Cesan v The Queen; Rivadavia v The Queen

[2008] HCATrans 320

[2008] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S233 of 2008

B e t w e e n -

RAFAEL CESAN

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S236 of 2008

B e t w e e n -

RUBEN MAS RIVADAVIA

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 SEPTEMBER 2008, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with my learned friend, MR H.K. DHANJI, in the matter of Cesan v The Queen  (instructed by Fragomen Global)

MR G. O’L. REYNOLDS, SC:  May it please the Court, in the Rivadavian matter I appear for the appellant with my learned friend, MR J.C. HEWITT.  (instructed by Legal Aid Commission of NSW)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friends, MR J.G. RENWICK and MR L.K. CROWLEY, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MR M.G. SEXTON, SC (Solicitor‑General for the State of New South Wales):   If the Court pleases,  I appear with my learned friend, MS R.A. PEPPER, for the Attorney‑General for New South Wales who intervenes in both proceedings.  (instructed by Crown Solicitor’s (NSW))

MS P.M. TATE, SC (Solicitor‑General for the State of Victoria):   May it please the Court, I appear with my learned friend, MS K.L. WALKER, for the Attorney‑General for Victoria, intervening in both proceedings.  (instructed by Victorian Government Solicitor)

FRENCH CJ:   Before we proceed, the Court would invite the parties to address first on the question whether, Chapter III and section 80 of the Commonwealth Constitution apart and section 11 of the District Court Act apart, there was a miscarriage of justice within the meaning of section 6(1) of the Criminal Appeal Act, whether no substantial miscarriage of justice actually occurred within the meaning of that section and whether, even if no substantial miscarriage of justice actually occurred, the proviso to section 6(1) of the Criminal Appeal Act 1912 is incapable of applying. We would hear oral argument on behalf of the appellants and the respondents on that question. We will not call upon the intervenors to address oral argument on that issue at this stage. Is that clear enough, Mr Game?

MR GAME:   Yes.  Your Honour has taken the wind out of my constitutional sails.

FRENCH CJ:   Indeed, we want the common or garden variety stuff first.

MR GAME:   I just have to completely recast what I was going to say, but I will struggle through.

FRENCH CJ:   Thank you.

MR GAME:   So when I say “integrity of the judicial process” I will just leave out Chapter III.  If you want it back in, then I am well able to reintroduce it.  I do not really need to tell your Honours about the – if I just put that whole exercise book to one side.  I was going to tell your Honours something about the time issue, but the time issue may disappear as well.  Your Honours, what I propose to do first is deal with the judgment of Justice Grove in the Court of Criminal Appeal and I can deal with that relatively untrammelled by the constraints that your Honours have put on us in terms of how we put our arguments.

May I take your Honours to our submissions in reply and draw out some matters concerning the approach taken by the majority, that is to say, Justice Grove in the Court of Criminal Appeal.  In our submissions in reply at page 4, paragraph 15, your Honours will recall that Justice Basten found, particularly at paragraph 109 – and there is no need to go to it at this moment – that the jury were distracted, that the judge in fact was the distraction.

In paragraphs 15 and 16, particularly paragraph 15, we set out that part of the evidence of the witnesses who gave evidence in the Court of Criminal Appeal as to the reaction of the jury itself.  Justice Grove failed to deal with that issue at all.  Whether or not one puts it in a Chapter III context or in the context of the integrity of the judicial process itself, what one has reflected in those passages is the tribunal of fact behaving in a manner which has completely demeaned the seriousness and the gravity of the occasion on which they are to address a final issue as to the guilt of the accused in a final and decisive act of judicial power.

HAYNE J:   But be it so, is not the critical fact the fact of distraction of the jury?

MR GAME:   Absolutely.

HAYNE J:   Now, you may colour that in a number of ways, but the tribunal of fact, according to the evidence, was distracted, including being distracted for – I attempt a neutral phrase – a not insignificant period in the evidence given by one of the accused persons.

MR GAME:   Exactly, your Honour.

CRENNAN J:   That gives rise to the question, does it not, about whether that affected the outcome by undermining the defence?

MR GAME:   Yes, your Honour.  You can put it in two ways which is that there has been a fundamental failure of process in terms of what the jury have done or you can put it in terms of this is a substantial irregularity and you cannot know what the ‑ ‑ ‑

HAYNE J:   Those are questions of classification, Mr Game, and classifications are apt to mislead in that the tag becomes the premise for an argument.  What is critical is what happened at this trial.

MR GAME:   I will drop them.  It seems like I am dropping most things.  That is the first thing.  Justice Grove did not deal with that and really that is at the heart of it.  There was another aspect of this that I wanted to draw out in the context of the larger argument but it is worth saying, which is that in the cases in the history of the jury process it is, as it were, a satisfaction in the mind of the public about the outcome and these witnesses are the public in the context of this case.  They are family.  This is not a victim crime.  They are the public, so that aspect of the process has been undermined, too, in a critical way.  That is the first comment I wanted to make about the majority’s reasons.

The second comment I wanted to make is this.  It is apparent from the structure of the judgment of Justice Grove – and you can see it in a number of places, but paragraph 176 is a good enough starting point – you can see that his Honour – and this has flown right through his reasons – has been looking for the wrong thing, as it were, and that is because that is the argument that was put to him by the Crown, which was that you had to establish an omission, misdirection or error in some substantive sense other than what was actually happening in the trial.  That was the argument that was put and that is the argument that was accepted.

GUMMOW J:   What page are we looking at?

MR GAME:   Your Honour, we are looking at appeal book page 335, paragraph 176.  It is in the fourth line.

GUMMOW J:   Thank you.  Yes.

MR GAME:   Now, that may explain the scant way in which his Honour deals with the facts.  But then we see this idea flows through the judgment.  If you look at paragraph 179, third line, it did not “identify any error”, but again that is not the point at all.  The point at all is what is happening while he is giving his evidence in respect of both the judge and the jury.

Similarly, your Honours will see at paragraph 185 what he said was basically correct, it carries the issue no further because if all you are counting is minutes of sleep, then maybe it does carry the issue no further, but if you are dealing with it in its substantive sense, then what actually occurred assumes a real significance.

In paragraph 190 his Honour refers to “if something of genuine significance”, ie, a ruling or something of that kind and then 192, no “defect in the trial” - that is at page 340 - and then 197 a reliance on Nudd where the idea in Nudd is a much more profound idea than in the Chief Justice’s judgment in – than is given credit for here at paragraph 197; “There has been no failure of process”.  That is at the end of paragraph 197 which is on page 342.  So the process has miscarried because the majority have asked themselves the wrong question.  That is the second point we note about that.  The third point is if, as our opponents or, in fact, the interveners put, one needed to make precise findings about frequency then his Honour did not make those findings at all.

The fourth comment about his Honour’s reasons is picked up in what we say about his Honour’s findings in the first part of our reply.  If he did make findings, if he had purported to make findings, then serious errors can be identified in them.  I will just give your Honours two examples, one at paragraph 5 of our reply.  Justice Grove referred to this witness, the mother of the accused, as saying that the judge was from time to time asleep.  In fact, she said he was asleep every day.

The witness, Amaro, we deal with at paragraph 7, about something taking a few seconds, there was a very specific piece of evidence and say this – my point about Justice Grove’s findings, if it descends to the question about the status of his Honour’s findings then in the sense that your Honour Justice Hayne put in Waterways Authority v Fitzgibbon there is an error in the process of fact‑finding and we make that submission.  Then, we add to this, there was a very limited challenge, there was a consistency in the accounts.

If one conducts a, shall I say, Fox v Percy‑type examination of this material, and that would be appropriate, then one would accept, we submit, the findings made by Justice Basten.  They appear at pages 292 and 293 of the appeal book, paragraph 63, and significantly those findings make allowance for the element of exaggeration, not based on credibility but on the tendency, an ordinary tendency of people in the position of these witnesses and they make allowance for Mr Bellew’s evidence.  So they are, in effect, a bringing together of a body of evidence in a consistent and appropriate way.

So then one has, in our submission, distinct errors in the approach taken by Justice Grove that extend to the findings of fact but go well beyond that to the entire approach to the question.  Where one goes then from here, stripped of the constitutional context ‑ ‑ ‑

GUMMOW J:   Do you adopt what Justice Basten says at page 310, paragraphs 107 through to 110?

MR GAME:   Yes, your Honour, but I would add this, that his Honour thought that whether the jury was distracted was something that did not need to be established, but that was not set against the argument I put.  That was said because his Honour has, shall I say, analogised from Stead v State Government Insurance Commission which is about administrative law ideas about irregularities in the process and then in the exercise of discretion a question of causation throwing the burden on the other side.  Your Honours may recall that Justice Grove reversed this process and said it is to be assumed that the jury did what they were told, but the jury were given no directions such as, “I have been asleep.  Please ignore the fact that I have been asleep” and so forth. 

Yes, we do accept, your Honour Justice Gummow, what Justice Basten says in those paragraphs and at that point we submit there has been a fundamental failure of process.  Now, may I say this though, that even stripped of its constitutional context you will see in his Honour’s examination of this subject he has called it “the alternative approach”, paragraphs 103 and following.  What his Honour has done, he has called it an alternative approach, but his Honour has drawn from cases which are about or touch on Chapter III in the context of constitutional integrity.  There is the Kable line of cases which, in effect, seek to bring the vesting of State courts with federal jurisdiction in play in purely State contexts or where the Supreme Court is vested with a particular power.  He also relies on the Ebner line of cases.

