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French CJ

of unachievable standards. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case. In so saying, it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act.

The standards to which courts are held and to which they hold themselves have become higher in recent times. Lord Steyn, giving the opinion of the Appellate Committee of the House of Lords in Lawal v Northern Spirit Ltd, said:

"What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago."

In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge's function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. It requires no less a standard of attentiveness to the evidence and the conduct of the trial generally than the standard applicable to a judge sitting alone. Indeed, because of the involvement of the jury it requires more.

In Capital Traction Company v Hof the Supreme Court of the United States described the concept of trial by jury in language, which it approved, from the District Court of the United States :