Ilievski v R; Nolan v R

In proceeding 2013/246682: Shane Nolan (Applicant) Rex (Respondent) Representation: Counsel: A Healey (Mr Ilievski) T Game SC and C O'Neill (Mr Nolan) E Balodis and J Styles (Respondent)

Solicitors: Shephard & Shephard Solicitors (Mr Ilievski) Crimcorp Defence Lawyers (Mr Nolan) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2013/246237; 2013/246682; 2014/380418; 2015/186493 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: R v Nolan; R v Ilievski; R v Kwu [2021] NSWDC 202 Date of Decision: 8 September 2020 (Conviction); 1 February 2021 (Sentence) Before: King SC DCJ File Number(s): 2013/246237; 2013/246682

HEADNOTE [This headnote is not to be read as part of the judgment] The applicants, Tony Ilievski and Shane Nolan, were each found guilty by a jury of one count of aggravated robbery being armed with a dangerous weapon (and other offences, some of which arose from the same incident). Mr Nolan was sentenced by King SC DCJ to 14 years imprisonment with a non-parole period of 9 years in respect of the armed robbery count, and 20 months imprisonment for a related offence of knowingly be conveyed in a stolen vehicle. In addition to the armed robbery count, Mr Ilievski was sentenced for two unrelated offences of aggravated break, enter, and steal. Mr Ilievski was sentenced by King DCJ to an aggregate term of imprisonment for 16 years with a non-parole period of 10 years and 6 months. The Crown case was that the applicants, along with a third accused, were parties to a joint criminal enterprise to rob the National Australia Bank at Seven Hills. It was alleged that Mr Nolan entered the bank with the third accused and carried out the robbery, while the applicant Mr Ilievski was alleged to have driven the getaway car. The primary issue at trial was whether the applicants and the third accused were the offenders of the robbery. The Crown case was circumstantial. Evidence was given by Ms Wilson, who was a friend of Mr Nolan. The Crown alleged that the getaway car was kept in a garage attached to a unit occupied by Ms Wilson. In the course of giving evidence, Ms Wilson said that Mr Nolan was "known to have … robbed a bank before", that he was "some bank robber", and that he was "known to the police". There was also evidence in the trial that the police had the applicants under electronic surveillance, which included tracking devices on their motor vehicles. On the conviction appeal, the applicants, in substantially similar terms, advanced one ground, namely that the trial judge erred by refusing to discharge the jury after Ms Wilson gave evidence that Mr Nolan was known to have robbed a bank before, resulting in a miscarriage of justice. The applicants also sought leave to appeal against their respective sentences. Given the result of the conviction appeals, it was unnecessary for the Court to consider these applications. The Court held (Lonergan and Dhanji JJ agreeing, Beech-Jones CJ at CL in dissent), granting leave to appeal and upholding the appeal: Per Dhanji J (Lonergan J agreeing, Beech-Jones CJ at CL not deciding): 1. In light of High Court authority post-dating Crofts v The Queen (1996) CLR 247; [1996] HCA 22, the test in Crofts v The Queen cannot be applied in its terms. An appeal based on a failure to discharge is to be approached through the distinct steps of miscarriage and substantial miscarriage: at [84]. 2. Crofts v The Queen; Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219, considered; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Maric v The Queen (1978) 52 ALJR 631, applied; Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16; Cox v R [2022] NSWCCA 66; Dries v R [2022] NSWCCA 33; Xu v R [2023] NSWCCA 93, cited. Per Dhanji J (Lonergan J agreeing): 1. An appeal of this kind is against the conviction, not the refusal to discharge the jury: at [52]. Patel v The Queen; Maric v The Queen; Hamide v R, applied. 1. Relevant considerations on a complaint based on the admission of unfairly prejudicial material discussed: at [89]. 2. Despite the careful directions given by the trial judge, the impugned evidence was capable of affecting the jury's consideration of Mr Nolan's guilt. 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, there was 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: at [104]-[105]. 3. In respect of Mr Ilievski, Mr Nolan's involvement in the robbery tended to make Mr Ilievski's involvement significantly more likely and Mr Ilievski has established a miscarriage of justice in his case: at [107]. 4. With respect to the proviso, as the jury may have reasoned that, having been identified as a bank robber, Mr Nolan was more likely to have committed the robbery, and the real potential that the jury would engage in coincidence reasoning, the majority was not satisfied that there has been no substantial miscarriage of justice. The flow on effect is similar for Mr Ilievski: at [111]. Per Beech-Jones CJ at CL: 1. In considering whether a miscarriage of justice has been established, the Court must consider whether the relevant error or irregularity "could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had": at [13]. Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28, applied. 1. The essence of Ms Wilson's evidence was that Detective Hanington (a police officer involved in the matter) told her that he knew Mr Nolan was involved in the subject robbery and that she had to co-operate with the police investigation or else she would suffer various consequences. This conclusion is not affected by the evidence of the surveillance conducted on the applicants at the time of the robbery: at [16]. 2. In construing what the jury would or might have taken from this evidence, one does not put aside the effect of the trial judge's direction in which his Honour effectively told them what it meant: at [17]. 3. In light of the directions that were given by the trial judge, the uttering of the portions of Ms Wilson's evidence in the presence of the jury did not occasion a miscarriage of justice: at [19].