Now, taken away from the constitutional context, the idea of a miscarriage of justice in a court hearing a criminal appeal clearly drives one to issues that go as deep as the integrity of the process.  Without reciting this Court’s recent decisions in any detail, one sees that in cases such as Gassy in the judgment of your Honours Justices Gummow and Hayne finding that the Court of Criminal Appeal erred in finding that the accused had not lost the chance of acquittal because there was a second question concerning the fairness of the trial or in AK in respect of reasons that, as it were, going to the fundamentals of the issue, regardless of the prospect that there was an overwhelming prosecution case.

So we would see this case ultimately as a fairly straightforward case about the application of section 6 of the Criminal Appeal Act and we would see it as a straightforward case which really does not require resolution of grand issues of principle.  It is very much in the heart of process cases.  I am sorry, I am just pausing, trying to think whether or not there are other arguments I needed to bring to play.

HAYNE J:   Are you coming to the application of the proviso?

MR GAME:   Yes, your Honour.

HAYNE J:   That is a separate matter.

MR GAME:   Yes.  May I just mention a matter that I had intended to come to in a slightly different context, which was the constitutional context, but if one looked at this case, shall I say, before the Criminal Appeal Act with writs of error or with prerogative writs, and prerogative writs only ran when writs of error did not run, then one can see from cases such as Conway in this Court that writs of error would have run in respect of errors of this kind.  Writs of error would have run because issues such as appearances, bias and actual apprehended bias would attract writs of error.  That can be seen in Conway itself in an examination of writs of error.

Certiorari, we would submit, would have gone and, as I say, certiorari would only have gone in circumstances where there were no writs of error, but certiorari would have gone in respect of proceedings of this kind.  Mandamus would have gone, I suppose, to wake the judge up, but that is another matter.

GUMMOW J:   Where do you deal with this in your written submissions, Mr Game?

MR GAME:   We have not dealt with the issue of writs of error and certiorari in our written submissions or our reply, but if the Court would be assisted and would give me leave to do so – I am sorry, we have dealt with it in one respect.  In paragraph 50 we have dealt with it in a little detail.

HEYDON J:   This is precisely the sort of thing that should be dealt with in full detail in the submissions.

MR GAME:   I am sorry, your Honour, my apologies.  The passage from Conway is set out in paragraph 53.  In paragraph 29 we have extracted a case which comes from a different context, which is appeals from magistrates, and certiorari really developed substantially in the context of review of decisions of magistrates and we see there that absence of a magistrate was held to give rise to jurisdictional error in the context of certiorari.

HAYNE J: But what is the proposition in aid of which this is all deployed? Are you putting this forward as some aid to construing particular words in section 6?

MR GAME:   No, all I am saying is that process of this kind is bedrock miscarriage of justice in section 6 and it has a history that precedes the passing of the Criminal Appeal Act.

FRENCH CJ:   You say it has a history.  Are you talking about some sort of legislative ancestry?

MR GAME:   No, it has a history in judicial review in respect of either writs of error or certiorari in the context of defects of this kind in the trial process.  That is the only way in which we seek to bring that into aid.  As to the proviso, we submit that in a case such as this, one does not in fact get to asking a question of oneself whether or not the jury would inevitably have convicted.  One does not get to that because the defect, as it were, stands in the way of an assessment of that kind, but even if the defect did not stand in the way of an assessment of that kind, the defect which exists in this case is a defect which, shall I say, destroys the integrity of the trial process.

FRENCH CJ:   On the first limb there, when you say the defect stands in the way of an assessment of that kind, you mean it makes it essentially speculative?

MR GAME:   Yes, your Honour, because you cannot measure the effect.

FRENCH CJ:   I just wanted to make sure I understood what you were saying.

MR GAME:   Because the jury were distracted in their conduct you cannot make a prediction as to what may or may not have occurred.  The second way ‑ ‑ ‑

HAYNE J:   Can I just understand exactly what is being said?  If the premise for this aspect of your argument is that the jury were distracted during the evidence of one of the accused - they were not paying proper attention and they were not brought back to paying proper attention - that might be thought to present a difficulty in the kind of reasoning exemplified in paragraph 43 of Weissv The Queen 224 CLR 300, particularly at 317, where reference is made to the fact that the verdict returned at trial is something that can be taken into account in at least some cases where proviso falls for consideration.

But if the relevant hypothesis is that the jury was not paying proper attention at parts of the trial, including in particular, when the accused, or one of the accused, was defending the account he gave in answer to that charge, what can one divine from the guilty verdict?  Nothing.  You are then left with the appellate court working only on the written transcript, whereas the jury, acting properly, would act on more than the fact that certain words were uttered by the accused in the course of his evidence.

MR GAME:   Yes, your Honour, we adopt that approach.  We also say that if you did ask the question whether or not it would be inevitably concluded, and if you did ask that question against him, it still would not matter because the process of defending himself has been impaled on this irregularity.  So, in a sense, that is another way of putting the same argument, but yes, essentially we adopt what your Honour has ‑ ‑ ‑

HAYNE J:   For my own part I would want you to think it necessary to go on to consider what the consequence of this, as you so colourfully put it, impaling is.

MR GAME:   It just popped into my head, I am afraid.  If one speaks about it in the context of the two categories that were spoken about in Weiss, which your Honour referred to a short time ago which, first, the significant denial of procedural fairness, and the second the breach of presuppositions of the trial, then in a sense both of those – again, they were labels, but both of those ideas are engaged in this case because procedural fairness is presenting your case to an impartial arbiter, and a presupposition is the impartial disposition of the case, so in effect both ideas are engaged in this particular situation.

So, your Honour, I am not sure that I am answering your Honour Justice Hayne’s question adequately, but that is how we put the argument, and I do apologise if I have not spelt this out clearly enough.  I had rather thought I was going to be talking about a different approach to this appeal and I do apologise.

CRENNAN J:   But if you are taken out of the abstract and very much focusing on the facts of this case, the question would be, would it not, whether what is complained about undermined the defendant’s defence, including his ability to convey it to the jury?

MR GAME:   Yes.

CRENNAN J:   Because they were distracted during the cross‑examination of the appellant.

MR GAME:   Yes, your Honour.  In crude terms, what is happening in a base sense is that this occasion has become an occasion where the appearance is that the jury do not care and the judge does not care.  That is to say, the essential requirement of impartial quiet attention to the case has been extracted from this case, and that in miscarriage of justice terms is at the heart of what is happening in this case, in our submission.

CRENNAN J:   Well, juries get distracted occasionally, I suppose, but one part of the judge’s task is to manage those distractions, to supervise a jury.

MR GAME:   Yes.  Justice Basten gave the subject a specific context insofar as it related to the directions given by the judge to the jury being undermined.

CRENNAN J:   Yes.

MR GAME:   The way I have just put it goes a little bit beyond just focusing on the directions given by the trial judge, but to what is, as it were, conveyed by the entire occasion.

CRENNAN J:   I suppose why I am putting these matters to you is that you seem to be going in the direction of saying there is a defect of process which is so grey that it deprives the appellant of a fair trial and it is grave irrespective of the outcome.  The reason I have been putting these matters to you is that you can address them in the context of the outcome in terms of undermining the defendant’s defence, I would have thought.

MR GAME:   Yes.  I do put that argument and maybe it has not been at the forefront of the way in which it has been put.  I do put that argument but I also put, shall I say, the process argument and the specific matters that are brought into play by Justice Basten in his judgment in paragraphs 107 to 109.

CRENNAN J:   The point about process, of course, it is all designed to achieve a just outcome.

MR GAME:   The point about process in this context is that the whole idea of process and the whole idea of a judge regulating a jury, the judge supervising the trial, the judge determining what issues of fact are to be determined, the judge supervising the jury to an end point in which there is an exercise of judicial power - but that exercise of judicial power is an exercise of judicial power in which every aspect of it is directed to avoiding arbitrariness in the approach or the outcome that occurs, yet what occurs in this case is that that essential aspect of process which, as I say, is all driven towards avoiding arbitrary of outcome in respect of 12 strangers who have been brought into a courtroom to determine a critical issue who make a finding about guilt anonymously, as it were, and give no reasons but decisively determine the issue of guilt.

So we would see that issue of process, although maybe I have overestimated it, as being central to the actual application of section 6 of the Criminal Appeal Act.  The substantial miscarriage of justice, if one goes to the proviso, is in the failure of that process.  There is, as your Honours Justice Hayne and Justice Crennan have both put to me now, a shorter route to that, which is the outcome has been affected because you cannot say what the jury’s assessment of the appellant’s evidence was in that context.  The third aspect is the aspect brought out by Justice Basten in his judgment with respect to the specific directions that the jury were given.

FRENCH CJ:   We are taking two approaches to the application of the proviso, the first that really the nature of the defect was such – and this was taken up with you by Justice Hayne – that you could not really make an assessment of whether there had been a substantial miscarriage of justice because of the unreliability of the guilty verdict in this context.  Then the second line you were taking was that the defect destroyed the integrity of the trial process.  Is that anything more than, to some degree, a high‑sounding way of saying much the same thing – that the defect is of such a nature that it is impossible to say there has not been a miscarriage of justice, or does it go beyond that into some public confidence proposition?

MR GAME:   In my mind I had fashioned that argument about cases in Chapter III, but you can put Chapter III to one side because we have a trial process in our courts in which the integrity of the fact‑finding process in the jury trial is just as central, in a sense, as is found to be in the separation of powers context in Chapter III.  It may be more high sounding, but it is a slightly different way of putting that argument, in my submission.  The actual process of the prejudice that occurred is set out in our submissions in‑chief at paragraphs 22 and following, our argument that actual prejudice

occurred.  That is paragraphs 22 to 26.  That is the short way home, as we would see it.

