Antoun v The Queen [2006] HCA 2

HIGH COURT OF AUSTRALIA

GLEESON CJ,

KIRBY, HAYNE, CALLINAN AND HEYDON JJ

Matter No S299/2005

JOSEPH ANTOUN APPELLANT

AND

THE QUEEN RESPONDENT

Matter No S300/2005

ANTOINE ANTOUN APPELLANT

AND

THE QUEEN RESPONDENT

Antoun v The Queen

Antoun v The Queen

[2006] HCA 2

8 February 2006

S299/2005 & S300/2005

ORDER

In each matter:

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of New South Wales made on 16 August 2004 and, in their place, order that:

(a) the appeal be allowed;

(b) the conviction of the appellant is quashed; and

(c) there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation:

Matter No S299/2005

C Steirn SC with B L Clark for the appellant (instructed by Ryan and Bosscher Lawyers)

G E Smith SC with S C Dowling for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Matter S300/2005

P Byrne SC with S W Wilkinson for the appellant (instructed by Ryan and Bosscher Lawyers)

G E Smith SC with S C Dowling for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Antoun v The Queen

Antoun v The Queen

Courts and Judges – Apprehension of bias – Judge sitting alone in criminal trial – Standards of fairness and detachment required of a trial judge.

1. GLEESON CJ. The appellants were jointly charged with demanding money with menaces from Michael Savvas, with intent to steal. The trial was conducted in the District Court of New South Wales before Judge Christie, sitting without a jury. The appellants were convicted, and sentenced to terms of imprisonment. They appealed unsuccessfully to the Court of Criminal Appeal of New South Wales[1]. The sole ground of their further appeal to this Court is that the trial judge conducted himself in such a way that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the appellants ought to be convicted. That ground is conveniently summarised as "apprehended bias". The apprehended bias is said to have arisen from two aspects of the trial judge's conduct in particular: first, the manner in which he dealt with what was described as a submission of no case to answer; secondly, his manner of raising and dealing with a question of bail. 2. The exchanges between the trial judge and counsel in relation to both matters are set out in the reasons of Callinan J. I agree that the ground of appeal succeeds. In relation to the first matter, the trial judge announced his decision, in a peremptory manner, as soon as he was informed that an application would be made on the following day, and he repeated that decision before hearing any argument. He then listened to argument on sufferance, then repeated his decision. As it happens, his decision was right. The submission was without merit. That, however, does not remove the impression created by the course that was followed. In relation to the second matter, as Hayne J has pointed out, the precise status of the appellants' bail arrangements throughout the trial is unclear. Nevertheless, the trial judge's intervention in that issue, in the manner in which it occurred, reinforced the impression earlier created. There is no need for me to add to what has been said by Callinan J and Hayne J about the subject of bail. 3. Although my conclusion that the no case to answer submission was without merit does not alter the consequence that flows from the manner in which the trial judge dealt with it, some wider issues were raised in the course of argument, and I should therefore explain my reasons for that conclusion. 4. Michael Savvas owned a nightclub at Darling Harbour. The business needed proper arrangements for security, and the nightclub licence required a certain number of guards. Security was provided by a firm unconnected with the appellants. In March 2001, Mr Savvas was approached by the second appellant, who offered security services. He said he was happy with his existing provider. 5. Mr Savvas gave evidence of a number of visits from the second appellant between March and June 2001. In the course of those visits the second appellant, as well as drawing attention to the security services he had to offer, asserted that the existing security provider had made an arrangement with the appellants and that, under that arrangement, an amount, ultimately said to be $8,000, was owing to the appellants, who looked to Mr Savvas for payment. The tone of the conversations, as recounted by Mr Savvas, became increasingly threatening. Mr Savvas denied that he owed any money to the appellants, and said he had no need of their security services. He was told he should "consider a payout". He said he "saw that as a serious threat". 6. On 14 June 2001, a number of youths visited the premises while patrons were present, and destroyed furniture. The police were called. There was evidence of intercepted telephone conversations that were capable of being regarded as directly implicating both appellants in the event. On 15 June 2001, Mr Savvas received a telephone call from the second appellant asking whether he had received the warning. 7. On 17 June 2001, the first appellant, accompanied by a group of men, visited Mr Savvas at his nightclub. Mr Savvas had never met him before. The first appellant said: "I'm not here to fuck around, you've got the warning." He demanded a "payout". 8. Mr Savvas went to the police. On 19 June 2001, he had a meeting with the second appellant. Mr Savvas was wearing a concealed listening device. The conversation was recorded. On 22 June 2001, Mr Savvas had a meeting with the first appellant. Again, he was wearing a listening device. The conversation is set out in the reasons of Callinan J. It contains threats, and demands for money. The trial judge found, in his reasons at the conclusion of the trial, that the conversation clearly contained an intimation that future payments would be required, and that it would not be sufficient to pay the amount claimed to have been owing in the past. The trial judge concluded that the evidence revealed "an ongoing protection racket". 9. At trial, because of the recording of the conversations between Mr Savvas and the appellants, the appellants were confronted with irrefutable evidence of demands for money, and of menaces. Whatever the defence case was to be, it had to accommodate that reality. The appellants elected to be tried without a jury. Counsel for the first appellant provided the trial judge, at the commencement of the trial, with a written opening, which is set out in the reasons of Callinan J. The opening made it obvious that the appellants would seek to establish their defence "on the evidence in the Crown case" (that is to say, without the appellants going into the witness box). The defence was said to be "based on a claim of right for monies due and owing arising out of a pre-existing agreement to conduct security at [the nightclub]."