R v Joseph Antoun, R v Antoine Antoun - [2004] NSWCCA 268

No judgment structure available for this case.

CITATION: R v Joseph Antoun, R v Antoine Antoun [2004] NSWCCA 268

HEARING DATE(S): 7 June 2004

JUDGMENT DATE:
16 August 2004

JUDGMENT OF: Dowd J at 1; Hislop J at 116; Smart AJ at 117

DECISION: Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence of Tony Antoun and Joseph Antoun dismissed.

CATCHWORDS: Apprehension of bias - judge alone trial - verdict on conviction - not unreasonable - claim of right

LEGISLATION CITED: Bail Act 1978
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Security Industry Act 1997

CASES CITED: Browne v Dunn (1893) 6 R 67
Johnson v Johnson (2000) 201 CLR 488
Johnson v Miller (1937) 59 CLR 467
Livesey v NSW Bar Association (1983) 151 CLR 288
M v R (1994) 181 CLR 487
R v Fuge [2001] NSWCCA 208
R v London County Council; ex parte Empire Theatre (1894) 71 LT 638
R v Masters, Richards and Wunderlich (1992) 59 A Crim R 445
Re L; Ex parte L (1986) CLR 342 at 352
S v R (1989) 168 CLR 266
Seymour v ABC (1989) 19 NSWLR 219
Vakuata v Kelly (1989) 167 CLR 568
Watson; ex parte Armstrong [1976] 136 ALR 248
Webb v R; Hay v R (1994) 181 CLR 41
Winningham v R (1995) 69 ALJR 775
Zanetti v Hill (1962) 108 CLR 433

PARTIES :
Crown
Joseph Antoun
Antoine Antoun

FILE NUMBER(S): CCA 60046/04; 60047/04

COUNSEL: Crown: Mr B Knox SC
Appellant: Mr P Byrne SC

SOLICITORS:

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1093

LOWER COURT
JUDICIAL OFFICER : Christie QC DCJ

- 81 -

60046/04
60047/04

DOWD J
HISLOPJ
SMART AJ

Monday, 16 August 2004

R v JOSEPH ANTOUN
R v ANTOINE ANTOUN

Judgment

1 DOWD J: This is an appeal against conviction and an application for leave to appeal against severity of sentence by Antoine Antoun and his brother, Joseph Antoun, who were jointly charged with one count of Demanding Money With Menaces, contrary to s99 of the Crimes Act 1900, from a Michael Savvas, with intent to steal the same.

2 The matter was heard before Christie QC DCJ as a judge alone trial which resulted in the conviction of both of the appellants.

The Crown Case

3 The appellant, Antoine (“Tony”) Antoun, was sentenced to imprisonment for three and a half years with a non-parole period of two years and six months. Joseph Antoun was sentenced to imprisonment for six years with a non-parole period of four and a half years.

4 The evidence of Michael Savvas, upon which the Crown case substantially relied, was that Savvas was the owner of a food, bar and nightclub premises known as the Daintree Café in Darling Harbour. The nightclub business started up just before the end of 1999, before the Sydney Olympic Games, after an approach by a firm called Big Time Promotions.

5 Anthony (“Tony”) Raciti, a promoter from Big Time Promotions, ran the nightclub business at the Daintree Café and was responsible for having security guards located on the premises. From mid-1999 until after the Olympics in late 2000, Big Time Promotions ran the nightclub events, which thereafter were reduced from weekly to once per month. Mr Raciti managed the nightclub business, marketing, advertising, audio, lights and sound for the nightclub as well as security.

6 After the Olympics, Mr Savvas parted company with Big Time Promotions and took over security and other matters to do with the business himself. Big Time Promotions had employed a company called the Rock of Ages Company to provide security and Mr Savvas employed that same firm after he took control of the business himself. The nightclub license required Mr Savvas to have one guard for every hundred patrons. This was organised through a Tony Vaha from Rock of Ages.

7 The evidence of Savvas was that he was approached by a man he later knew to be Tony Antoun, who told Savvas that he looked after businesses. Savvas said he was quite happy with his present security company. Some two weeks later, Antoun came to the nightclub with a number of men and asked Savvas if he had thought about their previous discussion, in response to which Savvas repeated his earlier comment. On the third occasion when Antoun came to the nightclub, Savvas walked away from him.

8 Some few weeks later Antoun again came to the nightclub and said to Savvas that payments had “fallen behind”. Savvas said that there was no money owing. Antoun said that Savvas should consider a payout and that he would let him know at the next meeting. Savvas denied that he ever received any services from Antoun, or that he had engaged his services.

9 On 14 June 2001, Savvas saw four youths on his surveillance monitor throwing chairs and tables around the café while there were patrons within it. Two of the youths were caught with the assistance of Rangers from the Darling Harbour Authority. The following day, Savvas received a phone call from Antoun, who enquired as to whether he had taken note of the warning. Savvas hung up.

10 On 17 June 2001, early on a Sunday morning, a group of men walked into the club, one of whom Savvas came to know as being Joseph Antoun. Joseph Antoun said, “I’m not here to fuck around. You got the warning”. Antoun said he could go to the police and that he was going to get his money, and said that there could be a payout and he would let Savvas know how much it would be during the week.

11 Savvas made a statement to the police, which was read in evidence, to the effect that Joseph Antoun had said that Big Time Promotions was paying him $1250 a week, and that the way Joseph Antoun saw it was that the protection was for the venue, not the promoter. Joseph Antoun then told Savvas that he had not been paid for some time, and that if Savvas did not want to continue with the security, he needed to pay the Antouns out. Joseph Antoun told Savvas that he could have shut the nightclub down, but for respect for Raciti. Savvas told Joseph Antoun that he wished to sell the business, to which Antoun replied that he could make the sale easy or difficult, and could have 100 or 1000 junkies in the club every night.

12 On 19 June 2001, Tony Antoun telephoned to ask Savvas to a meeting with himself an another person at a McDonald’s in Broadway. Savvas declined and went to the Police Crime Agency office. Wearing a listening device, Savvas then went towards Raciti’s office, where he was told a meeting would take place. On the way to that office, Savvas met Tony Antoun and had a conversation, which was recorded and admitted in evidence, in which Savvas said that he did not owe the Antouns $8,000, and had had no business dealings with them, but wanted to pay the money so that he could walk away from the issue.

13 On 22 June 2001, having been fitted with a listening device, Savvas said that he went to Raciti’s office, where Joseph Antoun was present. Joseph Antoun asked Raciti to leave and asked if Savvas had the money. He then frisked Savvas to see if he was wearing a listening device, which he did not detect it. Joseph Antoun then took Savvas’ driver’s license, and a conversation took place which was recorded and admitted in evidence. In that conversation, Savvas said that prior to the 22 June 2001 meeting he had never asked Joseph or Tony Antoun to do anything in relation to the business. Joseph Antoun said “I was gunna to hit you for a hundred grand”, and he also said, “So what’s it gunna to cost you? It’s gunna cost you a month or two’s work and we’re out of the picture”. Savvas agreed to pay the protection sought.

14 Savvas’ evidence was that he had not agreed with Raciti to use an Alex Shalala, who had connections with the Lebanese community, to provide extra security, and although he had seen Shalala at the club one night, he was aware that Shalala was providing protection to Big Time Promotions and Daintree Night Club. Savvas denied any knowledge of payment of $1250 per week until the approach by Tony Antoun. Savvas denied the amount of $8000 sought was for past services, between the time Big Time Promotions stopped paying and Joseph Antoun spoke to him. Savvas’ evidence was that he had not met either Antoun until March 2001.

15 Savvas’ evidence was supported by an employee of the Daintree Café, in relation to the events in June 2001 involving the youths throwing chairs in the cafe. There was also evidence given by Tony Vaha of Rock of Ages about the payment by Raciti or his manager to Vaha and that he, Vaha, would pay his own security people.

16 When Raciti and Salvaggio finished up working at the Daintree Café, Savvas asked them to provide security. Savvas agreed in cross examination that he had known Alex Shalala for many years, and that he came to speak to him and said that he would have a word with the boys making trouble and everything would be all right. Shalala came to the club with a number of people, moved around the club and then left.

17 Raciti’s evidence was that he employed the Rock of Ages security company run by Tony Vaha to provide security guards, and that he paid Vaha between $900 and $1500 per week, per event. The numbers of guards would vary. After the cessation of the nightclub theme nights, Raciti and Salvaggio told everyone involved that Raciti and Salvaggio were finishing up.

18 In cross examination, Raciti said that he had paid Tony and Joseph Antoun to provide security and that the nights at the Daintree had run their course and were no longer profitable. Raciti’s evidence was that the Antouns had become involved in the Daintree Café through Alex Shalala who was providing similar security services. When the problems involving the Lebanese group occurred, Raciti said that when he had said that Tony Vaha could look after it, Salvaggio said that it was a specific problem and that he needed Shalala, who in turn mentioned Joseph and Tony Antoun. Raciti said that the Antouns had been providing a service for himself and Salvaggio of a very tough security type service. He said that he paid the Antouns $1250 cash per week. In early 2001, Raciti told Joseph Antoun that he, Raciti, was finishing at the Daintree Café.

19 Raciti gave evidence that Joseph Antoun had complained to him that he was not being paid and that he, Antoun, had approached Savvas, who was ignoring him. Raciti said that he told Joseph Antoun that he could not see what the problem was, and that Joseph Antoun should sort it out.

20 Raciti’s evidence was that Joseph Antoun was working for Shalala before Shalala went to gaol. His evidence further was that Big Time Promotions would pay for marketing promotions, DJs, security, sound and lighting, but that after the arrangement with Shalala, Savvas would pay for the sound and lighting and Big Time would pay for everything else. Raciti said that after Shalala went to gaol, Antoun received $1000, and Alex Shalala organised for another $250 to be sent to Antoun’s de facto wife.

