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 direction and superintendence of the court", noting that "[t]his direction and superintendence was an essential part of the trial".

In this context and after extensive review of authority, his Honour found a failure to comply with s 80 of the Constitution. There was therefore no need for the appellants to demonstrate that the conduct of the trial judge led to some consequential error demonstrating a miscarriage of justice.

Notwithstanding the constitutional context of his conclusion, his Honour also characterised the trial as irreparably unfair, citing Gleeson CJ in Nudd. He considered whether the judge's behaviour had the capacity to affect the jury's assessment of the appellants' cases. The proper test was an objective one. Applying that approach it could be assumed that the conduct of the judge would have had two related effects. First, it tended to undermine the routine directions given at the commencement of the trial to listen carefully to the evidence. Secondly, it tended to undermine the likelihood that the directions which he gave to the jury would be taken seriously and carefully applied. They might have been; it was impossible to know. The trial judge's behaviour constituted a distraction. His Honour concluded :

"Accordingly, there was a real possibility that the judge's conduct adversely affected the jury's performance of its function, in a material respect, which was sufficient to render the trial unfair and to deprive the proceedings of an essential characteristic of trial by jury."

His Honour also considered the operation of the proviso to s 6(1) of the Criminal Appeal Act and held that it could not apply because there had been a failure to comply with s 80 of the Constitution. That failure either gave rise to a substantial miscarriage of justice or was one to which the proviso had no application.

The first question in these appeals is whether there was a "miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act. The second question is whether, if there were a miscarriage of justice, it was nevertheless not "substantial" within the meaning of the proviso to s 6(1).