At a joint sentencing hearing in the District Court of New South Wales, one Senior Counsel appeared for two co-offenders, Frank Farrugia and Deniz Kanmaz. The Crown had submitted in writing that Kanmaz should receive the heavier penalty. Counsel submitted the opposite: that Farrugia’s offending was the more serious. Asked by the judge whether he agreed Kanmaz was the more culpable, counsel replied, “No, I say the opposite”, at [18]. The Crown then conceded counsel was right. The judge found Farrugia the more deeply involved of the two, at [20]. Farrugia received 11 years with a non-parole period of seven and a half; Kanmaz received nine years with six and a half, at [12].
Farrugia v The King [2026] HCA 28 was delivered on 12 August 2026. Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ wrote jointly. Edelman J and Jagot J each would have allowed the appeal. It was dismissed five to two, and Farrugia’s sentence stands.
It matters in Queensland for two reasons that have nothing to do with New South Wales procedure. It fixes the threshold a specific error or procedural irregularity must clear before a sentence is disturbed on appeal. And it shows how a conflict ground fails: on the merits, because the offender did not prove the irregularity he alleged, the advice and instructions bearing on it never being in evidence.
What the Court decided
| Question | How it arose | What the Court held | Effect on the appeal |
|---|---|---|---|
| Is there a materiality threshold before an error or irregularity vitiates a sentence? | Framed by the Court. The Director of Public Prosecutions (NSW) intervened to argue there is none | Yes, for specific error and procedural irregularity. The Brawn threshold, adapted: could it realistically have affected the judge’s reasoning, at [6] and [35]. Manifest excess raises no separate materiality question, at [32] | Held. The intervener’s contention rejected |
| Did Farrugia prove Senior Counsel was conflicted? | His ground of appeal | No. Absent evidence of the advice given and instructions received, neither a conflict nor a real or substantial possibility of one was established, at [7] and [57] | Decided the appeal. Dismissed |
| Had the irregularity been proved, would it have been material? | Never reached | It would have been, at [7] and [39] | Considered obiter. Expressly conditional |
| May an appellate court remit a sentence for re-sentencing? | Argued under s 12(2) | Expressly not decided, at [8] and [64] | Left unresolved. The Court said it might warrant the consideration of the New South Wales Parliament |
The threshold, and what it actually asks
Not every error disturbs a sentence, and the limit had been contested. The intervener argued that a separate threshold is inapposite because s 6(3) of the Criminal Appeal Act 1912 (NSW) already conditions intervention on the appellate court forming its own opinion that a different sentence is warranted. That was rejected.
The threshold comes from Brawn v The King [2025] HCA 20, a conviction case decided in May 2025. There, at [10], the Court held that errors which are not fundamental “must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty”. It added that “could” means “having the capacity to”, that “realistically” excludes the fanciful or improbable, and that the burden, though it lies on the appellant, “is not onerous”.
Transposed at [35], the question on a sentence appeal “is whether the specific error or procedural irregularity could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed”.
Three points follow, each easy to state the wrong way round. The test looks at the reasoning, not the result, consistent with Kentwell v The Queen [2014] HCA 37, where the Court held at [42] that on specific error the appellate court “does not assess whether and to what degree the error influenced the outcome”. An appellant need not show the sentence would have been shorter.
Where the complaint is manifest excess, no separate materiality question arises at all, at [32]. The threshold governs specific error and procedural irregularity, not the conclusion that a sentence falls outside the permissible range.
And the Court corrected the vocabulary. At [38] it observed that “miscarriage of justice” has “no statutory foundation in relation to sentencing appeals”, and that “the better description is that the exercise of the sentencing discretion has been vitiated”. That is not housekeeping: a ground pleaded as a miscarriage of justice invites the court to think in conviction terms, including about a proviso with no work to do here.
Why the appeal failed
Farrugia’s complaint was that counsel was caught between his duty to Farrugia and his duty to Kanmaz, that he should have been separately represented, and that a submission should have been made that his offending was no worse than Kanmaz’s.
The Court did not hold that joint representation of co-offenders is impermissible. At [45] it recorded that “although concerns have been raised about the practice of counsel appearing for multiple accused, there is no rule prohibiting that practice”. Whether a conflict exists is assessed objectively, at [42], and the proscriptive obligation is breached where a barrister acts without informed consent in circumstances involving a “conflict or a real or substantial possibility of a conflict”. Some conflicts, at [43], are “so pronounced that counsel must cease to act irrespective of whether the client’s consent has been obtained”.
