Antoun v The Queen

Case [2006] HCA 2

HIGH COURT OF AUSTRALIA

GLEESON CJ,
KIRBY, HAYNE, CALLINAN AND HEYDON JJ

Matter No S299/2005

JOSEPH ANTOUN  APPELLANT

AND

THE QUEEN  RESPONDENT

Matter No S300/2005

ANTOINE ANTOUN  APPELLANT

AND

THE QUEEN  RESPONDENT

Antoun v The Queen

Antoun v The Queen

[2006] HCA 2

8 February 2006
S299/2005 & S300/2005

ORDER

In each matter:

1.        Appeal allowed.

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

(a)      the appeal be allowed;
  (b)      the conviction of the appellant is quashed; and
  (c)      there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation:

Matter No S299/2005

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

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

Matter S300/2005

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

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

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

CATCHWORDS

Antoun v The Queen
Antoun v The Queen

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

  1. GLEESON CJ.   The appellants were jointly charged with demanding money with menaces from Michael Savvas, with intent to steal.  The trial was conducted in the District Court of New South Wales before Judge Christie, sitting without a jury.  The appellants were convicted, and sentenced to terms of imprisonment.  They appealed unsuccessfully to the Court of Criminal Appeal of New South Wales[1].  The sole ground of their further appeal to this Court is that the trial judge conducted himself in such a way that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the appellants ought to be convicted.  That ground is conveniently summarised as "apprehended bias".  The apprehended bias is said to have arisen from two aspects of the trial judge's conduct in particular:  first, the manner in which he dealt with what was described as a submission of no case to answer; secondly, his manner of raising and dealing with a question of bail.

  2. The exchanges between the trial judge and counsel in relation to both matters are set out in the reasons of Callinan J.  I agree that the ground of appeal succeeds.  In relation to the first matter, the trial judge announced his decision, in a peremptory manner, as soon as he was informed that an application would be made on the following day, and he repeated that decision before hearing any argument.  He then listened to argument…

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Antoun v The Queen [2006] HCA 2
Case
[2006] HCA 2
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning allegations of apprehended bias by a trial judge. The appellants, brothers jointly charged with demanding money with menaces, argued that the judge, who sat alone without a jury, conducted the trial in a manner that gave rise to a reasonable apprehension of bias. The prosecution's case was strong, relying significantly on recorded statements made by one of the appellants, while the defence asserted an honest claim of right to the money demanded.

The central legal issue before the High Court was whether the conduct of the trial judge demonstrated apprehended bias, thereby rendering the trial unfair. This involved considering the standards of fairness and detachment expected of a judge presiding over a criminal trial, particularly when acting as the sole arbiter of fact and law. The Court also considered whether the strength of the prosecution's evidence, which the Court of Criminal Appeal had relied upon to dismiss the appeal, could overcome a finding of apprehended bias, potentially invoking the proviso to the relevant criminal appeal statute.

The High Court reasoned that a fundamental entitlement of an accused person is to an impartial tribunal, a right that reflects both common law principles and fundamental human rights. The Court found that the trial judge had "crossed the line" and that the trial did not conform to the law, thereby depriving the appellants of their right to an impartial hearing. While acknowledging the strength of the prosecution's case, the Court held that this did not negate the miscarriage of justice caused by the judge's conduct. The Court also noted that if the respondent wished to rely on the proviso to the criminal appeal statute, it should have been raised as a specific issue.

Consequently, the High Court allowed the appeal, quashed the convictions, and ordered a new trial.

Orders

Orders of the court

1. Appeal allowed;

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

(a) the appeal be allowed;

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

(c) there be a new trial.

