Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Muhamad Kwu v Regina [2019] NSWCCA 75 Hearing dates: 1 April 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Before: Bathurst CJ at [1]; Ierace J at [12]; Hidden AJ at [13] Decision: (1) Grant the applicant an extension of time in which to appeal. (2) Appeal allowed. (3) Quash the conviction of the applicant on each of the counts proffered against him in the indictment. (4) Order a new trial in respect of each count. (5) Vary Order (7) made in Ilievski v R; Nolan v R to provide as follows: Order that pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the judgment in Ilievksi v R; Nolan v R [2018] NSWCCA 164, not be published until the conclusion of any new trial of the applicants and Mr Kwu on the counts set out in the indictment preferred against them or until further order on the grounds set out in s 8(1)(a) of the Act. Catchwords: CRIME – armed robbery – take and drive conveyance - successful appeal of co-offenders. EVIDENCE – tendency evidence – whether trial judge erred in admitting tendency evidence. CRIME – Appeals – Appeal against conviction - Extension of time in which to appeal. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Cases Cited: Ilievski v R; Nolan v R [2018] NSWCCA 164 Category: Principal judgment Parties: Muhamad Kwu (appellant) The Crown (respondent) Representation: Counsel: P Lowe (appellant) B Baker (respondent) Solicitors: Ross Hill and Associate Solicitors (appellant) Solicitor for Public Prosecutions (respondent) File Number(s): 2013/245378 Publication restriction: Order that pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the judgment in Ilievksi v R; Nolan v R [2018] NSWCCA 164, not be published until the conclusion of any new trial of the applicants and Mr Kwu on the counts set out in the indictment preferred against them or until further order on the grounds set out in s 8(1)(a) of the Act. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Nil Date of Decision: 27 May 2015 (conviction); 4 November 2015 (sentence) Before: Culver DCJ File Number(s): 2013/245378 Judgment 1. BATHURST CJ: The applicant, Muhamad Dean Kwu was convicted of the offence of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW), and the offence of take and drive conveyance contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW). 2. Count 1 alleged that on 6 June 2012 at Seven Hills, the applicant, Mr Tony Ilievski (Mr Ilievski) and Mr Shane Nolan (Mr Nolan), whilst armed with a dangerous weapon (a pistol), robbed Ekta Suri of $15,377 being the property of the National Australia Bank Ltd. 3. The offence of take and drive conveyance involved the allegation that Mr Nolan and the applicant stole a motor vehicle, namely, a 2009 Mercedes AMG sedan, being the property of Robert Klaric. 4. Each of Mr Ilievski, Mr Nolan and the applicant were convicted of each charge proffered against them. Mr Kwu was sentenced to imprisonment for a fixed term of 20 months for the take and drive conveyance offence, and imprisonment for 15 years with a non-parole period of 10 years for the offence of robbery armed with a dangerous weapon. 5. Mr Ilievski and Mr Nolan successfully appealed against their conviction: Ilievski v R; Nolan v R [2018] NSWCCA 164. The facts giving rise to the offences are adequately set out in that judgment and it is unnecessary to repeat them. 6. The basis on which the convictions were set aside was that the trial judge wrongly admitted what was said to be evidence having the "capacity to reveal a tendency" for the applicant, Mr Nolan and Mr Ilievski, to commit robberies together". The Court, in setting aside the convictions and ordering a new trial, directed the Director of Public Prosecutions to supply the applicant with a copy of the judgment. 7. Subsequent to receiving notification of the judgment, the applicant applied for an extension of time within which notice of intention to appeal could be lodged. The extension of time should be granted. 8. The sole ground of appeal was that the trial judge erred in admitting the tendency evidence. 9. For the reasons given by the Court in R v Ilievski; R v Nolan, the appeal should be allowed, the conviction quashed and a new trial ordered. The Crown, in its written submissions, accepts that this is the correct course. 10. It should be noted that in addition to the tendency evidence, the subject of the present ground of appeal, the Crown in its case against the applicant, but not against Mr Ilievski or Mr Nolan, sought to rely on certain additional tendency evidence: see [2018] NSWCCA 164 at [53]. No submissions were made either on this appeal or at the earlier appeal as to whether evidence of that tendency should have been admitted. In those circumstances, it is not appropriate to express any view on its admissibility. 11. In the circumstances, the following orders should be made: 1. Grant the applicant an extension of time in which to appeal. 2. Appeal allowed. 3. Quash the conviction of the applicant on each of the counts proffered against him in the indictment. 4. Order a new trial in respect of each count. 5. Vary Order (7) made in Ilievski v R; Nolan v R to provide as follows: Order that pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the judgment in Ilievksi v R; Nolan v R [2018] NSWCCA 164, not be published until the conclusion of any new trial of the applicants and Mr Kwu on the counts set out in the indictment preferred against them or until further order on the grounds set out in s 8(1)(a) of the Act. 1. IERACE J: I agree with the Chief Justice. 2. HIDDEN AJ: I also agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2019