Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 Hearing dates: 28 June 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Before: Beech-Jones CJ at CL at [1]; Lonergan J at [22]; Dhanji J at [23]. Decision: (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. Catchwords: CRIME – Appeals – Appeal against conviction – armed robbery of bank – inadmissible and prejudicial material heard by jury – whether refusal to discharge jury a miscarriage of justice – whether substantial miscarriage of justice – test to be applied – appeal upheld. Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: AK v R [2022] NSWCCA 175 AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Attorney-General for the Commonwealth v Finch [No 2] (1984) 155 CLR 107; [1984] HCA 40 AW v R [2023] NSWCCA 92 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Cox v R [2022] NSWCCA 66 Crofts v The Queen (1996) CLR 247; [1996] HCA 22 Dries v R [2022] NSWCCA 33 Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 Hamide v The Queen [2020] HCATrans 85 Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 House v The King (1936) 55 CLR 499 Ilievski v R; Nolan v R [2018] NSWCCA 164 Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 Kwu v R [2019] NSWCCA 75 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Maric v The Queen (1978) 52 ALJR 631 Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595; [1996] HCA 2 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 R v Ahola (No 6) [2013] NSWSC 703 R v Dodd (2002) 135 A Crim R 32; [2002] NSWCCA 418 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 Saunders v R [2022] NSWCCA 273 The Queen v Glennon (1992) CLR 592; [1992] HCA 16 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 X7 v R (2014) 246 A Crim R 402; [2014] NSWCCA 273 Xu v R [2023] NSWCCA 93 Texts Cited: Archbold: Pleading, Evidence & Practice in Criminal Cases (35th ed, 1962, Sweet & Maxwell) Category: Principal judgment Parties: In proceeding 2013/246237: Tony Ilievski (Applicant) Rex (Respondent) 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) 1. Almost immediately after this evidence was given, the Crown Prosecutor was granted leave under s 38 of the Evidence Act 1995 (NSW) to cross‑examine Ms Wilson. Around 11 pages of transcript later, the Crown Prosecutor returned to the topic of Ms Wilson's conversation with Detective Hanington that she said led to her attending at Ashfield Police Station. The following exchange took place: "Q. Are you aware that there are procedures within the New South Wales Police Force to make complaint where one is not happy with how one is treated by police? A. Who is going to believe a shop lifter who was on drugs over a detective, what leg do I have to stand on. I'm trying to protect me and my son, that's all I was doing and that's all I have been doing, I haven't done anything wrong, I don't want to be here I'm constantly attacked by everyone here like I need to be left alone. 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 – [Counsel for Mr Nolan]: I object. WITNESS: -- no. Like this is so unfair. HIS HONOUR: Ms Wilson, will you please stop thank you. WITNESS: No, I don't want to be. CROWN PROSECUTOR: Just stop." (emphasis added) 1. Ms Wilson's reference to "Bosty" was to the applicant Nolan. 2. Counsel for the applicant Nolan then applied to discharge the jury based on the prejudice said to arise from both of the above exchanges. The application was elaborated upon the following day when it seems the transcript became available. The trial judge refused the application. The essence of his Honour's reasons was that the jury would construe the emphasised part of the above answers as a reference to Detective Hanington making a statement to the effect that he was seeking to obtain evidence in relation to the armed robbery the subject of the trial rather than conveying anything about the applicant's criminal history prior to 2012. Having regard to that and the other factors described by Dhanji J at [93], his Honour refused the application. 3. The trial judge then gave the direction noted by Dhanji J at [95]. The direction recorded that the above answers given by Ms Wilson were unresponsive to the questions posed and had been removed from the transcript. The jury were told the answers were "entirely irrelevant" regardless of whether it was "true or not", that is, regardless of "whether it's true that the officer said that or not". The direction suggested that the evidence was referring to an opinion of Detective Hanington that the applicant Nolan had committed the subject robbery and instructed the jury that such subjective opinions were irrelevant. 4. At the hearing of the appeal, Senior Counsel for the applicant Nolan, Mr Game SC, was critical of this direction because, inter alia, it did not address whether Ms Wilson was conveying any knowledge on her own part that the applicant Nolan was a bank robber. Whatever else could be said about the above passages, I have no doubt that Ms Wilson was simply conveying what Detective Hanington said to her and the jury would have so understood her evidence. The context of the questioning was her conversation with Detective Hanington. Similarly, the context of her answers was her complaint about what Detective Hanington had allegedly said to her. It was also submitted that the direction wrongly assumed that the evidence was referring to Detective Hanington's opinion that the applicant had committed the subject robbery as opposed to another robbery committed prior to the subject robbery. I address that contention below. 