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High Court Justices have clashed over whether a senior barrister was conflicted when he represented two drug traffickers.
Convicted drug trafficker Frank Samuel Farrugia told the High Court of Australia he received an unnecessarily harsher sentence than his co-offender, Deniz Kanmaz, allegedly because of submissions made by their senior counsel in the District Court of NSW.
Contrary to the Director of Public Prosecutions’ (DPP) initial submissions, senior counsel submitted that Farrugia’s offending was greater than Kanmaz’s. The DPP eventually accepted this submission.
On sentencing, the trial judge found Farrugia to be more “deeply involved” than Kanmaz and sentenced him to 11 years’ imprisonment, with a non-parole period of seven and a half years. Kanmaz received nine years, with a non-parole period of six and a half years.
In proceedings before the Court of Criminal Appeal, and similarly in the High Court, Farrugia contended the sentencing was “miscarried” because of a procedural irregularity in that senior counsel was placed in a conflict between his duty to both Farrugia and Kanmaz.
However, Farrugia did not adduce evidence as to the advice he received, or instructions he gave, to senior counsel.
A 6/7 majority of the High Court bench, including Chief Justice Stephen Gageler, dismissed the appeal, having agreed with the Court of Criminal Appeal that the evidence did not establish the conflict.
The court dealt with two questions, the first being whether there was a threshold of materiality that must be satisfied before the Court of Appeal can conclude a specific error or procedural irregularity vitiates a sentence. The majority found this threshold existed.
The second was whether Farrugia established that his sentencing was affected by that 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,” they found.
Farrugia relied on section 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.
He said it made no allowance or exception for any informed consent to the conflict he may have been given, “and thus excluded any contention that informed consent negated a breach of the prospective obligation”.
The bench said that, given the Conduct Rules do not purport to exclude general law, “it is doubtful whether the rule has that effect”.
“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, ultimately whether there is such a conflict involves an objective inquiry,” they added.
As for concerns about counsel appearing for multiple accused, the High Court clarified there was “no rule prohibiting that practice”.
“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,” it said.
In his dissenting opinion, Justice James Edelman said counsel could not represent two offenders in sentencing “where it is open to argue that either offender should receive a more substantial penalty”.
Together with the Crown’s submissions on the seriousness of each of Farrugia and Kanmaz’s offending, which “made plain the apparent conflict of duty”, Justice Edelman said Farrugia’s contrasting circumstances, mental health concerns, and disadvantaged upbringing meant it was “reasonably and fairly open” to senior counsel to accept the DPP’s submission that Kanmaz should receive a bigger sentence.
If the sentencing judge accepted that submission, Farrugia may have received a lower penalty, Justice Edelman added. This submission would not have assisted, and may have been a detriment, to Kanmaz.
“From the perspective of a reasonable observer without knowledge of all the information confidential to Farrugia, senior counsel representing Farrugia and Kanmaz was in a position of apparent conflict of duty,” Justice Edelman said.
“A majority of this court concludes that no potential or actual conflict has been proved without sufficient evidence or the instructions given by Farrugia to senior counsel. With respect, I disagree.”
Justice Edelman would have allowed the appeal, set aside an order by the Court of Criminal Appeal, quashed the sentence, and remitted the matter back to the District Court for resentencing.
Citation: Farrugia v The King [2026] HCA 28.
