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Category: Principal judgment

Parties: Secretary of the Department of Education (NSW) (plaintiff)
Lamar Sarhan (defendant)

Representation: Counsel:
Ms N Wootton (plaintiff)
Solicitors:
Crown Solicitor’s Office (plaintiff)
Ms N El Badawi, NE Law & Associates (defendant)

File Number(s): 2025/00437804

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

Introduction

1. In this matter, by summons filed 12 November 2025, the plaintiff (the Secretary of the Department of Education) appeals pursuant to s 55(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against an order of Local Court Magistrate Tunks (the Magistrate), made on 16 October 2025 at Burwood Local Court dismissing a charge against the defendant, Ms Lamar Sarhan.

2. The defendant was acquitted of an offence of aiding and abetting the subjecting of a child to corporal punishment contrary to s 166(3)(a) of the Children (Education and Care Services) National Law (NSW). The Magistrate delivered a judgment containing reasons for the dismissal of the charge on 16 October 2025 (“Judgment”). As at the date of the alleged offence, s 166(3) of the Children (Education and Care Services) L**aw provided:

166 Offence to use inappropriate discipline

[…]

(3) A staff member of, or a volunteer at, an education and care service must not subject any child being educated and cared for by the service to—

(a) any form of corporal punishment; or

(b) any discipline that is unreasonable in the circumstances.

3. The defendant was charged with aiding and abetting the commission of an offence against that subsection by virtue of s 351B of the Crimes Act 1900 (NSW), or alternatively at common law. Section 351B provides:

351B Aiders and abettors punishable as principals

(1)Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of a principal offender.”

(2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender.

(3) This section applies to offences committed before or after the commencement of this section.

(4) This section applies to an indictable offence that is being dealt with summarily.

4. An appeal under s 56(1)(c) of the Crimes (Appeal and Review) Act can only be brought on a ground which involves “a question of law alone”. In the present case, the Magistrate expressly held that because the principal, Ms Haddad, had not been charged with or convicted of an offence against s 166(3)(a), the defendant could not, as a matter of law, be found guilty of aiding and abetting the principal’s commission of that offence. The plaintiff’s summons contends that conclusion was in error and contrary to principle, and, in particular, contrary to the High Court authority of Likiardopoulos v The Queen (2012) 247 CLR 465; [2012] HCA 37. This constitutes a question of law amenable to an appeal under s 56(1)(c): Commissioner of Police v Adam [2022] NSWSC 789 citing William**s v The Queen (1986) 161 CLR 278; [1986] HCA 88.

5. The plaintiff filed submissions in support of the appeal on 11 May 2026. The defendant has filed no submissions as she now consents to judgment in the plaintiff’s favour. It is now the joint position of the parties that the appeal should be allowed, on the basis that the Local Court erred in law in the way in which the plaintiff contends. It is the joint position of the parties that the decision of the Magistrate dismissing the charge should be set aside and the matter remitted to the Local Court to be heard and determined according to law.

6. Despite the lack of dispute between the parties, it is necessary for this Court to consider and determine the question of error for itself. For the reasons which follow, I agree that the Local Court erred in law.

Factual background

7. The following summary of the factual background is largely taken from the plaintiff’s submissions.

8. The prosecution arose out of an incident at an early learning centre in South Strathfield. Both Ms Haddad, who is referred to as the principal offender, and the defendant were at the time employed as staff members at the service. It was the prosecution case that on 4 May 2023, Ms Haddad slapped an infant child aged 13-14 months of age, who was in the care of the service, on the face. The child was crying and restrained in a bouncer chair at the time.

9. It was agreed between the parties in the Local Court proceedings that there was physical contact between Ms Haddad and the child. There was a dispute as to whether the contact amounted to a slap. The Magistrate found that what occurred was Ms Haddad slapping the face of the child and laughing or smiling as she did so on more than one occasion. His Honour said:

“I am satisfied the child continued to cry and was visibly distressed as the incident continued. I reject the submission there is an alternative way of describing the contact to the face of the child other than slapping. I find there is no nuance involved.”

10. Relevantly to the present question, Ms Haddad was not charged with an offence contrary to s 166(3)(a). She was charged by police with the offence of common assault and subsequently convicted of that charge after a plea of guilty.