5. As noted by Dhanji J (at [65]), during Ms Wilson's cross‑examination by counsel for the applicant Nolan, she also said that when she spoke to Detective Hanington outside her home he told her that "Shane [i.e. the applicant Nolan] was known to the police". The trial judge directed her not to continue with her answer. On the following morning when the transcript of the exchange became available, the trial judge asked counsel for the applicant Nolan whether any statement should be made to the jury about that answer. Counsel for the applicant Nolan did not seek any direction and observed, "I think it's very much been canvassed in the business about the robbery". At counsel's request, the trial judge directed that the words "so he said to me that Shane was known to the police" be removed from the transcript. 6. After Ms Wilson completed her evidence, Detective Hanington gave (further) evidence. He said that his interaction with Ms Wilson was "pleasant". He also gave evidence of the presence of the surveillance and tracking devices noted above at [3]. At the conclusion of his re-examination, the trial judge directed the jury, inter alia, that they "must not speculate as to why it was the police placed tracking devices on the two vehicles". 7. Not surprisingly, neither the Crown Prosecutor nor counsel for the applicants made any reference to the excised portions of Ms Wilson's evidence. In his summing up, the trial judge gave the jury a direction which is set out in the judgment of Dhanji J at [97]. The effect of the direction was that the non-responsive answers of Ms Wilson had been removed from the transcript and were not relevant to the trial. The direction did not remind the jury of what Ms Wilson had stated. The jury were provided with a transcript of Ms Wilson's evidence that did not include the excised portions referred to at [4]−[5] and [10]. 8. I am grateful to Dhanji J for addressing the authorities concerning a ground of appeal that relates to the receipt of inadmissible and prejudicial material by a jury in circumstances such as these. I will assume in the applicants' favour that the complaint reduces to a question of whether they have established a miscarriage of justice and, if so, whether the Crown has demonstrated that there has not been a substantial miscarriage of justice (Criminal Appeal Act 1912 (NSW), s 6(1)). In considering the former, 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" (Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [123] per Gageler J and at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; see also Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ). 9. The essence of the complaint made in support of the challenge to the conviction is that the trial judge wrongly characterised the portions of the evidence given by Ms Wilson described above (at [4]−[5] and [10]) as referring to the applicant's involvement in the subject robbery when the jury would have understood the evidence as referring to the applicant's involvement in a robbery that pre-dated the subject robbery. This construction of Ms Wilson's evidence was said to be enhanced by the evidence that the applicants were the subject of surveillance by the police at the time of the subject robbery. 10. The applicant Nolan's construction of Ms Wilson's evidence turns on the significance that might have been attached by the jury to the word "before" in the answer emphasised at [4]. In particular, would the jury have understood that to be a reference to the applicant Nolan committing a separate robbery before the subject robbery as opposed to a bank robbery before Detective Hanington attended at Ms Wilson's home (i.e. the subject robbery)? While I accept that considered in isolation the jury could have construed the reference to "before" as conveying the former, I do not accept that there is a realistic likelihood that the jury would have understood that to be the overall effect of Ms Wilson's evidence. 11. It is important to consider the extracts set out at [4]−[5] together. In those extracts, Ms Wilson was addressing the same conversation, namely what she claimed Detective Hanington said to her when he attended at her home and forced her to attend Ashfield Police Station. The essence of her evidence was that Detective Hanington told her he knew the applicant 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. I do not consider that this conclusion is affected by the evidence of the surveillance conducted on the applicants at the time of the robbery. If, contrary to the trial judge's instructions, the jury was speculating on that topic, then the surveillance would have been understood as the basis upon which Detective Hanington supposedly concluded that the applicant was a bank robber, that is, a person who committed the subject robbery. 12. Further, 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 (see [95]). The trial judge's direction concerned both portions of Ms Wilson's evidence. As noted the direction suggested that the effect of her evidence was that Detective Hanington told her that the applicant Nolan had committed the subject bank robbery. To an extent, this approach of confining the effect of the evidence does address the concern that the jury might construe the evidence as a reference to other bank robberies. In this context, a jury would afford great weight to a trial judge's description of the effect of such evidence. The balance of the trial judge's direction and the direction in his Honour's summing up (see [97]) to ignore this evidence as entirely irrelevant also addresses the concern about the potentially prejudicial effect of the evidence. 13. Finally, I do not consider that any aspect of the ground of appeal is bolstered by Ms Wilson's evidence that the applicant Nolan was "known to the police". While it depends on the context, the phrase "known to the police" does not necessarily convey to a jury that an accused person has a history of criminal convictions as it would to practitioners of the criminal law. This evidence also concerned what Detective Hanington supposedly told Ms Wilson at her house. In the context of this trial, the evidence of the surveillance conducted by the police on the applicants at the time of the subject robbery would have demonstrated to the jury that, by the time Detective Hanington spoke to Ms Wilson, the applicant Nolan was "known to the police". 