May I say something about the proviso and the proviso cases since Weiss.  In effect, Weiss identified in the paragraphs that your Honour Justice Hayne referred to in paragraphs 45 and 56 categories of case in which it would not be appropriate to apply the proviso despite any question as to whether or not there was an overwhelming case on guilt, but since Weiss there have been a number of decisions of this Court and in a sense issues that may have remained opaque in respect of Weiss have certainly been clarified or have certainly – there have been a number of cases on the proviso since Weiss and I will just mention a few of them.

GUMMOW J:   To what end?

HEYDON J:   They are all mentioned in Mr  Rivadavia’s submissions from paragraph 74 onwards, I think.

MR GAME:   Yes, your Honour.  The only end is to show that it is clear from cases, as I said before, such as AK, Gassy and Evans that the substantial miscarriage of justice can be embodied in the defect itself as opposed to in some question about the guilt of the accused.  That is all I really wanted to say about it.

GUMMOW J:   Say that again?

MR GAME:   The substantial miscarriage of justice can be embodied in the defect of process regardless of any questions about the guilt or innocence of the accused.  That is what those cases show if one went through them and I have in mind particularly AK, Gassy and, to a lesser extent, Evans.  Ayles is another case, but the judgment I would rely on in that case was in fact a dissenting judgment of Justices Gummow and Kirby.

Now, that is really all I wanted to say absent the Chapter III aspect of the case, if the court pleases and I do apologise if my argument has been less lucid than it might have been, but I had anticipated moving in a slightly different direction.

FRENCH CJ:   Thank you, Mr Game.  Mr Reynolds.

MR REYNOLDS:   Thank you, Chief Justice. My learned friend, Mr Game, started his submissions by saying that your Honour the Chief Justice’s invitation at the outset had taken the wind out of his sails. In my case it has not so much taken the wind out of my sails as left me virtually becalmed. I say that because in the division of time between Mr Game and myself I was going to confine my submissions entirely to section 80 and Chapter III. Having said that, however, I would like to address your Honours briefly and take as the focus for my submission a question raised by your Honour Justice Gummow directing my learned friend in particular to appeal book volume A at pages 310 to 311.

Your Honours will see there from approximately paragraphs 107, which raises the issue of distraction, through to 110.  The dissenting judge Justice Basten talked about the undermining of the judge’s directions and concluded by saying – this is at the bottom of page 311 – that the proceedings had been deprived “of an essential characteristic of trial by jury”.  What I want to suggest is that this approach may be in the present case too narrow an approach to the issue of miscarriage.

We have on these two pages, of course, the issue of distraction and the issue of undermining the directions of law, but can I take your Honours briefly to submissions in reply – these are the reply submissions of the appellant in the Rividavia appeal – and focus, if I may, on paragraph 22 for a moment.  Your Honours will see there that we have referred in five paragraphs there to five aspects.  The issue of directions of law, of course, is a matter which Justice Basten dealt with particularly at page 311, but I want to suggest that the impact of the judge’s periods of sleep for a substantial portion of the proceedings is wider than that.

In paragraph (ii) we have referred to the judge’s directions to and guidance of the jury in relation to findings of fact and we have referred to a portion of Professor Wigmore’s magnum opus on evidence and we have given your Honours tipstaves the particular pages which we have referred to and if I may take your Honours briefly to a couple of passages there.  This is at page 503 at about point 6, the paragraph beginning “But it” where Professor Wigmore refers to the role of the judge in commenting on the general weight of the evidence and of particular parts of it to assist the jury in reaching their conclusions.  He says that:

The practice of such comment existed at common law since the beginning of jury trial, and must be regarded historically as an essential and inseparable part of jury trial.

HEYDON J:   And it remains so here.  Not so in America, but is so here.

MR REYNOLDS:   Exactly, and that is the distinction which Professor Wigmore was drawing.  Over the page there is no less an authority than Professor Thayer quoted at about ‑ ‑ ‑

GUMMOW J:   The point Justice Heydon put to you about the United States appears at the bottom of 504, you see, Jacksonian populism.

MR REYNOLDS:   Yes, well, even in the United States early on this essential attribute of jury trial, that is, the right and the ability of the judge to comment on the facts that right existed but it was whittled away, as Professor Wigmore goes on to say.  My point is this, that the judge’s periods of sleep for a substantial portion of the proceedings, I submit, would impact, first of all, on his ability to sum up, as he did in this case on the facts and, second of all, there is a substantial likelihood that the jury would not be guided or would refuse to be guided by a judge purporting to sum up on facts where he had been asleep for a substantial portion of the evidence.

The third matter we have raised there is the issue of what we have called “general superintendence”, which of course Justice Basten does touch on, albeit not in this precise context, and in our submissions in‑chief we refer at paragraph 24 to the sort of situations in which the judge may be called upon to intervene, as the American case has put it, sua sponte, so that there is also an impact here necessarily upon the ability of the judge to superintendent the proceedings.

Fourthly, we have referred to, quoting Lord Devlin, the “informal ways in which the judge influences and shapes the verdict” and, we submit, likewise there too that the judge’s behaviour is likely to have substantially undermined his ability in that informal way to guide the jury in reaching their verdicts.

Finally, we have referred to a passage in your Honour Justice Heydon’s judgment in AK where your Honour quoted Lord Devlin.  We have picked this up in our submissions and talked about what we have described as the “symbiotic relationship between judge and jury”, which I concede is perhaps a vague and, to some degree, nebulous way of putting the matter, but that relationship is one which obtains and is necessarily difficult to define and it is a relationship which ought obtain between the judge and the jury from the beginning of the trial to the end.  We submit that that relationship was substantially undermined in a way that it is very difficult to calculate.

Over and above those matters, can I mention briefly three things, and I was going to develop these more in the context of the Chapter III argument, but let me reiterate them under the heading of miscarriage.  First of all, at a very basic level there was a fundamental breach of the audi alteram partem rule, the hearing rule, because it cannot be said that when the judge was asleep for a substantial period of the proceedings he could in any sense of the word be giving the accused a fair hearing or, indeed, any hearing at all.

The second thing is to point to the fact that when the judge was asleep he was, in one sense, unconscious and for a substantial period of the proceedings, not as the submissions and one of the judges put it in the Court of Criminal Appeal, inattentive and, finally, there was in one sense a complete hiatus in the exercise of judicial power for a substantial period of the proceedings.

Now, given the matters referred to in paragraph 22 and that I have touched on earlier, plus those other three matters, we submit that this is a clear case of a fundamental failure or defect of process and one in respect of which there could be little doubt that in that sense there has been a miscarriage within the meaning of section 6.

GUMMOW J:   Where do you find the critical error in the majority in the Court of Criminal Appeal?

MR REYNOLDS:   In one sense it is in the passage – and I will perhaps ask Mr Hewitt to find it for me – in which the majority reject the assertion made by Justice Basten at page 311 that there was an impact on the presumption that the jury would follow the judge’s instructions and also the majority, I think, do not deal with the issue of distraction.  That is the first part of my answer to your Honour Justice Gummow.

The other aspect of it is that the other matters to which I have referred are not dealt with either at all or appropriately in the judgment.  Mr Hewitt has referred me to paragraphs 209 and 210 of the judgment of Justice Grove.  That is at page 345 of the appeal book.

HAYNE J:   Another aspect of it may be, Mr Reynolds, at paragraph 176, line 20 and following, “there is still no identification of any omission, misdirection or error”, et cetera, is cast in terms that seem apt to be directed to whether there was at trial the wrong decision of any question of law.  Now, of course, Justice Grove goes on later in his Honour’s reasons to make express reference, I think, to miscarriage, but miscarriage might be understood perhaps as encompassing more than omission, misdirection or error if omission, misdirection or error were read as requiring, show me where the judge got the law wrong.

MR REYNOLDS:   Yes.  We would, with respect, adopt that.  Another theme or a related theme running through the reasoning of the majority is a failure, we respectfully submit, to appreciate that there can be some fundamental failures or defect of process in the trial which can amount themselves to miscarriages, and that is an aspect of the definition of “miscarriage” which we submit the majority has not really dealt with for the reasons that I have tried to ‑ ‑ ‑

GUMMOW J:   Also this question of superintendence, is there not?

MR REYNOLDS:   I do not think that is dealt with or ‑ ‑ ‑

GUMMOW J:   No.  You refer to Patton v US (1930) 281 US 276, and at 288 the Court said, in construing the constitutional provisions of a jury trial, that they picked up the notion of jury trial as recognised in England when the Constitution was adopted. The three elements were:

(1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts –

as well as (3) being unanimity.  This notion of superintendence cannot be given full effect, you say, in this sort of situation.

MR REYNOLDS:   Quite, and that aspect of this being an essential element is one remarked upon by Quick and Garran in 1900 at page 810 of their annotated Constitution of the Australian Commonwealth.  They there refer to the elements of trial by jury as they exist at common law.  Having mentioned Springvale v Thomas they quote from Capital Traction v Hof (1899) 174 US 1 where it is stated:

“Trial by jury,” in the primary and usual sense of the term at the common law . . . is a trial by a jury of twelve men, in the presence and under the superintendence of a judge ‑ ‑ ‑

GUMMOW J:   Which particular page in Hof? We have 174 US.