JUDGMENT

1. BEECH-JONES CJ at CL: The applicants, Tony Ilievski and Shane Nolan, seek leave to appeal from their convictions on one count of aggravated robbery while being armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) (and other offences, some of which arose from the same incident). The applicant Nolan maintains one ground of appeal, namely, that the trial judge erred in refusing to discharge the jury after a witness (Ms Sasha Wilson) gave evidence that he was known to have robbed a bank which resulted in a miscarriage of justice. The applicant Ilievski contended that, if the ground of appeal was successful, then a miscarriage of justice also affected his trial because of his association with the applicant Nolan.
2. The background to their applications is set out in the comprehensive judgment of Dhanji J, which should be read together with this judgment.
3. The aggravated robbery for which both applicants were convicted involved the armed hold up of a suburban branch of a bank on 6 June 2012. The applicant Nolan was alleged to have entered the bank with another co-offender and carried out the armed robbery. The applicant Ilievski was alleged to have driven the getaway car. The Crown alleged that the getaway car was kept in a garage that was attached to a unit occupied by Ms Wilson. Ms Wilson was a friend of the applicant Nolan. The jury heard that, at the time of the robbery, the police already had both applicants under electronic surveillance which included tracking devices being placed on their motor vehicles.
4. As described in detail by Dhanji J, the Crown called Ms Wilson to give evidence. In her evidence, Ms Wilson accepted that she signed a statement on 8 August 2013 at Ashfield Police Station. However, she claimed Detective Hanington attended at her home, made threats to have her attend at the police station and then forced her to sign the statement. Ms Wilson was then asked whether she spoke to Detective Hanington at the police station about what would be included in her statement. However, Ms Wilson answered by returning to what Detective Hanington had said to her at her house as follows: "A. [Detective Hanington] 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 he me shoplifting and on drugs and that my son would get taken away from me if I don't. Whilst he 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. CROWN PROSECUTOR Q. He told you not to be a stupid idiot? A. Literally." (emphasis added)

A brief overview of the procedural history

1. The applicants and Mr Kwu were originally convicted by a jury in a trial before Culver DCJ in 2015. The jury there returned verdicts finding the applicants and Mr Kwu guilty of the armed robbery and Mr Nolan and Mr Kwu guilty of the stolen vehicle counts.
2. The applicants appealed their convictions and, on 3 August 2018, this Court set aside their convictions: Ilievski v R; Nolan v R [2018] NSWCCA 164. The Court subsequently set aside Mr Kwu's conviction: Kwu v R [2019] NSWCCA 75. The successful conviction appeal did not affect the sentence imposed on Mr Ilievski for the drive stolen vehicle offence.
3. The applicants and Mr Kwu faced a further trial on 31 July 2019, however, that jury was discharged on an application by the three co-accused at the stage of counsels' addresses. A third trial, the trial the subject of this appeal, commenced with a jury on 4 August 2020.

