Citation: Application by Robert Roberti pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 683
Court: Supreme Court of New South Wales
Date: 23 May 2014
Judge(s): R A Hulme J
Background
The applicant was convicted by a jury of being knowingly concerned in the importation of a commercial quantity of cocaine into Australia, following a trial in the District Court that ran for almost eight months in 2001. He was one of seven co-accused tried together. The trial judge sentenced him to 24 years' imprisonment with a non-parole period of 16 years.
An appeal against both conviction and sentence was dismissed by the Court of Criminal Appeal in December 2003. Three co-accused had their convictions quashed and new trials ordered, but the applicant's appeal was dismissed on all grounds.
The applicant then sought a further inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), asking the Supreme Court to refer the whole case to the Court of Criminal Appeal. The central contention was that the trial judge had slept during portions of the trial, and that this allegation should cause the previously dismissed appeal grounds to be reconsidered.
Legal Issues
- Whether evidence that a trial judge may have slept during portions of a lengthy trial constitutes a doubt or question about the applicant's conviction sufficient to warrant referral to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001.
- Whether the sleeping allegation, when considered alongside two previously dismissed appeal grounds (concerning the trial judge's failure to discharge the jury), gave rise to a sense of unease or disquiet about the conviction.
- Whether the applicant established that the jury was distracted or otherwise affected by any sleeping on the part of the trial judge, in the sense required by the High Court's analysis in Cesan v The Queen (2008) 236 CLR 358.
Decision
Hulme J refused the application. His Honour accepted that the relevant test under s 78 is whether there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances, or as to any part of the evidence. The judge noted that an allegation of judicial sleeping does not, on its own, establish a miscarriage of justice. Consistent with the High Court's reasoning in Cesan, the proper focus is on whether there was an actual departure from the proper conduct of the trial, not simply on the cause of any such departure.
In Cesan, there had been clear evidence that the jury was distracted from paying attention to the evidence. Here, the applicant offered only bare assertions of jury distraction. Nothing in the material provided any definitive basis for concluding the jury failed to perform its task of attending to the evidence because of the judge's conduct. The applicant's reliance on the sleeping allegation to bolster the two previously dismissed appeal grounds therefore failed.
Hulme J also noted that the strength of the Crown case weighed against any finding of doubt or unease. The applicant sailed on the vessel carrying 383 kilograms of pure cocaine, used false passports, gave police a false name on arrest, knew of his co-offender's criminal history, referred to the vessel in coded terms, and engaged in relaxed telephone conversations with a co-offender after apparently learning about the cocaine on board. The evidence did not produce any doubt or question as to the applicant's guilt.
Orders Made
- The application was refused.
Key Takeaways
- Evidence that a trial judge may have slept for portions of a trial does not, without more, establish a miscarriage of justice or justify referral of a conviction for further appellate review.
- Under the Cesan principle, the relevant question is whether there was an actual departure from the proper conduct of the trial, with demonstrable impact on the jury's ability to perform its task, rather than whether the judge's drowsiness was the cause of any problem.
- Bare assertions of jury distraction are insufficient. There must be something more than speculation linking the judge's conduct to a failure by the jury to attend to the evidence.
- A sleeping judge allegation does not revive or strengthen previously considered and dismissed appeal grounds unless a concrete connection is established between the judicial conduct and the specific failures alleged in those grounds.
- Refusing the application, the Supreme Court applied reasoning consistent with Latham J's earlier decision in The Application of Robert Minniti [2011] NSWSC 835, confirming that episodes of apparent fatigue in a lengthy trial will not, without demonstrated impact on the proceedings, undermine a conviction.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Customs Act 1901 (Cth), s 233B(1)(d)
Cases
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
- Cesan v Director of Public Prosecutions (Cth); Max Rivadavia v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
- R v Bartle [2003] NSWCCA 329; 181 FLR 1
- R v Bateman [2000] NSWSC 915
- The Application of Robert Minniti [2011] NSWSC 835
- The Application of Raymond Grant Pedrana [2000] NSWSC 970; 17 A Crim R 459
- Application of Peter James Holland under s 78 Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251