MR REYNOLDS:   There are some very good passages on this point in that decision of Capital Traction v Hof.

GUMMOW J:   Given by Justice Gray.

MR REYNOLDS:   Yes, and probably the best ones are starting at page 13 of the report in the United States Report.

FRENCH CJ:   The passage you are citing from Quick and Garran I think is at page 13, is it not?

MR REYNOLDS:   Yes, it is.  I assume your Honours have the report.  If I can continue on then on to the end of page 13:

under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts –

that is the other issue I was raising.

GUMMOW J:   That was a summary of what Matthew Hale had said.

MR REYNOLDS:   They then go on to quote Lord Hale and it is perhaps worth quoting what he says:

“Another excellency of this trial is this, that the judge is always present –

I interpolate, in mind as well as in body –

at the time of the evidence given in it.  Herein he is able in matters of law, emerging upon the evidence, to direct them; and also, in matters of fact, to give them great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact, which is a great advantage and light to laymen.  And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact, whereof the jury are the judges.”  And again, in summing up the advantages of trial by jury, he says:  “It has the advantage of the judge’s observation, attention and assistance, in point of law by way of decision, and in point of fact by way of direction to the jury.”

There are a whole series of quotes there in the next two or three pages.

HAYNE J:   The course of authority in the US Reports is at page 16 at about point 6 of the page, or thereabouts, a quote from Vicksburg and then references to Miller, Cooley, et cetera.

MR REYNOLDS:   Yes.  This underlines what I have tried to put as a fundamental defect in the whole process, the whole notion of trial by jury which, although we adopt what Justice Basten has put at the two pages your Honour Justice Gummow raised with my friend, we would submit that, if anything, that is a slightly too narrow a focus and we submit that there are probably about eight or nine aspects to this notion of a fundamental defect in process which I have tried to outline in the submissions, albeit brief, that I have put to your Honours.

FRENCH CJ:   What, if anything, are we to make of the omission by counsel to raise the matter with the judge during the trial or to seek some sort of corrective direction, or even to seek a discharge of the jury?

MR REYNOLDS: I was hoping that I would be able to put a response to that, if I may respectfully say so, inevitable question in the context of submissions directed to section 80 and to Chapter III and, of course, in that context your Honour the Chief Justice would know that I would have been submitting that in relation first of all to section 80 there can be no notion of waiver and this Court has so held in the decision of Brown v The Queen.

MR REYNOLDS:   We are talking here about what I would submit is a very fundamental problem with the processes of the trial, so fundamental that I submit it matters nought that not only the accused but for that matter, the Crown allowed this to occur in the sense of not raising it with the judge.  This trial reached a point where the judge had been asleep for a substantial portion of the proceedings.  Once it reached that point, I submit that the proceedings were radically flawed and that it did not matter and that it does not now matter that the matter was not raised by counsel for any of the parties who were involved in this particular trial.

The existence of a conscious judge, a judge who is giving the trial a proper hearing, a judge who is at least in some sense exercising judicial power, is such a vital aspect of the proceedings that at least where this has occurred for such a substantial period, the proceedings have reached a point where the proceedings are, in effect, so flawed that there is, in effect, inevitably a mistrial no matter what.

FRENCH CJ:   Counsel’s duty would be to address the question, would it not?

MR REYNOLDS:   Yes.

CRENNAN J:   Otherwise, as Ms Abraham points out this is saving up of an appeal point if you like.

MR REYNOLDS:   Well, we would submit on one view by both the Crown and the accused because if the accused had been acquitted then I concede inevitably that, for the same reasons we have put to your Honours, there would have to be a mistrial and it would be open to the Crown also to complain of that.

HEYDON J:   How would the Crown get that acquittal set aside?

MR REYNOLDS:   Well, as I say that I am wondering whether the provisions of the Criminal Appeal Act would permit the Crown to appeal.  If necessary, I would submit that it may be a situation where the proceedings are so radically flawed that, to pick up a suggestion made by my learned friend, Mr Game, and given that this was a trial in the District Court, being an inferior court of record, it might even be open to the Crown to seek judicial review of the verdict and orders and to have them quashed.  Now, I have to confess I have not investigated the issue of ‑ ‑ ‑

HEYDON J:   Well, the precise issue is rather a marginal one.

MR REYNOLDS:   It is.

HEYDON J:   It just seems to be very difficult for the Crown to ‑ ‑ ‑

MR REYNOLDS:   I would submit if there was some radical flaw in the proceedings that one would assume that there would have to be some possibility of relief.  Take a situation, for example, where there was a true submission of coram non judice, namely where someone was in fact not a judge of the District Court.  If one had proceedings which were radically flawed then I would submit – although I have not fully investigated the matter – that there would be the possibility of some relief available to the Crown.

GUMMOW J:   The real point may be whether this point was taken against you or Mr Game in the Court of Criminal Appeal?  I do not know the answer to that.  Is there not a special rule in the Court of Criminal Appeal about taking points?

MR REYNOLDS:   There are certainly some practices ‑ ‑ ‑

HEYDON J:   Rule 4.

MR REYNOLDS:   That leads into often a discussion about whether counsel have been at fault in not ‑ ‑ ‑

GUMMOW J:   Well, Ms Abraham will know what happened with rule 4 in the Court of Criminal Appeal in this case.

CRENNAN J:   But the correctness of what the Chief Justice put to you is surely evident when one considers that there would be degrees of inadvertence or sleepiness.  One can easily imagine a possibility where either counsel, be it the prosecution or counsel for the accused, raise the point with the judge.  It may be that there is then no substantial defect in the process of the kind which is advanced today, that is to say, any impact of the conduct may not be such as to give rise to a miscarriage of justice.  It may be able to be addressed.

MR REYNOLDS:   Certainly that would be the case if one looks at the, if I might put it, situation which obtained when, say, the first or second time the judge, putting it euphemistically, nodded off, but I was trying to direct my submissions earlier to the end point ‑ ‑ ‑

HAYNE J:   That means then that the point you raise at trial would be a discharge point.  The only application to make would be discharge and that reflects on the rule 4 issue that otherwise might arise in the Court of Criminal Appeal, does it not, about whether failure to apply for discharge precludes now raising the point on the appeal to the Court of Criminal Appeal?

MR REYNOLDS:   Yes, it would.

HAYNE J:   Are you able to say whether the point was identified in that form in the court below, that is, as a point about there not having been application for discharge of the jury at trial?

MR REYNOLDS:   I do not believe in the Court of Criminal Appeal it was identified as a rule 4 point, no.

HAYNE J:   Or as a discharge point?

MR REYNOLDS:   I do not believe so.

HAYNE J:   I am not conscious of it, but I would be assisted later if counsel on either side can point me to anything that bears on that.

MR REYNOLDS:   I confess that I have not investigated the issue of standing of the Crown and their right either to appeal or to seek judicial review.  If your Honours would like a note on that, then I could do that within a short period, but ‑ ‑ ‑

FRENCH CJ:   Speaking for myself, I do not know that we would be assisted by that, but maybe –

MR REYNOLDS:   If your Honours please, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  Ms Abraham.

MS ABRAHAM:   Your Honours, in the respondent’s submission there is no error in the judgment of the majority in the court below.  The majority found there was no miscarriage of justice; consequently there was no need to deal with the proviso.  But before dealing with the legal aspects, in my submission, there are two factual aspects that are important to address at the outset.  The first is the extent to which it is said that the judge was asleep and, secondly, the concept of inattention, because my friend has used the term “superintendence” and the like in demonstrating what he says is the miscarriage of justice.

Your Honours, on the first point, the facts clearly, in the Crown’s submission, are those as found by the majority, by Justice Grove.  Your Honours, dealing with the last point that my friend has been addressing, that is, the ‑ ‑ ‑

GUMMOW J:   Just before we get into that, Ms Abraham, at page 272 of the joint appeal book, volume A, it seems to indicate that without objection from the Director leave was granted to add a ground and I think one or other of the appeals was out of time as well, was it not?

MS ABRAHAM:   Yes.  I cannot remember now specifically taking a rule 4 point, I must confess.

GUMMOW J:   It does not seem so.

MS ABRAHAM:   But I did take the point that this was not fresh evidence, this was material known to the court at the time and nothing was done about it.  To suggest I was roundly refused on that aspect is really an understatement.

FRENCH CJ:   It does not sound like a fresh evidence question.

MS ABRAHAM:   No, but I was ruled against on that point and therefore the evidence was before the court and the Crown did take the point that the proper time that the point ought to be taken is at the time, and really there are a number of reasons why that is so.

FRENCH CJ:   That may be right.  The important question is, what is the consequence of failure to take it?

MS ABRAHAM:   With respect, it does have a consequence, in my submission, and it is not simply a question of keeping something up one’s sleeve to use at a later point in time.

GUMMOW J:   I know, but the question is, was this put to the Court of Criminal Appeal and did they rule on it?  If they did not rule on it, it suggests to me it was not put to them.

MS ABRAHAM:   It was ruled by the Court of Criminal ‑ ‑ ‑

GUMMOW J:   Otherwise than en passant.

MS ABRAHAM:   Your Honour, it was ruled by the Court of Criminal Appeal that ‑ ‑ ‑

GUMMOW J:   It would have been a ground for the majority to decide the case.

MS ABRAHAM:   With respect, the court concluded, the majority – at paragraph 190, page 339 – that they did “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 ‑ ‑ ‑

GUMMOW J:   That is an evidentiary conclusion.

