Antoun & Anor v The Queen

[2005] HCATrans 823

[2005] HCATrans 823

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S299 of 2005

B e t w e e n -

JOSEPH ANTOUN

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S300 of 2005

B e t w e e n -

ANTOINE ANTOUN

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 2005, AT 10.07 AM

Copyright in the High Court of Australia

__________________

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR S.W. WILKINSON, for the appellant, Antoine Antoun.  (instructed by Ryan and Bosscher)

MR C. STEIRN, SC:   May it please the Court, I appear with my learned friend, MR B.L. CLARK, on behalf of Mr Joseph Antoun.  (instructed by Ryan and Bosscher)

MR G.E. SMITH, SC:   If the Court pleases, I appear with my learned friend, MS S.C. DOWLING, for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this appeal concerns the conduct of a criminal trial by a judge sitting without a jury and raises questions regarding the conduct of the judge and, in particular, whether that conduct demonstrated or gave rise to a suspicion that he may have prejudged or might prejudge the matters that he was called upon to decide.  Your Honours, the particular occasions during the trial proceedings when the issue in question arose were two in number effectively.  The first of those occasions concerned the consequence of an indication by senior counsel then appearing for one of the appellants that there would be an application for a directed verdict.

GLEESON CJ:   May I just get something straight in my own mind.  What are the elements of the offence of demanding money with menaces?

MR BYRNE:   The elements of an offence of demanding money with menaces that they are initially a demand made of a person in circumstances which effectively amount to stealing, that is, that the person making the demand intends to permanently deprive the person of whom the demand is made of the, in this case, the money.  Those are essentially the elements of the offence.

GLEESON CJ:   Is it an element of the offence that the money that is demanded is not in fact owed to the person who utters the menaces?

MR BYRNE:   To the extent that if that is the factual situation, then one of the elements is not capable of being established.  That is, the intention to permanently deprive the person of whom the demand is made of the money in circumstances amounting to stealing.  If the person making the demand has in fact a claim of right to the money, then it does not constitute the offence of demanding money with menaces because the circumstances do not amount to stealing.

GLEESON CJ:   That is what I am interested to understand.  So that if I go to a debtor and say, “Unless you pay me the debt I’m going to shoot you”, whatever offence I might be committing, I am not committing the offence of demanding money with menaces.

MR BYRNE:   That is right, your Honour.

GLEESON CJ:   Thank you.

MR BYRNE:   The first occasion on which the issue of apprehended bias in the sense that the trial judge may have prejudged the issues he was called upon to determine arose, as I said, when it was first disclosed by senior counsel for one of the appellants that he intended to make an application for a directed verdict on the basis that there was no case to answer.  That exchange between counsel and the learned trial judge appears at page 213 of the appeal book, if I could take your Honours to that passage.

At page 213, just above line 30, it was said on behalf of the appellant, Joseph Antoun:

Well your Honour, there will be an application tomorrow for no case to answer. 

HIS HONOUR:   I see well that application will be refused.  So how [long then] will the defence case take?

There was then some further exchange.

KIRBY J:   Now, just let us pause there.  If the judge had said, “Well, as I am presently minded I would be inclined to refuse that, so may I ask you in that eventuality how long would the defence case take” would there be any complaint?

MR BYRNE:   There would not, if those terms had been used.

KIRBY J:   It is the peremptory nature and apparently conclusive nature that you are objecting to.

MR BYRNE:   Precisely, your Honour.  It is our submission that what his Honour there said does not represent what has been sought to be characterised as a provisional or preliminary view about the fate of the application for a directed verdict.  It represents a concluded view on the part of the learned trial judge.

GLEESON CJ:   Over the years I have heard many tentative expressions of judicial opinion that are capable of being misunderstood.

MR BYRNE:   Certainly, your Honour.

KIRBY J:   Of course the Bench is made up of a myriad of different personalities and people have different ways of expressing themselves and some are more circumlocutious and longwinded than others.  Others are given to more direct expression.

MR BYRNE:   Certainly.

KIRBY J:   I think you would agree that the silent judge is the greatest menace of all.

GLEESON CJ:   One of the greatest.

KIRBY J:   The judge who puts matters so that they can be answered is at least giving you the opportunity to influence his or her decision.

MR BYRNE:   Certainly the question is put in terms that do give an opportunity for the decision to be discussed and to be considered then there is no objectionable approach taken.  The problem with the approach that the judge took in this case that it represented a determined and conclusive view about the outcome of this application without having heard anything of the nature of that application, the basis on which it was to be made.

GLEESON CJ:   That is what I am interested in, Mr Byrne.  I just do not have a feeling at the moment for what stage the trial had reached.  I mean, obviously it had reached the stage where it was getting towards the end of the prosecution case but what, if anything, had gone on before that stage to indicate what the nature of the defence was going to be?

MR BYRNE:   There had been an opening made by senior counsel for the appellant which disclosed certain aspects of the defence case.

GLEESON CJ:   Where do we find that most conveniently?

MR BYRNE:   Perhaps the most convenient place, your Honours, is in the judgment of Justice Smart in the judgment of the Court of Criminal Appeal.  It is set out in his Honour’s judgment at paragraph 126 which is on page 810 of the appeal book.

GLEESON CJ:   But presumably it is somewhere before page 213 in the transcript?

MR BYRNE:   It was a written opening.  I am not sure that it was in fact transcribed in the materials.

GLEESON CJ:   Is there a reference to it in the transcript?  I would just like to locate it.

MR BYRNE:   There is reference to a discussion of it at page 12 in the appeal book, but the material is fully set out in the judgment of Justice Smart.

CALLINAN J:   Like the Chief Justice, I would like to know precisely when this was provided to the trial judge.  There was a short written opening, was there?

MR BYRNE:   Yes, your Honour.

CALLINAN J:   Was that before the Crown case went into evidence?

MR BYRNE:   Yes, your Honour, as I understand it.

CALLINAN J:   I am not familiar with the procedure in New South Wales.  So what happened?  There was an opening by the prosecution, is that right?

MR BYRNE:   Yes.

CALLINAN J:   Then a brief opening by the defence?

MR BYRNE:   Yes, your Honour.

CALLINAN J:   Is that the standard practice in New South Wales?

MR BYRNE:   It is not standard practice, your Honour, and in fact in each case in this case the openings were in writing and that is certainly not standard practice.  It is standard practice, of course, for the Crown to make an opening in a criminal trial whether it be before a judge sitting alone or before a judge sitting with a jury.

CALLINAN J:   It is almost always orally?

MR BYRNE:   Yes, your Honour, that is right.

GLEESON CJ:   Some judges often give defence counsel the opportunity to state the nature of the defence case before the evidence commences, but that is an opportunity that is not always warmly embraced.

MR BYRNE:   That is quite right, your Honour.

GLEESON CJ:   Particularly if the nature of the defence case is, “I was rather hoping the main witness for the prosecution would get ill”.

MR BYRNE:   Yes, certainly, or, as it is sometimes put, there is some fortunate outcome in the Crown presentation of its case that was not anticipated.  But here the course taken was ‑ ‑ ‑

CALLINAN J:   Mr Byrne, the counsel for the defence must have anticipated or known that this opportunity was going to be provided because the brief written outline was already ready, is that correct?

MR BYRNE:   Yes, your Honour.

CALLINAN J:   Thank you.

MR BYRNE:   What happened here, if I can take your Honours perhaps back to page 810 of the appeal book, it is in the second volume, the opening is set out there in the judgment of Justice Smart at 810 and 811 where in short terms the nature of the defence case was disclosed to the trial judge. 

KIRBY J:   The entire submission is not in the appeal book, is it?

MR BYRNE:   Yes, your Honour.

KIRBY J:   We just have the extract in Justice Smart’s reasons.

GLEESON CJ:   No, it is the whole thing.

MR BYRNE:   That is the whole thing.

KIRBY J:   That was it?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   That is the defence case on the bottom of page 810 and the top of page 811?

MR BYRNE:   Yes, your Honours, as set out in the opening that was made at the beginning of the trial.

GLEESON CJ:   And it was the defence case that the defence case would be established on the evidence in the Crown case?

MR BYRNE:   Yes, your Honour, that was as it was put in the opening.  Your Honours, what occurred following - if I can take the Court back to page 213 of the appeal book.  I have taken your Honours to the exchange that occurred alongside approximately line 30 and if I could take your Honours just a little further.  It should be said, if it is not already clear, where his Honour said that the Crown case was closed, just referring over to page 212 at the top of the page, it was there that the Crown Prosecutor indicated that she was about to close her case.  There was in fact some short additional evidence called of a formal nature, but at this stage the Crown case had for all practical purposes been completed.  It was then that the indication was made by defence counsel that there would be the no case submissions put and it was then put in challenge to the approach taken by the trial judge alongside line 40:

But you’ve heard not one word of any submission by either of us –

that is either counsel for the appellants –

upon either the law or the fact.

HIS HONOUR:   No, I’m simply telling you the application will be refused.

Again, in our submission, a concluded view about the outcome of the application yet to be made.  The proposition was then put by senior counsel:

Might I ask your Honour to stay your Honour’s judicial hand . . . 

Until such times as you’ve heard submissions by both defence counsel.

HIS HONOUR:   Right, now when I’ve heard those submissions will you be in a position to proceed with the defence case?

Again, in our submission, an indication by the trial judge that he had determined to dismiss the application that there was no case to answer.  Those three expressions of what we would submit was a concluded view were followed up by the written judgment which his Honour gave.

GLEESON CJ:   Are you going to pass over what is said at line 10 on page 214?

MR BYRNE:   I did not intend to pass over it.

GLEESON CJ:   What are we to make of that?  Are we to disbelieve that?

KIRBY J:   There are two ways to read it, are there not?  One is, I will consider any submission you put with an open mind and the other is, I will consider any submission you put but only because I am obliged to do so.

MR BYRNE:   It does not, in our submission, overcome the impression created by what has preceded those words.

GLEESON CJ:   He does say “I’ll consider any submission”.  It does not say, “I will listen to any submission”.  There is a difference.

MR BYRNE:   Yes.

GLEESON CJ:   I am just wondering what an appellate court makes of a statement like that by a judge in the context.

MR BYRNE:   It is an expression by the trial judge that he will consider anything that is put to him but in the context in which that statement is made, that is having effectively three times told counsel that the application will be dismissed, it has, in our respectful submission, a somewhat hollow ring and does not overcome the adverse impression already created by the approach taken in the preceding exchange.

KIRBY J:   In particular, I would think, with the second sentence “I’m obliged to consider” it.  He is not really, with all respect to his Honour, appearing to indicate an open‑minded willingness to consider and give full weight and evaluation to what is said.  He is doing it because that is what the law obliges him to do not because justice obliges him to do it.

MR BYRNE:   It does not indicate, in our submission, any preparedness to change his mind from the concluded opinion that he had already expressed.

KIRBY J:   Unless the word “consider” imports the open‑mindedness that the law requires, but at the very best it is a rather grudging statement by his Honour.  Was this sound recorded – this trial?

MR BYRNE:   Yes, it was.  At one stage, fairly shortly after, there was an application made for the tape that had recorded the proceedings to be replayed so that both counsel and the Bench were, as it were, ad idem as to what precisely had been said by the trial judge but that exchange comes a little later.

Your Honours, the following day - this exchange occurred at the end of the proceedings on the Thursday afternoon of 3 April – there was a formal application made by both counsel for the appellants that the judge should disqualify himself from further hearing of the matter.  That is recorded, your Honours, at page 215 of the appeal book, at line 40.  There were written submissions that were prepared and handed to his Honour to support that application and if I can just take your Honours to the passage where in fact the tape was played, on the following page, at page 216 of the appeal book ‑ ‑ ‑

KIRBY J:   Is it relevant that this was a case where your clients had elected for trial by judge alone, in the sense that the judge is not only making the procedural directions but he will be the ultimate decision‑maker on the guilt or non-guilt of your client?

MR BYRNE:   It is not relevant, in our submission, in determining the standards that should apply to the judge regarding questions of whether there is a reasonable apprehension of prejudgment on his part.  That is what the applications for disqualification were essentially based on and, in our submission, the fact that the judge was sitting as a judge alone is not a relevant consideration in determining whether the standards are different in those circumstances from, for example, if there is a jury ‑ ‑ ‑

KIRBY J:   Well, that may be right, but I have seen cases where a judge has been peremptory and sometimes lacking in patience or even rude, but ultimately there is a jury sitting there, or the jury may be absent, but ultimately the jury can often correct these things in the final wash‑up, whereas here there is wrapped up in the one person the decision making on procedural matters and the ultimate outcome of the merits of the Crown’s case against your client.

HAYNE J:   In a case where the defence opening had been, in essence the defence case is the Crown case.

MR BYRNE:   Yes, your Honour.  The fact that the judge was sitting as a judge alone does not, in our submission, change the impression that might be created in a reasonable observer of what he in fact said.

KIRBY J:   To the contrary, I am thinking that maybe it adds to the duty on the judge, after all a jury is generally silent.  The judge cannot be silent because he has a mixture of obligations but the jury does not, as it were, signal the kind of possible prejudgment that the judge does.

MR BYRNE:   No, certainly, your Honour.  The jury’s role naturally enough is a silent one and other than a situation perhaps in which a question is asked by the jury, or questions are asked ‑ ‑ ‑

KIRBY J:   Which is exceptional.

MR BYRNE:   Yes, your Honour.  Your Honours, the application made at this stage of the trial proceedings for the judge to disqualify himself was dealt with by his Honour in ‑ ‑ ‑

GLEESON CJ:   Where do we find the written submissions that are referred to on page 213?

MR BYRNE:   The written submissions, I think, are referred to on page 215.

GLEESON CJ:   Sorry.  Page 215 refers to the fact that some written submissions are handed up?

MR BYRNE:   Yes.

GLEESON CJ:   Where do we see the written submissions that were handed up on page 215?

MR BYRNE:   Those submissions were inadvertently excluded from the appeal books but they were filed in the Registry of the Court yesterday and they should be with your Honours.  They are in fact summarised, in a large measure, in the judgment of Justice Sully whose judgment on a question of bail was ‑ ‑ ‑

GLEESON CJ:   I have them behind a memorandum from the Registry of 5 October 2005.

MR BYRNE:   That was yesterday.

GLEESON CJ:   In fact there are two documents, one is called a “JOINT APPLICATION BY BOTH ACCUSED FOR TRIAL JUDGE TO DISQUALIFY HIMSELF”, and one is called “OUTLINE OF SUBMISSION THAT THERE IS NO CASE TO ANSWER”.  Were they both handed up at the same time?

MR BYRNE:   No, your Honour.  The submissions on the application for the judge to disqualify himself were handed up on the morning of 4 April.  That is referred to at page 215 of the appeal book at line 45.

GLEESON CJ:   Thank you.

MR BYRNE:   The latest submissions in relation to the no case argument were handed up ‑ ‑ ‑

HEYDON J:   Page 220, line 33.

MR BYRNE:   Thank you, your Honour, and dealt with in a short written judgment at page 237.  For the purpose of the application for the judge to disqualify himself those written submissions were dealt with by his Honour in a written judgment which appears at page 238 of the appeal book.

HEYDON J:   At page 237 the trial judge said:

I propose to publish some reasons.  I shall not do that this afternoon -

Was that foreshadowed publication something that came to pass?

MR BYRNE:   No, ultimately he did not publish any further reasons.

HEYDON J:   The totality of them is page 237?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Where do we find the prosecution’s submissions there referred to?

MR BYRNE:   The reference at page 237, is your Honour asking?

GLEESON CJ:   Page 237 says:

Both accused and the Crown have –

placed some written submissions.  We now have the written submissions of the accused.  Where do we find the written submissions of the Crown?

MR BYRNE:   Your Honours, I do not have a copy of the Crown submissions in relation to that matter.  My learned friend has copies of the submissions that were filed by the Crown and he will undertake to have copies made for the Court.

GLEESON CJ:   Thank you.  It seems necessary to complete the record.

MR BYRNE:   Yes, I apologise for the inadvertent omission of those papers.

KIRBY J:   It is amazing how much irrelevant stuff we get in our appeal books and the key documents are invariably missing.

MR BYRNE:   Yes, I apologise for that, your Honour.  The judgment which his Honour gave on the application that he disqualify himself is set out in the appeal book at pages 238 to 239.

KIRBY J:   His Honour targets in on this fact that he was both the tribunal of fact and the law and seems to have felt that that entitled him to act in the jury’s place, but a jury would not normally signal its preliminary thinking, but maybe that is an advantage of having a judge alone trial.

MR BYRNE:   Well, with respect, your Honour, it is ‑ ‑ ‑

KIRBY J:   I suppose if the jury suddenly turned their back on counsel and all 12 of them started reading in The Herald or some other journal, that would itself be a reason for intervening in a trial.

MR BYRNE:   Yes, perhaps so.  But it is not so much ‑ ‑ ‑

KIRBY J:   Never happens.

MR BYRNE:   No, not that I am aware of.  But in this case it is not only what was said, but the way it was said in what, we would submit, is a peremptory fashion which closes the door on any possible change of mind that the judge might be persuaded to take.  That really is, in our submission, is borne out when the written judgment is analysed at page 238 of the appeal book alongside line 30 where his Honour said this, and this was still before the application had been made, the application for a directed verdict:

I simply point out in relation to whatever application is about to be made in relation to a no case that I have a very, very firm view that as a matter of law, and I am after all in this tribunal not only the tribunal of fact but the tribunal of law, that as a matter of law an application for a no case cannot succeed in this particular trial.

Now, that observation by the trial judge, in our submission, aggravated the approach which he had already taken in three times effectively telling senior counsel that the application for no case will be dismissed before it had even been embarked on.  There is a further part of his Honour’s judgment that ‑ ‑ ‑

GLEESON CJ:   Just before you go past that, that seems to reflect a view – it may be right or it may be wrong – taken by the trial judge that there was something of a legal misconception involved in the no case submissions.  Is that elaborated in the ultimate reasons for decision?

MR BYRNE:   No, your Honour.  In my respectful submission, it cannot be seen to reflect a misconception on his Honour’s part of the no case submission because he had not heard any part of it.

GLEESON CJ:   No, I am not making myself clear.  It seems that the judge had the idea in his head, for a reason that I do not yet understand, that there was something of a legal misconception at the basis of the no case submission, which he had already had foreshadowed right at the beginning of the trial as the defence case.  The judge seems to have had the idea that there was some legal flaw in the defence approach, having regarded the evidence.  Now, I do not know what that was or what his idea was.  Can we work that out from anything that later happened?

MR BYRNE:   It is certainly not made clear, in our submission, in anything that later happened, what the legal misconception, if it existed, precisely was.  It is certainly not made clear at the time of these exchanges what the learned judge thought about the misconceived nature of any such application.  He did not say to counsel, “Look, before you make that submission I have to tell you that I think it is doomed to fail because of these reasons”.  He simply said “It will be dismissed” without explaining why he held that view and the fact that he did that in such a determined manner without, as it were, leaving open the possibility that there may be some part of the facts or perhaps a submission of law that counsel was to make which may need to be considered.

In our submission, it is not to be determined by reference to the merit of the proposed application as indeed it is not to be determined, in our submission, by reference to the strength of the Crown case.  The test is whether or not the way in which the judge behaved gave rise to a reasonable apprehension that he had prejudged the matter and that test applies, in our submission, irrespective of the correctness of the view he held about the outcome of the no case submission or indeed the strength of the Crown case in the ultimate.

GLEESON CJ:   What are the uncontested portions of exhibit D referred to on page 239?

MR BYRNE:   Exhibit D was a tape recording of conversations between Mr Savvas, who was the person who was alleged to have been stood over, as it were, by the appellants and the appellant, Joseph Antoun.  As I understand the position, there was no contest about what was on the tape.  It was a clear record of the conversation between them.

GLEESON CJ:   Judge Christie said that he formed the view that having regard to the defence opening and that tape a no case submission was doomed to failure.  So I guess at some stage - maybe this is a matter for your opponent - we have to look at the defence opening on that tape to see what is going on in his mind.

MR BYRNE:   Yes, it is not made clear by what he said either in the exchanges that he had with counsel or in the written judgment that he prepared on the matter.  He may have formed, and it is apparent that he has formed, a clearly concluded view about the evidence and the way in which that evidence might satisfy the matters that the Crown were required to prove, but he had not heard any argument in relation to that and he effectively closed it off.

