provisions of the Legal Profession Uniform Conduct (Barristers) Rules confirm that the content of r 35 is not co-extensive with what the client thinks are their best interests. Rule 42 provides that a barrister "must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable". And r 23 confirms that the barrister's overriding duty is to "the court to act with independence in the interests of the administration of justice".

93. Due to the scope of a similar imposed obligation for solicitors that a solicitor "must not act" where the clients' interests are adverse and there is a potential or actual conflict of the duties to act in the best interests of each client (subject to an exception for consent), McMurdo P counselled prudence in R v Pham:¹³⁷ "[u]nless there is no possibility of a conflict existing or emerging, and such cases will be rare, co-defendants should have separate legal representation".

Onus of proof

94. Unless legislation provides otherwise, the onus of proof to establish a potential or actual conflict, whether arising from an assumed or an imposed obligation, is upon the party who asserts that the potential or actual conflict exists. On the other hand, once a potential or actual conflict has been established, at general law the onus falls to the other party (here, the Crown) to establish that, in the circumstances of the breach by the principal by being in a position of potential or actual conflict, the client waived the conflict and "absolved" the principal by "the giving of fully informed consent".¹³⁸

When a breach of conflict obligations is material

95. For an appeal against conviction under s 5(1)(a) or s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), the common form provision in s 6(1) of the Criminal Appeal Act recognises a difference between the lower threshold of materiality before allowing the appeal on the ground of an error of law or a miscarriage of justice and the higher threshold (unfortunately also sometimes described as "materiality") for the application of the proviso to s 6(1), which nevertheless permits the dismissal of the appeal if there has been no substantial miscarriage of justice.

96. Putting to one side those fundamental errors or irregularities which will always be substantial miscarriages of justice, an appellant must establish practical injustice in order to demonstrate an error of law or a miscarriage of justice within s 6(1). Establishing practical injustice requires the appellant to establish that the error or irregularity had the capacity to affect the result that occurred or, put more precisely, that the error or irregularity could realistically have affected the reasoning process to the result that occurred.¹³⁹ In short, practical injustice is concerned with whether there could realistically have been an effect on the reasoning process. It is not concerned with any effect on the actual result. By contrast, once an error of law or a miscarriage of justice is established, the onus falls upon the Crown to satisfy the proviso and show that no substantial miscarriage of justice occurred.¹⁴⁰ The focus upon a lack of substantiality requires the Crown to establish that (whatever the reasoning process that was adopted) the result was inevitable.¹⁴¹

97. Although the provision is differently expressed, a similar approach is taken when considering an appeal against sentence under s 5(1)(c) of the Criminal Appeal Act. Section 6(3) of the Criminal Appeal Act empowers the Court of Criminal Appeal to allow an appeal against sentence where the Court is "of opinion that some other sentence ... is warranted in law and should have been passed". Otherwise, the Court of Criminal Appeal "shall dismiss the appeal". Although s 6(3) is expressed, in part, by reference to the outcome (the other "sentence ... warranted in law"), it is necessary also to establish that the other sentence "should have been passed". This requires an error or irregularity to be demonstrated on the appeal.

98. Where the allegation is one of manifest excess or manifest inadequacy of sentence, the outcome must be considered. But where the error alleged and established is a specific matter of principle, a fresh exercise of the sentencing discretion is required irrespective of whether the outcome will be the same. As French CJ, Hayne, Bell and Keane JJ, referring to specific errors by a sentencing judge, said in Kentwell v The Queen:¹⁴²

"When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration¹⁴³, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome."

99. In each of these instances, the specific error has incorporated a threshold of practical injustice, namely that the error is fundamental or that it could realistically have affected the reasoning process.¹⁴⁴ For instance, a sentencing judge who mistakes a fact that is irrelevant to their reasoning process will not have committed a relevant error of law. So too, in the example given in the joint reasons in Kentwell, there will be no practical injustice leading to a need to re-sentence if a sentencing judge, contrary to a legislative rule, sets a term of imprisonment before, rather than after, setting a non-parole period.¹⁴⁵

100. It may be that s 6(3) assumes that the Court of Criminal Appeal will itself re-exercise the sentencing discretion once it concludes that any error or irregularity is material (either fundamental or could realistically have affected the reasoning process of the sentencing judge). But whether or not that is so, the exercise of a sentencing discretion will be vitiated by any error or irregularity which is material. The appeal is to be allowed unless the same sentence will be imposed on the re-exercise of the sentencing discretion.

101. Although most actual conflicts will be a material irregularity which will vitiate the exercise of a sentencing discretion, the same is not true of potential conflicts. A potential conflict will only vitiate the exercise of a sentencing discretion if it is a fundamental irregularity¹⁴⁶ or if it has caused practical injustice by manifesting as an actual conflict that might affect the reasoning process of the sentencing judge.¹⁴⁷ Unlike instances of apprehended or actual bias concerning a judge or juror's impartial discharge of the task of adjudication,¹⁴⁸ the range of circumstances of potential conflict, and the effect of those circumstances, are so diverse that it is impossible to say that in every instance of a potential conflict, whether in adjudication of guilt or in sentencing, there will be a fundamental irregularity that dispenses with the need to consider whether there could realistically have been an effect on the reasoning process. In relation to a sentencing discretion, therefore, unless the potential conflict is fundamental, the exercise of discretion will not be vitiated without the practical injustice of the potential conflict manifesting as an actual conflict that "could realistically have affected the reasoning" of the sentencing judge.¹⁴⁹

102. This reasoning is not to deny that there are many instances of potential conflict that involve actual conflict. Indeed, it will be rare that a potential conflict between duties to clients does not manifest itself in some actual conflict, however slight. A potential conflict might manifest as an actual conflict in the most subtle or even unconscious of ways: a slight influence upon the manner in which a submission is put; a slight influence upon a decision to tender evidence or to ask a question in cross-examination; even the unconscious fear of the unknown impact upon one client of a forensic course taken for the other client.

No potential or actual conflict proved at general law but an actual conflict under legislation

Assumed obligations at general law

103. There was plainly an apparent conflict of duties in this case. Joint representation of multiple clients in a criminal trial or sentencing hearing will invariably give rise to an apparent conflict and is ripe to give rise to a potential conflict of duties. It has been said that the mere fact of joint representation in a criminal trial "may lead the jury to link the co-accused together".¹⁵⁰ And the potential for conflicting duties can also have unnoticed effects by manifesting as a subtle but pernicious actual conflict. Counsel might, even unconsciously, "refrain from doing certain things for one client by reason of [their] concern that [their] action might adversely affect [their] other client".¹⁵¹

104. But in order to establish that the apparent conflict of duties in this case was a potential or actual conflict of duties at general law, it was necessary to know the content of the allegedly conflicting duties. That content depended on the undertaking given by Senior Counsel for Mr Farrugia, which, in turn, depended upon the instructions given to Senior Counsel. This was not a case in which it could be said that the potential conflict or actual conflict was so clear from the facts that no evidence of counsel's undertaking was required beyond the existing record of counsel's appearance and submissions. In other words, although I do not accept the submission of the Commonwealth Director of Public Prosecutions that a submission that Mr Farrugia should receive a more substantial penalty than Mr Kanmaz was the only submission that was open to Senior Counsel having regard to his duty to the court, if the submission had been made on Mr Farrugia's instructions then no potential or actual conflict would arise from any assumed obligation.

105. The absence of evidence of instructions from which to ascertain the undertaking of Senior Counsel and the content of the two duties in apparent conflict is therefore fatal to Mr Farrugia's appeal so far as it relies on the general law. This point, which generally aligns with the reasoning of Hamill J in the Court of Criminal Appeal quoted above,¹⁵² means, however, that so far as Mr Farrugia relied on the general law, he was placed on the horns of a dilemma in the Court of Criminal Appeal. He may not have wished to waive legal professional privilege over any of the instructions that he gave to his solicitors or Senior Counsel, but he could only establish that Senior Counsel had a conflict of duties at general law by introducing at least some evidence of the instructions that were given to Senior Counsel.

Imposed obligations under legislation

106. As explained above, the public duties imposed by rr 35 and 119 of the Legal Profession Uniform Conduct (Barristers) Rules are not confined to those undertakings made by the barrister in accordance with a "client's wishes or with what the client thinks are [their] personal interests".¹⁵³ Hence, this appeal cannot necessarily be dismissed on the basis that Mr Farrugia failed to waive legal professional privilege and sufficiently reveal his instructions to his solicitors or Senior Counsel.

107. Any breach of r 119 can also be put to one side. As Senior Counsel for Mr Farrugia in this Court properly conceded, any potential conflict of duty was not so fundamental that it vitiated the exercise of the sentencing discretion without the need to consider whether there could realistically have been an effect on the reasoning process of the sentencing judge. An actual conflict was required. That actual conflict arose when Senior Counsel received the submissions of the Crown which argued that Mr Kanmaz "should receive a more substantial penalty" than Mr Farrugia. In responding to that submission, Senior Counsel had a public duty to advance each of the cases of Mr Farrugia and Mr Kanmaz in the best interests of each client to the best of his skill and diligence without regard to the consequences to the other client. In light of a barrister's overriding duty to the court to act independently in the interests of the administration of justice, and a barrister's duty not to "act as the mere mouthpiece of the client", the court should have been entitled to assume that Senior Counsel for Mr Farrugia and Mr Kanmaz had made submissions for each client in a manner which reasonably and fairly presented their cases in the most favourable light, urging the lowest appropriate penalty.