The Crown case

1. The facts of the robbery itself were not in contention and can be briefly stated.
2. At approximately 2:42 pm on 6 June 2012, a robbery took place at the National Australia Bank branch at Seven Hills. At that time, a Mercedes C63, with number plates AZ 26 MK, a vehicle that had been reported stolen earlier that month, was seen to pull up in front of the bank branch, upon which two men left the car and ran into the bank with their heads and faces largely covered. Upon entering the bank, one of the men (who the Crown alleged was Mr Nolan), armed with a pistol, approached a bank employee, Ms Joanne Morgan, and demanded that she open the security door at the rear of the bank. As a result of a silent alarm being activated, the pin pad access to the rear of the bank was inactive and Ms Morgan could not open the door. Ms Morgan gave evidence that an offender (alleged to be Mr Nolan) pointed the pistol at her leg and pulled the trigger, but the pistol did not discharge. She said he appeared to reload the pistol.
3. The security door was opened by staff in the rear of the bank, and the same offender (alleged to be Mr Nolan) entered the area and yelled at another employee, Ms Ekta Suri, for the keys to the cash drawers. Ms Suri told the offender that she did not know where the keys were. A shot was fired around this time. It was not clear that this was deliberate. The offender then opened the locked set of drawers using a screwdriver-type implement. A total of $15,377 in cash was stolen. A casing and bullet were recovered and forensically examined by police.
4. The other offender in the bank branch (who the Crown alleged was Mr Kwu) carried a sledgehammer and yelled at people on the premises to get on the ground, and assisted the offender alleged to be Mr Nolan by holding the security door open once he had entered rear area of the bank.
5. Approximately 1 minute and 30 seconds after entering the bank, the two offenders ran out of the bank and got into the rear seats of the Mercedes C63, before it drove off. While there was no evidence about anyone seeing a driver of the Mercedes C63, the evidence that the two offenders entered the Mercedes C63 at the rear of the vehicle established the involvement of a third offender driving the vehicle, alleged to be Mr Ilievski.
6. It was the Crown case that the three men planned the robbery and met at the Kennards Storage in Prospect on the day of the robbery, before travelling to Seven Hills to commit the robbery. The Crown relied on a number of circumstantial facts to make out the offences.

The applicants' positions at trial

1. While Mr Nolan did not give evidence, a medical history was tendered on his behalf, indicating he had an injury to his left ankle at the time of the robbery. It was contended by Mr Nolan that calls and messages from his phone on the day of the robbery supported his contention that he was in Ashfield when the robbery occurred.
2. Mr Ilievski did not give evidence. He called Mr Joseph Samia, who operated a business nearby the bank, and gave evidence that Mr Ilievski frequently attended his business. It was contended that this created an innocent explanation for Mr Ilievski to be proximate to the bank.
3. Mr Kwu did not give evidence but relied on the evidence from his earlier trial tendered by the Crown. In that evidence, he said that he was working at the time of the robbery and therefore not involved.

The ground of appeal

1. As noted above, the applicants' sole proposed ground of appeal complains that his Honour erred by refusing to discharge the jury after a witness gave evidence that Mr Nolan was known to have robbed a bank before, resulting in a miscarriage of justice.
2. The appeal is governed by s 6(1) of the Criminal Appeal Act which provides: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
3. The ground of appeal appears to invoke the second limb of s 6 of the Criminal Appeal Act, that is, "the wrong decision of any question of law" with respect to the decision by the trial judge refusing to discharge the jury. The ground either suggests that this was a form of miscarriage of justice (in the sense that the first and second limbs are species of miscarriage), or as I would read it, also invokes the third limb of s 6, complaining of a "miscarriage of justice" as a result of the trial continuing before a jury that had heard inadmissible prejudicial material.
4. It will be necessary in due course to consider the proper approach to an appeal based on a complaint of a failure to discharge the jury. It is sufficient to note, at this point, that whatever might be said as to any uncertainties with respect to the test, it is clear that an appeal in these circumstances is against the conviction, not the refusal to discharge the jury: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [67]; Maric v The Queen (1978) 52 ALJR 631 at 634; Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [78], [126] per Bell P (as his Honour then was with whom Davies J agreed). That may be seen as no more than a reflection of the right of appeal provided by s 5(1) of the Criminal Appeal Act.

