CESAN v DIRECTOR OF PUBLIC PROSECUTIONS

(1) The trial judge erred by failing to sum up on the elements of the offence of conspiracy as prescribed by the Commonwealth Criminal Code.

(2) The trial judge erred in his directions on lies. 9 On the first day of the hearing before this Court, namely 8 June 2007, leave was sought by counsel then appearing for Mr Mas Rivadavia to add a further ground in the following terms: "2(a) The trial judge erred in respect of his directions concerning the evidence of the appellant's alleged omissions in the account he gave in earlier sentencing proceedings."

There being no objection from the Director, leave was granted in relation to the addition of that ground. 10 Mr Mas Rivadavia also sought to add a further ground, by notice filed on 4 June 2007, in the following terms: "(3) A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial."

No objection was taken by the Director and leave was granted to include that additional ground of appeal in relation to conviction. 11 The grounds of appeal filed on behalf of Mr Cesan on 11 April 2007, so far as they related to conviction, read as follows: "(1) A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial. (2) A miscarriage of justice was occasioned by the failure of the learned trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant." 12 The ground relying upon the allegation that the trial judge was asleep during the trial can thus be seen to have surfaced first in the grounds filed for Mr Cesan. An affidavit was sworn by Mr Cesan in support of the ground and further affidavits were filed in his appeal from a number of relatives and friends who had attended during the trial and had observed the judge sleeping. The deponents of those affidavits were called for cross-examination at the hearing of the appeal and it will be necessary to make further reference to their evidence in due course. The position taken by counsel for Mr Mas Rivadavia was, in substance, that he sought to rely upon the same material, in support of the same ground, and two affidavits were filed on his behalf. To a significant extent, his counsel also adopted the submissions made by Mr Dhanji, who appeared for Mr Cesan. 13 For reasons which will be given below, there is no substance in the complaint on behalf of Mr Mas Rivadavia that the elements of the offence were not adequately explained to the jury, nor in the complaints raised by both Appellants concerning directions with respect to the use which may be made of lies told by the Appellants. The complaints based upon evidence that the judge was asleep during significant parts of the trial are of more substance and will be dealt with first. In order to place those arguments in their factual context, it is necessary to provide some brief background to the issues which arose at trial and an assessment of the evidence given on the appeal. The trial 14 As noted above, the case for the prosecution at trial was directed to the circumstances in which six parcels or packages were delivered via Federal Express from Belgium or Germany to Sydney. Different consignees were named with respect to various packages and some brief evidence was called from staff of the nominated consignees. However, the prosecution case was almost entirely dependent on the paperwork, including airway bills, for the various packages, and intercepted telephone communications between those said to be involved in the conspiracy. The significance of the telephone intercepts can be derived from the transcript of evidence taken in the prosecution case. Thus, after a brief hearing on 31 May 2004, the prosecution case ran for seven days. Of the time devoted to evidence over those seven days, more than five days was devoted to the evidence of Ms Gail McClure, a federal officer, through whom the telephone intercepts were admitted. 15 The case for the Appellant Cesan was that he was involved (with Mr Andres) in a band and they were seeking to obtain a pirated copy of computer software, which was prohibitively expensive in Australia, if obtained legally. There was some short evidence called from a sound engineer who had been involved with the band, in support of that explanation. Otherwise, the evidence for the defence, which ran for four days, was that of the Appellants. Addresses commenced on day 13 of the trial. 16 The prosecution case, based on the telephone intercepts, required inferences to be drawn in relation to fictitious names and deciphering a code which was used to communicate the numbers of the consignment notes or airway bills. In broad terms, the evidence of the Appellants was directed to providing an alternative explanation of the intercepts, both of oral conversations and text messages, upon which the prosecution case was based. There was one further complication, which became relevant in relation to the sentence appeals, namely that the Appellant Mas Rivadavia (but not the Appellant Cesan) was involved in a separate conspiracy to import heroin from Hong Kong, a matter to which he had already pleaded guilty and for which he had been sentenced. Part of his defence was an attempt to establish that there was no separate conspiracy to import ecstasy from Belgium or Germany of which he had any knowledge. 17 Even construing the intercepted conversations and messages in the manner suggested by the prosecution was likely to have left significant portions unintelligible. Those parts which were said to reveal a conspiracy to import narcotics were the subject of extensive cross-examination of each Appellant. There can be little doubt that the case turned, primarily, on whether the jury accepted the explanations given by the Appellants and thus turned on the credibility of their evidence in that regard. Conviction appeal - sleeping judge 18 The focus of the case on appeal was the challenge to the legality of the trial based on evidence that the trial judge had fallen asleep on several days and for significant periods, including during the oral testimony of the Appellant Cesan. 19 Although counsel for the Director persisted in referring to evidence that the judge "appeared" to be asleep, it was clear from the evidence of the witnesses before this Court that the judge did fall asleep, although there was a further factual issue as to the extent to which that occurred. To resolve that dispute it is necessary to address the evidence of the various witnesses called, particularly by the Appellant Cesan and by the Director, who called counsel who had appeared for the prosecution at the trial. 20 Before undertaking that task, it is appropriate to note that Ms Abraham QC, who appeared for the Director, took issue with the suggestion that this Court should engage in such an exercise and challenged the admissibility of evidence directed to that matter. The very nature of the exercise was, she submitted, an indication that the legal basis of the challenge was flawed. It was convenient to admit the evidence, subject to consideration of the legal principles and the evidence was admitted on that basis. The tenor of all the further evidence was that the judge did sleep for certain periods during the trial and that the occasions were readily apparent to persons sitting in the Court observing the proceedings, including members of the jury. Evidence called on appeal 21 The trial took place in the first three weeks of June 2004. Medical evidence as to the health of the trial judge was admitted without objection on the appeal, although the Director's position was probably intended to be subject to the overriding of her objection to the oral evidence discussed below. The medical evidence referred to a number of complaints having been made, presumably about "the ability or behaviour of a judicial officer", pursuant to s 15 of the Judicial Officers Act 1986 (NSW). The first complaint lodged was said to have been in about June/July 2004, following which the judge saw his general practitioner who arranged a "sleep study". This resulted in a diagnosis of severe obstructive sleep apnoea, for which he received treatment. The diagnosis was apparently first made on 1 September 2004 and treatment commenced thereafter. 22 The oral evidence called on the appeal was directed to three issues, namely:

(a) the fact and extent of the trial judge being asleep;

(b) the absence of complaint by the Appellants' lawyers, and

(c) the attitude of the Appellant Cesan to the fairness of the trial. 23 Senior Counsel for the Director took objection to the evidence on the basis that it was not "fresh evidence". After hearing argument, the Court ruled that the material should be admitted: Tcpt, 8 June 2007, p 5(40). It is appropriate to explain the reasons for that ruling. It is necessary to start with the statutory scheme. Relevantly for present purposes, s 12(1) of the Criminal Appeal Act states: " 12 Supplemental powers of the Court (1) The court may, if it thinks it necessary or expedient in the interests of justice: … (b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court … and (c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness … and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters … ." 24 The language of s 12(1) is curious in some respects, but it was not suggested that the Court did not have power to take the evidence tendered in the present case. Rather, it was said that in accordance with well-established discretionary principles, the Court should only accept the evidence if it could properly be regarded as fresh evidence, that is evidence which was not available at the time of trial and could not with reasonable diligence have been obtained at that time. The Director also argued that the evidence was irrelevant to the case sought to be presented, which at that stage relied on principles analogous to those underlying apprehended bias. As will appear below, the evidence called by the Appellants was relevant to the case as the argument was developed, within the terms of s 55 of the Evidence Act 1995 (NSW). 25 As explained by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520, the manner in which evidence should be considered on a criminal appeal will depend significantly on the issue sought to be raised. For example, as his Honour noted at p 520: "To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence." 26 Quite different considerations arise where the new material is put forward, not in contradiction of the jury's verdict, or as inconsistent with the evidence called below, but to demonstrate that for some reason the trial departed from the essential requirements of the criminal process, or was in some other respect procedurally unfair. In some cases, the basis of a complaint may be apparent from the transcript. In other cases that will not be so and in those cases the Court should be slow to exclude evidence which would provide the only proper basis upon which the legitimacy of the challenge could be assessed. In the absence of binding authority to the contrary (and no authority was relied upon) the Court was satisfied that the evidence should be admitted. 27 Eight affidavits were filed on behalf of the Appellant Cesan, although one was not read, apparently because the deponent was not available for cross-examination. Each of the other deponents was called, some of them giving further details orally and each of them being cross-examined. Two affidavits were also filed on behalf of the Appellant Mas Rivadavia and, again, each deponent was cross-examined. 28 The Appellant Cesan gave evidence that on about the second day of his trial, while the prosecution was leading evidence of the telephone intercepts, he notice that the judge was "slumped in his chair and appeared to be asleep". He said that he spoke to his mother and sister during a Court recess about what he had seen and, on the following day, raised it with his solicitor, Mr Ross Hill. He recounted a conversation to the following effect: "I said to him words to the effect: 'Is the judge sleeping, because to me it look likes he is sleeping.' Mr Hill said to me words to the effect: 'Look mate it doesn't really matter, it happens with this judge'." 29 The Appellant said that he noticed later on the same day that the judge appeared to fall asleep. He described it in the following manner: "He would slump in his chair and his head would fall forward and it would stay down for some time. He would then suddenly lift his head and appear to wake up before nodding off again. This happened several times for up to five or more minutes at a time." 30 He gave evidence that during the second week of the trial, there were a lot of tapes played and there were extended periods when "everyone in the Court was very quiet and just listening to the tapes". He continued: "On many occasions I would look over to the judge and I would notice that he again appeared to be asleep. This appeared to happen much more in the afternoons than in the morning. Because I was concentrating on the evidence and looking at the jury much of the time, I do not know exactly how many times or for how long he slept but they seemed to be for quite long periods of ten, fifteen or even twenty minutes. I found it very distracting as I wanted to look at the prosecutor or the jury but kept looking at the judge to see whether he was awake or asleep. I noticed some of the jury were also looking at the judge very often." 31 The Appellant stated that he again spoke to his solicitor about the matter after a few days of observing the judge's behaviour. He recounted the following conversation: "I said to Mr Hill words to the effect: 'This guy is sleeping. He is sleeping during my trial. Do you think that is right? Is there something we can do?' Mr Hill said words to the effect: 'You don't want to be upsetting the trial judge. You don't want to upset your trial judge but I will bring it up with Hoenig' (my counsel)." 32 The Appellant said that he later had a conversation with Mr Hoenig in which he raised the matter directly but the barrister had replied that "there is nothing we can do about it". 33 That part of the Appellant's evidence recounted above related to the period during which the intercepted conversations and messages were being played. That commenced on day three of the trial (3 June 2004) and continued through to day seven (10 June 2004). The defence case opened on day nine (15 June 2004) and continued through to day 11 (17 June 2004) with the evidence of the Appellant Mas Rivadavia. Mr Cesan gave evidence commencing at 10.40am on day 11 and continuing through until about 2.30pm on day 12 (18 June 2004). His evidence as to the behaviour of the trial judge during that period was contained in paragraphs 9-11 of his affidavit of 27 May 2007. "9. When I was giving my evidence I was facing the bar table and the jury and the judge was behind me. At times during the prosecutor's cross-examination I heard a deep rumbling noise come from behind me. At first I was not sure what it was and then I realised that it was snoring. It became louder and I realised that some of the other people in the Court and the jury appeared to have noticed and were looking at the judge and not me or the prosecutor. Some of the jury looked surprised and others were smiling. 10. When I first heard the noise it was quite soft and not particularly distracting but as it became louder and other people appeared to notice I found it very disruptive and it made it hard to concentrate on the questions. I did not really know what to do about this and I did my best to just try to concentrate on the questions and my answers. 11. At one point, when the snoring was at its loudest, the prosecutor appeared to stop asking questions and I turned to the associate who shrugged her shoulders. I looked back and then I heard a loud banging noise behind me and I turned to look back and saw the judge looking up startled. The questioning continued and after maybe ten minutes I heard the snoring noise again. This happened a number of times whilst I was giving my evidence." 34 Although the affidavit filed on behalf of Mr Cesan in the appeal was dated 27 May 2007, the Appellant gave evidence that he first provided a detailed statement in relation to the matter to the Crown Solicitor's Office in mid-2005: Tcpt, 8/06/07, p 10. 35 The cross-examination of the Appellant was directed to three topics. The first was that, on 13 December 2004, whilst the Appellant was awaiting sentence, he had prepared a letter to the judge stating, "I would like to take this opportunity to thank you for what was a very fair trial." He agreed that he had prepared the letter and that, at the time, he had believed the contents to be true. The letter was prepared on advice of his lawyers. 36 Secondly, it was put to the Appellant that there were "lots of … stops and starts" during the trial when objections were taken by one party or another. The Appellant said that he could not recall that occurring. Although Ms Abraham QC, who appeared for the Director, suggested that his lack of recall on that matter might go to his ability to recollect accurately what occurred in relation to the behaviour of the trial judge, I do not accept that suggestion. So far as the several days of evidence from Ms McClure were concerned, during which the tapes were played, the transcript demonstrates that there was practically no interruption by way of objection, requiring the intervention of the trial judge. During the evidence-in-chief of Mr Cesan, which covered 10 pages of transcript, there were a number of objections taken, which required attention from the trial judge. That was also true of the