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Court of Criminal Appeal 3 August 2018

Ilievski v R; Nolan v R

[2018] NSWCCA 164

Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE PROPENSITY, TENDENCY AND COINCIDENCE ARMED ROBBERY ACCUSED OVER 9 YEARS AGO

Citation: Ilievski v R; Nolan v R [2018] NSWCCA 164
Court: Court of Criminal Appeal
Date: 3 August 2018
Judge(s): Bathurst CJ; Fullerton J; Campbell J

Background

Two appellants were convicted by a jury of an armed robbery at a National Australia Bank branch at Seven Hills in June 2012. The Crown's case was largely circumstantial, relying on links between the accused and stolen number plates on the getaway vehicle, their movements and communications around the time of the robbery, and one appellant's connection to the vehicle afterwards.

To strengthen its case, the Crown also tendered tendency evidence. An agreed statement of facts established that the two appellants, along with their co-accused, had been convicted of an armed bank robbery in Victoria in 2003. The Crown argued that the circumstances of the earlier robbery revealed a tendency by the group to commit armed bank robberies together in a particular manner.

The trial judge admitted the 2003 robbery as tendency evidence, finding it had significant probative value and that its probative value substantially outweighed any prejudicial effect. The appellants were convicted and sentenced to terms of imprisonment exceeding 14 years. They appealed against their convictions, with the admissibility of the tendency evidence as the central ground.

  • Whether the trial judge erred in admitting evidence of the 2003 armed robbery as tendency evidence under s 97(1)(b) of the Evidence Act 1995 (NSW)
  • Whether the tendency evidence had "significant probative value" as required by s 97(1)(b)
  • Whether, even if it had significant probative value, the probative value "substantially outweighed" the prejudicial effect as required by s 101(2)
  • Whether, if the evidence was wrongly admitted, the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) could be applied to preserve the convictions

Decision

Issue 1: The test for significant probative value

Bathurst CJ, applying Hughes v The Queen [2017] HCA 20, confirmed that assessing whether tendency evidence has significant probative value requires two distinct inquiries: first, how strongly the evidence supports the accused having the alleged tendency; and second, how much that tendency increases the likelihood that the accused committed the charged offence. A critical caution also applies: courts must not assume the accused committed the charged offence as a step in finding that the tendency is established. That assumption would beg the very question the tendency evidence is meant to help answer.

Issue 2: Whether the 2003 robbery had significant probative value

The Court found the trial judge erred in admitting the 2003 robbery as tendency evidence. Significant differences existed between the two robberies, and the features they shared were common to many bank robberies generally. On that basis, the similarities were insufficient to support, to a significant degree, an inference that the appellants had a particular tendency to commit bank robberies in the manner alleged. The evidence therefore did not satisfy the threshold in s 97(1)(b).

Issue 3: Probative value versus prejudicial effect

Even if the tendency evidence could have been said to carry significant probative value, the Court held that it would still have been inadmissible. The prejudicial effect was substantial: there was a real risk the jury would engage in coincidence reasoning, or reason directly from the prior conviction to guilt on the current charge. A direction to the jury could not necessarily cure that risk, so the requirement in s 101(2) that probative value substantially outweigh prejudicial effect was not met.

Issue 4: Application of the proviso

The Court rejected the application of the proviso to s 6(1) of the Criminal Appeal Act 1912. While a strong circumstantial case existed against the appellants, the wrongly admitted tendency evidence created a substantial risk that the jury convicted on improper grounds, whether through coincidence reasoning, propensity reasoning, or by paying insufficient attention to the properly admitted evidence. That risk constituted a substantial miscarriage of justice, rendering the proviso inapplicable.

Orders Made

  • Leave to appeal granted to both appellants
  • Appeals allowed
  • Convictions of both appellants on the first count (armed robbery) quashed
  • Conviction of Mr Nolan on the third count (motor vehicle theft) quashed
  • New trials ordered in respect of each count
  • The Director of Public Prosecutions directed to provide the co-accused with a copy of the judgment
  • Publication of the judgment suppressed until the conclusion of any new trial, or until further order

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Hughes v The Queen framework requires a two-stage inquiry for tendency evidence: the evidence must significantly support the existence of the tendency, and that tendency must significantly increase the likelihood of guilt on the charged offence.
  • A single prior offence, committed nine years earlier and sharing only features common to bank robberies generally, was insufficient to establish significant probative value under s 97(1)(b) of the Evidence Act 1995 (NSW).
  • Courts assessing tendency evidence must guard against a circular reasoning trap: the charged conduct cannot be assumed as a premise in finding that the accused had the alleged tendency.
  • Even where significant probative value is established, tendency evidence may still be excluded if the risk of propensity or coincidence reasoning creates a prejudicial effect that is not substantially outweighed, and that risk cannot reliably be addressed by jury directions alone.
  • Where wrongly admitted tendency evidence carries real potential to distort the jury's reasoning process, the proviso to s 6(1) of the Criminal Appeal Act 1912 cannot be applied to preserve the conviction, regardless of the strength of other evidence in the Crown's case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)

Cases
- Aravena v The Queen (2015) 91 NSWLR 258; [2015] NSWCCA 288 Ellis v The Queen (2003) 58 NSWLR 700; [2003] NSWCCA 319 Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7 Lane v The Queen [2018] HCA 28 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v Matonwal (2016) 94 NSWLR 1; [2016] NSWCCA 174 Saoud v The Queen (2014) 87 NSWLR 481; [2014] NSWCCA 136 Sokolowskyj v The Queen (2014) 239 A Crim R 528; [2014] NSWCCA 55 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81