Citation: Muhamad Kwu v Regina [2019] NSWCCA 75
Court: Court of Criminal Appeal
Date: 1 April 2019
Judge(s): Bathurst CJ; Ierace J; Hidden AJ
Background
Three men were convicted following a 2012 armed robbery at Seven Hills in which a National Australia Bank courier was robbed of over $15,000 at gunpoint. The applicant was also convicted of taking and driving a Mercedes AMG sedan without consent, which was alleged to have been used in connection with the offence. He received a sentence of 15 years imprisonment with a 10-year non-parole period for the armed robbery, and a fixed term of 20 months for the vehicle offence.
Two co-offenders had previously appealed their convictions successfully in Ilievski v R; Nolan v R [2018] NSWCCA 164. That appeal succeeded on the basis that the trial judge had wrongly admitted tendency evidence said to reveal a propensity for the three men to commit robberies together. The applicant in the present matter had not appealed at the same time, but applied for an extension of time after being notified of the co-offenders' successful appeal.
Legal Issues
- Whether an extension of time should be granted to allow the applicant to appeal out of time
- Whether the trial judge erred in admitting tendency evidence at trial
Decision
Extension of time: The Court granted the extension of time. The applicant had been directed to receive a copy of the co-offenders' successful appeal judgment, and his application followed receipt of that notification. No opposition to the extension was raised.
Tendency evidence: Following the reasoning in Ilievski v R; Nolan v R, the Court found the tendency evidence had been wrongly admitted. The Crown accepted that the convictions should be quashed and a new trial ordered on that basis.
One matter was left expressly unresolved. The Crown had sought to rely, in the applicant's case only, on additional tendency evidence beyond that which was challenged in the co-offenders' appeal. Because no submissions were made about that additional evidence in either proceeding, the Court declined to express any view on its admissibility, leaving the question open for the new trial.
Orders Made
- Extension of time to appeal granted
- Appeal allowed
- Convictions on each count quashed
- New trial ordered on each count
- A suppression order from the co-offenders' appeal was varied to extend non-publication of the judgment in Ilievski v R; Nolan v R until the conclusion of any new trial of all applicants, or until further order (noting this restriction was lifted in July 2026)
Key Takeaways
- The Court of Criminal Appeal confirmed that where co-offenders have succeeded in having convictions quashed on an evidentiary ground, a remaining co-offender may obtain an extension of time to bring the same appeal after being notified of that outcome.
- Wrongly admitted tendency evidence will ground a successful appeal against conviction, consistent with the approach taken in Ilievski v R; Nolan v R.
- Where additional tendency evidence was not the subject of submissions in either the original or related appeal proceedings, the Court declined to rule on its admissibility, preserving that question for determination at any retrial.
- Suppression orders covering related proceedings can be varied to maintain non-publication protections where a new trial has been ordered for all co-offenders.
- The Crown's concession that convictions should be quashed and a new trial ordered was accepted by the Court without further elaboration, reflecting the agreed application of the earlier appellate reasoning.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW)
Cases
- Ilievski v R; Nolan v R [2018] NSWCCA 164