cross-examination by counsel for the co-accused, which was of similar length. However, during the extensive cross-examination by the prosector, Mr Bellew, other than comments on either side of adjournments, there were remarkably few objections or interventions. Indeed, on the afternoon of 17 June, there appears to have been only one such occasion, which occurred shortly after lunch: Tcpt, 17/06/04, p 460. On the following morning, there was one intervention before the morning break, Tcpt, 18/06/04, p 503 and an objection shortly before lunch, which resulted in the prosecutor withdrawing the question and no ruling by the trial judge: p 539. Shortly after lunch, there was an interchange between his Honour and the prosecutor (p 543) but the cross-examination concluded shortly thereafter (p 548). 37 The third topic of cross-examination was to the effect that Mr Cesan had exaggerated the lengths of the periods during which the judge appeared to be asleep and that, while being cross-examined at the trial, he would not have been in a position to have formed a view about such matters. The first question in this line stated, "You said in your affidavit average 20 minutes." (Tcpt, 8/06/07, p 13). However, that was not what the affidavit had said. In relation to the first period, which appears to have covered the day on which he spoke to his solicitor, Mr Hill, and the day preceding it, he had stated that the judge appeared to fall asleep "several times for up to five or more minutes at a time". In relation to the second week of the trial, whilst the tapes were being played, he said that the periods "seemed to be" periods of "ten, fifteen or even twenty minutes". He did not place a time on the periods of sleeping during his evidence. However, in answer to the questions from Ms Abraham QC, he stated: "Well, at worse [worst] it would have been for periods between 15 and 20 minutes. If you want a number I would say only have to be a couple of times throughout the trial. … I was being cross-examined both times." (Tcpt, pp 13 and 14). 38 It was put to him that he was not timing the periods whilst being cross-examined, nor was he observing the trial judge. He accepted that it was an estimation, but did not depart from the evidence obtained in cross-examination that the worst, or longest, periods were between 15 and 20 minutes. However, commonsense suggests that those estimates must have been subject to a significant margin of error and it is significant that he did not seek in his affidavit to put a time period on the events which occurred during his cross-examination. 39 The second witness was the Appellant's mother, Ms Margarita Migues, a child care worker. She stated that she was present on every day of the trial, except the first, on which no evidence was called. She said that she was attentive to what was happening in Court on each day and noted the manner in which the trial judge behaved when "participating in" the trial. She said that on the second day of evidence (3 June 2004) a friend who had accompanied her to Court asked "Is the Judge asleep?". She then stated: "I looked at the Judge and noticed he was sitting upright but slumped in his chair, his head was slightly forward as if he was reading, he was completely still, he had his arms resting on his desk and his hands clasped in front of his chest, he then jerked abruptly when he woke up. From what I observed of the Judge's manner I have no doubt that he was asleep." 40 Ms Migues stated that she raised the issue with the solicitor, Mr Hill, on two occasions and received a similar response to that which the Appellant recounted. She said that "The judge fell asleep practically every day during the trial, sometimes for only a few minutes and sometimes for much longer periods of time (up to 20 minutes)". She continued: "After I realised that the judge was falling asleep often, I began to look at my watch to time how long he was asleep for. This is how I can say that the time was between five and twenty minutes. On some occasions it would be around ten or twelve minutes, sometimes shorter and on some occasions as long as twenty minutes." 41 She also gave evidence that she heard snoring while the Appellant was giving evidence and saw him to turn to look at the judge. She continued: "The sound was coming from the bench and everyone else seemed wide awake. When I looked at the Judge, I saw he was still slumped in his chair asleep. I remember that the Court Officer looked at him and the whole court seemed to come to a stand still for a few seconds. She then banged the table with some papers in what was an attempt to wake up Judge Dodd. The Judge sat up and the snoring stopped."

She also stated: "I remember that some members of the jury seemed to be acknowledging that the Judge was asleep as they would smile or shrugged their [shoulders] at us and look at each other and the Judge."

(The word "shoulders" was misspelt in the affidavit, but was corrected in her evidence-in-chief: Tcpt, 8/06/07, p 16.) 42 The cross-examination suggested that her view as to whether the judge was asleep depended on whether his eyes were closed. She resisted that suggestion and reiterated the other aspects of his appearance which caused her to form that view, and identified the other things which she observed: "Um, he would be slumped owner [over?] the chair so a position that someone who is not asleep wouldn't necessarily take. He would have his hands clasped in front of him, his arm resting on the desk, his head would be tilted forward, and he would be completely still." (Tcpt, p 17.)

She rejected suggestions that there were no occasions during which the judge had been asleep for as long as 20 minutes and rejected the proposition that there were days when he did not fall asleep. She confirmed that she heard snoring for a few seconds only: Tcpt, p 21. 43 Mr Ivan Amaro was a young man who described himself as a "lifelong friend" of the Appellant's and stated that he was present at the trial "for a majority of the days". He said that he had noticed the judge being slumped in his chair with his eyes closed and recalled joking that the judge was "just having a nap". He said that caused his observation to intensify and heard "the light but persistent snoring" during "quiet moments in the courtroom". He said there was no doubt in his mind that the judge was asleep and he said that he slept for anywhere between a few minutes up to 20 minutes and this would happen "at the very least once a day but often more". He recalled the judge snoring during the Appellant's evidence. He stated that "another snore was clearly heard throughout the courtroom: "What must have been 5-10 seconds seemed to be an eternity as everything and everyone came to a standstill. Judge Dodd's assistant made a bit of commotion around the judge with some papers, books and a subtle but noticeable banging of the table until Judge Dodd opened his eyes."

He said that he noticed members of the jury smiling, rolling their eyes and laughing, including during the time when the Appellant was on the stand and Judge Dodd was sleeping. 44 In cross-examination, Mr Amaro confirmed the evidence in his affidavit, agreeing that he did not recollect any occasion other than that whilst the Appellant was giving evidence that he heard the trial judge snoring. However, he agreed that there were occasions when the judge appeared to be asleep for just a few minutes but did not agree that "normally when he appeared to be asleep, it was only a few minutes": Tcpt, p 23. He explained that, during times when the trial judge appeared to be asleep he was "slouched back and hands folded together on chest and eyes closed and head tilted to the side". 45 Ms Veronica Cabrera described herself as a friend of the Appellant and considered him to be "a member of my extended family". She too had been present at most days of the trial and stated that she first observed the judge sleeping on 3 June 2004. She said that Judge Dodd "continued to sleep at various times throughout the trial", often six or more times in one session and for periods of anywhere between five and 20 minutes. In cross-examination, it was put to her that she relied upon the fact that the judge had his eyes closed, but disagreed, stating (Tcpt, p 26): "No, his body language. Everything, he appeared. It wasn't just his eyes closed his whole body was like relaxing."