108. The actual conflict for Senior Counsel is clear once it is appreciated that the submissions of the Crown presented Senior Counsel for Mr Farrugia and Mr Kanmaz with a choice. Senior Counsel could have: (i) accepted the Crown submission and, consistently with the best interests of Mr Farrugia, argued that Mr Kanmaz should receive a more substantial penalty; or (ii) disputed the Crown submission and, consistently with the best interests of Mr Kanmaz, argued that Mr Farrugia should receive a more substantial penalty.

109. The test for whether the exercise of the sentencing discretion was vitiated by an actual conflict was not correctly identified by Price A-JA (with whom Campbell J agreed) in the Court of Criminal Appeal. As explained above, the test to be applied was not whether there was a significant possibility that Senior Counsel's joint representation adversely affected the sentence imposed upon Mr Farrugia. The test to be applied was whether a conflict by Senior Counsel could realistically have affected the reasoning process of the sentencing judge. Since the actual conflict could realistically have had a substantial effect upon the submissions made by Senior Counsel, the conflict could also realistically have affected the reasoning process of the sentencing judge. The exercise of the sentencing discretion by the sentencing judge was vitiated by Senior Counsel's actual conflict of duties.

Conclusion and orders

110. The appeal must be allowed on the basis that an actual conflict of duties was established. The issue which then arises is the order that should be made. Two possibilities were raised in this Court: remittal of the matter for re-sentencing in the Court of Criminal Appeal or, alternatively, remittal for re-sentencing in the District Court of New South Wales. The Director of Public Prosecutions for New South Wales, intervening, made powerful submissions to the effect that the supplemental power in s 12(2) of the Criminal Appeal Act did not provide power for the Court of Criminal Appeal, following the vitiation of the exercise of a sentencing discretion, to remit the matter to the District Court of New South Wales for re-sentencing.

111. In part for reasons briefly explained above,¹⁵⁴ I have serious doubts whether the Court of Criminal Appeal, and therefore this Court making the orders that the Court of Criminal Appeal ought to have made,¹⁵⁵ has a power to remit the matter for re-sentencing at first instance, rather than for this Court or (on remittal) the Court of Criminal Appeal to re-sentence under the Criminal Appeal Act. Nevertheless, I recognise that: (i) this issue is "controversial";¹⁵⁶ (ii) Mr Farrugia has raised cogent arguments in favour of such a power; (iii) a narrow interpretation which denied that power to the Court of Criminal Appeal would be contrary to the existing state of authority;¹⁵⁷ and (iv) such a narrow interpretation could have unfortunate consequences.

112. The unfortunate consequences of this narrow interpretation include the consequence that the Court of Criminal Appeal would need to hear full sentencing submissions in every case in which a sentencing judge's exercise of discretion had been vitiated. Even after a very lengthy trial when the most efficient course would be for the matter to be remitted to the trial judge for re-sentencing, the Court of Criminal Appeal would be required to conduct a fresh sentencing hearing and re-exercise the sentencing discretion itself, albeit with supplemental powers including to remit a matter or issue in the sentencing (including any matter or issue in dispute) to the trial judge as part of the re-sentencing hearing.¹⁵⁸

113. It is both unnecessary and undesirable in this case to attempt to resolve this issue. It is unnecessary to do so because, even if I were to conclude that the Court of Criminal Appeal had power to remit a matter for re-sentencing under s 12(2) of the Criminal Appeal Act, the order that I would make would be to remit the matter to the Court of Criminal Appeal to decide whether the best course of case management in that Court would be to remit the matter to the District Court of New South Wales for a fresh sentencing hearing. And it is undesirable to attempt to do so in circumstances in which: (i) (in light of the majority's conclusion) this issue will not be resolved by this Court; and (ii) denying that power to the Court of Criminal Appeal would have the potential to undermine the existing state of authority with potentially deleterious effects for case management of appeals against sentence.

114. The appeal should be allowed and the matter remitted to the Court of Criminal Appeal.

JAGOT J.

The appeal and its resolution – overview

115. This appeal arises from unusual facts. The appellant and a co-accused each indicated that they would enter a plea of guilty to offences of conspiring to traffic a commercial quantity of a controlled drug and dealing with the proceeds of crime. The appellant and the co-accused were committed for arraignment and sentence in the District Court of New South Wales. Agreed Facts were signed and filed. Before the trial on sentence the Crown filed written submissions prepared by two counsel "on behalf of the CDPP [the Commonwealth Director of Public Prosecutions]". By reference to the Agreed Facts, the Crown submitted that the appellant's offending was less objectively serious than the offending of the co-accused and the appellant was therefore less culpable than the co-accused so that the co-accused "should receive a more substantial penalty than ... [the appellant]". Trial counsel retained for the appellant filed written submissions in response and appeared at the trial on sentence. Rather than adopting the written submissions of the Crown, trial counsel submitted that the Crown was wrong and that the appellant's offending was more objectively serious than the offending of the co-accused and the appellant was therefore more culpable than the co-accused. At the trial on sentence Crown counsel reversed the Crown's position and adopted the position put by trial counsel for the appellant. The appellant was thereafter sentenced to a materially longer period of imprisonment than the co-accused.

116. As will be explained, there can be no real doubt that the submissions trial counsel for the appellant made reflected trial counsel's genuine view of the relative objective seriousness of the offending of the appellant and the co-accused and their consequential relative culpability. Otherwise, trial counsel's conduct would be wholly inexplicable. Equally, there can be no real doubt that trial counsel did not perceive that, as the Crown's written submissions involved a reasonably arguable position based on the Agreed Facts, there was available to trial counsel an obvious proper and lawful means by which trial counsel could advance the best interests of the appellant in the appellant's cause, which, in the circumstances, it was trial counsel's duty to do. That obvious proper and lawful means was for trial counsel, whatever else trial counsel may have chosen to submit on the appellant's behalf, to adopt the effect of the Crown's written submissions that the appellant's offending was less serious than that of the co-accused and the appellant was therefore less culpable than the co-accused so that, as the Crown had submitted, the appellant's sentence should be less than the sentence of the co-accused.

117. Finally, there can be no real doubt that trial counsel did not perceive this to be his duty to the appellant (and, as will be explained, his duty to the sentencing court) because trial counsel had also been retained by and was acting in the trial for the co-accused.

118. In these circumstances the appeal is to be resolved on the basis that: (i) the sentencing of the appellant miscarried as the appellant's trial counsel was subject to an irreconcilable conflict of duties arising from the fact that trial counsel was also representing a co-accused in that trial; (ii) trial counsel's representation of the appellant in the trial on sentence involved a material procedural error or irregularity in that trial counsel's conflict of duties could realistically have affected the outcome,¹⁵⁹ being the sentence imposed on the appellant; and (iii) it follows that the sentence imposed on the appellant is vitiated and "some other sentence, whether more or less severe is warranted in law" within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW).

119. The significance of the Crown's written submissions is evidentiary. They made manifest that it was reasonably arguable on the Agreed Facts that the appellant's offending was less objectively serious and the appellant was therefore less culpable than the co-accused, and that the appellant in all of the circumstances as considered by the Crown should be subjected to a lesser sentence than the co-accused. They also provided trial counsel with an obvious opportunity to adopt the effect of those submissions on behalf of the appellant. That trial counsel did not do so, but instead submitted the opposite (against the interests of the appellant in the appellant's cause and in the interests of the co-accused in the co-accused's cause), proves that trial counsel could not satisfy his duty to the appellant, his duty to the co-accused, and his duty to the court in the trial on sentence. Rather, the only available inference is that because trial counsel did not recognise the conflict of duties, trial counsel also did not recognise that, in his representation of the appellant, trial counsel subordinated the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause. That circumstance constitutes a material irregularity in the trial on sentence the effect of which is to vitiate the sentence imposed on the appellant.

120. While counsel is not prohibited from acting on behalf of more than one co-accused in a criminal trial, judicial expressions of concern about counsel doing so reflect that irreconcilable conflicts of interest between co-accused may well arise through the criminal trial process and are not readily predictable. Moreover, when there is a potential or actual conflict of interest between co-accused, which is real and not merely fanciful or far-fetched, it is the very existence of the resulting potential or actual conflict of duties of counsel which can prevent counsel from perceiving the conflict and its consequences. That which appears obvious with hindsight to a third party often may not appear at all to counsel in the midst of the conflict of duties unless counsel is consciously vigilant about avoiding the risk of such a conflict in the first place.

121. The test to be applied by counsel is predictive and protective of the interests of justice. Unless counsel in a criminal trial can act in the best interests of each co-accused as if each co-accused were counsel's only client, counsel cannot act for more than one co-accused, including in a trial on sentence. Therefore, if there is a real risk or real chance that counsel may not be able to act in the best interests of each co-accused as if each co-accused were counsel's only client counsel cannot act for more than one co-accused. The test for intervention to be applied by a criminal trial judge before whom counsel is appearing is the same. If the trial judge considers that there is a real risk or real chance that counsel may not be able to act in the best interests of each co-accused as if each co-accused were counsel's only client the trial judge should intervene to prevent that occurring.¹⁶⁰ The test to be applied by an appellate court on appeal from a verdict or sentence is that counsel in fact having acted under a conflict of duties is an error or irregularity in a criminal trial which vitiates a verdict or sentence if it is "shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning"¹⁶¹ to the verdict or sentence. That test is satisfied in this case.