The inadmissible and prejudicial material heard by the jury

1. It is convenient to first set out the material heard by the jury leading to the application for its discharge.
2. Ms Wilson was called to give evidence in the Crown case. Her evidence was important to the Crown case to prove a link between the accused and the vehicle used in the robbery.
3. Ms Wilson was given a certificate pursuant to s 128 of the Evidence Act 1995 (NSW), however, this was subsequently withdrawn when she failed to come up to proof and the Crown prosecutor was given leave to cross-examine her pursuant to s 38 of the Evidence Act. It was indicated to her by the trial judge that the grant of a certificate might be reconsidered were she to change her evidence "to something that might incriminate her". Having regard to the matters she admitted, and prior statements she had made, irrespective of any perceived lack of cooperation, her evidence connected her with a car which, on the Crown case, was used in the robbery and thus tended to incriminate her. The witness was not, of course, even with a certificate, protected with respect to any of her evidence that was untruthful. The propriety of withdrawing the certificate and indicating that the decision may be reconsidered were she to change her evidence might be doubted, but need not be considered here.
4. Ms Wilson gave evidence that, in the period between January 2011 to the end of June 2012, she had an association with Mr Nolan. She said he would visit her unit for dinner on occasions as would Mr Nolan's son and their respective partners, although she claimed she did not recall if all four persons attended together. Ms Wilson had use of a garage associated with her unit, but did not have a car. She said that, at some point, Mr Nolan said he had a friend who owned a detailing shop nearby and wanted to store items in the garage. Ms Wilson agreed and gave Mr Nolan the key for the garage. At some stage she asked for the key to be returned and this was done.
5. Ms Wilson was asked a number of questions and claimed to be unable to recall the answers. She was then shown her police statement. She said she had signed the statement but did not write it. She said that she was forced to sign it as a result of threats made to her by the investigating police officer, Detective Hanington. In the course of questioning as to the circumstances in which the statement was made, the following exchange occurred: "Q. On 8 August 2013 when you've told us you signed it, what do you say happened in relation to the statement? A. I was forced to sign this statement. Q. And were you -- A. I got threatened. Q. And where do you say you were threatened? A. Outside my house. Q. Is that sometime before you sent[sic] to the police station? A. Correct. Q. Who do you say threatened you? A. Luke Hanington. Q. And is that why you say you went to the police station? A. Yes. Q. How long were you at the police station for? A. I don't recall. 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 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. CROWN PROSECUTOR Q. He told you not to be a stupid idiot? A. Literally. Q. And that occurred at your house or near your house? A. Outside my house at my front door. Q. And was that on 8 August? A. Yes." (emphasis added)