She disagreed that on occasion he appeared to be asleep for no more than 2 or 3 minutes, but did agree that she may not have noticed such short periods. She gave evidence of only one occasion when she heard snoring, which was during the Appellant's evidence and stated that the snoring subsided "after the Court officer banged on the table with some papers and Judge Dodd's eyes opened and he obviously sat up". She also stated, and was not cross-examined as to the statement: "At some points some of the jurors were dozing, smiling or smirking. I observed that they behaved differently when [the] Judge was awake." 46 Ms Patricia Lawson, a personal carer, described herself as a good friend of the Appellant and his family and stated that she attended "at least nine days" of the trial. She usually attended in the morning, but stayed after lunch on four days. She described what she observed in the following terms: "After Judge Dodd sat down he would cross his arms, he would sit upright in the chair, he would begin to slouch a little bit, his eyes would become closed and he would tilt his head slightly forward and the left side. Sometimes Judge Dodd would jerk awake and his eyes would open suddenly and then he would slowly close them and his head would tilt to the side again. It was obvious to me that Judge Dodd was asleep."

She stated: "I remember he would doze off many times, at least four or five times each morning or afternoon session, during which he would seem to be asleep for at least five minutes, then wake up, adjust himself by sitting up or move in his chair and open his eyes and then he would seem to doze off again when no one was talking to him." 47 Ms Lawson also stated that "sometimes when Judge Dodd seemed asleep and the lawyers seemed to be trying to get Judge Dodd's attention if they needed something they would: knock the microphone, make a loud sound near the microphone … clear their throats or suddenly speak loudly". She was cross-examined in relation to that evidence and in particular as to whether the prosecutor did it every time when the judge was asleep. She agreed with that and added that the judge "was asleep most of the time, from my observation": Tcpt, p 29. She did not agree that he was asleep on occasion for "only two or three minutes". 48 The Appellant's sister, Ms Gabriela Cesan, gave evidence that she was present at every day of the trial except the first day, 31 May. Her evidence was consistent with that of the other witnesses, including her mother. She too was present at the conversation with Mr Hill, and recalled her mother saying to the solicitor words to the effect, "Did you see the judge sleeping?" She also recalled Mr Hill responding, "Yes I have definitely seen it too, but it is a well known fact that this judge falls asleep regularly". 49 In cross-examination the following exchange occurred (Tcpt p 34): "Q. You have spoken about occasions that you have made observations during the trial that the judge appeared to be asleep sometimes. Sometimes only two or three minutes? A. Yes. Q. The longest you ever observed, was what? About 15 minutes? A. I never timed it by my watch but for much longer periods of time than at the beginning of the trial. Q. The longer periods were during what part of the trial? A. Towards. When there was a lot of cross-examination and listening to the tapes and when the trial seemed to drag on a little bit. Q. For example, when your brother was giving evidence being asked questions by his lawyer did the judge appear to be asleep during any of that? A. I cannot remember." 50 The last answer, which was the end of the cross-examination was curiously limited. It must be inferred that her evidence was that the judge snored, as the other witnesses attested, during her brother's cross-examination. She described it in the following terms in her affidavit: "I can recall that at sometime when Rafael was giving evidence, the judge actually began snoring loudly and when this happened, my brother turned slightly to look in his direction. There is no doubt in my mind that the snoring was coming from the judge and when I looked at him he was obviously asleep. He was slumped very deeply in his chair his head was rolling to the side. At some stage I heard the snoring again and I saw my brother look at the judge again and then I saw the Court Officer drop some papers onto the table in front of her … and this made a fairly loud banging noise. As soon as this happened the judge woke up in a startled way like someone sitting asleep on a bus and then suddenly being woken up." 51 Ms Cesan also gave evidence, on which she was not cross-examined, as to her observations of the jury when the judge was asleep, in the following terms: "Some times when the judge was asleep I noticed that some members of the jury would look at the judge and then look at each other and then look back to the judge very intently. It was clear to me that some of the jury appeared to be paying a lot of attention to the judge when he was sleeping. During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appear to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury's behaviour when the judge was asleep." 