Citation: DUNCAN, Paul Parepano v Regina [2015] NSWCCA 84
Court: Court of Criminal Appeal, New South Wales
Date: 4 May 2015
Judge(s): Simpson J, Hall J, Campbell J
Background
The appellant was convicted by a jury in 2003 in the District Court of maliciously inflicting grievous bodily harm and affray. Both he and his co-offender were sentenced to lengthy terms of imprisonment. A conviction appeal in 2004 was dismissed, with that appeal confined to evidentiary rulings and jury directions. No complaint about the trial judge's conduct was raised at that time.
The same trial judge later presided over the 2004 Cesan drug trial, in which it was established that the judge had been asleep for significant periods. The High Court in Cesan v The Queen (2008) quashed those convictions and ordered new trials, finding a substantial failure of the judicial process. Following that outcome, the appellant sought to re-agitate his own conviction on the basis that the same judge had been asleep during his 2003 trial.
The appellant contended that the judge's sleeping constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) on two grounds: first, that the judge failed to exercise proper supervision and control of the trial; and second, that the jury noticed the judge's condition and were distracted by it to the point of failing to treat the proceedings with appropriate seriousness.
Legal Issues
- Whether the trial judge was in fact asleep during significant periods of the 2003 trial.
- Whether any sleep episodes by the trial judge caused a failure of supervision and control of the trial, constituting a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW).
- Whether the jury was distracted by the judge's conduct to the point of not paying proper attention to the evidence.
- What obligations rested on trial counsel to raise concerns about the judge's conduct at the time.
Decision
The Court unanimously dismissed the appeal. All three judges agreed that, while the High Court's decision in Cesan established the correct legal framework, the factual foundation required to invoke that framework was not made out in this case.
The Court in Cesan drew two strands of reasoning. French CJ focused on whether, by reason of sleep episodes, there existed the reality or appearance that the trial judge had substantially failed to discharge the duty of supervision and control. The remaining members of the High Court placed greater emphasis on the consequences for the jury, asking whether the jury was actually distracted from paying proper attention to the evidence. The Court of Criminal Appeal accepted both approaches as applicable, but found the appellant had not established the necessary facts under either strand.
On the first ground, the evidence before the Court did not establish that the judge's supervision and control of the trial had been materially impaired. Trial counsel had been vigilant in assisting the judge throughout the proceedings. On the second ground, the Court was not satisfied that the jury was distracted in any substantial way from the evidence. One witness described the jury foreperson making sketches, and jurors occasionally appearing to be in good humour, but the Court characterised any such diversions as fleeting and not amounting to the kind of substantial distraction that had been demonstrated in Cesan.
The Court also observed that counsel representing the appellant during the original trial appeared to have been alert to the judge's condition and active in compensating for it, which distinguished this case from the circumstances in Cesan.
Orders Made
- The appeal is dismissed.
Key Takeaways
- The High Court's decision in Cesan establishes that a sleeping trial judge can constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW), but only where the evidence demonstrates either a substantial failure of supervision and control, or that the jury was materially distracted from paying proper attention to the evidence.
- Establishing that the same judge fell asleep in another trial is not, by itself, sufficient to ground a miscarriage of justice in a different trial. Each case requires proof of the judge's conduct and its consequences in that particular proceeding.
- A conviction for miscarriage of justice on this basis requires a solid evidentiary foundation. Where the evidence of jury distraction is limited to fleeting or minor episodes, courts will not draw the conclusion required to support an appeal.
- The Court of Criminal Appeal confirmed that vigilance by trial counsel in assisting the judge with the proper conduct of a trial is a relevant consideration when assessing whether supervision and control was, in substance, maintained.
- In dismissing the appeal, the Court noted that trial counsel's duty to raise concerns about the conduct of proceedings is a live consideration, though the Court ultimately decided the matter on the insufficiency of the factual evidence rather than on any failure by counsel to object at the time.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 78, 79(1)
- Evidence Act 1995 (NSW), ss 56, 59, 69, 76, 79, 102, 108
Cases:
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
- Cesan v Director of Public Prosecutions (Cth); Mas Rivadavia v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
- R v Duncan; R v Perre [2004] NSWCCA 431
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- Bale v Mills [2001] NSWCCA 226
- Nguyen v R [2008] NSWCCA 322
- Kendirjian v Ayoub [2008] NSWCA 194
- Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422