Citation: CESAN v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); MAS RIVADAVIA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2007] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 5 September 2007
Judge(s): Basten JA; Grove J; Howie J
Background
Two appellants were convicted by jury in the District Court on 28 June 2004 of conspiracy to import a commercial quantity of ecstasy into Australia, contrary to the Criminal Code 1995 (Cth) and the Customs Act 1901 (Cth). Both received substantial custodial sentences: the first appellant received 13 years and 6 months imprisonment with a nine-year non-parole period, and the second received an effective sentence of 15 years with a ten-year non-parole period (incorporating a separate heroin importation conspiracy).
On appeal, both appellants raised a striking factual complaint: that the trial judge had fallen asleep on a number of occasions during the trial. They argued that this constituted a miscarriage of justice requiring their convictions to be quashed. They also challenged the trial judge's directions to the jury on lies and on the elements of the conspiracy offence, and separately sought leave to appeal against the severity of their sentences.
The appeal required the Court to grapple with a fundamental constitutional question: what are the essential requirements of a trial by jury under s 80 of the Commonwealth Constitution, and does a judge sleeping during trial necessarily breach them?
Legal Issues
- Whether the trial judge's periods of sleep during the trial occasioned a miscarriage of justice, including whether this breached s 80 of the Commonwealth Constitution
- Whether the District Court was properly constituted within the meaning of s 11(1) of the District Court Act 1973 (NSW) during periods when the judge was asleep, and what "before a Judge" requires
- Whether the trial judge erred in his directions to the jury concerning the drawing of inferences from lies (known as a Zoneff direction)
- Whether the trial judge's summing-up adequately addressed the elements of the conspiracy offence as defined by the Commonwealth Criminal Code
- Whether either appellant could demonstrate a justifiable sense of grievance arising from disparity between their sentences and that imposed on a co-offender
Decision
The sleeping judge ground (the central issue)
The Court divided on the central ground. Basten JA, dissenting on this point, found as a matter of fact that the judge was genuinely asleep on multiple occasions during the trial, not merely appearing to be so. His Honour reasoned that an alert, present, and conscious judge is an essential feature of a trial by jury under s 80 of the Constitution. On that view, any absence or sleep that was more than momentary or insignificant amounted to a constitutional breach, and neither the consent of the accused nor the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) could cure such a departure. Basten JA would have allowed the appeal on this basis, without requiring the appellants to demonstrate that the sleeping actually caused a specific consequential error.
Grove J and Howie J disagreed. The majority held that although a judge sleeping during a trial is plainly unacceptable, judicial inattentiveness does not automatically warrant appellate intervention. The majority's position was that the convictions should stand unless the sleeping could be shown to have resulted in some actual error or to have deprived the accused of a fair trial in a material respect. On the evidence before the Court, the trial had followed no different course as a result of the judge's periods of sleep, the jury had received full and correct directions, and the evidence of guilt was compelling. The majority therefore declined to quash the convictions on this ground.
Directions on lies and conspiracy elements
The Court also dismissed the grounds relating to the trial judge's directions. The majority found that the directions given to the jury at the commencement of the trial and at the end of evidence and addresses were untainted by error. There was no established basis for concluding that the jury had failed to act in accordance with the judge's instructions, and the presumption that jurors follow directions remained intact. The grounds concerning the Zoneff direction and the elements of the conspiracy offence were rejected.
Sentence disparity
All three judges agreed on the sentence appeals. Following the outcome of a Crown appeal against a co-offender's sentence (Mr Andres), neither appellant could demonstrate a justifiable sense of grievance by comparison. No error by the sentencing judge was identified, and the sentences fell within the proper range of discretionary sentencing. Leave to appeal against sentence was granted, but the appeals were dismissed.
Orders Made
In matter 2007/3286 (Cesan):
- Extension of time for leave to appeal granted
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
In matter 2005/4195 (Mas Rivadavia):
- Extension of time for leave to appeal granted
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Note: The High Court subsequently granted special leave to appeal on 16 May 2008 and allowed the appeals on 6 November 2008.
Key Takeaways
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A significant division emerged within the Court of Criminal Appeal on the question of whether a judge sleeping during a trial automatically constitutes a miscarriage of justice: Basten JA held it does (subject to a de minimis threshold), while Grove J and Howie J held that appellate intervention requires demonstrated prejudice or actual error flowing from the inattentiveness.
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Under s 80 of the Commonwealth Constitution, Basten JA's dissent articulated that an alert, present, and conscious judge is an essential imperative of a trial by jury, such that any breach beyond the momentary or trivial would be irremediable regardless of the accused's acquiescence or the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).
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The majority confirmed the continuing force of the presumption that juries act in accordance with the directions they are given, and declined to disturb that presumption merely because the trial judge had been inattentive at points unconnected with those directions.
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Sentence disparity between co-offenders does not of itself establish a justifiable sense of grievance where subsequent appellate proceedings have altered the co-offender's sentence, removing the apparent differential.
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The decision's ultimate significance is qualified by its appellate history: the High Court granted special leave and allowed the appeals, meaning the majority's approach in the Court of Criminal Appeal did not represent the final word on this constitutional question.
Legislation and Cases Referenced
Legislation
- Commonwealth Constitution, s 80
- Criminal Code 1995 (Cth), s 11.5
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Act 1912 (NSW), ss 6, 10(1), 12
- Criminal Procedure Act 1986 (NSW), ss 3, 46, 130, 131, 132
- District Court Act 1973 (NSW), ss 8, 9, 11, 166
- Evidence Act 1995 (NSW), ss 20, 55
- Judiciary Act 1903 (Cth), ss 8, 9, 68, 78B
- Judicial Officers Act 1986 (NSW), s 15
Key Cases
- Zoneff v The Queen (2000) 200 CLR 234
- Cheatle v The Queen (1993) 177 CLR 541
- Brownlee v The Queen (2001) 207 CLR 278
- Cheng v The Queen (2000) 203 CLR 248
- Wu v The Queen (1999) 199 CLR 99
- Nudd v The Queen [2006] HCA 9, (2006) 80 ALJR 614
- Brown v The Queen (1986) 160 CLR 171
- Weiss v The Queen (2005) 224 CLR 300
- Maher v The Queen (1987) 163 CLR 221
- Petroulias v R [2007] NSWCCA 134
- R v Brown & Tran (2004) 148 A Crim R 268
- Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330
- The King v Snow (1915) 20 CLR 315
- Regina v Betson & Ors [2004] EWCA Crim 254