21 Raciti said that it was in February 2001, some few weeks after Big Time Promotions stopped running events, that Antoun started complaining to him that Savvas was not paying him. Raciti said it was his understanding that Joseph Antoun continued to provide services from when Big Time Promotions had left until May or early June 2001, and there would be ten to thirteen weeks of unpaid service well in excess of $13,000. His evidence was that Joseph Antoun was asking for Savvas to finalise the debt for $8000.

The Defence Case

22 The appellants’ case at the hearing was that there was a claim of right for moneys due and owing arising out of a pre-existing business agreement to conduct extra security at the Daintree nightclub, and that Savvas had had prior business relationships with Shalala and the Antouns. Their case was that in June 2000, Shalala went to gaol and Joseph Antoun took over his role in providing additional security in the nightclub, paid by Raciti. When Raciti ceased to run events, Raciti told Joseph Antoun that he should collect the money from Savvas.

23 The appellants’ case was that only the amount of $8000 was involved, being money for protection over a three month period, at $1250 per week. Tony Antoun’s evidence was that he would pick up money from Savvas during his lunch break, and that the money started at the amount of $1250, but each time it would be less. He then started collecting money from Raciti’s office (before the Olympics period), which was for work his brother Joseph did in making sure certain people did not get into the Daintree club. Tony Antoun’s evidence was that Raciti told both appellants to go and see Savvas because he was no longer working with him, that Savvas told Tony Antoun that he would give him the money, and that Savvas had later told Tony Antoun that he was in financial difficulty, but that he would pay the money. There was evidence of telephone contact between Tony Antoun and Savvas during mid-2000.

24 In relation to the listening device transcript of the conversation between Tony Antoun and Savvas recorded on 19 June 2001 and admitted in evidence, Tony Antoun’s explanation was that when Savvas said, “well you know that I’ve got no business with you guys, you know that”, Savvas was referring to the fact that he had no business left and was going broke.

25 Tony Antoun said he did not meet Raciti until just before the Olympics in 2000, which was some time after he had met Savvas, and that he only met Raciti after the arrangement for collection of money had changed from Savvas to Raciti. He said that he did not do any work for Raciti, but that he only collected money for his brother Joseph.

26 Tony Antoun denied any intimidation of Savvas, and said that when he had told Savvas that he would walk away he did not intend anything by it except to say that there was no threat to him. Antoun denied that there was any formal demand for the $8000, because the money was a debt which he knew was actually more than that sum. He denied that he worked for a company that “looked after businesses”. Tony Antoun agreed that he and his brother sent some men to the café to have a chat to Savvas, but that he had no idea that they were going to throw chairs and tables around. He agreed that he took one of the fellows down to Darling Harbour, but that he did not know there were going to be others.

27 Joseph Antoun gave evidence that Shalala, whom he had known for some time, told him of some Lebanese men creating difficulties at the Daintree Café, and asked him to assist, at $1250 per week, with that work. Joseph Antoun said that he met Shalala in February or March of 2000, when Shalala introduced Joseph Antoun to Savvas and pointed out the group that had been causing the trouble, which had been going on at that point for some three or four weeks. Joseph Antoun said that he took a group of friends down to the nightclub as a sign of force. He said he was being paid by Savvas and his brother Tony was collecting the money, and that the amounts given varied below the $1250 that was payable. Joseph Antoun said that Savvas said that it did not look good to have Antoun’s men inside the club, and to work outside. The gang had by that time stopped going to the club, and there was no reason for the men to remain inside the club.

28 Joseph Antoun’s evidence was that he continued to work at the Daintree Café after Tony Raciti finished up there. Joseph Antoun was sure that Savvas would pay, even thought the Café was having trouble with bills, as Savvas had told him that he would pay, but Joseph Antoun never received anything from Savvas after he had finished operating ‘nightclub’ functions. He said that Raciti had told Joseph Antoun that he should continue to work, and that that would not give Savvas a reason not to pay him, and therefore Joseph Antoun continued to work there once or twice a month. On these occasions, Antoun would take a number of men with him to show their presence, and he and his men would patrol outside the café, telling people not to bunch up, that it was his place and that he was looking after the business.

29 Joseph Antoun said Noy, an Aboriginal friend of his, was annoyed when he found that Savvas had stopped paying Antoun. Joseph Antoun said to Noy to send one of Noy’s cousins to the café, as Antoun was sure that the Café did not want to have Aboriginal patrons drinking and carrying on. Joseph Antoun said that their presence would be unwelcome, but that he did not tell them to create a fracas. He agreed that when the group went down there it was to intimidate Savvas and to make his business uncomfortable.

30 Joseph Antoun said that he had had ten meetings with Savvas between February/ March 2001 and June 2001, and that Savvas was lying when he said that they had not met before 17 June 2001. By then, Savvas owed some $17,000, and Joseph Antoun said that he was sick of it and wanted to be paid out and wanted to pay something to Raciti and Shalala for running around. He said that he offered to cut a deal with Savvas just to finish the matter.

31 Joseph Antoun said that his reasons for searching Savvas for a listening device at the meeting on 22 June 2001 was that Antoun was on a NewStart Allowance but did not have a security license, which Savvas knew, and Antoun did not want any trouble with his dole payments. He also said that he did not want to intimidate Savvas when he took his wallet and kept his license, but he just wanted to make sure that the money was the right amount. Joseph Antoun said that when Savvas denied in that conversation that they had a business relationship, he, Antoun, had replied “Indirectly, Indirectly”. He said that Savvas was a liar when he said he had not engaged him to do anything, and that if he had known that he was been recorded, he would have refined his answers to prove it.

32 A witness, Steven Kourgialis, was called in the defence case, who knew Raciti and Salvaggio, and who had visited the Daintree Café and had met Savvas in early 1999. In June 2000 Savvas introduced him to Antoun, and Savvas explained to Kourgialis that there was a problem at the club with a group of young Lebanese men, and that Joseph Antoun was there as a form of security to handle this problem.

33 Another witness, John DaSilva, gave evidence that he was a subcontractor with Big Time Promotions, and that there had been trouble at the Daintree Café with a group of Lebanese troublemakers, and that Savvas called Lenny Salvaggio and told him that he wanted a stronger presence. DaSilva said in evidence that Joseph Antoun was introduced to him in February 2000 by Salvaggio at the front door of the café. DaSilva said that Savvas said Antoun would be working as security to keep the Lebanese group out of the café, and that it was his, namely DaSilva’s, responsibility to make sure that the staff got paid. Some nights he said that he could not pay people as it had been too quiet, but he used to make sure that Savvas received $1250 to pay Joseph Antoun during the week. His evidence was that when the money was short the staff complained, and that from around April 2000 Big Time Promotions decided to pay everyone during the week and pool finance from each club, as some of the clubs would make less. This was when Tony Antoun would go to the Leichardt office to collect payments.

34 Tina Salvaggio, the sister of Lenny Salvaggio, gave evidence that she worked at the café collecting the cover charge, and that there had been some problems with the Lebanese group since about March or April 2000. She said that at around that time Joseph Antoun came to the door with some friends, saying that his name was on the guest list, as he had been invited by Savvas. She said she could not find his name on the list and eventually Savvas came down to approve Joseph Antoun’s entry, and that for a few weeks after that there were entries in her book such as “Joe plus friend”, “Joe plus one”, “Joe plus two”.

The Trial Decision

35 The learned trial judge, in his decision on the trial, found that the substance of what Savvas had to say in the conversation of 17 June 2001 was not challenged, nor was there any dispute about the trashing of the Daintree Café, and indeed the evidence about this latter event was supported by both of the appellants. His Honour found that all that was put to Savvas in cross examination was that he, Savvas, in effect understood the arrangement between Shalala and Raciti and the appellants. This of course was denied, except where Savvas said that he understood that the $8000 was for a pre-existing debt between the appellants and Raciti or Shalala, not a debt by him.

36 His Honour found there was no challenge to the substance of the conversations recorded in the listening device transcripts that were admitted, except where the appellant Tony Antoun challenged the interpretation of what was said by him. His Honour found that the clear inferences arising from the unchallenged recordings of the wire taps were evidence of a very significant kind, having been made with a significant threat, and that these negatived, on any reasonable interpretation any claim of right which the appellants purported to have in relation to the money that was extracted, or in relation to other monies. His Honour found that in rejecting the submission as to no case to answer, there was an inherent acceptance at that stage of the evidence led by the Crown.

37 His Honour found that the evidence of Raciti, as one of the Crown witnesses, was evidence that he was not obliged to accept, nor did he do so, where it conflicted with the evidence of Savvas or the taped conversations. His Honour found, in relation to the defence contention in the trial that the demand was only for the sum of $8000, that the conversation between Savvas and the appellants on 20 June 2001 related to moneys that might be payable after the $8000 was paid by Savvas. This threat was within the period of the indictment. This is despite contentions, on behalf of the appellants in the trial, that $8000 was the only amount being sought by the appellants.

38 Judge Christie QC then found that the explanation given by Joseph Antoun about there never having been any business and Joseph Antoun saying, “Indirectly, Indirectly”, was totally inconsistent with the evidence that they and Savvas had arranged dealings together as contended by the appellants in the trial, when the appellants tried to make out that the protection was for the venue, not just for the promoter. His Honour found that the words of Joseph Antoun in that conversation “it’s going to cost [Savvas] a month’s or two’ more work” could have no other meaning than just that there were to be future dealings.

39 In relation to the telephone records which were put to Tony Antoun of phone calls made to Savvas’ phones, his Honour drew the inference that a deliberate decision was made not to put those to Savvas in cross-examination.

