Page:Cesan v The Queen.pdf/18

French CJ

more than half a dozen times on each day. He heard snoring. He saw people in the jury smirking and heard giggling "from the jury area". In cross-examination Mr Uribe said that counsel were making submissions on the first day that he attended the trial and that the judge appeared to be asleep while they were talking. He thought that the judge was asleep for periods of five to 10 minutes. He based his opinion that the judge was asleep on the fact that the judge's eyes were closed and the body language that he observed. On a few occasions the lawyers paused and waited for the judge to wake up. Sometimes they just kept on talking.

Catalina Cal was the appellant Mas Rivadavia's sister. She had tried to attend the trial two or three times a week to give support to her brother. When at court she had a clear view of the judge. She noticed that he tended to fall asleep in the afternoons, although she could not remember exactly how many times he fell asleep each day. She saw the associate hitting or striking the bench or making noises to wake the judge up and saw the jury smiling at the loud noises the associate was making. The sleeping periods kept occurring throughout the three weeks she was at the trial. In oral evidence she said she didn't really know how long the judge had been asleep. She knew there were periods of minutes. There were no concessions in her cross-examination.

Magalli Locaputo was Mas Rivadavia's aunt. She attended her nephew's trial about two or three times a week including the day her nephew gave evidence. On that day she heard snoring coming from where the judge was sitting while Mas Rivadavia was giving evidence. The judge had his head down and his eyes closed on many occasions. There were three occasions in one day on which she saw one of the court officers tapping to wake the judge. She did not observe the jury during that time but did notice a woman juror falling asleep on one occasion. In oral examination-in-chief, she said that she had heard the judge snore on a few occasions. He would snore for a short time then wake. Asked about the longest period for which the judge was asleep she said it could have been 10 to 15 minutes but she did not recall. In cross-examination she said on some occasions the judge appeared to be asleep for just a few minutes and sometimes longer than a few minutes.

Prosecuting counsel at the trial, Mr Bellew SC, swore an affidavit in which he referred to the various affidavits that had been filed on behalf of Cesan. He recalled that there were occasions during the course of the trial in which the trial judge appeared to be asleep. He was not able to specify the number of those occasions although he thought it was less than the estimates given in some of the affidavit material adduced for Cesan. He had no recollection of raising his voice or clearing his throat to wake the judge.

It was put to Mr Bellew in cross-examination that his focus was not necessarily on the judge at any given time. He said that when leading evidence from a witness or cross-examining his focus would be on the witness. The