Kwu v R [2024] NSWCCA 199

Kwu v R [2024] NSWCCA 199

Where an appeal raises a materially indistinguishable issue from a successful appeal of a co-accused arising from the same trial, the principle of equality before the law and the aspiration to consistency in the administration of justice require that the decision of the earlier bench be followed unless there is a compelling reason to depart. In absence of any compelling reason, the applicant suffered a miscarriage of justice by reason of prejudicial evidence and refusal to discharge the jury, warranting extension of time, leave to appeal and quashing of convictions.

Parties
Applicant: Muhamad Dean Kwu; Respondent: Crown
Jurisdiction
Australia
Judgment Date
22 November 2024
Procedural Posture
Criminal Appeal / Judgment on Application for Leave to Appeal Out of Time and Appeal Against Conviction
Outcome
Appeal allowed; convictions quashed; new trial ordered; extension of time and leave to appeal granted; bail refused (pending application).
Legal Topics
Appeals, Miscarriage of Justice, Equality Before the Law, Extension of Time, Discharge of Jury, Prejudicial Evidence
Criminal Law Appeals Miscarriage of Justice Equality Before the Law Extension of Time Discharge of Jury Prejudicial Evidence

Case Brief

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Parties

Muhamad Dean Kwu

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Judgment on Application for Leave to Appeal Out of Time and Appeal Against Conviction

Legal Issues

  1. 1 Whether extension of time should be granted to seek leave to appeal
  2. 2 Whether refusal to discharge the jury due to prejudicial evidence occasioned a miscarriage of justice
  3. 3 Whether principle of equality before the law requires following previous decision in materially indistinguishable circumstances

Ratio Decidendi

Where an appeal raises a materially indistinguishable issue from a successful appeal of a co-accused arising from the same trial, the principle of equality before the law and the aspiration to consistency in the administration of justice require that the decision of the earlier bench be followed unless there is a compelling reason to depart. In absence of any compelling reason, the applicant suffered a miscarriage of justice by reason of prejudicial evidence and refusal to discharge the jury, warranting extension of time, leave to appeal and quashing of convictions.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered; extension of time and leave to appeal granted; bail refused (pending application).

Orders

  • Extension of time granted to 16 August 2024 for seeking leave to appeal
  • Leave to appeal granted