R v Joseph Antoun, R v Antoine Antoun

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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?”

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.

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.

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.

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. His Honour: In my view it cannot.

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.

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.”

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.

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.”

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.”

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.

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: I do not think it could be contended sensibly that the learned trial judge approached the question of revocation of bail with anything like the particularity required by what is explained in the passaged quoted from the judgment of the Court of Criminal Appeal in Winningham v R (unreported NSWCCA, 10 May 1995). A reasonable coupling of what is said with the way in which the matter was dealt with in the High Court [ Winningham v R (1995) 69 ALJR 775], seems to me to lead as a matter of course to the conclusion that the deficiencies in the way in which the learned trial judge dealt with the bail revocation question did entail that a fair minded observer might reasonably have apprehended or suspected that his Honour had prejudged, or might prejudge, the cases then before him.

Sully J went on to find, at pp 19 –20: In all of the circumstances, I think that the foreshadowed ground of appeal to the Court of Criminal Appeal has such evident prospects of success as would bring it within the category of ‘special or exceptional circumstances’ as referred to in s30AA ( Bail Act 1978). It should be remembered throughout, in my opinion, that what was at stake in connection with any proposal to revoke bail was not some trifling consideration, but a matter touching in the most direct and adverse way upon the liberty of the subject.

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.

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): In a series of recent cases the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question in issue. The quoted words in that statement of the test are taken from the judgment of the Court in Livesey v NSW Bar Association . In that case, and in a number of the other cases, the test was stated in terms of an apprehension on the part of "the parties or the public". So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

I would reject this ground of appeal as no bias has been demonstrated. Ground 2

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.

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.”

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.

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.

The Crown, after the no case submission, said at T235.16-20 that: ”I just want both my learned friends to be well aware of the fact that the $8000 is only part of the money that the Crown says the accused demanded with menaces from Mr Savvas…”

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.

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.

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.

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.

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.

I would therefore dismiss this ground of appeal. Ground 3

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.

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.

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).

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.

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.

I would dismiss this ground of appeal. Ground 4

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

I would reject this ground of appeal Application For Leave to Appeal Against Sentence

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

HISLOP J: I agree with Smart AJ

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.

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.

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.

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)

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.

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).

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."

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.

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.

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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."

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: "And depending on how you treated me today … I was gunna hit you for a hundred grand or keep attacking you there until it's worth nothing or I was gunna give you the courtesy of sayin', forget it … you've done well to-day …"

After some further exchanges in which, amongst other things, Joseph Antoun extolled the virtues of what he had done he said: "… We'll call it quits today, Um next week, I'll have more time, I'll think about how we gunna to do it." and "… Alex is in gaol. We'll work somethin' out so you can help him out a bit and um, we'll probably give Tony some spendin' money … it's gunna cost you a month or two's work, and we're out of the picture. …" The matter was left on the basis that the two men would hold further discussions.

In cross-examination Mr Savvas agreed that he had not previously had experience as a nightclub proprietor. Big Time Promotions approached him to run some theme nights. They took the proceeds from the door and he took the proceeds from the bar. Under a nightclub licence static security has to be provided. He dealt with Toni Raciti and Len Salvaggio from Big Time Promotions who ran nights which attracted the Italian community and which were very popular. As the nights became more popular they attracted a bad element or the type of persons Mr Savvas did not want coming to the premises. The group, who set up their own spot, in the club near the bar were "touching up" young women and intimidating other patrons by their presence. Eventually fights were being started. Mr Savvas spoke to Messrs Salvaggio and Raciti about problem groups at the club but denied that the problem group was specifically a Lebanese group They discussed security and Mr Savvas added dog handlers and dogs out the front of the premises at his own expense.

Mr Savvas denied that Mr Raciti suggested they use Alex Shalala who had influence and connections with the Lebanese community to provide the extra security needed. Mr Savvas also denied that he understood that Mr Shalala would provide this extra security for Big Time Promotions. Mr Savvas said that he had seen Mr Shalala out the front of the Daintree on one occasion and did not know of Mr Shalala going into the club and just mingling with the crowds as part of security. Mr Savvas remembered meeting Mr Shalala and his wife on one occasion away from the Daintree and that Mr Shalala had a cast on his foot and was limping. When they spoke they did not speak about security matters. Mr Savvas denied that he was aware that Mr Shalala was providing protection/security as to Big Time Promotions and the Daintree.

Mr Savvas denied that he knew that both the Antouns at one stage were working for Mr Shalala before he went to gaol and also denied that he was aware that the Antouns had taken over from Mr Shalala after he had gone to gaol.

It was conceded by the Crown during Mr Savvas' cross-examination that he had told the police during one recorded interview that he had never met or spoken to Mr Shalala. Mr Savvas said that the correct position was that he had met Mr Shalala once. It also appeared that at the committal proceedings Mr Savvas said of Mr Shalala "He's been down to the restaurant I'd say twice." Mr Savvas was cross-examined at some length about how many times and whether he had met him inside the Daintree. Apparently part of the Daintree included an external forecourt. It was Mr Savvas' evidence before the judge that he had met Ms Shalala once and that was in the external forecourt or foyer of the Daintree.

Mr Savvas said that he only became aware that Big Time Promotions was paying Mr Shalala $1250 per week when Mr Tony Antoun asked him to pay $1250 per week after Big Time promotions had ceased dealing with him (Savvas). Mr Savvas said that the only company that was doing security for him was Rock of Ages through Mr Tony Vaha. Mr Savvas said that if Mr Shalala was engaged to look after security outside the Daintree it was not on his behalf.

Mr Savvas was referred in cross-examination to evidence he had given in the committal proceedings to the effect that both Mr Raciti and he were concerned about Lebanese gangs and that he had left security to Messrs Raciti and Salvaggio. Mr Savvas agreed that when he and Mr Raciti (Big Time Promotions) discussed security he was told of the fee of $1250 for security being paid to Rock of Ages. He said that subsequently (after Big Time Promotions had left) he learnt from Mr Tony Antoun that $1250 per weeks was for protection.

Mr Savvas agreed that in one of their conversations Mr Joseph Antoun made it clear that all he was seeking was back payments for some months of $1250 per week because he had not paid since Mr Raciti stopped paying him. This was said by counsel to emerge from the conversation on 22 June 2001. Mr Savvas denied that Mr Joseph Antoun had demanded a similar amount of money at an earlier meeting. However Tony Antoun had made such a demand.

Mr Savvas said that up until the time he went to the police Mr Tony Raciti never suggested that he was paying $1250 per week for protection.

