French CJ
8.
would bring it up with counsel. Cesan later spoke to counsel who said that there was nothing they could do about it.
When Cesan gave his evidence, he faced the bar table and the jury. The judge was behind him. At times during cross-examination he heard a "deep rumbling noise" from behind. He eventually realised it was the sound of snoring. Some of the jury looked at the judge, rather than at Cesan or the prosecutor. Some appeared surprised and others smiled. When he first heard the noise it was soft and not particularly distracting but eventually he found it hard to concentrate on the questions. When the snoring was at its loudest the prosecutor seemed to stop asking questions. Cesan turned to the judge's associate, who shrugged her shoulders. There was a loud banging noise behind him and he looked back and saw the judge looking up startled. Questioning resumed, but after about 10 minutes he heard the snoring again. This happened a number of times while he was giving his evidence. Under cross-examination in the Court of Criminal Appeal Cesan was challenged on his estimates, but stood by them:
"I have said that I heard him snoring for a period for 20 – period from between 15 and 20 minutes, and then his assistant would make some noise and then the snoring would stop."
Cesan acknowledged that he had written a letter to the judge before sentencing. The letter was dated 13 December 2004. It began with the following words:
"I would like to take this opportunity to thank you for what was a very fair trial, one wherein I accept the decision made by my peers and I am today at your mercy, asking for some leniency in my sentencing."
He wrote of a change in his perspectives, recognition of the impact of his drug abuse on members of his family and other people around him and his commitment to a good Christian life. The letter went on:
"I sincerely hope you have taken into account the above when deciding my sentence. I once again thank you and the institution you represent for allowing me very [sic] opportunity to defend myself in a fair and just trial. In no way do I hold a grudge against any of the authorities involved, since they have given me the chance to become a new man."
He acknowledged in cross-examination that he had accepted that he had a very fair trial.
Cesan's mother was present at the trial on every day except 31 May 2004. She had a clear view of the entire courtroom including the judge. When the judge was participating in the trial he would look at the witnesses, the jury or the lawyers and talk to them. He would turn pages, move items on his table, accept documents, move his glasses to read or look at counsel or a witness and make
