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Court of Criminal Appeal 22 November 2024

Kwu v R

[2024] NSWCCA 199

Public order & justice offences
JUDGMENTS AND ORDERS ACCUSED’S EARLIER APPEAL PROCEDURE TIME LIMITS SIGNIFICANT DELAY

Citation: Kwu v R [2024] NSWCCA 199
Court: Court of Criminal Appeal
Date: 22 November 2024
Judge(s): Kirk JA (leading judgment); Rothman J and Yehia J agreeing

Background

In September 2020, a jury convicted the applicant and two co-accused of aggravated armed robbery arising from a bank robbery at Seven Hills on 6 June 2012. The applicant and one co-accused were also convicted of a stolen vehicle offence connected to the getaway car. This was their third trial on these charges; earlier convictions had been quashed in 2018 and 2019 on tendency evidence grounds.

The applicant's co-accused, Nolan and Ilievski, appealed their convictions on the ground that the trial judge should have discharged the jury after a witness gave evidence that Nolan was known to have previously robbed a bank. In October 2023, the Court of Criminal Appeal upheld that appeal by majority and ordered a new trial: Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 (Ilievski (No 2)).

The applicant sought to bring an equivalent appeal but filed some two and a half years outside the prescribed time limit. His appeal raised, in substance, the same ground that had succeeded for his co-accused.

  • Whether an extension of time should be granted despite significant delay in filing the appeal
  • Whether the Court should follow its earlier majority decision in Ilievski (No 2) when resolving an appeal raising a materially indistinguishable ground from the same trial
  • What threshold applies when a differently constituted bench of the same court is asked to depart from a prior decision of that court on such a matter
  • Whether a miscarriage of justice was established on the ground identified

Decision

Issue 1: Extension of time

Despite a delay of approximately two and a half years beyond the prescribed filing period, the Court granted the extension. The applicant provided a reasonable explanation for the delay, and the evident merit in the appeal, given the outcome in Ilievski (No 2), weighed in favour of granting the extension.

Issue 2: The applicable principle when a later bench faces a materially indistinguishable earlier decision

Kirk JA examined whether the established "plainly wrong" threshold, which governs how an intermediate appellate court should treat a prior decision of a like court on a point of law, applies directly in this context. His Honour concluded that it does not apply in terms, because the question here is not simply one of a prior legal ruling but of a prior outcome on materially identical facts from the same trial. However, the "plainly wrong" or "compelling reason" standard may illuminate the approach to be taken.

The Court held that the principle of equality before the law provides the more fundamental basis for the analysis. Where a differently constituted bench of the same court is determining an appeal materially indistinguishable from an earlier appeal from the same trial raising the same point, the court should follow the earlier decision unless there is a compelling reason to depart from it. No exhaustive list of circumstances that might constitute such a compelling reason was stated.

Issue 3: Application to the present appeal

The Crown made no attempt to identify a compelling reason to depart from Ilievski (No 2), and indeed accepted that a finding of miscarriage of justice was open. The circumstances of the applicant and co-accused Ilievski were not materially distinguishable. Accordingly, no compelling reason to depart from the majority decision in Ilievski (No 2) was apparent, and the applicant's convictions were quashed. Kirk JA noted that whether the applicant should face a fourth trial, having been arrested over 11 years earlier, was a matter for the prosecutorial discretion of the Director of Public Prosecutions.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Convictions on both counts (aggravated robbery and stolen vehicle offence) quashed
  • New trial ordered on both counts

Key Takeaways

  • Where an appeal is materially indistinguishable from an earlier appeal from the same trial raising the same point, the Court of Criminal Appeal held that a differently constituted bench of the same court should follow the earlier decision unless there is a compelling reason to depart from it.
  • The "plainly wrong" threshold applicable to prior decisions on points of law does not apply directly in this context, but the underlying rationale is consistent with it and may inform the approach taken.
  • Equality before the law, and the aspiration to consistency in the administration of justice, provide the foundational basis for requiring a later bench to follow a materially indistinguishable earlier outcome from the same trial.
  • Significant delay in filing an appeal does not automatically preclude an extension of time where the applicant provides a reasonable explanation and the appeal has evident merit, including where merit is apparent from a co-accused's successful earlier appeal.
  • The Court expressly declined to state an exhaustive list of circumstances that might constitute a compelling reason to depart from a prior decision, leaving that question open for determination according to the nature of the controversy and particular circumstances of each case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , ss 97(2), 154A(1)(b)
- Criminal Appeal Act 1912 (NSW) , s 10(1)(b)
- Evidence Act 1995 (NSW) , s 38

Cases
- Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631
- David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83; (2024) 114 NSWLR 81
- Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
- Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24
- Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248; (2023) 112 NSWLR 375
- Ilievski v R; Nolan v R [2018] NSWCCA 164
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Kwu v R [2019] NSWCCA 75
- Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- Moriarty v Nye [2024] NSWCCA 116
- Sayer-Jones v R [2024] NSWCCA 54
- Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17
- Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584