Cesan v The Queen

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

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

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