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

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ilievski v R; Nolan v R [2018] NSWCCA 164 Hearing dates: 14 March 2018 Date of orders: 03 August 2018 Decision date: 03 August 2018 Before: Bathurst CJ at [1]; Fullerton J at [127]; Campbell J at [128] Decision: (1) Grant the applicants leave to appeal.

(2) Allow the appeal.

(3) Quash the conviction of Mr Tony Ilievski and Mr Shane Nolan on the first count.

(4) Quash the conviction of Mr Shane Nolan on the third count.

(5) Order a new trial in respect of each count.

(6) Direct the Director of Public Prosecutions to supply Mr Mohamad Kwu with a copy of this judgment.

(7) Order that, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), this judgment not be published until the conclusion of any new trial of the applicants on the counts set out in the indictment, or until further order, on the grounds set out in s 8(1)(a) of that Act. Catchwords: CRIMINAL LAW – Evidence – Propensity, tendency and coincidence – Evidence Act 1995 (NSW) ss 97(1)(b) and 101(2) – armed robbery – bank robbery committed with substantially same co-accused over 9 years ago – some differences and some similarities with charged conduct – whether single prior bank robbery is evidence of a tendency or propensity to commit bank robberies in a particular manner – whether evidence has significant probative value – effect of Hughes v The Queen [2017] HCA 20 Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: Aravena v The Queen (2015) 91 NSWLR 258; [2015] NSWCCA 288 Ellis v The Queen (2003) 58 NSWLR 700; [2003] NSWCCA 319 Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7 Lane v The Queen [2018] HCA 28 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v Matonwal (2016) 94 NSWLR 1; [2016] NSWCCA 174 Saoud v The Queen (2014) 87 NSWLR 481; [2014] NSWCCA 136 Sokolowskyj v The Queen (2014) 239 A Crim R 528; [2014] NSWCCA 55 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Category: Principal judgment Parties: In proceeding 2013/246237: Tony Ilievski (applicant) Crown (respondent)