Cesan v The Queen

Case [2008] HCA 52

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Matter No S233/2008

RAFAEL CESAN  APPELLANT

AND

THE QUEEN  RESPONDENT

Matter No S236/2008

RUBEN MAS RIVADAVIA  APPELLANT

AND

THE QUEEN  RESPONDENT

Cesan v The Queen
Mas Rivadavia v The Queen
[2008] HCA 52
Date of order:  3 September 2008
Date of publication of reasons:  6 November 2008
S233/2008 & S236/2008

ORDER

Matter No S233/2008

1.        The appeal be allowed.

2.The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

(a)The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

(b)There be a new trial of the appellant.

Matter No S236/2008

1.        The appeal be allowed.

2.The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

(a)The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

(b)      There be a new trial of the appellant.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with H K Dhanji for the appellant in S233/2008 (instructed by Fragomen Global)

G O'L Reynolds SC with J C Hewitt for the appellant in S236/2008 (instructed by Legal Aid Commission of New South Wales)

W J Abraham QC with J G Renwick and L K Crowley for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales with R A Pepper intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

P M Tate SC, Solicitor-General for the State of Victoria with K L Walker intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

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…

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AGLC
Cesan v The Queen [2008] HCA 52
Case
[2008] HCA 52
Decision Date

CaseChat Overview and Summary

The case of *Cesan v The Queen* involved appeals by the appellants, Cesan and Mas Rivadavia, to the High Court of Australia following their convictions for conspiracy to import a commercial quantity of ecstasy. The central issue on appeal concerned the conduct of the trial judge during the appellants' trial by jury, specifically allegations that the judge was asleep for significant periods. The appellants argued that this conduct constituted a miscarriage of justice under section 6(1) of the *Criminal Appeal Act 1912* (NSW).

The High Court was required to determine whether the trial judge's repeated episodes of sleep during the trial amounted to a miscarriage of justice. This involved considering whether the judge's conduct represented a departure from the proper conduct of a trial, whether the judge exercised sufficient supervision and control to ensure the jury's attention to the evidence, and whether the appearance of unfairness was sufficient to constitute a miscarriage of justice. The Court also had to consider the application of the proviso, determining whether, despite any miscarriage, there had been no substantial miscarriage of justice.

The High Court allowed the appeals, quashing the convictions and ordering a new trial. The Court reasoned that a trial judge's duty to supervise and control the trial process is fundamental to a trial by jury. Where a judge is noticeably and repeatedly asleep or inattentive, this can lead to a miscarriage of justice, as it may have imponderable effects on the outcome that an appellate court cannot assess. The Court found that the trial in this case was fundamentally flawed due to the judge's conduct, and it could not be said with confidence that there had been no substantial miscarriage of justice. The Court noted that while the evidence against the appellants might have appeared strong, the trial itself was so flawed that a new trial was the only appropriate remedy.

Orders

Orders of the court

Matter No S233/2008

1. The appeal be allowed.

2. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

(a) The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

(b) There be a new trial of the appellant.

Matter No S236/2008

1. The appeal be allowed.

2. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

(a) The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

(b) There be a new trial of the appellant.

Background

Background to the litigation

As these reasons indicate, the case invited consideration of the duty of the judge in a trial by jury. That duty extends to the supervision and control of the conduct of the trial. Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice. Putting to one side minor lapses, a substantial failure of that kind in the judge's duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court. The trial in such a case is flawed in a fundamental respect. However apparently strong the evidence against the accused person may have been, it cannot generally be said with any confidence that there has been no substantial miscarriage of justice. The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial. Factual and procedural background On 31 May 2004, the appellants were charged upon indictment that between about 12 February 2002 and about 24 April 2002, at Sydney, they conspired with each other and others to import into Australia a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied, namely narcotic goods consisting of a quantity of the narcotic drug commonly known as ecstasy. The weight of the drug involved was 642.5 grams and so exceeded the "commercial quantity" prescribed for the purposes of s 233B of the Act which was 500 grams. The conspiracy alleged was an offence against s 11.5 of the Criminal Code (Cth). Section 233B was repealed by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) the relevant provisions of which commenced on 6 December 2005. An equivalent offence-creating provision was incorporated in Pt 9.1 of the Criminal Code. After a trial by jury, which commenced on 31 May 2004 and occupied 17 hearing days, the appellants were found guilty on 28 June 2004. They were not sentenced until 18 March 2005. The appellant Cesan was sentenced to imprisonment for 13 years six months, with a non-parole period of nine years. The appellant Mas Rivadavia was sentenced to imprisonment for 11 years. The appellants lodged notices of appeal against conviction and applications for leave to appeal against sentence. Those notices and applications were out of time but extensions of time were granted by the Court of Criminal Appeal. There were substantial delays between conviction and sentencing and in relation to the lodging of the notices of appeal. Those delays are not material for present purposes save to the extent that they may have affected the recollection of witnesses called to give evidence in the Court of Criminal Appeal concerning the conduct of the trial. So far as they related to conviction, the amended grounds of appeal filed on behalf of Cesan on 21 June 2007 included the ground that:"A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial."The amended grounds of appeal filed on behalf of Mas Rivadavia on 3 July 2007 included the same ground.