HEYDON J:   Exhibit D is in page 7 of the supplementary appeal book?  Is that the correct ‑ ‑ ‑

MR BYRNE:   Yes, it is – 22 June tape I think is the ‑ ‑ ‑

HEYDON J:   Yes.

KIRBY J:   What is your submission on the closing paragraph in those reasons at page 239 where his Honour says:

The only basis on which I would have considered granting the application is in the event that the Crown agreed -

Is that some new principle that the judges of New South Wales only do what the Crown agrees to?  I hope not.

MR BYRNE:   Your Honours, I was about to take your Honours to those passages, again indicating a mistaken, an erroneous approach to the determination of an application for disqualification.  The point has been made in our written submissions that nowhere in this judgment and nowhere else in the course of the proceedings did the judge apply what we would submit is the appropriate test to determine whether he should disqualify himself.

He seemed to deal with the matter, if I can take your Honours to the bottom of page 238, on the basis that it was an application grounded in his actual bias towards the applicants and his own determination that he was not actually biased against the appellants was sufficient to dispose of the application.

HAYNE J:   The immediate question for us is whether the Court of Appeal was right in its conclusion and how the trial judge disposed of the application for disqualification is relevant but one stage removed from that, is it not?

MR BYRNE:   Yes, I accept that, your Honour.

KIRBY J:   I suppose the only relevance of it is that he has here had time to reflect upon it and has put forward reasons which can then be judged as either removing the concern of a member of the public or as aggravating the concern of the hypothesised reasonable observer.

MR BYRNE:   In our submission, and it is a submission that has already been made in the written submissions, this judgment serves, with respect, only to aggravate the impression that would already have been created by what happened in the oral exchanges which preceded it.

KIRBY J:   Anyway, you have as much blood as you can out of that stone.  You have some more points.

MR BYRNE:   Your Honours, if I can take the Court back to the exchange which followed effectively the publication of those reasons to which I have just taken the Court.  This is on page 219 of the appeal book.  There is a further application – this is just alongside line 6 – where counsel made a further application for the judge to disqualify himself on the basis that he had used the words “that a no case submission cannot succeed”.  There was then further exchange between counsel and his Honour which concluded on page 220 of the appeal book where, after counsel for the appellant, Antoine Antoun, had indicated alongside line 15 that he had joined this application, the learned judge then said:

I don’t wish to hear you Ms Crown and I shan’t disqualify myself.

That was, as I read the materials, the only consideration given to that second application which derived from the terms of the written judgment that appears at pages 238 to 239.

GLEESON CJ:   Who made the notes and handwriting on exhibit D?

MR BYRNE:   I am told, your Honour, that those notes were made by his Honour.  This is the copy which came from his Honour.

GLEESON CJ:   So we can see some of his Honour’s reasoning in these notes, such as that that appears on page 11 of the supplementary appeal book.

MR BYRNE:   Yes.  Your Honours, that was the first stage of the proceedings in which the question of the reasonable perception of prejudgment had arisen.  There was a later exchange and a later incident which gave rise to a further application.  That concerned the trial judge effectively taking it upon himself to revoke the bail of each of the appellants, bail to which they had been subject for several years preceding the trial proceedings.  Can I take your Honours in the appeal book to page 383.

KIRBY J:   Can you tell me, as a matter of practice, is it common where a point is reached in a case and there is a risk of flight or the accused simply not turning up and thereby aborting a very expensive public enterprise, namely, a criminal trial, is it common that judges at that point revoke bail?

MR BYRNE:   It is not.  Certainly if there is ‑ ‑ ‑

KIRBY J:   I could understand that there would be cases where that would be an entirely proper course for a judge to take.

MR BYRNE:   It is not unheard of.  It does happen in cases where the circumstances justify it, and that would be where there is some specific reason given for having some fear that the accused person will not attend at trial as required, and that sometimes happens because there is an incident which occurs which gives rise to concern that the accused person is taking steps to remove himself or herself from the jurisdiction, but it is relatively unusual.  I should say that it is ‑ ‑ ‑

KIRBY J:   I have sat in criminal appeals where in a first trial an accused has debunked and thereby aborted an extremely lengthy and expensive criminal enterprise.

MR BYRNE:   Certainly, but before bail can, in our submission, legitimately be revoked in relation to a person who has at all times complied with the conditions of bail, there needs to be some ground giving rise to a reasonable concern that they are unlikely to appear as required for their trial, and there was nothing of that kind here.

What the revocation of bail effectively amounted to here was a predetermination, a prejudgment by the trial judge on the question of guilt.  It was not a determination about whether or not the appellants would appear as required for the trial proceedings.  What his Honour had effectively done was to determine that he would find each of them guilty and that they would thereby be sentenced to terms of imprisonment, and that consequence of his Honour’s conduct in this case seems to have been conceded by the Crown in this Court in its written submissions.

KIRBY J:   I interrupted you before you showed us the point at which his Honour did this and I think it is important to see the context in which he revoked the bail.  So perhaps you could go back to that.

MR BYRNE:   Certainly, your Honour.  Can I just say one other thing to answer your Honour’s question in full.  It is, at least in New South Wales, a common practice for judges in criminal trials to require an accused person to be detained in custody of a form - an accused person who has been on bail - when a jury is sent out to consider its verdict.

KIRBY J:   I knew that but ‑ ‑ ‑

MR BYRNE:   That is the only time that it is common, and it is not by any means ‑ ‑ ‑

KIRBY J:   Even then it is not universal nowadays.

MR BYRNE:   It is not universal, no, but it is a common practice which is designed, not so much to ensure the attendance of the accused when required, but to ensure that there is no unfortunate association between the accused and members of the jury at that crucial time of the trial.  That is the reason why it is said to be taken in conventional cases.  It happens a lot but not, as your Honour said, universally.

Your Honours, can I just refer to the appeal book at 383 where there was discussion between the trial judge and counsel, which alongside line 35 ‑ ‑ ‑

GLEESON CJ:   What stage had the proceedings reached here, Mr Byrne?

MR BYRNE:   This is towards the end of the defence case after each of the appellants had given evidence but before three witnesses, who were to be called in the defence case, had given their evidence, and I should say that there was no indication, as I read it, of the nature of the evidence that those people would give, although there was, I think, an indication that their evidence was going to be relatively short.

If I can take your Honours to page 383, alongside line 35, this observation came more or less without warning from the learned trial judge where he said:

there’s no point in my being less than frank – I otherwise take a very strong preliminary view in this case, very very strong, to a stage where I am considering, indeed have almost made up my mind of my own motion, to revoke bail for both accused.

There was then some exchange about that particular matter but bail was revoked, and as I understand it, the submissions that have been made in this Court by the Crown, it is conceded that the approach that the learned judge took in determining to revoke bail at that stage of the proceedings represented a conclusion on his Honour’s part regarding the guilt of the appellants and that the revocation of bail and the circumstances in which bail was revoked was a breach of the relevant provisions of the Bail Act (NSW) and to that extent was an erroneous exercise of the powers relating to bail.

KIRBY J:   Was it a breach of the Bail Act?

MR BYRNE:   The primary reason why it constituted a breach of the Bail Act was that a revocation of bail can only be made by a court where an application is made by a ‑ ‑ ‑

GLEESON CJ:   Did that depend on the terms on which bail was originally granted?  Where do we find the grant of bail to which your clients were subject at the time this stage of the trial was reached?

MR BYRNE:   I do not think that material is in the appeal books.  They had been granted bail, as I recall it, some years earlier.

GLEESON CJ:   I was just wondering what were the terms of the currently operative bail to which they were subject at this time because it just occurred to me that that may have some bearing upon the accuracy of the proposition you have jut put about the Bail Act.

MR BYRNE:   Their obligation, of course, was to attend the court, as required, for the trial proceedings.

GLEESON CJ:   I just wondered if the grant of bail was expressed to be conditional or expressed to be temporary or something like that.

MR BYRNE:   No, your Honour, it ‑ ‑ ‑

GLEESON CJ:   I just do not know.  I just wanted to look at it, that is all.

MR BYRNE:   No, I appreciate – would your Honour just excuse me?

KIRBY J:   It may be noted on the file.  It may be noted on the District Court file.

MR BYRNE:   I apologise, your Honour.  It would be, if they were ‑ ‑ ‑

KIRBY J:   Is that in our Court?  Has that file been brought up?

MR BYRNE:   I have to confess I do not know the answer to that, your Honour.

KIRBY J:   My experience is that the judges of the District Court are quite particular in noting things of this kind on their file.

MR BYRNE:   Yes, certainly.  I think in fact the bail in this case had originally been granted in the Local Court when committal proceedings were completed.

KIRBY J:   We had better not think; we had better get the detail.

MR BYRNE:   We will undertake to do that, your Honour.

HAYNE J:   We can observe, for example, at 241 the order that:

Bail will continue until 2 o’clock on Monday 7 April.

We do not know what the terms of the bail were that were thus continued.  They cannot instantly pick up continuation of bail at close of proceedings on the 8^th, and the events to which you are now directing our attention at page 383 occur on the 9^th, so not only do we need to know whether the bail to which the accused were originally admitted was answered when they answered at their presentment, but then we would need to understand what the effect of continuation orders was from time to time at adjournments.

MR BYRNE:   Your Honour, I will be subject to correction on this, but my understanding is that bail was continued on each day of the trial proceedings at the end of each day on the same terms as it had been granted beforehand.  There was no variation of bail during the proceedings before ‑ ‑ ‑

GLEESON CJ:   But your argument about the Bail Act and the breach of the Bail Act was put on the assumption that there was a need to revoke bail in order to bring it to an end.  That assumption may be correct; it is just that it is not self-evident.

KIRBY J:   His Honour did use the words “revoke bail” but it may be from the material Justice Hayne has put his finger on that it was simply bail terminated on each day of the trial and what he meant to say was, “I will not grant further bail”.  You understand this is a point conceded by the Crown?

MR BYRNE:   In its submissions in this Court, yes.

KIRBY J:   But it may not be a proper concession if the terminus is at the end of each trial day, so we will just have to check that.

MR BYRNE:   Yes, your Honours. 

KIRBY J:   The Crown is very generous in its concessions sometimes.

GLEESON CJ:   Bail can be a highly technical matter, and we have had some problems with some of these technicalities in the past relating to this.

MR BYRNE:   Yes.  Perhaps if I can just briefly take your Honours to that part of the Crown’s submissions that I was relying on.  It is at paragraph 5.22 of the Crown’s submissions which are on page 8.  The proposition put in the opening sentence there is:

The decision to revoke bail after the appellants’ evidence plainly indicated that the judge had formed an adverse view of the appellants’ guilt.

That was relied on.  If I can perhaps take your Honours further to paragraph 5.25 on the following page where the ‑ ‑ ‑

HAYNE J:   5.23 is important, is it not?  The respondent contends that “adverse view . . . was not a proper basis on which to revoke bail.”  That assumes there is a revocation involved.

MR BYRNE:   Yes, your Honour, thank you.  Also in 5.25 where it is said:

To the extent that the revocation indicated an adverse view on the issue of guilt, these reasons amply justified that view, but they did not warrant the revocation of bail.  The revocation of bail without knowing anything of the criminal record or the bail history of the appellants . . . without any reference to the other relevant considerations under the Bail Act 1978 was erroneous.

GLEESON CJ:   Am I right in thinking that the central question on the issue of guilt was whether or not your clients honestly believed that Mr Savvas owed them $8,000?

MR BYRNE:   In practical terms, your Honour, although, of course, that was a matter that the Crown had to exclude.

GLEESON CJ:   I understand that, but the honesty – the entertaining by your clients of an honest belief that they were owed $8,000 by Mr Savvas was the issue in the trial?

MR BYRNE:   Yes, it was the issue.  Yes, I accept that.

GLEESON CJ:   I think I can understand what was going on in his Honour’s mind about that no case submission.

MR BYRNE:   Your Honours, I accept the implication of what your Honour the Chief Justice has said, but notwithstanding there may have been, at least on the material that the learned judge had before him, a sound basis for believing that a no case submission might not succeed, the manner in which he dealt with that ‑ ‑ ‑

GLEESON CJ:   I understand your argument entirely.  It is just that I have been trying to work out what his Honour had in mind in his references to the legal basis concerning the no case submission.  I think I now understand what was going through his mind.

MR BYRNE:   May it please, your Honour.

KIRBY J:   The prosecution does not rely on the proviso, as I understand it?  They say that if you can establish that there was a reasonable apprehension of bias on the part of the learned trial judge, then they could not invoke the proviso, for example, that it was an overwhelming or powerful case or inevitable conviction, because even a guilty person is entitled to a manifestly fair trial?

MR BYRNE:   I understand that to be the Crown’s position because no reference is made in their submissions to the proposal.

KIRBY J:   I thought I read that they conceded that they could not rely on the proviso?

GLEESON CJ:   In their no case submissions, and I have not had a chance to study them yet, did the accused’s counsel indicate how that no case submission could hope to be made out without any evidence from the accused themselves?

MR BYRNE:   Your Honour, it was on the basis of what was said to be – “concessions” is perhaps the wrong word – what were said to be matters coming from the Crown case upon which the accused could rely and referring to relevant authority to support a no case submission. 

GLEESON CJ:   But the Crown case is evidence that people are saying, “I’m going to send some men down to have a chat with you” and some nasty things are happening to furniture in the restaurant and the only dispute about what is going on is whether your clients honestly believe that this is a debt‑collecting exercise.

MR BYRNE:   Well, it has to be said a dispute between the parties as to the extent of the Crown case and whether the Crown case was restricted to a sum of $8,000, which was certainly a part of the Crown case – it was contended by the Crown to be their case that it was not just the $8,000 that was the subject of the charge, but something ‑ ‑ ‑

GLEESON CJ:   It is pretty hard to get the defence of honest claim of right off the ground without any evidence from the accused, is it not, in a case like this?

MR BYRNE:   In a situation where there is some recording made of conversations between the accused and the person who is alleged to have been stood over, the argument was available that the evidence established a certain state of mind in the accused and that was a part of the Crown case.  It was an unusual situation where, although the accused had not yet of course given their evidence, there was before the court a version able to be relied on by the accused as part of the prosecution case.

GLEESON CJ:   I suspect that what Judge Christie had in mind in relation to this no case submission was that you may have a defence case but you are not going to have a feather to fly with unless there is some oaths put to that case.

MR BYRNE:   That may have been his Honour’s view.  It is not clear, with respect, from what his Honour said.

HAYNE J:   Who carried what burden in relation to the claim of right question?

MR BYRNE:   I think in practical terms, your Honour, the defence carried what is sometimes described as an evidential burden in the sense that it ‑ ‑ ‑

HAYNE J:   There are several hours of innocent amusement discussing the utility of the concept of evidential burden.  Who at the end of the day had to persuade the tribunal of fact to what standard about questions of claim of right?

MR BYRNE:   The Crown had to prove beyond reasonable doubt that there was no claim of right so that it was ‑ ‑ ‑

HAYNE J:   Does it not follow that the no case submission, as ultimately made, was at least in part, perhaps wholly, effectively a burden of proof?  No case submission, Crown case at its highest cannot exclude the possibility of claim of right, given what is said on the tapes.

MR BYRNE:   That is precisely the way it was put.  It was almost put into ‑ ‑ ‑

HAYNE J:   That is a point that may run, not run, may win, not win.

MR BYRNE:   Yes, of course.

HAYNE J:   But that is the essence of it, is it?

MR BYRNE:   Yes, your Honour, and I should say that the written submissions on the application for no case were in terms which were very close to the words your Honour Justice Hayne has just used.

GLEESON CJ:   And part of that proposition is that for the purpose - I think there is a judgment of Justice Glass on this - but for the purpose of deciding the outcome of that submission, you have to put the worst available complexion on the evidence.

MR BYRNE:   Yes, there is a judgment of Justice Glass that is referred to in - it is your Honour’s judgment in fact - a case which is reported as the R v R, a decision in New South Wales in, if I remember correctly, 1989.

GLEESON CJ:   That is the question about the power of District Court judges to direct verdicts.

MR BYRNE:   Precisely.

GLEESON CJ:   What is the reference to that?  Tell us after lunch.

MR BYRNE:   Yes. It is, I think, (1989) 17 NSWLR, but it is a judgment of your Honour’s sitting, of course presiding, in the Court of Criminal Appeal.

GLEESON CJ:   Yes, I remember the issue.

MR BYRNE:   Your Honours, the bail issue was discussed in the exchanges between counsel and the Bench in the pages following page 383, where ultimately a further application was made, and this is at page 387, that the judge should disqualify himself from further hearing.

KIRBY J:   First of all, at 383 the judge was merely saying that he was – “very very strong” evidence, and he was inclined to do something.  Now, where did he indeed do it and revoke bail or do whatever he ‑ ‑ ‑

MR BYRNE:   There are two relevant passages.  To answer your Honour’s question, at the bottom of page 385 in the appeal book – perhaps I should refer to the submission that was made by senior counsel for one of the appellants, alongside line 40, where he said:

I’d ask your Honour to stay your Honour’s hand in relation to the liberty of the subject until your Honour has taken, has listened to all of the evidence and all of the arguments.  These people have been on bail for some years, and there’s nothing in their record to indicate - -

then his Honour interrupted the submission, and then it was put again:

Nor is there anything before your Honour which would allow your Honour to come to a view that they intend to absent themselves from this trial.

HIS HONOUR:   I propose, however, to revoke bail on the basis of what I perceive to be the strength of the Crown case at this stage.

Now, the strength of the Crown case and the provisions of the Bail Act set out in some considerable detail in section 32 the considerations that a judicial officer is required to take into account in determining a question of bail. The strength of the Crown case is one of many, many matters which are matters to be taken into account in determining the risk of a person who might be granted bail being tempted not to answer that bail. The strength of the Crown case is but one factor which is to be taken into account in determining whether or not bail should be granted. It is not by itself a matter which can demand that bail be refused in an individual case.

KIRBY J:   Was there any indication earlier of what had caused his Honour to be upset in this way?  Had the evidence just been given of the people intruding into the restaurant, throwing the tables over and – I mean, there was thuggish behaviour, at least arguably here, violent and aggressive behaviour.  Did that come on that day or had that been some days before, because I could understand a judge and a jury reacting unfavourably to that sort of behaviour in a public place in Sydney or anywhere else for that matter?

MR BYRNE:   It came in the evidence of the appellants.  There was a concession, as I recall it, by at least one if not both of them, that they did have some involvement in that incident which your Honour Justice Kirby is referring to.

KIRBY J:   They themselves did not do it.  There was a group of people who were described by their ethnicity who were said to have done it.

MR BYRNE:   That is right.  It has to be conceded it did follow that evidence being given, but even that having happened did not, in our submission, determine the question of bail, and it certainly did not ‑ ‑ ‑

KIRBY J:   I am simply trying to understand the psychology of what was going on in the mind of the judge because if the defence of right was this was a debt‑collecting exercise, normally debt collecting in this country is not performed by violence and with innocent members of the public eating at a restaurant and then people rushing in and turning over the tables.  That is beginning to look much more like standover tactics.

MR BYRNE:   Certainly.  Yes, I accept the observations that your Honour has made.

CALLINAN J:   Mr Byrne, the trial judge seems to have become irritated with the prosecutor at page 386, line 42:

I don’t [hear] any submission from the Crown -

Then later on at ‑ ‑ ‑

MR BYRNE:   I think, with respect, your Honour, it was importantly different from that because what his Honour said was:

I don’t seek any submission from the Crown ‑ ‑ ‑

CALLINAN J:   I know.  He made that clear later.  He says at page 387, line 10:

I’m not inviting the Crown to put - not inviting –

which ‑ ‑ ‑

MR BYRNE:   He did later ask the Crown about that matter on page 388 and this is an important ‑ ‑ ‑

CALLINAN J:   Whereabouts is that?

MR BYRNE:   It is just below line 47 where his Honour says:

Do you wish to be heard on bail?

CROWN PROSECUTOR:   No your Honour.

HIS HONOUR:   I propose to revoke bail for both accused.

Now, the fact that the Crown had said that they did not wish to be heard on bail should have been taken by his Honour as an indication that the Crown did not seek the revocation of bail.  That is where this case differs in a significant distinguishing feature from the earlier decision of this Court in a case called Winningham which we have referred to in our written submissions.  It is only a very short judgment of the Court given at the time of an application for special leave.  The appeal was upheld and the matter sent back for a new trial by the court which heard the special leave application.