MS ABRAHAM:   It is, your Honour, but, with respect, that, in my submission, is the significance of the failure to take the point.  In my submission, the fact that no point was taken during the course of the trial – and indeed a reading of the transcript reflects there is no occasion where the judge has been put up saying, “Well, you’ve missed this”, or “Can you tell this to the jury” or indeed, “You’ve missed this in the summing‑up”.  There is nothing like that borne out in the transcript at all.

HAYNE J:   But it is not whether the judge missed something; it is whether the jury missed something.  The hypothesis for the argument is the judge missed something, but did the jury?

MS ABRAHAM:   With respect, when one goes to look at what the findings of the majority are in terms of the length of time that the trial judge was said to be asleep, in my submission that is critical to that concept, and one must bear in mind the jury were directed accurately and fairly on the factual matters.

HAYNE J:   Yes, if they had heard the evidence – if they had paid attention to the evidence; if they were in a position to judge the evidence.

MS ABRAHAM:   With respect, in my submission, there is no evidence to suggest that the jury were not paying attention, did not know what the accused’s defence was - quite to the contrary.

KIEFEL J:   But the inactivity of counsel, faced with what was occurring, only permits an inference that counsel were not themselves concerned with what was occurring.  But that is not conclusive of the question for the Court on the facts, is it?

MS ABRAHAM:   It is not conclusive, but in my submission it is highly significant that counsel, with the interests of their client at the forefront, chose, clearly, not to take any point about it.

KIEFEL J:   But that is to say at its highest it raises a question for the Court in terms of its fact‑finding, that it cannot answer it.  In fact, the question may not be capable of an answer in relation to what occurred to the jury.

MS ABRAHAM:   Yes.  There are a number of problems with the consequences of the fact that counsel did not raise it; one, I have already mentioned that obviously at those particular points of time nothing of genuine significance was actually happening in the trial.  But secondly, as is highlighted in a number of the overseas cases, the importance of the point being taken at the time is if the judge accepts that that is what is occurring of course it can be remedied then and there.  But of course also there it is in a record, instead of three years down the track some witnesses giving evidence of their impressions about something happening at some time or times of a trial of which there is no record.

That, in my submission, is an important consequence of the failure to take the point.  When one couples it with the question of the inference to be drawn that nothing of genuine significance was occurring and a decision being made at the time – in my submission that is relevant to the question of miscarriage.  Those sorts of factors were dealt with by the international Tribunal, the ICTY, by Justice Hunt in the case of Celebici, which your Honours should have. I accept, of course, this Court needs to consider section 6 of the legislation. I accept that, and of course in this case one is dealing with the trier of fact not being the jury but indeed the judge.

GUMMOW J:   What are we going to get out of the Appeals Chamber decision?

MS ABRAHAM:   Your Honour, what it does do is bring together some decisions of a number of courts in America and, indeed, the UK where they have been faced with the same issue and the question being raised, what effect does it have on the process.  The court in a nutshell said that it is not sufficient simply to say it happened:  (a) it must be proved to happen – that makes perfect sense.  But even assuming it is proved to happen the approach taken by the courts that they reviewed was that one looked at the effect of any such conduct on the proceedings.  What I said in a nutshell is really set out in paragraph 625.  The facts are summarised in paragraph ‑ ‑ ‑

GUMMOW J:   What was the form of the trial?

MS ABRAHAM:   It is a different form, clearly, as I indicated.

GUMMOW J:   Yes, I know.  What was it?

MS ABRAHAM:   It was a three‑member Tribunal.  One is not dealing with a jury, I accept that, although the cases they cite are cases where ‑ ‑ ‑

GUMMOW J:   Are they in a common law system?

MS ABRAHAM:   The cases they referred to were common law cases.

GUMMOW J:   All right.  Yes.

MS ABRAHAM:   With respect, as I said a moment ago, I accept that it is a different forum that is deciding the issue.  One is not dealing with a jury, one is dealing with the trial judge being the tribunal of fact.  But not surprisingly, in my submission, the court concluded that one does need to look at effect and important in that is the conduct of counsel.  At 631 they highlight the problems that arise when counsel do not take the point.  It is not simply, as I said a moment ago, that one might infer that nothing of genuine significance was happening, but of course it puts the court at a later stage in an invidious position.  Indeed, with respect, it puts the court in the position we are in now, where the Crown says the findings of the majority are not what my friends are relying on and they are different.

HAYNE J:   Could you identify at some point convenient to you precisely what are the findings of the majority that you are referring to?

MS ABRAHAM   Certainly, if I can just finish with this authority then I will go immediately to that, your Honour.  Your Honours, in paragraph 632, the Court makes the observation that the approach is indeed a “common sense” approach.

GUMMOW J:   Common sense?

MS ABRAHAM   Yes.

HAYNE J:   Counsel are usually quick to point out that their learned friend did not bring his authority or her authority to court with them when common sense is relied on.

MS ABRAHAM   Your Honours, paragraph 641 is important also, particularly in terms of the raising of the matter before the relevant court and as Justice Hunt points out in the last paragraph:

the requirement that the issue must have been raised during the proceedings is not simply an application of a formal doctrine of waiver, but a matter indispensable to the grant of fair and appropriate relief.

HEYDON J:   You say Justice Hunt - I do not see it entirely corresponding with Justice Hunt’s style and I think this is a judgment of five international judges.

MS ABRAHAM   It is the judgment of the court presided over by Justice Hunt.  Your Honours, just before going to the facts, because it has been, as I have accepted too, that is not a jury case, clearly Betson - the English case was a jury case and in Betson [2004] EWCA Crim 254, the unreported decision, paragraphs 47 and 48 deal with this issue.

GUMMOW J:   It is [2004] 2 Cr App R – is that right?  Which case are we meant to be looking at?

MS ABRAHAM:   Betson [2004] EWCA Crim - it is the unreported – the reported version does not contain all the grounds of appeal.

GUMMOW J:   I see.  Thank you.

MS ABRAHAM:   It is paragraphs 47 and 48 that deal with this aspect.  Again, in my submission, it highlights the relevance and significance of the role of counsel in the proceedings in the failure to take the objection at the time and, in my submission, the court quite properly concluded that one is looking to the effect and the two illustrations are really quite good illustrations, because, one the one hand if a judge was inattentive for a short period but missed something critical and as a result did not sum up on it, that is one matter.  On another, he might have been inattentive, or she might have been inattentive for a longer period, but nothing of significance was occurring.

KIEFEL J:   Do you deduce from this decision though that it is a question of fact in each case?

MS ABRAHAM:   Yes, and, your Honours, whilst not taking your Honours to the cases, can I refer your Honours to the American decisions that are in our list of authorities No 9 through to 14.  They are each decisions where the allegation was the judge fell asleep and, in my submission, when one reads those authorities, there are two themes throughout them.  The first is the importance of counsel taking the point at trial and the consequences of the failure to do so and, secondly, looking at the effect of the conduct on the trial.

GUMMOW J:   What happens when there is a self‑represented person?

MS ABRAHAM:   In my submission, that is clearly a different scenario and it is clearly a factual matter that would then be taken into account, but we are not dealing with that here.  We are dealing with two accused who were represented throughout.  Your Honours, there are also earlier decisions from the United Kingdom prior to Betson, they are in our submissions.  There are two Canadian decisions of recent times, two Canadian Courts of Appeal that have had to deal with the very issue, the judge sleeping.  They are the cases listed at 16 and 17 on our list of authorities.  Can I note they are 2008 cases, I think one was late 2007.  In each instance, again the judge was said to be asleep.

FRENCH CJ:   As a practical matter you would have to set the threshold at which counsel’s duty was engaged sufficiently high, I suppose, that you did not have counsel in a sort of self‑protective way constantly eying off his Honour’s or her Honour’s eyes and facial expression and so forth.

MS ABRAHAM:   Certainly.

FRENCH CJ:   How high is the threshold set before counsel has that kind of duty which affects characterisation as a miscarriage of justice?

MS ABRAHAM:   In my submission, when counsel has a genuine concern that it is affecting – whatever it is, whether the inattention is because a judge has nodded off, whether it is because a judge is appearing to be doing something else, in my submission, it is when counsel forms the conclusion that it puts the trial at risk, in effect.  In my submission, that is on a case by case basis and counsel have to ‑ ‑ ‑

HAYNE J:   Is that test any different from the ordinary discharge of jury test, high degree of necessity?  Are you putting it at some level other than high degree of necessity?

MS ABRAHAM:   I do not know, with respect, that I am putting it at any different level than that.  Your Honours, before passing from the overseas cases, the two Canadian cases which are recent cases can I indicate took the same approach as in the New South Wales Court of Appeal in Cesan.  In fact, they cited Cesan as authority for the approach that they took, albeit one of them referred to the earlier cases as well as Stathooles from the Queensland Court of Appeal.  Can I go back now and address your Honour Justice Hayne’s question on the facts.?  At 338 paragraph 189 his Honour turns to make findings of fact:

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.

Now, interrupting there, Justice Basten made that comment in relation to one witness and one witness only –

I find the probability to be that, from time to time, the judge was “nodding off” and on other occasions ‑ ‑ ‑

FRENCH CJ:   That says nothing about frequency or duration, does it?

MS ABRAHAM:   No.

FRENCH CJ:   It is ambulatory.  Then we go into 190.

MS ABRAHAM:   Yes.

FRENCH CJ:   Whatever it was, it was not significant.

MS ABRAHAM:   But, with respect, not surprising that it says nothing about frequency and duration. Three years down the track, when it had never been raised before, with all due respect to Justice Basten, I am not ‑ ‑ ‑

FRENCH CJ:   I am not asking you to justify, I am just looking at the character of the finding.