14. In light of the directions that were given by the trial judge, I am not satisfied that the uttering of the portions of Ms Wilson's evidence set out at [4]−[5] and [10] in the presence of the jury occasioned a miscarriage of justice. Accordingly, I would grant leave to both the applicant Nolan and the applicant Ilievski to appeal their convictions but dismiss their appeals. 15. Both applicants also sought leave to appeal against their sentences. As my opinion in relation to the conviction appeals will not prevail, it is unnecessary to address those applications. 16. LONERGAN J: I agree with Dhanji J and the orders he proposes. 17. DHANJI J: On 8 September 2020, Mr Tony Ilievski and Mr Shane Nolan (the applicants) and their co-accused, Mr Mohamad Kwu, were each convicted by a jury of one count of aggravated robbery being armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) (count 1). Mr Nolan and Mr Kwu were also each convicted of one count of knowingly be conveyed in a stolen vehicle contrary to s 154A(1)(b) of the Crimes Act (count 2). 18. On 1 February 2021, Mr Nolan was sentenced by King SC DCJ as follows (R v Nolan; R v Ilievski; R v Kwu [2021] NSWDC 202): 1. Count 1: 14 years imprisonment with a non-parole period of 9 years commencing on 24 December 2015. The non-parole period will expire on 23 December 2024 and the total term on 23 December 2029. 2. Count 2: 20 months imprisonment commencing on 18 September 2013 and expiring on 17 May 2015. 1. In addition to being sentenced for count 1, Mr Ilievski was also sentenced for two unrelated offences of aggravated break and enter and steal, contrary to s 112(2) of the Crimes Act. Mr Ilievski had previously pleaded and been sentenced to an offence of drive stolen vehicle contrary to s 154A(1)(a) of the Crimes Act (being the same vehicle the subject of Mr Nolan and Mr Kwu's charge against s 154A(1)(b). 2. On 1 February 2021, Mr Ilievski was sentenced by King DCJ to an aggregate term of imprisonment of 16 years with a non-parole period of 10 years and 6 months commencing on 10 January 2018. The non-parole period will expire on 9 July 2028 and the total term on 9 January 2034. The indicative sentences were 14 years imprisonment for count 1, and 4 years and 9 months, with a non-parole period of 3 years, 6 months, and 2 weeks respectively for each of the aggravated break enter and steal offences. 3. The Crown case was that the applicants were parties to a joint criminal enterprise with Mr Kwu to rob the National Australia Bank at Seven Hills on 6 June 2012. The issue at trial was whether the applicants and Mr Kwu were the offenders. The Crown case was circumstantial. 4. The applicants now seek leave to appeal against their respective convictions pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW). The applicants also seek leave to appeal their sentences. In respect of the conviction appeal, Mr Nolan's ground of appeal was as follows: "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." 1. Mr Ilievski's ground of appeal on conviction was in substantially the same terms. In support of the ground, counsel for Mr Ilievski adopted the submissions of senior counsel for Mr Nolan, with brief additional submissions relevant to Mr Ilievski. 2. While the ground, as framed, asserts error in the failure of the trial judge to discharge the jury, the complaint is not one that "involves a question of law alone". Leave is therefore required: Criminal Appeal Act, s 5(1). Having regard to the issue raised, I would grant that leave. Additionally, both applicants require an extension of time in which to seek leave to appeal. Having regard to the explanations for the delay, and my view as to the merits of the appeal, those extensions should be granted. 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. 7. Firstly, the Crown relied on preparatory actions by the applicants and Mr Kwu, including an arrangement with Ms Sasha Wilson for use of her garage for the purposes of storing the Mercedes C63 before and after the robbery. The Crown also relied on evidence that registration plates, used in the commission of the robbery, were stolen prior to the robbery on the night of 22 May 2012. 8. The movements of the men in the lead up to the robbery were also relied upon by the Crown. As a result of lawfully intercepted telecommunications, and tracking devices on the applicants' cars, it was established that Mr Nolan and Mr Ilievski took a number of trips to Seven Hills prior to the robbery. In particular, on the day before the alleged offending, the Crown relied on evidence that Mr Ilievski and Mr Nolan met in Seven Hills. 9. Telephone interceptions also indicated that the applicants and Mr Kwu were in regular communication in the days leading up to the offence. There was also evidence that the participants in the telephone conversations would often say that they will meet "face to face". The Crown relied on an insistence of meeting in person and evidence that the offenders had multiple phone numbers in the lead up to the robbery as evidence they were planning something criminal. 10. The Crown also relied on evidence that placed the applicants and Mr Kwu in an area proximate to the Prospect and Seven Hills area at the time of the robbery. 11. It was contended that the men returned to Seven Hills the evening of the robbery, on the Crown case, to pick up the Mercedes C63 with the view to returning it to Ms Wilson's garage where it was concealed. It was the Crown case that, in the days following the robbery, the car was moved around and its number plates changed to conceal its involvement in the offence. The Crown also relied on the limited use of the car after the robbery and that, upon the eventual seizure of the Mercedes C63 by police in September 2012, gunshot residue was located in the vehicle. 