R v Antoun
[2005] NSWCCA 270
•1 August 2005
CITATION: R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270
HEARING DATE(S): 1 August 2005
JUDGMENT DATE:
1 August 2005JUDGMENT OF: Simpson J at 1; Johnson J at 1; Rothman J at 1
DECISION: Each applicant granted bail subject to conditions
CATCHWORDS: application for bail pending determation of appeal to the High Court of Australia
LEGISLATION CITED: Bail Act 1958, s4, s28, s30, s30AA
CASES CITED: R v Wilson (1994) 34 NSWLR 1
PARTIES: Crown - Respondent
Joseph Antoun - First Aplicant
Antoine Antoun - Second ApplicantFILE NUMBER(S): CCA 2004/1959; 2004/1961
COUNSEL: LMB Lampratti SC - Crown
C Steirn SC - First Applicant
S Wilkinson - Second ApplicantSOLICITORS: S Kavanagh - Crown
Ryan & Bosscher - Applicants
LOWER COURT JURISDICTION: LOWER COURT FILE NUMBER(S): 60046/2004; 60047/2004
LOWER COURT JUDICIAL OFFICER: Dowd J Hislop J Smart AJ
2004/1959; 2004/1961
Monday 1 August 2005SIMPSON J
JOHNSON J
ROTHMAN J
REGINA v Joseph ANTOUN
REGINA v Antoine ANTOUN
1 THE COURT: Sections 30 and 30AA of the Bail Act 1978 relevantly provide:
- “ 30 Power of Court of Criminal Appeal to grant bail
- The Court of Criminal Appeal may grant bail in accordance with this Act to any person accused of an offence if, in connection with the offence:
...
(e) an appeal from the Court is pending in the High Court.”
- 30AA Limitation on power to grant bail
- Notwithstanding anything in this Act, if:
- (a) ...;
- (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to paragraph (a) [an appeal to the Court of Criminal Appeal],
- bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail.”
2 Each applicant has been granted special leave to appeal to the High Court of Australia against an earlier decision of this Court dismissing his appeal against conviction on a single count of demanding money with menaces, allegedly committed between March and June 2001. Each applicant now seeks, pursuant to s30AA, a grant of bail pending the determination of his appeal. Each accepts, as he must, that in order to obtain a grant of bail, he must establish that special or exceptional circumstances exist justifying such a grant.
3 During the course of the hearing of the applications an issue arose as to whether it was necessary for this Court constituted by three judges to deal with the applications or whether it would be possible for the applications to be dealt with by a single judge of the court. During the course of that argument and because it had not been anticipated, counsel who appeared for the Crown sought an adjournment in order to consider the position. The court considered that, bearing in mind the circumstances of the applicants’ custody, it would be better to proceed with the determination of the applications by the court as presently constituted.
4 The court has not heard full argument on the issue but is conscious that s28, which grants power to the Supreme Court to grant bail, does not appear to be limited. Section 30 empowers the Court of Criminal Appeal to grant bail in accordance with the Act in the circumstances which here apply.
5 Section 22 of the Criminal Appeal Act makes provision for circumstances in which the Court of Criminal Appeal might be constituted by a single judge and that does not include a bail application. However, in s4 of the Bail Act the Court of Criminal Appeal is defined to include “a judge of that court”. Accordingly, there is reason to conclude that a decision such as this might be made by a single judge of the Court of Criminal Appeal, sitting as such or a justice of the Supreme Court as such (see Criminal Appeal Act 1912, s3) and it would be useful if that issue were resolved in some future proceedings. The reason for that is largely administrative in that where bail is granted by this court constituted by three judges any subsequent variations may need to be dealt with by a court of three judges. In any event, it is inappropriate to attempt to reach a final resolution of that issue but it would be useful if the Crown were to bear it in mind in future instances where bail is sought pending a High Court appeal.
background
We go now to the substance of the applications.
6 On 22 June 2001 both applicants were arrested and charged with the offences. On 23 June 2001 Antoine Antoun was granted bail, subject to conditions. With some minor variations to the conditions, he remained at large until 9 April 2003 when, during the course of the trial, the trial judge on his own initiative revoked bail.
7 Joseph Antoun was granted conditional bail on 25 June 2001, and he, too, remained at liberty until 9 April 2003, when his bail also was revoked by the trial judge.
8 There was no suggestion that either applicant has failed to comply with any of his bail conditions and the Crown expressly disavowed any such suggestion.
9 The trial commenced on 31 March 2003, before Christie DCJ, sitting without a jury. It proceeded until 11 April 2003, when his Honour found both applicants guilty. He sentenced Antoine Antoun to imprisonment for three and a half years, with a non-parole period of two and a half years, the sentence to commence on 9 April 2003. Accordingly, Antoine Antoun’s sentence will expire on 8 October 2006; he will be eligible for release on parole on 8 October 2005.
10 Christie DCJ sentenced Joseph Antoun to imprisonment for six years with a non-parole period of four and a half years, commencing on 9 April 2003. This sentence will expire on 8 April 2009, and his non-parole period will expire on 8 October 2007.
