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Parties: The Crown (Appellant)
Md Abu Shahadat Sarkar (First Respondent)
Asif Sarkar (Second Respondent)

Representation: Counsel:
C O’Donnell SC with D Berents (Appellant)
M England SC (First Respondent)
D Pace (Second Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Cth) (Appellant)
Olympus Law Partners (First and Second Respondent)

File Number(s): 2024/286662; 2024/434521

Publication restriction: Nil

EX Tempore JUDGMENT (revised)

1. THE COURT: This is a Crown appeal brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) (the CAA) from three interlocutory rulings of his Honour Judge Jeffreys (the primary judge) made on 9 June 2026 in the context of a District Court trial in which Mr Md Abu Shahadat Sarkar (the First Respondent) and his nephew, Mr Asif Sarkar (the Second Respondent) pleaded not guilty to several charges of advertising and charging fees for immigration assistance contrary to ss 281 and 285 of the Migration Act 1958 (Cth) (the Migration Act).

2. The alleged offending was said to have taken place between 2019 to 2021 and arose in relation to an education consultancy company, HBD Services, which the First Respondent owned and in which the Second Respondent was employed.

3. Counts 1 to 3 were that the First Respondent, contrary to s 285(1) of the Migration Act, advertised on a business website and on Facebook that HBD Services provided visa assistance to clients in circumstances where no employees or agents of HBD Services were registered migration agents. Counts 4 to 23 were that the First Respondent, contrary to s 281(2) of the Migration Act, received fees from HBD Services’ clients for the preparation and lodgement of visa applications by HBD Services’ employees who were not registered migration agents. Counts 24 to 30 were that the Second Respondent, contrary to s 281(2) of the Migration Act, charged HBD Services’ clients for preparing and lodging their visa applications in circumstances where he was not a registered migration agent.

4. A joint trial of three to four weeks was listed to commence on 25 May 2026 in the District Court. The Respondents were arraigned on the joint indictment on 26 May 2026 before the primary judge and on that day, each entered pleas of not guilty. Argument in relation to matters the subject of this appeal commenced on 26 May and proceeded until 9 June when the three impugned rulings were made.

5. The notice of appeal from the three rulings was filed on the morning of 11 June and listed urgently before this Court. An amended notice of appeal was filed by consent during the hearing. Written submissions were filed by the Crown and both Respondents. The Court has heard oral argument this morning and the trial is listed, at least for mention, at 10.00am tomorrow before Scully SC DCJ who we understand to be the new trial judge assigned to hear the matter.

6. The three impugned interlocutory rulings the subject of this appeal were as follows:

7. An order directing the Crown to elect as to whether the prohibited advertising the subject of Counts 1, 2 and 3 was direct or indirect on the basis that the Counts, as currently pleaded, were bad for duplicity (the duplicity ruling).

8. An order excluding the evidence of three witnesses who are current or former directors and/or principal solicitors of Parish Patience Immigration Lawyers, namely, Michael Jones, AHM Motasim Billah and Prasad Pahalawela, pursuant to s 146 of the Criminal Procedure Act 1986 (NSW) (the CPA) (the disclosure ruling).

9. An order excluding documentary evidence obtained during the execution of a search warrant at HBD Services’ business premises, pursuant to s 138 of the Evidence Act 1995 (NSW) (the Evidence Act) (the search warrant ruling).

10. The disclosure and search warrant rulings both related to the admissibility of evidence and thus the Crown was required to satisfy the threshold in s 5F(3A) of the CAA. That subsection provides that:

“The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.”

8. No similar threshold is required to be met in relation to the duplicity ruling, although Ms England SC, who appeared for the First Respondent, urged that the Court should take a conservative approach to permitting an appeal on what she characterised as being a question of practice and procedure.

Ground 1: the duplicity ruling

9. The appellate standard of review on this first ground of appeal relating to duplicity is the “correctness” standard: see Warren v Coombs (1979) 142 CLR 531; [1979] HCA 9. Whether or not a charge is duplicitous essentially turns on the proper construction of the relevant statutory provision creating the offence in the context of the section as a whole, and, where relevant, extrinsic material. Here, the relevant section is 285(1) of the Migration Act which provides:

“Subject to this section, a person must not directly or indirectly advertise that another person who is not a registered migration agent gives immigration assistance.”

10. The primary judge referred to the well-known decision of Bray CJ in Romeyko v Samuels (1972) 19 FLR 322; (1972) 2 SASR 529 at 552 (Romeyko) on the question of duplicity. There, his Honour said:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact [possesses] one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.”

11. Drawing upon that decision in his Honour’s duplicity ruling on 9 June 2026, the primary judge said:

“It seems to me in accordance with Romeyko v Samuels, it is quite clear that the physical element is either directly or indirectly advertising.”

His Honour then said in the following sentence:

“The physical element is advertise, so the construction in my view is not directly advertise or indirectly advertise.”

12. On its face, these two sentences appear to be in some tension. Putting that to one side, what is essentially involved is a question of characterisation. We differ from the characterisation given by the primary judge, essentially for the reasons given by the Crown in paras [41], [44], [46] and [48] of their submissions. Those paragraphs were as follows:

“[41] Section 285 of the Migration Act, and the similar provision in s 284, were introduced into that Act by the Migration Amendment Bill (No 3) 1992 and originally numbered s 114L and 114K respectively. The Explanatory Memorandum to the Bill at [22] shows that the legislative intent behind these provisions was directed to the mischief of impermissible ‘advertising’, expressed as a continuous concept. This is consistent with the heading to each section in the Migration Act. It is also consistent with the use of the term ‘advertising’ in ss 285(2), (3) and (4) to denote exceptions to the prohibition in s 285(1).

…

[44] A common sense reading of the verb ‘advertise’ as used in s 185 is that it is capable of comprising a course of conduct occurring over a period of time that may be extensive. This reading of s 285 is consistent with a long line of authorities that permit the charging in a single charge of one activity even though that activity may involve more than one act: Jemmison v Priddle [1972] 1 QB 489 per Lord Widgery CJ at 495; DPP v Merriman [1973] AC 584 per Lord Morris of Borth-y-Gest and Lord Diplock at 607.

..

[46] It is submitted that to advertise is clearly conduct which might involve one or more acts. It might be a single action or a course of conduct. Counts 1, 2 and 3 allege a course of conduct between dates. To the extent any latent ambiguity could be said to be involved in such a case, it is a matter for further particulars, which have been provided.

…

[48] The terms ‘directly or indirectly’ must be interpreted in the context of s 285 as a whole, and in the broader surrounding context of Part 3 of the Migration Act. Whilst the offence provision is contained in s 285(1), the remaining sub-sections outline various circumstances in which a person can engage in ‘advertising’ (or more accurately non-prohibited circumstances in which a person can engage in advertising that someone who is not a registered migration agent can give immigration assistance). In this way, the gravamen of the offence is advertising which occurs in certain circumstances (i.e. not being a registered migration agent). Given the manifold ways and means in which advertising can occur over time, the reference to ‘directly or indirectly’ is clearly intended to ensure that the prohibited physical conduct of ‘advertise’ is not construed in a way that is limited to overt positive representations by a person but is capable of applying in a broader scope of circumstances which might amount to a course of conduct.”

13. Applying the principles in Romeyko and the many other authorities to which the Court was referred in respect of duplicity, it is clear that the act sought to be prohibited by the offence in question is advertising. The means by which that advertising occurs, being direct or indirect, do not create two separate offences.

14. It follows, in our opinion, that the primary judge erred in finding Counts 1, 2 and 3 on the indictment were bad for duplicity and by finding that the offence in s 285(1) creates two offences. Accordingly, ground 1 of the amended notice of appeal should, in our view, succeed.

Section 5F(3A) of the CAA

15. As we have mentioned, the second and third grounds of appeal must pass a threshold set by s 5F(3A) of the CAA, namely that the decision or ruling in question eliminates or substantially weakens the prosecution case.

16. Section 5F(3A) was considered by this Court in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 (Shamouil). In that decision, Spigelman CJ, with whom Simpson and Adams JJ agreed, reasoned as follows in relation to the conditional right of appeal in s 5F(3A):

“[37] The Respondent’s submission which directs attention to the remaining Crown evidence — telephone, car, relationship, the name ‘Leonard’ — is a case that is of some substance. However, a clear forceful and unhesitating identification on the first occasion by the victim is evidence of particular force. Its absence will, in my opinion, ‘substantially weaken’ the Crown case. Even a case which is otherwise likely, even very likely, to succeed, may still be ‘substantially weakened’, if evidence of cogency or force is withheld.

[38] As noted above, counsel for the Respondent submitted that the evidence of identification was itself so weak that its absence could not be said to substantially weaken the Crown case. In my opinion, this approach is not appropriate.” (Emphasis added).

17. Spigelman CJ said that that approach was not appropriate, observing as follows:

“[39] The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to ‘the prosecution’s case’, to be considered as a ‘case’. This section is not concerned with the weight of the Crown’s evidence.

[40] This Court should determine whether or not a ruling on the admissibility of evidence ‘substantially weakens’ the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.” (Emphasis added).

We will return to the significance of those observations in the context of considering ground 3.