40 His Honour then found that it was indisputable that the sending of people to the Daintree Café to cause trouble was intended to cause grief to those controlling the café. His Honour found that Tony Antoun, in his evidence, told the Court, as a tribunal of fact, that he had taken the men down there and dropped them at the premises, which evidence he later amended to say that he had only taken one of the men to the premises.

41 His Honour the trial Judge found that Savvas was in fact intimidated by the actions of both of the accused, and that this is corroborated by Exhibit D, the second significant tape recording. His Honour found Exhibit D not capable of supporting the contention by either appellant or defence witnesses called on their behalf that there was any prior agreement or any prior payment made by Savvas to either of the appellants or to anyone called on the appellant’s behalf.

42 In relation to the evidence of Raciti, his Honour found that Raciti would agree to any proposition put to him on behalf of the appellants during the trial. His Honour found that what was in the evidence of the appellants created enormous inconsistencies, and found the contentions of the appellants to be recent inventions.

43 His Honour rejected the evidence of Kourgialis, Da Silva and Tina Salvaggio, where it was inconsistent with Savvas’ evidence and Exhibit D, and came to the conclusion that Savvas knew nothing of the arrangements between Raciti and Shalala and the appellants.

44 His Honour found that there was a joint exercise by both accused, and that they were guilty of “a naked case of extortion”. His Honour found, to the requisite criminal standard, that there was no claim of right by the appellants, and that the demand which was made was not for property as such, but was accompanied by menaces. He further found that the appellants left the meeting of 22 June 2001 with the $8000 Savvas had brought and the demand that he could get rid of them merely by parting with about two months’ takings. His Honour found that the appellants demanded money and did so with the intention of permanently depriving Savvas of the money, that they knew and believed they were not legally entitled to the property, that they acted with a dishonest state of mind, and that the demand amounted to menaces.

45 His Honour then made some additional remarks about the application for no case to answer and offered to expand those remarks if either of the appellants considered that was necessary at some future time, as long as that application was made within 28 days.

Grounds of Appeal

Ground 1

46 The first ground of appeal was that the trial Judge was in error in refusing the applications by counsel for the trial Judge to disqualify himself from continuing with the trial by reason of the apprehension of bias. The appellants rely on the fact that there were three separate applications for the trial Judge to disqualify himself. The first application was foreshadowed by Mr Steirn SC, counsel for Joseph Antoun, that an application would be made for no case to answer, and a similar application was foreshadowed by counsel for Tony Antoun.

47 The application was then formally made on the basis that “a fair-minded observer” would entertain “a reasonable apprehension of bias”. There were two separate applications made by Senior Counsel for Joseph Antoun at this stage of the trial, the first formally made at T208.4 and the second at T202.1.

48 During the course of the trial, at T205, during a discussion about the likely length of the trial, Senior Counsel for Joseph Antoun said that there would be an application the next day for a no case to answer. His Honour said at T205.31:

“I see well (my emphasis) that application will be refused. So how long then will the defence case take?”

49 His Honour then, when questioned, said that he anticipated what would be in the Crown’s case and that there was a case to answer. Senior Counsel for Joseph Antoun then asked his Honour to wait until submissions had been heard from both defence counsel. After he heard those submissions, His Honour then asked whether counsel would be in a position to proceed, but said he would consider any submission that was put, saying, at T206.8, “I’m obliged to consider any position you put.” The application was then formally made.

50 The first application was dismissed after submissions were made by both counsel, on the basis of the remark that his Honour had made to the effect that the application for no case to answer would be declined or refused. In his reasons, his Honour said that he had a very firm view, as a judge of law (being one of the functions that his Honour was performing as well as being the tribunal of fact), that an application for no case could not succeed in the particular trial. His Honour said that he would give his reasons in the fullness of time, and in fact adverted to the matter again in his decision in the trial, and said that he would give further reasons if required, as I have indicated above, if an application were made within 28 days. No such application was made.

51 His Honour said that as a matter of law, having regard to the defence opening, and the uncontested portions of Exhibit D referred to above, that a no case application was doomed to failure. His Honour said that the only basis upon which he would have considered granting the application would have been if the Crown had agreed with the appellants’ submission, but that was not the case.

52 The second application was made shortly thereafter. His Honour gave the judgment that I just referred to, and application was made by Mr Steirn SC for Joseph Antoun that his Honour disqualify himself on the basis of having used the words that the no case application “cannot succeed”. His Honour agreed that that is what he said, and that he had listened to the tape (Exhibit D), and that his judgment simply reflected his view on the matter. The following exchange then occurred at T211.35 – T211.45:

Steirn: My submission is that if your Honour is of that view still then it would be pointless in making a no case submission at this stage.

His Honour: It’s entirely a matter for you, Mr Steirn”.

Steirn: Because you’ve already just said it cannot succeed.

53 His Honour then read the submissions on the no case application, and in his judgment on the application his Honour said:

Both accused and the Crown have had an opportunity this afternoon to place before me some written submissions on the defence application that there is no case to answer in relation to the present proceedings.

I remain of the view, more greatly enforced than earlier, that there is a case to answer. I propose to publish some reasons. I shall not do that this afternoon, partly because one aspect of the publication of those reasons does cause me some modicum of concern and I wish to consider that.

However I will publish reasons obviously, in case it should ever be the matter of some debate anywhere else.

54 The words which his Honour used in relation to the no case submissions were expressed at p 54 of his judgment in the following terms:

“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.”

55 It was submitted by the appellants that in spite of the failure to ask his Honour the trial Judge to make remarks as to his reasons, there is nonetheless in fact an error in his Honour dismissing the argument that the appellants had no case to answer.

56 The third application for His Honour to disqualify himself was made after his Honour, in the course of the trial, on his own initiative, revoked bail for the Antouns. At the end of the evidence for the appellants, his Honour said at T371 that he had:

“… 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.”

57 His Honour said that bail should be revoked on the basis of the strength of the Crown case. Objection was taken by Senior Counsel for Joseph Antoun. His Honour indicated when it was pointed out that his Honour may be falling into appellable error, that that was possibly correct. His Honour said that the demeanour of Joseph Antoun in the witness box was another reason for the order of revocation of bail. At p 51 of his Honour’s judgment, he said:

“I felt that Mr Joseph Antoun’s behaviour went way beyond anger. I could use 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.”

58 His Honour revoked bail, the Crown prosecutor having declined to put any submission on the issue. Mr Steirn SC pointed out the inconvenience of the refusal of bail in terms of seeing his client, and formally asked for his Honour to disqualify himself because of the judgment he had delivered.

59 In this application, the appellants rely on the subsequent bail application before Sully J, under s30AA of the Bail Act 1978, for the grant of bail pending a hearing of an appeal before this Court. Sully J granted bail, and said in a lengthy judgment said at pp18-19:

Winningham v R

60 Sully J went on to find, at pp 19 –20:

Bail Act

61 It was submitted on behalf of the appellants that a fair minded observer might reasonably apprehend, in the light of the comments of Sully J, that the learned trial Judge had prejudged the case, or might have prejudiced the case of each appellant, and thus it was submitted that the convictions should be quashed, and a new trial granted.

62 The appellants submitted that the High Court decision in Winningham v R (supra), follows on the analysis in the criminal trial of Webb v R; Hay v R (1994) 181 CLR 41, in which case a number of cases had been examined. The appellants relied on the statement of Sir William Deane at p 67 (references omitted):

Court in Livesey v NSW Bar Association

63 It was submitted on behalf of the appellants that the appellants were entitled to think that the learned trial Judge was biased against them. It was further submitted that, having read the judgment of Sully J, that a fair minded person might apprehend prejudgment. It was also submitted that the decision of Sully J did not deal with other issues in the trial. The decisions on the no case submissions, it is submitted, had led the trial Judge to make up his mind before hearing a word of argument, and that fact would give rise to a reasonable apprehension on the part of the appellants that the learned trial Judge had prejudged the issue.

64 It was submitted by the Crown as to the issue of bias, in relation to the expression of his Honour’s views during the course of the trial, that the tet is whether a fair minded observer might reasonably apprehend that his Honour might not have brought an impartial mind to the resolution of the issue. This is a question of possibility (real and remote), not probability (Vakuata v Kelly (1989) 167 CLR 568; Livesey v NSW Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488 at 492). The majority in Johnson v Johnson held that the observer must be reasonable, and that the person observed is a professional judge, whose training, tradition and oath require that that judge discard the irrelevant, the immaterial and the prejudicial.

65 The Crown submitted that this was a judge alone trial where the judge, as the tribunal of fact, would have to make rulings and directions during the course of the trial adverse to one or other of the parties, the test being that whether the judicial officer would decide the case impartially and without prejudice, not whether he or she would decide the case adverse to one of the parties (see Mason J in Re L; Ex parte L (1986) CLR 342 at 352). The fact that an adverse ruling is made does not of itself justify a finding of bias (see R v Masters, Richards and Wunderlich (1992) 59 A Crim R 445, where a trial Judge revoked bail for one of the accused, and in the course of so doing, found that he was an unsatisfactory witness, was not acting in a way amounting to prejudgment requiring him to disqualify himself to avoid apprehension of bias).

66 It was submitted by the Crown that is was necessary in the determination of the appropriate level of bias that there must be identification of what his Honour said that might lead his Honour to decide a case other than on its legal and factual merits, and the articulation of the connection between the matter and the alleged or feared deviation.