Other (admissible but) prejudicial material

1. Evidence in the case established Mr Nolan drove a silver Commodore Sedan (BQ 93 AL). Part of the case against him was in the form of evidence of the movement of that vehicle, obtained as a result of a tracking device having been attached to it by police. Evidence was given that tracking devices are used by police where a warrant has been obtained, that they are installed covertly, and that they log the position of the vehicle. Data was obtained for the period from 16 May 2012 to 22 October 2012. It necessarily followed that the police were tracking Mr Nolan's vehicle prior to the commission of the robbery on 6 June 2012.
2. The Crown case additionally relied on a large body of telephone intercept recordings of calls made and text messages sent on mobile phones used by the applicants and others. These were recorded pursuant to what was described as "various warrants that were in place". A mobile telephone associated with Mr Nolan was intercepted from 16 May 2012, and second and third telephones associated with him were intercepted from 6 June 2012 and 12 June 2012 respectively. There was evidence that there was an administrative process involved in obtaining a warrant such that there was a delay between police interest in a telephone number and the warrant being in place. The evidence necessitated a conclusion that at least two of the warrants with respect to telephones associated with Mr Nolan had been sought prior to 6 June 2012.
3. With respect to Mr Ilievski, there was evidence that his vehicle (BVU81U) was tracked from 30 May to 22 June 2012. A telephone associated with Mr Ilievski was intercepted pursuant to a lawfully obtained warrant from 10 May 2012, and a second telephone associated with him was intercepted from 7 June 2012.
4. The evidence of the product of the tracking devices and telephone interceptions was legitimately probative of the guilt of the applicants. That this evidence was being gathered prior to the robbery had the potential for unfair prejudice. There is no challenge to admissibility, and it can thus be accepted that the probative value of the evidence outweighed the danger of unfair prejudice to the applicants: Evidence Act, s 137. It is, however, quite plain from this material, that was properly before the jury, that the applicants were 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.

The test to be applied

1. In Patel v The Queen, the prosecution had, at the appellant's trial, refined the particulars of the charge after leading a significant amount of evidence not relevant to a case based on those particulars. The plurality said, at [67]: "If there was a miscarriage of justice, it was because the prosecution case changed at a very late point in the trial with the result that much of the evidence that had been admitted on the wide-ranging prosecution case no longer remained relevant to the more confined case that went to the jury. This is the matter which requires further consideration. The question is not, however, whether the trial judge was wrong in refusing to discharge the jury on this basis. As Sachs LJ observed in R v Weaver, there is no rule that, where inadmissible or prejudicial evidence is admitted through inadvertence, a jury must be discharged. This statement was referred to with approval by Gibbs A-CJ in Maric v The Queen. His Honour said that when an accused has been convicted, the appeal is not against the failure to discharge the jury, but against the conviction. His Honour's observation remains relevant to a case such as this, even if the test as to what constitutes a miscarriage of justice sufficient to warrant the quashing of a conviction referred to in Maric is affected by what was later said by this Court in Weiss v The Queen." (footnotes omitted)
2. In Maric v The Queen, Gibbs ACJ (as his Honour then was) (with whom Mason and Jacobs JJ agreed) referred to R v Weaver [1968] 1 QB 353, where a complaint about the reception of inadmissible and prejudicial evidence was dealt with as a complaint of error in the trial judge failing to discharge the jury. Gibbs ACJ said (at 634-635): "… it is not an invariable rule that the jury must be discharged [where inadmissible and prejudicial evidence is admitted]. However, in my opinion it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally, although of course one question will arise which will not arise in other cases, that is, whether the giving of the evidence was really the result of inadvertence, or whether it was given deliberately in an attempt to assist the accused. In practice the application of the principles stated by Sachs L.J. in Reg. v. Weaver is not likely to lead to any different result from that which would arise if the appellate court, having decided that inadmissible and prejudicial evidence had been given, went on to consider whether a substantial miscarriage of justice had occurred."

The present matter

1. The ground of appeal complains of error in the refusal to discharge the jury and a resulting miscarriage of justice. For the reasons given above, it is convenient to consider the question of miscarriage resulting from the failure to discharge the jury in the context of the whole of the trial. As discussed above, independent of any complaint of error in the decision not to discharge the jury, the reasons for the decision and corresponding directions will ordinarily require consideration.

