Page:Cesan v The Queen.pdf/15

French CJ

other small, but definite, movements. On 3 June 2004, she observed the judge sitting upright but slumped in his chair. His head was slightly forward as if he were reading. He was completely still. He had his arms resting on his desk and his hands clasped in front of his chest. He jerked abruptly when he woke up. On this occasion, he was asleep for about 10 minutes.

Cesan's mother raised the matter with his solicitor in the presence of her daughter and two other friends who also gave evidence to the Court of Criminal Appeal. She asked the solicitor if he had seen the judge sleeping. The solicitor said that 85% of all the judges that her son could have had would have been much worse. This was evidently a reference to judges thought to be less favourable to accused persons. The solicitor told her that the judge fell asleep in court, but there was nothing that could be done about it. She pressed him and he said he would speak to counsel and they would talk about it later. She said that she spoke to the solicitor on at least one other occasion.

Cesan's mother said that the judge fell asleep on practically every day of the trial, sometimes for only a few minutes and sometimes for up to 20 minutes. He fell asleep at least once a day every day. Some days he fell asleep a number of times in the morning and the afternoon. She began to look at her watch to see how long he slept. She was able to say that the time was between five and 20 minutes. On some occasions it would be 10 or 12 minutes, and on some occasions as long as 20 minutes. Members of the jury would smile or shrug their shoulders and look at each other and the judge.

In cross-examination Cesan's mother denied that there were any days that she did not observe the judge being asleep. She acknowledged that she was not at the trial on 31 May. She denied that there was any occasion upon which she thought the judge was asleep simply by reason of the fact that he had his eyes closed. She referred to his posture and immobility.

Ivan Amaro, a friend of Cesan, was present for the majority of the trial. In the early days of June he and a few others had noticed that the judge would slump back in his chair and close his eyes. He recalled joking about the fact that the judge was "just having a nap". This ceased to be a laughing matter as they suspected he was truly asleep. During quiet moments in the courtroom, a light but persistent snoring could be heard. The judge slept for anywhere between a few minutes and up to 20 minutes. This happened at the very least once a day but often more frequently. He described what happened when Cesan was giving evidence as one of the more memorable moments of the judge's sleeping patterns. He heard a loud snore. He saw the judge slumping back in his chair, eyes closed, and arms crossed. Another snore was clearly heard throughout the courtroom. He said:

"What must have been 5–10 seconds seemed to be an eternity as everything and everyone came to a standstill."