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French CJ

"The Constitution secures a trial by jury, without defining what that trial is. We are left to the common law to learn what it is that is secured. Now the trial by jury was, when the Constitution was adopted, and for generations before that time had been, here and in England, a trial of an issue of fact by twelve men, under the direction and superintendence of the court. This direction and superintendence was an essential part of the trial."

The temporary absence of a judge from the court during a trial by jury has been held, in United States cases, to be a fatal flaw in process on the basis that the court ceases to be constituted as a court. That flaw is linked to the indispensability of the judge's presence supervising and controlling the trial :

"A defendant convicted under such circumstances has been deprived of his liberty without due process of law."

It is difficult to distinguish in principle between the physical absence of a judge from the courtroom and sleep episodes which effect substantial discontinuities in the judge's superintendence and control of the trial. If it be accepted that the supervision and control of the trial by the judge is indispensable to trial by jury there is no requirement for present purposes to inquire whether its absence can be characterised as a failure to maintain a duly constituted court capable of exercising federal jurisdiction. Nor is it necessary to inquire whether its absence amounts to a failure to meet the constitutional guarantee of trial by jury. It suffices for present purposes that such a failure can be characterised as a miscarriage of justice by reference to common law concepts of trial by jury and what such trials necessarily entail. There are other dimensions going beyond the want of supervision and control to the effect of the judge's conduct upon his or her authority with the jury, the respect or lack of respect which its members may have for the trial process and, beyond that again, to public confidence in the courts.

Against this general background it is necessary to have regard to the words "miscarriage of justice" in s 6(1) of the Criminal Appeal Act and to the words of the proviso which authorises the Court of Criminal Appeal to dismiss the appeal if it considers that "no substantial miscarriage of justice has actually occurred".

Section 6(1) of the Criminal Appeal Act is a common form of statutory provision for criminal appeals which traces its legislative ancestry back to s 4(1) of the Criminal Appeal Act 1907 (UK). The history of that provision and its