Background

Background to the litigation

The question in these appeals is whether a judge hearing a criminal trial without a jury so conducted himself as to give rise to a reasonable apprehension of bias.Facts The appellants, who are brothers, were jointly charged on a single count of demanding money with menaces contrary to s 99 of the Crimes Act 1900 (NSW). The case against them was that they had attempted to "stand over" the proprietor of a nightclub in Sydney: that they did this by making threats and demands for money, and that they sent some young men to the nightclub to cause a disturbance, and to damage the furniture there as a further intimidatory act or menace to the proprietor. Their defence was that they had an honest claim of right for the money demanded. They claimed that it was owed to them, or to a person for whom they worked, for the provision of security guards, engaged and made available to the proprietor of the nightclub. The case for the prosecution was a very strong one. Central and persuasive components of it were recorded statements made by one of the appellants to the proprietor who had been equipped by the police with a concealed tape recorder. It would not be inaccurate to describe the evidence in support of the defence as being on the flimsy side. I set out some potentially inculpatory extracts from the transcript of a tape recording of a conversation between one of the appellants, the proprietor, Michael Savvas, and some other people on 22 June 2001:"Tony Raciti: How are you, Michael?Michael Savvas: Stressed today.Tony Raciti: You're stressed?Michael Savvas: Yeah.Tony Raciti: Couldn't be stressed as what I am.Michael Savvas: I'm very stressed. I just got a phone call, the kitchen's bloody caught fire.Tony Raciti: Yeah?Michael Savvas: Can we sort this out?Joseph Antoun: Tony, can I talk to you in the lounge, please? Is it all right if we do it here? Thank you.Michael Savvas: Do you sit at the boss's chair?Joseph Antoun: Wherever I sit, that's the boss's chair, mate.Michael Savvas: OK.Joseph Antoun: OK. Before we go any further, [inaudible]. The last thing I want is a tape recording.Michael Savvas: Yeah. I wouldn't do that to you.Joseph Antoun: Just in case, give me your wallet. Give me your wallet. You haven't got ah, what we need?Michael Savvas: I've got what you need, don't worry.Joseph Antoun: OK. This is just till we work this out. Now, I think I explained to you what is [inaudible].Michael Savvas: Yeah, I, I'm equally upset too, Joe.Joseph Antoun: That is good.Michael Savvas: OK. I'm a, I'm a family man - - -Joseph Antoun: Mmm.Michael Savvas: - - - I've done nothing wrong here, as far as I'm concerned, I just want to run my business.Joseph Antoun: Fine, OK.Michael Savvas: I'm, I understand what you said on Saturday night, I'm happy to pay you something, but I want assurance that basically, that you don't come to me again.Joseph Antoun: Listen. If I was standing over you, you would've felt something different. I tell you what happened, so you know exactly what's going on. When that place had trouble, I was invited to solve it.Michael Savvas: By who?Joseph Antoun: Doesn't matter.Michael Savvas: OK. All right.Joseph Antoun: The place had trouble. Is that true?Michael Savvas: Yep.Joseph Antoun: All right.Michael Savvas: Well, OK, yeah.Joseph Antoun: There were assurances made to me on behalf of the business, now, when we protected that place, we didn't protect the doorman, we didn't protect, we protected the business. When it became a smooth sail for you people, I didn't even get the courtesy of a - - - whatever - - -Michael Savvas: But you never had any dealings with me, Joe. If we had a business transaction going, then yes, I, I'd - - -Joseph Antoun: Indirectly. Indirectly.Michael Savvas: Yeah, but there was never involved with me.Joseph Antoun: Did you bring the money today?Michael Savvas: I brought you some money.Joseph Antoun: Where is it?Michael Savvas: In my pocket.Joseph Antoun: Show me. What's some money eh?Michael Savvas: Sorry?Joseph Antoun: What is some money?Michael Savvas: Six thousand.Joseph Antoun: The deal was eight.Michael Savvas: I'll give you eight, Joe, but you've got to give me assurance - - -Joseph Antoun: No, no, no, I won't. I'll tell you why, I don't. Do you know why, I don't?Michael Savvas: No.Joseph Antoun: Do you know why I don't?Michael Savvas: No.Joseph Antoun: Right. If you add up what wasn't paid, up to date, plus what it cost us to set that up Saturday, it works out to eight. Now broth, I won't ... you around, now, you are even.Michael Savvas: So, you give me your word?Joseph Antoun: No, no, no. You are even. Now, what we want to do, you want to solve this?Michael Savvas: Yeah.Joseph Antoun: Now we can talk....Joseph Antoun: So, what's this here? Six or eight?Michael Savvas: There's eight there.Joseph Antoun: There's eight?Michael Savvas: Yeah, there's eight.Joseph Antoun: Oh, OK.Michael Savvas: Count it if you don't trust me.Joseph Antoun: No, no, no.Michael Savvas: Look, Joe, OK. I understand what you're saying. Just, we'll talk about, let me - - -Joseph Antoun: Let me solve it for you - - -Michael Savvas: Alright. I've done what you asked me to do - - -Joseph Antoun: This brings you up to date, all right.Michael Savvas: All right.Joseph Antoun: And depending how you treated me today, was gunna depend on how I go from here - - -Michael Savvas: Oh - - -Joseph Antoun: - - - I was gunna hit you for a hundred grand or keep attacking you there, until it's worth nothing, or I was gunna give the courtesy of sayin', forget it. What I'll do, you've done well today, only the way you treated me - - -Michael Savvas: I told you, I'm treating you with respect - - -Joseph Antoun: No, no, no - - -Michael Savvas: - - - but I expect that back.Joseph Antoun: - - - you treated me very well. No, no, no.Michael Savvas: We're in business.Joseph Antoun: I treat with courtesy, mate.Michael Savvas: Yeah, I know. I know.Joseph Antoun: 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.Michael Savvas: Yeah. Right. I understand that. I understand.Joseph Antoun: I did my job. I got people I looked after to take care of this job. You know what I'm sayin'?Michael Savvas: Yeah.Joseph Antoun: At the end of the day, I never went down there with a bunch of guys to intimidate your business. I never did that. When I'd go down, I'd sneak in, sneak out. Make sure everything's cool. All the work gets done outside the premises, not in there." (Emphasis added)

