Kwu v R

Background

1. In Ilievski (No 2) Dhanji J, with whom Lonergan J agreed, gave an overview of the relevant factual and procedural background at [22]-[48], which it is not necessary to repeat in detail. On 6 June 2012 three men carried out a robbery at a branch of the National Australia Bank at Seven Hills, New South Wales. There is no direct evidence as to the identity of these men. The Crown brought a circumstantial case against each of Nolan, Ilievski and the applicant. It was alleged that Nolan and the applicant were the ones who entered the branch, each armed with a dangerous weapon, while Ilievski waited in the getaway car, being a stolen Mercedes C63. The trio were tried in a jury trial before Culver DCJ in 2015. Each was found guilty of the armed robbery charge, and the applicant and Nolan were found guilty of the stolen vehicle charge.
2. Nolan and Ilievski appealed their convictions. In 2018 this Court allowed their appeal on the basis that Culver DCJ erred in admitting evidence of a previous armed robbery committed by the trio as tendency evidence: Ilievski v R; Nolan v R [2018] NSWCCA 164 (Ilievski (No 1)). A new trial was ordered. The applicant then separately appealed on the same basis, doing so out of time. He was granted an extension of time, and his appeal was also upheld by this Court: Kwu v R [2019] NSWCCA 75.
3. A new trial of the trio commenced in July 2019 before a jury and Craigie DCJ. However, that trial ended when the jury was discharged at the stage of counsel addresses.
4. The matter was relisted for a third trial before a jury and King DCJ, commencing on 4 August 2020 and concluding on 8 September 2020. The trio were sentenced on 1 February 2021. Nolan and Ilievski then sought leave to appeal their convictions in this Court, leading to the majority decision upholding their appeal in Ilievski (No 2). Again, the applicant had made no attempt to join that appeal.
5. The context of the successful appeal was as follows. Among the circumstantial evidence against each of the accused was records of telephone interceptions of calls and messages, along with data from vehicle tracking devices attached by police (pursuant to a warrant) to vehicles belonging to Nolan and Ilievski. As observed by Dhanji J, that evidence, which was properly before the jury, suggested that prior to the offences in question Nolan and Ilievski had been "not only of interest to the police, but that the level of interest was such that significant resources had been devoted to monitoring their activities": at [70].
6. Ms Sasha Wilson, who had an association with Nolan prior to the robbery, was called by the Crown to give evidence to establish a link between the stolen Mercedes used in the robbery and the accused. It was the Crown's case that Nolan had used Ms Wilson's garage to store the car. Ms Wilson gave evidence that she did give Nolan the key to her garage to store some items at some stage. She then claimed she could not recall the answers to certain questions. She was shown her police statement. She responded by alleging that her signature had been coerced by the investigating police officer, Detective Luke Hanington, who she said threatened her if she did not cooperate. The following exchange occurred (emphasis added): Q. When you arrived did you have any conversation about Detective Hanington about what would be written in the statement? A. Luke came to my house and he told me that I - like I can't be a stupid idiot pretty much and that he's got all this evidence against me shoplifting and on drugs and that my son would get taken away from me if I don't. Whilst he [referring to Nolan] was known to have -- Q. Just stop -- A. robbed a bank before and -- Q. Just stop, just stop A. -- what was I meant to do? Like what do you want me to do? HIS HONOUR: Just stop as the Crown has asked you please.
7. Leave was subsequently granted to the Crown to cross-examine Ms Wilson pursuant to s 38 of the Evidence Act 1995 (NSW). That cross-examination included the following exchange (emphasis added): Q. Are you aware that there are procedures within the New South Wales Police Force to make complaint where one is not happy with how one is treated by police? A. Who is going to believe a shop lifter who was on drugs over a detective, what leg do I have to stand on. I'm trying to protect me and my son, that's all I was doing and that's all I have been doing, I haven't done anything wrong, I don't want to be here I'm constantly attacked by everyone here like I need to be left alone. I haven't done anything wrong, all I did was just give him what he wanted to, he's the one that's saying that Bosty [referring to Nolan] is some bank robber and I have to -- [Counsel for Nolan]: I object. WITNESS: -- no. Like this is so unfair. HIS HONOUR: Ms Wilson, will you please stop thank you. WITNESS: No, I don't want to be. CROWN PROSECUTOR: Just stop. [Counsel for Mr Nolan]: Your Honour, there's a legal matter that I wish to. HIS HONOUR: Yes.
8. The jury was then sent out and discussions took place between the bench and counsel. There was some uncertainty about precisely what had been said. Counsel for Nolan indicated he wished to check the transcript overnight. On the following morning counsel for all three accused applied to have the jury discharged on the basis of prejudice as a result of Ms Wilson's evidence. The Crown prosecutor opposed the application. It was refused by the trial judge. His Honour indicated that the impugned utterances would be excised from the version of the transcript available to the jury. Later that day his Honour directed the jury to the effect that they should disregard what Ms Wilson said about other people's "opinion" as to what Nolan had done (the direction is quoted in Ilievski (No 2) at [95]).
9. The Crown cross-examination of Ms Wilson then continued, during which she was asked about her interactions with the police (emphasis added): Q. What did they say to you, what did [Detective Hanington] say to you when he introduced himself? A. So, he had evidence of me going to court for shoplifting, he knew that I was on drugs, so he said to me that Shane [Nolan] was known to the police -- HIS HONOUR: No, please. [Counsel for Nolan]: Objection. HIS HONOUR: Don't continue that answer, thank you. WITNESS: Okay.
10. Thus Ms Wilson gave evidence that Nolan was "known to have … robbed a bank before", "is some bank robber" and "was known to the police". In each of the extracts above, Ms Wilson was immediately stopped by the Crown prosecutor, the bench or by defence counsel objecting.
11. On the following day his Honour gave directions regarding the prejudicial implications of the accused being subject to telephone interception and vehicle tracking by the police prior to the robbery. And in his summing up the trial judge reminded the jury of his earlier direction about Ms Wilson. Those directions were reproduced in Ilievski (No 2) at [96]-[97].
12. In this Court, the majority held that both Nolan and Ilievski had suffered a miscarriage of justice. As to Nolan, Dhanji J said: [105] … Evidence that Mr Nolan was known to have robbed a bank before was bad enough. But, in the context of the high level of police interest in him at the time of the present offence, together with the serious nature of the offence charged, including the attempt to discharge a firearm in the direction of the witness, there was, in my view, an undeniable risk that the jury would be impacted by what they knew or deduced about Mr Nolan's past, or at least police views as to his past.
13. As to Ilievski, his Honour explained: [107] Mr Ilievski was not directly affected by the inadmissible and prejudicial utterances of Ms Wilson. They said nothing about his character, at least directly. However, the evidence established a close connection between Mr Nolan and Mr Ilievski around the time of relevant events. Further, the evidence of tracking devices and telephone interception established a significant police interest in Mr Ilievski which coincided with the police interest in Mr Nolan. Mr Nolan's involvement in the robbery tended to make Mr Ilievski's involvement significantly more likely. Given this, and for the reasons set out above in relation to Mr Nolan, Mr Ilievski has established a miscarriage of justice in his case.
14. Dhanji J then considered the proviso, holding that he could not be satisfied that there had been no substantial miscarriage of justice: at [108]-[112]. On that basis the appeals were upheld and the convictions were quashed, including Nolan's conviction with respect to being conveyed in a stolen vehicle. New trials were ordered, although his Honour noted that the appropriateness of holding yet a further trial was a matter for the Director of Public Prosecutions: at [112].
15. Beech-Jones CJ at CL dissented. His Honour concluded that "[i]n light of the directions that were given by the trial judge, I am not satisfied that the uttering of the portions of Ms Wilson's evidence … in the presence of the jury occasioned a miscarriage of justice" (at [19]). The difference between the view of his Honour and that of the majority did not turn on the content of legal principle but on application of relevant principles to the facts.

