Page:Cesan v The Queen.pdf/42

Hayne J Crennan J Kiefel J

HAYNE, CRENNAN AND KIEFEL JJ. The facts and circumstances giving rise to the appeals are set out in the reasons of French CJ and need not be repeated. At the conclusion of argument, the Court made orders allowing each appeal, setting aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing each appellant's appeal against conviction and sentence, and in their place ordering that the appeal to the Court of Criminal Appeal against conviction should in each case be allowed, the appellant's conviction quashed, and a new trial had. What follows are our reasons for joining in those orders.

The disposition of the appeals to this Court depended, in our opinion, on the application of established principles to the particular facts and circumstances of the case. No development or amplification of those principles is necessary in order to conclude that the Court of Criminal Appeal should have allowed each appellant's appeal, quashed his conviction, and ordered a new trial.

Each appellant's appeal to the Court of Criminal Appeal presented two questions which must be framed by reference to the words of s 6(1) of the Criminal Appeal Act 1912 (NSW). Was there "on any other ground whatsoever … a miscarriage of justice"? If there was, should the Court of Criminal Appeal conclude that "no substantial miscarriage of justice has actually occurred"?

There was, in these cases, "on any other ground whatsoever … a miscarriage of justice" because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given. The occasion for this departure from the proper conduct of the trial was the trial judge falling asleep. (The trial judge was later diagnosed as suffering from severe obstructive sleep apnoea.) But for present purposes, attention should focus upon the consequences of the trial judge falling asleep.

The majority in the Court of Criminal Appeal (Grove and Howie JJ) concluded that no defect in the trial was identified. In particular, the majority