Citation: R v Joseph Antoun; R v Antoine Antoun [2004] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 16 August 2004
Judge(s): Dowd J; Hislop J; Smart AJ
Background
The two appellants, brothers Antoine ("Tony") Antoun and Joseph Antoun, were jointly charged with demanding money with menaces under s 99 of the Crimes Act 1900, with intent to steal. The complainant, Michael Savvas, operated a nightclub venue known as the Daintree Café at Darling Harbour. The prosecution case was that, from around March 2001, the appellants pressured Savvas into paying for protection services he had never agreed to receive.
The Crown's evidence included recorded conversations obtained after Savvas attended police and agreed to wear a listening device. Those recordings captured exchanges in which the appellants demanded payment, referred to past damage inflicted on the venue, and threatened further harm to the business if payment was not made. On 22 June 2001, Savvas attended a meeting where Joseph Antoun frisked him for a listening device (without detecting it) and took his driver's licence before receiving $8,000.
Both appellants elected a judge-alone trial before Christie QC DCJ in the District Court, which resulted in their conviction. Tony Antoun was sentenced to three and a half years' imprisonment with a two-and-a-half-year non-parole period; Joseph Antoun received six years with a four-and-a-half-year non-parole period. Both appealed their convictions, and both also sought leave to appeal against the severity of their sentences.
Legal Issues
- Whether the trial judge's conduct gave rise to a reasonable apprehension of bias, requiring him to disqualify himself from the judge-alone trial
- Whether the verdicts of conviction were unreasonable or unsupported by the evidence
- Whether a "claim of right" defence was available on the evidence, and whether the trial judge properly dealt with it
- Whether leave to appeal against sentence should be granted, and if so, whether the sentences were manifestly excessive
Decision
Apprehended bias: The appellants argued the trial judge's conduct throughout the proceedings, including comments about witnesses and a bail revocation decision in which he described one accused as an unsatisfactory witness, gave rise to a reasonable apprehension of bias. The Court of Criminal Appeal rejected this argument. Applying the test from Johnson v Johnson (2000) 201 CLR 488, the court found that a fair-minded lay observer, properly informed of the context, would not reasonably apprehend that the judge had prejudged the matter. The judge had expressed his views forthrightly but consistently invited submissions in response before making final rulings. His conduct, considered overall, did not constitute pre-judgment.
Unreasonable verdict: The court found that the verdicts were well open on the evidence. The recorded conversations were particularly significant, capturing the appellants demanding payment and making threats. The trial judge carefully assessed the credibility of the complainant and the competing defence evidence, and his findings were supported by the record.
Claim of right: The appellants argued they genuinely believed money was owed to them for security services previously rendered. The court examined this defence and found the evidence did not support it. The trial judge's rejection of the claim of right argument was consistent with the evidence, including the complainant's denial of any agreement and the terms of the recorded conversations.
Sentence appeals: The Court of Criminal Appeal granted leave to appeal against sentence but dismissed the appeals. Smart AJ described the offending as a bad example of the offence, noting that the campaign of threats and intimidation continued over several months, culminating in the June 2001 incidents, and that the underlying strategy was to threaten Savvas with the destruction of his customer base if he did not pay. The sentences were not found to be manifestly excessive.
Orders Made
- Appeals against conviction by both appellants dismissed
- Leave to appeal against sentence granted to both appellants
- Appeals against sentence by both Tony Antoun and Joseph Antoun dismissed
Key Takeaways
- A judge presiding over a judge-alone trial does not create a reasonable apprehension of bias merely by expressing views strongly during the proceedings, provided the judge hears submissions in response before making final rulings.
- Where a trial judge revokes bail and, in doing so, makes adverse credibility findings about an accused, that conduct does not automatically require the judge to disqualify themselves from the substantive trial for apprehended bias.
- The claim of right defence to a charge of demanding money with menaces requires an honest belief that the specific amount demanded is legally owed; a contested or unsupported assertion of entitlement will not suffice.
- In dismissing the sentence appeals, the Court of Criminal Appeal affirmed that sustained campaigns of threats designed to cause major economic loss to a victim, particularly where accompanied by physical intimidation and organised disruption of a business, represent serious examples of the offence.
- Recorded conversations obtained through covert listening devices, admitted into evidence, can be central to displacing both a claim of right defence and an unreasonable verdict challenge.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 99 (demanding money with menaces)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Bail Act 1978 (NSW)
- Security Industry Act 1997 (NSW)
Cases:
- Johnson v Johnson (2000) 201 CLR 488
- Webb v R; Hay v R (1994) 181 CLR 41
- Livesey v NSW Bar Association (1983) 151 CLR 288
- M v R (1994) 181 CLR 487
- Watson; ex parte Armstrong [1976] 136 ALR 248
- R v Fuge [2001] NSWCCA 208
- Browne v Dunn (1893) 6 R 67
- Vakuata v Kelly (1989) 167 CLR 568
- Zanetti v Hill (1962) 108 CLR 433
- Johnson v Miller (1937) 59 CLR 467
- S v R (1989) 168 CLR 266
- Winningham v R (1995) 69 ALJR 775