Page:Cesan v The Queen.pdf/9

French CJ

3. Grant leave to appeal against sentence.

4. Dismiss the appeal against sentence."

On 16 May 2008 each of the appellants was granted special leave to appeal to this Court from the whole of the judgment and orders of the New South Wales Court of Criminal Appeal.

The grounds of appeal for the appellant Cesan were in the following terms:

"2.1 The Court of Criminal Appeal erred in holding that there was no miscarriage of justice arising from the fact that the trial judge was asleep during the course of the trial.

2.2 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in failing to hold that the trial did not comply with the requirements of 'trial by jury' as required by s 80 of the Commonwealth of Australia Constitution.

2.3 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in failing to find that the trial was held in a court which met the minimum requirements of a court for the purposes of Chapter III Commonwealth of Australia Constitution.

2.4 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in holding that the trial was held 'before a judge' for the purposes of s 11 of the District Court Act, 1973."

The grounds of appeal for the appellant Mas Rivadavia were substantially the same.

The Court invited the parties to address it first on the question whether, Ch III and s 80 of the Constitution apart and s 11 of the District Court Act 1973 (NSW) apart, there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), whether no substantial miscarriage of justice actually occurred within the meaning of that sub-section, and whether, even if no substantial miscarriage of justice actually occurred, the proviso to s 6(1) of the Criminal Appeal Act was incapable of applying.