122. The Crown's contention in this appeal, that trial counsel's conflict of duties (if any) had been negated by the appellant failing to prove that he had not given "fully informed consent" to trial counsel acting for both the appellant and the co-accused, must be rejected. The position of counsel and an accused in a criminal trial, including a trial on sentence, is not comparable to the position of a solicitor acting on behalf of more than one client in a commercial transaction. It is still less comparable to a general fiduciary in the multiplicity of circumstances in which "different minds may reach different conclusions as to the presence or absence of a real or substantial possibility of conflict between duty and interest or between duty and duty".¹⁶²

123. As explained below, counsel appearing in court is not merely in a fiduciary relationship to counsel's client. In the context of a criminal trial, it will be a rare case in which the risk to the integrity of a criminal trial process, including as to sentence, would justify counsel acting on behalf of a co-accused where it appears that real potential exists for a conflict of duties to arise as between the best interests of each co-accused. It will also be a rare case in which counsel's disclosure to an accused of the circumstances giving rise to counsel's potential or actual conflict of duties, and an accused's continued retainer of counsel despite that disclosure, should be taken to constitute an accused's "fully informed consent" to the conflict such as to negate or qualify counsel's duty to act in the best interests of that accused alone.

124. Relatedly, an accused's maintenance of legal professional privilege over the accused's communications with counsel does not permit any inference to be drawn adverse to the accused. In particular, it does not permit an inference to be drawn to the effect that counsel made "full disclosure" of the conflict of duties and its full suite of potential consequences and that the accused provided "fully informed consent" to counsel acting subject to the conflict of duties. In the present case, moreover, it is relevant that the Crown did not challenge the appellant's claim of legal professional privilege over his communications with trial counsel, so that the issue remained undecided before the Court below. The Crown succeeded before the Court of Criminal Appeal of the Supreme Court of New South Wales only on the basis of the appellant's failure to discharge his onus of proof – that is, in effect, that the appellant had not proved that he had not provided "fully informed consent" to trial counsel acting under the conflict of duties.¹⁶³ This conclusion assumes both that trial counsel could have provided to the appellant "full disclosure" of the true nature of the conflict of duties and its consequences and that the appellant could in response provide "fully informed consent" to counsel continuing to act under that conflict of duties. As discussed below, no such assumptions can be made.

Counsel's duty to an accused

125. It may be accepted that, as a general proposition, a client's instructions to a lawyer will affect the nature, scope and extent of the lawyer's duties to the client. The flexibility inherent in this general proposition reflects the breadth and variety of circumstances in which a person may engage a lawyer to act on their behalf. In some cases, such as a lawyer representing a client in a commercial transaction, it may well be possible for a lawyer to provide a client with "a conscientious disclosure of all material circumstances, and everything known to [the lawyer] relating to the proposed transaction which might influence the conduct of the client".¹⁶⁴ It may also be possible for a client to provide the lawyer with "fully informed consent" to the lawyer's conflict of interest, thereby negating what would otherwise be the lawyer's duty to act exclusively in the best interests of the client.¹⁶⁵ As Spigelman CJ, Sheller and Stein JJA explained in Beach Petroleum NL v Kennedy,¹⁶⁶ the general position with respect to a lawyer's fiduciary duty to a client is that the nature, scope and extent of the duty "is derived from what the [lawyer] undertakes, or is deemed to have undertaken, to do in the particular circumstances".¹⁶⁷

126. What a lawyer undertakes, or is deemed to have undertaken, to do in the circumstances of a commercial transaction, or even in civil litigation, may well involve greater scope for a lawyer to act in the best interests of multiple clients. In contrast to a commercial transaction or civil litigation, where the legitimate interests of a party may embrace a range of outcomes, the legitimate interests of an accused in a criminal trial are more confined. In a trial for an offence, the principal legitimate interest of an accused is an acquittal or conviction on some lesser charge than might otherwise have been the case. In a trial on sentence, the principal legitimate interest of an accused is the imposition of the sentence the least severe in form and for as short a period as possible. It follows that in determining if a real potential for a conflict of interest exists between co-accused, the primary consideration must be the principal legitimate interest of each co-accused to obtain an acquittal or conviction on some lesser charge than might otherwise have been the case or imposition of the sentence the least severe in form and for as short a period as possible.

127. The function of counsel in a criminal trial, however, is neither defined by nor exhausted by the fiduciary duties counsel owes to an accused. "The role of counsel in a criminal trial is so important that it hardly needs argument to conclude that his or her conduct of the trial can bring about a miscarriage of justice".¹⁶⁸ This follows from the fact that "[n]o matter how strong the prosecution case appears to be, an accused person is entitled to the trial [including on sentence] that the law requires".¹⁶⁹

128. Throughout a criminal trial, including a trial on sentence,¹⁷⁰ there is an overriding requirement that the trial be conducted in accordance with procedures, standards and rules that have come to be accepted as essential to fairness, including fairness to an accused.¹⁷¹ An accused "is entitled to be sentenced according to law".¹⁷² In particular, in the conduct of the cause of an accused, be it in a trial relating to acquittal or conviction or to sentence, it is axiomatic that the duty of counsel is to "adduce any evidence which is relevant to [that cause] and assists [the] client, whether or not it prejudices anyone else".¹⁷³ Equally, as an accused must be able to adduce "all relevant and admissible evidence" in their own cause,¹⁷⁴ an accused's counsel must be free from any conflict of duties preventing, inhibiting or impairing counsel's capacity to do so. It follows that an accused's counsel must also be free from any conflict of duties preventing, inhibiting or impairing them from making all submissions, properly and lawfully able to be made, in the best interests of the accused in the accused's cause.

129. Accordingly, it cannot be said that the obligations of counsel for an accused in a criminal trial are mere fiduciary obligations of the kind equity imposes on a fiduciary, being "proscriptive rather than prescriptive in nature" and owed solely to the accused "not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict".¹⁷⁵ Recognition of this reality may explain in part why some academic commentators have expressed doubt about the role of "fully informed consent" to negate counsel's conflict of duties in a criminal trial context.¹⁷⁶

130. It is because of the overriding requirement that a criminal trial be fair that the common law doctrine of finality in adversarial litigation, that "parties are bound by the conduct of their legal representatives",¹⁷⁷ is not absolute in the criminal trial context.¹⁷⁸ That rule yields in a case where counsel's conduct: (i) is such that it can be said that an accused has been deprived of the fundamental opportunity for a fair trial, in which event the threshold of materiality for appellate intervention is necessarily satisfied; or (ii) has resulted in a procedural error or irregularity in the trial process which could realistically have affected the outcome,¹⁷⁹ be that outcome an accused's conviction of or sentencing for an offence.

131. That counsel retained to act on behalf of an accused has a wide discretion to conduct the case for the accused as counsel "may think best for the interests of [the] client in the conduct of the [client's] cause" may be accepted.¹⁸⁰ The consequence is that the "wisdom of [counsel's] decisions can rarely be the proper concern of appeal courts".¹⁸¹ Accordingly, while it is for counsel to decide "what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue",¹⁸² the critical point for present purposes is that counsel must so decide in the best interests of the accused "in the conduct of the cause",¹⁸³ the relevant cause being that of the accused alone.

132. Appellate courts traditionally exercise restraint when considering whether counsel's forensic decisions require a conviction (or sentence) to be set aside. The reason for this is that the scope for such decisions to be reasonably made is wide and must be flexible so that counsel may respond effectively to the exigencies of a trial as and when they arise. The question whether counsel in a criminal trial is subject to a conflict of duties preventing, inhibiting or impairing counsel from acting in the best interests of each co-accused as if each co-accused were counsel's only client is not a forensic decision and is not comparable to the position of an ordinary fiduciary. In contrast to the position of an ordinary fiduciary, the question whether counsel in a criminal trial is subject to a conflict of duties preventing, inhibiting or impairing counsel from acting in the best interests of each co-accused as if each co-accused were counsel's only client permits of but one correct legal answer.¹⁸⁴

133. It is, of course, for counsel to decide a question of conflict of duties initially in light of the circumstances known to counsel at the time. But there is no comparison that can be drawn between the wide scope of forensic options reasonably available to counsel in acting for an accused in an accused's cause and the existence or otherwise of a conflict of duties on the part of counsel by reason of counsel's simultaneous retainer by a co-accused. The rub is, if a conflict of duties exists, all of counsel's forensic decisions are potentially affected. Moreover, counsel, as the person subject to the unrecognised conflict of duties, is unlikely to be able to recognise how that conflict is affecting counsel's forensic decision-making. In this sense, for an accused to be represented by counsel acting under an unrecognised conflict of duties is more harmful to the interests of the accused and the interests of the administration of justice than an accused being unrepresented, in which event the trial judge knows that the accused is under a disadvantage.