In cross-examination (T112) this passage appears: "Q. And he [Joseph Antoun] was looking for you to payments because Big Time promotions had withdrawn from the scene? A. Yes Q. And in essence he was complaining to you and looking to you for payment about past services? A. And future services. … Q. He made it clear to you that what he wanted from you was $8000 for past services and that's all he wanted from you? A. No. Q. The $8000 Mr Savvas was for a past debt and that's all, wasn't it? A. The $8000 was yes."

Mr Savvas explained that when Mr Joseph Antoun said, "I was gunna hit you for 100 grand" he (Savvas) understood that Joseph Antoun was going to hit him for 100 grand out of the proceeds of sale of the business. Mr Savvas said that he wanted the Antouns out of his life. He had not had any business dealings with Mr Joseph Antoun.

Admitted in evidence were pages 40-46 of the transcript of 20 June 2002 of the committal proceedings, part of the cross-examination of Mr Savvas. This passage appears: "Q. The figure he [Joseph Antoun] gave you was a total amount, wasn't it? A. Correct. Q. Eight thousand dollars? A. Correct. Q. For previous services or protection? A. Correct. Q. And he was looking to you for that $8000 wasn't he? A. It was a payment in arrears sort of say. … Q. … from what Mr Antoun told you, he left you in no doubt that he was seeking payment from you in the amount of $8000 for services rendered which were in arrears? IRELAND (Crown): At what stage? Q. At the time he spoke to you about the 8000? A. Correct and the future payments as well that I was to meet the future payments."

Thus from the committal proceedings the appellants were made aware that it was being claimed that the demand was for $8000 and future amounts, even though the latter were unspecified. Of course, the terms of the taped conversation of 22 June 2001 give some idea of what Mr Joseph Antoun had in mind.

These points emerge from Mr Savvas' evidence and the transcript of the conversation of 22 June 2001. Firstly, he never agreed expressly or impliedly to pay either Mr Shalala or Mr Antoun $1250 per week either for security or protection. Secondly, the Antouns never suggested Mr Savvas did. Mr Joseph Antoun described Mr Savvas as being indirectly responsible. The organisation with which the Antouns had dealings was Big Time promotions. Thirdly, the business relationship between Big Time Promotions and Mr Savvas ceased early in 2001. Fourthly, at no stage did the Antouns approach Mr Savvas and ask him to take over the contract or arrangement they had with Big Time Promotions. Fifthly, on the evidence of Mr Savvas there was no basis for any claim of right by the Antouns and no basis on which they could believe they had any claim of right. They could not but appreciate as a matter of ordinary business practice and dealing that they had no claim of right and no vestige of a claim of right. What they advanced was an obviously spurious claim to $8000 and further moneys.

The materials show that from an early stage (ie, the committal proceedings) it was the evidence of Mr Savvas that there had been a demand for $8000 and future moneys.

Snr Cons Searl gave evidence of the arrest of Antoun on his leaving premises known as 822 George Street by the Lttle Regent Street glass doors on 22 June 2001 at about 4.35pm. Snr Cons Searl had seen Mr Savvas enter those premises about 4.08pm and leave them about 4.25pm. Snr Cons Searl saw a brownish coloured bumbag on the roadway. It contained a large sum of money. Snr Cons Searl searched Joseph Antoun and removed a large number of $100 notes from a pocket of his jeans totalling $8000.

Peter George Karayiannis, the former bar manager of the Daintree gave evidence of the occasion on which five young men entered the Daintree and threw chairs and kicked tables, forcing five female customers to endeavour to flee.

Tofavaha Tuifua first commenced at the Daintree in 2000 prior to the Olympics. He was engaged by Tony Raciti and Lenny Salvaggio as a security guard. He had ten security guards working with him. They worked on Friday and Saturday nights for about six or seven hours each night. His employment ceased when Mr Raciti and Mr Salvaggio left the Daintree. This was some weeks after the Olympics. The night club was closed. Mr Tuifua organised and recruited the security guards. He said that he provided bouncers. That was all the security. From an early stage of his employment people of Middle Eastern appearance started to come to the Daintree. Mr Tuifua said he stopped them outside and did not allow them into the café. However, some of them knew Mr Savvas who let them in on one occasion. There was some tension because Messrs Raciti and Salvaggio did not want these men admitted. A group of Lebanese men gathered at the bar and they intimidated people who came to the bar. Decent people did not want to go to the bar. There was a loss of turnover. Mr Tuifua said that he decided to stop these men. The problem continued for two or three weeks as they came back. Eventually the Lebanese group stopped coming to the Daintree.

Mr Tuifua said that after Messrs Raciti and Salvaggio left Mr Savvas asked him to continue and he did so, providing bouncers. There were always problems when the different types of boys (islanders) became drunk and started an incident.

Mr Tuifua had known Mr Joseph Antoun for about five years and prior to working at the Daintree. He recalled an occasion when Joseph Antoun came to the Daintree with about five or six men.

Mr Tuifua said that he had known Mr Shalala for as long as he had known Mr Salvaggio, that is about 10 years. Mr Shalala asked him about the problem with the boys at the Daintree and he (Tuifua) told him that the boys were coming to the club in large numbers and intimidating the patrons. Mr Shalala told Mr Tuifua that he would speak to these boys and everything would be all right. A few weeks after that conversation Joseph Antoun, with a number of other people, walked around inside the Daintree and walked out. They did not cause any trouble. Mr Tuifua did not recall Mr Antoun, either alone or with others, coming to the Daintree on a number of other occasions. At that time Mr Tuifua had security guards in four clubs, including the Daintree. He divided his time between the four clubs.

Mr Tuifua stated that the visits by the group of Lebanese boys between 18 and 30 "stopped way before" the visit of Joseph Antoun and his group of boys.

Anthony Raciti gave evidence of conducting with others nightclub events at the Daintree. The venue owner was Mr Savvas. Mr Raciti said that his group was responsible for the security for the events which they held there and used ROA (Rock of Ages) Security. Security guards were provided at the Daintree on the nights on which events were held. The number of guards required varied from night to night. In early 2001 (January/February) his group ceased holding theme nights or holding venues at the Daintree because of dwindling patronage and numbers. Mr Raciti told all those associated within a couple of days after the last event in early 2001. Those told included Messrs Savvas, Tuifua and Joseph Antoun. Mr Raciti explained to Mr Antoun "Our particular nights are a bit quiet and we've run our course". Mr Raciti said that the Antouns had, on the nights they held events at the Daintree, provided a very tough security type service at a cost of about $1250 per week.

Mr Raciti on being told by Mr Salvaggio that there were serious problems at the Daintree and that gangs, criminals and undesirables were getting into the place, arranged for Shalala to rid the place of the predominantly Lebanese gangs. Shalala mentioned that he would speak to Joseph Antoun. The fee was $1250 per week and it came out of the takings of Big Time Promotions. Mr Raciti added, "But the venue owner assisted us by paying for the sound and lighting in lieu of contributing to the cost of the special security. This was to avoid a mish mash of payments."