12. The Crown also relied on the discovery of the pistol used in the robbery in Mr Kwu's car some four months after the robbery following his arrest for an unrelated matter. The firearm was located with 11 rounds of ammunition in it, and audio-surveillance evidence from inside that vehicle was relied upon to assert that Mr Kwu was aware that the firearm was loaded. 13. Evidence given by Mr Kwu in his earlier trial in 2015 was tendered by the Crown. 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. 1. 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. 2. 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) 1. After a number of questions in relation to the signing of the statement, leave was granted to the Crown prosecutor to cross-examine the witness pursuant to s 38 of the Evidence Act, the application having been foreshadowed during an earlier break. 2. The Crown prosecutor cross-examined the witness about the contents of the statement she made to police on 8 August 2013. That statement made reference to a person called "Bosty", whom Ms Wilson confirmed in her evidence was Mr Nolan. Ms Wilson, however, continued to claim that Detective Hanington had fabricated the contents of the statement and that she had only signed it because of a threat, made by Detective Hanington, that the Department of Community Services would be called and her son would be removed from her care. 3. Ms Wilson was questioned as to whether she had made a formal complaint in relation to the threats she claimed Detective Hanington had made to her. The following exchange took place: "Q. Are you aware that there are procedures within the New South Wales Police Force to make complaint where one is not happy with how one is treated by police? A. Who is going to believe a shop lifter who was on drugs over a detective, what leg do I have to stand on. I'm trying to protect me and my son, that's all I was doing and that's all I have been doing, I haven't done anything wrong, I don't want to be here I'm constantly attacked by everyone here like I need to be left alone. 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 -- [Counsel for Mr Nolan]: I object. WITNESS: -- no. Like this is so unfair. HIS HONOUR: Ms Wilson, will you please stop thank you. WITNESS: No, I don't want to be. CROWN PROSECUTOR: Just stop. [Counsel for Mr Nolan]: Your Honour, there's a legal matter that I wish to. HIS HONOUR: Yes." (emphasis added) 1. The jury and the witness were then sent out. A discussion then took place as to the evidence given by Ms Wilson in the two extracts set out above. It is apparent that there was some uncertainty as to precisely what was said. Counsel for Mr Nolan indicated that he wished to check the transcript overnight. The witness was called back in and directed as to the importance of giving responsive answers to the questions asked. 2. In further questioning of Ms Wilson, she agreed that she had said in her statement that Mr Nolan asked her if he could use the garage to store something and offered to pay her in exchange. She agreed that in her statement she said that Mr Nolan gave her $300 to $400 for use of the garage, but she denied that this actually occurred. She agreed that her statement indicated she had seen a silver Mercedes parked in the garage. She agreed that in her statement she said she asked Mr Nolan to return the garage door key following which, on 20 June 2012, Mr Nolan sent her a text message asking her to get the key off "Tony". Despite this, she gave evidence that she did not recall the use of her garage involving anyone by the name of Tony. 3. The following morning, 19 August 2020, counsel for Mr Nolan applied for the jury to be discharged as a result of the evidence given by Ms Wilson. The application was joined by counsel for Mr Ilievski and counsel for Mr Kwu. The application was opposed by the Crown. His Honour refused the application and indicated the evidence would be excised from the transcript. His Honour directed the jury in relation to the unresponsive utterances of Ms Wilson with a view to neutralising the potential prejudice. I will return to the direction given by his Honour. 4. The cross-examination of Ms Wilson by the Crown continued. Ms Wilson continued to respond in a manner similar to the previous day, despite being confronted with transcripts of text messages and recordings of telephone calls between her and Mr Nolan. 5. Ms Wilson was cross-examined by counsel for Mr Nolan. She was taken to the attendance of police at her unit on 8 August 2013, the day she subsequently attended the police station and made her statement. The following evidence was given: "Q. The document is dated 8 August 2013, was that the day the police visited you at unit 6 Frederick Street, Ashfield? A. Yes. Q. And was Detective Hanington one of those police officers? A. Yes. Q. What did they say to you, what did he say to you when he introduced himself? A. So, he had evidence of me going to court for shoplifting, he knew that I was on drugs, so he said to me that Shane was known to the police -- HIS HONOUR: No, please. JUHASZ: Objection. HIS HONOUR: Don't continue that answer, thank you. WITNESS: Okay." (emphasis added) 1. Each of the extracts of Ms Wilson's evidence set out above contain, at least potentially, unfairly prejudicial utterances. Before analysing the potential impact of these utterances, it is necessary to have regard to other evidence in the trial which provides important context. 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) 1. 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." 