134. That there is no absolute rule prohibiting counsel from acting for more than one co-accused in a trial on guilt or sentence must be acknowledged. However, this is because, within the sweep of criminal trials, it is not every case in which there is potential for a conflict to arise between the best interests of co-accused in their respective causes. This said, judicial observations that co-accused jointly retaining counsel is "fraught with danger" reflect the reality that "[e]ven if there is no immediately apparent conflict of duties concerning the co-defendants, conflicts can easily arise during trials, which are notoriously unpredictable".¹⁸⁵ A previously unrecognised potential conflict of interest between co-accused may crystallise into an actual conflict of interest at any time during the criminal trial process, resulting in counsel being subject to an irreconcilable conflict of duties. This is why, as Lord Steyn explained in Mills v The Queen:¹⁸⁶

"It is axiomatic that counsel engaged on behalf of more than one defendant in a criminal case must consider whether there is a conflict of interest between them which might inhibit [counsel's] proper and effective defence of one of them. Counsel must consider the matter in the light of the prosecution case and the instructions [counsel] receives from the defendants. If there is, or might be, a conflict of interest, [counsel] must promptly advise separate representation. Any doubt must be resolved in favour of separate representation. Those duties of counsel arise as soon as [counsel] is engaged. It is, however, a continuous duty. If at any time before the trial a conflict arises, counsel must advise separate representation of the defendants. If contrary to all expectations such a position arises at trial, counsel may be obliged to seek a discharge of the jury in order to enable separate representation at a new trial. These propositions flow from the right of a defendant to have [the defendant's] defence properly and effectively placed before the jury. It is an integral part of [the defendant's] constitutional right to a fair trial. But their Lordships add one qualification. The province of the law is practical affairs. The question is whether there is, or might be, a real risk of a conflict of interest inhibiting counsel in the discharge of [counsel's] duties on behalf of one or more defendants. In a practical world wholly theoretical or fanciful risks can be disregarded."

135. Lord Steyn's point in Mills v The Queen is that an accused's instructions will be relevant to counsel determining whether a real, and not a mere fanciful or theoretical, potential conflict of interest exists between the accused and a co-accused.¹⁸⁷ No doubt this must be so, but in assessing whether such a potential conflict of interest exists no counsel could rely on an accused's instructions alone. It is the duty of counsel to assess the potential for a conflict of interest to arise between co-accused during the trial by reference to all relevant circumstances known to counsel, including counsel's knowledge and experience of the inherent unpredictability of the trial process. Nor is Lord Steyn suggesting that an accused's instructions can go so far as to negate counsel's duty to act in the best interests of each co-accused in each co-accused's cause.

136. Even if the only duty to which counsel for an accused in a criminal trial is subject were a fiduciary duty to the accused – which is not so – counsel cannot make "full disclosure" of and an accused cannot give "fully informed consent" to counsel subordinating the best interests of the accused in the accused's cause to the best interests of a co-accused in a co-accused's cause. Adopting the language of Professor Finn, "even if informed consents are obtained, they will not absolve the fiduciary [counsel] from liability to one master [an accused] if [counsel] cannot properly discharge [counsel's] duties to [the accused] because of conflicting duties owed to the other [the co-accused]".¹⁸⁸

137. The fundamental duties that the common law imposes on counsel are reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) ("the Uniform Barristers Rules"), which applied to trial counsel in this case. The relevant rules include:

"23 Duty to the court

A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.

...

35 Duty to the client

A barrister must promote and protect fearlessly and by all proper and lawful means the client's best interests to the best of the barrister's skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.

...

42 Independence

A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable.

43 A barrister does not breach the barrister's duty to the client, and will not have failed to give appropriate consideration to the client's or the instructing solicitor's wishes, simply by choosing, contrary to those wishes, to exercise the forensic judgments called for during the case so as to:

(a) confine any hearing to those issues which the barrister believes to be the real issues,

(b) present the client's case as quickly and simply as may be consistent with its robust advancement, or

(c) inform the court of any persuasive authority against the client's case.

...

80 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:

(a) should, subject to the client accepting the constraints set out in (b)-(h) but not otherwise, continue to act in the client's defence,

(b) must not falsely suggest that some other person committed the offence charged,

(c) must not set up an affirmative case inconsistent with the confession,

(d) must ensure that the prosecution is put to proof of its case,

(e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,

(f) may argue that for some reason of law the client is not guilty of the offence charged,

(g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged, and

(h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client's innocence.

...

119 A barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief for:

(a) all the clients in the case of confidentiality to which rule 114 would apply, or

(b) one or more of the clients so as to remove that possibility of conflict."

138. These are not mere ethical rules (although they are certainly that). Their substance embodies fundamental common law principles which underpin the operation of our adversarial system. As r 7 states, the Uniform Barristers Rules "are not intended to be a complete or detailed code of conduct for barristers" and "[o]ther standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law". This said, the fundamental rules that counsel's duties are: (i) to the court to act independently in the interests of the administration of justice (r 23); (ii) to exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable (r 42); and (iii) to promote and protect fearlessly and by all proper and lawful means the client's best interests to the best of counsel's skill and diligence, and do so without regard to counsel's own interest or to any consequences to counsel or to any other person (r 35), are central to the operation of our adversarial system of justice both individually and in their interaction.

139. By counsel discharging the duty to the client in accordance with r 35, counsel thereby discharges a principal component of counsel's duty to the court in accordance with rr 23 and 42. In particular, r 35, in requiring counsel to promote and protect only by all "proper and lawful means" the best interests of the client without regard to any consequence of so doing "to any other person", reflects that counsel's duty to the court under r 23 is to "act with independence in the interests of the administration of justice". This, in turn, ensures that counsel is not acting as the mere mouthpiece of the client or of the instructing solicitor and is exercising the forensic judgments called for during the case independently as required by r 42. That rr 23 and 42 provide for counsel's duty to act in the best interests of a client in the client's cause to be subordinated to counsel's duty to the court to act independently in the interests of the administration of justice is also exposed in the terms of r 80. What must be understood, however, is that in our adversarial system of justice, and most acutely in a criminal trial, counsel's duty to act independently in the interests of the administration of justice assumes that counsel can act and is acting to promote and protect fearlessly and by all proper and lawful means the accused's best interests to the best of the counsel's skill and diligence, and is doing so without regard to counsel's own interest or to any consequences to counsel or to any other person (including a co-accused).

140. This interaction between the duties of counsel is the reason that counsel is never entitled to subordinate an accused's best interests in the accused's cause to a co-accused's best interests in the co-accused's cause. To do so would involve counsel disabling themselves from fulfilling their fundamental duty to the accused and, by reason thereof, their overriding duty to the court. The adversarial system of justice assumes that counsel is not prevented from or inhibited or impaired in their performance of their duty to the accused so that counsel's duty to the court may thereby also be performed. This is why, in a real sense, for an accused to be represented by counsel acting under a conflict of duties is more harmful to the interests of the accused and the interests of the administration of justice than an accused being unrepresented, in which event the trial judge would know that the accused is under a significant disadvantage.

141. Therefore the assumption of our adversarial system of justice is that an accused represented by counsel in a criminal trial has had the benefit of counsel promoting and protecting fearlessly and by all proper and lawful means the accused's best interests to the best of counsel's skill and diligence and that counsel may do and has done so without regard to counsel's own interest or to any consequences to counsel or to any other person (including a co-accused). The assumption is not readily displaceable on the basis that counsel's forensic decisions expose a failure to satisfy the minimum standard of skill and diligence required of counsel. This is because of the wide range of reasonably open forensic decisions available to counsel, which, in a case of alleged counsel incompetence, are to be evaluated without hindsight. It is this width of counsel's reasonably available forensic discretion which means that an accused's instructions to counsel will be relevant to, and possibly determinative of, an accused's claim that counsel's conduct resulted in a material error or irregularity by reason of counsel's alleged incompetence.¹⁸⁹ The assumption, however, is necessarily displaced by counsel acting under an irreconcilable conflict of duties as described. In such a case, where there is an irreconcilable conflict of duty and duty, an accused's instructions to counsel are immaterial; whatever those instructions might be, such instructions have been sought and given in an impermissible context of counsel's irreconcilable conflict of duty and duty. The effect of that circumstance is vitiating on the trial outcome unless it can be said that the trial outcome was inevitable.

142. Even if an accused could agree to their own best interests in their cause being subordinated to the best interests of a co-accused in a co-accused's cause, no accused can authorise counsel to act in a manner contrary to counsel's duty to the court to act in the interests of the administration of justice. And even if counsel also disclosed to the court that counsel had made "full disclosure" to an accused about counsel's conflict of duties and its consequences and had obtained from the accused "fully informed consent" for counsel to continue acting and to subordinate the accused's best interests in the accused's cause to a co-accused's best interests in the co-accused's cause, those events would do no more than put the court on notice that counsel is subject to an irreconcilable conflict between duty (to the co-accused) and duties (to the accused and to the court), a circumstance which the court should not permit to continue in the interests of the administration of justice.