Mr Raciti said that he did not pay Mr Antoun any money after ceasing to hold promotions at the Daintree. After leaving the Daintree Joseph Antoun contacted him and complained that he was not being paid his money. Mr Raciti told Mr Antoun that he was very surprised that his fees were not being paid. Mr Antoun complained that Mr Savvas was ignoring him.

In his statement of 31 March 2003 Mr Raciti said: "A few weeks after leaving the Daintree Café Joe Antoun contacted by phone and said to me that he had sent his brother to speak to someone at the Daintree Café about the service and payments. He was told to come back next week. I remember saying to Joe Antoun to go and sort if out with Michael Savvas as I did not perceive there to be any problems with the ongoing arrangements."

Mr Raciti said that after deciding to leave the Daintree he had a conversation with Joseph Antoun and Mr Tuifua in which he told them that he was leaving the Daintree and that they should speak to Mr Savvas as to the ongoing service.

Mr Shalala was understood to have rid the Daintree of its problem with Lebanese groups by going there with others spasmodically and creating a presence. His intermittent presence continued the security safeguards. Rasciti was aware that when Mr Shalala went to gaol on 8 June 2000 Mr Joseph Antoun took over as the principal.

Mr Raciti said that he discussed with Mr Savvas the new extra security arrangement involving Mr Shalala, that they had a joint problem and they adjusted the arrangement so that Mr Savvas took over the sound and lighting and Big Time Promotions paid for the extra security for Shalala's people.

Mr Raciti stated that after Mr Shalala went to gaol $1000 per week was paid to Joseph Antoun and $250 per week was paid to Alex, the de facto wife of Shalala. The services continued under the management of Joseph Antoun until Mr Raciti left the Daintree in January/February 2001. After Mr Raciti left the Daintree he did some paid consultancy work for Mr Savvas. Mr Raciti said that if a venue has security problems it was common practice for there to be ongoing security services.

Mr Raciti said that he told Mr Savvas of Joseph Antoun's complaints of non-payment and being fobbed off. At one stage Mr Raciti advised Mr Joseph Antoun that if he did not continue to provide the security service it would make it even more difficult to get his money. Mr Raciti said that while there were a number of meetings between him and Mr Savvas and him and Joseph Antoun there was but one occasion when there was a meeting involving the three of them until he left the office. This was on 22 June 2001.

Constable O'Keefe gave evidence of keeping Antoine Antoun under surveillance as he walked across George Street towards MacDonalds and entered Regent Street, He was arrested and mobile telephone 040 100 6562 was found on him. It was not contended that this was the mobile telephone of Antoine Antoun.

The Defence Case Antoine Antoun stated that he left school when he was aged 14. He had had relatively little education and had done labouring work. He met Shalala a long time ago, sometime in the 1980s. Antoine Antoun said that in about February 2000 Shalala introduced him to Mr Savvas. Antoine Antoun had been told by his brother, Joseph, that he would be collecting money from Mr Savvas. Antoine Antoun said that thereafter he went to Daintree during his lunch break and collected money from Mr Savvas. This began before the Olympics. Initially it was $1250 but subsequently it was $1000, $800. Antoine Antoun said that he went to the Daintree at least five to six times. Antoine Antoun reported the reduced amounts to his brother, who spoke to Mr Raciti. Antoine said that he then started getting the money from Mr Raciti as Joseph did not trust Mr Savvas. There was a break during the Olympics as Mr Savvas rented out the Daintree and they were told in advance their services would not be needed. After the Olympics Antoine went to Mr Raciti's office at Leichhardt to collect the money.

Antoine said that after a short period Mr Raciti stopped making payments and said that the Antouns had to go and see Savvas because he (Raciti) was no longer working with Mr Savvas.

Eventually, Antoine managed to contact Mr Savvas and arranged to see him. Antoine said that the first time he went and saw Mr Savvas it was in the daytime. Mr Savvas said to him, "Give me time … my business is low and I'm not going anywhere. I'll pay the money". Antoine stated that he replied. "No. you got to – if you don't want us to help you then you tell my brother, but you have to pay the debt". Antoine said that Mr Savvas always said, 'I'll pay it. I'm not going anywhere". Mr Savvas told Antoine to come back in a couple of weeks and he would work it out.

Antoine said that he returned as suggested. At that meeting in Mr Savvas' office Antoine asked Mr Savvas, "What happened to our money?" Mr Savvas is said to have replied, "Give me a bit of time … I've got no business at the moment. I'm going broke but I will pay the money". Antoine said that he told Mr Savvas that if he did not want to pay and if he wanted something else he would have to talk to Joseph and that Mr Savvas replied that he would make a time. They did so but Mr Savvas did not attend.

Antoine denied that the first time he had met Mr Savvas was in late March 2001. Antoine said that he did speak to Mr Savvas on the telephone during 2000. As to the telephone conversation at 1424 hours on 14 June 2001 Antoine said that this was with his brother. Antoine said that he did not know exactly what his brother meant when he remarked, "Yeah something happened". When Antoine asked, "What do you mean?", he wanted to know what happened. He thought that this was a reference to the time when the Aborigines went down to Darling Harbour.

As to the conversation on 19 June 2001, Antoine said that he was bringing a message from his brother Joseph that he wanted to see Mr Savvas on Friday and that Mr Savvas was to bring $8000 with him. This was a debt due by Savvas for what he (Antoine), his brother and his friends did to help Mr Savvas clean the place up. Antoine said that he wanted Mr Savvas to work out the question of payment with his brother, pay what he owed and finish the matter.

Antoine was referred by counsel for Joseph to a series of telephone calls during 2000 between a telephone number to which Antoine had access and a telephone number which Mr Savvas used. Antoine insisted that he had spoken to Mr Savvas.

Antoine said that he first met Mr Raciti in late 2000, just before the Olympics. His brother had introduced him. Antoine told of the difficulties he was having in obtaining money from Mr Savvas and it was arranged that Mr Raciti would make arrangements with Mr Savvas and give them the money for their work for the Daintree.

When pressed by the prosecutor as to when this conversation took place, Antoine replied, "Well before the Olympics I'm not sure". In cross-examination, while Antoine said that Mr Savvas did give him money when he went to collect it at the Daintree he (Antoine) did no business with Mr Savvas. Antoine said that Mr Raciti never spoke to him about a business relationship he (Raciti) had with Mr Savvas. He thought that his brother had mentioned a business relationship he had with Mr Raciti. On being asked to specify when Antoine replied, "It was when he first started, year 2000 sometime", that is, "When this whole thing first started". By that he meant when he started going down to the Daintree. He said that he was talking about the time he met Savvas with Alex Shalala, that was the first time he went down there. Antoine seemed to shift his ground while being questioned.