11. The defendant recorded a video of the conduct of Ms Haddad on her mobile phone using the video messaging app, “Snapchat”. The recording was tendered before the Magistrate. The prosecution contended that the defendant’s conduct in (a) recording on her mobile phone Ms Haddad subjecting the child to corporal punishment, and (b) laughing while Ms Haddad was subjecting the child to corporal punishment constituted the intentional encouragement of Ms Haddad’s commission of the offence of subjecting the child to corporal punishment contrary to s 166(3)(a) of the Children (Education and Care Services) L**aw.

12. The prosecutor proceeded on the basis that it was necessary for the prosecution to establish as a matter of fact in the prosecution of the defendant that Ms Haddad had committed an offence against section 166(3)(a) of the Children (Education and Care Services) L**aw. The prosecution addressed in its closing address before the Magistrate each of the facts which were said to establish that Ms Haddad had committed an offence against s 166(3)(a) and then further submitted, as already summarised above, that the effect of the offender’s conduct was to encourage or assist in the commission of the principal offence.

13. The defendant submitted that the elements of assault and the elements of inflicting corporal punishment were fundamentally different; in particular, the former including no element of punishment or discipline. The defendant submitted that as a matter of law she could not be found guilty of aiding and abetting an offence of inflicting corporal punishment when Ms Haddad had neither been charged with nor convicted of that offence.

Findings of the Magistrate

14. Relevantly for present purposes, the Magistrate concluded that because Ms Haddad had not been charged or convicted of an offence against s 166(3)(a) of the Children (Education and Care Services) L**aw, the defendant could not, as a matter of law, be found guilty of aiding and abetting her commission of that offence. In his Honour’s reasons for judgment, the Magistrate referred to a number of authorities, including the High Court decisions of Osland v The Queen (1995) 156 CLR 473; [1985] HCA 29 and of Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29 (but did not refer to Likiardopoulos, noting that this was not a decision to which his Honour's attention had been directed).

15. The Magistrate’s conclusions on the issue were set out in his judgment as follows: [1]

“However, bearing in mind the authorities set out above as to a charge brought under s 351B being derivative, and not creating a discrete offence, I am unable to resile [from] the fact that whilst the actions of Ms Haddad as depicted on Snapchat are capable beyond reasonable doubt of proving a charge under s 166(3) of the Act, that is insufficient in the circumstances of the objection raised by the defence.

The principles that I have referred to set out in the very old case of Walsh v Sainsbury remain relevant. The later cases from the High Court on the issue support that as they refer in unison as to the offence. [emphasis in original]

Not wanting to labour the point, the only offence the principal, Ms Haddad was charged with was common assault. It follows that must be the offence to activate s 351B.

Whilst not the subject of evidence, it is common ground Ms Haddad was charged with common assault. Of course, evidence as to her conviction for that offence is inadmissible: Evidence Act 1996 ss 83 (exclusion subject to consent of third-party admissions) and 91 (exclusion of evidence of judgments and convictions).

It must be acknowledged both offences, being the corporal punishment and the assault allegations, are similar in character. They nevertheless involve different elements. The offences carry different maximum penalties.

It seems to me that although there may be evidence available that Ms Haddad also committed the offence under s.166(3) of the Act, the prosecution case did not proceed on that basis.”

16. His Honour held that because a charge brought under s 351B is derivative of a principal offence, it was necessary that “the offence” for which the accessory was said to be liable be the same “offence” as the offence for which the principal offender had been charged and convicted. His Honour concluded:

“Whilst it may appear incongruous on one view, it seems to me I have no alternative other than to conclude, based upon the authorities, that sequence 1 involves a degree of artificiality and is not derivative as required for an allegation of aid and abet.

In the absence of any authority to the contrary (and I do not mean that as a criticism to either party), I must agree with the submission by Ms Rodger.”

17. The Magistrate then concluded that for the reasons he stated, he had no alternative other than to find the defendant could not be lawfully convicted, and accordingly, dismissed the charge.

Consideration

18. It is not necessary to set out in extensive detail the applicable legal principles. A detailed treatment of the historical context for the rules governing criminal complicity may be found in recent decisions of the NSW Court of Criminal Appeal, including the judgment of the Court in Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66 and the judgment of Leeming JA (with whom Wright and Rigg JJ agreed) in DPP (Cth) v Ingram [2025] NSWCCA 103.

