Farrugia v The King [2026] HCA 28.

The decision in summary.

Farrugia v The King [2026] HCA 28 was handed down on 12 August 2026. A full bench of seven sat: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ. The appellant had been sentenced in the District Court of New South Wales for Commonwealth drug and money offences. He argued that his sentence proceeding miscarried because one senior counsel appeared for him and for his co-offender at a joint sentence hearing, at a point where the two men had adverse interests on the issue of parity.

The High Court dismissed the appeal. The appellant had not established a breach of the barristers' conflict rule, and had not shown that any irregularity was material to the sentence he received. The decision confirms that a shared-lawyer complaint does not succeed on its own. The person raising it must prove an actual conflict and a real effect on the outcome.

This note explains what happened, when one lawyer may act for two co-accused, what the parity principle requires, when a barrister must return a brief, and what the case means for co-accused who want to share a lawyer to save cost. The reasoning matters to anyone facing sentence alongside a co-offender.

What happened in Farrugia v The King?

The appellant and a co-offender pleaded guilty to serious Commonwealth offences. Each had conspired to traffic a commercial quantity of a controlled drug, contrary to sections 11.5(1) and 302.2(1) of the Criminal Code Act 1995 (Cth), an offence that carries a maximum of life imprisonment. Each had also dealt with proceeds of crime, contrary to Division 400 of the Code. The two matters were listed together for sentence.

One senior counsel appeared for both men. At the joint hearing a question of parity arose: which of the two offenders was more culpable, and so who should be punished more heavily. The Crown's written submissions said the co-offender should receive the more substantial penalty. Counsel, appearing for both, submitted the reverse, that the co-offender sat at the bottom of the hierarchy and was less culpable. The prosecutor later agreed with that position, and the sentencing judge accepted it.

The appellant was sentenced to 11 years' imprisonment with a non-parole period of 7 years and 6 months. The co-offender received 9 years with a non-parole period of 6 years and 6 months. The appellant then appealed. He argued that an independent lawyer, acting for him alone, would not have contradicted the Crown's parity submission, and that he might have received a lighter sentence if that submission had been left to stand. He did not waive legal professional privilege. He put his case on the record of the proceedings alone.

Can one lawyer represent two co-accused in the same case?

It is possible, but it carries real risk, and in criminal cases the courts discourage it. The conduct rules allow a practitioner to act for two clients in the same matter only where both give informed consent and there is no real possibility of a conflict. Those conditions are hard to meet once two people are charged over the same events.

The Queensland Court of Appeal in R v Pham [2017] QCA 43 called joint representation in criminal proceedings a practice "fraught with danger" and said it should only occur where there is no possibility of a conflict existing or emerging. The danger is easy to see. One accused may be more culpable than another. A point that helps one client may hurt the other. Advice about a guilty plea, or about giving evidence for a discount, can pull the two clients in opposite directions. The safer course, and the one this firm follows, is for a lawyer to act for one accused and refer any co-accused to a separate practice.

What is the parity principle in sentencing?

Parity is the rule that co-offenders in the same criminal enterprise should not receive sentences so different that an offender is left with a justifiable sense of grievance. The principle comes from Lowe v The Queen (1984) 154 CLR 606 and was restated in Green v The Queen (2011) 244 CLR 462. Like cases are treated alike. Different cases are treated differently.

Parity forces the court to compare the relative culpability of each offender: their role, their conduct, their record. That comparison is exactly where a shared lawyer's duties can collide. To lift one client up the ladder is often to push the other down it. A barrister acting for both cannot press each man's best case at the same time when their positions on parity are opposed.

When must a barrister return a brief?

Rule 119 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) is the key rule. A barrister briefed to appear for two or more parties must decide as soon as possible whether the interests of the clients may, as a real possibility, conflict. Where they may, the barrister must return the brief or briefs to remove that possibility.

That rule sits beside rule 35, which requires a barrister to promote and protect the client's best interests fearlessly and without regard to any other person. Behind both stands the barrister's first duty, owed to the court and to the proper administration of justice. The appellant argued that once a real possibility of a parity conflict appeared, rule 119 required the brief to be returned, and that neither his consent nor his silence could cure the problem.

What did the High Court decide?