Antoine said that he did not have business with Raciti or communication with Raciti. He could have been present when Raciti told Joseph that Big Time Promotions was no longer going to conduct theme nights or hold venues at Daintree and to speak to Savvas as to the ongoing service. Antoine said his brother told him about this and that Savvas would pay the money. Antoine said he did not have any conversations with Savvas about him and his brother providing any service to Savvas. Antoine agreed that Savvas did not owe him any money but insisted that he owed his brother $8000.

This passage appears in Antoine's cross-examination: "Q. When you said, 'walk away' you meant that there'd be no further, Michael Savvas had a choice, he didn't have to have any further dealings with you and your brother, is that right? A. Well I meant to talk to him and agree with him. Q. 'Sort it out', 'walk away'? A. Walk away yeah like there's no problem. Q. That if he paid the $8000? A. Then there'd be no problem, whatever. Q. He could just walk away? A. Just - and agree with him, walk to him and walk away. Q. No further payments would be required? A. I meant talk to him and agree with him. Q. And no further payments would be required? A. Walk away. I don't know what the agreement's going to be. HIS HONOUR: Q. I think what the lady's asking you sir is what did you mean by the words 'Walk away', is that the question? A. Walk away, there's no problem, there's no threat, there's no problem, there's no – that right you just walk away, talk to him and walk away, I just wanted to put him at ease, make him – didn't mean anything by it. HIS HONOUR: Q. I'm sorry say that again sir? A. All I meant is just walk away there's no problem. CROWN PROSECUTOR: Q. No further payments would be required? A. That's not what I said."

Antoine was careful not to agree that no further payments would be required.

Antoine agreed that he collected $1250 per week from Mr Raciti's office at Leichhardt after he stopped picking up the money from Daintree. Antoine said that he never demanded $8000 and said that he never threatened Savvas but just asked him to pay the debt. Antoine denied saying to Savvas "Consider a pay out" and that Savvas replied, "Pay out for what".

Antoine agreed that he and his brother organised for the Aboriginal people to go around to the Daintree. He took them (or one of them) down there to show them (or him) where Savvas was. He claimed that they were supposed to talk to Mr Savvas, not to do what they did. They were to get some of the money. He did not know that they were going to throw chairs around. Antoine denied that when his brother said, "They went in, the thing happened," he understood that the Aboriginals had trashed the Daintree. He learnt that this had happened subsequently. Antoine denied that he had arranged to pick up the Aboriginal people after they had been to the Daintree. He also denied telephoning Savvas on 15 June 2001.

Joseph Antoun gave evidence that he had known Shalala "for about 20 years off and on" and that Shalala asked him if he could help him do some work for the Daintree Nightclub. Lebanese men in packs of tens and eights were being a nuisance and causing a loss of business. He thought Shalala told him that they had threatened Savvas and harassed the bouncers and women there and picked on the men Shalala agreed to help. Shalala said he was being paid $1250 per week and because he lived so far away he did not want to do any of the work and wanted him (Joseph) to handle it and send him a couple of hundred per week. Joseph understood it was an ongoing problem.

Joseph said that Shalala introduced him to Raciti at the Apia Club saying he was one of the partners. Joseph and Shalala went to the Daintree on one night and Joseph was introduced to Savvas. This was in about February/March 2000. They went upstairs and Savvas pointed out the troublesome group, the members of which were all over the place and in the way of other people. Savvas did not want them there. The group comprised men aged between 18 and 25, of middle Eastern appearance. Joseph went and spoke to them. He was rejected and told to leave them alone.

Joseph then gathered over the next three or four weeks groups of males who visited the Daintree with him in a sign of force at different times of the night and early morning. During that period he was paid, with Antoine collecting the money in cash from Savvas. After a period and on two occasions Antoine was paid only part of the amount of $1250, for example $800, $1000. Savvas had already said to him that he and his friends did not look good in the Club and asked if he could work outside the premises. By that time the original Lebanese gangs had stopped coming. Joseph said that he agreed that there was no reason for him or his group to remain inside the Club.

Joseph said there was a change of arrangement as to payment. He told Raciti that Savvas was messing them around. Raciti told Joseph that he would give him the money every week and that he (Raciti) would get the money off Savvas. For many months after that Antoine collected the moneys from the office of Raciti and Salvaggio.

Joseph said that Raciti's company had gone from staging events every week to once a fortnight and then once a month. In the meantime Raciti was still collecting Joseph's money. By the time Raciti had told him that he had finished staging events he or the Daintree was already indebted to him, he thought, for two weeks. Raciti said that he would no longer be taking care of Joseph 's money and that Joseph would have to see Savvas.

Joseph said that Savvas did not tell him to stop work and that he continued to do the work at Daintree although he was not being paid. There were two reasons for so doing, first, Raciti was 110 per cent sure that Savvas would pay and, secondly, Savvas told him (Joseph) that he would pay. This was through Antoine and also Savvas said to him (Joseph) "I'll take care of it, you've just got to give me time."

Joseph said: "… but by the time Tony Raciti left, I think it would have been about February somewhere – maybe mid February or something and it was maybe the following weekend that I seen Savvas and he said, 'There's no problem.' He would take care of it." Joseph explained the security work he did thus: "When [Savvas] said don't come in, it wasn't like don't ever come in, it was stop being here all the time … but we still did once every so often, maybe month, maybe every two, I take a bunch of guys, go in there and just basically be there." As to patrolling outside Joseph said: "Well I used to go there in the evenings. I'd always go with a couple of friends. I'd make a point to tell bunches of guys. What happens, an area's got locals and people start going there, they start seeing people there and people started to know me. I started to know them. I see them getting too many, too close. I'd say, 'Look don't come here, don't bunch up here, you'll bring me trouble you know this is my place'."

Joseph said that he was told that he would not be needed during the Olympic Games and a few weeks after. The Daintree was being hired out. After the Olympic Games were over he continued with the work which he had been doing. Joseph said he spoke with Raciti about Savvas not paying and withdrawing but Raciti advised him to continue what he was doing, adding "that way you're doing your job, he can't not pay you and he won't."

Joseph said that up to and during March 2001 an Aboriginal man called Noy had assisted him with the Daintree. Noy had become increasingly unhappy by about March 2001 about not being paid and was sceptical and annoyed when Joseph told him that Savvas had not paid. Joseph said that he invited Noy to come with him to the Daintree. He declined. Prior to 14 June 2001 it was arranged that Noy would send one of his cousins or somebody. The matter had come up several times and finally just before 14 June 2001. Joseph said that he asked his brother to show Noy's cousins where the Daintree was and that arrangements were made from there. Joseph believed that a visit by Noy or one of his cousins might assist him (Joseph) in obtaining his money. He did not tell them to break furniture but he was sure that they would be unwelcome, adding "… well most people wouldn't go there if they saw a group of Koori men drinking and carrying on." Joseph said he neither told them not to cause damage or to cause damage.

