17.
The dissenting judgment
Basten JA accepted that "it was clear from the evidence of the witnesses before this Court that the judge did fall asleep, although there was a further factual issue as to the extent to which that occurred"[1]. He carefully reviewed the evidence adduced in the Court of Criminal Appeal. He noted that neither of the appellants called evidence from the legal representatives at the trial. The fact that no objection was taken and the subjective reasons why no other steps were taken would arguably have been irrelevant. That matter was not explored before the Court of Criminal Appeal. His Honour also noted that all the witnesses called on the appeal were friends or relatives of the two appellants. There was a significant degree of consistency between their accounts but none were challenged in cross-examination on the basis of interest clouding perception or recollection. There was no suggestion of collusion. Basten JA observed that while such factors could not be ignored as potentially relevant, in the assessment of the evidence, they should be given limited weight.
His Honour's findings of fact in summary were[2]:
1. The trial judge was asleep on a number of occasions during the 11 days of the trial when evidence was being given.
2. When he was asleep he was not conscious of what was occurring in the courtroom.
3. The trial judge slept for a period of several minutes on at least one occasion on most of the 11 days and on two or possibly three occasions on a handful of days. In support of this inference his Honour noted that the transcript showed that, on most days, there were long periods with no intervention by the judge. The regularity of this behaviour was supported by the fact that the judge was suffering from severe obstructive sleep apnoea, a condition consistent, before the judge obtained treatment, with a continual lack of adequate sleep at night.
4. On a number of occasions, possibly between two and five, the judge was asleep for a period of between 10 and 15 minutes. On a majority of occasions he was asleep for between two and 10 minutes.
