By Paul Gregoire and Ugur Nedim
The National Australia Bank in Seven Hills was held up on 6 June 2012, just before quarter to three in the afternoon, when a stolen Mercedes pulled up out the front, and two men with face coverings jumped out and ran into the building in an attempt to secure the cash inside.
The men in the bank are alleged to have been Shane Nolan and Mohamad Kwu, while waiting in the getaway car was Tony Ilievski.
Nolan is suggested to have attempted to shoot a bank employee in the leg using a pistol, as she couldn’t unlock the rear security door. However, once it was opened, Nolan is alleged to have entered the area, demanding cash drawers to be opened, which again couldn’t be done. So, he used a screwdriver to pry them open and $15,377 was secured.
The robbery took approximately 90 seconds, a time in which Kwu is said to have carried a sledgehammer and yelled at people in the bank, while the pair of robbers then exited the business, climbing back into the Mercedes that was then parked at the rear of the bank.
NSW police discovered the gun used in the robbery four months later inside Kwu’s car.
Evidence that the stolen Mercedes was stored in a garage owned by Sasha Wilson was also heard during the trial, while telecommunications logs and tracking devices showed Nolan and Ilievski had taken a number of trips to Seven Hills, over the time just prior to the incident.
Circumstantial evidence, or evidence that suggests something had happened but fails to concisely prove it, was then used to see Ilievski, Nolan and Kwu convicted over several offences related to the robbery in 2015.
The NSW Court of Criminal Appeal (NSWCCA) then quashed Ilievski and Nolan’s convictions in 2018, and the same court dropped Kwu’s conviction the following year.
A second trialling of the trio in mid-2019 was further discharged, while a successful retrial and reconviction of the three men, happened when NSW District Court Judge Michael King convicted them all in February 2021 and then sentenced them to prison.
Sentencing at trial
Nolan, Ilievski and Kwu were all convicted on one count aggravated armed robbery, in terms of having a dangerous weapon, contrary to section 97(2) of the Crimes Act 1900 (NSW), which is an offence that carries up to 25 years imprisonment.
Ilievski was further convicted over one count of driving a stolen vehicle, contrary to section 154A(1)(a) of the Crimes Act. Those convicted of this offence are liable to up to 5 years inside.
Nolan and Kwu were also convicted on a count of being driven around in a stolen vehicle, contrary to section 154A(1)(b) of the Crimes Act. And this too carries up to 5 years prison time.
Judge King then sentenced the trio on 1 February 2021. Nolan was sentenced to 14 years gaol time, with non-parole set at 9 years. Ilievski received 16 years inside, with non-parole coming to 10 years and 6 months. And Kwu received 15 years prison time, with non-parole set at 10 years.
Appealing convictions
Ilievski and Nolan appealed their convictions to the NSWCCA last year, on the ground “that the trial judge erred by refusing to discharge the jury”, after witness Sasha Wilson gave evidence that Nolan was “known to have robbed a bank before, resulting in a miscarriage of justice”.
In terms of the evidence that Wilson gave, she testified that she’d had an association with Nolan over January 2011 until the end of June 2012. And she further set out that she’d had an empty garage that she’d allowed Nolan to use, even having provided him with the key.
Wilson also told the court that NSW police detective Luke Hanington told her that he knew Nolan committed the robbery and he threatened her with various consequences if she didn’t make a statement, which she later testified had been fabricated and that she’d been forced to sign it.
Under cross-examination, Wilson then made several suspect remarks in respect of what the detective had told her regarding Nolan.
These comments consisted of the statements, “whilst he was known to have robbed a bank before”, and “he’s the one that’s saying” Nolan “is some bank robber”, as well as “so he said to me that Shane was known to the police”.
NSWCCA Justice Hament Dhanji outlined in his 6 October 2023 ruling on appeal, that each of the remarks made by Wilson had at least the potential to unfairly prejudice the court.
Wilson’s admissions then led to the lawyers for each defendant applying for the jury to be discharged. But the judge refused, as he indicated that instead, the comments would be removed from the court transcript, and he further instructed the jury to disregard the remarks.
Appeal upheld
In warning the jury to discard the suspect comments, Judge King stated that it was irrelevant that these comments had been made by Wilson, as they were simply the opinions of police officers. And he added that if these comments did arise after jurors had adjourned, they should be ignored.
But the appeals court found that taken together the utterances made by Wilson, which involved suggestions that he was “known to have… robbed a bank before” and he was “some bank robber”, there was the potential for jurors to consider these references to past robbery convictions.
And in light of this, Justice Dhanji found that “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”.
And he added that there was 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”.
So, his Honour found that a miscarriage of justice had occurred in terms of Nolan, and the evidence that led to this had a flow on effect in terms of potentially prejudicing the jury in regard to Ilievski and hence, a miscarriage of justice had occurred in respect of the second defendant as well.
On 6 October last year, Justice Dhanji ordered that the appeal was upheld, the convictions against both Nolan and Ilievski were to be quashed and that a new trial be held.
NSWCCA Justice Julia Lonergan agreed with the findings of her colleague. However, in a dissenting opinion, then NSW Chief Judge at Common Law Robert Beech-Jones explained that he didn’t consider any miscarriage had transpired, as the trial judge’s directions had sufficed.
