Citation: The Application of Robert Minniti [2011] NSWSC 835
Court: Supreme Court of New South Wales
Date: 20 July 2011
Judge(s): Latham J
Background
The applicant had been convicted by a jury in December 2004 of attempting to possess a commercial quantity of MDMA (ecstasy) imported into Australia. He was sentenced to a non-parole period of eight years, with a head sentence of twelve years. His appeal against conviction and sentence was dismissed by the Court of Criminal Appeal in February 2006.
The applicant subsequently sought a further inquiry into his conviction under the Crimes (Appeal and Review) Act 2001. His application rested on a ground not argued at the earlier appeal: that the trial judge and several jurors had been observed sleeping at various points during the trial.
The affidavit evidence assembled in support of the application came from the applicant's family members, his solicitor, and others present at trial. It described episodes of apparent sleep by the trial judge lasting up to 20 minutes, as well as observations that up to three jurors had "nodded off" at times. The applicant argued this constituted a significant departure from the proper conduct of the trial.
Legal Issues
- Whether the evidence of the trial judge's apparent inattention gave rise to a "doubt or question" as to the applicant's guilt, sufficient to warrant referral to the Court of Criminal Appeal under s 79 of the Crimes (Appeal and Review) Act 2001
- Whether the judge's conduct amounted to a substantial failure to perform judicial duties, in reality or in appearance
- Whether the conduct of the judge or jurors affected, or created a risk of affecting, the outcome of the trial
Decision
Latham J noted that the power to refer a case under s 79 is an administrative function, not a judicial act, and can only be exercised where there is a "doubt or question" as to the convicted person's guilt. The standard requires something more than a bare possibility of error; the court must experience a genuine sense of disquiet or unease before referring the matter.
The judge accepted, for the purposes of the application, that the trial judge may have appeared to sleep or did sleep for relatively short periods during the trial. However, Latham J found no substantial failure by the trial judge to perform his duties, either in reality or in appearance. Notably, the applicant's own counsel at trial, who was best placed to observe any inattention from the bar table, made no reference to audible snoring or to jurors falling asleep, despite being far closer to the bench than members of the applicant's family in the public gallery.
On the question of jury conduct, Latham J observed that episodes of fatigue and momentary inattention among jurors fall within the accepted "margin of appreciation for human limitations." The affidavit evidence did not establish a compelling connection between the judge's conduct and any juror falling asleep, distinguishing the facts from those in Cesan v The Queen, where such a connection had been demonstrated.
Critically, the court found that even accepting the episodes of apparent sleep, they could not have affected the outcome of the trial or created a risk of doing so. The issues for the jury were narrow. The applicant had made formal admissions covering most of the Crown case, leaving the jury to focus on a single inference: whether the applicant knew the bag contained an illicit drug. The jury received written directions and had a relatively straightforward task. Taking all of this into account, Latham J found no doubt or question as to the applicant's guilt and refused the application.
Orders Made
- The application was refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may only refer a conviction to the Court of Criminal Appeal if there is a genuine "doubt or question" as to the convicted person's guilt; a bare assertion of procedural irregularity is not sufficient.
- A trial judge's apparent or actual inattention during portions of a trial does not automatically warrant a new inquiry. The conduct must have affected, or created a real risk of affecting, the outcome before it will ground relief.
- Momentary fatigue or inattention among jurors falls within a recognised "margin of appreciation for human limitations" and does not, of itself, establish that a trial miscarried.
- The absence of corroboration from those best placed to observe misconduct, such as counsel seated at the bar table, can weigh significantly against applications relying on lay witness accounts from the public gallery.
- Where the trial issues were narrow and the jury received written directions, a court conducting a post-conviction inquiry may be more readily satisfied that incidental judicial inattention did not affect the verdict.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 79
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 184
Cases:
- Robert Minniti v R [2006] NSWCCA 30
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52
- Cesan v Director of Public Prosecutions; Mas Rivadavia v Director of Public Prosecutions [2007] NSWCCA 273
- TKWJ v The Queen (2002) 212 CLR 124
- Nudd v The Queen (2006) 80 ALJR 614
- Application of Pedrana [2000] NSWSC 970