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Court of Criminal Appeal 29 November 2024

Symons v R; McDonald v R

[2024] NSWCCA 212

Homicide
JUDGMENTS AND ORDERS ACCUSED’S EARLIER APPEAL PROCEDURE TIME LIMITS

Citation: Symons v R; McDonald v R [2024] NSWCCA 212
Court: Court of Criminal Appeal, NSW
Date: 29 November 2024
Judges: Kirk JA; Dhanji J; Yehia J

Background

Two applicants, tried alongside five co-accused for the murder of a man at a petrol station on the New South Wales Central Coast in April 2017, were convicted by a jury in the Supreme Court in July 2022. The Crown case was that the applicants, together with two other co-accused, kicked and punched the deceased, who died from his injuries some weeks later. Each applicant was sentenced to imprisonment in November 2022.

Earlier in 2024, a third co-accused (Robertson) successfully appealed his murder conviction on the ground that the trial judge had erred by not directing the jury on "excessive self-defence" under s 421 of the Crimes Act 1900 (NSW). That direction, had it been given, would have allowed the jury to return a verdict of manslaughter rather than murder. A majority of the Court of Criminal Appeal allowed Robertson's appeal, though the members of the majority adopted different reasoning.

The two applicants in the present matter then sought to appeal their own convictions, out of time, relying on the same ground that had succeeded for Robertson.

  • Whether the Court should extend time for each applicant to seek leave to appeal, given the delays in bringing their applications
  • Whether the Court should follow its earlier decision in Robertson v R [2024] NSWCCA 99, notwithstanding that the majority in that case adopted different reasoning
  • Whether the failure to direct the jury on excessive self-defence constituted a miscarriage of justice affecting each applicant's conviction

Decision

On the question of delay, the Court accepted that McDonald's explanation was understandable. Symons' explanation was described as thin, unsupported by evidence and rather unsatisfactory. Despite this, the Court concluded that the delays should not be held against either applicant in the circumstances, and extensions of time were granted to both.

On the substantive ground of appeal, the Court acknowledged a complication: three separate approaches had been taken in Robertson, and it was arguably open to this bench to assess which approach was correct. However, the Crown did not make submissions as to which basis for allowing that earlier appeal was correct, while accepting it was open to the Court to allow the present appeals. The Court considered it should be slow to resolve that theoretical question in those circumstances.

The Court applied the principle recently confirmed in Kwu v R [2024] NSWCCA 199, which held that where an appeal is materially indistinguishable from an earlier appeal decision arising from the same trial and raising the same point, the court should follow the earlier decision unless there is compelling reason to depart from it. The Court also noted that reaching a different result for the present applicants would be inconsistent with the fundamental principle of equality before the law, as expressed by the High Court in Wong v The Queen and Green v The Queen.

Because the Crown identified no compelling reason to depart from Robertson, and conceded that the reasoning in that case applied with equal force to each applicant, the Court accepted that both applicants had suffered a miscarriage of justice. That miscarriage arose from the trial judge's failure to direct the jury on the option of a manslaughter verdict by excessive self-defence under s 421 of the Crimes Act.

Orders Made

In each matter, the Court ordered:

  • Extension of time in which to seek leave to appeal
  • Leave to appeal granted
  • Appeal allowed
  • Conviction quashed
  • New trial to be held

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an appeal is materially indistinguishable from an earlier appeal from the same trial raising the same point, it will follow the earlier decision in the absence of compelling reason to depart from it, applying the principle in Kwu v R [2024] NSWCCA 199.
  • Equality before the law, as articulated by the High Court in Wong v The Queen and Green v The Queen, supports identical outcomes for co-accused whose appeals raise relevantly identical issues from the same trial.
  • An unsatisfactory or thinly supported explanation for delay in seeking leave to appeal does not automatically preclude an extension of time; the Court considered the overall circumstances before declining to hold the delay against either applicant.
  • Under s 421 of the Crimes Act 1900 (NSW), the failure to leave excessive self-defence to the jury in appropriate circumstances can deprive an accused of the alternative verdict of manslaughter, constituting a miscarriage of justice sufficient to warrant quashing a murder conviction.
  • Where the Crown concedes that an earlier co-accused's successful appeal applies with equal force to a later applicant, and advances no compelling reason for a different outcome, the Court will generally follow that earlier decision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 418, 421
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Cases
- Robertson v R [2024] NSWCCA 99
- Kwu v R [2024] NSWCCA 199
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317
- R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246
- Zhou v R [2021] NSWCCA 278