Citation: Secretary of the Department of Education (NSW) v Sarhan [2026] NSWSC 874
Court: Supreme Court of New South Wales
Date: 4 June 2026
Judge: Roberts J
Background
An incident at an early learning centre in South Strathfield in May 2023 gave rise to criminal proceedings against two childcare workers. One worker, the alleged principal offender, slapped an infant aged 13 to 14 months on the face while the child was crying and restrained in a bouncer. The principal was charged with, and convicted of, common assault after pleading guilty. She was not charged with the separate statutory offence of subjecting a child to corporal punishment under s 166(3)(a) of the Children (Education and Care Services) National Law (NSW).
The second worker, the defendant, recorded the conduct on her mobile phone via Snapchat and laughed during the incident. The prosecution charged the defendant with aiding and abetting the principal's commission of the corporal punishment offence under s 351B of the Crimes Act 1900 (NSW), which makes those who aid, abet, counsel or procure a summary offence liable as principal offenders.
The Burwood Local Court dismissed the charge against the defendant. The Magistrate held that because the principal had not been charged with or convicted of the corporal punishment offence, the defendant could not, as a matter of law, be found guilty of aiding and abetting its commission. The Secretary of the Department of Education appealed to the Supreme Court on a question of law alone under s 55(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).
Legal Issues
- Whether an accessory can be found guilty of aiding and abetting the commission of a specific offence where the principal was neither charged with nor convicted of that offence.
- Whether the Magistrate erred in law by holding that the principal's conviction for common assault (rather than the corporal punishment offence) was determinative of what offence could activate accessorial liability under s 351B.
Decision
The legal error: Roberts J found that the Magistrate erred in law. The Magistrate's conclusion rested on the premise that accessorial liability under s 351B is strictly derivative and can only attach to the offence with which the principal was actually charged. That premise was incorrect.
The governing principle from Likiardopoulos: The High Court in Likiardopoulos v The Queen (2012) 247 CLR 465 established that what matters for accessorial liability is whether evidence adduced at the accessory's trial establishes that the principal offence was in fact committed, not whether the principal was charged with or convicted of that offence. In Likiardopoulos, the alleged principal had pleaded guilty to manslaughter rather than murder, yet the accessory's murder conviction was upheld. The High Court expressly rejected the proposition that there was "no murder to which the appellant could be an accessory" in those circumstances.
Application to the present case: Roberts J held that those principles applied directly. The prosecution was required to prove, as a matter of fact at the defendant's trial, that the principal had committed the corporal punishment offence. The prosecution had addressed those elements before the Magistrate. The fact that the principal was charged only with common assault was irrelevant to whether the defendant could be tried for aiding and abetting the separately constituted corporal punishment offence. The Magistrate's failure to consider Likiardopoulos (which had not been drawn to his attention) contributed to the error.
Consent and independent determination: By the time of the Supreme Court hearing, the defendant had filed no submissions and both parties consented to the appeal being allowed. Roberts J nonetheless noted that the Court was required to determine the question of legal error independently, and confirmed that error was established on the authorities.
Orders Made
- The appeal was allowed.
- The order of Burwood Local Court dismissing the proceedings against the defendant for the offence of aiding and abetting the commission of an offence against s 166(3)(a) of the Children (Education and Care Services) National Law (NSW) was set aside.
- The proceedings were remitted to the Local Court to be heard and determined according to law.
- No order as to costs.
Key Takeaways
- Under the accessorial liability framework confirmed in Likiardopoulos v The Queen, a person may be tried and convicted as an accessory to an offence even where the principal offender was never charged with, or convicted of, that specific offence.
- The critical question for accessorial liability is whether the evidence adduced at the accessory's trial establishes that the principal offence was committed, not whether the principal faced charges for it.
- A principal's conviction for a lesser or different offence arising from the same conduct does not preclude a prosecution for aiding and abetting a separate statutory offence constituted by the same facts, provided the elements of the principal offence are established in evidence at the accessory's trial.
- Section 351B of the Crimes Act 1900 (NSW) does not limit accessorial liability to the precise charge laid against the principal; it requires proof that a principal offence was committed, which is a question of fact for the tribunal hearing the accessory's case.
- Even where the parties consent to an appeal being allowed on the ground of legal error, the Supreme Court must independently assess and confirm that the error is established before granting relief.
Legislation and Cases Referenced
Legislation
- Children (Education and Care Services) National Law (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66
- DPP (Cth) v Ingram [2025] NSWCCA 103
- Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29
- Likiardopoulos v The Queen (2012) 247 CLR 465; [2012] HCA 37
- Osland v The Queen (1995) 156 CLR 473; [1985] HCA 29