But, in Winningham’s Case the Crown had actually requested that bail be revoked or refused so that even though the strict formalities of the Bail Act had not been complied with there was an expression of opinion from the Crown as to its position on the question of bail.  In this case, the Crown being invited to address his Honour on that issue ‑ ‑ ‑

GLEESON CJ:   Was there not an incident – I may be imagining this, but I thought I saw somewhere in the papers a reference to an incident where his Honour thought that one of the accused was acting in an intimidatory fashion in court to him.

MR BYRNE:   Yes.

GLEESON CJ:   Where is that?

MR BYRNE:   That came in two - there are two important places where that issue is dealt with in the appeal books.  The first is at page 387, immediately prior to the page we were just dealing with.  I should say that the discussion at page 387 had followed three separate occasions in the previous four pages of transcript where his Honour had said, “I’m proposing to revoke bail of my own motion.  I don’t wish to hear the Crown”, as he said at the bottom of 386.

GLEESON CJ:   He is referring to the demeanour of the second accused.

MR BYRNE:   This is at the top of page 387.

GLEESON CJ:   Yes.

MR BYRNE:   What he says alongside line 10 is this:

I’m not inviting the Crown to put –

In other words, he does not wish to hear from the Crown –

There are two things and I’ve alerted you to one of them, the strength of the Crown case and the demeanour of the second accused –

and that is understood to be a reference to the appellant, Joseph Antoun –

and I propose to revoke bail, now it’s as simple as that.

GLEESON CJ:   Bearing in mind the nature of the Crown case which is that these are standover men.

MR BYRNE:   Yes, but again, senior counsel asked the question rhetorically:

The demeanour -

seeking further explanation of what his Honour is referring to, and his Honour says:

I just said it, the demeanour of the second accused who just left the witness box.  Now Mr Steirn I don’t propose to debate it, I shall, if you wish accept full responsibility for what I’m doing -

and so on, but he was effectively there, in our submission, saying to counsel, “I have reached a view about this man’s demeanour and I don’t propose to entertain any submissions on that issue at all”.

Now, again, that was a stark distinction from the manner in which a similar incident was dealt with in Winningham’s Case where there was an apprehension on the part of the judge that the accused person was intimidating him and in the course of the proceedings the judge expressed that view to counsel so that they could address the matter and if it was capable of being done, perhaps explain the conduct of the accused to the judge in a manner which may satisfy him that his view about being intimidated was not properly formed.

GLEESON CJ:   What do we make of what appears on page 386, line 35?

MR BYRNE:   What his Honour is there referring to is the submissions that may be put on the ultimate question and it was said that the case turned on the evidence of Mr Savvas so that an adverse finding about Mr Savvas’ credibility would or should have resulted in the charges against each of the appellants not being proved.

GLEESON CJ:   This may ultimately be in your favour rather than against you, I do not know yet, but we are dealing with a fairly highly charged trial atmosphere here.

MR BYRNE:   Yes, I think that is available from the papers, that conclusion.  I do not seek to challenge that.

KIRBY J:   It is very easy in this Court but it is often said that that is all the more reason for trial judges to be cool.

MR BYRNE:   Certainly.  Part of the basis for the applications for disqualification were not merely what is apparent from the written transcript but the manner in which the learned judge had conducted himself, and in particular, in the written submissions that were made on the application for disqualification, the point was made that it was not just what was said; it was the tone in which the words were used and, indeed, the facial expressions that the learned judge engaged in when ‑ ‑ ‑

HEYDON J:   There is no evidence of that.

MR BYRNE:   There is not any specific evidence.

HEYDON J:   So we cannot rely on that.

MR BYRNE:   It was a submission put.

HEYDON J:   But there is no evidence of it.

MR BYRNE:   No, I accept what your Honour says.  It is merely a submission, yes.

KIRBY J:   My recollection was similar to the Chief Justice, that there was another passage where his Honour said something like, “I’m not being intimidated but I think that’s what he’s up to”.

MR BYRNE:   Yes, I apologise.  There were two pages and I did intend to take your Honours to the second aspect of the appeal books which deals with that matter.  There are in fact two places.  There is an error in the putting together of the appeal books, but if I could take your Honours to page 635.

GLEESON CJ:   Is Joseph Antoun the one who has served several lengthy sentences for robbery and armed robbery?

MR BYRNE:   He is, your Honour, yes.

GLEESON CJ:   He is the second respondent, is he?

MR BYRNE:   He is the person who is being referred to in these exchanges.

GLEESON CJ:   The remarks on sentence are often an interesting source of information to put into perspective some of the things that happened at trial.

MR BYRNE:   Yes, your Honour.

KIRBY J:   But at the time these things are happening, the judge does not know that.  Indeed, he quickly stopped counsel for one of the accused who might have blundered into saying something about that – unlikely, but he said, “I don’t know anything about that”.

MR BYRNE:   Yes.  That was page 385 at line 50, your Honours.  The relevant observation made by the trial judge in his reasons for decision appears at page 635 of the appeal book.  Because of a glitch in the preparation of the books, it is also at 565, but if I can refer to 635 for convenience sake.  Just below line 20 on page 635 his Honour said:

I felt Mr Joseph Antoun’s demeanour went way beyond anger.  I could use some other adjectives and adverbs to describe it but it went way, way beyond anger.  I, myself, felt to some extent intimidated, and his anger of course had nothing, as far as I am aware, to do with me.

That was an observation that the judge made in his reasons for decision but it was not something that was, as it were, ventilated in open court so that the appellant – or appellants if that was necessary – had the opportunity to deal with that matter.  Again, that is a contrast from the approach that was taken by the trial judge who was placed in a similar situation in Winningham’s Case.

There is another matter that arises from this aspect of the discussion referring to the demeanour of Joseph Antoun, who was the second accused.  It appears on the following page of the appeal book, page 388, where at about line 27 counsel for Joseph Antoun had asked the judge to disqualify himself by reason of what was submitted to be the manner in which he dealt with the bail issue giving rise to an apprehension to bias on his part.  There is an important observation just below that, at line 30 on page 388, where counsel for Antoine Antoun, that is the appellant who was not engaged in what was said to be the intimidating behaviour, the point was made by him:

the demeanour of that particular accused which you’ve made reference to in no way impinged upon the demeanour of my client.

That is Antoine Antoun.

HIS HONOUR:   I agree with that totally.

In other words, he seemed to have accepted that that part of the case on bail which depended on the demeanour of Joseph Antoun had no relationship to Antoine Antoun.  His Honour appeared to accept that and then immediately refused bail in relation to both of the accused.

KIRBY J:   The refusal or the rejection by counsel for the prosecution to make submissions on bail can be interpreted possibly as, having sniffed the way the wind was blowing, the Crown was going along with the revocation of bail.

MR BYRNE:   It could be interpreted that way, although ‑ ‑ ‑

KIRBY J:   And the Crown was content that that course be adopted.

MR BYRNE:   In our submission, that is not ‑ ‑ ‑

KIRBY J:   Often when a judge asks, “Do you wish to be heard?” and the judge has already indicated how the judge is thinking of dealing with the matter, the answer “No” simply is an economical way of saying, “Well, on the basis of what you are saying I don’t really need to be heard”.

MR BYRNE:   It certainly may be open to that interpretation, your Honour, but can I just take your Honour back a little further there where the general proposition is put by his Honour:

Do you wish to be heard Ms Crown?

This is at about line 42.

KIRBY J:   Yes, I have read that.

MR BYRNE:   Then the Crown Prosecutor says:

the crown opposes the application for your Honour to disqualify yourself in relation to either of the two accused.

In other words, it could perhaps have been at that stage perceived by the Crown that the judge was not inclined to disqualify himself but nevertheless a submission was made of a formal kind.  Well, we support that approach that you should not ‑ ‑ ‑

GLEESON CJ:   Mr Byrne, on a formal bail application or application for revocation of bail – it probably does not matter which – would it be necessary to refer to the criminal history of Mr Joseph Antoun?

MR BYRNE: Yes, in order to comply with section 32 of the Bail Act it would be.

GLEESON CJ:   If Judge Christie had been making orders about bail of Mr Joseph Antoun, granting it or revoking it or doing whatever, would Judge Christie have had to know the criminal history of Joseph Antoun?

MR BYRNE:   Yes, he should have taken those matters into account.  Those would be matters that would be put before him by the Crown in fulfilling its role in the bail determination.

KIRBY J:   Conventionally, we take the view that sort of information should not be in the hands of the tribunal of fact because sometimes tribunals of fact can be greatly affected by knowledge that a person has been convicted of armed robbery.

MR BYRNE:   It is sometimes inevitable in cases where an issue of bail arises in the course of trial proceedings that the judge needs to know those ‑ ‑ ‑

GLEESON CJ:   Exactly.  A judge presiding at an ordinary criminal trial has in front of him the record of the committal proceedings and usually the criminal record of the accused, does he not?

MR BYRNE:   It would not usually include the criminal record of the accused.

GLEESON CJ:   The judge presiding at a criminal trial in front of a jury is usually sitting there following the evidence from the committal papers.

MR BYRNE:   Yes.

KIRBY J:   But Judge Christie denied that he had and said he did not want to have the record of the criminal convictions, if any, of your clients.

MR BYRNE:   Yes, it would not normally be the case, your Honours, that a judge presiding at a criminal trial equipped with the record of the committal proceedings would have a record of the accused’s ‑ ‑ ‑

GLEESON CJ:   No, I am just making the point that the information that is available to a judge at a criminal trial is very different from the information that is available to a jury at a criminal trial.  Judges, for example, presiding at criminal trials where there are juries present, hear all sorts of evidence that is excluded and all sorts of information that is excluded from the jury, the assumption presumably being that judges can be relied upon to engage in a process of reasoning that juries cannot be relied upon to engage in.  There seems to be an assumption – I am not suggesting it is right or wrong – that judges are less amenable to influence by prejudicial material than juries.

MR BYRNE:   I think that is right in terms of prejudicial material, but in the context we are discussing here, there is no complaint about the judge having all of the relevant material that he would require to determine a bail application if such an application arose in the course of proceedings.  That is not the nature of the complaint here.  All that is being said is that the manner in which the judge revoked bail disclosed on his part an approach which constituted a prejudgment of the question of the appellant’s guilt.  That is the essence of the complaint here.  It is not whether or not the judge, had he been given information about the records of the appellants, would then be in some way prejudiced against them.

The case of Masters which is referred to, particularly in my learned friend’s submissions, is a case which deals precisely with that issue of a judge having to determine a question of bail during the course of proceedings and a suggestion made that the manner in which he determined that question, namely, by refusing bail, gave rise to an apprehension of bias in his conduct of the proceedings generally, and that proposition was rejected.  We certainly do not rely on any ‑ ‑ ‑

GLEESON CJ:   Is one of the matters that a judge is required by the Bail Act to take into account in dealing with a bail application the strength of the Crown case?

MR BYRNE: Yes, that is a matter that is referred to in section 32 as a matter which has a bearing on the assessment of the risk that the person may not comply with his or her bail conditions. It is one of, as I said, a relatively large number of matters under section 32 of the Bail Act that needs to be taken into account but not by itself determinative.

GLEESON CJ:   No, but a judge in the present case could not properly deal with a question of bail, could he, without having regard to the strength of the Crown case and the criminal history of Mr Antoun?  Both would be matters that would have to be taken into account.  I am not suggesting they would produce any particular result, but you would need to know them to make a sensible decision about bail, would you not?

MR BYRNE:   They would, yes.

KIRBY J:   His Honour did not have that here.

MR BYRNE:   No, and the fact that he proceeded to deal with the question of bail in the absence of that material, in our submission, supports the contention that there was prejudgment on his part, that he did not take into account the matters that he was supposed to; he had simply determined of his own motion that bail was going to be revoked.  As he said, at least on one aspect of the bail application, to Mr Steirn, “I don’t propose to debate it” as though it is a closed issue.  “It is not one about which I am going to listen to any contrary argument.”

GLEESON CJ:   He seems to have taken into account his view of the strength of the Crown case.

MR BYRNE:   Certainly.

GLEESON CJ:   That is your complaint, that he took it into account too decisively.

MR BYRNE:   And he took it into account and nothing else and as the ‑ ‑ ‑

GLEESON CJ:   Yes, but it was not an immaterial consideration?

MR BYRNE:   No, certainly, it was not immaterial in a properly conducted bail application but it was not determinative of the issue.  Your Honours, the terms of the relevant provisions of the Bail Act have been set out in the papers filed on behalf of the appellants.  The primary challenge to the manner in which the judge dealt with the question of bail is that it constituted a breach of section 48 of the Act which provides that the power to review a decision in relation to bail may only be exercised at the request of certain nominated people, including the accused person.

HAYNE J:   All this presupposes that there is, in truth, a review of a bail decision which requires close examination of what orders admitting the accused persons to bail had been made and what their duration was.

MR BYRNE:   Yes.  I understand it to be common ground, your Honour, that there was no question that the conditions of bail to which these men were subject had been continued throughout the whole of the trial proceedings before his Honour as they had for, as was said, years before.  Those conditions obviously encompass them being released at the end of each day so that they could come back the next morning.

Your Honours, we will get the precise bail conditions that the accused were subject, but it is clear that they were being released at the end of each day and there was no breach of any of those conditions.  It was simply a conclusion that the judge had made of his own motion without any application being made by the Crown or any submission in support of the course that was taken by the judge. 

Your Honours, the second part of the written submissions that have been filed on behalf of the appellants addresses a question of the relevance and the importance of a decision that was made by Justice Sully in the course of these proceedings when his Honour, effectively sitting as a single judge of the Court of Criminal Appeal, was asked to determine whether the appellants should be entitled to bail pending the determination of their appeals to the Court of Criminal Appeal. 

Your Honours, the judgment of Justice Sully on that question is set out in the appeal books at page 728 and following.  His Honour in reaching the conclusion that the conduct of the trial judge would have led the hypothetical fair-minded observer to the view that there was a reasonable apprehension that the trial judge had prejudged the appellants’ case is made at page 746.

HAYNE J:   What do we get out of this other than a bit of prejudice?

MR BYRNE:   Well, your Honours, it is not simply prejudice against the Crown, in my submission, it is a matter where his Honour has been asked to determine the very question which was the subject of one of the grounds of appeal to the Court of Criminal Appeal.

HAYNE J:   Sure, and you had lost in the Court of Criminal Appeal and this is an appeal from their orders.  What do we get out of Justice Sully’s?

MR BYRNE:   One of the grounds of appeal in this Court is that the Court of Criminal Appeal should have taken into account what Justice Sully had determined on his review of the materials.  It was a matter which was the focus of some considerable attention in the Court of Criminal Appeal.

HAYNE J:   That seems to me to put the cart before the horse, Mr Byrne.  Justice Sully at 746 reaches a conclusion that the appeal has “evident prospects of success”.  The appeal is then heard and it is determined.

MR BYRNE:   Yes.

HAYNE J:   And it is from the determination of the appeal that the appeal to this Court is brought.  What do we get from the preliminary cantor that you had in front of Justice Sully?

MR BYRNE:   His conclusion that the appeal had evident prospects of success was entirely based, in our submission, on a conclusion that a fair‑minded observer would apprehend that the trial judge had demonstrated bias against the appellants.  That conclusion was the basis on which he then made the subsidiary conclusion about the likely prospects of success.  The proposition is put here that that was a matter that should have been taken into account by the Court of Criminal Appeal.

KIRBY J:   I am not sure that that is right because the Court of Criminal Appeal is established by statute, it has its own functions, it has to discharge its appellate duty and has to make its decision.  It may be a matter of the history of the case.  I mean, Justice Sully is an extremely experienced judge.  It is very unusual to grant bail pending a matter in the Court of Criminal Appeal.  It is not done lightly.  This very experienced judge did it.  I think you have got as much as you can out of that particular stone, but in the end it is the duty of the Court of Criminal Appeal to reach its own conclusion, not to forfeit that conclusion to a bail decision by another judge who is not sitting in the appeal and does not hear all the arguments.

HAYNE J:   But do you not have to meet what is said in paragraph 292 at 859 of the appeal book?  Is that not where you stand or fall?

MR BYRNE:   Certainly, your Honour, in relation to the core issue which is before this Court now, it is the appellants’ task to persuade the Court that the trial judge had, at least in the assessment of a reasonable fair‑minded observer, prejudged the issue that he was called upon to determine, that he did in fact have a closed mind about those two issues which were the subject of applications for disqualification:  firstly, the no case submission issue and, secondly, the determination of the appellants’ guilt which ‑ ‑ ‑

HAYNE J:   And it is brought together in paragraphs 307 and 308 at page 862.  It seems to me you have to address those.

MR BYRNE:   But the question in each of those paragraphs to which your Honour Justice Hayne has referred invites consideration of whether there has been in the appellants’ case a miscarriage of justice.  Both of those paragraphs, 292 and 308 ‑ ‑ ‑

HAYNE J:   Paragraphs 307 and 308, I said.

MR BYRNE:   Of course I accept the two together, but both of them conclude effectively with the observation, “There has been no miscarriage of justice.”  In our submission, there will always have been a miscarriage of justice if it can be demonstrated that the trial proceedings in which an appellant has been convicted have been rendered unfair by reason of the appearance of prejudgment.  That is all that needs to be established in ‑ ‑ ‑

GLEESON CJ:   What would be the position if we came to the view or would it be relevant for us, if we came to the view, that the no case to answer submission was hopeless because having regard to the nature of the charge and the evidence and having regard to the nature of the defence that defence was going to require support from the evidence of the accused to have any prospects of success at all?

MR BYRNE:   Your Honour, if your Honours came to that view – and if I might answer your Honour the Chief Justice’s question by saying we would submit that that view would not be the only available view on all of this material, that there was an argument, however weak it may have been and however doomed to fail it may have been assessed to be, that the material emerging in the Crown case, including statements made by the appellants which were captured on the intercepted materials, there was an argument that those matters may have given rise to an inability on the part of the Crown to prove the necessary elements of the offence.  That was available. 

But if your Honours were to take the view that – even contrary to what we submit that it was a hopeless application, the application itself doomed to fail, then it was still necessary for that application to be dealt with properly and properly in the sense that it was dealt with in a manner that did not portray a reasonable apprehension of prejudgment on the part of the trial judge.

KIRBY J:   Mr Byrne, what was that famous case where Lord Denning said no case in our courts is hopeless until the final word is written and until the judge has sat there patiently and quietly and listened to the arguments of the parties?  There is such a case.  Lord Denning said something like that, and I have always thought that to be the principle that the apprehension of bias is defending.  Try and find it for me because I remember it well and it was applied many times.  In a sense, a guilty person, the more the evidence is against them, the more the judge has to attend to their case and their argument otherwise we end up like the Soviet Union, things are ram‑roaded through.

CALLINAN J:   Judges are paid not to expostulate.  Judges are paid to be patient and to hear submissions.

KIRBY J:   Like we inherently do.

CALLINAN J:   Anybody who has been the victim of a judge who has been premature in his expostulations has good reason to recall how devastating outbursts can be.  Judges are paid to sit there patiently.

MR BYRNE:   Your Honours, we have not ‑ ‑ ‑

KIRBY J:   You see something of a division, and it is reflected in the difference between Justice Sully and the Court of Criminal Appeal.

GLEESON CJ:   I hope you do not see something of a division.  We are not sitting here delivering interlocutory judgments.

MR BYRNE:   The proposition that has been put in our written submissions that the ‑ ‑ ‑

KIRBY J:   It was said that it was hopeless.

GLEESON CJ:   No, the question was asked, what would be the proper course for us to take if we were of the view that a no case submission was hopeless?  The question was asked.

MR BYRNE:   Yes.

GLEESON CJ:   And I think you answered the question.

MR BYRNE:   I have sought to, your Honour.  Just if I can go back to that issue about Justice Sully’s judgment?

KIRBY J:   I think you are going along a dangerous path here.  I do not think anybody thinks there ‑ ‑ ‑

MR BYRNE:   Well, the proposition we put was that it results in conflicting judgments of ‑ ‑ ‑

KIRBY J:   No, no.  There is only one judgment of the Court of Criminal Appeal ‑ ‑ ‑

MR BYRNE:   I appreciate that.

KIRBY J:   And that is the one that is under our constitutional review under the appeal.

MR BYRNE:   Yes, but there are two judgments.  What Justice Sully was effectively - he was sitting as a single judge of the Court of Criminal Appeal determining a question of bail and what it effectively amounts to, in our submission, is conflicting decisions by different courts ‑ ‑ ‑

KIRBY J:   This is hopeless, Mr Byrne.  His Honour did not hear the full appeal.  He heard a preliminary ‑ ‑ ‑

GLEESON CJ:   I think His Honour means his tentative view is that it is hopeless.

MR BYRNE:   I understand.

KIRBY J:   The argument really ‑ ‑ ‑

MR BYRNE:   The questions though were the same, with respect.

KIRBY J:    ‑ ‑ ‑ it cannot run, can it?

MR BYRNE:   Well, in our submission it can, because the questions each of those courts - that is Justice Sully sitting as a single judge of the Court of Criminal Appeal and the Court of Criminal Appeal constituted by the three judges who heard the substantial appeal - was dealing with the question, “Would a fair‑minded observer form a reasonable apprehension that the judge had prejudged the matter?” and ‑ ‑ ‑

HAYNE J:   Is that right, or was Justice Sully dealing with a radically distinct question, namely, are there sufficient prospects of persuading the Court of Appeal that the reasonable observer, et cetera, that I should admit this ‑ ‑ ‑

MR BYRNE:   Yes, well, his Honour expressed himself in more conclusive terms than that because he said there was no other, and he used the words, “there was no other sensible conclusion but that” – if I can perhaps take your Honours to the particular passage of his judgment on the question of bail.  It is at the top of page 746 of the appeal book where his Honour says:

A reasonable coupling of what is there said –

that is in the Court of Criminal Appeal decision in Winningham –

with the way in which the matter was dealt with in the High Court, seems to me to lead as a matter of course to the conclusion that the deficiencies in the way in which the learned trial Judge dealt with the bail revocation question did entail that a fair minded observer might reasonably have apprehended or suspected that his Honour had prejudged, or might prejudge, the cases then before him.

GLEESON CJ:   You formulated the issue, on which you are now addressing us, in paragraph 1.2 of the appellant’s joint submissions. 

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   In what way should the Court of Criminal Appeal take into account a finding of the kind referred to in your written submissions?

MR BYRNE:   By recognising that when the matter had been considered in a separate proceeding, although an associated proceeding, there had been a finding made there that the circumstances did give rise to a reasonable apprehension of bias and that a finding of that kind on the part of a court was something which would necessarily be taken into account in determining whether such a finding was open.

GLEESON CJ:   I am just trying to investigate this expression “take into account”.  It is not a legal precedent, is it?

MR BYRNE:   No, but it is a matter that needs, in effect – and this is the way it has been put in our written submissions – to be explained why a different conclusion is reached by the Court of Criminal Appeal sitting as the Full Court than was reached by Justice Sully.

HEYDON J:   Well, they did.  I mean, you might disagree with the reasoning, but they gave ample reasons.

MR BYRNE:   They did not refer to what he said and say where in fact he was in error or why he had reached a conclusion which they differed from.

HEYDON J:   They said why the conclusion he stated was in error.  They did not mention ‑ ‑ ‑

MR BYRNE:   No.

HEYDON J:   It is not an authority, it is not res judicata, it is not an issue estoppel.  It is just a conclusion based on some reasoning.  Now, you can rely on the reasoning to attack the Court of Criminal Appeal, but it is not strictly speaking res inter alios acta, but it is – because there is identity of parties, but it really is utterly – the mere fact of the finding is simply to be sat on one side.  It has no impact.  It is out of the realm of the material.

MR BYRNE:   Well, your Honours, it does, in our submission, fall into this category that was discussed by the court in Carroll where there are conflicting decisions of different courts in effect on the same question.  That is as high as we can put it.

GLEESON CJ:   If Justice Sully had decided the case the other way, would the Court of Criminal Appeal be entitled to take into account his finding to reinforce its own view?

MR BYRNE:   They may, yes.  They may be able to say that the reasons ‑ ‑ ‑

GLEESON CJ:   I could understand you arguing that it was the duty of the Court of Appeal to decide this question for themselves, unencumbered by any views that had previously been expressed by any other judge.

KIRBY J:   Is that not the basic principle of the statutory grant of power to the Court of Criminal Appeal which is constituted by the three judges of the Supreme Court of New South Wales to exercise the grant of power given by Parliament itself, taking into account relevant considerations?

MR BYRNE:   Yes, I accept that it is taking into account relevant considerations and our argument is simply that it was a relevant consideration in this case that Justice Sully, reviewing precisely the same material that was before the Court of Criminal Appeal, had formed a conclusion that a reasonable observer should reach the conclusion that there was an apprehension of bias.

KIRBY J:   I ever so tentatively think we are getting a bit sidetracked.

MR BYRNE:   Yes, I do not propose to put anything further on that matter, your Honours.

KIRBY J:   Now, is there a difference in the Court of Criminal Appeal between Justice Dowd and Justice Smart?  Justice Dowd says no reasonable apprehension of bias, but Justice Smart says no miscarriage of justice.  Now, is that the language of the proviso?  Is he saying that this was less than perfect, but I do not feel it has led anywhere?  I am referring to paragraph 308 in the case of Acting Justice Smart and an earlier expression by Justice Dowd in his reasons, paragraph 75.

MR BYRNE:   Paragraph 75, in our submission, appears to put the test wrongly.  It may be that it is simply an oversight on his Honour’s part, but he has put it in terms:

I would reject this ground of appeal as no bias has been demonstrated.

It may be, with respect to his Honour, merely a shorthand expression that he has used for the ‑ ‑ ‑

KIRBY J:   If you look at 47 which is “‘a fair-minded observer’” and “entertain ‘a reasonable apprehension of bias’”, Justice Dowd seems to have had the correct issue in his mind but then he came at the end of consideration of that issue to rejection on the basis that no bias - query of the kind possible - had been demonstrated.  Acting Justice Smart at 308 says, “no miscarriage of justice.”  That I understood – and I may be wrong here – that the Crown had disclaimed.

MR BYRNE:   I do not think the Crown has abandoned its ‑ ‑ ‑

KIRBY J:   Insofar as it is the proviso, the Crown ‑ ‑ ‑

MR BYRNE:   I think the Crown’s position is that if there is a reasonable apprehension of bias established, then the proviso does not apply.  It is not a situation where the proviso has any work to do because if there is a reasonable apprehension of bias, the trial is necessarily an unfair one.  That is irrespective of the strength of the Crown case.

KIRBY J:   That is the issue that is before us.  The only issue before us is the reasonable apprehension of bias issue, is it not?

MR BYRNE:   It is, yes.

KIRBY J:   We are not concerned with the unreasonable verdict or any other question.

MR BYRNE:   No, that was a ground of appeal in the Court of Criminal Appeal but it has not been pursued in this Court.  It is, as your Honour says, only the ground ‑ ‑ ‑

KIRBY J:   I could understand a certain impatience with this case that we are looking at the procedure and forgetting the substance.  That is often a criticism of the way administrative law developed in England and the way its offshoots have developed, that we get so obsessed with the fair procedures that we forget that behind it is a substantive serious criminal charge.  Normally that comes up in the proviso.

MR BYRNE:   Normally, although where questions of apprehended bias are concerned, in our submission, the proviso does not apply because if the apprehended bias is established, it is necessarily an unfair trial and the

convictions which are suffered in consequence of that cannot be allowed to stand.

KIRBY J:   No matter how long the trial has been, no matter how expensive to the community, no matter how overwhelming the case is, no matter how understandable a judge’s impatience may have been in fraught circumstances?  Is it so absolute?

MR BYRNE:   Those are weighty considerations, with respect, but none of them would justify holding a trial that is necessarily unfair.  That is a more important consideration than those that your Honour has referred to.

Your Honours, whilst reference is being made to that part of the appeal book at page 862, which is the final page of the judgment of Justice Smart on the question of conviction, can I just point out one matter that is a point of distinction between these two appellants in this Court.  At the end of paragraph 305 on that page, 862, his Honour says:

It was submitted that the judge had failed to distinguish the roles of Antoine and Joseph when considering the question of bail and treated them as being in the same boat . . . Even if there were substance in the complaint this does not give grounds for a reasonable apprehension of bias, especially as counsel for Antoine did not submit that he stood in a different position from Joseph.

Your Honours, that passage that I had taken your Honours to earlier in relation to the distinction between the two where his Honour apparently agreed with the proposition – this is at page 388 of the appeal book.  This was after the discussion about the demeanour of Joseph Antoun counsel for Antoine Antoun had submitted that that did not have any relevance in his case and the judge said “I agree with that totally”, but then proceeded to revoke bail in the case of each of the appellants.  The further question that arises from the terms of the judgment on page 862 comes from paragraph 307, in the third line, alongside line 35, where his Honour says:

Given the evidence and the mode of trial selected by the appellants, to which the Crown agreed, I am not persuaded that there was a reasonable apprehension of bias on the part of the trial judge.

In our submission, the mode of trial is not a matter which should have any bearing on a determination as to whether there is or is not a reasonable apprehension of bias.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Byrne.  Yes, Mr Steirn.

MR STEIRN:   Your Honours, I adopt, obviously, what Mr Byrne has put to this Court.  Might I just raise some matters which were raised by your Honours in various ways during the course of the submissions by Mr Byrne.  Can I first deal with the first application for his Honour the trial judge to disqualify himself.  The difficulty – and I recognise what his Honour Justice Hayne had to say about this – about the sterility on the printed page does not really indicate the true position and I appreciate what his Honour said about the lack of evidence, but if one goes to paragraph 2 of the written submissions by the trial counsel your Honours will see that we brought to his Honour’s attention at paragraph 2 both the tone of his voice and his facial expressions so his Honour was left in no doubt, with great respect, that these were the two other factors which have to be looked at in the way he delivered the words “and that shall be refused”, or words to that effect.

Now, I accept that there is no evidence before the Court, but at the material time there was a contemporaneous submission made, as it were, as to how his Honour had stated or dealt with the application at that time, and in my submission, that is a factor which should be taken into account for this reason, not because he has evidence on the matter.  There is nowhere in his Honour’s judgment on that decision where he does not accept what was put by both counsel in paragraph 2.

In other words, in my submission, there is an implied acceptance that not only did his Honour say the words but he delivered them in the manner in which is described in paragraph 2.  That is how we would put that submission.  I think it was raised very early by his Honour the Chief Justice as to the ambiguity as to what his Honour was thinking about and there was some discussion as to what was put by way of an opening by the defence.  It was in that context that his Honour raised the ambiguity and I am merely putting you need to look at those two other factors, the way he gave vent to his feelings and his facial expressions.

KIRBY J:   I just do not see how we can take a facial expression into account.  This is not a videorecorded – and it is not part of our record except insofar as there is some hint in the submissions.

MR STEIRN:   I accept that, but his Honour the Chief Justice did say that – I am not sure of the word he used, your Honour, but he says that there is a fair bit of colour in the trial and that developed in due course, but it is very difficult, as I say, to get that across before this Court.

GLEESON CJ:   I was trying at one stage to work out for myself what made his Honour apparently so confident about the fact that the no case submission was going to fail.  I think I have an understanding of that now, having read the no case submission.

MR STEIRN:   The other matter that I would draw the Court’s attention to is ‑ ‑ ‑

KIRBY J:   Can I just ask you to pause.  Assuming the judge came to the view that the no case submission was just hopeless and really humbug, why does the judge have to go through the ritual?

MR STEIRN:   Because part of our complaint is that by failing to do so is evidence of the bias.  In other words, his Honour Justice Callinan said he is paid to listen, to use his Honour Justice Callinan’s words, and if he is paid to listen it must follow that he should give reasons, having listened attentively to submissions – written submissions – and given the way we ran the case, it was not a case where it was just let the Crown prove its case, we narrowed the issues straight away, and the way we would put it, we deserved better at the end of the day given the fact that we narrowed the issue – in other words, to contain the trial and the costs and that type of thing, and yet it was dismissed in the way in which it was done ‑ ‑ ‑

GLEESON CJ:   You may have a valid complaint about the way the judge treated this submission, but having narrowed the issue as you did, it was an issue on which you were going to have to call evidence, was it not?

MR STEIRN:   I will answer in this way, your Honour.  If your Honour goes to the additional material, one thing about tapes in criminal matters, they are there – a tape in essence captures objectively what the true facts are, if I may say so.  It is common ground and quite obvious that the accused, Joseph Antoun, did not know he was being taped.  Now, that is important because then one gets an understanding of how he was thinking. 

Now, if I can take the Court immediately to 15 of the additional material where he is saying, in effect, top of the page, your Honours against line 1, I would think:

I did my job.  You don’t take your car to a mechanic get him to do a job, and say, No, I can’t pay you.

GLEESON CJ:   What did he mean earlier when he said “I was going to hit you for a hundred grand”?

MR STEIRN:   I suppose it is fair to say that these people are rough diamonds and it is one of the reasons we went judge alone.

GLEESON CJ:   Yes, that is fair.

MR STEIRN:   And having said that ‑ ‑ ‑

KIRBY J:   The actual quality of the jewel might be debatable.

MR STEIRN:   Yes.

HAYNE J:   A few imperfections included.

MR STEIRN:   That is really the point.  Because he was talking in the patois of the criminal by using expressions like “I’m gonna do this and I’m gonna do that”, the fact of the matter is he did not do that.  In essence, he sought a liquidated amount of money of $8,000 at the end of the day.

GLEESON CJ:   Yes, a genuine pre‑estimate of damage.

MR STEIRN:   Yes, but for past services, your Honour. 

GLEESON CJ:   But as a method of alternative dispute resolution it seems to have more in common with Chicago than London.

MR STEIRN:   Absolutely.  What we are saying therefore – and if you then go to our written submissions in relation to no case to answer ‑ ‑ ‑

KIRBY J:   May I just interrupt again.  We have laughed, in a sense, or I have, at the submission about Chicago and London and so on and the diamond, but behind this is a very serious criminal accusation and a very expensive process of a criminal trial.  Different judges react in different ways and why was it not open to Judge Christie, accepting the variety of personalities that make up the world and therefore are reflected on the Bench, to react in a more direct way of, in effect, saying to you, look, this is just humbug and I want to get to the bottom of it?  I have known judges who have done that without any unfairness, but who have been insistent on cutting the cackle and getting to the essence of it.

MR STEIRN:   That is true enough and that is obviously my experience too, your Honour, but at the end of the day we had gone to a great deal of trouble – and I know that is not probably a relevant consideration – but certainly to cut down the Court’s time, reduce everything to writing where possible so his Honour could be in full command and have everything before him.

HAYNE J:   I would have thought that the point that is to be made is to say “This is humbug” assumes that the content of this is known.  I thought the complaint made was that “Humbug” was uttered before this was known.

MR STEIRN:   That is the very point, your Honour.  He came to a concluded view, a prejudgment, before anything had been said or put in front of him.  That is the objective fact.  In dealing with our submissions of no case to answer, the case where his Honour Justice Heydon in fact was part of the New South Wales Court of Criminal Appeal, if the Court goes to paragraph 7 of those written submissions, we say the defence of claim of right is surprisingly wide in application and has been held to apply to a very wide range of common law and statutory offences.  That was an observation I think by your Honour when your Honour sat on that judgment – although the leading judgment was by his Honour the Chief Judge in Common Law, Justice Wood.

It is fair to say this.  Because it was such a nasty case and because, as I put it, they are rough diamonds, one had to be very careful in relation to the law and applying it.  When you look at the cases going back to the early English decisions, it does have a wide application.  I suspect, without knowing of course, that his Honour the trial judge did not have a full appreciation, for example, of a claim of right, for example, of the fact that once it is raised in the Crown case, just like self‑defence, then the Crown has to negate it as part of its obligation to prove the case beyond reasonable doubt.

If one goes to paragraph 8(c) in our written submissions, the belief does not have to be reasonable.  To take his Honour the Chief Justice’s point, although he has to have an honest belief, it does not have to be a reasonable belief.  There are all those early decisions where a prosecutor, as they so quaintly put it, is accosted by a man who takes the sovereigns from his pocket, in effect robs him, on one view, but because he says “That’s my money”, it is not a robbery because there is no stealing.

GLEESON CJ:   It is essentially a subjective question about good faith.

MR STEIRN:   Yes, and that is why ‑ ‑ ‑

GLEESON CJ:   Which is why it is usually the kind of question that needs some sworn evidence attached to it.

MR STEIRN:   Yes and no.  It is a bit like ‑ ‑ ‑

KIRBY J:   We have seen in other cases where there has been a taped recording by police.  The accused does not go into evidence and takes no oath but relies in his defence on the confessional material given to police.  Is that the sort of thing you are suggesting here?

MR STEIRN:   There are two factors.  First of all, there is a factor your Honour talks about.  That is found in, I think from memory, R v Williamson [1972] NSWLR where there was a record of interview and the record of interview contained admissions in relation I think to a murder, but the defence raised in the record of interview was one of duress.  The court said that once raised it has to be dealt with.  The other obvious case is R v Woolmington.  It is a bit like self‑defence.  Once it is raised in the Crown case, then the Crown has to deal with it.

Can I now return to what was said on the tape when Joseph Antoun uses the analogy of “if you take your car to a mechanic, you expect to be paid”.  That is objectively an indication of his subjective views at the time.  Whether they are reasonably held matters not.  The fact of the matter is that he subjectively believed that he was in fact owed the money.  So, therefore, that is a matter, in my submission, that has to be raised in the Crown case before there is a case for us to meet. 

So to take his Honour the Chief Justice’s statement that we have to go into evidence, we would only have to go into evidence if there was nothing in the Crown case to indicate that subjective belief.  Of course, when one looks at a tape, we have to accept it warts and all, but the “warts and all” approach also applies to the Crown and one of the warts the Crown had to deal with was his subjective understanding of why he was demanding the money.  We do not shrink from that, but that was his belief.

HEYDON J:   You do not take into account evidence favouring the accused.  You take into account the evidence for the Crown case taken at its highest in a no case to answer submission in a criminal trial.

MR STEIRN:    Yes, I accept that, your Honour, but if it be at the end of the day an element which the Crown has to prove and there is an exculpatory version given by an accused, just like in a self‑defence case, the Crown have to deal with that, in my respectful submission.  In other words, if the Crown case, say murder, is that, “You stabbed this man” and at the police interview he says, “I stabbed at him because he came at me with an axe”.  Now, that is a classic example of self‑defence.  Now, in the Crown case they would have to deal with that by way of other evidence before there is a case made out, and that is precisely the situation in cases such as the present case.

GLEESON CJ:   But the point that Justice Heydon makes is important, is it not?  It is very easy to get confused when assessing evidence by the difference between what is involved in deciding whether a Crown has established the guilt of a person and deciding whether there is no case to answer.  If Justice Christie had done this, as it were, impeccably, the question he would have had to ask himself is not whether there is a line in that record of interview that is favourable to the defence; the question he would have had to ask himself is whether, considering the tape as a whole and putting the worst available complexion on it, there was a prima facie case.

MR STEIRN:    Yes, but you need to look ‑ ‑ ‑

HAYNE J:   Well, that then leads to this further question, which is, does being right in the judgment expressed on an issue deny that there has been a prejudgment of that issue?

MR STEIRN:   Yes.

HAYNE J:   That is, if the judge expresses a strong view before argument is heard and the view happens to be correct, does that deny the application of the prejudgment principles?

MR STEIRN:   The answer must be yes for this reason:  because it is the reasonable bystander test.

HEYDON J:   I think you mean no.

GLEESON CJ:   I thought you meant no.

HAYNE J:   I suspect you mean no.

MR STEIRN:   I am sorry, your Honour, yes, no, because it must be ‑ ‑ ‑

HAYNE J:   Otherwise you have just gone down to DJs and bought 12 large white bed sheets and hung them from every window you have, Mr Steirn.

MR STEIRN:   The answer must be no, because it is the bystander test, looking on, and of course the parties themselves if they feel there is a reasonable apprehension of bias.  Might I just say this, it is very interesting if one looks at the authorities of this Court and just as, as I keep saying to juries, beyond reasonable doubt is the highest standard of proof known to the law, when one looks at the standard of proof in this case, it is probably one of the lowest standards of proof known to the law.  It amounts at the end of the day to the possibility of a bias in the way this Court puts it.

GLEESON CJ:   I am just wondering if there are questions of degree that could sometimes be involved.  I have to say that I have over 25 years as a barrister and 17 years as a judge heard some arguments cut very short by judicially ‑ ‑ ‑

MR STEIRN:   I am used to it, your Honour.  I am very used to that, and I accept it.

