13.
occasions on which he looked at the judge were generally limited to those on which he was addressing him directly. He recalled turning towards the judge on one occasion, at about the time of the morning break, to ask whether it was a convenient time to adjourn. The judge, who had his head on his chest and appeared to be asleep, responded with what he would probably call a "startle". He could not put a figure on the number of times the judge fell asleep. Asked whether he conceded that it was possible that the judge's sleeping was as widespread as indicated in the affidavit evidence he said:
"It's possible, because those who have sworn the affidavits probably were in the position of observers only whereas I was dealing with a range of other things that I was in the position of at the time."
No evidence was called from the solicitor or counsel who represented the appellants at trial.
The medical evidence showed that at the time of the trial the judge was suffering from severe obstructive sleep apnoea. That condition was later brought under control but he developed a variable anxiety state and his capacity for continued judicial work was limited. He sought to retire from his office on the grounds of permanent disability. It is not in contention that he did retire.
The judgment of the majority in the Court of Criminal Appeal
The reasons for judgment of the majority in the Court of Criminal Appeal were delivered by Grove J. Howie J agreed with the reasons and the proposed orders. It is only necessary to refer to that part of the judgment relevant to the trial judge's conduct.
Grove J observed that no application had been made at trial about the judge's sleep episodes. No omission, misdirection or error was said to have resulted. The complaint about the judge's sleep episodes was raised for the first time on appeal. The letter which Cesan had written to the trial judge before he was sentenced was "not … insignificant"[1]. It had not been contended that the verdicts of the jury were unreasonable or could not be supported. What was sought was a repeat trial.
Grove J referred to the evidence before the Court of Criminal Appeal as summarised by Basten JA. He focussed on the absence of any suggestion that the trial judge had missed anything relevant or that Cesan himself had made any error in his evidence as a result of the judge's sleep episodes. His Honour
- ↑ Cesan v Director of Public Prosecutions (Cth) (2007) 174 A Crim R 385 at 427 [175].