The Court of Criminal Appeal had already refused the complaint in Farrugia v R [2025] NSWCCA 49. It held there is no rule of practice or ethics that one counsel cannot act for two co-offenders in a sentence hearing. It held that a conflict is not established merely because appellate counsel can later conjure submissions that "could" have been made. And it found there was no evidence of an actual conflict, and no practical injustice, because the parity position that counsel advanced was correct and was accepted by the prosecutor and the judge.

The High Court dismissed the appeal. The appellant had not established a breach of the conflict rule, and had not shown that any irregularity was material to the sentence he received. The decision leaves the position clear. A shared lawyer, without more, does not vitiate a sentence. The person complaining must point to an actual conflict of duties and must show that a barrister free of that conflict could realistically have produced a different result. Speculation about submissions that "could" have been made is not enough.

Can you appeal a sentence because your lawyer had a conflict of interest?

Yes, it is a recognised ground. A sentence or a conviction can be set aside where the conduct of counsel produced a miscarriage of justice. But the threshold is high, and Farrugia shows why. The court does not judge the personal performance of the lawyer. It judges the fairness of the process, and it does so by an objective standard: see Nudd v The Queen (2006) 80 ALJR 614 and TKWJ v The Queen (2002) 212 CLR 124.

The applicant must show a material irregularity. That means an irregularity that could realistically have affected the outcome, the test drawn from Brawn v The King (2025) 99 ALJR 872 and MDP v The King (2025) 99 ALJR 969. A theoretical conflict that made no difference to the sentence will not do. This is why the record matters so much. A person who wants to run this ground on appeal, without waiving privilege, must be able to point to something on the face of the proceedings that shows both the conflict and its likely effect.

What this means if you and a co-accused want the same lawyer.

Sharing a lawyer with a co-accused looks attractive. It saves money, it feels united, and it avoids the awkwardness of pointing across the table. It is also dangerous. The moment relative culpability is live, and in most joint matters it is, your interests and your co-accused's interests can move apart. A lawyer acting for both cannot then press your best case without weakening theirs.

There is a further trap. If you share a lawyer and are later unhappy with the result, Farrugia shows that the appeal point may be hard to run. You will need to prove an actual conflict and a real effect on your sentence, not merely that a separate lawyer might have argued things differently. The cleaner path is separate representation from the start, or at the least independent advice before you agree to a shared brief.

This firm acts for one accused per matter and refers any co-accused to independent lawyers. It protects your case, it keeps your instructions confidential, and it removes the conflict problem before it can arise. If you are charged alongside another person, get your own lawyer early, and speak to us before your first mention.

Frequently asked.

Can two co-accused use the same lawyer in Australia?

Sometimes, but only where there is no real possibility their interests will conflict and both give informed consent. In criminal matters the courts discourage it. Once relative culpability is in issue, the interests of two co-accused can pull apart, and separate representation is the safer course.

What is a conflict of interest for a barrister?

It is where a barrister's duty to one client competes with a duty to another client, or with the barrister's own interest. Under rule 119 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), a barrister briefed for two or more parties must decide as soon as possible whether their interests may, as a real possibility, conflict, and must return a brief to remove that possibility.

What is the parity principle in sentencing?

Co-offenders in the same criminal enterprise should not receive sentences so different that an offender is left with a justifiable sense of grievance. The principle comes from Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen (2011) 244 CLR 462. It requires the court to compare the relative culpability of each offender.

Can I appeal a sentence because my lawyer also acted for my co-accused?

You can raise it as a ground, but you must show an actual conflict that caused a material irregularity, not just that different submissions could have been made. In Farrugia v The King [2026] HCA 28 the appellant did not establish a breach of the conflict rule or that any irregularity was material, and the appeal was dismissed.

Does a conflict of interest automatically overturn a sentence?

No. The court judges the process objectively and asks whether the irregularity could realistically have affected the outcome. That materiality threshold comes from cases such as Brawn v The King (2025) and MDP v The King (2025). A possible conflict that made no difference to the sentence will not overturn it.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 15 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

Sources: Farrugia v The King [2026] HCA 28 (JADE; High Court of Australia); Farrugia v R [2025] NSWCCA 49 (JADE); Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 35 and 119 (NSW legislation).

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