Criminal law – Sentencing – Where Senior Counsel appeared at sentencing hearing for both appellant and co-offender – Where Senior Counsel submitted, contrary to Crown submissions, that appellant's offending more serious than co-offender's offending – Where Senior Counsel submitted that both appellant's offending and co-offender's offending less serious than Crown's characterisation of offending – Where no evidence of advice or instructions between appellant and Senior Counsel – Whether threshold of materiality must be satisfied before court concludes that specific error or procedural irregularity vitiates exercise of sentencing discretion – Whether procedural irregularity established – Whether Senior Counsel placed in position of conflict between duty to appellant and duty to co-offender – Whether appellant should have been separately represented – Whether submission should have been made on appellant's behalf that his offending similar to or less than co-offender's offending.
Words and phrases – "actual conflict", "apparent conflict", "assumed obligations", "best interests", "client's instructions", "co-offender", "conflict", "conflicting duties", "demonstration of error", "duty of loyalty", "imposed obligations", "legal professional privilege", "materiality", "objective seriousness", "parity", "position of conflict", "potential conflict", "practical injustice", "procedural fairness", "procedural irregularity", "real or substantial possibility of a conflict", "remittal", "scope of duties", "sentence", "sentencing discretion", "separately represented", "specific error", "standard of competency".
Crimes Act 1914 (Cth), s 16BA.
Criminal Code (Cth), ss 11.5, 302.2, 400.3, 400.4.
Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6, 12.
Legal Profession Uniform Law (NSW), ss 419, 423.
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 4, 7, 23, 35, 42, 119.