18. Spigelman CJ’s decision in Shamouil should not be taken to mean that the exclusion of evidence of “cogency or force” is required to satisfy the s 5F(3A) precondition: R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201 at [16].

Ground 2: the disclosure ruling

19. We now turn to the second ground of appeal relating to the disclosure ruling. The second ground of appeal is in the following terms:

“The trial judge erred by refusing to admit the evidence of Michael Jones, Motasim Billah and Prasad Pahalawela, pursuant to s 146 of the Criminal Procedure Act in circumstances where;

(a) The discretion in s 146 was not enlivened, and further and in the alternate to the extent there was any failure of the disclosure obligation the circumstances did not warrant the exclusion of the evidence.”

20. Ground 2 concerns the trial judge’s refusal to admit the evidence of Michael Jones, AHM Motasim Billah and Prasad Pahalawela (the Parish Patience evidence). Each of these individuals are either current or past employees or directors of Parish Patience Immigration Lawyers.

21. Each witness’ statement is dated May 2026 and was served within weeks or days of the commencement of the trial. This was so notwithstanding that the investigation commenced in August 2020.

22. The officer-in-charge, Annelyse Davison, gave evidence on the voir dire in respect of the delay in obtaining and serving this material. Following that evidence and submissions, the trial judge refused to admit the evidence pursuant to s 146(1) of the CPA. The Crown appeals from that ruling.

23. The jurisdictional threshold provided for under s 5F(3A) of the CAA has not been satisfied. Put another way, the appellant has not established that the exclusion of the evidence eliminates or substantially weakens the Crown case.

24. This determination is based on the following.

25. Firstly, the evidence of Ms Davison was that she had not pursued a line of enquiry with directors or employees of Parish Patience Immigration Lawyers, because she did not consider it a primary line of enquiry and it became less important as the investigation progressed. Ms Davison’s evidence was that there were other lines of enquiry pursued by her which resulted in obtaining the evidence in support of the elements of each charge.

26. Secondly, the trial Crown repeatedly stated that the Parish Patience evidence is relied upon by the Crown to rebut an anticipated defence by one or both Respondents. In that regard, the Crown has material apart from the Parish Patience evidence upon which it can rely to rebut a defence that involves an assertion that there was an affiliation between HBD Services and Parish Patience Immigration Lawyers, such as to give rise to an inference that the immigration assistance was provided by a registered migration agent employed by Parish Patience Immigration Lawyers.

27. Thirdly, it is at least arguable that some of the excluded evidence in fact supports an inference that there was an informal affiliation and relationship between HBD Services and Parish Patience Immigration Lawyers such that it cannot be argued that its exclusion substantially weakens the Crown case.

28. In all of the circumstances, the refusal to admit the evidence does not eliminate or substantially weaken the Crown case. In any event, the trial judge’s decision to exclude the evidence pursuant to s 146 of the CPA was correct, given the failure to obtain and disclose the evidence in accordance with the requirements for pretrial disclosure imposed under Chapter 3 Part 2 Division 3 of the CPA.

29. Accordingly, ground 2 is dismissed.

Ground 3: the search warrant ruling

30. We now turn to the third ground of appeal, which was that the trial judge erred in excluding evidence of information and records obtained from computers at unit 127, level 8, 267-277 Castlereagh Street, Sydney or email accounts pursuant to s 138 of the Evidence Act, in circumstances where;

(a) The discretion in s 138 was not enlivened; and (b) Further and in the alternative, to the extent there was any illegality or impropriety, the undesirability of admitting the evidence is outweighed by the desirability of admitting the evidence.

31. Section 138 of the Evidence Act provides as follows:

“(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

32. Unlike the second ground of appeal, the Court is comfortably satisfied that the threshold under s 5F(3A) is passed in respect of ground 3. The documents the subject of the primary judge’s ruling were extensively referenced in the Crown case statement as demonstrated in graphic form by a highlighted copy of that statement provided by senior counsel for the Crown to illustrate the point.

33. We accept the submission of Mr O’Donnell SC, who appeared for the Crown, that a significant number of the Counts would not be able to proceed if the s 138 ruling were permitted to stand. Ms England submitted that the Crown’s case was so weak, in any event, it could not be made weaker and so the ruling could not be said to “substantially weaken the prosecution’s case”. This argument was of the kind deprecated by Spigelman CJ in Shamouil. The focus is on the Crown case and the Court does not, in an interlocutory appeal of this kind, buy into the overall strength or weakness of that Crown case.

34. Having passed this s 5F threshold, it is to be noted that there are two aspects of s 138 of the Evidence Act. The first requires the establishment of illegality or impropriety. The second, assuming illegality or impropriety, involves a weighing exercise. At least the first strand attracts the “correctness” standard of appellate review. In this context, we differ from the primary judge and are not satisfied that a finding of impropriety, which his Honour characterised as involving reckless conduct, was warranted. A charge of impropriety is, of course, a serious one and attracts the application of principles from Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), reflected in s 140 of the Evidence Act.