1. Gibbs ACJ continued (at 635): "The test to be applied in determining whether the wrongful admission of evidence has caused a miscarriage of justice has been stated in a variety of ways. Stirland v. Director of Public Prosecutions, [1944] AC 315, at p. 321 is authority for the proposition that there will have been no substantial miscarriage of justice "where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict". In Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed., par. 914, the principle is stated as follows: "Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted. In considering this question, the nature of the evidence so admitted and the direction with regard to it in the summing-up are the most material matters." At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred—see Driscoll v. The Queen (1977), 51 ALJR 731, at p. 743." 1. While not pellucidly clear, it would appear, particularly in Gibbs ACJ's reference to the absence of "justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals" and in the reference to Archbold: Pleading, Evidence & Practice in Criminal Cases (35th ed, 1962, Sweet & Maxwell), Gibbs ACJ approached the matter on the basis that an appellant, in a manner such as this, was required to establish miscarriage as a result of inadmissible and prejudicial evidence, and that, on doing so, the conviction would be quashed, subject to the application of the proviso. Gibbs ACJ expressed the application of the proviso in terms in which it was commonly done prior to (and sometimes after) the High Court's decision in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. As noted above, Mason and Jacobs JJ agreed with the reasons of Gibbs ACJ. Murphy J explicitly and Aickin J implicitly, also determined the matter by considering the separate questions of miscarriage and substantial miscarriage in the terms of s 6 of the Criminal Appeal Act. 2. Returning to Patel v The Queen, having set out that the correct focus is on miscarriage (not error in the decision to refuse a discharge application), the plurality considered the impact of the impugned evidence. Their Honours found (at [118]) that the jury's exposure to prejudicial, yet inadmissible evidence resulted in a miscarriage of justice. Their Honours further observed that, subject to consideration of the proviso, this warranted an order for a new trial. Their Honours (at [125]) referred to Weiss v The Queen in this context, as well as (at [127]) to the post-Weiss decisions of AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 and Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52. 3. The above reasoning in both Patel v The Queen and Maric v The Queen represents, what might, in most circumstances, be regarded as an orthodox approach to s 6 of the Criminal Appeal Act by considering, as separate steps, the question of miscarriage and then the proviso. In Patel v The Queen, the other member of the Court, Heydon J, approached the matter in a similarly, apparently, orthodox way, concluding (at [258]) that there had been a miscarriage of justice and then considering the proviso (at [259]ff). 4. The apparently straightforward position discussed above is, however, complicated by the High Court's decision in Crofts v The Queen (1996) CLR 247; [1996] HCA 22. There, the plurality considered the decision of this Court which focused on the correctness of the trial judge's discretion not to discharge the jury. Their Honours, while endorsing this Court's reasoning, said (at 441): "Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? In our view, in the particular circumstances of this case, that could not be said." (footnote omitted) 1. On one view, their Honours might be regarded as having considered the existence of a "miscarriage of justice" as implicit in the reception of inadmissible evidence which rendered it at least open to the trial judge to discharge the jury. This would not be surprising given the evidence in question was evidence that the appellant had committed further acts of sexual misconduct against the same child complainant. As expressed, however, their Honours appear to have gone directly to a test of the inevitability of conviction, the test then commonly applied to determine the question posed by the proviso to s 6 of the Criminal Appeal Act. 2. Crofts v The Queen was subject to consideration by this Court in Hamide v R, in particular as to whether the test referred to by the plurality should be applied in its terms, or subject to the more recent High Court jurisprudence in, and following, Weiss v The Queen. The appellant in Hamide v R appealed to this Court on the ground that "a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant's trial prejudicial to his interests, and the trial judge's failure to discharge the [jury]". In determining the appeal, Bathurst CJ expressed the view that Crofts v The Queen should be followed in its terms. His Honour said (at [8]): "… the plurality stated what was required was "the risk of a substantial miscarriage of justice" rather than a "miscarriage of justice" as referred to in s 6(1). Two things follow. First, if the conclusion was reached that there was a risk of substantial miscarriage of justice in failing to discharge the jury, it was not necessary to find any separate error of law in the House v The King [(1936) 55 CLR 499 [1936] HCA 40] sense. Second, if the failure to discharge the jury led to such a risk, there does not seem to be any room for the operation of the proviso to s 6(1)." 1. The Chief Justice continued (at [11]): "Unlike Bell P, I do not think the jurisprudence on the proviso to s 6(1) arising from Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 and subsequent cases on the issue including, most recently, Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14; Kalbasi v Western Australia [2018] HCA 7; 92 ALJR 305 and Lane v The Queen [2018] HCA 28; 92 ALJR 689 (Lane), mandates the approach to be taken in cases of this nature. Subject to one reservation, the approach in Crofts which has not been the subject of criticism in this area should be followed where a conviction is sought to be set aside on the ground of miscarriage of justice arising from the failure to discharge a jury." 1. Bell P, as the Chief Justice then was, (at [78]) emphasised that the appeal was not against the failure to discharge the jury, but rather against the conviction. His Honour then observed that the starting point was, as with any appeal from conviction on indictment, s 6 of the Criminal Appeal Act. His Honour said (at [83]-[84]): "83 On its terms, s 6(1) distinguishes between a 'miscarriage of justice' and a 'substantial miscarriage of justice'. The attention to statutory language in Filippou has been a consistent feature of the High Court's recent jurisprudence on the common form criminal appeal statutes: see, for example, Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at 256 [12]; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at 305 [9], 312-3 [31] (Weiss); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at 102 [21] (Baiada). 