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French CJ

accurate summing-up, the lengthy period of retirement, a pertinent question asked by the jury and "the compelling, powerful evidence against the defendants".

Grove J drew a parallel between Betson and the present case. He rejected a distinction between the unconsciousness of a sleeping judge and the inattention of a judge who is not asleep. He said :

"The posited distinction is between causes, but what should be considered is effect. A judge (or anyone else) whose mind is disengaged from what is occurring by distraction, by deliberate choice or otherwise is as much a non participant as one whose mind has been disengaged by sleep."

His Honour also rejected analogies between a sleeping judge and a judge who absents himself from court during the address of counsel to the jury.

After referring to s 6(1) of the Criminal Appeal Act and observations by Gleeson CJ in Nudd v The Queen about the width of the concept of "miscarriage of justice" his Honour said :

"There has been no identified act or omission of the trial judge which has produced consequence [sic] that is asserted to be different from that which would have occurred if the judge had been bright-eyed throughout the entire process. Of course, as was observed in Betson, it is regrettable if a judge falls asleep or is inattentive but it is the effect not the fact which is crucial. The appellants have pointed to no adverse effect on the canvass of issues at trial nor upon their determination which has been derived from the judge's episodes of dormancy. There has been no failure of process of such a kind as to make it impossible for this Court to decide that the convictions were just."

His Honour went on to consider further arguments based upon s 11(1) of the District Court Act and s 80 of the Constitution.