MS ABRAHAM:   Yes, that is correct.  There is no specific in terms of days, times, whatever, but, in my submission, that is not significant nor surprising given the evidence in the matter.

FRENCH CJ:   Is that inconsistent with what Justice Basten found, given its ambulatory character?

MS ABRAHAM:   It is inconsistent, in my submission.  The majority also referred to the occasions as “intermittent episodes of inattention”.  That is in paragraph 176 at 335.

FRENCH CJ:   Unconsciousness is inattention.

MS ABRAHAM:   With respect, in my submission, inattention is an appropriate way to describe because, as they recognised at paragraph 193 on page 340:

A judge (or anyone else) whose mind is disengaged from what is occurring by distraction, by deliberate choice or otherwise is as much a non participant as one whose mind has been disengaged by sleep.

And, in my submission, perfectly correct.  When your Honours consider the cases of Betson and the ICTY Case and the like, it is referred to as inattention.  Examples are given of other conduct which distracts or is capable of distracting a judge during the proceedings which may result in the judge being disengaged.

HEYDON J:   This is in Betson?

MS ABRAHAM:   In the ICTY Case, I am sorry.

HEYDON J:   What are these examples?

MS ABRAHAM:   Your Honour, assume for the moment that one is in a jury trial and is about to sum‑up to the jury.  If a judge is thinking about working on, contemplating a summing‑up.

HEYDON J:   While evidence is being given?

MS ABRAHAM:   Yes.  Perhaps reading an authority or a transcript of a telephone intercept that is being played to the jury or looking at an exhibit that had been tendered previously in the proceedings or was contemplating a ruling that needed to be given in that particular trial, not wanting to obviously delay the proceedings by adjourning for some time to give a ruling.  In my submission, those sorts of examples are, in effect, the conduct of a trial.  Matters occur in trials that require attention.

HEYDON J:   How is the jury to be summed‑up to, from the transcript of the evidence given while the judge was not concentrating on it?

MS ABRAHAM:   No, with respect.  Your Honour, the jury is to be summed‑up on, obviously, the evidence, but, in my submission, it would be untenable to suggest that every judge concentrates 100 per cent of the time through every proceeding.  It does not follow though that there may be periods of inattention, that anything flows as a consequence.  In this case, for example, not one person pointed out that the facts were wrong, that he had left out anything about the facts at all, that they did not accurately reflect the defence case and, indeed, the Crown case.  Not one thing was said about that.  He was obviously paying attention to enable that to have occurred to the satisfaction of those involved.

HAYNE J:   Does Mr Justice Grove make any finding about the effect of these episodes of inattention upon the jury?

MS ABRAHAM:   His Honour’s comments, in my submission, in that regard are those at paragraph 207 onwards, at the beginning of 344, where he rejects the conclusion of Justice Basten.

HAYNE J:   On the footing that it is the acts and omissions of the judge that matter, is that right?

MS ABRAHAM:   On the footing that one is looking at what effect it had on the trial, number one, and on the footing of the well‑established, in my submission, presumption that the juries do follow the directions of the trial judge.  In my submission, one cannot readily brush that aside in this instance because when you consider what is actually being suggested, in my submission, it pays little regard to the role of a juror and the oath they take, because in reality what is being suggested – because the judge slept from time to time, on “isolated occurrences” I think was another phrase that was used – that is at 210 at 345 of the appeal book – just because a judge does this therefore I am not going to pay attention to the evidence, I am not going to follow the directions that he gives me, and apply the law in accordance with my oath.

In my submission, there is no authority in support of that contention, quite to the contrary.  All the authorities indicate that it very much is a situation of assuming that a jury is capable of doing that and will do that.  We have in our written submissions highlighted some, in particular, in paragraph 35 where there is a quite lengthy quote from a decision of Justice Spigelman in the New South Wales Court of Criminal Appeal in the matter of Jamal.

HEYDON J:   I do not quite see the point of this submission.  I mean, there was no direction that – “Pay no attention to the occasions when I was sleeping”.  The argument that the two counsel for the appellant were putting does not really rest on proof of actual prejudice or detriment, it rests on a gesturing towards a fundamental flaw in the structure of the trial.

MS ABRAHAM:   Except, with respect – there was no direction because the matter was not raised with the trial judge, number one.  Number two, in my submission, there is no need for a direction to a jury in those circumstances where, if one accepts the wisdom of the courts, the jury does follow the directions of the judges as to the law and as to the facts.

KIEFEL J:   Is there much assistance though from a juror’s perspective to be told at the end of a trial to attend to the evidence when they have not?

MS ABRAHAM:   It might well have been at the beginning as well, which is the normal course of events.  But, in my submission, whilst there is some evidence that the jurors noticed what was occurring, there is no suggestion that they were not attending to the evidence.  My friends have referred to substantial periods, significant periods, or a significant portion of the trial.  That is not the findings of the majority.  If what you are looking at is isolated occurrences, I am not, with respect, sure why it follows, as night follows day, that they are not in fact attending as they are no doubt told to do.  In memory, and I will have my learned junior check ‑ ‑ ‑

KIEFEL J:   But if they have been distracted at any point during particularly the evidence of the accused, it is not going to help to have the judge tell them at the end that “here is the evidence”.  Are you saying that being reminded of the evidence that they may not have been focusing upon would overcome it.

MS ABRAHAM   With respect, that is assuming they were not focusing, because I said the evidence is a bit amorphous because of the length of time and not having been raised, but, in my submission, what is important is two things; (a) they were told what the evidence was and (b) whatever was occurring during these periods, counsel for the accused did not think what was occurring was, in effect, affecting the proceedings.

KIEFEL J:   Do I understand your submissions to have as a basic platform a question of degree in relation to the inattention or the judge’s distraction, the judge’s failure to take part in the proceedings?  By which I mean, do you concede there may be cases on one side of the line or the other?

MS ABRAHAM   There may be.  I mean, every case will depend on its facts.  How one determines it, in my submission, will not be on a particular time.  Even Justice Basten accepted that insignificant would not have affected proceedings, but what does one say in relation to that?  Is that one minute in a trial, two minutes, what about a one‑day trial, a five‑day trial, a six‑month trial?  Is it a portion of the trial, five per cent, one per cent?  It cannot be any of those.  If it is none of those, then it has to be effect, with respect.

KIEFEL J:   So you rely essentially upon the findings of fact made by the majority?

MS ABRAHAM:   Yes.

KIEFEL J:   And if the evidence rather more supported the findings or conclusions reached by Justice Basten, would your submissions necessarily have to change?

MS ABRAHAM   No, in my submission, on neither scenario.  There is one aspect of the evidence I omitted to take your Honours to ‑ ‑ ‑

HAYNE J:   Just before you do that, is not the premise of the argument you have just advanced in answer to Justice Kiefel that there are parts of the proceedings at trial which do not really much matter?

MS ABRAHAM   No.

HAYNE J:   Well, if once you are down into questions of effect, I do not see what other premise you can have.

MS ABRAHAM   In my submission, it is not a question of characterising this part of a trial is more important than this part of a trial.  In my submission, what one needs to look at, it not having been raised at the time, is at the end of the day, the conduct here as found by the majority in the circumstances of this trial, that is, where there has been no effect and, indeed, in terms of summing‑up and verdict and the like, in my submission, it is obvious from Justice Basten that he accepts that as well; where no counsel took the point, where nothing different would have occurred. where there compelling evidence of the guilt of the accused.  There was a direction at the beginning of the trial in relation to attention.  It is appeal book B, commencing at page 14.  The preliminary direction that a judge usually gives the jury on pages 14 and 15 of the ‑ ‑ ‑

FRENCH CJ:   A lot of it seems to have to do with keeping the jury away from engaging in their own researches or being affected by extraneous matters.

MS ABRAHAM:   But it is made clear, with respect that obviously they are the deciders of the facts.  It is essential for them to decide on the evidence presented in the courtroom and submissions made and directions of law and the like.  Your Honours, the page reference in terms of the facts that I omitted to take your Honours to is paragraph 181 where there is a reference to a particular witness.

HEYDON J:   Are these demeanour based findings?  These findings of fact by the Court of Appeal, are they demeanour based or largely based on an assessment of the probabilities as appearing in pieces of paper?

MS ABRAHAM:   The witnesses were called in the ‑ ‑ ‑

HEYDON J:   They all gave oral evidence?

MS ABRAHAM:   Yes.  The comment of the witness, “What must have been five to 10 seconds seemed to be an eternity”, the majority described that as a more realistic estimate and that relates clearly to a period in Mr Cesan’s evidence.  Your Honours, can I make two comments about Justice Basten’s findings.  There is reliance by his Honour at 292, paragraph 63, that in terms of the periods of time and frequency he relies on – that the transcript demonstrates that there were long periods where there was no intervention on the part of the judge.  For a start, can I indicate the transcript indicates that on a number of occasions there was a lot of intervention by the trial judge, but leaving that to one side for the moment, in my submission, one cannot reason from the proposition that there was no interaction, therefore the trial judge was asleep.

The obvious reason why there might be no interaction is there was no basis to interact and, with respect, particularly so here, because there has been no complaint that anything was not attended to.  So, in my submission, for his Honour to reason as he has and then to, in effect, stick that together with the fact that the man had sleep apnoea is an incorrect process of reasoning and not borne out by the evidence.

FRENCH CJ:   There was evidence of his medical condition before the Court of Criminal Appeal.