67 In the course of the proceedings, there were energetic exchanges at times between the counsel for both accused and his Honour, but nothing in that exchange is reflective of bias. It was submitted that preconceived opinions do not constitute such a bias, nor does the expression of such opinions indicate that evidence will be disregarded (see R v London County Council; ex parte Empire Theatre (1894) 71 LT 638 per Charles J at p 639, which was cited by the majority in Watson; ex parte Armstrong [1976] 136 ALR 248). It was put by the Crown that Vakuata v Kelly (supra) establishes that a judge may express preliminary views and propositions on matters put before the Court. The Crown said that Johnson v Johnson (supra) is authority for the fact that a judge, sitting as judge and jury, is obliged to be frank and open in his or her assessment of the evidence.

68 The Crown submitted that at no stage was it shown that there was actual or ostensible bias, and to establish that, the separate incidents in the trial should be examined individually in relation to the foreshadowing that an application would be made that there was no case to answer.

69 At the conclusion of the Crown case, the learned trial Judge had heard all the evidence of the Crown. His Honour heard submissions after expressing the view complained of.

70 I do not consider that his Honour had considered the matter, but having heard the evidence, had a very strong view at that stage. A judge who is hearing a matter as judge and jury has a more critical view of the evidence than a judge who sits with a jury. His Honour did not prevent submissions being made, and his judgment shows that he had formed a view of the Crown case at that stage, which, on examination of the evidence, was not an unreasonable view. The exchange had occurred whilst the parties were considering the mechanics of the length of the trial, not at the time when the application had in fact been made.

71 I can see no basis, on examination of the law in R v Masters, Richards and Wunderlich (supra), that there was anything in the nature of bias in the way in which his Honour determined the matter. That is not to say that the expression used by his Honour was the most felicitous way of expressing his view at that stage in relation to the application about to be made. It was Mr Steirn SC and Mr Willkinson, for the parties, who declined to make further application. As observed above, his Honour gave reasons for convicting the appellants, it being clear from those reasons, that he held a strong view in relation to the Crown case, as he was entitled to do by the close of the Crown case, for the purposes of the application that the appellants had no case to answer.

72 I agree with the Crown submission that it was not established that evidence of the appellants, witnesses called on their behalf, or evidence adduced from Crown witnesses, would be disregarded as his Honour had not expressed a view on the credibility of the appellants at that stage.

73 In relation to the bail application, it is clear that his Honour’s course of action is uncommon, but the function performed in a bail application is performed in a large number of trials, both jury matters and non-jury matters, in all Courts. A determination under the Bail Act is a discreet application on a civil onus, notwithstanding that there may be higher standards set for the decisions made, such as under s30AA of the Bail Act. Determinations are made all the time which are adverse to one party or another, unless made by consent.

74 In R v Masters, Richards and Wunderlich (supra), the Court of Criminal Appeal held that the mere fact that another judge disagreed with the judge’s finding is incapable of supporting any reasonable apprehension of bias. Persuasive though the views may be of a senior judge such as Sully J, his Honour, Sully J, all that Sully J was doing was in fact determining a bail application, not performing the function of the Court of Criminal Appeal. His Honour’s views are not relevant to the determination of this Court, and there is thus no light to be shed on the issue of apprehension of bias.

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

Ground 2

76 The second ground of appeal was that there was no case to answer and a verdict of acquittal should have been entered on the appellants’ behalf.

77 The appellants submitted that the indictment did not specify the sum of money said to have been demanded by the appellants, and that the Crown had particularised the sum of $8000 in its opening. The transcript shows that the learned prosecutor said at T436.41-51:

“The Crown case is that the $8000 taken by the accused from Michael Savvas on 22 June 2001 was dishonestly taken, that neither of the accused held a genuine and honest belief that they had a legal entitlement to demand the money.”

78 It is put by the appellant that if the particularising of the charge at $8000 was correct, there was no case to answer as both of the appellants had a claim of right for that sum. Counsel for the appellants relied on the answer at T.112.40 where Savvas was asked, “The $8000 Mr Savvas, was for a past debt and that’s all wasn’t it?”. Savvas answered, “The $8000 was, yes”. Savvas had agreed that Antoun had complained he had not been paid since Big Time Promotions had left, and that he was looking to Savvas for payment.

79 It was further submitted by the applicants that Tony Antoun was only asking for payment of the money on his brother’s behalf, and that the claim of the Antouns was genuinely held, whether well-founded in fact or law, and that this is all that needed to be shown (R v Fuge [2001] NSWCCA 208 at 24). It was submitted that even though Savvas denied a business relationship with the Antouns, Savvas acknowledged the existence of the debt. It was submitted that Raciti gave evidence as to the indebtedness of Savvas for the security services. Raciti’s evidence was that Savvas was responsible for paying Joseph Antoun $1250 per week for extra security, as set out in the evidence earlier in this judgement, and that Antoun had complained to Raciti that he had not been paid, and that he had contacted Savvas, who was ignoring him.

80 The Crown, after the no case submission, said at T235.16-20 that:

81 Counsel for the accused did not agree with that submission. The submission was later made by both counsel that the Crown be limited to $8000. His Honour did not rule on the matter, but in his decision set out the argument, as I have set out above, to the effect that the offence does not require particularisation of a particular sum. In his Honour’s decision, as set out above, his Honour made it clear that the indictment showed a specific period, and that the evidence of the additional claim in addition to the $8000 was only part of the Crown case.

82 It was submitted on behalf of the appellants that this issue was never clarified during the trial, and that the trial therefore was unfair, as the appellants were ultimately unaware of the case they had to meet (see Johnson v Miller (1937) 59 CLR 467 and S v R (1989) 168 CLR 266). It was further submitted that even if the Crown case extended to the conversation of 22 June 2001, there was no evidence that Tony Antoun was part of that conversation, or complicit in the conduct involved, and no evidence of any further demand on the part of the common purpose, but that in any event, if Raciti’s evidence was accepted, that Joseph Antoun was owed much more than the $8000.

83 It was submitted by the Crown on this ground that the test which a no case submission needs to satisfy is whether, on the evidence, at the end of the prosecution case, the appellants could be lawfully convicted. That is a question of law (Zanetti v Hill (1962) 108 CLR 433). The Crown says that the appellants were relying on the fact that there was evidence that there was a claim of right, and that the indictment did not specify what sum of money was said to be demanded, noting that the sum of $8000 was particularised in the Crown opening, and that there was a lack of particularity, which meant that the appellants did not know the case that they had to meet.

84 It was further submitted by the Crown that the indictment did not specify the amount of money, nor did it need to. It was clear from Exhibit D, which was part of the Crown case, that the conversations went beyond the $8000. The evidence in the conversation referred to in the evidence of Joseph Antoun as to what he was going to “hit” Savvas for, and the reference on p9 of Exhibit D to the quote, “it’s gunna cost you a month or two’s work, and we’re out of the picture. All right”. That evidence was admitted without objection and was before the Court, and is clearly within the indictment.

85 His Honour, in his reasons for judgment, made it clear that he relied heavily on the evidence of the telephone conversation of 22 June 2001, Exhibit D. The Crown submitted that the evidence in support of each of the findings made by his Honour making out the elements of the offence were clearly found in the Crown case. That evidence was obviously supported by matters arising in the defence case, but on its own, the Crown case made out the elements of the offence, and there is no basis, in my view, for his Honour to enter a verdict of acquittal.

86 I would therefore dismiss this ground of appeal.

Ground 3

87 The third ground of appeal was that his Honour incorrectly applied the rule in Browne v Dunn (1893) 6 R 67, resulting in the miscarriage of justice. The appellants submitted that during the course of the trial, and prior to the recall of Savvas as a witness, the learned trial Judge said that certain matters were not put to Savvas, but when Senior Counsel for Joseph Antoun asked that this be clarified, his Honour declined to do so, citing the reason that it was a judge-alone trial. It was put on behalf of the appellants that his Honour’s decision to convict listed several matters not put to witnesses, including a series of matters that had not been put to Savvas and certain matters that were not put to Raciti, who, although called by the Crown, was clearly giving evidence in support of the defendants’ case.

88 It was submitted, both in the trial and in this appeal, that the lawfulness of the arrangement for payment for the services that were provided were not relevant, that it was the duty of the Crown to negative the claim of right, and that if the appellants genuinely believed that Savvas owed them money as a right, the Crown had failed to prove its case.

89 It was submitted by the Crown that it is clear that his Honour had some views and interpretations of the defence case, and that his Honour was endeavouring to raise issues which appeared to him issues which ought to have been put (primarily) to the witness Savvas, in questions which would normally come within Browne v Dunn (supra).

90 His Honour set these issues out in his decision, and made comments in relation to a number of issues that arose that would have been expected to have been put to Savvas. When Savvas was recalled to give evidence, it was clear that the case being put to him was different from the case on which he had been cross examined when the trial had commenced.

91 The rulings that had been made by his Honour in relation to the matters put and not put were subject to his Honour’s consideration. It was open to his Honour to express views on the matter, and even though the views may not have been precisely within Browne v Dunn, they were matters which his Honour considered that he could take into account in assessing the evidence before him.

92 I would dismiss this ground of appeal.

Ground 4

93 The fourth ground of appeal is that the verdict of guilty in each case was unreasonable. The appellants relied on the material submitted under Grounds 2 and 3 and further relied on a number of other matters.

94 The appellants firstly submitted that the evidence of Savvas had been discredited by his concession that a meeting with Shalala and Tony Antoun, that Shalala had a bad leg, and that Savvas had said that that meeting took place in 2001 or late 2000, notwithstanding that Shalala went to prison in June 2000 and was still serving that sentence whilst Savvas was giving evidence. It was argued that this discredits the evidence given by Savvas that he had not met the appellants prior to March 2001.

95 It was submitted that the telephone records show that in April, May and June 2000 Tony Antoun had contacted Savvas. It was also submitted that Savvas was obviously concerned about hiring an unlicensed person for security purposes, and that this was a clear reason for having disavowed having hired the appellant Joseph Antoun.