19. At common law, when applicable to felonies, the words “aid and abet” were generally historically used to describe a person who was present during the commission of the offence by a principal offender and the terms “counsel and procure” were used in relation to the conduct by a person prior to the commission of the offence, or who is not at the scene while the offence was being committed. The historical distinction between these terms is no longer of legal significance. They are seen as descriptive of a single concept with the only relevant distinction between presence at the scene or otherwise: see Batak at [69]. However, as Leeming JA explained in Ingram (particularly at [112]-[121]), this distinction historically did not exist at all with respect to what were known at common law as misdemeanours.

20. Section 351 of the Crimes Act makes reference to minor indictable offences (a modern term for a misdemeanour), and section 351B, the relevant provision in the present case, makes reference to summary offences. The reason that may be of some importance is because a number of authorities in this area concern accessory to murder, and the language used in the judgments tends to derive from the ancient common law where there was originally a distinction in which it was necessary for the principal offender to also be punished for the crime. A more elegant and detailed discussion of that proposition is found in Leeming JA’s judgment in Ingram. I refer to it only to illustrate why it may have been that the application of the terms “offence” or “crime” have been misunderstood by the Magistrate as importing a requirement that the principal offender be actually convicted of the crime for which the accessory is said to have derivative liability.

21. The judgment of Mason J in Giorgianni is of assistance. At [8] (pp 490-491 of the Commonwealth Law Reports), his Honour addresses s 351 of the Crimes Act and there says that for a misdemeanour, as distinct from a felony, a person who aids, abets, counsels or procures the commission of an offence is regarded for all purposes of procedure as a principal offender: “It is essential to conviction” – his Honour says – “on the basis of secondary participation, that the misdemeanour is actually committed, though there is no requirement that commission of the misdemeanour results in the conviction of another person.” (emphasis added)

22. That is the distinction that is of importance in the present case. The liability of accessories is derivative. Unlike a joint criminal enterprise, liability as an accessory does not involve attribution of the acts of the principal to the accessory but attribution of the principal’s liability. Therefore, in order to establish liability on the part of the accessory it is necessary to establish that the principal is guilty of the offence. It is not necessary to establish that they have been charged with it or convicted of it: Batak at [94]; Giorgianni at 491.

23. The very question which arose in this matter was directly considered and clearly addressed by the High Court in the decision of Likiardopoulos. There the High Court held that there was no obstacle in law to the appellant’s conviction as an accessory to the offence of murder, in circumstances where none of the principal offenders had been convicted of murder. Charges had been withdrawn against one co-accused, and the prosecution had accepted a plea of guilty to manslaughter from the alleged principal offender. What was necessary was that the prosecution adduced evidence at the trial of the accessory that established that the crime of murder had been committed by the principal or in any event was capable of also establishing the principal offence: Likiardopoulos at [24] and [27] (at 274-275).

24. In Likiardopoulos at [28], the High Court expressly rejected the proposition that there was “no murder to which [the appellant] could be an accessory in circumstances in which those alleged to be principals had been convicted of offences less than murder.” The Court also rejected the proposition that bringing the accessorial case in those circumstances amounted to an abuse of process: at [37].

25. These principles are directly applicable to the issue that arose in the present case. I therefore find the ground of appeal in the plaintiff’s summons made out. Consistently with what is now the joint position of the parties, I find that the Magistrate erred in law in finding that because the alleged principal offender had not been charged with or convicted of an offence against s 166(3)(a) of the Children (Education and Care Services) Law, the defendant could not be found guilty of aiding and abetting the principal’s commission of that offence.

26. Accordingly, I make the following orders:

27. The appeal be allowed;

28. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the order made at Burwood Local Court dismissing proceedings against the defendant for the offence of aid/abet the commission of an offence against s 166(3)(a) of the Children (Education and Care Services) National Law (NSW) be set aside;

29. The proceedings are remitted to the Local Court of New South Wales to be heard and determined according to law;

30. There be no order as to costs.

**********

Endnote

The quoted reasons are taken from the transcript of the Magistrate’s oral judgment which his Honour read from an unpublished draft judgment provided to the parties at the conclusion of delivery of the oral reasons. Whilst the written draft and the oral judgment are not identical, counsel for the plaintiff confirmed that there was no material difference between the two. The extract above incorporates corrections to minor typographical/grammatical/stylistic errors.