Ilievski v R; Nolan v R [2018] NSWCCA 164

Ilievski v R; Nolan v R [2018] NSWCCA 164

The admission of the 2003 robbery as tendency evidence was erroneous because, even if it was capable of supporting the alleged tendency, such evidence did not have significant probative value, as the similarities were common to many bank robberies and there were material differences between incidents. Even if probative value existed, it did not substantially outweigh prejudice, creating a real risk of improper reasoning by the jury. These errors resulted in a substantial miscarriage of justice; therefore, the applicants’ convictions were quashed and new trials ordered.

Jurisdiction
Australia
Judgment Date
03 August 2018
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Decision on Leave to Appeal Against Conviction and Sentence
Outcome
Appeals allowed; convictions quashed; new trials ordered.
Legal Topics
['tendency Evidence' 'propensity' 'probative Value' 'prejudicial Effect' 'bank Robbery' 'application of Evidence Act 1995 (nsw) Ss 97 and 101' 'miscarriage of Justice' 'court Suppression and Non Publication Orders Act 2010 (nsw)']
['criminal Law' 'evidence'] ['tendency Evidence' 'propensity' 'probative Value' 'prejudicial Effect' 'bank Robbery' 'application of Evidence Act 1995 (nsw) Ss 97 and 101' 'miscarriage of Justice' 'court Suppression and Non Publication Orders Act 2010 (nsw)']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Decision on Leave to Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting the 2003 robbery as tendency evidence under ss 97(1)(b) and 101(2) of the Evidence Act 1995 (NSW)' 'Whether the admitted tendency evidence had significant probative value and whether it substantially outweighed its prejudicial effect' 'Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) could apply in the circumstances']

Ratio Decidendi

The admission of the 2003 robbery as tendency evidence was erroneous because, even if it was capable of supporting the alleged tendency, such evidence did not have significant probative value, as the similarities were common to many bank robberies and there were material differences between incidents. Even if probative value existed, it did not substantially outweigh prejudice, creating a real risk of improper reasoning by the jury. These errors resulted in a substantial miscarriage of justice; therefore, the applicants’ convictions were quashed and new trials ordered.

Court Disposition

Appeals allowed; convictions quashed; new trials ordered.

Orders

  • ['Grant the applicants leave to appeal.' 'Allow the appeal.' 'Quash the conviction of Mr Tony Ilievski and Mr Shane Nolan on the first count.' 'Quash the conviction of Mr Shane Nolan on the third count.' 'Order a new trial in respect of each count.' 'Direct the Director of Public Prosecutions to supply Mr Mohamad...