11 On 28 August 2003 Sully J granted bail to each applicant pending appeal to this Court. Again, each applicant apparently complied fully with his bail conditions.
12 Each applicant unsuccessfully appealed to this Court against the conviction. Each then applied for special leave to appeal to the High Court and this was granted on 27 May 2005. Essentially, the grounds to be advanced on appeal concern the conduct of the trial by the trial judge, and the assertion that a reasonable bystander might have perceived bias in certain respects in the manner in which his Honour conducted the proceedings.
13 In written submissions the court was told that the earliest potential dates for the hearing of the appeal are in late September, early October, or November. No date has yet been confirmed.
14 It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court “is most likely to succeed” and that “there is a real prospect that the conviction might be set aside”. In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually “certain to succeed”, and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited.
15 The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said:
- “... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed.”
It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail.
16 In our opinion bail ought to be granted in each of these cases. Antoine Antoun will be eligible for release on parole in less than three months from now. He has a limited criminal history. There is no way of forecasting when a decision in the matter would be given by the High Court. In our opinion, having regard to his compliance with bail conditions pending trial, and again pending appeal to this Court, there is no reason to fear his non-attendance. To deprive him of bail at this stage may very well deprive him of the benefit of his appeal, should he be successful.
17 To a lesser extent the same can be said of Joseph Antoun, although two circumstances distinguish his case from that of Antoine Antoun. Firstly, his sentence is considerably lengthier, and he will not be eligible for release on parole for more than another two years. Further, his criminal history is significantly more extensive and has some extremely serious entries. Nevertheless, there was no material put before this Court to show non-compliance with his bail conditions on the two previous occasions, and nothing was put before the court to suggest that he would not answer his bail undertaking.
18 The court received affidavit evidence sworn by a brother of both applicants concerning security which had been offered on previous occasions and which is again offered.
19 We consider these to be sufficiently special and/or exceptional circumstances to justify a grant of bail. We propose that each applicant be granted bail, subject to conditions.
The conditions of bail for Mr Joseph Antoun are as follows:
1. the applicant is to reside at 53 Pile Street, Marrickville;
2. one acceptable person is to enter into an agreement to forfeit the sum of $10,000 if he fails to comply with his bail undertaking. Mr Nemer Antoun of 55 Pile Street Marrickville is an acceptable person. Such agreement is to be secured by cash deposit. Any person acceptable to the Justice to whom the cash security is tendered is acceptable to the court;
3. the applicant is to report to the Officer in Charge of the Marrickville Police Station between 8.00 am and 8.00 pm on Mondays, Thursdays and Saturdays of each week, the first such reporting to occur on the day of his release to the bail now granted;
4. the applicant is to surrender any current passport held by him to the officer in charge of police at Marrickville Police Station. He is to do so upon the first reporting, as required by condition 3 above;
5. the applicant is to stay away from international points of arrival and departure;
6. the applicant is not to apply for any new passport or travel documents;
7. the applicant is to be of good behaviour;
8. the applicant is not to approach or in any way communicate or attempt to communicate with any Crown witnesses;
9. the applicant is to prosecute his appeal to the High Court with due diligence;
10. on the date of judgment of the High Court the applicant is to surrender himself to the Sheriff of the Supreme Court of New South Wales for the purpose of complying with such orders as the High Court may make;
11. bail may be entered before a Sheriff of the Supreme Court of New South Wales or before the Proper Officer of the Court of Criminal Appeal for the State of New South Wales.
The conditions of bail for Mr Antoine Antoun are as follows:
1. the applicant is to reside at 44 Unwins Bridge Road, St Peters;
2. one acceptable person is to enter into an agreement to forfeit the sum of $10,000 if he fails to comply with his bail undertaking. Mr Nemer Antoun of 55 Pile Street Marrickville is an acceptable person. Such agreement is to be secured by cash deposit. Any person acceptable to the Justice to whom the cash security is tendered is acceptable to the court;
3. the applicant is to report to the Officer in Charge of the Marrickville Police Station between 8.00 am and 8.00 pm on Mondays, Thursdays and Saturdays of each week, the first such reporting to occur on the day of his release to the bail now granted;
4. the applicant is to surrender any current passport held by him to the officer in charge of police at Marrickville Police Station. He is to do so upon the first reporting, as required by condition 3 above;
5. the applicant is to stay away from international points of arrival and departure;
6. the applicant is not to apply for any new passport or travel documents;
7. the applicant is to be of good behaviour;
8. the applicant is not to approach or in any way communicate or attempt to communicate with any Crown witnesses;
9. the applicant is to prosecute his appeal to the High Court with due diligence;
10. on the date of judgment of the High Court the applicant is to surrender himself to the Sheriff of the Supreme Court of New South Wales for the purpose of complying with such orders as the High Court may make;
11. bail may be entered before a Sheriff of the Supreme Court of New South Wales or before the Proper Officer of the Court of Criminal Appeal for the State of New South Wales.
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