Joseph said that maybe he said that he understood Big Time does not do the promotions any more but that the protection was for the venue not the promoter, that they had not been paid for a while and that if you (Savvas) don't want to continue the services you need to pay them out. Joseph said that he did not know whether he said this.

Joseph gave this version of the conversation on 17 June 2001 with Savvas: "A. I went and asked him why he hadn't paid me yet and he gave me some story that there was no business or this, or there was a sob story about not having money and I said 'How come you've been avoiding me?' and he said he hadn't and by then the sum was $17,000 and I told him I wanted my money and he said he – there was no business again and he didn't have it and I told him I would cut a deal with him. I didn't want the headache –"

The prosecutor interrupted with an objection which disrupted the flow of the evidence. On the evidence resuming this was said: "STEIRN: Q. Can you recall precisely the conversation that you had with Mr Savvas on 17 June? A. No precisely no (sic) Q. Did he make any agreement? Did you speak to him about the debt? A. Yes I told him I think it was $17,500 and he said 'There wasn't any business' and I said I was just sick of it. I just wanted him to pay me out, finish the problem and then he said something and I said 'Look, there's Tony I want to give him something for running around. There's Alex, I want to give him something for running around and I'll cut you a deal and just finish up'."

Joseph said that he and Savvas held no conversation between 17 and 22 June 2001. Joseph said that he met with Savvas on 22 June 2001 to obtain his money, namely $8000 for the work he had done for him between about January and June 2001. Joseph said that he did not threaten Savvas on 22 June 2001 or at any other time. Joseph said that in relation to the payment of $8000 he may have said, "Pay me or I'm going to fuck you up in some way". Joseph understood by the word "threaten", bashing someone and by the words "fuck someone up" leaving that person to the vultures to destroy his business, that is he would leave him to the people he called me to save him from. When Joseph was pressed on what he meant he said, contrary to his earlier evidence, "I never used the words fuck him up, only here."

Joseph agreed that he was initially engaged by Shalala in relation to the Daintree. Shalala approached him about problems at the Daintree. Joseph was not sure when this occurred and suggested February/March 2000, maybe April 2000. Joseph said he met Raciti about a month after the problem was first brought to him. Joseph said that Savvas paid him first and that when he started playing with the money they went to Raciti. Joseph denied that Savvas, whom he described as a liar and a thief, had not paid him.

Joseph agreed that he patted down Savvas to see if there was a listening device on his person as he did not want part of the conversation recorded. Joseph said, "The reason why is because at the time I was on Newstart or whatever they call it, the unemployment payments for one, and for two … I don't have a security licence."

Joseph agreed that he took Savvas' wallet and removed his licence for the Daintree from it. Joseph said that once the money owing to him was fixed up Savvas could have his licence back. Joseph agreed that even after the money had been handed over (and which he had not counted) he did not give the licence back and that he kept it. Joseph denied that he kept Savvas' licence to intimidate him.

Joseph said as to the licence, "I took it to ensure he paid me my money and continued to our deal --" At that point the judge interrupted.

Joseph agreed that he went to the Daintree on the previous Saturday evening with a group which included six or seven people, mostly men, but with one woman.

Joseph was further cross-examined to the effect that in the conversation on 22 June 2001 he had not refuted Savvas' assertions that Joseph had not done business with him. He agreed that he had said, "Indirectly. Indirectly."

This further passage appears in Joseph's cross-examination: "Q. You knew that he, Mr Savvas, had had no business dealings with you? A. That's not true. Q. You had been engaged by Alex Shalala and then Tony Raciti. A . The actual finer points, yes, but Savvas knew. He walked me through his place. He introduced me to people. I introduced him to people."

In cross-examination as to the meeting on 22 June 2000 the prosecutor put to Joseph that in addition to the payment of $8000 he was talking about Savvas making further payments. Joseph responded: "A. To complete – there was Tony who's been running around trying to catch him and see him and there was Alex who hasn't been getting a cent for so many months. Now I already told him previously that he only has to sling each one about five hundred and there's his work."

Joseph agreed that he was asking Savvas to pay more than the $8000. Joseph insisted that it was still less than Savvas owed.

Joseph agreed that when Raciti told him that he was no longer at the Daintree Raciti said that Joseph would have to start getting his money off Savvas. Joseph asserted that Raciti subsequently assured him that Savvas would pay.

Joseph agreed that he told the Aboriginal boys to go and sort it out with Savvas. While he denied telling those boys to trash the Daintree their visit "was to make his business uncomfortable."

Joseph seemed to agree that what he planned (as stated in the conversation of 22 June 2001) was that if Savvas did not pay what Joseph regarded as his debt Joseph was going to attack his business until it was worth nothing.

Joseph finessed a little over what he said on the Saturday evening as he was pressed about it but eventually seemed to concede that he said words to the following effect when he spoke to Savvas; "I haven't been paid since Tony left, protection is for the venue not the promoter, if you don't want to continue the services then you need to pay us out". Joseph said that he would have told Savvas what he owed, that Savvas whinged about lack of business and that in response he (Joseph) said he would cut him a deal, he would cut it down. Joseph confirmed that he said that their meeting must take place the following week, with payment by Friday.

Joseph ultimately agreed that, when he said that he could have shut the club down by now and it is only out of respect for Tony, he was making a threat. He claimed that he would not have shut the club down.

Joseph said that the presence of Noy and his group at the Daintree was attacking it. He had not envisaged a physical attack.

The judge referred Joseph to the transcript of the conversation of 22 June 2001 and Savvas' statement, "I'll give you eight Joe, but you've got to give me assurance" and asked Joseph to what assurance he understood Savvas to be referring. Joseph responded: "… I think he meant that I don't ask for anymore and in that I wanted to collect Alex's and Tony's money and I believe from now that's what I meant, but I'd have to read it all just to check."

The judge asked Joseph this question and received this reply: "Q. Certainly you said you wouldn't give him whatever assurance it was he was seeking and you understand that assurance to be that the eight thousand was the end of it. Do I correctly interpret you? A. Yes sir."

The judge referred Joseph to statements by him to the effect that he could help Alex (Shalala) out a bit, we'll probably give Tony some spending money, the Tony mentioned being Joseph's brother, Antoine, and "what's it going to cost you" (Savvas). The judge asked Joseph, without objection, what he intended to convey by the remark "It's gong to cost you a month or two's work and we're out of the picture". Joseph said that they had already done about three and a half months work and that by the time the whole debt was finished it was only going to cost him about two months work, and that instead of taking three and a half months which was what Savvas owed, he (Joseph) was going to give him two months as all Savvas had to pay him.

