Farrugia v The King

[2025] HCATrans 64

[2025] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S57 of 2025

B e t w e e n -

FRANK SAMUEL FARRUGIA

Applicant

and

THE KING

Respondent

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 SEPTEMBER 2025, AT 9.30 AM

Copyright in the High Court of Australia

MR P.R. BOULTEN, SC:   If the Court pleases, I appear with MR T.F. WOODS and MR T. LIU for the applicant.  (instructed by Gregory J Goold Solicitors)

MS M.T. ENGLAND, SC:   May it please the Court, I appear for the respondent (instructed by Director of Public Prosecutions (Cth))

HER HONOUR:   Thank you, Ms England.  Mr Boulten, I think you have received a letter from the Registry.  Although there has already been a grant of special leave, there are just a couple of matters that I wanted to raise to ensure that the issues are clearly joined for the appeal.  So, the proposed ground of appeal raises three issues, effectively:  conflict of interest, material irregularity and adverse effect.

One thing I wanted to hear about was where the issue – if any – about waiver of conflict will fit in, particularly in light of the concession that appears to have been made at paragraph 57 of the CCA’s judgment, that the client was fully informed, if I have correctly expressed it.

MR BOULTEN:   Well, I think the issue of waiver of privilege falls ‑ ‑ ‑

HER HONOUR:   Perhaps I should interrupt you at that point, because the language of “waiver” may not be very happy in this context.  What I am talking about is a waiver of the conflict or full disclosure of the conflict.

MR BOULTEN:   Yes.  I can see it is quite different than legal professional privilege being waived.  It is connected to it, in one respect, in order for the Court to determine whether or not there was such a waiver of conflict, if there is such a thing as waiver of conflict.  I think it comes within (b) of the ground.  We can address it specifically.

Our position will be, essentially, that there is a threshold issue about whether or not an accused person coming for sentence can waive a barrister’s conflict, and then there is an issue about whether or not there needs to be evidence which informs an appeal court about whether there has been an effective decision to proceed, knowing that there was such a conflict.

HER HONOUR:   And your client’s position is that waiver is not possible.  Is that right?

MR BOULTEN:   We say that it is against public interest, that is not just the accused’s interest, that there is a significant public interest in there being ethical representation in criminal proceedings, and that you cannot waive that as the accused.

HER HONOUR:   All right.  Is it an agreed fact that the client was fully informed?

MR BOULTEN:   No.

HER HONOUR:   No.

MR BOULTEN:   What was said, we say, is that the court could draw inferences that they were informed about the fact of the conflict – the particular conflict – but not fully informed in the sense that the consequences were fully explained.  What is more, in any event, we say that there is a problem, in that there needs to be informed – fully informed – explanation, and that cannot come from the person with the conflict.

HER HONOUR:   All right.  Thank you.  The second issue is touched on at paragraph 51 of the CCA’s judgment.  Is that an issue that you will need to deal with on the appeal?

MR BOULTEN:   Well, the issue of remittal in sentencing appeals has not been fully determined in this Court, although it is not uncommon in the Court of Criminal Appeal for sentence matters to be remitted, purportedly, under section 12(2).  We are happy to address it, because we are submitting that the appropriate remedy is remittal to the District Court.

HER HONOUR:   All right.  Thank you.  Then the final thing that I wanted to ask was whether or not counsel who is the subject of the suggestion that there was a breach of rule 119 is aware of the issue in this Court.

MR BOULTEN:   Yes, your Honour.  I know for sure he is.

HER HONOUR:   All right.  Thank you, Mr Boulten.  Ms England, in light of that, are there any particular directions that you think are required to advance the matter to a hearing?

MS ENGLAND:   Yes, your Honour, there are.  The Crown intends to address the question of waiver, including with regard to the transcripts of arguments in both courts and the written submissions in both courts.  Accordingly, with the agreement of my learned friend, the Crown seeks a direction that that material be included in the joint appeal book.  That is, again your Honour, the transcripts of argument from the District Court, the transcript of argument from the Court of Criminal Appeal and the written submissions before each of those courts.

HER HONOUR:   Thank you.  Is there anything else?

MS ENGLAND:   No, your Honour.

HER HONOUR:   I have some draft directions here.  What I propose to do is to adjourn the Court, but I will hand down these directions for counsel to consider.  Presumably, you have no difficulty with that supplementation of the appeal book, Mr Boulten?

MR BOULTEN:   No.  That’s by consent.

HER HONOUR:   All right.  Add a suitable direction to cover that issue and then directions will be made accordingly to prepare the matter for an appeal in next February or March.  Is that appropriate?

MR BOULTEN:   Yes, it is.

HER HONOUR:   Thank you.  Could you please adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED