Antoun & Anor v The Queen

[2005] HCATrans 381

[2005] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S378 of 2004

B e t w e e n -

JOSEPH ANTOUN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S379 of 2004

B e t w e e n -

ANTOINE ANTOUN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 12.04 PM

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 applicant, Joseph Antoun.  (instructed by Ryan & Bosscher)

MR C. STEIRN, SC:   May it please the Court, I appear with MR B.L. CLARKE, for the applicant, Antoine Antoun.  (instructed by Ryan & Bosscher)

MR G.E. SMITH, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (New South Wales))

HAYNE J:   Mr Smith, perhaps if you could assist us first.  Perhaps if you would direct your attention, at least initially, to the course of events surrounding the proposed application or proposed no case submission.

MR SMITH:   Your Honours, as it was held in the Court of Criminal Appeal decision in Masters, the fact that a judge has decided an issue beforehand does not stop him from continuing with the matter in an adverse way to the accused.  In this case ‑ ‑ ‑

HAYNE J:   Well, I have in mind the passage that occurred at page 205 of the transcript which we have been supplied by the solicitor for one of the applicants, it matters not which, but 205 of the trial transcript which records Mr Steirn at line 27 or 28 informing his Honour:

there will be an application tomorrow for no case to answer -

and his Honour’s reply being:

I see well that application will be refused.  So how then long will the defence case take?

What does the observer make of that?

MR SMITH:   The observer would perhaps think well, he has made up his mind already on that question of no case to answer but, with respect, the observer listening further would have heard his Honour say “I am now willing to hear you” and, indeed, hear him ultimately – admittedly there was another application – there was an application for disqualification then and the next morning, before there was this no case submission, indeed, then my learned friend, Mr Steirn, made a second application on the basis of what his Honour had said in his judgment on the first application and ultimately his Honour was prepared to hear the application for the no case although Mr Steirn initially indicated he was not going to bring it in view of his Honour’s attitude.  But he did hear him and he did receive his written submissions.  I understand he heard submissions from the Crown on that question of no case and, indeed, an interested observer knowing the evidence in the case would agree with his Honour’s ultimate decision on that question.  Now, the question is whether that view that his Honour expressed initially has been, in effect, extinguished by what has happened after that.

HAYNE J:   There are three passages appearing at page 205 and 206 of the trial transcript which might be open to be understood as indicating that a no case submission, if made, will be rejected. 

MR SMITH:   There are and ‑ ‑ ‑

HAYNE J:   At what point in the proceedings, then, did the revocation of bail occur?

MR SMITH:   After the hearing of evidence, his Honour found that the case had been made out and his Honour then heard the evidence of the two accused and at that stage his Honour indicated he was considering, very strongly, the revocation of bail but indicated to Mr Steirn that there was one aspect of the Crown case or the case that Mr Steirn had indicated he was putting which may change his mind on that question and that was what the material that Mr Steirn had opened on, of some cross-examination at the committal hearing in which, I think, as I recall it, Mr Steirn had indicated that that showed an acknowledgment by Mr Savvas, the complainant in the matter, that he had some obligation to pay money to the applicants.  I am not sure that that is exactly what Mr Steirn had put but certainly the evidence, we submit, as ultimately put in the case, certainly did not go that high but at page 196 of the application book, paragraph 3.8, about line 21, his Honour said:

“Now, I have heard both of their evidence, but I wish to hear you about this particular aspect of the matter, because it’s the only aspect of the matter that may persuade me otherwise.  So which portions of those remarks do you say supports that contention.”

This was a reference to an earlier defence submission to the effect that Savvas had admitted, at the committal, that the $8,000 was payment for past services.  However, the material relied on by counsel for Joseph Antoun did not show, in the judge’s view, that Savvas had made such an admission and the judge decided to revoke bail.

Now, his Honour used two reasons for revoking bail by that time.  There was the fact – the strength of the Crown case and his obvious non‑acceptance of the defence evidence of the two accused and the fact that he was unnerved by Joseph Antoun’s behaviour and reaction to his judgments on the question of disqualification.  Your Honours, even assuming that that was an erroneous revocation of bail, it was certainly not in the class of the Winningham type where the revocation took place before any evidence had been heard or in the Vakauta v Kelly where the trial judge had made some adverse comments about the unholy trinity, or words to that effect, describing some defence doctors who regularly gave evidence in civil matters. 

This was a case where his Honour had heard the Crown case and many aspects of it had not been challenged in cross-examination of the complainant and the Crown case had the powerful corroboration of both telephone intercept and listening device evidence, particularly the second, the listening device, exhibit D, appeared to show there was no claim of right whatsoever and there was no attempt.  So it was a powerful Crown case, in our submission, and in a sense, his Honour was recognising that by that time having heard the primary defence, the evidence of the two accused, the two applicants here, and in that, his Honour found that they had shifted ground in their case in any event whereas, largely in the main, the complainant supported by other objective evidence, had stood his ground and that there was just no question of a claim of right in the case. 

Now, we submit, that even if he may not have complied with the provisions of the Bail Act strictly, that even if he was in error in revoking bail as Justice Sully indicated in his judgment on that question, that does not tell the interested observer that he is going to be therefore biased when he ultimately reaches his conclusion.  He allowed submissions to be made on all these matters.  He made findings in his ultimate decision which, in some parts, were critical of aspects of the Crown case particularly and I think his name was Mr Raciti’s evidence, the man that ran the nightclub and who said he was the one that had the arrangement with the two applicants as to protection, but nevertheless, he found beyond reasonable doubt and we submit there is nothing in his ultimate judgment which would indicate either the appearance of bias or that he was biased.

HAYNE J:   Now, the challenge that is made, or proposed to be made on appeal is confined to appearance of bias.  There is no contention, as I read it, of actual bias and the contention made in the Court of Criminal Appeal that the conviction is unsafe is not repeated here.

MR SMITH:   Yes.

HAYNE J:   Let it be assumed for the purpose of argument that the conclusion about appearance reached by the Court of Criminal Appeal was not to be accepted.  What then should be done?

MR SMITH:   Well, in that case, your Honours, the principles, we submit, are well and truly established by this Court so that there is no question of needing a judgment to clarify the law on these questions and Ebner v The Trustee in Bankruptcy really summarises the principles, but ‑ ‑ ‑

HAYNE J:   Well, I would have thought Livesey, Vakauta v Kelly, all of those.  There is a number of cases.

MR SMITH:   There is a whole lot – Johnson v Johnson, all those matters.  In that case, if the court was erroneous in its finding on the appearances, I suppose the question is whether we can argue under Wilde that there is no serious miscarriage of justice.  The question is whether we would argue that on a case of bias if this Court was satisfied that the Court of Criminal Appeal had misdirected itself on that is another question and I would have thought that we would not take a point like that in such a case. 

HAYNE J:   Because process is important, is it not, Mr Smith?

MR SMITH:   Yes.

HAYNE J:   And maintenance of proper standards of process is critical, particularly in the hands of the intermediate courts of appeal.

MR SMITH:   Yes, I agree with that, your Honour.

HAYNE J:   Yes.

MR SMITH:   But we would submit that the intermediate Court of Criminal Appeal did not get this one question wrong, that they looked at the authorities, they weighed them up and they were satisfied that notwithstanding what his Honour did during the trial that there was sufficient opportunity for the accused, or the applicants’ counsel, to make submissions, that his Honour considered those, that ‑ ‑ ‑

HAYNE J:   Well, the applicants would have a radically different complaint if the trial judge had simply said “No, I shall not hear you”.

MR SMITH:   Yes.

HAYNE J:   That would be radically different.

MR SMITH:   But in a sense these other cases that your Honour has referred to a little while ago, Vakauta and Livesey, really involved say explosions from the Bench as to their prejudices, one could say and I do not mean that by any way to be disrespectful to the Bench, certainly Vakauta.  In this case, his Honour saying “I am against you on a case to answer” is really being honest and up-front and it is the situation that occurs in many cases that the tribunal of fact, or in that case, the tribunal of law, has seen a case to answer and that is the question, that the Crown case at its highest is certainly a strong one and would easily pass muster and whilst ‑ ‑ ‑

HAYNE J:   Can I just take you up on the particular expression you used, which is very unfair to counsel.  I understand the unfairness in what I am about to do, but you said the primary judge was being honest and up-front and that simply provokes in my mind the question, yes, honest and up-front about what?  A then settled frame of mind?  That is the question, that is the unfairness I have to put to you, Mr Smith and you may choose to say “The question is unfair and I will not answer it”.

MR SMITH:   Well, I will not not answer it.  I would submit that it indicates that he is impressed by the prosecution case and this was an unusual defence in the sense that many of the challenges that one would have been expected to have been made of the complainant and of the other primary evidence, the evidence of the listening devices, was not made.  So in a sense a lot of the matters that would normally be in dispute and which appeared to have been opened on did not seem to be being run at that stage and so, in a sense, he is, in effect, affirmed in his view that this is a good Crown case by the fact that a number of important matters are not being challenged and so for then the insistence on having to put the submissions against them, which everyone is entitled to, but in many, many cases, it is not done and in many cases when it is done it is, in a sense, hopeless submission because the evidence is there to satisfy that particular onus

which is not the ultimate onus.  So I do not know if that answers you, but at least I tried.  Those are my submissions, if your Honour pleases.

HAYNE J:   Thank you, Mr Smith.  Mr Byrne, Mr Steirn, we are minded to grant leave in the matter.  There are two matters we would wish to raise with counsel for the applicants first.  We wonder whether some attention may not need to be given to the notices of appeal.  There seems to be some disconformity between them about, if you like, what incidents in the course of trial are seen as relevantly significant.  It is not instantly apparent, at least to me, why there could be any relevant disconformity as between the applicants.  Perhaps there is, but we invite attention to that.

The second matter is this, that if we grant leave it would seem to us that the case is most likely a half day case and that the applicants, subject to this question of disconformity I have mentioned, appear to have identical or at least not importantly different interests and that is something that the applicants’ counsel would need to bear at the forefront of their minds in dividing time and ensuring that there were to be no duplication of argument as between them.

Now, on those bases, we would be minded to grant leave.  Is there anything that calls for response from any of the parties, but particularly the applicants?

MR BYRNE:   Your Honours, in relation to the avoidance of duplication ‑ ‑ ‑

HAYNE J:   That will simply be done, Mr Byrne, it is not a matter requiring response.

MR BYRNE:   Certainly, your Honour.

HAYNE J:   I am not conscious of there being any need to respond but Mr Steirn was moving a little in his chair.

MR STEIRN:   Only to say this, your Honours, that there is a fundamental difference between the application by my learned friend, Mr Byrne, and our application in relation to an error by the court below where they came to a decision adverse to my client, or to this applicant, in stating that there was no complaint by Mr Wilkinson who appeared for Antoine Antoun in the court below and if I may refer the Court to application book 166, 14 where the majority say this:

Even if there were substance in the complaint ‑ ‑ ‑

HAYNE J:   Yes, we have read it, we can read it.  What is the point that emerges?

MR STEIRN:   The point that emerges is that that is simply wrong.

HAYNE J:   Maybe.  Where do we find that reflected in the proposed grounds of appeal?

MR STEIRN:   Your Honour will find that at 52.3 of the additional material.

HAYNE J:   No, I was asking you about the draft notices of appeal.  Where do we find that reflected in the draft notices?

MR STEIRN:   Your Honour may well be correct when he said ‑ ‑ ‑

HEYDON J:   There is nothing.

HAYNE J:   Nothing there, is there?  No.  There will be a grant of special leave in this matter.

AT 12.26 PM THE MATTERS WERE CONCLUDED