The trial judge's reasons

1. His Honour noted, consistent with what I have said above, that the criterion for the exercise of the discretion to discharge the jury is the maintenance of the fairness of the trial, with the test being one of necessity. His Honour stated that "it has been accepted that appropriate directions can be given to dispel any prejudice, and the experience of the Court is that juries will act on the instructions they are given", referring to The Queen v Glennon (1992) 173 CLR 592 at 614-615; [1992] HCA 16 and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] per McHugh J. His Honour qualified his reliance on these authorities, noting there may nonetheless be a necessity to discharge the jury.
2. His Honour referred to the two comments made by Ms Wilson, namely "… whilst he was known to have … robbed a bank before and … what was I meant to do? Like what do you want me to do?" and "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 is some bank robber and I have to …". His Honour observed, with respect to both, that the context was that the witness was being questioned in relation to an interview with police with respect to a robbery that had occurred more than one year prior to that interview. His Honour reasoned that the jury, assuming they had heard what the witness said, would not have taken it to mean that the investigating police officer had referred to Mr Nolan as "a known bank robber". Rather, his Honour expressed the view that the jury would have taken the utterance attributed to the police officer as "a reference to a person he was then seeking to obtain evidence in respect of in relation to the robbery in June of 2012".
3. His Honour pointed out that the utterances occurred on the 14th day of the trial which had, at the time of the decision, been spread out over four weeks. His Honour noted that the trial estimate was five to six weeks, however, it appeared that it was going to take some weeks longer than this. His Honour also noted that, should the jury request the relevant transcript, the relevant passages would be excised and concluded that he had "no doubt, consistent with authority, that properly directed, the jury is capable of ignoring anything that it heard from [Ms Wilson] about any belief that the officer may have expressed to her about the accused or whether he had robbed a bank before". Accordingly, his Honour declined to discharge the jury.

The directions given to the jury

1. The first utterance complained of occurred after the lunch break on 18 August 2020. The evidence continued with the second utterance occurring some 13 pages of transcript later. It was then that the jury were sent out and a discussion took place with counsel as to what was said by the witness. Counsel indicated he would check the transcript overnight. His Honour gave instructions to the witness in the absence of the jury as to the need to provide responsive answers to the questions asked, including the need to refrain from volunteering evidence that the investigating police officer believed Mr Nolan to be a bank robber.
2. As noted above, the applications for discharge were made the following day, with the transcript having become available. Having refused the application, his Honour directed the jury as follows: "HIS HONOUR: Thank you ladies and gentlemen. And I'm sorry that it's taken until now, there's some matters that I needed to deal with prior to bringing you in. And there is something that I need to deal with before we continue with the evidence of Ms Wilson. On two occasions yesterday Ms Wilson referred to what she alleged was a conversation with the police officer in this matter, Detective Hanington as having said something to her to the effect that "Bosty was a bank robber" and of course you would understand that the Crown case is that Bosty is a nickname for Mr Nolan, as you can see from the telephone intercepts or SMS messages that have been tendered so far in the course of the trial. I want to make sure that you understand that you must put those two references by her to Bosty or Mr Nolan as expressed by the officer "a bank robber" are entirely irrelevant to your consideration in this trial. You act on the evidence that's before you. Opinions of police officers or expressions by them of such opinions as to whether someone has committed an offence or not are not evidence, they are never allowed in criminal trials and it is of fundamental importance in order to achieve fairness in this trial that you put those comments that she made entirely out of mind. They were in fact entirely unresponsive to the questions that she was being asked, so please when you retire, if you remember those comments, put them entirely aside. I have directed that they in fact be excised from the transcript in this trial. So if it happens, and in due course as you are able to do in a trial, you ask for a copy of the transcript of her evidence then it will not be contained in her evidence because it will have been removed simply because it's entirely irrelevant and unfair to an accused that she volunteered that information, whether it's true or not. That is whether it's true that the officer said that or not. Thank you, ladies and gentlemen, we'll now continue."

