Duncan, Paul Parepano v Regina - [2015] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DUNCAN, Paul Parepano v Regina [2015] NSWCCA 84
Hearing dates: 2 February 2015
Decision date: 04 May 2015
Before: Simpson J at [1];
Hall J at [94];
Campbell J at [207]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – appeal – conviction – conduct of judge – whether judge was asleep at times during trial – whether conduct of trial judge distracted jury – whether conduct of trial judge resulted in a miscarriage of justice under Criminal Appeal Act 1912 (NSW) s 6(1) – whether trial judge exercised supervision and control –duty or obligation of trial counsel to raise asserted deficiencies in the conduct of the trial – sleep episodes of trial judge – interference with trial judge’s supervision and conduct of the trial not established– appeal dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 76, s 78, s 79(1)
Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act 1995 (NSW), s 56, s 59, s 69, s 76, s 79, s 102, s 108
Cases Cited: Bale v Mills [2001] NSWCCA 226
Cesan v Director of Public Prosecutions (Cth); Mas Rivadavia v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
Kendirjian v Ayoub [2008] NSWCA 194
Nguyen v R [2008] NSWCCA 322
R v Duncan; R v Perre [2004] NSWCCA 431
Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422; 79 ALJR 881
Category: Principal judgment
Parties: Paul Parepano Duncan (Appellant)
Regina (Respondent)
Representation:
Counsel:
K Borick QC; D Moen (Appellant)
N Williams (Respondent)
Solicitors:
Edge Law (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2002/9065
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

30 November 2002

Date of Decision:

30 November 2002

Before:

Dodd DCJ

File Number(s):

2002/9065

Judgment

SIMPSON J: This is an appeal against a conviction by a jury in 2003. Section 6(1) of the Criminal Appeal Act 1912 (NSW) requires this Court to allow an appeal against conviction on a variety of specified grounds, one of which is “that on any other ground whatsoever there was a miscarriage of justice”. The history is somewhat unusual, and will be set out below. The appeal is based upon assertions of fact about the manner in which the trial was conducted by the trial judge. The appellant asserts that, within the meaning of s 6(1), there was a miscarriage of justice because the judge was asleep for significant periods during the course of the trial. He further asserts that that fact had two important consequences: one, that the judge failed to discharge his duty of supervision and control of the trial, and two, that the jury were aware of the judge’s indisposition, and were distracted by it and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCCA 84
Decision Date: 04 May 2015

CaseChat Overview and Summary

The appellant, Paul Parepano Duncan, appealed against his conviction and sentence, arguing that the trial judge's conduct during the trial was so deficient that it amounted to a miscarriage of justice under section 6(1) of the Criminal Appeal Act 1912 (NSW). The primary issue before the court was whether the judge's conduct, including episodes where he appeared to be asleep, distracted the jury and thereby interfered with the trial process. Another issue was whether trial counsel had a duty to raise concerns about the judge's conduct.

The court held that the trial judge's sleep episodes did not constitute a miscarriage of justice under the Act. The trial judge exercised supervision and control throughout the trial, and there was no evidence that the jury was distracted or that the trial was otherwise compromised. The court found that the trial judge's conduct did not interfere with his ability to supervise and control the trial. The court also considered whether trial counsel had an obligation to raise concerns about the judge's conduct. The court determined that the failure to raise such concerns did not amount to a miscarriage of justice. The appeal was dismissed as the deficiencies in the trial judge's conduct did not reach the threshold required by the Act.

Orders