96 It was submitted by the appellants that the evidence of Savvas that he never made payments to Tony Antoun was contradicted by Tony Antoun, and by inference, by the evidence of DaSilva. The appellants further submitted that it was established that Savvas had had dealings with the appellants prior to June 2000, and that this corroborated Raciti’s evidence.

97 It was further submitted by the appellants that his Honour failed to consider separately the case against each accused. It was submitted that the Crown case was one of joint criminal enterprise, and that the Crown had to prove that Tony Antoun was aware of the extended claim made by his brother, had agreed to it, and also that he had the intention of taking the money. It was submitted that his Honour’s finding that the demand made in the conversation of 22 June 2001 was made by both Antouns, notwithstanding that Tony Antoun was not part of that conversation.

98 Tony Antoun had denied that any further request was made in that conversation (see T282.4). The appellants submitted that the cross-examination concentrated on the knowledge of Tony Antoun, without specifically putting to him that he was a joint participant in that conversation, by virtue of joint criminal enterprise. It was submitted that this was necessary as an element of the offence.

99 It was submitted by the Crown that the finding of the learned trial Judge that this was “a naked case of extortion” was completely justified, that it was a very strong Crown case, and that his Honour made it clear that the claim of right was not established to the requisite standard, and his view was that it was not only on the Crown’s case, but indeed on the appellants’ evidence that his Honour found the claim of right negated. The Crown submitted that his Honour made clear reference to the different cases being put by the two parties, and at various times the different positions of the two accused was considered by his Honour.

100 The Crown submitted that the complaint made that Tony Antoun did not make the demand of the victim, nor was he made aware of the additional demand, and that Crown did not put to Tony Antoun that he was effectively a participant in the conversation because of the joint criminal enterprise. The Crown submitted that it is not necessary for such matters to be put to each accused. The Crown submitted that the facts forming the foundation of the Crown case had been sufficiently put to Tony Antoun.

101 As to the issue of credibility, his Honour made reference to the enormous inconsistencies in the evidence of both the accused, and referred to the fact that Raciti was prepared to agree to any proposition put to him on behalf of the Antouns. His Honour clearly rejected the evidence which was inconsistent with the unchallenged evidence in Exhibit D, and had no difficulty in finding to the requisite standard that the Crown had negatived the claim of right on the evidence of the Crown and the evidence of the appellants.

102 In this respect I have had regard to what was said in the majority judgment in M v R (1994) 181 CLR 487 at 494-495 (footnotes omitted):

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence ( Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at pp 618-619; Chidiac v The Queen (1991) 171 CLR 432 at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ( Chidiac v The Queen (1991) 171 CLR at pp 443, 451, 458, 461-462).

103 In my view, it cannot be said that the evidence lacks probative force so as to lead this Court to conclude that even making full allowance for the advantages enjoyed by the judge sitting as jury there was a significant possibility that the appellant was an innocent man who has been convicted.

104 I would reject this ground of appeal

Application For Leave to Appeal Against Sentence

105 The appellants submitted that in the offence of Demanding Money With Menaces, there was no threat here of infliction of bodily harm or destruction of property, and that the incident in which several men trashed the business appeared to be directed more towards “disrupting” rather than “destroying” the business, and that therefore this conduct should be placed in perspective since no one was hurt, no significant damage was caused to property, and no weapons were used.

106 The appellants submitted that this must be set against the statutory maximum penalty of ten years’ imprisonment, and that a sentence of six years is manifestly excessive, although it was conceded that his Honour considered that this was one of the worst offences of its category, or if not, was fairly close to “naked extortion” of an ongoing nature. The appellants submitted that where there is no direct threat of physical harm to the person involved and no use of weapons, then it must necessarily fall significantly below the worst case category, and therefore that the learned sentencing Judge erred when he characterised this conduct as being close to the worst of its kind.

107 In relation to Joseph Antoun, it was put that the submissions originally put at the sentencing proceedings on his behalf as to his deprived childhood, his addiction to heroin, and his attempts at rehabilitation (which had been largely unsuccessful) were not given enough weight. Since release from custody in 1997, it was put that Joseph Antoun had made a real effort to leave his past behind him and find regular employment.

108 It was submitted by the appellants that although it acknowledged that the conduct is serious, it had been assessed at too high a level by the learned sentencing Judge.

109 In relation to Tony Antoun, his Honour made findings of fact that the offending conduct was out of character, and that his, Tony Antoun’s, role was more one of a message deliverer than anything else. The learned sentencing Judge also took into account that Tony Antoun had not been in prison before, that he was married with children, and that there were special circumstances. It was put that the reduction reflecting the finding of special circumstances is marginal to the point of being nonexistent.

110 Special circumstances have to be found if the non-parole period falls below 75 per cent of the head sentence. It does not matter if the finding is substantial or small. That is all that the Court required to do and it must make that finding if the requisite ratio is not adhered to. There is no point to be made that once a finding of special circumstances is found, that it must be substantial. All that is necessary is that there be a finding if the ratio is not maintained.

111 It was further submitted on behalf of Tony Antoun that his sentence does not sufficiently distinguish him from the criminality of his brother Joseph, Joseph having the greater role, and that the learned sentencing Judge erred by imposing a sentence which bore a relationship to the sentenced imposed on Joseph Antoun, and thus, as it is submitted, the sentence for Tony Antoun is too high. It is submitted on behalf of the applicant that three and a half years is too long for a person with a limited role in the offence, who had previously never been to gaol.

112 It was submitted by the Crown that his Honour found the case to be a very serious example of extortion, and that the demand took place over a period of some months. It was further submitted that his Honour took into account the absence of contrition in relation to the matters put on behalf of the applicants. The Crown submitted that the sentence imposed on Tony Antoun was in the mid- to high range of sentences imposed, and that the sentence imposed on Joseph Antoun was in the high range, and that this was consistent with the findings of his Honour. The Crown submitted that both sentences are within the reasonable range, and nothing warrants the granting of an appeal under the Criminal Appeal Act 1912.

113 In my view, this offence took place over a lengthy period of time, where it was clear that the demonstration of what might happen was a very stark, menacing event. Clearly, Tony and Joseph Antoun worked together, and they were able to draw on considerable resources of people to enforce their wishes, those people being unlicensed, and clearly Savvas was entitled to be more than a little concerned about the threat to him and his business. The unspecified threat as to how long the matter may go on in the future makes this a very serious offence, and a clear breach of the section of the Act under which the appellants were charged.

114 I do not consider that the sentences of either of the appellants is manifestly excessive, and although I would grant the leave to appeal, I would dismiss both appeals.

115 The orders, therefore that I propose, are as follows:

i. that the appeal against conviction be dismissed;

ii. that in relation to the application for leave to appeal against sentence of Tony Antoun and Joseph Antoun, that leave be granted to appeal against sentence;

iii. that the appeal against sentence of Tony Antoun and Joseph Antoun be dismissed.

116 HISLOP J: I agree with Smart AJ

117 SMART AJ: Joseph Antoun ("Joseph") and Antoine Antoun ("Antoine") appeal against their conviction by Christie DCJ, sitting without a jury, of demanding money with menaces and seek leave to appeal against the severity of the sentences imposed being, as to Joseph Antoun, imprisonment for 6 years with a non-parole period of 4 years 6 months and as to Antoine Antoun imprisonment for 3 years 6 months with a non-parole period of 2 years 6 months.

118 The charge alleged that the appellants between 1 March 2001 and 23 June 2001 at Sydney with menaces did demand from Michael Savvas a sum of money with intent to steal the same. The prosecutor handed her opening written address to the judge immediately after the indictment of the appellants. The prosecutor stated that the Crown alleged that the appellants were parties to a joint criminal enterprise to demand money from Michael Savvas menacing or threatening him that unless he paid them his business would suffer some unspecified damage. It was written:

The Crown case is that the $8000 taken by the accused from Michael Savvas on the 22 June 2001 was dishonestly taken and that neither of the accused held a genuine and honest belief that they had a legal entitlement to demand that money.

119 The appellants complained that the Crown altered its case after the cross-examination of Mr Savvas in which, it was claimed, he had made certain concessions. The appellants insisted that the Crown had, in particularising its case, limited it to the $8000 earlier quoted and that it could not extend it to include any other benefit or money.

120 In her opening address the prosecutor wrote at length upon the terms of the taped conversation between Joseph Antoun and Mr Savvas at their meeting on 22 June 2001. Mr Savvas had taken $8000 (given to him by the police). The tape records Mr Savvas saying, "I'm happy to pay you something but I want assurance that basically you don't come to me again." Joseph Antoun took the $8000 but did not give the assurance. He said, a little later, "We will call it quits to-day. Um, next week I'll have more time, I'll think about how we're gunna to do it" and "…Believe me, just you coming and being courteous has almost resolved it for you". The word "almost" was tantalising. Even later, Joseph Antoun said, "Yeah, Alex is in gaol. We'll work something out so you can help him out a bit and um, we'll probably give Tony some spendin'; money for, because I know you're not there long, so what is it gunna cost you, its gunna cost you a month or two's work and we're out of the picture. All right?" (Tony was Antoine)

121 The Crown was relying on the demand for and payment of $8000 and also for further moneys. Precise particulars were given of the demand for $8000 but the conversation on which the Crown relied so heavily and detailed extensively in its opening written address, makes it clear that more money would be required.

122 The appellants, not unnaturally, were desirous of confining the Crown case to the demand for and payment of $8000, but that limitation was not accepted by the Crown. After the Crown had led its evidence and only formal matters remained prior to the close of its case, counsel for the appellant stated that they intended to submit that there was no case to answer. After argument on that point and prior to the formal close of the Crown case the prosecutor reiterated that, as in her opening, she relied in detail on the taped conversation of 22 June 2001 and particularly that part which went beyond a sum of $8000 (T230 – 4 April 2003).