84 Whether Crofts involves some conflation, as the Crown submitted, need not be resolved in the present case, even if that were an appropriate task upon which this court, as an intermediate court of criminal appeal, could embark, because of the way in which the ground of appeal is formulated. In this context, the Crown's non-invocation of the proviso in the present case may well have been in recognition of the fact that, if the ground of appeal were made out, the appellant would have established that a substantial miscarriage of justice occurred (cf. Filippou at 54-5 [15])." 1. The third member of the Court, Davies J, agreed with Bell P. 2. The issue in the present case is not so easily avoided on the basis of the terms of the ground of appeal. 3. With unqualified respect for Bathurst CJ, I am not of the view that Crofts v The Queen can be applied in its terms. Nor am I, for the reasons which follow, of the view that it is inappropriate for this Court to consider Crofts v The Queen in light of subsequent authority on the proviso. Indeed, this Court has, in cases subsequent to Hamide v R, approached appeals based on a failure to discharge through the distinct steps of miscarriage and substantial miscarriage, albeit with varying levels of attention having been given to the issues raised in Hamide v R: see Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [53]-[59]; Cox v R [2022] NSWCCA 66 at [44]; Dries v R [2022] NSWCCA 33 at [36]-[39]; Xu v R [2023] NSWCCA 93 at [100], [151]. 4. An application for special leave to appeal to the High Court was refused in Hamide v The Queen [2020] HCATrans 085 (12 June 2020). The refusal is of no precedential value: North Ganalanja Aboriginal Corporation & Anor v The State of Queensland & Ors (1996) 185 CLR 595 at 643; [1996] HCA 2; Attorney-General for the Commonwealth v Finch [No 2] (1984) 155 CLR 107 at 115; [1984] HCA 40; X7 v R (2014) 246 A Crim R 402; [2014] NSWCCA 273 at [97]. 5. There are sound reasons, in my view, for not applying Crofts v The Queen in its terms. If, as was stated by the plurality in Patel v The Queen at [67] (and submitted by the Crown on this appeal), Maric v The Queen is affected by Weiss v The Queen, so too must be Crofts v The Queen. 6. Significantly, and impacting the observations of both Bathurst CJ and Bell P, it appears that the Court in Hamide v R was not referred to Patel v The Queen. Indeed, this was a matter of some significance in the special leave application in Hamide v The Queen, which proceeded on the basis that the approach in Patel v The Queen, and not that in Crofts v The Queen, is correct. While not forming a binding precedent, special leave application decisions may, nonetheless, "provide 'guidance' to this Court … amounting to 'dicta' … which has persuasive value": X7 v R at [97]. The refusal to grant special leave in Hamide v R was not an affirmation of the correctness of the decision. Special leave was refused on the basis that the case was not an appropriate vehicle for the resolution of the issue raised. Further, Hamide v R is not authority for the proposition that Crofts v The Queen continues to provide the correct approach. Bell P (with whom Davies J agreed) was explicit in stating that the correctness of Crofts v The Queen did not need to be determined given the terms of the ground of appeal: at [84]. Further, and perhaps more fundamentally, as pointed out by Bell P in Hamide v R, the starting point for any appeal against conviction is s 6 of the Criminal Appeal Act. 7. This Court is bound by relevant High Court authority post-dating Crofts v The Queen as to how s 6 of the Criminal Appeal Act is to be applied. That authority includes Patel v The Queen, together with the various cases dealing with the proviso, including Weiss v The Queen and the case that have followed. 8. It follows from the above that most matters involving a complaint as to the admission of unfairly prejudicial material will be resolved by consideration of whether the applicant has established a miscarriage of justice, and if so, whether the Court can be satisfied that there has been no substantial miscarriage of justice. This will generally involve the following considerations: 1. Was there a miscarriage of justice, in the sense that what occurred had "the capacity for practical injustice" or was "capable of affecting the result of the trial"?: Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ. See also Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41], [47] per Kiefel CJ, Keane, and Gleeson JJ, and at [118]-[123] per Gageler J, where what appear to be functionally equivalent tests were stated. Gageler J said (at [123]): "Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" (178), an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred." 1. As observed by Gageler J, there will be some errors or irregularities so profound that they will constitute, without the need to establish any relationship with the verdict returned, a miscarriage (and a substantial miscarriage). Without foreclosing the possibility, this will not be common in cases involving the reception of inadmissible evidence. 