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Gummow J

them; and also, in matters of fact, to give them a great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact; which is a great advantage and light to lay-men. And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact, whereof the jury are the judges."

It was with these observations in mind that, in the 19th century, United States decisions stressed as an essential part of the institution of trial by jury inherited from England, the direction and superintendence of the judge. In delivering the reasons of the Supreme Court of the United States in Capital Traction Company v Hof, Gray J remarked:

"'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."

With these basic principles in mind, it becomes apparent that the unusual circumstances to which the medical condition of the trial judge gave rise called for a response in the Court of Criminal Appeal which applied to the evidence before it concerning the conduct of the trial of the appellants, the statutory criterion of "miscarriage of justice", followed by a consideration of the "proviso" to s 6(1) of the Criminal Appeal Act. No modification of established principle is necessary to determine that the majority of the Court of Criminal Appeal erred in dismissing the appeals.

The superintendence of the trial by the trial judge required him to ensure that the jury was not distracted from paying full attention. The evidence which was accepted by the Court of Criminal Appeal showed both that the jury was