GLEESON CJ:   I mean, one possible point of view is the more hopeless the argument, the more careful consideration it should be given.  Another possible point of view is that if a judge rightly but too quickly, from the point of view of the appearance of justice, identifies an argument as without merit and cuts it off – not something unknown in any court of law – is it relevant to an evaluation of the judge’s behaviour in the eyes of a right‑minded observer to form an estimation of the merit of the argument that has been cut off?

MR STEIRN:   The answer to that is that it must be relevant to this extent, because when they talk about the bystander, it is a bystander who does not have knowledge of the law.  In other words, it is the bystander just coming into court and listening in and says to himself, “His Honour was a bit abrupt there.  This man is biased.”

GLEESON CJ:   Yes, suppose a person comes to a hypothetical court and puts a hypothetical argument, the effect of which is that Magna Carta produces the consequence that he does not owe a debt to a bank, an argument of a kind that I am not entirely conjuring up out of my imagination.  I have heard arguments like that dealt with very shortly.  Is the bystander supposed to know that the argument is without merit?  Is the bystander supposed to understand that the judge has heard that argument half a dozen times before?

MR STEIRN:   It must at the end of the day come down to how the judge expresses himself, because it is the way things look.  It is the appearance of justice at the end of the day and that is why this is such an important consideration as to how a judge conducts himself in any judicial inquiry.  Whether it be a criminal trial or a civil matter, it is the way things look.

CALLINAN J:   Justice Hunt in Vakauta probably heard the doctors whom he criticised give evidence dozens and dozens of times before.  He may well have been absolutely right in his views about them, but it was the notional innocent bystander who was there on the day of the criticism to whom regard had to be had and who would have formed the impression.  It has to be that way otherwise one would have to posit an innocent bystander or a casual bystander as somebody who knew the law and knew how trials were conducted, would need to know a great deal, and that just is not the situation, is not the case.

MR STEIRN:   That is right, your Honour.  It is a case where the ‑ ‑ ‑

CALLINAN J:   It is a high standard.

MR STEIRN:   Yes.

CALLINAN J:   It is a high standard to impose upon a judge, but probably rightly so.

MR STEIRN:   But it is the point your Honour made, they are paid to do just that, to maintain such a ‑ ‑ ‑

GLEESON CJ:   I do not think it is an industrial consideration.

MR STEIRN:   No, but I am just using his Honour’s ‑ ‑ ‑

CALLINAN J:   And I was not using it in that sense, but in fact judges are appointed, if you like, if you want to use a different term.

MR STEIRN:   Yes, I did not mean to be facetious.

CALLINAN J:   No, I used the word “paid” and it is part of it.  I am not suggesting it is an industrial issue.  Appointed and paid to do it.

MR STEIRN:   Yes, and that, in my submission, is what did not happen in this particular case.  The parties deserved better and it was graphically illustrated that they did not have his Honour’s views considered in a proper way.  He came to a concluded view without really giving any reasons.  If, for example, he could have said, “Look, Mr Steirn, I am against you for this reason” – and this, to take your Honour’s point, often happens, “or have you looked at this or what about that?”  That can be abrupt, it can be abrasive, it can be to the point, and at least there is an illustration by the presiding judge that he has in fact considered the matter, because he says “What about that?” or, “I am against you for this reason”.  But implicit in what I have just said, there has been a reasoning and it need only be a short reasoning because it is so obvious to his Honour, but there has been a reasoned judgment however short.

GLEESON CJ:   If he had said, for example, “How could you possibly get a defence of honest claim of right off the ground without calling your client?”

MR STEIRN:   That would have allowed me to say, “Well, has your Honour considered what the accused said in relation to the analogy of the mechanic?”  It is what his Honour Justice Kirby said before, the silent judge is a difficult judge to deal with because you do not know how he is thinking.  I must say in recent years judges are becoming increasingly more open with what their views are, however tentative, so you do not waste the court’s time.  I mean, this Court is a classic example.  What is on your mind is put to the advocate immediately and he has to deal with it.  That did not happen in this particular case.  That is all I want to say, unless your Honours ‑ ‑ ‑

CALLINAN J:   Mr Steirn, going to the passages that have already been mentioned in the supplementary material, page 15, I suppose you would say that was capable when he says, “I did my job” and refers to the mechanic and says, in effect, “He is entitled to be paid and so am I”.  That is the sense of it.  That might be a very, very flimsy basis upon which to raise an honest claim of right but it is arguably a basis.  It may well be, indeed it is certainly tentatively seems to me, that what appears on page 14 is capable of refuting that where he says “I was gunna hit your for a hundred grand” and so on.  But that having been said, you were entitled to a reasoned judgment, albeit, perhaps a short reasoned judgment, to the effect of what I have just said.

MR STEIRN:   Absolutely.

GLEESON CJ:   Do you happen to know the reference to that case of R v R?

MR STEIRN:   It was an identification case, your Honour, where your Honours – I think your Honour as the Chief Justice of New South Wales ‑ ‑ ‑

GLEESON CJ:   Yes. I think it is (1989) 18 NSWLR 74. Justice Heydon has made a copy – the significance of it is not that it deals with or answers the question of the kind that arose in the present case but that it identifies the question that Judge Christie would have had to ask himself in dealing with your no case to answer submission and the question was not whether there was anything in the tape that could have assisted the defence; the question was whether the tape, taken at its worst, established a case to answer. It may be you are right when you say Justice Christie dealt far too peremptorily, if he dealt at all, with the issue of no case to answer but we have to keep in mind, for our part, what the issue of no case to answer is.

MR STEIRN:   Yes, I accept that, but when one looks at what this Court has said about apprehended bias, whether there was a case to answer or not and whether his Honour got it right or not is not to the point, in my respectful submission.  What is to the point is the manner in which he had dealt with that application.  If your Honours will accept from me and what your Honour Justice Kirby has already said, judges, depending on their personality, can be abrupt and one cops it on the chin as an advocate and one gets used to it in the robust approach, especially in the criminal side of things, and one accepts that.

Sometimes his Honour with remarkable clarity – I am just repeating myself, I accept that, but the point is he never gave me an opportunity to answer why he says there is a prima facie case.  That really is the essence of our complaint.  If he had said, “This is the reason why”, then there would have been a discussion.  At the end of the day he would have said, “No, I am against you, Mr Steirn” and that is the end of that.  That is what happens in a properly conducted court, but that, in my submission, did not happen in this case.  There was an emphatic prejudgment of that issue without any reasons being given and the manner of its delivery, in my submission, is redolent of apprehended bias.

KIRBY J:   The manner of the delivery is difficult for us to judge.

MR STEIRN:   I understand that, and I can see now ‑ ‑ ‑

KIRBY J:   In a sense what we have to look at in the cases – and I do not know if this has been said in the cases – are the standards that are applied in the courts.

MR STEIRN:   That is why I go back to what I said before, your Honour, that it is a very, very low threshold in relation to the standard of proof.  If there be any ambiguity at the end of the day, then, in my submission, in a case such as this, that should be in favour of the accused.

KIRBY J:   Do you remember the case that refers to possibility?

MR STEIRN:   It talks about the word “might” twice.

HAYNE J:   Yes, but it also has to be read in light of what Justice Mason and I think other members of the Court said in Re JRL 161 CLR 342, particularly at 352 where, by reference to the Angliss Group Case 122 CLR 546 at 553 to 554 and Re Lusink; Ex parte Shaw 55 ALJR 12 at 14, said that reasonable apprehension of bias by reason of prejudgment must be “firmly established”.

MR STEIRN: Yes. Can I take this Court to a decision by the New South Wales Court of Criminal Appeal 137 A Crim R 111. It bears on two things. It bears on ‑ ‑ ‑

KIRBY J:   What is the name of the case?

MR STEIRN:   I am sorry, it is R v Czajkowski and a similar case of R v Shepherd.This was a case where one member of the jury had indicated that in relation to another member of the jury from day one of a trial, that juror was in a sense biased because he was against drugs, I think, and he just said from day one, “I will not accept the defence case”, and that must have been imparted to another member of the jury but it was not ventilated until right at the end of the trial.

KIRBY J:   It seems a long way distant from this case though.

MR STEIRN:   Except to say this.  It says this at paragraph [19]:

This Court has held that the test is whether “the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues . . . The test will be at its most strict for a criminal trial.

That was a trial with a judge and jury.  That principle must apply a fortiori where it is a judge‑alone trial.

GLEESON CJ:   Mr Steirn, I am sorry that I did not raise this question with Mr Byrne and I will also raise it with your opponent, and Mr Byrne might want to put something in writing about this within, say, seven days, but while we are getting straight what the issue would have been for Judge Christie when he came to consider this application or this submission of no case to answer, I wonder if you could just remind us of the procedural basis for making at a judge‑alone trial a submission of no case to answer.  As I recollect it, the case of R v R was a case concerning a directed verdict for an accused in a jury trial.

MR STEIRN:   Yes, your Honour.

GLEESON CJ:   There may be, but if there are I cannot remember their names, cases about trials by judge alone where an accused person at the end of the Crown case makes a submission of no case to answer, but I would like to understand accurately the formal basis upon which such a submission is made at a trial by judge alone.  Perhaps that is something you could consider over the luncheon adjournment or, if you wanted to, you could give us some written material, perhaps jointly with Mr Byrne, at a later stage.

MR STEIRN:   I would prefer the latter, your Honour, because I would like to consider that, yes.

GLEESON CJ:   Yes.

CALLINAN J:   Mr Steirn, I think there is quite a lot of support for what you have just been saying about the irrelevance or perhaps very, very limited relevance of the strength of the Crown case in paragraph 7 in the joint judgment in Ebner v Official Trustee 205 CLR 337 at 345. It says:

if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.  No attempt need be made to inquire into the actual thought processes of the judge –

that is really your submission, is it not?

MR STEIRN:   That is right, your Honour, and I am grateful to your Honour for bringing that to my attention. Can I just pass onto some other points. Can I deal with the issue of bail. To take his Honour the Chief Justice’s dialogue with Mr Byrne as to a man’s criminal record, pursuant to section 32, which the New South Wales Criminal Court says in fact a code, so therefore the question of bail, firstly, cannot be raised by a judge of his own motion. It is an adversarial system and the Code makes that clear. So it is never a matter for a judge ordinarily to raise the question of bail, except, for example, in an extreme case which precipitates something which might – he might say, “What do you say about this?” That was not the case here. So, first of all, we would submit that his Honour had no legal right to consider bail without an application by one of the parties.

GLEESON CJ:   That makes an assumption, which may be right, about the terms on which current bail was operating.

MR STEIRN:    Yes.

GLEESON CJ:   We are investigating that, as I understand it, at the moment.  Somebody is checking up on that.

MR STEIRN:    But, secondly, his Honour cut me off when I was about to raise the criminal record of the accused, Joseph Antoun. The reason I was about to raise it, to take what I think his Honour Justice Kirby had to say, when you have the advantage of a judge, the fact that the man has a criminal record in the trial proper is not a matter he can take into account in relation to determining the guilt, and he puts that to one side because he is trained to do so, but when he has raised the question of bail then pursuant to section 32 a man’s record is relevant to see whether or not he has ever absconded on bail before, and very often, especially in the Supreme Court, one will go to his records and say, “This man has a lengthy criminal record, but your Honour will see that over 30 years of crime he has never yet once absconded on bail and for very serious offences”, and that you can assume I was about to deal with that when his Honour cut me off.

The other matter – this is at page 385, your Honour, at line 40, where I asked his Honour to stay his Honour’s hand.  I say, “These people have been on bail for some years”.  Now, that is an important factor because I am really saying to the court, “What has changed which would allow your Honour to raise the issue of revoking bail?”  I was taken aback, as your Honours can see from the transcript, “and there’s nothing in their record to indicate”, and then I was cut off and I was about to say, “there’s nothing in their record to indicate that they have ever absconded on bail on prior occasions”, notwithstanding the serious criminal record of certainly Joseph Antoun.

GLEESON CJ:   Is that a convenient time Mr Steirn?  We will adjourn until to 2.00 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Steirn.

MR STEIRN:   Your Honour, there are just three more points that your Honour put and one of them will deal with the matter your Honour raised before the adjournment.  The first matter is in relation to the revocation of bail and I refer to the Court to 385, 20 of the appeal book and I, in a sense, say to his Honour that you are revoking bail, yet you have yet to hear the rest of the defence case.  His Honour says at 386, 21:

And I understand what is in the rest accuseds’ case and it’s not meeting the concerns that I presently face.  The rest of the accuseds’ case relates to the issue as to when . . . That’s the issue I perceive those witnesses will go to.

Well, now, that, in my submission, is a clear indication that he has prejudged what the issues are because whatever else we opened on, we certainly did not go to the evidence we intended to call and the witnesses that we intended to call because we did not have to and, in my submission, that entitled me to make this point.

If this Court comes to the view that it was not legitimate for his Honour to revoke bail and the fundamental reason for revoking bail is there must be evidence, or material, at least, that he will not attend at court.  Now, if that material is not there then the fact that a revoked bail is the clearest indication of bias – of actual bias – although that is a standard we do not have to meet ‑ ‑ ‑

GLEESON CJ:   Hang on.  This is said to be a case of bias in the form of prejudgment, is it not?

MR STEIRN:   Yes, but what I want to say is this.  Once he revoked their bail he was, in effect, sentencing both men to a term of imprisonment before all the defence evidence had been given and even before a formal finding of guilt.  There could be no other explanation, in my respectful submission.

KIRBY J:   That sounds ever so tentatively a bit of an overstatement because he is not sentencing them at all, he is simply – the consequence is they lose their liberty and that is a fair point that you make and they lose it without differentiation as between the two of them, though he said he agreed absolutely that the differentiation was relevant, but he is not sentencing them.  He obviously reached a view that there was a risk that one or two would abscond.  It is not sentencing.  It is protecting the judicial process.

MR STEIRN:   With respect, your Honour, my submission is this.  He had no proper basis for coming to that view and I should, before we go further, the material that your Honours wanted we now have and it would appear that they were bailed on or about 23 June 2001, so they had been on bail for some two years.  There are three copies, your Honour.  Can I hand that up?

GLEESON CJ:   Thank you.

MR STEIRN:   They had been on bail for some two years at the time of trial.

KIRBY J:   But was it revoked or rather, did it expire from day to day during the trial, as seems to have been the case by the entry that Justice Hayne drew your attention to?

MR STEIRN:   Your Honour, with respect, it was not revisited each day, because what happens now in the criminal courts, there is just a mere continuation of bail without it being addressed and there is a formal notice given at the end of each day which says just that, a continuation of bail.  So it does not ‑ ‑ ‑

KIRBY J:   But sometimes bail is granted until the completion of the trial or until the resolution of the case or the appeal.  It depends on the order.

MR STEIRN:   In practice what would happen, assuming the trial finished and given the serious nature of the charge, his Honour would have then said to the Crown, “What is your attitude in relation to bail?”, given that having found them guilty, obviously a gaol sentence would ensue, and the Crown would say given that opening, “Well, we would oppose bail given the seriousness of the offence”, and it would be at that stage that his Honour would consider the position of bail, but at a stage when he would have said to the Crown in the normal course of events, “What is your attitude to bail?”, and the Crown acting responsibly, I must say, would say, “We would oppose bail”.  Now, that is how it would come about, your Honour.

GLEESON CJ:   But this is a bail undertaking to appear at the Local Court?

MR STEIRN:   Yes, and that bail continued – under the Bail Act it continues – what would have happened, after the committal – I think this would be common ground – the magistrate would say to the DPP, what is the position in relation to bail, and then again it would be raised, and obviously in this case bail was to continue, and then when the matter came before the District Court for arraignment, again, it can be revisited, but usually if they are on bail that remains the status quo and bail is not again looked at until there has been a finding of guilt.

GLEESON CJ:   What is the statutory provision or judicial order pursuant to which their bail status was governed, for example, on the first day of the trial before Judge Christie?

MR STEIRN:    The status ‑ ‑ ‑

GLEESON CJ:   I gather from what you say that after this happened, after this bail undertaking was entered into, nobody ever did anything about the matter of bail until Judge Christie did what he did, that is the subject of the present complaint.

MR STEIRN:    That is right, your Honour.

GLEESON CJ:   Right.  Well, now, what then is the statutory provision or what is the order that enables us to define their bail status at the time Judge Christie felt moved to interfere with it?

HAYNE J: Can I tell you what seems to me to be a difficulty about it all? Section 6 of the Bail Act provided for grant of bail for certain periods, differently described, one of which was the period between the person being charged with the offence and the person’s first appearance before a court in or in connection with proceedings for the offence.  That is what this looks like.

MR STEIRN:   Yes, your Honour.

HAYNE J:   Then as a separate period, what is described as the period of any adjournment or adjournments, including any adjournment or adjournments during the course of a trial, may be this, and any period deemed by section 16 to the period of an adjournment, and on a quick look none of those seems to be engaged.  I think that it may require a rather more careful tracing than time over the luncheon adjournment may have permitted the parties to undertake.

MR STEIRN:   Your Honour, maybe because ‑ ‑ ‑

KIRBY J:   The Crown is bearing gifts.

HAYNE J:   Mr Smithopolous is there to help you, I think.

MR STEIRN: Mr Smith has referred me to section 43 of the Bail Act and that talks about the continuation of bail.  It may well require a more careful analysis, but that bears out what we put before.  All a judge can do is continue bail unless one of the parties seeks either a variation, which occurs, and/or the Crown may say, “We would ask your Honour to consider revoking bail”.  So it may well be that your Honour is correct and it requires a further analysis, but in practice at least – and I do not think anybody at the Bar table would disagree with me – all a judicial officer can do once bail has been granted under the Act is to continue bail unless there is some supervening factor from one of the parties which requires him or her to revisit the bail either for a variation or refuse bail or whatever the position may be.

KIRBY J:   I suppose a judge who has anxiety about it could express the anxiety and, if the Crown shared it, could then move the court to revoke bail.

MR STEIRN:   That is right.

KIRBY J:   That is the course that seems to be contemplated by the Bail Act.  I agree with Justice Hayne.  Maybe you need to go through this and give us a note on it later.  Generous soul that I am, I gave my copy of the document to Justice Callinan, so I am bereft of the bail documents.  If there is another copy, I would be ever so grateful.

MR STEIRN:   We only managed to get three copies because ‑ ‑ ‑

KIRBY J:   I only ask that tentatively.

MR STEIRN:   As Mr Byrne reminds me, that was precisely what happened in Winningham.  His Honour the trial judge raised it and then the Crown in a sense jumped on the bandwagon and asked that bail be refused because of his Honour’s concern, but that really demonstrates what your Honour Chief Justice Gleeson is saying, that it has to be raised; he cannot just do it of his own motion.

The other matter which I would now deal with is – I do not think I need to deal with what his Honour Justice Callinan had to say in Ebner.  If I can go to what his Honour the Chief Justice was dealing with in relation to a case to answer or no prima facie case.  The cases in relation to that have been collected in a judgment of the New South Wales Supreme Court, a single judge, his Honour Justice Hunt in Waterhouse v Gilmore (1988) 12 NSWLR 270. Your Honour, that is not on our list, but that is the matter that your Honour asked me to address. Just dealing firstly with the headnotes it says in the first headnote:

Once the issue of lawful excuse is raised in committal proceedings (either by the accused or by the prosecution) the onus of negating that issue lies upon the prosecution.

It goes on to say that the same, of course, is the position “at trial”.  Again he says:

Once the issue of lawful excuse is raised, the prosecution does not establish a prima facie case unless evidence is led which, if accepted, would tend to negate any such lawful excuse.

Probably more importantly – and this is the point I think your Honour the Chief Justice was referring to - where he says at the bottom of page 270:

Whilst the tender by the prosecution of statements made by an accused person becomes evidence in his favour as well as against him, however self‑serving those statements may be –in a prosecution for criminal defamation –

in a criminal defamation matter –

based on the publication by the accused of statements made by others, the tender of the matter complained of against him does not make those statements evidence in favour of the accused of the truth of the facts so stated by those other persons.

GLEESON CJ:   I am a little more interested in the technical question of the basis on which at a trial before a judge without a jury of an indictable offence it is open to the defence to make a submission of no case to answer at the end of the prosecution case.  I am not expressing any view that doubts it, but I want to know the basis because if the basis is consistent with the basis on which an application at a jury trial is made for a verdict by direction, then it is a fundamental error to ask whether there is anything in the prosecution case that supports the defence.

The question is whether taking the evidence led by the prosecution at its highest against the accused the prosecution case could be found to be made out beyond reasonable doubt.  In other words, you do not look at the material and say that supports the defence.  What you do is look at the material in the prosecution case, take the worst available view of it and ask whether on that view you could conclude that the case had been established beyond reasonable doubt.

MR STEIRN:   Your Honour, in my submission, the answer is this.  There is a distinction between evidence in support of each element, however slight it is, which would find a prima facie case subject to an application of May v O’Sullivan - put that aside for a moment - and a situation where there is no evidence to support an element which the Crown must prove.  In my submission, that is the distinction and that is what his Honour Justice Hunt has to say at page 280 of Waterhouse where he says:

The question which arises . . . is whether the application of this particular principle requires the trial judge – when determining whether there is a case to answer – to disregard any of the material which suggests a reasonable possibility of a lawful excuse. 

I am satisfied that it does not.  There is, in my view, a clear distinction to be made between (a) an assumption that the jury will accept the evidence in support of the Crown case upon a particular issue in preference to the evidence which does not support it upon that issue and (b) a complete disregard of an issue which has been raised (whether by the Crown itself or by the accused) and upon which the Crown bears the ultimate onus of proof.  It is, it seems to me, a complete perversion of the “golden thread” –

that is Woolmington –

that the Crown could be found to have produced a case to answer if in truth it has not produced any evidence in relation to an issue upon which it bears the onus of proof and which, if accepted, would tend to negate that issue.

That is when I raised that case of Williamson.  I had this case in mind, but I just could not bring it to mind.

GLEESON CJ:   Do you accept that the principles to be applied by a trial judge in determining a no case to answer submission are the same as the principles that the judge would apply in a trial before a jury in dealing with an application for a verdict by direction?

MR STEIRN:   Yes, your Honour.  In my submission ‑ ‑ ‑

KIRBY J:   Would you give me the citation of that case again?

MR STEIRN: It is 12 NSWLR 270.

KIRBY J:   The passage you read?

MR STEIRN:   I read from page 280A and it, in a sense, goes through those examples your Honour gave of the murder case down to 280G.  It raises the case that I raised, Williamson, and of course it raises ‑ ‑ ‑

KIRBY J:   Yes, I just wanted the citation.

MR STEIRN:   Yes.

GLEESON CJ:   This is a case about committal proceedings, is it not?

MR STEIRN:   Yes, but interestingly, what his Honour had to say was the position cannot be any different at trial level.  In fact, when one thinks about it logically, it would apply even ‑ ‑ ‑

GLEESON CJ:   Where did he actually say that?

MR STEIRN:   It may well have been in a previous decision, your Honour, in Spautz ‑ ‑ ‑

HAYNE J:   Well, the heading at 279F is described as “Prima facie case at the trial”, but his Honour then goes on to discuss what juries may or may not do.  It does not instantly leap off the page at the moment anywhere where he says that this is the test at trial, though the heading suggests that.

MR STEIRN:   Can I take the Court to the previous decision of his Honour in Spautz v Williams [1983] 2 NSWLR 506. Just reading from the headnote at 508 his Honour had this to say:

In proceedings, be it on committal or at trial, for criminal defamation brought pursuant to the Defamation Act, 1974, s 50, which prohibits publication without lawful excuse of defamatory matter with intent etc, the prosecution bears the onus of negating the issue of lawful excuse once that issue has been raised and does not establish a prima facie case without leading evidence which if accepted would tend to negate that issue.

HAYNE J:   Just to go back to Waterhouse, that his Honour is discussing principles at trial as distinct from committal appears at 279 between A and B in the paragraph commencing there and if you go to the foot of that paragraph just before C you will see that his Honour is discussing an argument that seeks to distinguish principles at trial from principles at committal.  His Honour then goes on from C and following to discuss principles at trial and then at 280G goes on to discuss what is to be done vis-à-vis committal proceedings as distinct from trial.

MR STEIRN:   Yes, your Honour.  As I understand it, the position is the same.

GLEESON CJ:   You never suggested here, did you, or you did not want to suggest to Judge Christie, if you had ever got the opportunity to do so, that there was no evidence of an element of the offence of demanding money with menaces?

MR STEIRN:   I was going to suggest that because what I was going to put – and that is really clear from the judgment in R v Fuge which deals with that particular offence – Waterhouse v Gilmore obviously deals with general principles but Fuge itself deals with that fact that once the matter is raised then the Crown has to negate it.  I had Waterhouse v Gilmore in mind but I did not need to use it in my written submissions because Fuge itself articulated the principle which I now say ‑ ‑ ‑

GLEESON CJ:   Was it intended to be part of your argument on the no case submission that having regard to exhibit D in the context of the rest of the evidence the Crown could not be held to have negated the defence of claim of right?

MR STEIRN:   That is what I was going to put based on the analogy that the accused used in relation to the mechanic.

GLEESON CJ:   Yes.  That had to be your argument, did it not?

MR STEIRN:   Absolutely.

GLEESON CJ:   Your argument had to be that on this evidence, including in particular exhibit D which refers to the mechanic, a judge would be bound to conclude that the Crown had not negated the defence of claim of right?

MR STEIRN:   Correct, because it had been raised in the Crown case through that document or through that transcript.  That was precisely our case, your Honour.  Your Honour, that is all I can usefully put.

GLEESON CJ:   Thank you, Mr Steirn.  Yes, Mr Smith.

MR SMITH:   Just to correct a few matters and clarify a few matters, your Honours.  Firstly, in relation to our submissions, at page 11 there are some words left out of paragraph 5.39, unfortunately through an editing error.  At the end of that last sentence you will see there is no full stop – the words “seemed inescapable inferences.”

KIRBY J:   I was waiting for you to begin with an important point of high persuasion to defend what happened on this occasion.

MR SMITH:   Perhaps your Honour is used to that from me but our primary submission ‑ ‑ ‑

KIRBY J:   You are softening us up with a textual amendment.

MR SMITH:   No.  Our primary submission is that the trial judge was not disqualified by reason of the appearance of bias because a fair‑minded observer would not reasonably apprehend – and we emphasise the word “reasonably” – that his Honour might not bring an impartial or unprejudiced mind to the resolution of the several questions his Honour was required to decide in the trial.

KIRBY J:   You said “would not bring, might not”.  I thought we were told that the test in this Court is “might not, might not”.

MR SMITH:   This is the fair-minded observer would not reasonably apprehend.  It is what he apprehends the judge might or might not do.  I think in the classical definitions in Webb and Hay and other more recent cases ‑ ‑ ‑

KIRBY J:   This is the fiction that people who come into courtrooms are all reasonable people.

MR SMITH:   That is right.  If I can just take you to some commentary on that fiction, in Webb v The Queen (1993-94) 181 CLR 41 Justice Deane at page 73 had something to say about the fair-minded observer. He said this at about point 6 of the page ‑ ‑ ‑

KIRBY J:   I had a crack at one of these fictions last week in the defamation context.  I may have to repeat it.

GLEESON CJ:   What page was this?

MR SMITH:   It is page 73, your Honour, and it is about point 6.  His Honour Justice Deane says:

The fair-minded observer is a hypothetical figure.  While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.  The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned.  If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias.

GLEESON CJ:   Well, the reason they refer to fair‑minded people really is not very difficult to imagine.  It is so you cannot say, “Well, I can think of some kind of person who would have come in here and thought that judge was biased.  I have got half a dozen people in mind to whom I could put names who would very readily conclude bias on the part of the judge.”

MR SMITH:    That is right and we submit ‑ ‑ ‑

GLEESON CJ:   But they are people who are not necessarily right down the middle themselves.

MR SMITH:    Often are not.

CALLINAN J:   Let all of that be accepted, but that passage that I referred to earlier in Ebner makes the test whether the judge, as opposed to the fair‑minded adviser, might not ‑ ‑ ‑

MR SMITH:   Well, I think your Honour was particularly ‑ ‑ ‑

CALLINAN J:   The word “might” is in italics in that paragraph, you will see in 205 CLR ‑ ‑ ‑

MR SMITH:    Yes.  In that decision at 345, that is Ebner v Official Trustee 205 CLR 337, I think your Honour was referring to a passage in paragraph 7 at page 345, that says:

Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.  No attempt need be made to inquire into the actual thought process of the judge and the juror.

CALLINAN J:   Quite, but earlier in the passage there is a reference to a possibility that a judge might not, as opposed to probability.

MR SMITH:   Yes, that is:

Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of the question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter.

KIRBY J:   Well, if you apply that test, why would you not say if a judge, when he has an application by an accused and he says, “I see.  Well, that application will be refused.  So how long will the defence case take?”

MR SMITH:   Yes, he said that and, as has been discussed earlier in these proceedings, if he had said it more gently or in a more eloquent way and said “Well, assuming that I might be against you”, or something like that ‑ ‑ ‑

KIRBY J:   But he did not.

MR SMITH:   He did not say that, but nevertheless you are entitled and the cases of this Court’s authorities make the point that you do not just look at those words in isolation; you look at the whole context.  On the very same page his Honour went on to say that he will hear his application and in fact, contrary to some of the discussion that seems to have occurred, he did hear the no case application in some detail after he rejected the disqualification application.

KIRBY J:   But it seemed a bit reluctant.  He said, “I will listen to it because the law requires me to”.

MR SMITH:    Well, that is your Honour’s interpretation.  I would suggest that he is aware of his duty that he has to consider it but just ‑ ‑ ‑

HAYNE J:   But we are in the realm of prejudgment, are we not, Mr Smith?

MR SMITH:   Well, we are, except this, your Honour ‑ ‑ ‑

HAYNE J:   What are we to make then of what is said at 238, line 35, before the application for no case is made?  The judge says:

I have a very, very firm view that as a matter of law . . . an application for a no case cannot succeed –

and he has not heard the application.  He does not know what it is.

MR SMITH:   Well, that is true and that was his view before it was mentioned.  That appears to have been his view that the case would just continue into the defence case which is a situation that occurs probably in at least 75 per cent of trials where there is no discussion at the end of the Crown case and it just goes into the defence case.  Now, in that case, if his Honour did have a doubt that the case had been made out, he probably should raise it himself.  But in this case – and I will be taking you to the gist of the case to answer because a lot of emphasis has been placed on exhibit D, but really the prima facie case was particularly based on Mr Savvas’ evidence and he gives evidence which does refute the claim of right.  He says, “There was no arrangement previously for me to pay any money to these people”. 

On the Crown case the payment was a sting.  They had an arrangement previously with some other contractor, Mr Raciti, and that ended and then subsequently, on the Crown case, it was only a month or so after that ended in about March 2001, when Mr Tony Antoun – that is how he is described – Antoine Antoun first approached Mr Savvas and said he started talking about a security service that he is involved in and they could help him, and Mr Savvas says, “No, I don’t want that.  I am adequately covered, thanks, very much.”  Then Mr Tony Antoun keeps coming back, then he rings him, then things happen and there is this raid of these men who wreck the joint and then a call the next day by Tony Antoun saying, “Did you get the warning?” and he just hung up on that.  Then Joseph Antoun coming to see him a couple of days later, on a Saturday night, saying he does not want to be effed around, “You got the warning, this is what I want, I want money”, not claiming that he has owed him money in the past, but because apparently others may have agreed to pay at a certain stage when there was trouble and stopped paying they are trying to get their money out of this fellow, but he is not using them.

KIRBY J:   But this is a very strong prosecution case, but even a strong prosecution case presents the obligation to the judge to listen to what the defence has to say.

MR SMITH:   That is correct and he does.  Your Honours, does that mean he has to guarantee that he will change his mind?

KIRBY J:   I numbered nine points where, really, it was less than perfect conduct.

MR SMITH:   Well, certainly he could have appeared more mild, but the ‑ ‑ ‑

KIRBY J:   It is not mild; it is a matter of signalling by your conduct that you really are open to listen, just in case there is a good point here.  Sometimes it happens.  It has happened to me.  I have come into Court and I have heard arguments – I think some of yours, Mr Smith – and I was against them on the special leave application and then you have persuaded me.  I mean, it does happen.  It happens all the time.

MR SMITH:   It just that, in our submission – and we have covered this more in the written submissions – once the – firstly, on appeal book pages 213, 214 where he says, after saying the part “that application will be refused”, which is just under point 30, and then Mr Steirn puts forcibly:

How can your Honour possibly come to that view without having heard one word . . . How could you possibly say that?

HIS HONOUR:   Because I’ve closed the Crown case, and I have just said it.

STEIRN:  But you’ve heard not one word . . . 

HIS HONOUR:   No I’m simply telling you the application will be refused.  I perceive what’s in the Crown case, I perceive there’s a case to answer.  Whether it be answered or not is entirely for‑ ‑ 

STEIRN:   Might I ask your Honour to stay your Honour’s judicial hand‑ ‑

HIS HONOUR:   All right‑ ‑ 

GLEESON CJ:   I am not suggesting for a moment that this consideration is conclusive to the outcome of the case, but I am anxious to understand the conceptual basis of an application for no case to answer.  Let it be assumed for the moment that you are right when you say that there was evidence given by Savvas which if believed refuted any defence of claim of right.  Let us assume that.  If there is a jury there and there is an application for a verdict by direction, the trial judge does not know what the jury have made of the witness Savvas.

MR SMITH:   That is right.

GLEESON CJ:   So the judge asks himself or herself, “Would it be open to the jury to accept the evidence of Savvas?  If accepted, would the evidence of Savvas refute any claim of right defence?”  But the judge being the trier of fact has heard the evidence of Savvas and has presumably formed at least a tentative view about the credibility of Savvas.  So is the question that the judge asks himself on a no case to answer submission where there is no jury the same?  Maybe the answer is yes, but I just want to be reassured about the conceptual basis of that because, apart from anything else, it is fundamental to the way we write a judgment in this matter.

MR SMITH:   Yes.  So far as we can see, there has been no decision where that has been spelt out, that what the actual test that the judge has to put in his own reply ‑ ‑ ‑

GLEESON CJ:   The argument for your opponents, as I understand it, is that R v R applies and that the exercise the judge should have done was for practical purposes the same as the exercise he would have done if there had been a jury there and an application for a verdict by direction.  Does that mean the judge should have asked himself, “Would it be open to me to accept this piece of evidence of Savvas and, if I accepted it, could it be regarded by me as refuting any defence of a claim of right?”  Would that be the question?

MR SMITH:   It would appear to be the question, your Honour, except this, that if the judge is exercising both functions, naturally he would be concentrating more on the evidence than perhaps he would if there is a jury in the sense that he has to make the decisions. 

KIRBY J:   But does that not make it a bit risky for him to be jumping to conclusions before he has even allowed a party to put their submissions?  It just is not the way our system is intended to work.  I realise this is not the Crown’s fault but I think we have to consider standards in this Court.

MR SMITH:   Yes.  I submit that, for example, in the case of JRL (1986) 161 CLR 342 Justice Dawson at 372 referred to Ridge v Baldwin, the well‑known House of Lords decisions, as authority for the proposition – at about point 2 of the way down the page:

It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage.

Now, in our submission, his Honour did that.

KIRBY J:   That was an administrative tribunal where things are more peremptory.  We are talking here of a judge of a court of record and in a serious criminal trial where liberty is at stake.

MR SMITH:   Yes, that is right, and there has been discussion up until this stage of the trial as to how long the trial is going to go, as I understand it, and this is another case where that happened that prompted Mr Steirn’s application.  So far as I can see there was no previous mention that there would be an application that there is no case to answer.

So, in our submission, it was normal for his Honour, when he is at the end of the Crown case, to be virtually at the point of deciding whether there is a case to answer, because if that application had not been made he would then either stop the trial, because he has made up his own mind or invited submissions from the defence and the Crown on that question, or continue the trial, and it appears that at this stage he was going to continue the trial, and as we submit he had a great deal of material.

I mean, this Court has said in Doney that a bare prima facie case is enough, virtually to leave it to the jury.  Doney confirmed the correctness of R, but in the headnote of Doney (1990) 171 CLR 207 said:

If in a criminal trial there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury.  The judge has no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.

And there was a debate ‑ ‑ ‑

GLEESON CJ:   That was what was held in R.

MR SMITH:   That is what was held in R and there had been a debate about it for some years and different ‑ ‑ ‑

GLEESON CJ:   Yes, there used to be some trial judges who took the view that at the end of the Crown case if they thought a verdict would be unsafe and unsatisfactory they could discharge the jury.

MR SMITH:   Yes.

GLEESON CJ:   I am sorry, they could direct a verdict of acquittal.

MR SMITH:   But in that first part of the holding, as long as there is some evidence of the Crown case…..for each element.  In this case there were the elements and the one that was contested is whether there was an intention to steal, and on Mr Savvas’ evidence, we submit, it is clear, if accepted, that there was an intention to steal, that they had not done any work for him.

GLEESON CJ:   But this is what is troubling me.  Behind the reasoning in R and Doney is the idea that this is a question for the jury, and the judge has no business taking it away from the jury if the jury could possibly believe Savvas, for example.  How do you relate to the situation of a trial without a jury?

MR SMITH:   It is a bit like a summary hearing.  The judge in that sits as both ‑ ‑ ‑

HAYNE J:   Is that right?  I accept that, at least on first inspection, there is nothing in the Criminal Procedure Act which is the root of the power to hold an indictable trial by judge alone, is it not?

MR SMITH:   No, there are provisions in the Criminal Procedure Act that ‑ ‑ ‑

HAYNE J:   It is to that I am referring, section 16.

MR SMITH:   No, sections 132 and 133 of the Criminal Procedure Act.  I am sorry, I should have taken your Honours to those.

KIRBY J:   I think we have those provisions there.  There are in somebody’s submissions.

MR SMITH:   I think my learned friend attached them to his submissions.  Section 131, incidentally, refers to:

Trial by jury in criminal proceedings -

that criminal trials -

are to be tried by a jury, except as otherwise provided by this Part.

Then, 132 and 133 set out a procedure where a trial is run by the judge alone. The procedure is that an election has to be given at least 24 hours before the commencement of a trial signed by both the accused and the Crown Prosecutor consenting to this way of trial.

KIRBY J:   That is to avoid forum shopping, is it?

MR SMITH:   Yes, I understand that is the reason.  The Director has made some guidelines about how you exercise your decision – the prosecutor exercised his decision in that matter.  Generally where there is a possibility of inflammatory things like somebody is a well‑known criminal or something, has had a lot of previous bad publicity or something like that or where there is technical questions where it would be better just to use a judge as the arbiter of the facts than a jury, where the decisions are made, as I understand it, that is the usual thing.  So, in those two sections, section 133 says:

(1)      A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person.  Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)      A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

That relates to the final determination.

(3)      If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

If your Honours examine the judgment in ‑ ‑ ‑

GLEESON CJ:   But what is it – I am not doubting it, I just want it to be clarified because I could go right off the rails otherwise – that entitles an accused person at a criminal trial before a judge sitting without a jury, without electing not to go into evidence, to make an application at the end of the prosecution case of “no case to answer”, which I imagine is an application for a judgment of acquittal?

MR SMITH:   At this stage, your Honour, I cannot add anything to what I have already said.

GLEESON CJ:   Well, I would be grateful if you and your opponents would have a look at that over the next seven days and see whether it has been dealt with in any authorities, in New South Wales or elsewhere, and whether we are all correct in our assumption that the principles in R v R and Doney apply in such a situation.

MR SMITH:   Really, the R v R and Doney are dealing more with the unsafe and unsatisfactory question.

GLEESON CJ:   Yes, but they are dealing with the respective functions of judge and jury at a criminal trial.

MR SMITH:   Yes, that is true.

GLEESON CJ:   And it is not self‑evident to me that they are directly translated into this situation.

MR SMITH:   No, I see what your Honour is saying and we will seek to answer that. 

GLEESON CJ:   Thank you.

KIRBY J:   If there is anything in the Evidence Act that touches on these things, we had better be told of that too.

MR SMITH:   Yes, your Honour.  Perhaps I will just go back to where I was going.  Yes, I was saying that the comments by his Honour that should be looked at are not just the comments that he made at that first instance when it was mentioned, but that there is other material that I will take you to, some of which admittedly does seem abrupt, I grant that, but other parts indicate that he is willing to listen and willing to assist, in a sense, pointing out parts that he thinks that Mr Steirn should seek to answer.

I think my friend has already referred you to what is on page 213, but his Honour said, “I’ll consider any submission you put.  I’m obliged to consider any position you put”.  The next day, after the judgment on the disqualification issue, Mr Steirn made a further application for a disqualification based on his judgment.  At page 220 of the first appeal book Mr Steirn said that, “Despite what we’ve already said” – this is point 25:

we nonetheless intend to put before you written submissions as to why there is no case to answer.  We would respectfully ask your Honour to consider those submissions which have been very carefully crafted and we’d ask your Honour to keep an open mind on the questions of law and the questions of fact elicited therein.

It continues, and there is discussion about the written submissions.  At the beginning of page 221 at line 5 his Honour said:

Could I say one thing Mr Steirn and you take it on board or on notice, whichever expression you prefer.  Did you understand when I said this morning in relation to your submission for no case I referred to two matters, your opening and the contents of exhibit D.  You understood me to say that?

His Honour was saying he had earlier said they were things that he took into account in reaching his decision.  Mr Steirn said:

Your opening?

HIS HONOUR:   Your opening, that is the defence opening and the contents of exhibit D.  Did you understand me to have referred to those two matters as being the matters in relation to which an application of this nature could not succeed at law?  I just want to make sure you heard that?

STEIRN:   If your Honour did say that I don’t recall it, but I don’t suggest your Honour didn’t say it.

Then the matter goes over till after 2 that day.  The Crown case is reopened and a warrant is tendered covering the telephone intercept of Mr Tony Antoun’s mobile phone.  Then his Honour indicates:

there’s one particular aspect of exhibit D to which I wish to alert you –

this is to Mr Steirn –

but I don’t think I should until after I see the Crown’s written submissions.  I think otherwise it might be perceived that I was alerting the Crown and not yourself.

His Honour makes out that he does not want to put it in the mind of the Crown; he wants to wait till her submissions are filed, as it were, and then it can be discussed.  So he is really, we submit, trying hard to be as fair as possible, even‑handed.  He did not have to go that far but he is doing it.  On the resumption at page 225 Mr Steirn at the top, having I think already handed up his written submissions, goes into detailed submissions as to exhibit D – firstly, as to Michael Savvas’s evidence at line 35 and supporting his written submissions, trying to support the claim of right defence that can be seen in this part of the Crown case.  His Honour says at 226 – and there is discussion going on all the time, so it is not as if his Honour is just sitting there mute, having made up his mind, not going to listen to anything Mr Steirn says:

Let me interrupt you there just by saying this.  I may have misconceived this from your opening, which was marked for identification, but that a demand was made and that it was associated with some sort of menace I do not perceive to be in dispute.  Am I correct about that?

STEIRN:   Your Honour’s correct.

So there is no dispute about two of the elements.  Then Mr Steirn continues to – at 226 through to 230, putting arguments as to interpretations that could be put on exhibit D, the transcript of the tape of the discussion between Mr Joe Antoun and Mr Savvas.  At 230, about halfway down the page at line 30 his Honour stops him:

Would you just stop for a moment, I just wish to make a note?

So he is making notes of matters that Mr Steirn is putting, he is not just ignoring him. 

At one stage on page 232 there is a reference, “The Crown have said it in their submissions”.  A matter that your Honours will see – and we will take you to exhibit D, but it is not just $8,000 that seemed to be wanted from Mr Antoun.  Towards the end of the tape Mr Joe Antoun says, “We want to get paid for a couple more months just to cover other people that deserve some money and just to clear everything up”.  So it is an ongoing, as it were, demand.  That is not money that is already owed, that is money for the future just to keep him and others happy in a context of Mr Savvas saying, “There’s never been any arrangement between us”, but seemingly paying to shut him up, to keep them off his back, to stop really wrecking his business by having people go down there and mess up all the furniture and scaring people off.

CALLINAN J:   For my own part, Mr Smith, I do not doubt that it was a very, very strong case, but I do not think emphasising that comes to grips with the difficulties.

MR SMITH:   Well, I am trying to show that on the no case to answer there was a detailed submission made after his Honour said, “I will listen to you” and his Honour kept taking notes.  It appears at page 235, about line 40:

I won’t be a second.

He is obviously writing.

Now what did you say?

Those submissions finish halfway down page 236 - so not only is Mr Steirn putting the joint written submissions which are of lengthy quality, the Crown Prosecutor’s submissions and Mr Steirn’s oral submissions.  So he has, by this time, as we say, remedied what might have been an abruptness that took place in the first place, we would submit mainly based on the fact that the issue had not been discussed before and that his Honour was sitting there listening to all this evidence and the evidence for the Crown had finished, and it was a stage where he had to make that decision whether or not there was a case to answer.

KIRBY J:   Do you remember that I asked the question about the proviso, because I can see the power of the Crown case and I can understand the community, including the person sitting at the back of the court, might have a certain impatience with our anxieties about new procedures and so on, but you do not seem to run that argument.

MR SMITH:   Well, we certainly have in our written submission.  A matter that I indicated to my learned friend, Mr Clive Steirn, before we came into Court is that we are not arguing that a proviso should apply to the bail question because of not following the process that was required under the Bail Act, but so far as the case to answer is concerned, we submit it could, because if the Court was against us on that but not against us on the other, we submit that that is not because of the nature of the no case to answer concept and the fact that there was no case to answer we would submit, clearly on the evidence a powerful case.

KIRBY J:   The fact that there was a case to answer.

MR SMITH:   Yes, that there was a case to answer.  Thank you, your Honour.  That perhaps the proviso could be considered there.  It is a situation I have not seen before and I know at the special leave application when Justice Hayne, I think it was, asked me on the question of the correct process, I said I would not be raising the proviso and that was in the context of if the Court of Criminal Appeal erred in the way it applied or determined what the process was.  But when we come to ‑ ‑ ‑

HAYNE J:   It is a large question which has, I think, received consideration in this Court perhaps only once, by Justice McHugh in I think TKWJ - I think that is the case - where his Honour considered the relationship between the third element of the common form criminal appeal statute on any other ground a miscarriage of justice with - considered the relationship between the third ground and the proviso.  His Honour concluded that the proviso could not be engaged in a case where the third ground of appeal, on any other ground a miscarriage of justice has occurred, was found to exist. 

Now, the Court heard argument in a matter of Weiss, a Victorian case last week, which invited attention to the history of the Criminal Appeal Act and invited attention to the fact, perhaps, the expression “a miscarriage of justice” as the third specified ground of appeal may encompass any and every departure from ordinary, proper trial procedure.  Now, that in turn would tip you over into the quite larger question of whether the proviso is discretionary.  It is cast in discretionary terms.  The court may.  That is to be contrasted with what appears in the early part of the section, the court shall allow the appeal.  But those are large questions and if you are to raise them, for my own part, you raise them squarely and address them squarely rather than have us go away and do the work.

MR SMITH:   Your Honour, I was not involved in Weiss v The Queen.  Is that a criminal case, I assume it is just from that discussion?

HAYNE J:   Murder.

MR SMITH:   I think I would be optimistic to think that if there was error found, there was the reasonable apprehension of bias found on any of the indicia, that the proviso would be applied, but his Honour the Chief Justice has raised an interesting question to do with the role of a judge sitting alone in a criminal trial, and I do not wish to, in a sense, ambush arguments that we may put and my friend may put about that because that may have some impact on this question.

GLEESON CJ:   This debate appears to have been conducted at all levels in the Court of Criminal Appeal and here on an assumption, which may be right, but is perhaps worth investigating, upon an assumption that at a criminal trial without a jury, at the end of the prosecution case if counsel for the accused, without electing whether or not to give evidence, makes a submission to the trial judge “that there is no case to answer”, which I take to be a submission that there should be a judgment for the accused, it is the obligation of the trial judge to entertain and rule on that submission, and furthermore, that obligation has to be performed regardless of the intrinsic merits of the submission.  In other words, the assumption is that Judge Christie was right when he said, “I am obliged to consider your argument”.  Now, that may be true, that may be correct, but it is not exactly self‑evident.

MR SMITH:   No.

HAYNE J:   If you are going to explore this you have, I think, to go into the civil side.  There I think you will find in the late 1940s – I think 1948 or thereabouts – a judgment of Mr Justice Wilfred Fullagar, sitting as a judge of the Victorian Court on the civil side, about when parties are to be put to their election or no on a no case submission, which you will find most easily perhaps through a case called American Home Assurance v Protean Holdings, I think it is, in the mid‑70s, Victoria.

MR SMITH:   That is all I wish to put on that proviso question.  I cannot go into it in any great detail.

GLEESON CJ:   On the point that I have just ‑ ‑ ‑

HAYNE J:   Justice Heydon identifies Justice Fullagar’s judgment.  It is Union Bank of Australia v Puddy [1949] VLR 242.

GLEESON CJ:   The parties may have an opportunity to put in written submissions within 14 days on that issue that I raised.  That sounds preferable to people trying to deal with this on the run.  You may come to the common conclusion that the assumption on which everybody is proceeding is right, but we would like to know why.

MR SMITH:   Yes, I have in the back of my mind, and I do not know the case, but there is a Court of Criminal Appeal case that says that you use, so far as they are applicable, the same procedures and in a judge‑alone trial as you do in a trial by jury, but I do not have that.

GLEESON CJ:   An obvious example of a situation where this would arise is in a prosecution for an offence in the Land Environment Court.  In other words, it is perhaps exceptional that a case of this kind has been tried without a jury but there are quite serious matters that are commonly – penal matters that are commonly tried without a jury.

MR SMITH:   Yes, that is true.  Thank you.

KIRBY J:   How do you interpret paragraph 308 of Justice Smart’s reasons where he says, “There has been no miscarriage of justice”, was his Honour there applying the proviso or was he simply, as it were, summing‑up the conclusions that had gone before?  Justice Dowd was much more direct.  He just says that ‑ ‑ ‑

MR SMITH:   That is at page 862 of the appeal book.  Your Honours, we submit that in that part of the judgement he was dealing with a ground of appeal that I think was appeal ground 1 – it is at 856, paragraph 2 at about point 5:

The learned trial judge was in error in refusing the application of defence counsel for His Honour to disqualify himself from continuing with the trial by reason of apprehension of bias.

In our submission, his Honour is using the expression “miscarriage of justice” but he is basically saying that the appeal background is not made out.

KIRBY J:   But that is what Justice Dowd says directly, whereas Acting Justice Smart who had some little experience in the Court of Criminal Appeal seems to be using the language of the proviso.

MR SMITH:   Yes.  Just in support of my argument, your Honour, could I take you back to 859, paragraph 292, which is where he is dealing with the first aspect of that particular ground, the no case to answer, where he says:

From the transcript it does not appear that the judge treated the appellants’ submissions as a formality, or that he had a closed mind.  At the end of them his initial views were reinforced.  Lack of delicacy in expression and expressing views forcefully are not sufficient to amount to an apprehension of bias if attention is paid to the submission that there was no case to answer.  That submission failed on the merits.  The Crown case had to be taken at its highest.  There has been no miscarriage of justice.

He has used it again but he is effectively rejecting that aspect of the ground of appeal, we submit.  In any event, we would submit that a finding that there is no error infers there has been no miscarriage of justice.

KIRBY J:   Do you have to say that if there is no error?

MR SMITH:   It is better if you do, but he said there is no error in paragraph 292 and in 307, earlier:

Given the evidence and the mode of trial selected by the appellants, to which the Crown agreed, I am not persuaded that there was a reasonable apprehension of bias on the part of the trial judge.

That is saying he is not satisfied that that ground has been made out on this aspect, the bail aspect.  Your Honour, I know, earlier queried the expression “the mode of trial”.  I submit that what that means is that a reasonable observer would expect a judge to know what he is doing generally more so than a jury.  There are things that my friend wanted to lead evidence, for example, of criminal record.  The judge would have had to cast that out of his mind in determining the guilt or innocence of the accused.  That is one of the instances where one can expect that judges are more trained and more aware of what their duties are and are able to push biases and matters of that sort out of their minds than an ordinary member of the public who is called in as a juror.  I think that is what he meant there.

KIRBY J:   I think you mentioned this earlier, where we have seen appeals coming up here from judge‑alone trials, the judges who write their reasons do so in quite a formal way as if they were the jury taking instructions from themselves.

MR SMITH:   Yes.

KIRBY J:   Now, if you can find the authority on why they do that ‑ ‑ ‑

MR SMITH:   I understand Fleming ‑ ‑ ‑

KIRBY J:   Fleming, was it?

MR SMITH:   This Court’s decision in Fleming, among other things, I think criticised the trial judge for not giving himself certain warnings and matters of that sort and they expounded upon it in that case.  It is Fleming v The Queen (1998) 197 CLR 250.

KIRBY J:   That is the Tasmanian case?

MR SMITH:   No, it came from New South Wales.  It is a deputy principal of a school charged with indecent assault or something of that nature.  The holding in that case was:

that the failure of the judge to refer to the necessary warning about the reliability of the complainant’s evidence was an error of law amounting to a substantial miscarriage of justice.  In the circumstances there should be a retrial. 

There is some discussion in per curiam there of section 33(2) and 33(3) of the Criminal Procedure Act.  They were the previously numbered sections for these trials by judge alone before recent amendments.  So there is some guidance in Fleming, we would submit, on these questions.

KIRBY J:   What worries me about the proviso is that you might get a case where it is a very, very long trial and there has been high tension and some exchange that should not have happened and a person sitting at the back of the court would think, “Well, that really was beyond the pale and the judge should not have done that”, but then you look at the whole entirety of the case and you think without, as it were, passing by the issue that the consequential order and judgment is not infected by an error of that magnitude.  Now, query whether one can do that or whether where the Criminal Appeal Act talks in terms of miscarriage of justice, if you have had apprehended bias, that that is enough.  Apparently that is what Justice McHugh said in the case to which Justice Hayne mentioned.  Anyway, I think I am just ruminating and we have gone through it again, so we will just have to wait for your submission.

MR SMITH:   The evidence of Michael Savvas I was talking about before on this question and I mentioned how he was visited a number of times or rung up by Tony Antoun trying to get him to take on his work, take on their assistance in security.  It then turned in to “Give us some money”, that seemed to develop, and at appeal book 21, line 55, around there, Tony this time came upstairs to his office during the lunchtime period – he had come at night time before:

and I distinctly remember the words that he told me were that he was here just to deliver my final warning.

One wonders if someone is validly chasing a debt that is lawfully owed – there is no written documents or anything of that sort, no solicitors’ letters, it is all being done by phone calls and groups of people coming to the club and just hanging around for hours wanting to talk to him or just not even saying anything and then following it up with phone calls or threats.

KIRBY J:   I have seen debt collection letters that have the words “final warning”.

MR SMITH:   Yes, I know and I know that in some cases ‑ ‑ ‑

KIRBY J:   I think it is a different thing when you have had people running into a restaurant smashing tables or throwing tables.

MR SMITH:   That is right.

GLEESON CJ:   The service for which the alleged debt was said to be owing was what kind of service?

MR SMITH:   It is supposed to be some protection ‑ ‑ ‑

GLEESON CJ:   That is what I had in mind.

MR SMITH:   ‑ ‑ ‑ from outside trouble.  There apparently had been some trouble in the year 2000 with men apparently of Middle Eastern appearance going there and ultimately Mr Raciti who actually had the running of the nightclub put on a Mr Shalala who ultimately I think asked for assistance from the Antoun brothers, or at least Joe Antoun, and they took over because Mr Shalala went to gaol about June 2000 and it looks like they took over the business.  But Mr Raciti’s business effectively failed by February 2001 and on the evidence Mr Savvas said that he had never made any promises or made any contributions during the period that Raciti was running the nightclub and it was only after he finished in February 2001 that he started to get these visits and calls from the Antoun brothers.

At page 22 of the appeal book, about line 40, he said that when he was talking to Tony Antoun, “that the business wasn’t going too well” for him, that is Savvas, “and there was no monies owing as per the discussion”, because his discussion had been, “I don’t need your help”.  He had another group, a firm, doing the security.  It was mainly on a Saturday night, as I understand it.  It was said that Mr Joe Savvas – and Joe Savvas gave this evidence – Joe Antoun told him it would be $1,250 a week was the rate that they were being paid and they expected that from him.  I think his comment effectively was why should he pay that when he does not ask them to do anything? 

When one looks at the tapes, which I will come to briefly, leading up to the meeting with Joe Antoun on 22 June that was taped, there was the incident with the – they were described as Aboriginals coming into the club.  Both the Antouns agreed to some involvement in that, although it seemed to change in the case of Tony Antoun.  He said he delivered all of them down there and then later on it was just one.  But there was some suggestion that one of these men that went down there felt he was owed money by the Antouns for past services at that club and because Joe Antoun had not been paid, he said, “I’m trying to get it off Savvas.  You go down and try and get it”.  There is some evidence given that as far as the Antouns were concerned, they just went down there to have a chat.  But there was telephone intercept material which is I think exhibits – transcripts, exhibits K, L, M, N, O around pages 423 onwards.  I think a couple of those exhibit numbers are wrong, sorry.

At page 423, the first appeal book, exhibit K, is a discussion between Joseph Antoun and Tony Antoun about something happening clearly about these men that went down and wrecked the place, and that they ran away but it looked like somebody might have been caught.  They were checking to see whether there was anyone caught.

GLEESON CJ:   This case only got for trial because some magistrate in some committal proceedings ruled that there was a prima facie case.

MR SMITH:   Yes.

GLEESON CJ:   What was the difference between the task that Judge Christie was being called upon to perform and the task that had already been performed by the magistrate?

MR SMITH:   So far as the first part of the magistrate’s function whether there was a case to answer it was the same, we submit, because the magistrate then has to make a prediction about whether a jury reasonably – I have forgotten the wording, but ‑ ‑ ‑

CALLINAN J:   Whether the jury is not likely to convict, is it not?  It is a 1985 amendment ‑ ‑ ‑

MR SMITH:   Yes, there is a higher standard for committal than there is for a trial judge in deciding whether there is a case to answer.

CALLINAN J:   He has to be satisfied, does he not, that a jury would be likely to convict or something like that.

MR SMITH:   Something like that, whereas the prima facie one is the Crown case at its highest, and as your Honour rightly said earlier, ignoring inferences in favour of the accused.  So that this had already been through that process, and we had that tape and then there was another discussion where somebody had been chased by the police, who spoke to Tony Antoun, and then Tony Antoun receives another call that there was a guy waiting for him at Central.  He said, “one has been grabbed”, and it is “The one whose leg was” – it sounds like the inference is he had a bad leg, could not get away quickly, and Tony Antoun said:

The fucking bastard.  I told him don’t go.  Anyway, I am going to pick up that one and take him home.

So it shows an involvement in the prearrangement for that particular visit.  I mean, if they were just going to have a talk, what difference does it make whether he has got a limp or something wrong with his leg.

Then tape at 428, exhibit N, the Antouns were arranging for the name of a solicitor so they can have the fellow represented in court.  They are the tapes dealing with the particular visit by these men to the club who messed up the place, and clearly that was the warning.  If you do not pay us the money we want, that is the money, we submit, the Crown submits, the money that we are not entitled to but the money we want because we are extorting money out of you, then worse will happen, and that is the context of the discussion.

In exhibit D, that I was thinking I might get 100 grand out of you, and the suggestion that he could send lots of people down there, and in the context of wanting another one or two months more money.  It is not payment of debts owing.

On the Saturday night that Joe Antoun came around – that is the Saturday after the other men went and wrecked the place – Joe Antoun went with seven or eight men to visit the club and that is when he said that, “I am not hear to eff around.  You got the warning”.  So, again, certainly in the context of the demand and the menaces, that is certainly very powerful evidence and as to the stealing we would submit that those parts in the tapes where a lot more money could have been obtained – $100,000 might have been obtained, indicates it is not debt.  It is a payment for protection, mainly from them. 

If it is only a debt, why, as Mr Savvas has said, was he frisked by Mr Antoun when he went and met him at Tony Raciti’s office?  He patted his back, his front, his legs looking for a tape recorder.  That is at appeal book 48, line 30.  He took his wallet and held onto his driver’s licence it is said because he ultimately received a bundle of cash that Mr Savvas said was $8,000 security for that, but it is certainly not the actions of someone who is exercising a claim of right, we submit.  Now, his Honour had more to say about this in his judgment on the question of guilt or innocence and ‑ ‑ ‑

KIRBY J:   Strictly speaking, guilt or non-guilt.

