Page:Cesan v The Queen.pdf/17

French CJ

Although she could not remember exactly what she saw on each separate occasion, she observed at various times at the trial that the judge would cross his arms, sit upright in the chair, begin to slouch a little, close his eyes, and tilt his head slightly forward and to the left. Sometimes he would jerk awake and his eyes would open suddenly, and then he would slowly close them and his head would tilt to the side again. As to the duration of these incidents, she said he would doze off many times, at least four or five during each morning or afternoon session which she attended, and seemed to be asleep for at least five minutes. She believed it was 15-20 minutes when tapes were being played and when counsel were making their submissions to the jury. She could clearly recall the judge being asleep at various times when Cesan was giving his evidence.

In cross-examination she testified about the techniques used to wake the judge. These included counsel clearing their throats or knocking a microphone and a court officer moving and shuffling papers. She claimed in cross-examination that the judge was asleep for most of the trial. The shorter periods were "[p]robably a little bit longer than 5 minutes". At one point she said in cross-examination that the judge "was asleep most of the time, from my observation".

Gabriela Cesan, Cesan's sister, was present on every day of the trial except the first day. In the first few days the judge would sleep for short periods, maybe two or three minutes at a time. As the trial progressed he would sleep for longer periods. If things were dragging on a bit he would sleep for 10 or 15 minutes at a time, and possibly longer. Sometimes she noticed members of the jury looking at the judge, and then looking at each other and then looking back to the judge very intently. She said:

"During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appeared to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury's behaviour when the judge was asleep."

In cross-examination, she deposed to the snoring that occurred when Cesan was giving his evidence. She also deposed to the conversations her mother had with Cesan's solicitor who, according to her recollection, said there was nothing they could do.

Another friend, Juan David Uribe, attended the trial on two days. On the first day he was there until lunch time. On the second occasion he was there for the full day. On both days he saw the judge sleep during the proceedings. It was