Application to extend time

1. The applicant filed a notice of intention to appeal on 2 February 2021, the day after he was sentenced. No appeal was brought within the time permitted. Some three and a half years later, on 16 August 2024, the applicant filed a notice of appeal against his convictions. The decision in Ilievski (No 2) had been handed down on 6 October 2023.
2. The applicant's current solicitor, Mr Paul Hardin, has provided two affidavits explaining the circumstances of the delay. In the trial before King DCJ the applicant had been represented by another firm of solicitors, funded by a grant of legal aid. After the applicant was sentenced those solicitors obtained a limited grant of further legal aid to investigate the merit of a proposed conviction appeal. Counsel then retained formed the view that there was no such merit, and thus no further grant of legal aid was approved. Mr Hardin testified that the applicant instructed him that "he was unable to fund a conviction appeal privately"; that he "did not feel that he was capable of running an appeal himself"; that "he was not aware" that Nolan and Ilievski had appealed; and that the first he heard of that appeal was when his former solicitor contacted him in November 2023 about the success of that appeal. In the circumstances the applicant wished to retain a different solicitor, contacting Mr Hardin around 4 December 2023. On 6 December 2023 Mr Hardin lodged an application for legal aid, which was granted on 19 February 2024. Time was then taken with gathering relevant materials, retaining counsel and preparing the appeal.
3. The Crown criticised the delay, submitting that even allowing for the suggestion that the applicant had no reason to see any merit in his appeal until the decision in Ilievski (No 2), the amount of time spent in preparation of briefing materials and written submission was too long. The Crown also argued in written submissions that "there is no explanation for the applicant failing to join the earlier appeal proceeding", but this argument was put before Mr Hardin filed a second affidavit explaining that the applicant had been unaware of that appeal until after it had been decided. The Crown also notes that the retrial ordered in Nolan and Ilievski's proceedings which were previously scheduled to commence on 9 September 2024 had been vacated pending the result of this appeal. Their retrial is currently scheduled to commence in August 2025.
4. There does seem to have been a rather significant delay between a new grant of legal aid being made in February this year and the appeal being filed some six months later. However, that delay should not be held against the applicant. Further, the applicant cannot be said to have acted unreasonably in not pursuing an appeal in the circumstances outlined where he would not have been represented, he had been advised that an appeal had no merit, and he says he was unaware of the appeal of his co-accused (a claim which is at least plausible given he has been in custody at all material times). Once he learnt of the result of their appeal he acted fairly quickly, taken into account his reasonable desire to change solicitors.
5. As noted above, although the Crown formally opposed an extension of time it also accepted that due regard must be had to the merit of the appeal itself: see Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [33]; Illievski (No 2) at [29]; Sayer-Jones v R [2024] NSWCCA 54 at [48]. Although the delay here was significant, taking account of the explanation offered and the fact that it is evident there is some merit in the appeal given the decision in Illievski (No 2), I considered that time should be extended to permit the application for leave to appeal to be brought, pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW).