2. The question of the "capacity" of the evidence, or whether it was "capable" of affecting the result (Edwards v The Queen at [74]), or "could realistically" have affected the result (Hofer v The Queen at [123]), will focus on the nature and potential impact of the impugned evidence or irregularity. This is a distinct, anterior, question to that posed by the proviso. See the helpful discussions of "miscarriage of justice" in Tomlinson v R per N Adams J at [120]-[141], and in AW v R [2023] NSWCCA 92 at [48]-[51] per Mitchelmore JA (with whom Davies and Hamill JJ agreed); see also, AK v R [2022] NSWCCA 175 at [2]-[6] per Beech-Jones CJ at CL (with whom Lonergan J agreed); Saunders v R [2022] NSWCCA 273 at [85]-[93] per Simpson AJA (with whom Hamill and Ierace JJ agreed). 3. In considering the capacity of the evidence to have affected the result, it will be appropriate to have regard to the impact of the impugned material in the context of the entirety of the trial, including any directions given in relation to that material: Cox v R at [48] per Beech-Jones CJ at CL (Hamill and Cavanagh JJ agreeing); Tomlinson v R at [60] per Brereton JA; Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 at [599], but not with respect to this aspect). Expressed another way, "irregularity", or any of the various terms used in this context (see Hamide v R at [98]), is not synonymous with "miscarriage": see Hamide v R at [110], per Bell P; Edwards v The Queen at [30], [74]-[75]; cf Weiss v The Queen at [18]; Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [12]; GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [24]. (To Bell P's list of terms used to describe irregularities might be added Sully J's preferred term "blemish", which appears to have first been used by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 519; [1974] HCA 35). 4. In considering whether there has been a miscarriage of justice based on a failure to discharge a jury, the views of the trial judge will be entitled to significant weight. There is no reason to doubt the observation of the plurality in Crofts v The Queen (at 440-1): "The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript." 1. In conducting the evaluation referred to above, trial judges are "neither required nor encouraged 'to take an overly sensitive approach to the accidental receipt of prejudicial material'": Hamide v R at [115] per Bell P, quoting from R v Ahola (No 6) [2013] NSWSC 703 at [17] per Button J; see also Cox v R at [49] per Beech-Jones CJ at CL. 2. While the appeal is from the conviction, this does not preclude an appeal based on the trial judge's decision refusing to discharge the jury: see Crofts v The Queen at 440-441. That is, while the decision on discharge is discretionary and not a question of law (see Hamide v R at [77]), this does not deny the potential for House v The King error in the exercise of that discretion, and a consequent miscarriage of justice: Tomlinson v R at [61]. Attention would then turn to the proviso. (House v The King error on the basis that the decision was not open would likely, perhaps inevitably, also answer the question of the proviso in the same way that an unreasonable verdict will answer the proviso. While later events, such as evidence voluntarily called, may impact on the significance of the unreasonable failure to discharge, it may not be possible to know, particularly where forensic choice has been involved, how those later events have been shaped by the refusal to discharge the jury.) 3. Despite the availability of House v The King error, given it is not incumbent on the appellant to establish error in the decision not to discharge the jury and that, no matter what path is taken, the question of substantial miscarriage of justice will necessarily arise before any conviction is quashed, there is much to be said for an approach which focuses on the impact on the trial of the prejudicial material and the directions given, over any error in the refusal to discharge. The primary significance of the trial judge's reasons for not discharging the jury is likely to be in its expression of the judge's view of the capacity for directions to neutralise the irregularity, and the reasons for that view. 4. With respect to a trial judge's decision on a discharge application, there is no rigid rule to be applied: Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 at [126]. The criterion for the exercise of the discretion is the maintenance of the fairness of the trial and the test is one of necessity: Crofts v The Queen at 440. That should not be misunderstood as creating too high a bar. Necessity is to be understood in the context of the accused's entitlement to a fair trial. Key considerations relevant to the determination as set out in Miller v R (at [126]), include: "(a) the fairness of the trial: Crofts at 440; (b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441; (c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; (d) the stage at which the mishap occurs: Crofts at 440; Maric at 635; (e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; (f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635." 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." 