123 At T234 on 7 April 2003 the prosecutor again referred to the way in which the Crown was putting its case (which she described as having been indicated quite explicitly on 4 April 2003). The judge observed that the Crown case had always been tolerably clear. At T235 this passage occurs:

"CROWN PROSECUTOR: It's a between dates case your Honour, no amount is specified in the indictment because it's the Crown's case that both of the accused were parties to a joint criminal enterprise to demand with menaces, money. The sum unknown because it not only includes $8,000 but other payments, future payments. In fact the sum of $8,000 was suggested by the accused.

HIS HONOUR: Ms Crown, I'm perfectly clear on the way it was put from your opening and I guess that the date in the indictment, 23 June was not selected by accident.

CROWN PROSECUTOR: No it was not your Honour. I just want both my learned friends to be well aware of the fact that the $8,000 is only part of the money that the Crown says the accused demanded with menaces from Mr Savvas and that's why your Honour the conversation of 22 June is particularised in great detail in the Crown's opening and anything to do with the claim of right in relation to $8,000 is a response to my interpretation or foreshadowing of what the defence case may be concerning that amount of money but not restricting the amount in relation to the charge.

HIS HONOUR: Well Mr Steirn and Mr Wilkinson have heard what you've said, they've taken it on board no doubt.

STEIRN: We'll take it on board your Honour and if it needs to be argued, we'll argue it at the appropriate time.

HIS HONOUR: I understand that, Ms Crown's simply putting
you on notice and I think she did last Friday, I think squarely on notice.

CROWN PROSECUTOR: And hopefully I did in my opening as well your Honour."

124 Senior Counsel for Joseph Antoun said that his silence did not mean that he acquiesced in what the prosecutor had said about particulars. After some brief further cross-examination of Mr Savvas the Crown case was closed and the appellants began their cases, both appellants giving evidence.

125 The transcript and the written opening of the Crown case reveal that the Crown did not change its case and that when the prosecutor realised that the appellants were taking an unduly narrow view of the Crown case she corrected their faulty understanding. This was done before the Crown case was closed and before Mr Savvas was further cross-examined.

126 Senior Counsel for Joseph Antoun provided the judge with this written opening:

"In essence the Defence case is the Crown case. Some essential facts are not in dispute. The defence is based on a claim of right for monies due and owing arising out of a pre-existing agreement to conduct security at the Daintree Nightclub Café. This will be established on the evidence in the Crown case.

This claim of right will be established on two bases:

Firstly, by reference to the conversation between the principal Crown witness Mr Savvas and the accused, Joe Anton at the meeting on 22 June 2001. It is common ground that Joe Anton was not aware that the conversation he had with Savvas was being recorded. The state of his mind in relation to his claim of right in relation to the $8000 is made explicit from their conversations at a time when he was unaware he was being recorded.

Secondly, the alleged victim, Savvas, admitted in cross-examination at the committal proceedings (which will become evidence in this Trial) that the $8000 was not for protection but by way of payment for arrears due in and owing. This amount was in relation to a previous agreement between four parties, the alleged victim, Savvas, the principals of Big Time Promotions, one of which is Anthony Raciti; initially with a person by the name of Alex Shalala, (now in gaol); and upon Shalala going to gaol, the two accused. This will be established by the evidence in the Crown case.

The Law

The existence of a claim of right when genuinely held will constitute an answer to a crime in which the means used to take the property even when it involves a threat, assault or the use of arms. The relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it. See R v Fuge 123 A Cr R 310 @ Paragraph 24, where the cases are collected."

The reference to "It is common ground" is perhaps erroneous and should have read, "It is the defence case". The defence of Antoine Antoun was to the same effect

127 As the grounds of appeal assert that there was no case to answer and that the verdict was unreasonable it is necessary to first summarise the facts. Michael Savvas was the owner of the Daintree Cafe, Sega World Complex, Darling Harbour from March 1997 to 4 January 2003. It was predominantly a food and bar business. About the end of 1999 a nightclub business was started. He engaged a promoter, Big Time Promotions, (Mr Tony Raciti) to run the latter business. They were to conduct that business as to marketing and advertising, audio, lights and sounds and to look after security. They were responsible for having static guards on the premises. Mr Savvas was the owner/occupier of the premises and had a management and a hands-on role. He was there during the night club activity.

128 Big Time Promotions ran the nightclub business until early 2001; then Mr Savvas took control of the business and security. Mr Savvas scaled down using Big Time Promotions at one stage from every Saturday night to once per month.

129 Big Time Promotions employed the Rock of Ages Company to provide the security and when Big Time Promotions stopped running events at the Daintree Café Mr Savvas employed Rock of Ages to continue the security. Part of the licence required him to have one static guard for every hundred patrons and he organised this through Tofavaha Tuifua, (known as Tony Vaha) of the Rock of Ages Company. About once a month in the busy season Mr Savvas would independently organise trainers with dogs as extra security.

130 In early March 2001, late on a Saturday night going into Sunday, Mr Savvas was approached by Tony Antoun who stated that he "looks after businesses". Mr Savvas replied, "I'm already comfortable with my security". Tony Antoun said that he looked after businesses in King's Cross. Being surprised Mr Savvas kept the conversation short. He did not see Tony Antoun again that night. About two weeks later on a Saturday night Tony Antoun came into the Daintree with a group of men and asked Mr Savvas if he had thought about their previous discussion. Mr Savvas said that he was quite happy with his security company and left it at that. Mr Antoun stayed in the premises for two to three hours but Mr Savvas did not speak to him again.

131 Tony Antoun made a third visit to the Daintree on a Saturday night. Mr Savvas saw him at the nightclub but walked away to avoid him. A few weeks later Tony Antoun came to the Daintree at lunch time during the week. He walked upstairs and into the office of Mr Savvas and told him that he was there to deliver his final warning. Tony Antoun was in a hurry. He said he had someone in the car and that he would be in touch to arrange a meeting about payment of moneys. Tony Antoun complained that there had not been a payment made and that Mr Savvas had fallen behind. He also said that he would be in touch to tell Mr Savvas where the next meeting would be to discuss the matter. He added "There's someone that I want to introduce you to". No names were given. Mr Savvas told Tony Antoun that the business was not going too well and there were no moneys owing. Tony Antoun replied that Mr Savvas should consider a payout. Mr Savvas asked what the payout would be and was told by Tony Antoun that he would let him know at the next meeting. Mr Savvas was worried and saw this as a serious threat. He feared that there may be some violence to him, his family and his staff. At that stage Mr Savvas had received no services from Tony Antoun nor had he ever engaged his services. Tony Antoun telephoned Mr Savvas about a week later and requested him to meet with him and someone else on a Friday afternoon at 4 o'clock at McDonald's Broadway. Mr Savvas told Mr Antoun that he could not attend the meeting because he had a prior function.

132 On 14 June 2001 on a week day just after lunch Mr Savvas was sitting in his office when he noticed on the monitor that there were four youths throwing chairs and tables downstairs over the bars and over guests having lunch. Other evidence establishes that there were five youths. Mr Savvas quickly ran downstairs and as he did so the four youths ran outside. With assistance two of the youths were caught and taken away by the police. Four telephone intercepts of 14 June 2001 between 1424 and 1443 hours reveal that Joseph said to Antoine that "They went in, the thing happened", that Antoine Antoun was concerned to make sure that none of the youths were caught, that it was stated that there had been a chase by "cop dogs", that Antoine Antoun discussed the retention of a solicitor and that the solicitor should check and ensure that everything was okay.

133 On 15 June 2001 Tony Antoun telephoned and enquired if Mr Savvas had received the warning. Mr Savvas made no reply and hung up.

134 Early on Sunday morning 17 June 2001 Mr Savvas was downstairs at the nightclub and he saw a group of men walk inside the premises. One of the men was Joseph Antoun. Mr Savvas followed them upstairs to the bar and kept an eye on them. Eventually he spoke to Joseph Antoun who said "I'm not here to fuck around. You've got the warning. I can go to the police. I'm going to get my money." Joseph Antoun said that he looked after other businesses and that a time for payment would be made. Mr Savvas told him that he was looking at selling the business because it wasn't going very well. Mr Joseph Antoun replied that Mr Savvas should look at a payout. When Mr Savvas asked how much, Mr Antoun said that he would let him know during the week.

135 Mr Savvas made a statement to police on 20 June 2001 and part of this statement was read pursuant to an application under s 32 of the Evidence Act 1995. Counsel for the appellants permitted the prosecutor to lead the witness Savvas from the statement. Mr Savvas said that Mr Joseph Antoun stated that Big Time Promotions were paying them $1250 a week, that he understood that Big Time Promotions did not do the promotions any more, but the way he saw it the protection was for the venue, not for the promoter. Mr Joseph Antoun continued that they had not been paid for a while and that if Mr Savvas did not want to continue the services then he needed to pay them out. Mr Antoun further said that they could discuss the sum next week, but the meeting must take place next week with payment by Friday. On Mr Savvas enquiring as to the amount of the payout, Mr Joseph Antoun replied "We'll discuss that next week. You need to ring Tony Raciti and make an appointment". Mr Antoun added "I would have shut the club down by now and it's only out of respect for Tony". Mr Joseph Antoun stated that he was not interested in meeting the buyer. He could make the sale an easy process or a hard one, if he chose. Mr Joseph Antoun went on to say that he could have a thousand junkies or a hundred junkies in the Daintree every night. Mr Savvas was concerned for the safety of patrons and staff on that night and felt threatened. Mr Antoun's group had congregated near the bar and comprised seven or eight males. Mr Savvas bought them some drinks. Mr Antoun's group stayed for about two hours.