Joseph said that the $8000 he received was less than two months and that by the time Savvas had paid for Tony and Alex it would work out to about two months. Joseph added, "Up to that point I knew that he was selling so he was going to be cashed up … Now three and a half months work to cut it down to two I thought was very fair."

The judge also referred Joseph to his statement, "If you add up what wasn't paid up to date, plus what it cost us to set that up Saturday night. It works out at eight," and asked Joseph, without objection, what he was referring to when he used the words "What it cost us to set that up Saturday. It works out to eight." Joseph responded: "The people I took with me – when I take people I usually – when I have to give them money otherwise I buy the drinks and it looks – a group is safer for me to go. So that's what I meant."

The transcript records: "Q. So what it cost you to take this show of force along on the Saturday night A. Yes and – "

Joseph agreed that he sent the Aboriginal people down to the Daintree on 14 June 2001 to intimidate Savvas. Those people being there and drinking was enough. He was hoping they would not be welcome and they would get rowdy and leave. Joseph also agreed that he was hoping that, whatever the Aboriginal people did at the Daintree, they would intimidate and threaten Savvas. Joseph said that he was quite close to the Daintree when the Aboriginal people went in there. He was there to see what they were going to do and the result. He felt responsible for them having been caught.

Joseph said that he did not know if, on the Saturday night, he said "I can make the sale an easy process or a hard one if I choose." Nor did he know if he said that night, "I can get 1000 junkies in here every day if I want to." Joseph said he went to the Daintree on the Saturday night to sort out a situation.

In re-examination Joseph said that after Raciti told him in 2001 that he (Raciti) would no longer be doing promotions at the Daintree and that he (Joseph) would have to collect their money from Savvas he saw Savvas who said, "talk to Tony, we'll fix it up through there." Raciti and Savvas still had a close association.

Stephen Kourgialias, a subcontractor courier, said that around 1999 or earlier, he had formed an association with Raciti and Salvaggio; he was trying to promote nightclubs. He visited the Daintree in early 1999.He knew they had a club there at that time and he went there to see how it was and as a patron. He said that he was introduced to Savvas. He said that thereafter he visited the Daintree nightclub on a regular basis and spent a lot of the time talking to Savvas. On a social visit to the Daintree in June 2000 Savvas introduced him to Joseph and explained that he had a problem at the nightclub with a group of young Middle Eastern or Lebanese men and that Joseph was there as a form of security to handle this problem. On other subsequent occasions he saw Joseph at the Daintree. If he and Savvas were having a drink at the bar and Joseph came into the Daintree Savvas always greeted him. Mr Kourgialis said that he was first asked to recall the events of 1999-2000 about four to five months prior to April 2003. He was at the Downing Centre with a friend on an unrelated matter. Joseph told him he had a legal problem (or some trouble) with the Daintree and asked Mr Kourgialis for his telephone number to pass on to his legal representatives so they could contact him. He willingly passed over his telephone number even though he did not know what Joseph's legal representatives might be contacting him about. Mr Kourgialis said that he had no communication with Joseph Antoun between last seeing him at the Daintree and seeing him at the Downing Centre about five months prior to April 2003. The Crown challenged the correctness of Mr Kourgialis' evidence of being present at the Daintree during conversations between Savvas and Joseph.

John Dasilva said that in April 1999 he began subcontracting with Big Time Promotions. A joint venture came about between the Daintree and Big Time Promotions. He frequently attended at the Daintree and was responsible for setting up the club, made sure everything was working and that the staff were there on time. He also paid the staff. Mr Dasilva said that after New Year 2000 there was a fair bit of trouble with youths hanging around, causing trouble and being loudmouthed. They caused a ruckus. The guards could not control the situation. Most of the youths were Lebanese. Salvaggio and Savvas introduced him to Joseph in about February 2000. Savvas stated that Joseph would be working as security to keep the Lebanese influence out of the Daintree. Mr Dasilva said it was his task to ensure that at the end of the night Savvas received $1250 to pay to Joseph during the week and that the other staff were paid. Sometimes he did not pay the full amount to Savvas.

After about two months the situation changed. Big Time Promotions was running two or three nights per week at different clubs. It decided to pay everyone mid-week. Mr Dasilva said that Antoine, Joseph's brother, used to come to the office in Leichhardt and collect the payment for Joseph. This began about April 2000. Mr Dasilva was told from the office that Shalala was unavailable to work at the Daintree and that Joseph had been hired.

Mr Dasilva said that he did not know which of the two (Salvaggio or Raciti) hired Joseph. Big Time told him about it; they organised it with Savvas. Dasilva did not know much about that. All he knew was when he had to pay Joseph.

Despite the Crown challenge Mr Dasilva insisted that for about the first two and a half months he initially gave the money to Savvas and then, if he could not find him at the Daintree, to one of his managers, the one on duty. He thought that this was about February, March 2000.

Mr Dasilva said that he was contacted about one or two weeks prior to 9 April 2003 and asked on the previous Friday (4 April 2003) to be a witness.

Mr Dasilva said that he was responsible to ensure that they were trading under the rules of the licence held by the licensee of the Daintree, but he was employed by Raciti and Salvaggio.

Miss Tina Salvaggio, who was the sister of Lenny Salvaggio, a principal of the firm Big Time Promotions, gave evidence that she was at the door of the events held by the firm She collected the money and was also in charge of who was admitted. Around February 2000 she was working the door at the Daintree.

About March/April 2000 a problem developed involving Lebanese young men. At one stage Joseph and a couple of others came to the door. After she told him he was not on the guest list Joseph replied that Savvas had invited them. She sent for Savvas. After about 20 minutes Savvas came to the door and authorised their admission. Later that evening Savvas introduced her to Joseph. She saw Joseph at the Daintree a few times after that. She also subsequently saw Antoine come to the offices of Big Time Promotions about May 2000. She was not sure of the month.

Miss Salvaggio said that she was first asked to recall these events on the previous Friday (4 April 2003) by Joseph. She was later contacted by his solicitor. She said that there were lists of regulars, visitors and members.

Appeal Ground Two There was no case to answer and a verdict of acquittal should have been entered on the appellants' behalf.

The appellants contended that if they were correct in their submissions as to the particularisation of the charge and the money said to be demanded was $8000, there was no case to answer as the evidence on the Crown case established that Joseph had a claim of right to this money and that Antoine was asking for this amount on Joseph's behalf.