Evidence

Evidence Before The Court

The common law of Australia is not different from, but is reinforced by, these approaches to the expression of human rights and fundamental freedoms. The added element which this reflection on international law provides is that it gives emphasis to the basic entitlement of an accused person in a criminal trial to an impartial tribunal. In issue is not simply the outcome of the trial, the strength of the prosecution case presented against the accused or the observance of minimum judicial procedures. To the extent that the tribunal is shown not to have been impartial, a basic departure has occurred in the observance of fundamental rights inhering in the accused as a human being. The consideration of such rights is important and helpful in determining the common law of Australia applicable to an appeal such as the present. The weight of the evidence against the accused Not least is this last consideration significant for the final factor that appears to have weighed with the Court of Criminal Appeal, namely the role of the trial judge as decision-maker on fact as well as law and the weight of the evidence in the case presented against the appellants. It was this evidence that, according to Smart AJ (with whom Hislop J agreed), afforded "the real difficulties" for the appellants[45].[45][2004] NSWCCA 268 at [307]. Upon one reading, it appears that at least a majority of the Court of Criminal Appeal disposed of the appeal to it by reference to considerations mentioned in the proviso governing criminal appeals in New South Wales[46]. At the end of his reasons, after stating that the real difficulties facing the appellants "lay in the evidence", Smart AJ held that there had been "no miscarriage of justice" (the language of the proviso). He therefore concluded that each appeal against conviction should be dismissed[47].[46]Criminal Appeal Act 1912 (NSW), s 6(1).[47][2004] NSWCCA 268 at [308]-[309]. See also at [292]. As Hayne J has pointed out[48], neither in this Court nor in the Court of Criminal Appeal did the respondent raise a specific issue for decision, addressed to the application of the proviso. Nevertheless, the reasons of Gleeson CJ[49] and of Callinan J[50] show that, when the evidence as it was left at the end of the trial is examined, there is (particularly in the absence of oral evidence from the appellants) strong evidence from which it would ordinarily have been open to the trial judge to draw inferences and to conclude that the prosecution had negatived the suggested claim of legal right which was the appellants' common propounded defence.[48]Reasons of Hayne J at [58]-[60].[49]Reasons of Gleeson CJ at [4]-[14].[50]Reasons of Callinan J at [63]-[64]. In these circumstances, should this Court treat the preliminary skirmishes between the trial judge and counsel for the appellants as a storm in a litigious teacup? Did they represent an event that sometimes blows up in a trial but settles down and is overtaken by the substance of the trial and the evidence adduced? There is no doubt that this is the way, in part, that the respondent pressed its case upon this Court. True, it did not file, or seek leave to file, a notice of contention specifically relying on the proviso in the criminal appeal statute. But it did lay strong emphasis upon the strength of the prosecution case[51], a matter only relevant to the issues before this Court as it might be thought to attract the operation of the proviso.[51]Reasons of Hayne J at [58]. See also [2005] HCATrans 823 at 3291-3300, 3315-3330, 3340 and 3396.Conclusion: a retrial must be ordered

