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Hayne J Crennan J Kiefel J

rejected the conclusion reached by Basten JA that the trial judge's conduct tended to undermine the routine directions given at the commencement of the trial and cast doubt on whether it could be presumed that the jury would follow the judge's instructions.

In his evidence to the Court of Criminal Appeal, Mr Cesan complained that he found the judge's conduct, when he was giving evidence at trial, to have been disruptive, but the majority put this complaint aside as being "general in expression" and not accompanied by any attempt to identify any error in, or omission from, the evidence which Mr Cesan gave at his trial.

All members of the Court of Criminal Appeal accepted that, as Grove J put it, "the probability [was] that, from time to time, the judge was 'nodding off' and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense". And all members of the Court of Criminal Appeal accepted the evidence of Mr Cesan that, during his cross-examination, the trial judge was heard to snore and that, as a result, some members of the jury "were looking at the judge and not [Mr Cesan] or the prosecutor" and that some "looked surprised and others were smiling".

The importance of the evidence given in the Court of Criminal Appeal by Mr Cesan was that it showed that during the cross-examination of one of the two accused on trial at least some members of the jury were not paying attention to the evidence being given. And the findings made by all members of the Court of Criminal Appeal showed that the distraction that occurred during Mr Cesan's cross-examination was probably no isolated incident. There were other substantial periods of time during the trial when the trial judge was asleep and it follows, as Basten JA rightly concluded, that it is probable that the attention of