35. Furthermore, if the relevant officers conducting the search were available for cross-examination, which they were, the requirements of Browne v Dunn (1893) 6 R 67 would ordinarily require charges of reckless impropriety to be put to them as a matter of procedural fairness. They were offered up for cross-examination by Crown counsel appearing before the primary judge but this invitation was not taken up.

36. But putting to one side those matters, the primary judge’s conclusion was premised on the belief that the officers inspecting the business premises had used a password to access computers at those premises which had been supplied by the First Respondent pursuant to an order under s 3LA of the Crimes Act 1914 (Cth) during an earlier search of his residence. It was held that this password should not have been used to access computers not used by him at the business premises and thus the primary judge said:

“The password which was provided by the accused, [the First Respondent], was in relation to computers used by him, not computers used by others.”

Shortly afterwards his Honour said:

“It seems to me that the use of the password given by the accused in accordance with the s 3LA order seems likely to have been used by the investigators at the business premises.”

37. These findings involved a number of assumptions that amounted, in our view, to impermissible speculation, especially bearing in mind the Briginshaw standard.

38. The password which the First Respondent had supplied at his residence was the password for his PC. That was reflected in a handwritten entry in a chronological account of steps taken during the search warrant. There was no evidence that it was a password to the business’s network or computers at the business premises, or that it had been used by the officers when accessing computers at the business premises.

39. Apart from the fact that this could have readily have been the subject of questioning of the police and Australian Border Force officers who were present at the time, the primary judge assumed that there was only one relevant password. There was other evidence recorded in handwritten notes before this Court and possibilities which were more likely or equally likely explanations as to how the officers gained access to the computers at the business premises, noting that the use of those computers was squarely within the terms of the search warrant executed at those premises. In other words, there was no opposition nor could there have been any opposition to the use of those computers, that use being squarely authorised by the search warrant. Rather, it was put that the impropriety arose from the misuse of a password which had been supplied by the First Respondent and only supplied in respect of computers used by him.

40. These other possibilities included the existence and provision of another and different password by one of the business’s employees, likely the Second Respondent. In this context, a similar but different password to that which had been supplied by the First Respondent at his residence was supplied by the Second Respondent in the course of or just prior to an interview of him by police. The volunteering of that different password by the Second Respondent or another employee and its subsequent use by police would not have been improper. Equally, the Second Respondent or another employee may well have given the officers access to the computers through simply opening up the computer on which the various excluded documents were located.

41. His Honour’s ruling also assumed that the First Respondent did not use the computer at the business premises which was interrogated by the police officers. He was, after all, the principal of the firm and it is not unreasonable to expect that he would have had access to the computers in the small business which he operated. If, which was not established, his own PC password was used to open or access the computer from which documents were obtained, that fact, namely that his password on this hypothesis opened that computer, rather than it having a unique password, would be consistent with him also having use of the computer.

42. Another issue which arose related to what were referred to as “Google Takeouts”. They involved accessing certain email accounts and copying those accounts or literally taking out from the Google Drive data associated with particular email names. There was evidence before his Honour and before this Court that express consent to take over those email accounts was provided by both the First Respondent and one of his employees, Mr Al-Rabbi.

43. The forensic investigator, Mr van der Graaf, whose detailed statement was tendered by the Crown before his Honour, explained that after those consents had been obtained, he proceeded to undertake the procedures needed to “Takeout” the data related to those email accounts. In other words, there was evidence that the access to those accounts was voluntarily given by those two gentlemen and some of the documents which the primary judge went on to exclude were documents which had been obtained from that process.

44. It does not seem to us that, in all the circumstances, that conduct could have been considered improper. Indeed, the opposite would seem to be the case. Nonetheless, the material that was produced as a result of Mr van der Graaf’s interrogation of various computers at the business premises was excluded by the primary judge in what the Crown characterised as an overbroad ruling. It is not necessary to go into further detail about the breadth of the ruling and whether it was overbroad because for the reasons given, the first limb or aspect of s 138, namely, the establishment of impropriety, should not have been found. Accordingly, it is not necessary to deal with the second aspect of ground 3, namely, on the assumption that impropriety had been established, the discretion - if it properly be characterised as a discretion - miscarried. For those reasons, the primary judge erred in holding that s 138 was engaged. It follows that ground 3 succeeds.

45. Accordingly, the orders of the Court are:

(1) Grounds 1 and 3 on the amended notice of appeal are upheld.

(2) Ground 2 on the amended notice of appeal is dismissed.

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