The difficulty is proving which situation you are in. Resolving such a complaint, the Court said at [45], “requires a close factual inquiry that will almost invariably involve a consideration of counsel’s communications with their instructing solicitor and the client”.
Farrugia led none of it. He adduced no evidence of the advice he received or the instructions he gave, and when the Crown asked whether he would waive privilege, he declined. He argued instead that the conflict was obvious on the objective record. At [55] the Court answered: “These contentions should not be accepted.” What was left is at [57]: “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”.
On privilege the Court was blunt. The burden of demonstrating specific error was Farrugia’s, and maintaining privilege over communications bearing on the very matters raised by his own appeal was, at [59], “necessarily inconsistent with the assertions made in his notice of appeal”. The ultimate question, at [49] and [60], was whether he was denied a reasonable opportunity to put his case in mitigation. He did not establish that he had been: without evidence of the advice given and the instructions received, “[a] conclusion to this effect could not be reached”.
Note carefully what this is not. Farrugia did not lose because his complaint was immaterial. The Court said the opposite: had the irregularity been established, it would have been material, at [7] and [39]. That observation is expressly conditional, so it is considered obiter, but it tells practitioners that the evidentiary gate, not the materiality gate, is where such a ground will ordinarily fail.
The two dissents, and what they are not
Edelman J opened at [66] by asking whether counsel can represent two offenders in sentencing where it is open to argue that either should receive the heavier penalty, and answered: “The simple answer is ‘no’.” That is a dissenting proposition, not the law the Court stated.
His reasoning is narrower than that opening suggests. He agreed at [105] that the absence of evidence of instructions was “fatal to Mr Farrugia’s appeal so far as it relies on the general law”, because the content of an obligation counsel assumes depends on the retainer. He parted company only on the conduct rules, which do not turn on what the client instructed, finding an actual conflict when counsel received the Crown’s submissions and had to choose between them.
Jagot J would have quashed the sentence and remitted the matter to the District Court for re-sentence by a different judge, at [193]. She would have held at [124] that maintaining privilege “does not permit any inference to be drawn adverse to the accused”, and formulated the test at [121]: unless counsel 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. Both propositions are dissenting.
What it means in Queensland
The threshold applies here directly. Section 668E(3) of the Criminal Code (Qld) is in materially identical terms to the New South Wales provision the Court was construing: 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”. Queensland’s conviction appeal provision and proviso sit in the same section. The reasoning transfers without adjustment.
The practice warning is not new here. In R v Pham [2017] QCA 43 the Court of Appeal noted at [58] that acting for co-defendants is “a longstanding, reasonably common practice”, and “a practice fraught with danger”. At [59] it added that conflicts “can easily arise during trials, which are notoriously unpredictable”, and, in the sentence Jagot J picked up, that “they can also arise in sentence proceedings”.
One difference is worth keeping straight. The conduct rules construed in Farrugia are the New South Wales uniform law barristers rules. In Queensland the Bar Association makes the barristers rules, under s 220 of the Legal Profession Act 2007 (Qld). The principles the Court applied about conflicting duties are general law principles, so they travel; the rule numbers do not.
Published 21 August 2026.
What remains unsettled
The Court expressly declined to decide whether an appellate court that finds a sentence vitiated, but has not concluded that a lesser sentence is warranted, may remit the matter to the trial court rather than re-sentence itself. At [8] it said that “given the outcome of the second issue, it is not necessary to address this question”, and at [64] that this “is a matter that might warrant the consideration of the New South Wales Parliament”. Nothing was decided about the position in any other State.
The larger open question is how much of the dissents survives. The problem they identify is real: proving your own counsel was conflicted ordinarily means opening up what passed between you. The majority’s answer was that the burden was Farrugia’s, and that the concessions made below had most likely waived privilege over the relevant communications anyway, at [59]. Jagot J would have drawn no adverse consequence from the claim at all, at [124]. That tension will be worked out in the intermediate courts. The reasons are on AustLII, and the Queensland appeal provision is in the current reprint of the Code.
Related reading
- The King v Ko: the direction that must follow a real or significant chance
- RNT v QPS: pre-sentence custody and the Magistrates Court limit
- R v Ford: the three-year line between parole release and eligibility
- Contact Fraser Lawyers
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