143. An accused's best interests in the accused's cause would be so subordinated if counsel acting for the accused is prevented from or is in any way inhibited or impaired in conducting the accused's cause because of the potential consequence of doing so on the best interests of a co-accused for whom counsel also acts. Whether or not there has been any such prevention, inhibition or impairment, in common with the question of the existence of a conflict of duties, is to be determined objectively by the court, without deference to the subjective views of counsel. This must be so as a counsel who does not perceive a conflict of duties thereby cannot perceive the potential effects of the conflict, including any resulting impermissible subordination of one co-accused's interests to another. As observed by Burger CJ in Holloway v Arkansas,¹⁹⁰ "in a case of joint representation of conflicting interests the evil ... is in what the advocate finds [themselves] compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process".¹⁹¹ That the compulsion is experienced but not recognised by counsel to be a result of the conflict of duty and duty is the essence of the problem against which the law guards.

144. The United Kingdom's Bar Standards resolve the problem by prohibiting counsel from acting for more than one client unless counsel is able to act in the best interests of each client as if each client were counsel's only client and obtains the client's informed consent to the conflict of interest or real risk of such a conflict of interest arising.¹⁹² In other words, the United Kingdom's Bar Standards recognise that a client can never give and counsel can never obtain a client's consent to counsel subordinating the client's best interests to another client's best interests. The scope for informed consent to operate, accordingly, is confined to a case in which the conflict of interest does not affect counsel's capacity to act in the best interests of each client as if each client were counsel's only client.

145. As the facts of the present case expose, even assuming that trial counsel could have "fully disclosed" to the appellant the consequences of trial counsel being subject to the conflict of duties to which the circumstances of this case gave rise, real world considerations expose the "practical injustice"¹⁹³ of accepting that the appellant could have given to trial counsel "fully informed consent" to continue acting in these circumstances.

The events giving rise to trial counsel's conflict of duties

146. The appellant and a co-accused were each charged with conspiring to traffic a commercial quantity of a controlled drug and dealing with the proceeds of crime, charges to which they each would plead guilty. The appellant and the co-accused were committed for sentence in the District Court. The appellant and the co-accused were represented by the same trial counsel at the trial on sentence. A document recording Agreed Facts was signed by the appellant and the co-accused before the trial on sentence. The Agreed Facts recorded that the appellant "sourced drugs for and received drugs from the group" involved in the conspiracy for payment. The appellant was involved in six drug transactions between May 2014 and April 2015 in respect of "20kg MDMA and 3kg Methamphetamine". The appellant's proceeds of crime offence related to an amount of $957,218.

147. The Agreed Facts recorded that the co-accused "stored drugs and cash for the group", which "were made available to other group members". The co-accused acted as "the storeman of cash and drugs for the group in return for a wage" and was involved in preparing the drugs for sale. He was "not a stakeholder in the drugs or cash that he stored". He set up a company "to store and on request make drugs available to others", using the company to lease a warehouse for these purposes. He "received instructions to either receive or make available or weigh a quantity of the drugs or count an amount of cash", was "directed to meet a courier ... who conveyed the drugs/cash to and from other parties", "conducted stocktakes of drugs and audits of cash held for the group and reported back to members of the [group]", and "also delivered drugs and cash and made collections from time to time when requested". The co-accused was involved in seven drug transactions between August 2014 and April 2015 in respect of "21kg MDMA and 9.18kg Methamphetamine". The co-accused's proceeds of crime offence related to an amount of some $1,785,000.

148. Before the trial on sentence the Crown filed written submissions signed by two counsel "on behalf of the CDPP". Those submissions said, amongst other things, that in "determining the appropriate sentence to be imposed, it is necessary to consider what each of the offenders actually did in committing the offences". By reference to the Agreed Facts, the Crown submitted in writing in respect of the trafficking offences that the:

"objective seriousness of each of [the appellant's] and [the co-accused's] conduct for the trafficking offences falls within a broad mid-range for offences of their type, with that of [the co-accused] ... approaching the higher end of the mid-range and that of [the appellant] falling within the mid-point of the mid-range for an offence of its type".

149. By reference to the Agreed Facts, the Crown submitted in writing in respect of the proceeds of crime offences that:

"the conduct for each offender falls into the high range for an offence of its type, noting the offence to be taken into account in relation to [the co-accused] is a more serious offence than the offence to be taken into account with respect to [the appellant]. In the case of [the co-accused], while the quantum involved is 'only' almost twice the statutory for an offence of its type, he has a deep involvement with the criminality of the offending conduct in that he was running the syndicate's money laundering cover business. In the case of [the appellant], the quantum involved is just below the statutory threshold beyond which he would have been guilty of the most serious of the money laundering offences."

150. In respect of the appellant, the Crown submitted in writing that he "was an entrusted member within the syndicate[] who had the ability to source and received drugs from both syndicate and non-syndicate members" and was "not ... a street level dealer". As the Crown put it, the appellant: (i) was involved in the "negotiations of price per kilogram of the MDMA and Methamphetamine"; (ii) was responsible for "sourcing prohibited drugs from others outside the syndicate members"; (iii) had "access to funds to pay for prohibited drugs from his own resources/contact[s] but also was entrusted to be provided funds by the syndicate members"; (iv) had "possession of an encrypted blackberry with which he would/could covertly communicate with other members of the syndicate"; and (v) acted "for financial reward which increases its objective seriousness and is an aggravat[ing] factor".

151. In respect of the co-accused, the Crown submitted in writing that he: (i) was involved in storing, packaging, weighing, collecting, delivering, stocktaking, quality inspecting, and receiving funds for prohibited drugs; (ii) had "access to funds to pay for prohibited drugs"; and (iii) had "possession of an encrypted blackberry where he would/could covertly communicate with other members of the syndicate". The Crown's submissions in writing said that of significance was that the co-accused "also had control and operation of a business ... for the benefit of the syndicate. The sole purpose of the business was to store and distribute prohibited drugs and proceeds of crime for the ... group. [The co-accused's] business concealed the group's criminal activities by having a website, corporately branded uniforms, email accounts, an ABN, bank accounts, back to base alarm monitoring, invoice books and invoices with false customer and work details." He acted "in the expectation of receiving a substantial financial reward".

152. In dealing with the issue of parity of sentence between the appellant and the co-accused, the Crown submitted in writing that the co-accused "should receive a more substantial penalty than ... [the appellant] for a number of reasons". Those reasons included: (i) the quantity of drugs trafficked for which the appellant was being sentenced being less than the quantity of drugs trafficked for which the co-accused was being sentenced; (ii) the maximum penalty for the proceeds of crime offence for which the appellant was being sentenced being less than the maximum penalty for the proceeds of crime offence for which the co-accused was being sentenced (20 years compared to 25 years); (iii) the amount of money involved in the proceeds of crime offence for which the appellant was being sentenced being less than the amount of money involved in the proceeds of crime offence for which the co-accused was being sentenced ($957,218 compared to $1,785,000); (iv) the number of drug transactions for which the appellant was being sentenced being less than the number of drug transactions for which the co-accused was being sentenced (six compared to seven); and (v) the appellant having a less extensive prior criminal record than the co-accused.

153. At this point, the potential for the conflict between the best interests of the appellant and the best interests of the co-accused became an actual conflict of interest which was real (indeed, substantial) and not theoretical or fanciful. The conflict manifested itself in the circumstance that the Crown had submitted in writing that in comparing the conduct of the appellant and the co-accused: (i) the objective seriousness of the appellant's trafficking offence was within the mid-point of the mid-range for offences of that type and the objective seriousness of the co-accused's trafficking offence was approaching the higher end of that mid-range; (ii) the objective seriousness of both the appellant's and co-accused's proceeds of crime offences were in the high range for offences of this type, with the co-accused's offence being more serious than that of the appellant; and (iii) the principle of parity indicated that the co-accused should receive a more substantial penalty than the appellant for the reasons discussed above.

154. The Crown contended in this appeal that the written submissions of the Crown's trial counsel involved a "mischaracterisation" of the "relative culpability or roles" of the appellant and the co-accused and, in this regard, were not "available" submissions to be made given the terms of the Agreed Facts. The object of this contention was to support the Crown's position in this appeal that no conflict of interest arose between the appellant and the co-accused. Putting the Crown's position in this appeal another way, no counsel acting consistently with their duty to the court to act independently in the interests of the administration of justice and their duty to a client only to advance their client's cause by "all proper and lawful means"¹⁹⁴ could have done other than reject the Crown's written submissions as to the objective seriousness of the offences committed by, and relative culpability of, the appellant and the co-accused. That is, the Crown in this appeal contended that, to the contrary of the Crown's written submissions to the sentencing judge, the only reasonably arguable position was that the objective seriousness of the appellant's offending was greater than the objective seriousness of the co-accused's offending and therefore that the appellant's culpability also exceeded that of the co-accused.

155. The Crown submitted in this appeal that this followed from the fact that in a case such as the present, where co-accused had been convicted for the same offences arising from the same criminal drug enterprise, it was necessary for the sentencing judge to consider the principle of parity having regard to each accused's "levels of participation in the criminal enterprise".¹⁹⁵ In respect of those levels of participation, it has been said, for example, that (i) "[t]hose low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy – in a drug importation conspiracy, without couriers, no drug could or would be imported – they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward"; whereas (ii) "[b]y contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable".¹⁹⁶

156. The Crown's submission in this appeal that its own trial counsel mischaracterised the relative objective seriousness of the offences of the appellant and the co-accused and their consequential relative culpability in a way which was not reasonably available on the Agreed Facts must be firmly rejected. That submission is inconsistent with general principles including: (i) the proposition that for a sentencing judge to categorise the roles played by several accused in a drug conspiracy "may be a convenient shorthand method of describing the facts of particular cases" but "should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate";¹⁹⁷ (ii) the law's general acceptance that the "discretion retained by counsel in the running of a case is very wide";¹⁹⁸ and (iii) the high bar which should be applied to the characterisation of a forensic decision as not reasonably open or not reasonably available on the evidence.