The applicants' criticisms of the trial judge's reasons for refusing the discharge application

1. As noted above, counsel for Mr Ilievski adopted the submissions of counsel for Mr Nolan. On behalf of Mr Nolan, it was contended that the trial judge erred in three respects. Firstly, by mischaracterising the nature of the first impugned statements, secondly, by failing to consider Ms Wilson's unfairly prejudicial evidence in the context of the (admissible) evidence with respect to the electronic and visual surveillance of Mr Nolan, and thirdly, by mischaracterising the evidence as a matter likely to pass into insignificance in the context of the length of the trial. In relation to this third complaint, it was submitted that his Honour's view was misplaced given the reference to the evidence in the summing up.
2. The third complaint highlights the practical reality that focus is likely to be on the question of miscarriage in the context of the impact on the trial, rather than the decision itself. At the time of the decision, his Honour had presumably not finalised the directions to be given in the summing up and was entitled to consider that, in the context of a long trial, there were but two utterances on a single day and a direction addressing those matters on the day following. Clearly, further reference was made in the summing up, but this cannot establish error in the refusal to discharge. Similarly, the evidence given by Ms Wilson on 19 August 2020 that Mr Nolan was "known to the police" was relevant to the impact of the first two utterances, but irrelevant to his Honour's ruling on the discharge application, the evidence having been given after that decision (and after the initial directions on the matter). Events subsequent to the decision refusing the application for discharge are, of course, relevant to the question of miscarriage considered more generally.
3. The first and second complaints can be dealt with together. The words used by Ms Wilson were that Detective Hanington had said that Mr Nolan was "known to have … robbed a bank before". Whilst the words are not to be analysed in the same way one might consider a statutory provision, the word "before" is significant. While the investigation was taking place in relation to a robbery which was, by that time, a year old, the use of the word "before" was apt to suggest involvement in the robbery of a bank on an occasion prior to the occasion being investigated. While counsel for Mr Nolan on this appeal was critical of the trial judge not grasping the nettle and dealing with this meaning in his directions to the jury, there was, in my view, some merit in the trial judge attempting to promote an innocuous meaning effectively passing the comment off by suggesting it was no more than a reference to the police officer's state of mind as to the robbery being investigated. The difficulty, to my mind, is that the attempt to characterise the evidence in that way must be seen in the context that it was known to the jury that Mr Nolan was under investigation prior to the commission of the offence for which he was on trial. In that context, it was far more likely that the utterance that he was "known to have … robbed a bank before" would be understood as an acknowledgment that Mr Nolan was responsible for previous bank robberies. Indeed, it potentially carried a more pernicious implication that he was known in relation to previous robberies, but the police had not been able to obtain convictions, leading to the high level of surveillance and Detective Hanington's interest in obtaining evidence with respect to the present offence.

Miscarriage of justice - Mr Nolan

1. It is convenient to consider the question of miscarriage of justice in relation to Mr Nolan first.
2. I am of the view that, despite the careful directions given by the trial judge, the impugned evidence was capable of affecting the jury's consideration of Mr Nolan's guilt. It is not a universal rule that directions will cure any irregularity. The jurisprudence in relation to appeals such as the present assumes as much: see, for example, Patel v The Queen at [113];]. It also bears remembering that the observations of McHugh J in Gilbert v The Queen (at [31]), referred to by the trial judge, were made in the course of his dissenting judgment. Each case needs to be determined on its own facts, including the effect of any directions that were given to the jury.
3. My reasons are essentially those set out above in my analysis of the trial Judge's reasons refusing to discharge the jury. 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.
4. In Maric v The Queen, Aickin J (at 637), in the context of the applicant having been convicted of an offence involving a bombing, reprised the rhetorical question asked by Larkins CJ in this Court, "how could the tag of bomb maker, and a good one at that, … ever be forgotten by the jury?". While there was no comment here upon Mr Nolan's competence as a bank robber, that does not distinguish the prejudicial impact of the evidence in his case. In considering the circumstantial case against Mr Nolan, a possibility consistent with evidence that may have been open, was more likely to be dismissed by the jury as unreasonable in the context of the impugned evidence. Put another way, a juror weighing alternatives would likely be more comfortable dismissing that alternative in the knowledge that Mr Nolan was known to have robbed a bank before.