MS ABRAHAM:   Yes, there was.  That is in the first appeal book.  But, with respect, one cannot reason from not interacting that one was asleep.  As I said, the obvious inference is one is not interacting because there was no need to interact, particularly so, as I have said, where in this trial there was in some instances a great deal of interaction with the trial judge, not just ruling on matters, but being proactive in the proceedings.

The second matter in relation to Justice Basten is that the absence of calling counsel, in my submission, was brushed aside.  It was put as if it was not thought to call counsel by the appellants – that it was not thought to call them, the implication being there is nothing much they could add.  In my submission, that misses the point of the significance – paragraph 59 on 291.  It misses the significance of the attitude of counsel and, in my submission, particularly so here, where there was evidence from the witnesses that it had been drawn to counsels or solicitors, lawyers’ attention.

In one instance where that occurred, it was suggested by the solicitor, amongst other things, referring to the judge in question, “He is a good judge, in effect, better than 85 per cent of the judges he could have got.”  In other words, to use the vernacular, it was a good draw for them.  So the comment by Justice Basten which, in effect, brushes aside the fact that counsel were not called, in my submission, as I said, misses the point in terms of the inferences which are to be drawn which I mentioned earlier, but particularly so where there was evidence that it had been drawn to their attention, so there could be no suggestion they did not know what was happening; quite to the contrary.

GUMMOW J:   No, but they did not know about the medical condition.  Do we have the medical evidence?

MS ABRAHAM:   Yes, the medical evidence is there.  They did not know about the medical condition, but with respect that was not to stop them raising it, quite to the contrary.  Regardless, it is at page 250 of the first appeal book.

HEYDON J:   What is the difference between 246 and 250?

MS ABRAHAM:   Very little; I cannot remember if there was any actually.  They are differently dated, but only by one day.  I think the essence is the same.  Sorry, the recommendations are different.  Your Honours, regardless of whether or not the accused knew about the sleep apnoea, obviously if matters were occurring which were of significance, in my submission they would have been raised in the trial.  In my submission, it makes no difference whether it is this or any other conduct which leads counsel to conclude that the judge is not participating. 

When one thinks about it logically, of course, I mean the consequences of a scenario like this where one is some years down the track, if what one is doing is looking to see was the judge – or indeed the jury – were they engaged or disengaged, with respect, how does one establish that?  If a judge closes their eyes to think or to concentrate on evidence which clearly occurs, clearly not asleep, can some time down the track, it not having been raised, the accused and/or others say, “His eyes were closed.  He seemed to me to be asleep.  The jury were looking at him”, or the like?

The consequence, in my submission, of the point that is now being raised is much broader because, in my submission, it is attentiveness or inattention which is the issue as opposed to the cause, which means, with respect, that one is looking at, in my submission, the effect ultimately at the end of the day.  If it is purely a question of attentiveness or not, one would have, with respect, a myriad of inquiries down the track with, with all due respect, speculation as to whether the judge was or was not listening, was or was not interested, was he reading a book, reading a book; was he writing a judgment; was he looking out the window.

HEYDON J:   I think those are quite relevant inquiries.  Judges are not supposed to read books or work on other judgments or conduct correspondence when they are supposed to be attending to a trial.

MS ABRAHAM:   Your Honour, I am not suggesting a judge should not be being attentive to the proceedings, but, with respect, it would be naive to suggest that in every case a judge concentrates for 100 per cent of the time.

KIEFEL J:   Perhaps trial judges choose their moments might be a more accurate way of saying that.  If they are going to think ahead, as they often have to, to try to predict what is happening or think about the structure of their summing‑up, they might wait for a moment when counsel is talking about something that does not appear to be particularly important.

MS ABRAHAM:   They may well, but, with respect, running a trial one does have a number of functions, obviously, to perform. Your Honours, having said that, can I turn to section 6. Section 6 is a two‑stage process, obviously. The onus is on the appellant to establish a ground and the only ground relied on is miscarriage in this instance and only if that is established does one then turn to the proviso, in which case obviously the onus is on the prosecution.

In my submission, the court quite properly determined that there was no miscarriage of justice in this instance, so they fell at the first hurdle.  In my submission, when one is considering that issue, it does require a consideration of what did or did not occur at the trial in the context of that particular trial and the trial process and whether there was a significant possibility that it affected the particular outcome of the trial or the outcome of the particular trial.

FRENCH CJ:   Would you accept that there can be a process failure which constitutes a miscarriage of justice regardless of effect?

MS ABRAHAM:   There are some authorities that have spoken of that, without a doubt.  Indeed, in Nudd his Honour the Chief Justice made reference to that and, indeed, in Nudd Justice Kirby looked at what he talked about, the two different approaches; where there is a consequence and where there is not a consequence.  In my submission, the preponderance of authority is that one does look to see whether there is an effect.  I do not suggest there might not ever be a situation where the process might not be so fundamentally flawed, not by itself, but, with respect, when one is looking at things like incompetence of counsel, it is not enough that you prove counsel is incompetent, or prosecutor misconduct.  It is not enough that the prosecutor behaved inappropriately.  In all the authorities of recent times quite properly, in my submission, the court has focused on, has it had an effect on the proceedings, albeit the conduct being not acceptable conduct.

In my submission, that should apply equally to this.  There is no reason to distinguish this particular case in the circumstances of this case.  The accused was represented throughout.  He put his arguments, defence put their arguments, they took their objections, they got their rulings, they made submissions, the accused put his story and the defence did not think by their reaction, if one can infer, they did not conclude that what was occurring was having any significance, with respect, on the proceedings in the circumstances of, in my submission, an overwhelming Crown case.

GUMMOW J:   In your understanding of Weiss, you differ from the solicitor for Victoria in paragraph 23 of Victoria’s submissions?  The second sentence in paragraph 3 and paragraph 24.

MS ABRAHAM:   In my submission, 23 and 24 are talking about phrases, for example, the root of the proceedings and the like that have been reflected in a number of the cases before Wilde.

GUMMOW J:   No, the second sentence in 23.

MS ABRAHAM:   Again, with respect, it relates to ‑ ‑ ‑

GUMMOW J:   The answer is yes, I think.

MS ABRAHAM:   Your Honour, the sentence, in my submission, relates to the proviso and one, in our submission, has reached that stage.  In my submission, as I said, applying what this Court said in Nudd – and I will not take the Court to it, we set it out in paragraph 20 with relevant authorities in our submissions – if one takes the approach of looking to see in terms of a miscarriage what effect, if any, in the circumstances of the particular trial, in my submission, that is (a) the appropriate approach consistent with authority and (b), as it turns, out consistent with how other courts have dealt with this particular issue when faced with it.

In my submission, it is no different in some senses if one has counsel that is clearly proved to be incompetent.  That was not considered to be enough by itself to found a miscarriage, or a prosecutor that clearly acted inappropriately.  So, in my submission, the reasoning that is now being put in relation to miscarriage seems to be, with respect, that there is some prejudice really relying from the written submissions from the perception cases, Ebner and the like.

In my submission, it is not appropriate to take from cases dealing with bias the rationale behind that and import it into whether or not there is a miscarriage here.  Indeed, in the case of RPS before this Court, your Honours might remember it was an occasion where a similar argument was run, but the facts there were that there was disagreement between the counsel and the judge, or the judge and counsel, in the presence of the jury and the argument was that that would reflect on the conduct of the case.  This Court decided one cannot pull the principles in relation to a test formulated for bias when one is really dealing with what is unfair, and that is a different issue.

FRENCH CJ:   Except that beyond the interests of the parties there may be a public interest dimension in cases of process irregularity or process failure in maintaining confidence in the authority of the courts which requires one to look beyond effect, accepting that it is obviously a higher threshold and that it is a qualitative judgment and so forth.

MS ABRAHAM:   Your Honour, to answer the question, can I look at this case because from a public perception point of view the public might well be concerned that one has a trial that last two or three weeks, where people are represented by counsel, where the matter was never raised, where there is compelling evidence, where no error can be demonstrated that one can come along some years later and ‑ ‑ ‑

FRENCH CJ:   That is directing your remarks to this particular case.

MS ABRAHAM:   Absolutely.

FRENCH CJ:   I was asking if you accept that there is a category of case in which there would be a substantial miscarriage of justice based on the kind of criteria or criteria in the territory that they have talked about which are not related to effect on the outcome.

MS ABRAHAM:   In my submission, there might be in relation to – I do not accept the perception aspect – there are cases where the proviso cannot be applied because it is said one cannot be satisfied that no substantial miscarriage of justice occurs even though looking at the transcript clearly you could be satisfied of the guilt of the accused.  Clearly there are cases in that sense that fall outside the proviso.

CRENNAN J:   Does the letter to the judge have any significance in that context or do we just put that to one side?

MS ABRAHAM:   In my submission, it is relevant to the question of miscarriage for the particular accused, I might add, not the other accused, because not only was his counsel not complaining during the trial, he thanks the judge for a fair and just trial where he got an opportunity to put his defence.

HAYNE J:   This is before sentence, was it?

MS ABRAHAM:   Yes.  But, with respect, he accepts that he believed it was true at the time that he wrote it.

HAYNE J:   Yes.  If we were to get to an end point where there had to be a retrial, surely the critical thing is how that accused pleads on re‑arraignment.  That is what matters, not what he wrote after trial and before sentence, is it not?

