Page:Cesan v The Queen.pdf/41

Gummow J

distracted from paying attention to all of the evidence and that the very source of the distraction was the sleeping judge.

The consequence was that in respect of each appellant there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.

As to the application of the proviso to s 6(1), I agree with what is said by Hayne, Crennan and Kiefel JJ.

For these reasons I supported the making of the orders pronounced at the conclusion of the oral argument on these appeals.