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Court of Criminal Appeal 17 June 2026

R v Sarkar; R v Sarkar

[2026] NSWCCA 90

Fraud & dishonesty

Citation: R v Sarkar; R v Sarkar [2026] NSWCCA 90
Court: Court of Criminal Appeal (NSW)
Date: 17 June 2026
Judges: Bell CJ, Yehia J, Sweeney J

Background

Two respondents faced charges under the Migration Act 1958 (Cth) arising from the operation of an education consultancy business, HBD Services. The first respondent owned the business; his nephew, the second respondent, was employed there. The charges related to advertising immigration assistance and charging fees for visa preparation services, all allegedly carried out by persons who were not registered migration agents, between 2019 and 2021.

A joint District Court trial was listed for three to four weeks commencing 25 May 2026. Before the trial could proceed, a series of pre-trial rulings by the primary judge generated a Crown interlocutory appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The matter was filed urgently and heard within days, given the trial was listed for mention the following morning before a newly assigned judge.

Three rulings were challenged: one directing the Crown to elect whether the advertising charges alleged direct or indirect conduct (the duplicity ruling); one excluding the evidence of three witnesses from an immigration law firm (the disclosure ruling); and one excluding documentary evidence obtained during a search warrant execution (the search warrant ruling).

  • Whether charges under s 285(1) of the Migration Act, alleging that a person "directly or indirectly" advertised unlicensed immigration assistance, were bad for duplicity
  • Whether the exclusion of three witness statements under s 146 of the Criminal Procedure Act 1986 (NSW) satisfied the threshold in s 5F(3A) of the Criminal Appeal Act 1912 (NSW), requiring the ruling to have "eliminated or substantially weakened" the prosecution's case
  • Whether documentary evidence obtained during the execution of a search warrant was improperly obtained within the meaning of s 138 of the Evidence Act 1995 (NSW), such that its exclusion was warranted

Decision

Ground 1 (Duplicity): The primary judge had directed the Crown to elect whether the advertising alleged in Counts 1 to 3 was direct or indirect, treating those two words as describing two separate physical elements. The Court of Criminal Appeal disagreed. Applying the principles from Romeyko v Samuels, the Court held that "directly or indirectly" in s 285(1) describes the manner in which a single prohibited act, advertising, may occur. The words operate to broaden the scope of what constitutes advertising, ensuring the prohibition is not confined to overt positive representations. They do not create two distinct offences, and the counts were not duplicitous. Ground 1 was upheld.

Ground 2 (Disclosure Ruling): The Crown needed to establish that the exclusion of the three lawyers' evidence "eliminated or substantially weakened" the prosecution's case, as required by s 5F(3A) of the Criminal Appeal Act. The Court found the Crown had not satisfied that threshold. Accordingly, Ground 2 was dismissed and the exclusion of that evidence was not disturbed on appeal.

Ground 3 (Search Warrant Ruling): The primary judge had excluded documents obtained during the search warrant execution, finding that the conduct of the forensic investigator amounted to impropriety sufficient to engage s 138 of the Evidence Act. The Court of Criminal Appeal found this was an error. In particular, the evidence showed that both the first respondent and an employee had voluntarily consented to the "Google Takeout" process, by which email account data was copied. The Court held the conduct in question could not properly be characterised as improper; in fact, it appeared to be the opposite. Because the first limb of s 138, establishing impropriety, was not made out, it was unnecessary to consider whether the discretion to exclude was also misapplied. Ground 3 was upheld.

Orders Made

  • Ground 1 (duplicity ruling) upheld
  • Ground 3 (search warrant ruling) upheld
  • Ground 2 (disclosure ruling) dismissed

Key Takeaways

  • Under s 285(1) of the Migration Act, the phrase "directly or indirectly advertise" does not create two separate physical elements capable of rendering a charge duplicitous. The words describe the breadth of a single prohibited act and do not require a Crown election between direct and indirect forms of the conduct.
  • A Crown interlocutory appeal against an admissibility ruling under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) requires the ruling to have "eliminated or substantially weakened" the prosecution's case. Where that threshold is not met, the Court of Criminal Appeal has no jurisdiction to intervene, regardless of whether the underlying ruling may have been erroneous.
  • Before s 138 of the Evidence Act 1995 (NSW) can be engaged to exclude improperly obtained evidence, a court must first establish that the obtaining of the evidence was improper. Voluntarily consented access to data, such as a Google Takeout authorised by the account holder, will not ordinarily constitute improper conduct sufficient to enliven that section.
  • In applying Romeyko v Samuels to duplicity questions, the relevant distinction is between a statute that penalises multiple acts (creating multiple offences) and one that penalises a single act possessing one or more forbidden characteristics (creating one offence). Statutory language qualifying or expanding the mode of a prohibited act ordinarily falls into the latter category.
  • The appellate standard of review applicable to duplicity rulings is the "correctness" standard, as confirmed by reference to Warren v Coombs (1979) 142 CLR 531.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), ss 281, 285
- Criminal Appeal Act 1912 (NSW), s 5F (including s 5F(3A))
- Criminal Procedure Act 1986 (NSW), s 146
- Evidence Act 1995 (NSW), ss 138, 140
- Crimes Act 1914 (Cth), s 3LA

Cases:
- Romeyko v Samuels (1972) 19 FLR 322; (1972) 2 SASR 529
- Warren v Coombs (1979) 142 CLR 531; [1979] HCA 9
- Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
- R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- Browne v Dunn (1893) 6 R 67