MS ABRAHAM:   In my submission, no.  It has a relevance and that relates to the miscarriage aspect where it is has been established there has been a miscarriage.  If one gets to the proviso stage and one is conducting the independent examination of the evidence, bearing in mind all the relevant factors, then that clearly was not evidence at the trial and there is conflicting authority as to whether or not one can take a statement made after the event into account on the application of the proviso.  We have them in footnote 54 of our submissions and we are quite blunt about it.

In my submission, if one were to get to the application of the proviso, one does not need to consider that because the case, in my submission, on the evidence, was overwhelming in relation to both accused.

One only gets, with respect, to the question of the proviso if my friends have satisfied your Honours that there was a miscarriage, that there was an error in the Court of Criminal Appeal’s judgment in that respect.  If that were the case - well clearly the Crown says that this is a case capable of having the proviso applied - there is nothing about this case that would prevent a court considering the material.  There is nothing about what the irregularity is that affects in any way that process.  It is not like the case of Evans where what was missing was the alibi evidence.  So we are not in those sorts of territory.

When one is applying the proviso, in my submission it is important, as this Court has repeatedly said in recent times, not to simply look at words like “root of the proceedings” and the like, or “fundamental error” and they are the words my friends have kept using.  What one has to look at is whether there has been substantial miscarriage of justice, and in my submission, when one is doing that, one does look at the evidence and does conduct an independent examination of the evidence.

My friends have not pointed to anything here that would prevent that occurring.  There is nothing about this trial or this complaint that would prevent that happening and, in my submission, that is quite critical because when asked, with respect, earlier about that, my friends in effect said “Well, it is fundamental”.  When one is looking at whether something is, to use the terminology, “fundamental”, even from the earlier cases, Wilde, Glennon, and the like, it is not just looking at the particular incident in isolation.  It is looking at what the error is said to be in the context of that particular trial to determine whether it even falls within those sorts of categories in the first place.

That is why it is not a situation that an error in relation to an element of an offence for example is always considered to be fundamental, because one looks at the circumstances of the given trial and when one is talking about when the proviso might not be applied, in my submission it is when

there is something that would prevent it from being able to be applied, and there is nothing here that does that; quite to the contrary.

When one is applying the proviso, in my submission it is clear from Weiss that one is not to speculate about what a jury may or may not have done, because that is not the task, as this Court in Weiss quite properly recognised.  If you have got to the proviso then quite clearly there is an error.  You cannot assume the jury did not act on it.  For example, in Weiss it was that evidence was admitted that was discreditable to the accused.

So when one is dealing with the proviso, one is not, in my submission, speculating whether a jury did or did not take this into account or do this or do that.  It is, in my submission, looking at what occurred and conducting the independent examination in the context of the circumstances of this trial with what is accepted, in my submission, by both the majority and the minority of no error, compelling case and the like, which I have already mentioned before.  And so, in my submission, it is a case that got to that that is clearly capable of having the proviso applied.

In relation to the rule 4 matter, as I said earlier, I do not remember raising it, but we will check over lunch just to make sure one way or the other, if that is convenient.

FRENCH CJ:   Thank you, Ms Abraham.  Mr Game in reply.

MR GAME:   Your Honour Justice Hayne asked Ms Abraham a question about whether the judge made factual findings about the effect on the jury and you were directed to paragraphs 207 to 209 of the judgment.  One of the critical errors, in our submission, in this judgment is found in those paragraphs because there are no findings.  That is the whole point of it.  It is dealt with by resort to a presumption and that is the critical place at which it ‑ ‑ ‑

GUMMOW J:   Could you just illustrate that?

MR GAME:   Yes, your Honour.  In paragraphs 207 to 209 his Honour is dealing with an aspect of Justice Basten’s judgment where his Honour Justice Basten says if the judge does X because of Stead, in effect, you do not need to go on to this further process.  But in any event, Justice Basten did find in the paragraphs I took you to that the jury were distracted.  Now, nowhere in his judgment has Justice Grove dealt with the effect on the jury, the passages I have referred to, but when you come to this part, his Honour, as it were, turns the thing on its head. 

His Honour turns the thing on its head when he deals with Justice Basten’s conclusion that the judge’s directions to the jury were undermined by what he, the judge, had done.  Justice Grove answers this, not by reference to what actually happened, but by reference to an assumption about what juries do, divorced from the facts of the case.  So, in our submission ‑ ‑ ‑

GUMMOW J:   Where do we see his Honour doing that actually?

MR GAME:   Where can we see it?  At 209 to 210, the last sentence in 210:

I see no reason to depart from the established presumption that jurors act in accordance with the instructions –

It is to be remembered that what he is responding to is Justice Basten’s specific criticisms which your Honour Justice Gummow took me to first thing this morning under the heading “The alternative approach:  unfairness miscarriage”.  So that is a very powerful point, in our submission, which it can be seen that the reasons break down.  I hope I have answered that adequately.

Now, in respect of the facts, a question that your Honour the Chief Justice asked about, the ambulatory nature of the findings of fact in paragraph 189 and then Ms Abraham took you to paragraph 190, but there is no help to be found in paragraph 190 because the word “significance” in 190 means significance in the sense in which the Crown has put to the court and Justice Grove has already accepted significance in the context of errors and omissions in the conduct of the trial itself, for example, directions and so forth.  So, as it were, because of the constraints of law in which Justice Grove has brought to his assessment, he has, in effect, dealt himself out of dealing with the factual issues.  That explains why he has not actually gone on to make any proper findings of fact.  Now, in respect of this question of objection ‑ ‑ ‑

GUMMOW J:   What follows from that?  Do we have now to make them?

MR GAME:   What follows from that is at the first instance we would submit that the appropriate approach is to adopt the findings of fact made by Justice Basten because Justice Basten has addressed himself to the problem correctly.  He has framed the legal questions correctly.  Justice Grove’s judgment, in effect, goes because of the legal errors that undermine the processes of his reasoning.

HEYDON J:   Even if there is a difference between Justices Basten and Grove and even if we should adopt Justice Grove’s view for some reason, your arguments would still be equally good or equally bad, would they not?

MR GAME: We would submit so, your Honour. That is one of the points that we do make in our reply, yes. It is only if the thing breaks down – sorry, can I just put this to your Honours. In terms of what the Court of Criminal Appeal is doing, it is exercising original jurisdiction under section 12 of the Criminal Appeal Act, receiving the evidence, and that is discussed in paragraph 23 of Weiss and then this Court is obviously exercising pure appellate review of the Eastman variety under section 73 of the Constitution but this Court is entitled to, once it has found that there is error in the approach of Justice Grove, make its own assessment of what these facts disclose.

That is not complicated in this case because of the very limited nature of the attack, the lack of any suggestion that demeanour factors were relevant or that there was any interest or collusion that had any relevance.  In our submission, that brings one back to Justice Basten’s findings of fact.

On this question of absence of objection, no rule 4 point was taken.  Justice Basten dealt with the issue in paragraph 60 of his judgment where he says in the last line, “In any event, this matter is not explored on the appeal”.  The point has also been made that the jury did not know that the judge was ill.  That, of course, is significant.  I wanted to make a couple of other points about this subject.  One is that the waiver argument put in some of our opponent’s submissions in respect of apprehended bias works in a different way because waiver has the character of taking away the apprehension, whereas this works in a different way than that.  It would work in exactly the reverse way, and questions were asked about the position of the prosecution.  If it was a victim crime and the victim’s family were in court and there was an acquittal, then the very same disquiet would arise in respect of what had occurred.

The other thing about sleeping is that sleeping is a continual thing and the last, perhaps most important piece of sleeping was while the accused Cesan was giving his evidence.  I might just mention also, your Honours – there is no need to turn it up at this moment, but at pages 229 to 230 in Mr Cesan’s evidence it is clear that he complained to his counsel and solicitor frequently about this subject and the effect of what they said, in effect, was that they could not do anything about it.  If one is talking about waiver, there was certain – and they were not challenged on that evidence as I recall.

I think those are all the matters I wanted to put in reply.  May I just mention in the co‑appellants list of authorities three cases on pages 22, 23 and 24.  They are all sleeping judge or tribunal cases – they are not of great significance but they come to a different conclusion than cases such as Betson.

May I just mention also the two Canadian cases referred to by Ms Abraham, referred to in paragraphs 16 and 17 of her submissions.  They are cases in which the judges say they have looked high and low and cannot find cases on this but they found an Australian case called Cesan.  So that does not actually help.  Those are all the matters I wanted to put in reply, if the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  Mr Reynolds.

MR REYNOLDS:   I have nothing in reply, your Honours.

FRENCH CJ:   Thank you, Mr Reynolds.  The Court will adjourn until 2.15 pm.

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ:   Yes, Ms Abraham.

MS ABRAHAM:   In relation to the rule 4 issue, we have checked the transcript.  It was raised by Justice Basten to counsel for Mr Cesan and counsel said it did not apply.  We do not demur from that position.  Can I indicate that, however, from the outset we clearly did challenge the admissibility.  We challenged the admissibility of the affidavits on the basis they were not fresh and, indeed, a tactical decision had been made and we argued waiver on a number of occasions.  We can give your Honours page references in need be.  Can I indicate what rule 4 actually says because it does not apply across the board?  It says:

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

So it is fairly particular.

FRENCH CJ:   Thank you, Ms Abraham. 

I thank counsel for their assistance.  The Court has come to a view on this matter and will make orders now and publish reasons later.

In appeal number 233 of 2008 the orders of the Court will be:

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.

In appeal number 236 of 2008, Rivadavia, the orders of the Court are:

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.

As I have indicated, we will publish our reasons later.

AT 2.17 PM THE MATTER WAS ADJOURNED