Evidence

Evidence Before The Court

Section 8 of the Act provides:"(1)On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.(2)Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody."Evidence before the Court of Criminal Appeal The Court of Criminal Appeal received affidavit evidence from a number of persons who had been present at the trial. They were the appellant Cesan, the Crown Prosecutor Mr Bellew SC, the appellant Cesan's mother, his sister and four friends. Affidavits were also received from the appellant Mas Rivadavia's sister and his aunt. Mr Cesan's solicitor, Mr Kessels, swore a short affidavit to the effect that he had made inquiries about the existence of tapes of the trial and had been informed by the Reporting Services Branch of the Attorney-General's Department of New South Wales that no tapes existed. The Court of Criminal Appeal was divided in its opinion. The majority held in substance that there was no demonstrated error or prejudice flowing from the trial judge's conduct. Because of the majority judges' effects based approach, their findings of fact about the conduct of the trial judge were somewhat ambulatory in character. That is not a criticism of those findings, but an explanation of how the majority's reasoning affected their form. Because I do not agree with the approach taken by the majority, it is necessary to have regard to the evidentiary basis for the findings of fact made by the dissenting judge which were not inconsistent with those of the majority. A review of that evidence follows. The appellant Cesan said that, on or about the second day of the trial, when recordings of some telephone intercepts were being played to the jury, the judge was "slumped in his chair and appeared to be asleep". He raised the matter with his solicitor. His solicitor said words to the effect:"Look mate it doesn't really matter, it happens with this judge."The next day he again noticed that the judge appeared to be asleep. He would slump in his chair and his head would fall forward and it would stay down for some time. He would suddenly lift it and appear to wake up before "nodding off again". This happened several times for up to five or more minutes at a time. The judge appeared to him to be asleep on many occasions in the second week of the trial. A lot of tapes were played during that time. These episodes appeared to occur more in the afternoons than in the mornings. He did not know exactly how frequently or for how long the judge slept, but the episodes seemed to be for periods of 10, or 15, or even 20 minutes. Members of the jury often looked at the judge. He raised the matter again with his solicitor after a few days. His solicitor said that Cesan did not want to be upsetting the trial judge but he would bring it up with counsel. Cesan later spoke to counsel who said that there was nothing they could do about it.

Decision

Reasons for decision

FRENCH CJ (dissent) GUMMOW J (dissent) HAYNE, CRENNAN AND KIEFEL JJ HEYDON J
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"[6]. 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. [6]Cesan v Director of Public Prosecutions (Cth) (2007) 174 A Crim R 385 at 427 [175]. 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 observed that Cesan's mother had not linked her observations of the trial judge's conduct to any aspect of the course of trial contemporaneous with her observation. Implying some scepticism about the witnesses' estimates of the duration of the sleep episodes, Grove J referred to Ivan Amaro's observation that:"What must have been five – ten seconds seemed to be an eternity" and characterised it as "a more realistic description of what was happening"[7] during Cesan's testimony.[7](2007) 174 A Crim R 385 at 428 [180]. His Honour rejected, as an exaggeration, Patricia Lawson's testimony that the judge was asleep most of the time during the nine days she attended the trial. He referred to Gabriela Cesan's evidence and noted she did not time the longer episodes of sleep to which she deposed. Juan David Uribe's evidence was said to be, in some respects, incompatible with the record of the proceedings on the days to which he referred. But even assuming that what he said was basically correct it carried the issue no further. He also referred to the evidence of Catalina Cal, Magalli Locaputo and Mr Bellew without comment. Two important passages of his Honour's judgment followed his reference to the evidence. He said[8]:"It is necessary to make findings of fact in respect of these matters for the purpose of dealing with the grounds. I accept that the judge was asleep from time to time. In reference to the evidence of Cesan, Basten JA has commented 'commonsense suggests that (his) estimates must have been subject to a significant margin of error'. I agree and would apply that comment also and particularly to those witnesses who testified to lengthy periods of fifteen to twenty minutes. I find the probability to be that, from time to time, the judge was 'nodding off' and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense. I am persuaded by the tenor of all the evidence that it was on these latter occasions that the associate or perhaps the court staff, or Mr Bellew by clearing his throat, restored the judge's attention. I do not accept that three counsel would press on, remaining mute about the situation, if something of genuine significance was occurring without then, or even at a later time, drawing his Honour's attention to what he had apparently missed. The importance I have ascribed to this is that, in my view, the mere fact that the judge has been asleep (on and off) during the trial does not, without more, demonstrate that the trial had been unfair, or, put in the terms of the Criminal Appeal Act 1912 (NSW), that there had been a miscarriage of justice."[8](2007) 174 A Crim R 385 at 429 [188]-[189].

Ratio Decidendi

Legal Principle Established

Established by: HAYNE, CRENNAN AND KIEFEL JJ, HEYDON J

Full text does not contain this section.