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 CATCHWORDS

Cesan v The Queen Mas Rivadavia v The Queen

Criminal law – Appeals – Trial judge asleep for periods during trial – Whether "miscarriage of justice" under Criminal Appeal Act 1912 (NSW), s 6(1) – Whether consequences of conduct of trial judge a departure from proper conduct of trial – Whether trial judge exercised sufficient supervision and control over trial process to ensure jury paid attention to evidence – Whether supervision and control over trial so indispensable to trial by jury that failure itself gives rise to miscarriage of justice – Whether trial judge's conduct distracted jury from attending to evidence – Whether distraction of jury resulted in miscarriage of justice – Whether appearance of unfairness sufficient to constitute miscarriage of justice – Duties of trial judge and counsel in trial by jury.

Criminal law – Appeals – Proviso – Whether no substantial miscarriage of justice actually occurred – Demonstration to appellate court from record of trial that accused guilty beyond reasonable doubt necessary but not sufficient condition for application of proviso – Natural limitations of appellate court acting on record of trial – Relevance of letter sent to trial judge by accused, after jury returned guilty verdict, but before sentence passed, to determining whether there was no substantial miscarriage of justice.

Words and phrases – "miscarriage of justice", "substantial miscarriage of justice".

Criminal Appeal Act 1912 (NSW), s 6(1).