R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270

New South Wales Court of Criminal Appeal

CITATION: R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270

HEARING DATE(S): 1 August 2005

JUDGMENT DATE: 1 August 2005

JUDGMENT OF: Simpson J at 1; Johnson J at 1; Rothman J at 1

DECISION: Each applicant granted bail subject to conditions

CATCHWORDS: application for bail pending determation of appeal to the High Court of Australia

LEGISLATION CITED: Bail Act 1958, s4, s28, s30, s30AA

CASES CITED: R v Wilson (1994) 34 NSWLR 1

Crown - Respondent PARTIES: Joseph Antoun - First Aplicant Antoine Antoun - Second Applicant

FILE NUMBER(S): CCA 2004/1959; 2004/1961

LMB Lampratti SC - Crown COUNSEL: C Steirn SC - First Applicant S Wilkinson - Second Applicant

S Kavanagh - Crown SOLICITORS: Ryan & Bosscher - Applicants

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S): 60046/2004; 60047/2004

LOWER COURT JUDICIAL OFFICER: Dowd J Hislop J Smart AJ

IN THE COURT OF CRIMINAL APPEAL 2004/1959; 2004/1961

SIMPSON J JOHNSON J ROTHMAN J

Monday 1 August 2005 REGINA v Joseph ANTOUN REGINA v Antoine ANTOUN Judgment 1 THE COURT: Sections 30 and 30AA of the Bail Act 1978 relevantly provide: " 30 Power of Court of Criminal Appeal to grant bail The Court of Criminal Appeal may grant bail in accordance with this Act to any person accused of an offence if, in connection with the offence: ... (e) an appeal from the Court is pending in the High Court." 30AA Limitation on power to grant bail Notwithstanding anything in this Act, if: (a) ...; (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to paragraph (a) [an appeal to the Court of Criminal Appeal], bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail." 2 Each applicant has been granted special leave to appeal to the High Court of Australia against an earlier decision of this Court dismissing his appeal against conviction on a single count of demanding money with menaces, allegedly committed between March and June 2001. Each applicant now seeks, pursuant to s30AA, a grant of bail pending the determination of his appeal. Each accepts, as he must, that in order to obtain a grant of bail, he must establish that special or exceptional circumstances exist justifying such a grant. 3 During the course of the hearing of the applications an issue arose as to whether it was necessary for this Court constituted by three judges to deal with the applications or whether it would be possible for the applications to be dealt with by a single judge of the court. During the course of that argument and because it had not been anticipated, counsel who appeared for the Crown sought an adjournment in order to consider the position. The court considered that, bearing in mind the circumstances of the applicants' custody, it would be better to proceed with the determination of the applications by the court as presently constituted. 4 The court has not heard full argument on the issue but is conscious that s28, which grants power to the Supreme Court to grant bail, does not appear to be limited. Section 30 empowers the Court of Criminal Appeal to grant bail in accordance with the Act in the circumstances which here apply. 5 Section 22 of the Criminal Appeal Act makes provision for circumstances in which the Court of Criminal Appeal might be constituted by a single judge and that does not include a bail application. However, in s4 of the Bail Act the Court of Criminal Appeal is defined to include "a judge of that court". Accordingly, there is reason to conclude that a decision such as this might be made by a single judge of the Court of Criminal Appeal, sitting as such or a justice of the Supreme Court as such (see Criminal Appeal Act 1912, s3) and it would be useful if that issue were resolved in some future proceedings. The reason for that is largely administrative in that where bail is granted by this court constituted by three judges any subsequent variations may need to be dealt with by a court of three judges. In any event, it is inappropriate to attempt to reach a final resolution of that issue but it would be useful if the Crown were to bear it in mind in future instances where bail is sought pending a High Court appeal.