Sharah v The Queen

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Sharah, sought to challenge a decision of the Court of Criminal Appeal of New South Wales. The Crown was the respondent. The core of the dispute revolved around the legal principles governing the criminal liability of an accessory before the fact or a principal in the second degree, particularly when the principal offender commits a crime that was not planned.

The central legal issue before the High Court was to determine the correct governing law in New South Wales for such criminal liability. Specifically, the applicant argued that the Court of Criminal Appeal had erred by following a 1991 Privy Council decision, *Hui Chi-ming*, which appeared to depart from established Australian High Court authority, namely *Reg v Johns*. The applicant contended that *Hui Chi-ming* introduced a principle of "foresight" as a basis for liability, irrespective of whether the act was part of the common purpose or contemplated by both parties, thereby creating confusion with the *Johns* principle.

The applicant's argument, as presented, highlighted a divergence between Australian High Court precedent and the Privy Council's approach. According to *Reg v Johns*, and subsequently affirmed in *Miller* and *Sinfield and Mills*, liability for an accessory or principal in the second degree requires that the principal offender's act be within the contemplation of both parties as a possible incident of their common purpose. In contrast, the Privy Council in *Hui Chi-ming* (following *Chan Wing-Siu*) appeared to establish a broader principle of liability based on foresight alone, even if the act was not necessarily within the scope of the common purpose or contemplated by both parties. This distinction, the applicant argued, had led to uncertainty and misapplication of the law by lower courts, including the Court of Criminal Appeal in the present case.