157. Further, the Crown's submission in this appeal that Crown trial counsel mischaracterised the relative objective seriousness of the offences of the appellant and the co-accused in a way which was not reasonably open on the Agreed Facts is inconsistent with the scope for forensic decision-making which the Agreed Facts permitted. That it can be said that the Agreed Facts would have permitted the Crown to submit to the sentencing judge that the appellant's offending was objectively more serious than that of the co-accused (for example, because the appellant was a form of freelance supplier for profit to the group, whereas the co-accused was an employee being paid a wage by the group for storing the drugs) may be accepted. The relevant point, however, is that the Agreed Facts also permitted the Crown to submit, properly and lawfully and as counsel for the Crown did in the written submissions, that the co-accused's offending was objectively more serious than that of the appellant and called for more serious punishment because, for example: (i) the co-accused was responsible for the fraudulent scheme whereby the criminal syndicate's activities were presented as lawful commercial activities, thereby enabling the conspiracy to continue, whereas the appellant was only a supplier to the criminal syndicate; (ii) the co-accused actually dealt with the drugs (by storage, weighing, quality control and distribution) over an extended period whereas the appellant ceased dealing with the drugs on supply; and (iii) the co-accused was the criminal syndicate's "bagman", holding and auditing the cash for the criminal syndicate as a whole.

158. If it was reasonably open to the Crown counsel to make those submissions, which it was, it was also necessarily reasonably open to any counsel for the appellant to adopt those submissions. That is, in terms of r 35, it would have been "proper and lawful" for counsel for the appellant to adopt the Crown's written submissions about the objective seriousness of the offending of the appellant and the co-accused and their relative culpability. And that is what matters in this case.

159. It is apparent that trial counsel for the appellant and the co-accused was instructed to prepare written submissions on their behalf in response to the Crown's written submissions. What occurred exposes the reality of trial counsel's conflict of duties and the impossibility of trial counsel fulfilling his duty to act in the best interests of the appellant, his duty to act in the best interests of the co-accused, and his duty to the court to act independently in the interests of the administration of justice. It also exposes the impossibility of trial counsel making "full disclosure" to the appellant of the conflict and its consequences in order to obtain the appellant's supposedly "fully informed consent" to what occurred.

160. That trial counsel may be inferred to have subjectively believed that he was making the correct or legally preferable submission about the relative objective seriousness of the offending of the appellant and the co-accused is immaterial because it is that very state of mind which is the result of the conflict of duties. Assume a counsel had been acting for the appellant alone. On receipt of the Crown's written submissions, it would have been manifestly open and obvious to that counsel, unaffected by any duty to the co-accused, that to adopt the Crown's submissions was a proper and lawful means of promoting and protecting the best interests of the appellant. But trial counsel was not acting for the appellant alone. He was acting also for the co-accused. If trial counsel did not respond to the written submissions of Crown counsel by setting out his view as to the correct or preferable position, the disadvantage to the co-accused would have been obvious. But that is the problem. Not so obvious, but no less important, is that had trial counsel been acting only for the appellant, any disadvantage to the co-accused would have been irrelevant to trial counsel's decision-making. If trial counsel had been acting only for the appellant, it is inconceivable that trial counsel would have informed the appellant that Crown counsel's written submissions were wrong, including by submitting that the co-accused "should receive a more substantial penalty than ... [the appellant] for a number of reasons", and that trial counsel was going to instead submit to the sentencing judge that the appellant's offending was in fact more objectively serious than the co-accused's offending, with the almost inevitable consequence that the appellant should receive a more substantial penalty than the co-accused.

161. The relevant question that had to be asked by counsel in the circumstances of this case was, having regard only to the best interests of the appellant in the appellant's cause, could counsel adopt the position of the Crown consistent with counsel's duty to the court to act independently in the interests of the administration of justice and duty to the appellant to promote and protect the appellant's best interests to the best of counsel's skill and diligence and without regard to the interests of counsel or of any other person, including the co-accused. If that essential question had been asked, the only answer available to counsel would have been that counsel could have adopted the position of the Crown consistent with counsel's duties to the appellant and to the court in the appellant's cause, but not consistently with counsel's duties to the co-accused and to the court in the co-accused's cause. The conflict of duties was therefore irreconcilable. Trial counsel could not continue to act for the appellant and the co-accused.

162. What in fact occurred, however, was that trial counsel for the appellant and the co-accused filed written submissions in which trial counsel said that the appellant's offending "falls toward the bottom of the midrange" of objective seriousness whereas the co-accused's offending "falls just below the hypothetical midrange of offending". Further, the submissions continued that the "Court would conclude, contrary to the Crown's written submissions ... that [the co-accused] fell just below the midrange of offending while [the appellant] would be placed toward the bottom of the midrange of offending" (emphasis added).

163. At the trial on sentence itself, one counsel who had prepared the written submissions for the Crown appeared and trial counsel for the appellant and the co-accused appeared. During submissions concerning the co-accused, the following exchange occurred (emphasis added, and noting that the appellant is "Mr Farrugia" and the co-accused is "Mr Kanmaz" in this and the following exchanges, and that their joint trial counsel is referred to as "TC"):

"[TC]: One point of tension between the parties is as to the objective seriousness of Mr Kanmaz. It seems the parties are not quite aligned, but more aligned with Mr Farrugia. The Crown says, with respect to Mr Farrugia, you'd find him in the mid of the broad mid-range. My submission is that you'd find him towards the bottom of that broad range, and I'll get to his reasons at another time, but with respect to Mr Kanmaz, the Crown position is that Mr Kanmaz would be within the broad mid-range but towards the top end. My submission is he'd fall below the mid-range, and if your Honour is of that view when looking at him with respect to –

HIS HONOUR: You agree, though, that Mr Kanmaz is more culpable than Mr Farrugia, don't you?

[TC]: This is the difficulty. Both fall at a particular zone within the hypothetical ranges, but –

HIS HONOUR: I just want to check I've got your submissions right. In your submissions, don't you agree that Mr Kanmaz is more culpable than Mr Farrugia?

[TC]: No, I say the opposite.

HIS HONOUR: Do you? You say the opposite of what the Crown says.

[TC]: The Crown says Mr Kanmaz is more culpable than Mr Farrugia, and my submission, unless I've articulated it wrongly, Mr Kanmaz is below.

HIS HONOUR: Let's go to that because I don't want to misunderstand something from the very beginning.

...

[TC]: And the reason I say that your Honour would conclude that he's [Mr Kanmaz's] lower [than Mr Farrugia], ... [explains that Mr Kanmaz is at the bottom of the hierarchy of the criminal syndicate, which does not include Mr Farrugia as a member]".

164. Counsel appearing for the Crown was then involved in this exchange with the sentencing judge (emphasis added):

"HIS HONOUR: Can we start with objective criminality?

[Crown]: Yes.

HIS HONOUR: You have them round the other way from [trial counsel for Mr Kanmaz and Mr Farrugia]; why?

[Crown]: I don't know that I expressly do, your Honour. Your Honour is referring to para 19 of the Crown's submissions, which is perhaps the appropriate starting point about which we talk about the level of objective seriousness in relation to each of the offending.

HIS HONOUR: You say Kanmaz is approaching the higher end of the mid-range, Farrugia is falling in the midpoint of the mid-range, so you say Kanmaz is objectively worse than Farrugia. [Trial counsel for Mr Kanmaz and Mr Farrugia] says the opposite.

[Crown]: Yes.

HIS HONOUR: Who's right?

[Crown]: I think I would appropriately concede orally now that [trial counsel for Mr Kanmaz and Mr Farrugia] is right about that, and I can articulate reasons why, which perhaps might –

..."

165. During submissions concerning the appellant, this exchange occurred between trial counsel for the appellant and the co-accused and the sentencing judge (emphasis added):

"HIS HONOUR: Nor have you dealt with parity.

[TC]: Well my submission with respect to parity is I think, as I was indicating on a previous occasion, if Mr Farrugia is someone who is towards, as we submit, the bottom end of the mid broad range, Mr Kanmaz is below that for all the reasons that I submitted on the previous occasion. He is a wage earner. And that's categoric. I mean when I brought your Honour to all the messages he was not a person that had a stake in the drugs. And in the agreed facts you'd not find anyone really lower than him as far as the group when you look at ... whoever else may have been involved, it's obvious that the man – and the man that bore the risk with respect to [the company], with respect to holding onto the things, having them available, and it was completely all under direction.

Your Honour is not going to find anything where he's actually stating and doing something unilaterally or with autonomy. And it's for those reasons I say he falls below the mid. I accept that he's not right at the bottom because he is worth of offending. Yes, it's a significant operation, but as far as sophistication goes your Honour's not going to find these men have brought about, managed, administered, or set up the sophistication. Especially Mr Kanmaz, he's someone that operated at the bottom rung of it. And it's for that reason that I submit that he'd be below Mr Farrugia on that. And I think there was an exchange on that particular point on the last occasion.