The claimed miscarriage of justice

1. As noted, the applicant claims that he suffered a miscarriage of justice of the same kind as that found in Ilievski (No 2) with respect to his co-accused, Nolan and Ilievski, namely prejudice as a result of the failure to discharge the jury after the statements by Ms Wilson. The Crown accepted that "there is no substantial difference to be found in the connection of Ilievski to Nolan and the robbery, and the connection of Kwu to Nolan and the robbery". It also accepted that "if leave to extend time is granted, it is open to the Court to find a miscarriage is made [out] in the case of Kwu".
2. The Crown was right to concede that the circumstances of the applicant and, in particular, Ilievski are not distinguishable in any material way. The issue that then arises is how this Court is to approach the appeal. In particular, is it necessary that it consider the issue afresh, without giving any particular weight to the decision in Ilievski (No 2)? If that approach were taken, a majority of the bench as currently constituted would not necessarily come to the same conclusion as the majority of the bench previously constituted. This Court was split on the result of applying the relevant legal principles to the facts in Ilievski (No 2), illustrating that it is an issue on which reasonable minds can disagree.
3. Ironically enough, the same issue was presented to this Court in the applicant's previous appeal where, as in this matter, he had sought belatedly to ride on the coat-tails of the successful earlier appeal of his co-accused. In an ex tempore judgment Bathurst CJ, with whom Ierace J and Hidden AJ agreed, said simply that the appeal should be allowed "[f]or the reasons given by the Court" in Ilievski (No 1): Kwu v R at [9]. It is noteworthy that Bathurst CJ had delivered the lead judgment in Ilievski (No 1), so it was unsurprising that his Honour should reach the same conclusion for the reasons he had earlier given. The other two members of the Court had not participated in the earlier decision. No member of the Court addressed whether some particular principle should apply with respect to following the earlier decision.
4. In this matter the applicant's written submissions - of one page - relevantly said merely that "[f]or the reasons given by Dhanji J the appeal should be allowed".
5. The Crown, on the other hand, provided thoughtful written submissions which did seek to grapple with the issue. It referred to the principle that an intermediate court of appeal should not "depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason to do so": Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 at [25]. As courts including this one have recently articulated, there is much to be said for the view that speaking of there being a "compelling reason" rather than a decision being "plainly wrong" is a more constructive and informative articulation of the principle enunciated by the High Court: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631 at [126]; 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 at [22] and [140]; Moriarty v Nye [2024] NSWCCA 116 at [156].
6. That threshold test applies to prior determination of points of law of the relevant kinds. That is not what is at issue in this case. What divided the Court in Ilievski (No 2) was not the content of legal principle, and no dispute as to legal principle is raised in this case. Rather, the issue in both appeals is the application of accepted legal principles to a particular set of facts. Thus, as the Crown accepted in oral argument, the established "plainly wrong/compelling reason" test is not applicable per se here. However, as the Crown submitted, the case law with respect to the test may still throw some light on the current issue. Underlying that threshold test "are the important goals of fostering stability and predictability in the law and consistency and certainty in the administration of justice": Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 at [74]. The aspiration to consistency manifests "the principle that similar cases should be judged alike, equality before the law being an essential element of the rule of law": Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [300].
7. Some assistance may also be gained from cases in the sentencing context. In Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, at [57], six members of the High Court said that "in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong". How and why that should be so was not explained. Earlier in the judgment it was said that the consistency in sentencing "that is sought is consistency in the application of the relevant legal principles" (at [49]). It may be that the departure referred to at [57] is best understood as a departure from the express or implicit explication of legal sentencing principles with respect to federal offences in earlier decisions.
8. In any event, another statement of principle taken from the sentencing context is important here. In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ stated (footnotes omitted): [28] "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order". It has been called "the starting point of all other liberties". It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (Emphasis in original.) Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner.
9. This discussion was subsequently referred to approvingly in the joint unanimous judgment in Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [30].
10. Similarly, Gleeson CJ said the following in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [6], in a passage quoted with approval in Hili at [47] and Elias at [28] (emphasis as added in Hili): … The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