Decision

Reasons for decision

GLEESON CJ KIRBY J HAYNE J CALLINAN J HEYDON J
In these circumstances, should this Court treat the preliminary skirmishes between the trial judge and counsel for the appellants as a storm in a litigious teacup? Did they represent an event that sometimes blows up in a trial but settles down and is overtaken by the substance of the trial and the evidence adduced? There is no doubt that this is the way, in part, that the respondent pressed its case upon this Court. True, it did not file, or seek leave to file, a notice of contention specifically relying on the proviso in the criminal appeal statute. But it did lay strong emphasis upon the strength of the prosecution case[51], a matter only relevant to the issues before this Court as it might be thought to attract the operation of the proviso.[51]Reasons of Hayne J at [58]. See also [2005] HCATrans 823 at 3291-3300, 3315-3330, 3340 and 3396.Conclusion: a retrial must be ordered Whilst I regard the prosecution case, on the record, as powerful, supporting in that sense a conclusion that the outcome in the conviction and sentencing of the appellants did not involve any ultimate miscarriage, for three reasons I join in the conclusion that a retrial should be had. First, by the common law, it is every person's right to have a trial conducted in accordance with law. The trial judge here was disqualified because he crossed the line. The trial did not conform to law. I would repeat the words I used in Goktas v GIO of NSW[52]:"Our system of justice must do better. This Court must accept its obligation to ensure against wrongs which can be proved and then corrected. At stake is something greater even than the interests of the parties to the case. At stake is the integrity of our system of law and justice".[52](1993) 31 NSWLR 684 at 690-691. Secondly, and reinforcing this conclusion, is the recollection that the entitlement of the appellants to an impartial tribunal is not simply one afforded in disposing of appeals under Australian law. It reflects a human right and fundamental freedom that belonged to the appellants of which, by the way their trial was conducted, the trial judge deprived them. In a sense, the stronger the prosecution case against the appellants, the more important it was for the judge of trial to listen for a time to the submissions put on their behalf. No case is judged hopeless in our courts before a party has had a reasonable opportunity, by evidence and argument, to advance its case and contentions to the independent judge[53].[53]Jones v National Coal Board [1957] 2 QB 55 at 67 per Denning LJ. Thirdly, if the respondent truly had wished to rely upon argument based on the proviso governing criminal appeals, its proper course was to make that statutory provision a specific issue in the appeal. Then the argument before this Court would have taken a different course. The Court would have been obliged to address the question whether the "proviso" applied to a case of this kind, involving alleged disqualification and fundamental error[54]. Moreover, the Court would have had to examine more closely the evidence in the trial relevant to the question of whether a conclusion should affirmatively be reached that "no substantial miscarriage of justice has actually occurred"[55]. Without more, it may be a sufficient miscarriage of justice, in a case of this kind, to have denied the appellants the chance to have their propositions argued by their counsel before and not after they were rejected by the judge specially empowered to make all decisions of fact and law in their prosecution.[54]Weiss v The Queen [2005] HCA 81 at [46] referring to Wilde v The Queen (1988) 164 CLR 365 at 373 and Conway v The Queen (2002) 209 CLR 203 at 241 [103].[55]Criminal Appeal Act 1912 (NSW), s 6(1).Orders

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, KIRBY J, HAYNE J, CALLINAN J, HEYDON J

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