Page:Cesan v The Queen.pdf/24

French CJ

5. There were a number of occasions on which the sleeping was accompanied by heavy breathing. There was an occasion during the cross-examination of Cesan when either a court officer or the judge's associate made a noise to wake the judge up.

6. The judge's snoring when Cesan was giving evidence was to an extent disruptive and caused him to look around at the trial judge on two occasions.

7. The trial judge slept during parts of the evidence of Mas Rivadavia but did not snore in a vigorous and audible manner so as to disrupt Mas Rivadavia's concentration.

8. The jury was distracted at least during Cesan's cross-examination, and probably to a degree on other occasions, by the behaviour of the trial judge.

9. Some members of the jury found the behaviour of the trial judge amusing and some emulated his apparent inattention.

Basten JA referred to s 11 of the District Court Act and s 131 of the Criminal Procedure Act. In the context of their combined requirement for a trial by judge and jury, he considered the essential characteristics of such a trial by reference to authorities dealing with s 80 of the Constitution. His Honour identified two principles in issue. The first was a jurisdictional debate about whether the Court was properly constituted. The second invited attention to the content of the process because the judge, by his behaviour, tended to distract the jury or trivialise the proceedings.

His Honour referred to the role of the trial judge in a jury trial and the principle enunciated by the United States Supreme Court in Capital Traction Company v Hof that trial by jury was a trial of an issue by jurors "under the