11. Sentencing, classically, involves exercise of a discretion for which there is no one correct answer. A discretionary decision is relevantly one where "the decision maker is allowed 'some latitude as to the choice of the decision to be made'": Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [15]. Consideration of whether or not there has been a miscarriage of justice is not a discretionary judgment. It involves application of legal criterion which demands a unique outcome: note ibid. That is so even though reasonable people may disagree on what that outcome is.
12. Although the decision required of this Court is not discretionary, the principle of equality before the law has significance here. The aspiration to ensuring equality before the law reaches beyond discretionary judicial decision-making. It is an institutional aspiration of the system of criminal justice, indeed of the justice system generally. Thus, as noted, it is a principle which also underlies adoption of the plainly wrong/compelling reason test.
13. This case is clearly a like case to Ilievski (No 2). Indeed, it involves the same point arising from the same trial for a co-accused in the same position as Ilievski himself. The two cases are materially indistinguishable. For the Court as now constituted to set aside the prior decision and simply reconsider for itself whether or not there has been a miscarriage of justice, potentially reaching a different conclusion, has the potential to be an affront to the principle of equality before the law. It would ignore that this appeal is part of the same criminal justice system which led to the trial and earlier appeal. It would be unduly to elevate the identity of the judges hearing the matter. It might tend to undermine confidence in the administration of justice were two appeals from the one trial, raising the same point, to lead to different outcomes simply because different legal representatives and judges were involved.
14. The principle of equality before the law thus militates in favour of this Court applying the conclusion reached by the majority in the earlier case without simply reconsidering the issue for itself.
15. However, in some cases there could be countervailing imperatives. For example, it may emerge that the earlier decision was decided per incuriam, that is to say, in circumstances where an applicable statutory provision or relevant (and perhaps binding) authority was not drawn to the attention of the bench. In such circumstances the bench hearing the subsequent appeal might be bound to reach a different result. Another possibility is that the first bench did determine some legal principle and in the second appeal that determination is argued to be plainly wrong.
16. Thus there can be no invariable rule that the second bench must always follow the decision of the first. It suffices to say that in a situation such as this one, where the court is determining an appeal which is materially indistinguishable from an earlier appeal decision from the same trial raising the same point, then the court should follow the earlier decision unless there is compelling reason to depart from it. It is neither necessary nor desirable to seek to state some exhaustive list of the considerations which might lead the bench in the second appeal to decline to follow the decision made in the first. As has been said with respect to the established plainly wrong/compelling reason test, "much will depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case": Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at [31].
17. That understanding of the relevant principle gives due weight to the principle of equality before the law, and the aspiration to consistency in the administration of justice, without unduly fettering the power and duty of the court to decide each case on its merits and in accordance with the law as properly understood. It is no coincidence that the approach outlined is consistent with that taken to earlier decisions on a matter of law. The same principles and aspirations underlie both.
18. Here, the Crown has made no attempt to argue that there is any compelling reason why the decision of the majority in Illievski (No 2) should not be followed. On the contrary, it has fairly accepted that it is open to this Court to hold that the applicant has suffered a miscarriage of justice. No compelling reason to take a contrary view is apparent.
19. On that basis, it should be accepted that the applicant has indeed suffered a miscarriage of justice sufficient to warrant an extension of time, a grant of leave to appeal, and orders that his convictions be quashed. The applicant did not oppose the making of an order that a retrial be held. Whether or not the applicant should in fact be subjected to a fourth trial, having been arrested on these charges over 11 years ago, is a matter which depends on the prosecutorial discretion of the Director of Public Prosecutions. It is for these reasons that I joined in the orders made on 23 October 2024.
20. ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Kirk JA. As I agree fully with his Honour, there is no need to do more than state that for the reasons so eloquently expressed by his Honour, I joined in the orders issued by the Court on 23 October 2024.
21. YEHIA J: At the conclusion of the hearing on 23 October 2024, I joined in the orders of the Court, granting leave to appeal, allowing the appeal and ordering a new trial. I have had the considerable benefit of reading the judgment of Kirk JA, in draft. I agree with his Honour's reasons. They accord with my own reasons for joining in the orders of the Court.

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