Miscarriage of justice - Mr Ilievski

1. 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.

A substantial miscarriage of justice?

1. Having regard to the view I have taken above with respect to the proper approach to a complaint as to a failure to order a discharge of the jury, and my finding of a miscarriage, it is necessary to consider the proviso: cf Hamide v R at [8]. I cannot be satisfied that there has been no substantial miscarriage of justice if I am not satisfied that the evidence, properly admitted at trial, proves the guilt of the applicants beyond reasonable doubt. This is what is commonly referred to as the negative proposition in Weiss v The Queen and allows that, even if so satisfied, the proviso cannot be applied unless I am satisfied that no substantial miscarriage of justice has otherwise occurred.
2. The position in the present case is complicated (or perhaps made more simple) as a result of an earlier decision of this Court upholding an appeal against a conviction at an earlier trial with respect to the same charge: Ilievski v R; Nolan v R. It was necessary for the Court to consider the proviso in coming to that decision. There is no suggestion that the admissible evidence in the present trial was materially different to the evidence in the first trial. It is noteworthy that the error leading to the successful appeal on the first trial was the erroneous reception of the evidence of the involvement of the applicants, with Mr Kwu, in another armed robbery as tendency evidence. That evidence clearly had a similar quality to the present evidence that Mr Nolan was known to have robbed a bank "before". It was in one significant respect more damaging in that the robbery, relied on as tendency evidence, was committed by the same three alleged co-offenders in the current offence. On the other hand, there were also significant differences between the two offences, and the earlier offence had been committed in 2003, which was some considerable time before the current offence, which was committed in 2012. There was, therefore, a logical basis on which the jury should have given the tendency evidence little weight. Indeed, this conclusion follows from this Court's finding that the evidence did not have significant probative value for the purposes of s 97 of the Evidence Act. Of course, unlike the present case, the jury were not told to disregard the evidence.
3. In Ilievski v R; Nolan v R, Bathurst CJ (with whom Fullerton and Campbell JJ agreed), having referred to Weiss v The Queen, Kalbasi v State of Western Australia, and Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [38], said (at [122]-[125]): "122 It is unnecessary to seek to analyse and reconcile the various decisions which preceded Kalbasi and Lane. It suffices to say that it is clear the proviso cannot be applied unless a court is satisfied beyond reasonable doubt that the evidence properly admitted proves that the accused is guilty of the offence. However, while that is a necessary condition for the operation of the proviso, the court must also satisfy itself that, irrespective of whether that condition was satisfied, there was no substantial miscarriage of justice. 123 In the present case, although there was undoubtedly a strong circumstantial case against the applicants, the wrongful admission of the tendency evidence, in my view, leads to the conclusion that there was a substantial miscarriage of justice so as to render the proviso inapplicable. 124 On any view, the prejudicial effect of the tendency evidence was significant. It had the very real potential to lead the jury to reason to the applicants' guilt by coincidence reasoning or by relying, in whole or in part, on reasoning that, because the applicants had committed a robbery together with Mr Kwu on a previous occasion, they committed the robbery for which they were charged. Further, it had the potential for the jury to pay insufficient regard to the properly admitted evidence in determining the guilt of the applicants, or indeed, to convict solely on the basis of the so-called tendency evidence. 125 It follows that the appeal must be allowed, the convictions quashed and new trials ordered."

Proposed Orders

1. I propose the following orders with respect to each applicant: 1. Extend the time in which to seek leave to appeal. 2. Leave to appeal granted. 3. The appeal against conviction is upheld and the applicant's conviction is quashed. 4. A new trial be held. 5. List the proceedings for mention at the Sydney District Court on 13 October 2023.

Amendments 19 October 2023 - [88] word 'case' changed to 'cases' 18 December 2023 - Counsel for Crown added to the Coversheet 04 April 2024 - minor corrections made to [8], [57], [72], [87], [89], [99], [104], [105] 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: 04 April 2024