HIS HONOUR: Yes, the crown has changed its mind from its written submissions.

[TC]: As I understand it.

HIS HONOUR: Yes."

166. The appellant was sentenced for the drug conspiracy offence to a period of imprisonment of 11 years with a non-parole period of seven and a half years. The co-accused was sentenced for the drug conspiracy offence to imprisonment for nine years with a non-parole period of six and a half years. In each case, the sentencing judge took into account the appellant's and co-accused's offences of dealing with proceeds of crime in accordance with s 16BA of the Crimes Act 1914 (Cth).

The conflict of duties in this case

167. That the sentence of imprisonment imposed on the appellant was for a materially longer period than the sentence of imprisonment imposed on the co-accused is no doubt the reason the appellant sought leave to appeal his sentence. That fact, however, is relevant only because it is the circumstance from which it may be inferred that the sentencing judge accepted the written and oral submissions of trial counsel for the appellant and the co-accused and the oral submissions of counsel for the Crown that the objective seriousness of the offences committed by the appellant was greater than the objective seriousness of the offences committed by the co-accused so that the culpability of the appellant was also greater than the culpability of the co-accused. Those common submissions having been made, it was inevitable that the sentencing judge would have given them weight in discharging the function imposed on the sentencing judge by s 16A(1) of the Crimes Act that "[i]n determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence".

168. No speculation is required or should be entertained about what otherwise might have occurred between trial counsel and the appellant, and certainly not because the appellant did not waive legal professional privilege over communications with his trial counsel – a forensic decision not ultimately challenged by the Crown below and not the subject of this appeal. Even if those communications purportedly included "full disclosure" of the conflict of duties by trial counsel to the appellant and "fully informed consent" by the appellant to trial counsel to continue to act by subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause, that circumstance remained undisclosed to the sentencing judge. The sentencing judge could not have known that trial counsel was acting on that basis. The sentencing judge was entitled to assume that, in our adversarial system of justice, trial counsel was promoting and protecting fearlessly and by all proper and lawful means the appellant's best interests in the appellant's cause without regard to any consequences to, relevantly, the co-accused. But in this case, that assumption was wrong.

169. The required answer emerges from the circumstances that trial counsel owed a duty to the appellant to act in the best interests of the appellant in the appellant's cause, a duty to the co-accused to act in the best interests of the co-accused in the co-accused's cause, and a duty to the court to act in the interests of the administration of justice. Trial counsel could not simultaneously discharge these three duties in circumstances where the Crown's written submissions manifestly exposed that there were reasonably available arguments to be made either that the appellant's offending was less objectively serious than the co-accused's offending or that the co-accused's offending was more objectively serious than the appellant's offending and provided an obvious opportunity to advance such a case in the best interests of the appellant in the appellant's cause.

170. Trial counsel in fact did not discharge two of these three duties. As to the duty owed to the appellant, by reason of the conflicting duties trial counsel did not put a reasonably arguable and thus proper and lawful submission and thereby did not promote and protect fearlessly and by all proper and lawful means the appellant's best interests to the best of counsel's skill and diligence without regard to the consequences for, relevantly, the co-accused, being a duty which exists both at common law and under r 35 of the Uniform Barristers Rules. As to the duty owed to the sentencing court, by reason of the conflicting duties trial counsel could not "exercise the forensic judgments called for during the case independently"¹⁹⁹ (of, relevantly, the interests of the co-accused) as required by the common law and r 42 of the Uniform Barristers Rules and thereby could not act in the interests of the administration of justice as required by the common law and r 23.

171. As noted, that the available evidence does not extend to the communications between the appellant and trial counsel is immaterial because of trial counsel's overriding duty to the court to act independently in the interests of the administration of justice. However, it is also the case that the duty trial counsel owed to the appellant did not enable trial counsel to purport to "fully disclose" to the appellant the conflict of duties and its consequences or the appellant to purport to give trial counsel "fully informed consent" to continue to act for the appellant by subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause.

172. It goes nowhere that (new) counsel for the appellant on the application for leave to appeal and appeal against sentence in the Court of Criminal Appeal conceded that: (i) the appellant was present at the hearing and would have known that his trial counsel was also appearing for the co-accused; and (ii) the Court of Criminal Appeal was "entitled to infer that the [appellant] was advised in advance [by trial counsel] that his criminality or culpability would be pitched at a certain level, above that of [the co-accused], and that the [appellant] acquiesced in that". For one thing, the duties of trial counsel to the appellant and to the sentencing court were for trial counsel to satisfy and were not amenable to waiver by the appellant to the extent of trial counsel subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause. For another, even if trial counsel could have purported to "fully disclose" to the appellant the conflict of duties and obtained the appellant's purported "fully informed consent" to counsel so acting, the conceded matter does not come close to either "full disclosure" or "fully informed consent".

173. A cursory consideration of what "full disclosure" and "fully informed consent" might look like on the facts of this case is instructive. It exposes why these doctrines relevant to general fiduciary obligations cannot prevail over the duty of counsel to act in the best interests of an accused in the accused's cause as if the accused is counsel's only client and, if that is not possible by reason of counsel's simultaneous duty to act in the best interests of a co-accused in the co-accused's cause as if the co-accused is counsel's only client, that counsel has an insuperable conflict of duties and thereby cannot fulfil counsel's duty to the court to act in the interests of the administration of justice.

174. "Full disclosure" of the relevant circumstances would have required trial counsel to inform the appellant that: (i) although it was reasonably arguable for him to submit that the appellant's offending was less objectively serious than that of the co-accused so that the appellant was less culpable than the co-accused and the Crown had so submitted in writing, trial counsel considered that to be wrong and intended to submit that the appellant's offending was more serious than that of the co-accused; (ii) the likely consequence of that submission would be that a lengthier sentence of imprisonment would be imposed on the appellant than the co-accused; (iii) this consequence would be contrary to the best interests of the appellant in the appellant's cause; (iv) trial counsel so acting would mean that trial counsel would be subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause, contrary to trial counsel's duties to the appellant and to the court in r 35 and rr 23 and 42 respectively of the Uniform Barristers Rules (on this assumption, at least without obtaining the appellant's "fully informed consent" to this occurring); (v) the appellant could continue to retain trial counsel on this basis or could retain separate counsel who would be bound to "promote and protect fearlessly and by all proper and lawful means the [appellant's] best interests to the best of the barrister's skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person [including the co-accused]", which would include such counsel likely adopting the Crown's written submissions about the objective seriousness of the offending of the appellant and the co-accused and their relative culpability including that the co-accused "should receive a more substantial penalty than ... [the appellant] for a number of reasons"; and (vi) if the appellant continued to retain trial counsel then trial counsel would have to inform the court of counsel's conflict of duties and that the appellant had provided "fully informed consent" to trial counsel acting under the conflict, in accordance with the appellant's instructions to do so, to enable the court to determine if trial counsel's conflict was such as to empower or require the court to intervene to prevent trial counsel from acting other than for the co-accused in the interests of the administration of justice.

175. "Full disclosure" of this kind to the appellant could not have occurred. Further, trial counsel did not inform the sentencing judge that he had obtained the "fully informed consent" of the appellant (and the co-accused) to act under the conflict of duties which trial counsel had resolved by subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause. Nor, in reality, is it remotely conceivable that trial counsel in fact recognised the true nature and consequences of the conflict of duties because had trial counsel done so it would have been obvious that trial counsel could not continue to act for the appellant.

176. Accordingly, the overwhelming likelihood on the evidence is that trial counsel did not recognise the true nature and consequences of the conflict of duties and therefore did not recognise that trial counsel was impermissibly subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause. That the Crown's written submissions about relative objective seriousness of the offending and relative culpability were inconsistent with trial counsel's genuinely held views, as discussed, is immaterial. On retainer by the appellant, the obligation of trial counsel was to "promote and protect fearlessly and by all proper and lawful means the [appellant's] best interests to the best of [trial counsel's] skill and diligence, and do so without regard to his or her own interest or to any consequences to ... any other person [including the co-accused]". But for the conflicting duty that trial counsel owed to the co-accused, it would (or should) have been readily apparent that adopting the written submissions of the Crown as to the relative objective seriousness of the offences of the appellant and the co-accused and their relative culpability was a "proper and lawful means" to act in the appellant's best interests in the appellant's cause.

177. To conclude, as the Court of Criminal Appeal did, that this reasoning impugns the "ethics" of trial counsel on the mere basis that some other submission "could" have been made, when trial counsel made "legitimate submissions concerning the role of the offenders and their objective criminality",²⁰⁰ misses the point. One reason the law protects against legal representatives acting for clients whose interests conflict is that if a conflict of interest is not recognised in its true nature and with its true consequences, the legal representative is disabled from appreciating the effect of the conflict on their duties and their decision-making in discharge of their duties.

178. Further, this is not a case in which trial counsel's ethics are being impugned. As explained, the overwhelming likelihood on the facts is that trial counsel did not recognise the true nature and consequences of the conflict of duties arising from the appellant and co-accused's conflict of interest in their respective causes. Nor is this a case in which trial counsel merely "could" have made another submission. The written submissions for the Crown made clear that a submission in the best interests of the appellant in the appellant's cause was reasonably available to be adopted. Any reasonably competent independent counsel not subject to the blinkering effect of the conflicting duty to the co-accused would have seen that adopting the Crown's written submissions on behalf of the appellant was in the appellant's best interests in the appellant's cause and a proper and lawful means of promoting and protecting the appellant's interests. Even if the Crown had changed its position during the oral hearing without trial counsel for the appellant and co-accused having urged that course, independent counsel could have continued to submit that the Crown's written submissions were to be preferred.

179. Nor is it to the point that trial counsel made "legitimate submissions". As noted, the submissions trial counsel made undoubtedly represented a view of the Agreed Facts which was reasonably available, but so did the written submissions for the Crown. The problem with the submissions trial counsel made is that they were an outcome of counsel's irreconcilable conflict of duties, which had been impermissibly resolved by subordination of the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause, unwittingly by trial counsel and unbeknownst to the sentencing judge.

180. It is also immaterial that the Court of Criminal Appeal considered that the submissions trial counsel made to the sentencing judge about the relative objective seriousness of the offending and the culpability of the appellant and the co-accused were "correct", which, the Court of Criminal Appeal said, was "no doubt" why the Crown and sentencing judge agreed with them.²⁰¹ The relevant test in this case is not whether the appellate court agrees with the submissions that trial counsel put. It is whether those submissions were put under a conflict of duties which could realistically have affected the outcome.

181. For the reasons given, the required answer is that the submissions were put under a conflict of duties and the existence of that conflict realistically could have affected the sentence that was imposed on the appellant. That is because the sentence that could have been imposed had trial counsel not subordinated the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause could well have been materially less than in fact imposed and still within a reasonable range for the offences. That is, in practical terms, having retained counsel to appear, the appellant lost the opportunity to have counsel make proper and lawful submissions in the best interests of the appellant in the appellant's cause, that the appellant's offending was objectively less serious than that of the co-accused. The appellant thereby lost the opportunity to have a case made that the appellant's culpability was less than that of the co-accused and thereby that the appellant's sentence should be less than that of the co-accused.

182. For these reasons, on the appellant's appeal against sentence "some other sentence, whether more or less severe is warranted in law and should have been passed" in accordance with s 6(3) of the Criminal Appeal Act. The sentence that should have been passed was a sentence not the result of a trial on sentence which was subject to the irregularity of trial counsel acting under a conflict of duties impermissibly resolved by trial counsel subordinating the best interests of the appellant in the appellant's cause to the best interests of the co-accused in the co-accused's cause. In the circumstances, that irregularity was material in that it could realistically have affected the sentence imposed on the appellant. In the terms of s 6(3) of the Criminal Appeal Act, the sentence which the sentencing judge imposed must be quashed. The further issue which arises in this case is how ss 5(1)(c), 6(3) and 12(2) of the Criminal Appeal Act operate thereafter.

Next step

183. The relevant provisions of the Criminal Appeal Act are in these terms:

"5 Right of appeal in criminal cases

(1) A person convicted on indictment may appeal under this Act to the court –

...

(c) with the leave of the court against the sentence passed on the person's conviction.

...

6 Determination of appeals in ordinary cases

...

(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

...

12 Supplemental powers of the court

...

(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made."

184. The appellant contended that as he had been denied an opportunity for a fair trial before the sentencing judge – a contention which must be accepted – the appropriate consequential order following quashing of the sentence imposed on the appellant was an order under s 12(2) of the Criminal Appeal Act to remit the matter of sentence of the appellant to the District Court.

185. The Crown submitted that, as observed in Betts v The Queen,²⁰² this Court has not considered "whether the Court of Criminal Appeal is empowered to remit the determination of an offender's sentence to the court of trial"²⁰³ rather than to "pass such other sentence in substitution therefor" as referred to in s 6(3) of the Criminal Appeal Act and this question is "controversial" and "might be a matter for consideration by the legislature".²⁰⁴ According to the Crown, the reasoning in Kentwell v The Queen²⁰⁵ is also relevant because there it was explained that "[i]n the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence."²⁰⁶ This means that "[w]hen a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh ... A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."²⁰⁷ According to the Crown, the Court of Criminal Appeal could re-sentence the appellant appropriately on the evidence.

186. The Director of Public Prosecutions (NSW), as intervener with leave, submitted that s 6(3) does not leave room for the Court of Criminal Appeal to remit the question of re-sentence as, a sentence having been quashed, that Court must determine for itself the sentence, whether more or less severe, warranted in law that should have been passed. While an accused is not ordinarily permitted to run a new case before the Court of Criminal Appeal, the Director submitted that "it is unlikely that an appellate court would consider an appellant to be bound by forensic decisions made in the course of a sentencing proceeding which relevantly miscarried due to unfairness".

187. In support of the position that s 6(3) left no room for remittal, the Director referred to supporting authority concerning an analogue provision in Victoria²⁰⁸ which was amended thereafter to enable the appellate court to remit a sentence to the first instance sentencing court.²⁰⁹ According to the Director, s 12(2) of the Criminal Appeal Act does not so operate because: (i) as noted in Betts v The Queen, the extrinsic material relevant to s 12(2) does not support that conclusion;²¹⁰ (ii) s 12(2) was intended to supplement the powers of the Court of Criminal Appeal, not to fundamentally alter its task when deciding an appeal; (iii) the language of s 6(3) is specific and mandatory compared to the language of s 12(2), which is general and permissive; and (iv) it is unlikely that the legislature would have left such an important issue to mere implication. The Director also submitted that if the Director's construction of ss 6(3) and 12(2) of the Criminal Appeal Act was not accepted then, in any event, the power in s 12(2) would be available only once this Court or the Court of Criminal Appeal on remittal had decided that some other sentence was warranted in law.

188. The Director's submissions must be rejected. Section 6(3) of the Criminal Appeal Act cannot be construed as mandating that the Court of Criminal Appeal, on determining that a sentence order has been made as a result of a material error or irregularity in the sentencing process, must then decide if some other sentence of a different kind or period must be imposed, and only then must quash the sentence imposed and thereafter impose the sentence that should have been imposed as warranted by law, even if the nature of the material error or irregularity means that the appellant has not had the opportunity of a fair hearing before the sentencing judge. If construed in that way, s 6(3) would be forcing the Court of Criminal Appeal to decide on the sentence to be imposed without the accused ever having had the benefit of the lost opportunity restored. Depending on the particular unfairness arising from the material error or irregularity, the legislation should not be construed as requiring the Court of Criminal Appeal to act in a manner which presents a real risk of perpetuating the effects of the material error or irregularity.

189. Even absent s 12(2) it is difficult to accept that the legislature intended s 6(3) to mean that the Court of Criminal Appeal "shall quash the sentence and pass such other sentence in substitution therefor" (emphasis added) even in a case where material error or irregularity is established but the error or irregularity itself has deprived the appellant of the opportunity to put the case to the sentencing judge which the appellant realistically could have put but for the error or irregularity. With s 12(2) there is no need for resort to implication. Its terms are clear and expansive. They provide to the Court of Criminal Appeal an appropriately wide discretion to remit a matter or issue to a court of trial for determination and, in doing so, to give any directions subject to which the determination is to be made.

190. It is not that, having found material error or irregularity in respect of sentence, the Court of Criminal Appeal must remit the matter of sentence to the sentencing court. The position remains that in most cases s 6(3) is to be applied in accordance with its apparent terms and that, in so doing, the basic principle is that "in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made."²¹¹

191. However, in some cases the Court of Criminal Appeal may consider that applying s 6(3) to impose the sentence that is warranted in law would either perpetuate injustice or be practically difficult so that the discretion in s 12(2) should be applied. A case in which the discretion in s 12(2) would have been appropriately exercised is a case such as the present in which the whole of the case for the appellant put to the sentencing judge was put by trial counsel subject to an irreconcilable conflict as between duty to the appellant and duty to the co-accused, as well as duty to the court, in circumstances where it is plain that counsel resolved that conflict by subordinating the appellant's best interests in the appellant's cause to the co-accused's best interests in the co-accused's cause. The appellant should not be subject to any persuasive or other onus to satisfy the Court of Criminal Appeal, or the District Court as the sentencing court, that he should not now be bound by forensic decisions trial counsel made on his behalf while under that conflict of duty.

192. The practice in New South Wales, as referenced by Hamill J in the decision of the Court of Criminal Appeal in this case, accords with this approach. Hamill J identified the categories of case in which s 12(2) had been applied in this way as including:²¹² (i) cases where a conviction has been quashed which impacts on an aggregate sentence or series of partially accumulated sentences; (ii) cases where a substantial amount of additional evidence is to be tendered and challenged in the re-sentencing exercise; (iii) cases where the evidence before the appellate court does not allow that court to resolve a disputed factual issue; (iv) cases where there has been such a significant irregularity that it might be said that the offender has not had a proper sentencing hearing at all; and (v) cases where an offence was included erroneously on a Form 1. The present case falls within category (iv).

193. The orders which should be made are that the appeal is allowed and order 2 made by the Court of Criminal Appeal on 9 April 2025 is set aside and in its place it is ordered that the appeal is allowed, the sentence quashed, and the matter remitted to the District Court for re-sentence of the appellant by a judge of that Court other than the sentencing judge.