Page:Cesan v The Queen.pdf/21

French CJ

unfair, or, put in the terms of the Criminal Appeal Act 1912 (NSW), that there had been a miscarriage of justice."

His Honour quoted with approval observations made in a judgment of the Court of Appeal for England and Wales in R v Betson. In that case, which involved conspiracy to rob the De Beers Millennium exhibition at the London Dome, the judge had slept, for a time, during the speeches of counsel for two of the accused. The Court of Appeal was prepared to accept that he was also asleep during a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. Their Lordships rejected a contention that he had been asleep on two specific occasions during the testimony of one of the appellants. No point was made of the judge's sleep episodes at trial. There was evidence that the jury had noticed the judge's behaviour.

The argument on the appeal was evidently put on the basis that the appellants had been unfairly prejudiced and that the jury would have formed the impression, in respect of the appellant Betson, that the judge took such a dim view of the defence case, he could not be bothered to stay awake.

The appeal was dismissed on the basis that the judge's sleep episodes were not shown to have led to error. Although observing that it was "highly regrettable" that he had fallen asleep, their Lordships said :

"But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial."

The Court found that it had not been shown that the judge missed, and failed to sum up to the jury, any significant feature of the evidence or speeches on account of his sleep episodes. His summing-up was "comprehensive and balanced, accurate as to the law and detailed as to the evidence". The Court also rejected the contention that the jury was, even arguably, unfairly prejudiced against any defendant having regard to the length of the trial, the full fair and