Xe v R (No 2)

[2025] NSWCCA 90

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeals
3. › Appeal against conviction
4. › Liberato direction
5. › Failure to give direction in summing up
6. › Whether trial judge erred in failing to give Liberato direction
7. › Whether earlier appeal decision from same trial should be followed
8. › Criminal Appeal Act 1912 (NSW), s 6
1. Criminal Law
2. › Appeals
3. › Appeal against conviction
4. › Proviso
5. › Application of proviso under s 6 of Criminal Appeal Act 1912 (NSW)
6. › Whether evidence admissible only against applicant constituted material distinction from co-accused's case
7. › Whether earlier appeal decision from same trial should be followed on proviso question
1. Criminal Law
2. › Appeals
3. › Co-accused appeals from same trial
4. › Principle that materially indistinguishable appeals from same trial should be decided consistently
5. › Equality before the law
6. › Whether compelling reason to depart from earlier decision
1. Criminal Law
2. › Murder
3. › Extended joint criminal enterprise
4. › Derivative liability
5. › Whether accused can be liable where principal's conviction overturned

Quick Take

Where a co-accused's conviction appeal from the same trial has succeeded, the Kwu principle requires the court to follow that decision unless the case against the remaining accused is materially distinguishable — and evidence going only to the remaining accused's state of mind or post-offence conduct, rather than to the principal offender's actus reus or mens rea, will not constitute a material distinction for proviso purposes.