136 Mr Savvas said that after one of his meetings with Tony Antoun he went to the police, probably just before or just after the second meeting. Mr Savvas stated that Tony Antoun telephoned him on 19 June 2001 and said that he should come to a meeting at McDonald's in Broadway and meet him and someone else. Mr Savvas said that he attended the meeting on 19 June 2001 near McDonald's Broadway, the meeting point being at Tony Raciti's office and that as he (Savvas) was walking there he saw Tony Antoun and asked him where the office was. An audio tape and transcript of the conversation were admitted in evidence. In that conversation Antoine Antoun told Mr Savvas that Joseph Antoun wanted to see him (Savvas) on Friday at 4pm and that he should bring $8000 with him. Antoine Antoun said, "… so bring the money with you. He told me to tell you, bring the money. That's all I can say to you." Antoine Antoun said that he [Joseph Antoun] said "he'll be here Friday bring that money will you, and everything will be sorted out, walk away, that's it whatever happens, you work it out with him." The conversation continued, V1 being Mr Savvas and V2 Antoine Antoun:

"V1 So, I've got to make this one payment, and then we call it quits?

V2 He said, because, I told him we've got no business (…inaudible…) told me

V1 Well, you know, I, I've had no business with you guys, you know that.

V2 I said, He's got no business, blah, blah, blah, he said, Well, he should've told me, should've talked to me about it You should've said something. So he said, …

V1 Well, I saw him on Saturday, he came down on Saturday night."

Mr Savvas said that he did not owe Joseph or Tony Antoun $8000 and had not had any business dealings with them, but wanted to pay the money so he could walk away from the whole saga.

137 Mr Savvas saw Joseph Antoun on 22 June 200 and was again fitted with a recording device. Mr Savvas went to Tony Raciti's office; Joseph Antoun asked Tony Raciti to leave the office (which he did) and then asked Mr Savvas if he had brought the money. Mr Savvas said that Joseph Antoun searched him by patting his back, front and legs to make sure he was not wearing a device. Mr Antoun said the last thing he wanted was a tape recording. Mr Antoun then asked Mr Savvas to give him his wallet and after receiving it commented "You haven't got ah, what we need." Mr Savvas replied I've got what you need, don't worry." Mr Joseph Antoun said "OK, this is just till we work this out." This conversation is then recorded (Voice 1 being Joseph Antoun and Voice 3 being Mr Savvas)

"V.3 I'm, I understood 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.

V.1 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.

V.3 By who?

V.1 Doesn't matter.

V.3 O.K. All right.

V.1 The place had trouble. Is that true?

V.3 Yep.

V1. All right.

V.3 Well, O.K., yeah.

V.1 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 fuckin' whatever - - -

V.3 But you never had any dealings with me, Joe. If we had a business transaction going, then yes, I, I'd - - -

V.1 Indirectly. Indirectly.

V.3 Yeah, but there was never involved with me.

V.1 .. did bring the money today?

V.3 I brought you some money.

V.1 Where is it?

V.3 In my pocket.

V.1 Show me. What's some money, eh?

V.3 Sorry?

V.1 What is some money?

V.3 Six thousand.

V.1 The deal was eight.

V.3 I'll give you eight, Joe, but you've got to give me assurance - - -

V.1 No, no, no, I won't. … "

Joseph explained the reason thus to Mr Savvas.

V3. "…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 fuck you around, now you are even."

138 Mr Savvas again pressed for an assurance to no avail and stated that he was selling for the wrong reason and that this kind of trouble was not for him. Mr Joseph Antoun stated that with that kind of business, "You've got to run with the devil." At about this point Mr Savvas made $8000 available to Mr Joseph Antoun. The latter said:

264 Further, no analysis was undertaken of the Security Industry Act 1997 to determine whether that had the effect of precluding recovery of any money for security services allegedly rendered by unlicensed operators. Neither Joseph nor Antoine was asked as to their understanding of the position.

265 A subsidiary reason to disavow hiring Joseph was not required. Savvas did not want to pay the moneys claimed by the Antouns. He denied engaging them before, during or after Big Time Promotions conducted events.

266 The appellants pointed out that Savvas' evidence that he never made payments to Joseph through Antoine was contradicted by Antoine and by inference by Da Silva. The truthfulness of that evidence was in issue. The appellants contended that the establishment of the fact that Savvas had dealings with the appellants prior to June 2000 corroborated Raciti's evidence that they had business dealings with Savvas at that stage.

267 The critical period was immediately after Big Time Promotions ceased their regular evening events in January/February 2001. Up to that time Big Time Promotions had paid the Antouns for a few months. They referred the Antouns to Savvas. He engaged Rock of Ages, but he did not engage the Antouns. He did not agree to pay them.

268 The Crown submitted that a consideration of all the evidence made it clear that the judge's finding that this was a naked case of extortion was entirely justified.

269 It was well open to the judge to be satisfied beyond reasonable doubt of the guilt of each of the appellants. My examination of all the evidence leaves me in no doubt of the guilt of each of the appellants. The evidence of Savvas, the taped conversations and taped telephone calls, the organisation of the visit by the Aboriginal people by the appellants, their visit and their conduct, the evidence of Joseph that the visit was intended to intimidate Savvas constitute a strong and telling Crown case. There was no genuinely held belief in a claim of right. The whole episode constituted "standover tactics" of a particularly unsavoury kind. The verdict was not unreasonable.

270 Antoine contended that the judge stated throughout his decision that he was surprised that a different case was put by counsel for Antoine from that put for Joseph. That does not put the position fairly. The judge did refer to the case put by the appellants as having shifted significantly (p21). The judge did refer to what he perceived "as enormous inconsistencies in evidence of the accused, but all of these propositions, that is the manner in which I have described the defence approach to this alleged agreement changing through the trial, in my view amounts to nothing short of recent invention. Indeed, the version of events as put by the accused literally changes by the hour."

271 The judge regarded the defence cases of the appellants as being conducted in an opportunistic manner. The judge reviewed the evidence as against Antoine and as against Joseph and their close association in the events from March 2001 and concluded that there was no doubt that this was a joint enterprise and both were equally guilty of extortion. Their activities from March to June 2001, and especially in June 2001, were closely co-ordinated and directed to the common end of unlawfully extracting moneys from Savvas to which they knew they had no legal entitlement.

272 It was submitted by the appellants that the Crown had to prove beyond reasonable doubt that the appellants had an understanding or arrangement that they would commit the crime of demanding money with menaces, without there being any claim of right to the money demanded (or any genuine belief in such a claim) and that if that money was not limited to the $8000, the Crown had to prove that Antoine was aware of the extended claim made by Joseph and had agreed to its making and also that he had the intention of stealing the money.

273 For the reasons earlier given I do not agree that the crime charged was not committed if the Crown case was confined to $8000.

274 The appellants further contended (primarily for the benefit of Antoine) that the judge found, erroneously, that a demand further than the $8000 was made by both Antouns in the conversation of 22 June 2001, despite Antoine not having been a party to that conversation. Antoine denied knowledge of any further request being made on that occasion (T282.5). It was also submitted that cross-examination by the prosecutor at T282.5ff concentrated entirely upon the knowledge of Antoine about the meeting between Savvas and Joseph, without specifically putting to Antoine that he was effectively a participant in that conversation by reason of joint criminal enterprise and that this was necessary as it was an element of the offence.

275 Savvas had given evidence that on the fourth visit by Antoine to the Daintree he said that he was there to deliver a final warning. Antoine complained no payment had been made and on Savvas stating that the business was not gong well and there was no money owing, Antoine replied that Savvas should consider a payout and, on being asked the amount, was told by Antoine that he would let him know at the next meeting. This was followed some weeks later by the events of 14 and 15 June 2001. On 19 June 2001 Antoine told Savvas to bring $8000 with him and that everything would be sorted out. From the drift of the conversation on 19 June 2001, while payment of $8000 was undoubtedly required it did not appear that this was the end of the matter. Antoine arranged the meeting on 22 June 2001.

276 It appeared from the evidence in the Crown case that Joseph had the authority and agreement of Antoine to fix the amounts which Savvas had to pay. Antoine agreed with the prosecutor that he certainly arranged a meeting about money between Joseph and Savvas. He also agreed that when Savvas said that he was not making money, he (Antoine) told him to talk to Joseph about it. In my opinion the facts forming the basis of the Crown case were put to Antoine.

277 The judge on many occasions in his reasons referred to the role of Antoine and found, that Antoine participated in the joint enterprise. That finding was open. The enterprise involved extracting from Savvas the sum of $8000 and further moneys.

278 Appeal Ground 4 should be rejected.

279 Appeal Ground One

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.

280 The appellants rely on an apprehension of bias having been demonstrated on three occasions -

(i) when the defence foreshadowed that an application would be made that there was no case to answer

(ii) during the no case submission; and

(iii) during the review and revocation of bail for both appellants.

281 It suffices for present purposes to extract the test propounded in Winningham v The Queen (1995) 69 ALJR 775 (Dawson, McHugh and Gummow JJ) that when a question arises of bias on the part of a trial judge, namely:

"The test has been expressed in different ways but it requires the question to be asked whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter."

282 It was observed that the law was well settled and that the authorities were set out in Webb v The Queen (1994) 181 CLR 41 at 47. In the formulation quoted reference is made to the parties or the public might entertain a reasonable apprehension.

283 The first and second applications.

284 Senior Counsel asked the judge to stay his hand until such time as he had heard submissions by both defence counsel. The judge agreed and then added, "Right now when I've heard those submissions will you be in a position to proceed with the defence case." Senior Counsel said, "Does that mean by that comment … that your Honour has already considered the position without a word of submissions by –". The judge interrupted, "I'm obliged to consider any position you put."

