Citation: Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Beech-Jones CJ at CL (dissenting); Lonergan J; Dhanji J (majority: Lonergan and Dhanji JJ)
Background
Two co-accused, referred to here as the first and second applicants, were convicted by a jury of aggravated robbery while armed with a dangerous weapon, arising from an armed hold-up of a suburban bank branch in June 2012. The Crown alleged the second applicant entered the bank with a third offender and carried out the robbery, while the first applicant drove the getaway car. The case was entirely circumstantial, and the central issue at trial was identification.
During the Crown's own case, a witness who had known the second applicant gave evidence. While answering a question about a conversation with a police detective, she blurted out that the detective had told her the second applicant was "known to have robbed a bank before," that he was "some bank robber," and that he was "known to the police." Questioning was immediately interrupted by the Crown prosecutor, and the trial judge later gave careful directions to the jury about the evidence.
The trial judge refused an application to discharge the jury. Both applicants appealed their convictions on the ground that this refusal constituted a miscarriage of justice. The second applicant put the ground directly; the first applicant relied on the same ground by association, arguing that if the second applicant's case was tainted, so was his.
Legal Issues
- Whether the trial judge's refusal to discharge the jury after the witness made the prejudicial statements constituted a miscarriage of justice.
- What test applies on appeal when the complaint is a refusal to discharge a jury following the admission of unfairly prejudicial material.
- Whether, if a miscarriage was established, the proviso applied (that is, whether there was nonetheless no substantial miscarriage of justice).
- Whether the taint from the prejudicial evidence extended to the first applicant by association with the second.
Decision
The majority (Dhanji J, Lonergan J agreeing) held that the correct analytical framework requires the appeal court to ask two distinct questions: first, was there a miscarriage of justice; and second, if so, was there a substantial miscarriage of justice (the proviso question). The majority considered that post-Crofts High Court authority means the test from Crofts v The Queen (1996) can no longer be applied in its original terms. An appeal of this kind is properly characterised as an appeal against the conviction, not against the refusal to discharge.
Dhanji J found that, despite the trial judge's careful directions, the impugned evidence was capable of affecting the jury's consideration of the second applicant's guilt. The evidence, combined with the fact that the jury also knew police had the applicants under electronic surveillance at the time of the robbery, created an undeniable risk that the jury would use what they knew or deduced about the second applicant's past, or police views about his past, when assessing his guilt. This reasoning was capable of infecting the first applicant's case too, because the second applicant's involvement in the robbery made the first applicant's involvement significantly more likely.
On the proviso, the majority was not satisfied there had been no substantial miscarriage of justice. The jury may have reasoned that, having been identified by police as a bank robber before the offence date, the second applicant was more likely to have committed this particular robbery. There was also a real potential for "coincidence reasoning": that the combination of police knowledge of him as a bank robber, their surveillance of him at the relevant time, and the commission of the robbery together made guilt more probable. The majority held that neither the directions nor the otherwise circumstantial nature of the case was sufficient to cure this risk.
Beech-Jones CJ at CL dissented. His Honour concluded that, properly construed in light of the trial judge's directions, the witness's remarks would have been understood by the jury as an account of what Detective Hanington had said to pressure her into cooperating, rather than as independent evidence of prior offending. The Chief Judge considered the directions given were sufficient and that no miscarriage of justice had been established, leaving it unnecessary for him to address the proviso.
Orders Made
For each applicant:
- Time extended to seek leave to appeal
- Leave to appeal granted
- Appeal against conviction upheld and conviction quashed
- New trial ordered
- Proceedings listed for mention at the Sydney District Court on 13 October 2023
The Court noted that the appropriateness of a third trial, having regard to the length of time each applicant had already served, was a matter for the Director of Public Prosecutions. The sentence appeals were not considered, given the outcome on conviction.
Key Takeaways
- The Court of Criminal Appeal confirmed that appeals based on a refusal to discharge a jury must be approached through two distinct steps: establishing a miscarriage of justice, and then determining whether it was a substantial miscarriage. The Crofts v The Queen formulation cannot be applied in its original terms in light of subsequent High Court authority.
- An appeal of this kind is an appeal against the conviction itself, not against the discrete decision to refuse to discharge the jury.
- Where inadmissible and highly prejudicial material is accidentally placed before a jury, even careful judicial directions may be insufficient to cure the resulting miscarriage where the material creates a realistic risk of propensity or coincidence reasoning on a serious criminal charge.
- A co-accused can establish miscarriage by association: where the prejudicial evidence against one accused materially increased the apparent likelihood of the other's involvement, the taint extended to the second conviction as well.
- Determining whether the proviso applies requires the appellate court to assess not merely whether a reasonable jury could have convicted on the properly admitted evidence, but whether the impugned material realistically may have affected the verdict actually returned.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Appeal Act 1912 (NSW), s 8
- Evidence Act 1995 (NSW), s 38
Cases
- Crofts v The Queen (1996) CLR 247; [1996] HCA 22
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Maric v The Queen (1978) 52 ALJR 631
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Cox v R [2022] NSWCCA 66
- Dries v R [2022] NSWCCA 33
- Kwu v R [2019] NSWCCA 75
- Ilievski v R; Nolan v R [2018] NSWCCA 164