Citation: R v Joseph Antoun; R v Antoine Antoun [2005] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 1 August 2005
Judges: Simpson J, Johnson J, Rothman J
Background
Two applicants had each been convicted after a judge-alone trial of demanding money with menaces in relation to conduct between March and June 2001. They were sentenced to terms of imprisonment of six years and three and a half years respectively. Both had been on bail prior to trial and again pending their appeals to the Court of Criminal Appeal, and on neither occasion had there been any suggestion of non-compliance with bail conditions.
Both appeals to the Court of Criminal Appeal were dismissed. Each applicant then sought and obtained special leave to appeal to the High Court, with the appeals grounded on concerns about the trial judge's conduct and whether a reasonable bystander might have perceived bias in the way the proceedings were managed.
With their High Court appeals pending and no confirmed hearing date (the earliest indication was late 2005), each applicant applied to the Court of Criminal Appeal under section 30AA of the Bail Act 1978 for bail pending determination of those appeals.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear the bail applications, or whether a single judge could have dealt with them instead
- Whether each applicant could establish "special or exceptional circumstances" under section 30AA of the Bail Act 1978, as required before bail may be granted where an appeal to the High Court is pending
- What the correct test for "special or exceptional circumstances" is, including whether the strength of the appeal is the only relevant consideration
Decision
Jurisdiction and constitution of the court: An issue arose during the hearing about whether a full bench of three judges was necessary or whether a single judge could deal with the applications. The Court noted that section 22 of the Criminal Appeal Act does not include bail applications among the matters a single judge may determine, but section 4 of the Bail Act defines the Court of Criminal Appeal to include "a judge of that court." The Court concluded there is a reasonable basis to think a single judge could deal with such applications, and flagged that the question would benefit from resolution in future proceedings. The Court proceeded with the three-judge bench in any event, given the applicants' circumstances in custody.
The test under section 30AA: The Crown submitted that bail pending a High Court appeal will only be granted where the grounds of appeal are virtually certain to succeed, relying on the majority in R v Wilson (1994) 34 NSWLR 1. The Court declined to accept that section 30AA is so narrowly confined. Drawing on remarks by Kirby P and Sheller JA in Wilson, the Court confirmed that the merits of the appeal are relevant, but that other circumstances can also satisfy the "special or exceptional" threshold.
Antoine Antoun: The Court granted bail, noting that he would be eligible for parole in less than three months. His compliance with bail conditions on two prior occasions, his limited criminal history, and the real possibility that the appeal may not be resolved before his non-parole period expires all supported the grant. To refuse bail risked depriving him of the practical benefit of any successful appeal.
Joseph Antoun: The Court also granted bail to the first applicant, though it acknowledged his position was more complex. His sentence was considerably longer, his criminal history was more extensive and included serious entries, and he remained more than two years from parole eligibility. Despite those factors, no evidence of non-compliance with previous bail conditions had been placed before the Court, and the same risk of the appeal being rendered futile by continued imprisonment applied.
Orders Made
Joseph Antoun:
- Reside at a nominated address
- One acceptable person to enter an agreement to forfeit $50,000 if he fails to comply, secured by cash deposit
- Report to the Officer in Charge of Marrickville Police Station between 8:00am and 8:00pm on Mondays, Thursdays, and Saturdays, commencing on the day of release
- Surrender any current passport to Marrickville Police Station on first reporting
- Stay away from international points of arrival and departure
- Not apply for any new passport or travel documents
- Be of good behaviour
- Not approach or communicate with any Crown witnesses
- Prosecute his High Court appeal with due diligence
- On the date of the High Court judgment, surrender to the Sheriff of the Supreme Court of NSW
Antoine Antoun:
- Same conditions as above, with residence at a nominated address in St Peters and a surety agreement for $10,000
Key Takeaways
- Section 30AA of the Bail Act 1978 requires an applicant to establish "special or exceptional circumstances" before bail may be granted while a High Court appeal is pending, but that threshold is not confined solely to the strength of the appeal grounds.
- The Court of Criminal Appeal declined to apply the narrowest formulation from R v Wilson, confirming that other circumstances beyond the merits of an appeal can satisfy the section 30AA test.
- Where continued imprisonment would deprive an applicant of the practical benefit of a successful appeal, particularly where the non-parole date falls within the likely appeal timeframe, that consideration is capable of supporting a finding of special or exceptional circumstances.
- A demonstrated history of compliance with bail conditions across multiple prior grants is a relevant factor weighing in favour of bail, even where an applicant's criminal history is otherwise significant.
- The Court flagged, without finally resolving, that the jurisdiction to grant bail pending a High Court appeal may extend to a single judge of the Court of Criminal Appeal rather than requiring a full three-judge bench, and noted the administrative implications of leaving that question open.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 4, 28, 30, 30AA
- Criminal Appeal Act 1912 (NSW), ss 3, 22
Cases:
- R v Wilson (1994) 34 NSWLR 1