285 On the following morning at the start of the proceedings the judge was asked by the appellants to disqualify himself. The judge confirmed that he had said that "the application for a no case will not succeed" and that he was obliged to hear counsel's submissions. The judge, in reasons given that day (4 April 2003), said that he had not exhibited bias. After pointing out that he had to decide both questions of fact and questions of law, the judge said:

"It is question of law that I say is the basis upon which this particular trial, having regard to the defence opening and the uncontested portions of exhibit D that an application of that description in my considered view on the law is doomed to failure."

286 The judge refused to disqualify himself.

287 Senior counsel then made a further application to the judge to disqualify himself on the basis that he had just held that the submission that there was no case to answer could not succeed. Counsel for Antoine joined in this second application. The judge again refused to disqualify himself. The judge commented that, if Senior Counsel dissuaded the judge from his view, Senior Counsel would be the first to know.

288 Senior Counsel handed up written submissions in support of his contention that there was no case to answer. The judge then adjourned to study those written submissions. The Crown was allowed until 2pm to prepare written submissions in reply. That was done.

289 The judge then heard oral submissions at considerable length from Senior Counsel for Joseph in support of the no case to answer application During the course of his submissions Senior Counsel confirmed that it was not in dispute that a demand was made and that it was associated with some sort of menace. The judge said, "The only matter this whole litigation centres around, is whether there is a genuine claim of right." Senior Counsel replied, "Whether there's a stealing, yeah."

290 It is apparent from the transcript that the judge was attentive to Senior Counsel's submissions and allowed them to be developed fully. Counsel for Antoine adopted those submissions. The prosecutor did not wish to add to her written submissions. The judge then ruled:

"I remain of the view, more greatly enforced than earlier, that there is a case to answer. I propose to publish some reasons …"

291 It would be discouraging for Senior Counsel to be told at the outset that the submission of no case to answer could not succeed. However, despite his firmly stated views the judge gave Senior Counsel the fullest opportunity to put his submissions and attended to them. Senior Counsel at least knew the difficulties which he faced. The biggest hurdle which the appellants faced was that the no case to answer application could not succeed in view of the evidence which had been led. In most cases trial judges have a view about whether there is a case to answer at the close of the Crown case. It is a matter to which a trial judge directs his attention as the trial proceeds. Such applications are usually dealt with quite briefly and the judge usually indicates a view at an early stage, but often not in terms as emphatic as those used by the judge in the present case.

292 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.

293 The Review and Revocation of Bail

After the judge had heard the evidence of both the appellants and clarified a number of matters with Senior Counsel, he said:

"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".

294 The judge invited counsel for the appellants to address on whether Savvas had admitted in cross-examination that the $8000 was not for protection but by way of payment for arrears due and owing. Senior Counsel attempted to do so but the material to which he was able to refer when taken in context was not convincing.

295 Senior Counsel asked the judge to stay his hand until he had heard all the evidence and all the arguments. It was pointed out that the appellants had "been on bail for some years and there's nothing in their record to indicate –". The judge interrupted, remarking, "I know nothing of how long they've been on bail, it's none of my business to know either of these things." Senior Counsel added, "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." The judge responded:

"I propose, however, to revoke bail on the strength of the Crown case at this stage."

296 The judge acknowledged that the step he was taking was a very very unusual one. The judge assured counsel that he would keep an open mind about Savvas' evidence. The judge said that he proposed to revoke bail of his own motion. He stated that he did not seek any submission from the Crown and that he also relied on the demeanour of Joseph.

297 In his reasons for decision the judge explained what he had in mind by demeanour. He said (at p51):

"I felt Mr Joseph Antoun's demeanour went 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."

298 In support of the further application of the appellants that the judge disqualify himself, Senior Counsel said:

"… given your Honour's views, given the way … your Honour has conducted yourself in this trial and given what has fallen from your Honour."

299 Senior Counsel submitted that the trial was turning into a travesty, that revoking bail halfway through a defence case made it much more difficult for counsel to obtain instructions. It was submitted that if Joseph was innocent, if Savvas was lying and if Savvas had set the appellants up, Joseph was entitled to be angry and, upset and that the judge had accepted Savvas without hearing Senior Counsel. Counsel for Antoine joined in this application. The judge declined to disqualify himself.

300 The judge asked the prosecutor if she wished to be heard on bail. She intimated that she did not. The judge revoked bail for both accused and adjourned the trial to enable counsel to obtain further instructions.

301 The appellants contended that both a fair minded and informed person and a party might reasonably apprehend bias and that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues arising in the trial. The appellants correctly stressed the importance of justice being seen to be done.

302 Trial judges frequently have to make decisions before and during a trial which adversely impact upon an accused. These include decisions upon the voir dire and bail applications. Sometimes these decisions may involve the credibility of the accused. In the normal case where there is a jury it makes the ultimate decision and will not be aware of what the judge has decided. 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 rulings prior to verdict.

303 The judge advised the appellants that he was considering revoking bail after he had heard all their evidence, including having heard both of them admit to having roles in the visit of the Aboriginal people to the Daintree and Joseph admitting that the visit was to intimidate Savvas, that is to make him pay some money. There was the evidence of Savvas of Antoine speaking of warnings on his fourth visit and on the telephone on 15 June 2001. There was also the stance of Joseph which went way beyond anger and which caused the judge to feel intimidated. A reading of the evidence of Joseph reveals a witness who was out of control, very tense and strong minded.

304 It would have been unnerving to the appellants and their counsel that the judge, of his own motion rather than the Crown, raised the question of revocation of bail. The judge had been following the evidence closely and obviously thought that it was time to act. The judge heard full submissions from the appellants as to the proposed revocation of bail. The continuance or revocation of bail is a matter for the trial judge. Even if the judge made an incorrect determination as to bail, this does not mean that he was biased or that what had occurred gave rise to a reasonable apprehension of bias.

305 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. While the evidence showed that Joseph was the dominant member of the enterprise and the principal decision maker, the two brothers acted in close liaison. 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.

306 In R v Masters & Ors (1992) 59 A Crim R 445 this Court held that where prior to the commencement of a trial the judge who was to preside revoked the bail of one of the accused and, in the course of doing so found he was an unsatisfactory witness, that judge was not acting in a way amounting to pre-judgment requiring him to disqualify himself to avoid apprehension of bias. This was so even though that judge had no power to revoke bail.

307 The appellants submitted that this Court should look at the conduct of the judge overall. I agree. That was urged on the last application to the judge. The real difficulties facing the appellants lay in the evidence. 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. The judge was forthright and expressed his views strongly but he heard submissions in opposition to the opinions which he had expressed and then gave a final ruling. If a judge, having heard the evidence of the principals holds certain views it is better for him to tell the parties so that they can address him on such matters.

308 There has been no miscarriage of justice.

309 Each appeal against conviction should be dismissed.

310 Applications for Leave to Appeal against Sentence

I agree with what Dowd J has written as to these applications.

311 I regard these cases as bad examples of the offence of demand money with menaces. The demands and threats of the Antouns continued over some months. They culminated in June 2001 when they organised the visit of the Aboriginal people and ensured that Savvas visited them with $8000. More moneys were required. The underlying strategy of the Antouns was to let Savvas know that if he did not meet their monetary demands they would ruin his business by destroying his customer base, that is, normal customers would not come and would not stay because of the sorts of people the Antouns arranged to go to the Daintree and their associated conduct. Savvas felt compelled to sell the business. Obviously the conduct of the appellants and what it produced could bear upon the takings of the business and its sale value. It must not be overlooked that when Savvas attended the meeting of 22 June 2001, Joseph frisked him to see if he was wearing a listening device and took the licence which he had.

312 The effect of the conduct of the Antouns was to let Savvas know of the major economic loss he would suffer if he did not pay the moneys which were demanded. That is very serious.

313 I agree with the orders proposed by Dowd J.

**********

Last Modified: 08/16/2004

Citations

R v Joseph Antoun, R v Antoine Antoun [2004] NSWCCA 268

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CITATION:	R v Joseph Antoun, R v Antoine Antoun [2004] NSWCCA 268
HEARING DATE(S):	7 June 2004
JUDGMENT DATE:	16 August 2004
JUDGMENT OF:	Dowd J at 1; Hislop J at 116; Smart AJ at 117
DECISION:	Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence of Tony Antoun and Joseph Antoun dismissed.
CATCHWORDS:	Apprehension of bias - judge alone trial - verdict on conviction - not unreasonable - claim of right
LEGISLATION CITED:	Bail Act 1978 Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Security Industry Act 1997
CASES CITED:	Browne v Dunn (1893) 6 R 67 Johnson v Johnson (2000) 201 CLR 488 Johnson v Miller (1937) 59 CLR 467 Livesey v NSW Bar Association (1983) 151 CLR 288 M v R (1994) 181 CLR 487 R v Fuge [2001] NSWCCA 208 R v London County Council; ex parte Empire Theatre (1894) 71 LT 638 R v Masters, Richards and Wunderlich (1992) 59 A Crim R 445 Re L; Ex parte L (1986) CLR 342 at 352 S v R (1989) 168 CLR 266 Seymour v ABC (1989) 19 NSWLR 219 Vakuata v Kelly (1989) 167 CLR 568 Watson; ex parte Armstrong [1976] 136 ALR 248 Webb v R; Hay v R (1994) 181 CLR 41 Winningham v R (1995) 69 ALJR 775 Zanetti v Hill (1962) 108 CLR 433
PARTIES :	Crown Joseph Antoun Antoine Antoun
FILE NUMBER(S):	CCA 60046/04; 60047/04
COUNSEL:	Crown: Mr B Knox SC Appellant: Mr P Byrne SC
SOLICITORS:

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1093
LOWER COURT JUDICIAL OFFICER :	Christie QC DCJ