As previously explained, I do not agree that the Crown case was limited to a demand being made for $8000. The prosecution case from the time of the committal proceedings was that Joseph and Antoine were demanding the amount of $8000 and further moneys including moneys for Shalala and Antoine. See, for example, Exh 2, p42, lines 57 & 58, p43, lines 1-3, p44, lines 15-19 transcript of committal proceedings of 20 June 2002, Exh D, the transcript of the taped conversation of 22 June 2001 and T112 of 2 April 2003, lines 5-7 and 20-23 and the Crown's opening address. The appellants attached great importance to this question and answer from Savvas' cross-examination: "Q. The $8000 Mr Savvas, was for a past debt and that's all wasn't it? A. The $8000 was yes."

However, the evidence as a whole made it clear that while Joseph had asserted that this was a past debt for security provided, Savvas never accepted this was the position. It was the Crown case and Savvas' assertion that he did not owe $8000. When Big Time Promotion withdrew in January/February 2001, Raciti had said that he would no longer pay $1250 per week and that Joseph should see Savvas. Savvas insisted that Joseph had not approached him and secured his agreement.

The appellants submitted that the claim of right was genuinely held regardless of whether or not it was well founded in fact or law and this was all that needed to be shown, and relied on R v Fuge [2001] NSWCCA 208 at [24]. They submitted that it was not to the point that Mr Savvas denied a business relationship with the appellants and that the critical fact was that he acknowledged the existence of the debt. The Crown was entitled to rely on the whole of the material in the Crown case in support of its submission that, taken at its highest there was evidence that the claim of right could not be and was not genuinely held. In my opinion there was such evidence. It is not simply a matter of an accused asserting a claim, however forcefully. In assessing whether a claim of right is genuinely held it is permissible to have regard to all the facts and circumstances, including whether there is in truth a claim of right.

The appellants have isolated and seized upon an answer in cross-examination which they regard as favourable and not had regard to the remainder of the evidence. The appellants did not take the Crown case at its highest.

In my opinion when regard is had to the whole of the Crown case the submission that there was no case to answer lacks substance.

Antoine submitted that even if the Crown case extended to the conversation between Joseph and Savvas on 22 June 2001, there was no evidence that Antoine was part of that conversation or complicit in the conduct involved. There was no evidence that any further demand, if made, was made in furtherance of any common purpose between the appellants. It was submitted that the words "We'll probably give Tony some spending money" recorded in Exh D suggest, if anything, that the appellant was not aware of any request for payment beyond the $8000. It was also submitted in any case, the evidence on the Crown case, if Raciti's evidence was accepted, was that Joseph was owed thousands more than $8000.

I do not accept that Antoine had no case to answer. He participated in arranging the meeting on Friday, 22 June 2001. He was close by when it took place. There was evidence from Savvas that when Antoine called he pressed for a payment of moneys alleged to be due and, when Savvas said that the business was not doing too well, told him to consider a payout and would let him know how much this would be at the next meeting. After the visit of the Aboriginal people Tony Antoun telephoned Savvas and asked if he had received the warning. There was evidence of a closely co-ordinated joint enterprise by the appellants and that Antoine was seeking payment for alleged past services and either payment for future services or a payout in lieu.

Appeal Ground 2 is rejected.

Two further matters should be noted. In ruling that there was a case to answer the judge said that he would publish some reasons, but would not do so that afternoon, as one aspect of the publication of those reasons caused him a modicum of concern which he wished to consider. The judge again referred to the no case submission in giving his reasons for convicting the appellants. He stated (p54 of his reasons): "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."

No request was made to the judge. During his reasons the judge said (p22 of reasons): "One of the reasons that I found there was a case to answer … is that exhibits B and D standing as they were unchallenged, were, prima facie at the very least evidence of a very significant demand having been made, coupled with a very significant threat and containing material which could only go on any reasonable interpretation to negative any claim of right which the accused purported to have in relation to either the money that was extracted at the meeting on 22 June or any other monies. And indeed the submission as to no case to answer was also dependent … upon an acceptance by the tribunal of fact of all of the evidence led by the Crown. There is no obligation on a tribunal of fact …to accept all of the evidence led by the Crown … I have some not insignificant reservations about some of the evidence given by Mr Raciti."

In holding that there was a case to answer the judge was relying on exhibits B and D, the evidence of Savvas and not accepting some of the evidence of Raciti.

While fuller reasons could have been given sufficient reasons appear for the judge holding there was a case to answer. There was evidence before the judge more than sufficient for him to hold that there was a case to answer. He was correct in doing so.

In his final address (T436-438) Senior Counsel for Joseph again raised the question of the particularisation of the Crown case contending that on any fair reading of the Crown opening the only amount particularised was the amount of $8000. The judge declined to deal separately with that submission, encouraging counsel to put the remainder of his submissions. Counsel for Antoine adopted the submissions advanced by Joseph (T456)

Joseph submitted that it was never clarified through a judgment in the trial exactly what case was to be answered by the appellants. From the committal proceedings and the statements at the trial, the Crown made clear the case which the appellant had to meet as I have earlier set out. The claim of inadequate particularisation fails.

Appeal Ground Three His Honour incorrectly applied the rule in Browne v Dunn resulting in a miscarriage of justice.

Joseph submitted that in his reasons the judge listed several matters not put to witnesses as being at least in part the foundation upon which he based his finding of their guilt. The matters so listed and Joseph's comments were: · That Savvas played any part in the organisation of the arrangement between Shalala and Raciti and subsequently the Antouns and Raciti. [It was put that Savvas had requested the services of the Antouns. It was irrelevant to the defence of claim of right whether Savvas played a part in the organisation. It was the belief of the appellants that was the true issue.] · Any challenge to the conversation of 17 June between Joseph and Savvas · The alternate scenario advanced by Raciti (called by the Crown and described by the judge as being "entirely at odds with what the accused and their witnesses would assert to be the situation (pp17-18 & 49) [Raciti's evidence was not entirely at odds with the appellant's case. Raciti's evidence supported their cases. Regardless of this and more importantly there was no obligation on the defence to put the evidence of one prosecution witness to another.] · Inferences or interpretations possibly arising from Exhibit D. [Relevant portions were put to Savvas] · Parts of Exhibit D. His Honour stated "some significant parts of it that were never put to Mr Savvas for the benefit of his interpretation or understanding of what might have been said (p27) [Relevant portions were put to Savvas] · Savvas had prior knowledge of the arrangements between Shalala and Raciti or Shalala and Salvaggio [This was put T77-0-20] · Savvas had prior conversations with the Antouns acquainting him with "all the details of this arrangement that existed" (p18) [This is contrary to Seymour v ABC (1989) 19 NSWLR 219 . There was no obligation to put all the details] · "Virtually nothing put alleging any involvement in the agreement". (p19) [This was put T80, 81, 96, 112; business dealings were also put throughout the cross-examination and denied by Savvas, contrary to the evidence from Raciti, both appellants, Kourgiallis, Dasilva and T Salvaggio] · Exhibits B and D were unchallenged [This is correct, however the meanings attributed to the words by the Crown were challenged] · Ten to fourteen meetings between Joseph and Savvas (p36) [An ongoing business relationship was put to Savvas and denied throughout cross-examination] · Savvas had to pay two months work, a "sling of $500 to Antoine and Shalala [This was part of Exhibit D. It did not need to be put to Savvas as it fell outside the particulars of the demand which was for $8000 only] · "Not a syllable was put about any phone records" (p38, p39, Exhibit 1) [Cf T91.6. T93.14: It was put that the Antouns were phoning Savvas on his mobile phone] · Raciti said he would give Joseph the money and then get it from Savvas [What Raciti said did not need to be put to Savvas]