1. The next day, 20 August 2020, in the context of evidence touching on the use of tracking devices and telephone interception, his Honour gave the jury the following direction: "Thank you ladies and gentlemen. Just before we continue, there's an important direction that I need to give you in this trial, and that is this. Members of the jury, you've heard evidence that police tracking devices were fitted to two motor vehicles, namely a Mitsubishi sedan registration BVU 81 U, and a holden Commodore registration [B]Q 93 AL. There is no dispute that the Mitsubishi vehicle is associated with the accused Mr Ilievski, and the Holden Commodore is associated with the accused Mr Nolan. These devices were fitted by police at a time prior to the robbery of the Seven Hills NAB bank on 6 June 2012, that is, on 30 May 2012 in respect to the Mitsubishi and 16 May 2012 in respect of the Commodore. You've also heard evidence that the mobile phone number ending 555 associated with the accused Mr Ilievski was intercepted from 10 May 2012 and the mobile phone number ending 922 associated with Mr Nolan was intercepted from 16 May 2012. And the mobile number ending 324 relevant to the accused Mr Kwu in the name of Samantha Jones was intercepted from 10 May 2012. And you will find those details in exhibit 10. Now members of the jury it is vitally important that you proceed upon the basis of what you hear in this Court as evidence, and nothing else. And you certainly must not proceed upon the basis of any sort of suspicion or speculation; you must not speculate as to why it was the police placed tracking devices on the two vehicles I mentioned before 6 June 2012, and why the mobile numbers that I've just referred to were intercepted before 6 June 2012. You certainly may not infer that it was an indication of itself that the accused Mr Ilievski and the accused Mr Nolan and the accused Mr Kwu had committed any criminal offence. The mere fact the tracking devices and telecommunication interception devices were fitted before the robbery does not mean by that fact alone that Mr Ilievski or Mr Nolan, or Mr Kwu is guilty of the offence of armed robbery as charged. You must anchor all of your thinking upon the fundamental principle at the core of our system of criminal justice under which we operate: that any accused is presumed innocent until and unless the Crown proves them guilty beyond reasonable doubt of an offence that has been charged and is before you. That can only be determined upon the evidence before you, not upon speculation or suspicion or anything of that kind. Speculation and suspicion are not a substitute for proof beyond reasonable doubt. To act on speculation or suspicion would be quite contrary to your affirmation. I just repeat those last two [lines]. Speculation and suspicion are not a substitute for proof beyond reasonable doubt. To act on speculation or suspicion would be quite contrary to your affirmation. Thank you, ladies and gentlemen. …" 1. On 3 September 2020, his Honour summed up to the jury. His Honour repeated the direction set out above in relation to the use of tracking devices and telephone interception. His Honour then gave a further direction in relation to Ms Wilson's evidence as follows: "Now I have repeated that today because it is a very important direction and, accordingly, I have repeated it to bring it back to your attention. You will also recall that there have been occasions, particularly in relation to the evidence of Ms Wilson, that I informed you that certain responses she gave which were, on occasions, not actually responses to the questions that she had been asked, were going to be excised from the transcript because they were inappropriate and entirely unfair. So I am not going to remind you of what they were because I hope you have managed to put them entirely out of your minds but, again, I simply repeat it is important that, having informed you that those reference[s] by her would be excised and were not relevant to your consideration, you pay absolutely no attention to them when you retire to consider your verdicts." 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. 4. The concerns raised by the first utterance are exacerbated by the second utterance that "Bosty is some bank robber". The second utterance, in isolation, could be explained as a reference to the offence charged. It must, however, be acknowledged that, rather than a reference to a specific event, the reference was to Mr Nolan as "some bank robber". The context of the crime charged is important in this respect. The well organised and callous manner in which the robbery was undertaken suggested that it was the work of criminals who had engaged in such activity before. That is, it was committed by "bank robbers" in the sense of persons who were not novices with respect to such offences. Describing Mr Nolan as "some bank robber", in the context of the first utterance and the surveillance evidence, had the tendency to suggest he fitted the key characteristic (i.e. a bank robber) of the offenders responsible for the present offence. Whether he was one of the offenders was the central issue in his trial. 5. There is, consequently, force in the applicants' criticisms of the trial judge's reasons. When considering the question of miscarriage, this impacts the deference that might otherwise be paid to the trial judge's reasons. 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." 1. The reasoning of Bathurst CJ (at [124]) applies with similar force to the material before the jury that Mr Nolan, and Mr Ilievski by association, was a bank robber. The jury may have reasoned that, having been identified as a bank robber by police prior to 6 June 2012, Mr Nolan was more likely to have committed the bank robbery on 6 June 2012. Additionally, it had the real potential that the jury would engage in coincidence reasoning based on police knowledge of Mr Nolan as bank robber, their surveillance of him at the time, and the commission of the robbery on 6 June 2012. Neither mode of reasoning operates directly to Mr Ilievski. Nonetheless, the flow on effect to him is similar. 2. It follows that the appeals must be upheld and the convictions quashed. I would order a new trial: Criminal Appeal Act, s 8. The appropriateness of a third trial in light of the length of time each applicant has served in relation to the offence is a matter for the Director. 3. Given the view I have taken as to the conviction appeal, which I understand is shared by a majority of the Court, it is unnecessary to consider the applications for leave to appeal against sentence. 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