MR SMITH:   Guilty or not guilty.

KIRBY J:   The inquiry is whether or not the prosecution proves guilt, not whether the accused proves innocence.

MR SMITH:   Yes. That is my carelessness that said that, your Honour. You are quite right. Just on that question raised by the Chief Justice and his Honour Justice Callinan, the question that the magistrate has to be satisfied is now set out at section 63 of the Criminal Procedure Act, but for many years it was section 41(6) of the Justices Act.

KIRBY J:   Section 65.

MR SMITH:   No, 63.  It says:

(1)      If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules.

This is obviously the prima facie case question.  My learned friend rightly points out on the question of committal, section 65:

(1)      If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial.

CALLINAN J:   That is a completely different test from Doney, is it not?

MR SMITH:   It is, and it is a tougher test for the prosecution than here.

CALLINAN J:   Mind you, it is a different setting entirely at the trial where counsel may have asked entirely different questions and witnesses may or may not have been called.

MR SMITH:   Still lower than beyond reasonable doubt.

CALLINAN J:   Absolutely.  What I am saying is that the factual matters that the judge may have to consider on a no case submission may be quite different in important respects from the facts as they were laid out before the magistrate.

MR SMITH:   Yes, that is right.  His Honour in his final judgment at appeal book 536 – the whole judgment is duplicated.  I am starting at the earlier version of it, 536 – does refer to his decision on the case to answer.  His Honour said originally that he would give a more detailed judgment - that was mentioned this morning – and did not, but at 568, 29, his Honour said:

If it is perceived that I have not sufficiently addressed the legal aspects of the application for no case to answer I would be perfectly happy to attend to expanding those remarks should either party consider that necessary at some future time as long as it is in the next 28 days.

As I understand it, no such request was made.

GLEESON CJ:   What page is that?

MR SMITH:   That is at page 568, line 29.  At the bottom of 535 in his judgment, a point that his Honour took considerable regard to was the fact that the case of the accused seemed to shift.  Certainly the accused Joe Antoun seemed to shift.  When his counsel was cross‑examining Mr Savvas, it was never put to him by counsel for Joseph Antoun that he had had any dealings with Mr Joe Antoun prior to 2001.  In Mr Joe Antoun’s evidence and Mr Tony Antoun’s evidence it was claimed that the relationship had commenced in about 2000 and that for some time Mr Savvas had been paying them for the security but he proved unreliable because he was not giving them the full amounts, so after a while Mr Raciti took over the payments and he was a better payer.  That certainly was not put by counsel for Joe Antoun to Mr Savvas.  It was put briefly by counsel for Mr Tony Antoun that there had been a previous arrangement, and that was rejected.

Just at the bottom of 535 at line 50 his Honour said:

I need to say this that I do not believe it is possible to overstate the forensic importance of exhibits B and D.  There are arising, more so from exhibit D but certainly from both exhibits some inferences that are perfectly clearly unescapable, certainly unescapable without any reasonable explanation in place thereof.  One of the reasons that I found that there was a case to answer, indeed I was never in any doubt that there was a case to answer once I had heard the Crown case, is that exhibits B and D standing as they were unchallenged, were, prima facie at the very least, evidence of a very significant demand having been made, coupled with a very significant threat and containing material which could only go, on any reasonable interpretation to negative any claim of right which the accused purported to have in relation to either the money that was extracted at the meeting on 22 June or any other monies.

So that that is somewhat of an amplification of his reasons.  He made the point he does not have to accept all the Crown evidence, and did not, but he accepted on the essential facts.  We submit just on this aspect of the no case to answer that the test of reasonable apprehension of bias has not been made out and that his Honour was correct in his decision on that and not in error.  On the bail issue clearly the revocation had some irregularity about it.

GLEESON CJ:   The bail seems to – I see – I have not looked through from cover to cover but the papers are punctuated or the trial record is punctuated with statements made by the trial judge such as, “I will continue bail until 2 pm” or whatever the case may be.

MR SMITH:   Yes.

GLEESON CJ:   What was going on about bail before the critical intervention?

MR SMITH: As I understand it, it was being continued whether specifically said by the judge or by implication and section 43(3) of the Bail Act provides that:

If the accused person appears before a court in accordance with a bail undertaking referred to in subsection (1) –

and it appears that he did give an undertaking, at least at the committal, which appears to have been continued –

but no specific direction is made by the court in respect of bail, the court is taken to have continued bail.

So, on those days when there is no mention there does not ‑ ‑ ‑

GLEESON CJ:   And is failure to continue tantamount to revocation?

MR SMITH:   No, because the courts – well, that is a nice question as to whether what his Honour was doing when he actually ended bail, if I can use a neutral word ‑ ‑ ‑

KIRBY J:   He did not use a neutral word, he used the word “revoke”.

MR SMITH:   He used the word “revoked”, that is right, but in effect he may have been ending bail.

GLEESON CJ:   But he was declining to continue bail.  Was it the position before he did whatever he did that unless he continued bail bail would come to an end?

MR SMITH:   No, we submit not.  At page 75 of the appeal book, line 55 he dealt with bail, so at the end of the first day which seems to be in a sense defining what is to be the situation for the rest of the trial until he changed his mind and he asked:

Do I correctly infer that there’d be some conditions on bail that these gentlemen not approach the present witness?

STEIRN:First of all your Honour that’s taken as a given and secondly, there’s been no suggestion by anyone apart from your Honour ‑ ‑

HIS HONOUR:   I’m not suggesting – you’ll know why I’m asking now ‑ ‑

STEIRN:    ‑ ‑before today.

HIS HONOUR:   You’ll know why I’m asking in a moment. Then I will invite them to remain in your company for five minutes until the present witness gets away.

At that stage it was Mr Savvas who was under cross‑examination –

The same as if there was a jury –

because generally – if, for example, an accused is in custody in the dock and is brought up from a cell that is usually kept away from the jury so that the jury leaves the court before the prisoner leaves the dock just so as to not give a bias ‑ ‑ ‑

GLEESON CJ:   So as not to give a true impression?

MR SMITH:   That is right.  His Honour said:

The same as if there was a jury, it’s not done as a forethought.

CROWN PROSECUTOR:   Your Honour that is a condition of the bail that they’re not to approach.

HIS HONOUR:   I guessed it probably would be, that’s why I thought I’d mention it.  If they’d remain in your company for five minutes.

STEIRN:   If your Honour pleases.

HIS HONOUR:   And perhaps I could require them back in your company by a quarter to ten.  Is that satisfactory to you Miss Crown?

CROWN PROSECUTOR:   Yes, your Honour.

Now, that was one comment he made on bail.  He allowed them to go.

GLEESON CJ:   Can I interrupt you for a moment to ask how long you expect to require because we have to have a reply from Mr Byrne and Mr Steirn.

MR SMITH:   Yes.  Well, I really do not have a lot more to come.  I was not going to spend as much time on the bail issue because I submit that our written submissions cover that well and my friend, we submit, cannot use Justice Sully’s decision as part of his case against us and I think the Court seems quite clear about that.  Winningham, we submit, is distinguishable because that is a case in which the Court of Criminal Appeal clearly made an error as to the appropriate test for the reasonable observer, and the Crown conceded it on that basis.  In that case, of course, the bail was revoked quite early in the trial.  He certainly had not heard the Crown case at the time and it was the way the man was looking at him that made him revoke it because he felt uneasy.  There was no suggestion that the evidence was so strong or anything of that sort that would justify a revocation of bail.

KIRBY J:   I should make it clear that it is true, as you put it, that the decision of Justice Sully is legally irrelevant, that there would be few judges in New South Wales who know more about the criminal law than Justice Sully and have conducted more trials.  It is pretty clear reading between the lines that he was more than a bit concerned about ‑ ‑ ‑

MR SMITH:   Yes, I think also his Honour ‑ ‑ ‑

KIRBY J:   It is a forensic point really.

MR SMITH:   His Honour was the judge who gave the leading judgment in Winningham in the Court of Criminal Appeal and may have had that case on his mind after this Court overturned it, as it were, so was more sensitive to these matters.  He also felt that the no case to answer point, the judge was quite justified in that and there was no reasonable apprehension of bias on that point, but we are not really relying on what he said.  So it is a bit like the curate’s egg, there are bits in there for us too.  But as to the Winningham decision, we submit it is quite different from this case.  Your Honour, I think I would be at least another 10 or 15 minutes.  I do not know if that is ‑ ‑ ‑

GLEESON CJ:   How long do you expect to be in reply, Mr Byrne?

MR BYRNE:   Your Honour, about five minutes, maybe a little less.

GLEESON CJ:   Right.

MR SMITH:   Just on the revocation of bail, my friend generously said we were generous in making concessions.  We did make a half concession.  We said that he appears to have decided it was a very strong case.  It might have been stronger than that, and that he has not followed the procedures set out in the Bail Act. We are not saying that he could not have validly revoked bail had he gone through the proper procedures in a case of such strength, because that is an important criterion and, we would submit, in section 32 of the Bail Act.

KIRBY J:   You would have to go through not just the motions, but the true process of hearing what the accused had to say.

MR SMITH:   That is right. It depends to some extent whether – and I am not going to take time, but whether the provisions for the application for bail under section 32 apply to the question of continuation of bail because it was mentioned earlier in this appeal that it is quite a common practice for accused people to be bail refused once the jury goes out. That does not seem to be a specific ground in the Bail Act and, as I understand the procedure, there is not usually a hearing in the normal sense before those decisions are made.  There are other judges who in my experience revoke bail at the end of the Crown case in the past.

GLEESON CJ:   Yes, and I have come across judges who revoke bail once they start their direction to the jury.

MR SMITH:   Yes, that is right.  So that there have been different things.  It does not mean it happens, but some judges had the invariable practice.  I am not saying it is so common now, and particularly since Hilton’s Case and the Bail Act coming into – Hilton’s Case is a case dealing with following section 32 strictly, which I think is referred to in my friend’s submissions.

We submit that whatever error has occurred does not by itself raise apprehension of bias, and we refer your Honours to particularly to paragraphs 5.27 and 5.28 at page 9 of our submissions – I will not read that – and I was going to say that the comments of Justice Sully on the merits of the appeal are not relevant to these proceedings as his Honour was not sitting on the appeal and there have been instances in this Court where judges have granted bail.  Justice Toohey granted bail in a case of Chew.

KIRBY J:   Justice Dawson granted bail in that theft case.

MR SMITH:   This was a case where he granted bail after the Court had reserved its decision and the appellant lost and Justice Toohey was one that was in the majority.  I think it was a unanimous ‑ ‑ ‑

KIRBY J:   Justice Callinan is the only one who always gets it right.

CALLINAN J:   I have had some close shaves though, I think.

MR SMITH:   I have a few nicks there too.  Within our written submissions we referred to reasons why his Honour in his final decision acted judicially and took into account the matters that were raised by my friend in his arguments and submissions and weighed them up and decided in the end to convict. 

Just a few things.  Some of them have been sorted out before I stood up.  This question that was raised by Mr Steirn about playing of the tape of the debate that occurred to get his Honour’s demeanour and the tone of his voice and matters of that sort, at appeal book 568, about line 6, his Honour ‑ ‑ ‑

HEYDON J:   ‑ ‑ ‑ suggests that we hear the tape.

MR SMITH:   He is talking about this tape:

I have said all I wish to say about it except this.  That at Mr Steirn’s request the exchange that took place between he and I, I think on the first Thursday afternoon of this trial, was replayed.  Should that aspect of this matter ever come for consideration at any time in another place by other persons I would strongly recommend that they not consider the matter without also hearing the tape that was played in this court.

Unfortunately, we have tried to get the tape and we have been met by a brick wall so far.  Whether it has been destroyed or there is some problem with reproducing it because of a change – I think they have changed over to digital tapes and they do not have the equipment.  Also at the bottom of 572 about line 50:

Secondly, I made reference to the necessity, in my view, of any other tribunal entertaining any argument as to the application for me to disqualify myself in relation to perceived bias.  I did make mention that in my view the tape recording ought to be played by any such tribunal, if it ever got that far.  I did that perfectly deliberately, but I think I should explain why, and it was only to meet that part of Mr Steirn’s submission that related to what he described as body language, voice demeanour.  It was for that purpose only that I referred to the actual tape recording.

So it is not correct to say that his Honour never referred to that at any stage and when one reads the transcript I would say that there was a fair bit of heat generated over some of these decisions by the parties as well.

CALLINAN J:   Mr Smith, can I just ask you about another matter.  Do you accept that the test of apparent bias is that a reasonable person might entertain the view that the trial judge had prejudged the matter?  Now, I ask you that, whether it is might or would entertain?

MR SMITH:   No, it is a “would”, I think, your Honour.

CALLINAN J:   I question that.  If you look at Webb at page 47 in the reasons for judgment of the Chief Justice Mason and Justice McHugh, their Honours use the words:

might reasonably apprehend or suspect that the judge has prejudged –

The only Judge who seems to use “would”, so far as I can see, is Justice Brennan at page 57.  Justice Toohey at page 86 certainly adopts the test of “possibility” or “might” and Justice Deane has quoted the test from Livesey which refers to “might”.  The balance of authorities seems to be quite expressly “might”.  Am I wrong about that?

HAYNE J:   You have to take account of what five members of the Court said in Johnson v Johnson 201 CLR 488 at 492, paragraph 11 that a test is stated as:

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind –

That is a judgment of five members of the Court.

CALLINAN J:   There you are, the balance of authority strongly ‑ ‑ ‑

MR SMITH:   I am not seeking to challenge that but the “would” has been occasionally used at the commencement of ‑ ‑ ‑

CALLINAN J:   It is a must different test.  It really is.

MR SMITH:   I think the context I use it in was that a reasonable person would think that a judge might – I think it was ‑ ‑ ‑

CALLINAN J:   It does not say that, Mr Smith, “a reasonable person might think that a judge might”.  That passage in paragraph 7 of Ebner is a basis for the second aspect of what I have said, whether it is ‑ ‑ ‑

MR SMITH:   I may have used the wrong term.  I am not seeking to challenge the proper test as expounded in Johnson v Johnson and Ebner. 

CALLINAN J:   No, I just wanted to get it clear, that is all.  That is sufficient for my purpose.

MR SMITH:   In fact, at 5.1 of our submissions we say exactly what your Honour has said, whether a fair-minded observer might reasonably apprehend the judge might not bring ‑ ‑ ‑

CALLINAN J:   It was just this morning it was suggested I think in argument.  I think it might have even been Mr Byrne who may have accepted that it was “would”, but it does not seem to be “would”.  It is “might”.

MR SMITH:   I think it has crept in occasionally in some of the ‑ ‑ ‑

CALLINAN J:   Yes.

MR SMITH:   But we are agreeing with you, your Honour.  Those are our submissions.

GLEESON CJ:   Yes, thank you, Mr Smith.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, reference has been made to the decision of the Court in Johnson v Johnson which was a decision in which the entire Court sat.  Can I ask the Court to ‑ ‑ ‑

KIRBY J:   I think I said “might” in paragraph 55 too.

MR BYRNE:   I think that is the way in which the test has been formulated in all of the cases since Livesey through Webb and Hay and Johnson itself.

KIRBY J:   It had a lot of agonising amendment about the formulae.

GLEESON CJ:   It is in the head note in Johnson which I think is accurate.

MR BYRNE:   Yes, your Honour, and as Justice Hayne said in paragraph 11 in the joint reasons of the five Justices of the Court, there is ‑ ‑ ‑

GLEESON CJ:   But the apprehension is of prejudgment.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   That is to say, having a mind that is not amenable to persuasion.

MR BYRNE:   Yes, certainly.  In this case we would say that that arises by reference to the concluded view that the judge appears to have reached without having heard submissions, or even reference, to the point.

There is another two other parts of the judgments in Johnson v Johnson.  Your Honour Justice Kirby referred earlier to considerations of the qualities that the hypothetical, as your Honour described them, fictitious bystander would have.  In your Honour’s judgment – I will not read it – in Johnson v Johnson there is a thorough analysis of that concept at paragraphs 52 and 53 of your Honour’s judgment.

There is one other aspect of the decision of the Court in Johnson v Johnson that we would respectfully draw attention to, and that is the observations made by your Honour Justice Callinan in your Honour’s judgment in that case at paragraph 75, where your Honour referred to a – I think I am right in saying it was a dissenting judgment of Justice Aickin in a case which is in your Honour’s judgment referred to as Re Lusink; Ex parte Shaw where your Honour referred to what Mr Justice Aickin had pointed out:

that repeated denials of pre-judgment might well convey the “impression of ‘protesting too much’ rather than dispel any earlier apprehension of bias that may have been conveyed.

We would submit, with respect, that that concept may be alive in the circumstances of this particular case.

Your Honours, the matter that your honour the Chief Justice has referred to is of course a matter we will address in written submissions as we have been requested, but there may be some perhaps only brief insight into that issue that your Honour has been referring to about the different role that a judge sitting without a jury may have when compared with the role that a judge has sitting with a jury.

Can I just ask your Honours briefly to consider what Mr Justice Smart said in his judgment in this case at page 861 of the appeal book.  At paragraph 302 his Honour was making general reference to the fact that trial judges frequently have to make decisions before and during a trial which adversely impact upon an accused and of course that is the case whether there is a jury or whether the judge is sitting alone, but it is the final two sentences of the paragraph that may be of some assistance.  His Honour said:

These appellants opted for trial by judge alone.  By so opting they must be taken to have accepted that the tribunal deciding the facts may have to make adverse ruling prior to verdict.

Now, that is accepted that of course in this mode of trial it is inevitable that there may be decisions made which are adverse to an accused person but it does not, in our submission, and this is the important consideration, it does not affect the standards that should apply, and in particular it does not alter in any way the standards that should apply from the point of view of whether or not the conduct of the judge gives rise to a reasonable apprehension of prejudgment.

GLEESON CJ:   There is, however, just a slight wrinkle when you are dealing with interlocutory rulings.  I can remember quite a number of judges in my experience who would never entertain argument on objections to admissibility of evidence.  The reason for that was a practical one.  At trials before juries it was not unknown for counsel to take improper advantage of opportunities for juries.  There were also problems about delays.  You could not keep sending the jury in and out of the courtroom.  So the concept that anyone who makes an interlocutory application of any kind during a trial is entitled to have the judge sit and hear argument on it and then give reasons for a decision is an assumption that it is easy to slip into but it just requires some care.

MR BYRNE:   I accept that, your Honour.  The nature of the applications involved in the matters which were the subject of applications for disqualification are matters much more fundamental, in our submission, than determinations as to the admissibility or otherwise of evidence.  The application for no case was effectively an invitation to determine the case finally.  So that it was not in that sense an interlocutory application.  If it had been successful, it would have been the end of the case.  It was a very important part of the accused’s application or the accused’s conduct of the trial proceedings.

Similarly, the bail revocation effectively indicated not a determination as to the likelihood of these men appearing as required but it represented, as the Crown has conceded, a determination as to their guilt without any submissions having been heard on that topic at all.  So again, that was not in the same category, in our submission, as an interlocutory application.

The manner in which Justice Smart, and he effectively gave the judgment of the court in this matter, dealt with it, appeared to indicate, and I am cautious about reading too much into those phrases that he has used, but it appeared to indicate that where there is a trial by judge alone then the rules which might otherwise be seen to apply would not apply at least with the force that they have been held in the past.

GLEESON CJ:   Something that Mr Smith said rang a bell with me, and this may be of assistance to you in the research that you undertake.  I do have a recollection of a decision of the Court of Criminal Appeal of New South Wales that said something to the effect that when you are dealing with a trial by judge without a jury so far as possible you assimilate the procedure to trial by jury.

MR BYRNE:   I have similar recollection.  I just quickly looked at the decision of this Court in Fleming which Mr Smith took your Honours to.  In Fleming there is reference to I think an unreported decision called Kurtic and it may be that case, I have a feeling, that makes that reference.  But in answering the request that your Honour the Chief Justice has made, we will certainly look at that issue and find that particular case.

GLEESON CJ:   Everybody seems to have made that assumption and the assumption may well be right. 

MR BYRNE:   Certainly.

GLEESON CJ:   But I would just like to understand why it applies. 

MR BYRNE:   May it please your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Byrne.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Sydney.

AT 4.00 PM THE MATTERS WERE ADJOURNED