Joseph pointed out that the judge found that the following was not put to Raciti: · When the appellants stopped collecting from Savvas, they commenced collecting from Raciti (pp43, 49) [This was prior to when they stopped collecting from Raciti and were told to collect from Savvas, and in a period outside the indictment and before the Olympics] · Raciti said he would give Joseph the money and then get it from Savvas [This was in a period not referrable to the charge and relevant to background only.] Joseph complained that during the trial, and prior to Savvas being recalled the judge indicated that there were matters which "on one interpretation [of the case] "were not put to Savvas (T231.46, T233.27) and that the judge declined to alert the appellants to the matters he had in mind as it was a judge alone trial. As the judge said he could not become involved in the instructions counsel had received. The judge found that it was a deliberate forensic decision not to put the phone records in question to Savvas.

While the judge did refer to a number of matters not put to Savvas he was pointing to gaps which existed in the evidence. It is going too far to say that these were at least in part the foundation of the judge's decision. The judge based his decision on the evidence of Savvas and the terms of the taped conversations in Exhibits B and D, which established that demands were made. Those taped conversations took place against the background of earlier demands, the appellants organising the visit of the Aboriginal people to the Daintree, their visit, the damage it caused and the giving of warnings. It was a compelling picture and not the sort of conduct engaged in by people having a legitimate claim or believing they had a legitimate claim. The judge was also concerned that the defence case on the facts shifted during the trial. The judge noted the evidence which was unchallenged and he did not draw an inference of guilt because questions had not been asked or subjects had been insufficiently explored in cross-examination. Some were more important than others. I will comment on some of these matters.

The judge remarked that while it was put to Savvas that he knew what arrangement existed between Raciti and Shalala and consequently Raciti and the Antouns, it was never put to Savvas that he played any part in the organisation of these arrangements. This bore upon whether there was any contractual relationships between Savvas and the Antouns. The judge was illustrating the limits of the evidence.

The judge was correct when he remarked that the scenario advanced by Raciti of him paying the Antouns and Savvas taking over the payment of the lighting and sound, thereby sharing the cost of the extra security, differed from the understanding of the Antouns that Raciti was going to obtain the money for the cost of the extra security from Savvas. That difference existed. The Antouns were under no obligation to explore that with Savvas.

I agree that some portions of Exhibit D were taken up with Savvas. Much of what was said was relatively clear and did not warrant further exploration. Counsel for the Antouns did not know what explanation Savvas might give.

The judge was in essence marking out the limits of the evidence, not drawing inferences of guilt from areas which were not explained.

Appeal Ground 3 should not be upheld.

Appeal Ground Four The verdict of guilty in each case is unreasonable

In support of this ground the appellants relied upon the materials advanced in support of grounds 2 and 3 as well. They further contended that Savvas had been discredited and that the judge had failed to consider the cases against the two appellants separately.

The Antouns pointed out that Savvas at T94 in cross-examination gave evidence that, at the time he went to the police (in about March 2001) his position was that he met the Antouns in February or March 2001 and that through his discussions with either Raciti or Tuifua (Vaha) learnt that they worked for Shalala. He did not believe that he was aware of the Shalala/Antoun connection in May/June 2000.

At T118 in cross-examination Savvas confirmed that he had first met Antoine in late March 2001. Savvas said that he had not first met him in early 2000. He said he did not recall a meeting prior to the Olympics where Shalala introduced Antoine and said that if Savvas was having trouble with the Lebanese gangs to speak to Antoine.. Savvas said that it was not correct that there were a number of occasions when Antoine came to the Daintree in 2000 and received payment from him (Savvas). Savvas said there was a time when he met Shalala and Shalala had a cast on his leg It was possible that he invited him in to the Daintree. Savvas said that this was not in early 2000. To his recollection it was late 2000-2001, if anything. As it was established that Shalala went to gaol about 8 June 2000, Savvas was wrong about the date on which Shalala (with his leg in a cast) met him.

I do not accept that this discredited Savvas substantially. It does mean that a meeting with Shalala took place prior to 8 June 2000. However, it does not establish what was said and agreed at the meeting.

The appellants relied on the mobile telephone records showing that in April, May and June 2000 there was a telephone call from the telephone number used by Antoine to the telephone number used by Savvas. The appellants submitted that these were matters which had to be taken into account when evaluating the denials by Savvas of having business deals with the Antouns. The judge thought that these records were deliberately not put to Savvas. That is a pity. Savvas' reaction could have been important.

The appellants further submitted that Savvas was obviously concerned that it would be contrary to the provisions of his business licence to engage the services of the Antouns for security purposes as they were not licensed to provide security. This was a reason to disavow having hired Joseph. While there is evidence that between 1 January 2001 and 30 June 2001 neither Joseph nor Antoine was the holder of a security licence the terms of the business licence of Savvas were not before the Court. Nor was any analysis of the relevant legislation undertaken at the trial or in this Court.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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

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.

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.

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.

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.

Appeal Ground 4 should be rejected.

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.

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.

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."

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.

The first and second applications. When the Crown case was all but closed and the judge was enquiring as to the expected length of the defence case, Senior Counsel for Joseph foreshsadowed an application the following day for a decision that there was no case to answer. The judge replied, "I see well that application will be refused. So then how long will the defence case take?" Senior Counsel protested that the judge had not heard any submissions by either him or counsel for Antoine. The judge replied, "… I'm simply telling you the application will be refused. I perceive what's in the Crown case, I perceive there's a case to answer".

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."

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."

The judge refused to disqualify himself.

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.

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.

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."

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 …"

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.

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.

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".

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.

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."

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.

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."

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

There has been no miscarriage of justice.

Each appeal against conviction should be dismissed.

Applications for Leave to Appeal against Sentence I agree with what Dowd J has written as to these applications.

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.

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.

I agree with the orders proposed by Dowd J.