52 The final witness for Mr Cesan was Mr David Uribe, who first met the Appellant in about 2000-2001 when he engaged him to perform in events he was organising in clubs. He said that they became "fairly good friends" and that he was a friend of his mother and sister. He attended two days of the trial. On the first occasion he was there prior to lunch and on the second occasion for a whole day. On the first occasion, he said that no one gave evidence, but on the second occasion the Appellant was giving evidence. Although he said that the barristers "were talking to the Judge" on the first occasion, he said that on both occasions he saw the judge sleep. Apart from the very brief hearing on 31 May, there was no day on which no witnesses were called before lunch. On the first day, his Honour explained the proceedings to the jury, following which the prosecutor opened. There were no interruptions during the prosecutor's opening, and it is possible that this was the day to which Mr Uribe was referring. However, no one else described the trial judge as sleeping during that period and, given the doubts as to the day in question, I would not accept Mr Uribe's evidence as to what happened on the first morning on which he attended. In relation to the other occasion, to the extent that his evidence otherwise corroborated the evidence of other witnesses, it takes the matter no further. In some respects it is not consistent with that of other witnesses, for example to the extent that he claims that he heard "people laugh out loud" when the judge was asleep or was woken up. Although the cross-examination was brief and did not address a number of the issues raised by Mr Uribe's evidence, to the extent that it departs from that of other witnesses, I am not satisfied that it provides an accurate description of the events in question. 53 Ms Francis, who appeared for the Appellant Mas Rivadavia on the first day of the appeal, called two witnesses, the first of whom was the Appellant's sister, Ms Catalina Cal. She attended her brother's trial "two to three times a week" and recalled that the judge tended to fall asleep in the afternoons, although she could not say exactly how many times the judge fell asleep. In her evidence in chief, she said that he would appear to sleep for "periods of minutes": Tcpt, p 36. Although it was given in general terms and did not specify a particular occasion, part of her evidence was consistent with the description given by others of what occurred during Mr Cesan's cross-examination. It did not take the matter any further. 54 The second witness called for the Appellant Mas Rivadavia was Ms Magalli Locaputo, a retired midwife and his aunt. She attended her nephew's trial two or three times per week and recounted her recollection of the day on which he gave evidence. She stated: "I observed Ruben stop while he was giving evidence and then he continued. I could hear snoring coming from where the Judge was sitting while Ruben was giving evidence. I observed the judge had his head down and eyes closed on many occasions. One day during the trial, I saw a lady, one of the members of the court tapping to wake the Judge up three times." 55 In cross-examination, she was asked if the activity of the court officer or associate was related to the occasion on which she heard snoring, but said she was not sure "because there was a few times that this snoring happened and I remember clearly when he was giving evidence and he stopped because of the snoring and he continued": Tcpt, p 40. 56 The Director called evidence from Mr Geoffrey Bellew SC, who was the prosecutor at the trial. He stated that he had read most of the affidavits filed on behalf of the Appellant Cesan, which included the one which was not read on the appeal, but did not include that of the Appellant's sister, Ms Gabriela Cesan. However, apart from stating that he had no recollection of having cleared his throat for the purpose of waking the trial judge, as suggested in three of the affidavits, he did not deal with the particular contents of individual affidavits. In relation to the issue of throat clearing, he noted that he had been on medication for some years, which produced a dryness in the throat and that, as a result, he cleared his throat on a regular basis. Otherwise, the substance of his affidavit was to the following effect: "I recall that there were occasions during the course of the Appellant's trial in which the Trial Judge appeared to be asleep. I am not able to specify the number of occasions on which this occurred, although my recollection is that it was less than the estimates which have been given in some of the Affidavit material referred to … above." 57 In cross-examination, he repeated that perception (Tcpt, p 43), having explained that it was his general practice to "look at the witness predominantly rather than elsewhere". The cross-examination continued: "Q. And for that reason it would be difficult for you to say with any clarity how often the judge did fall asleep? A. No, I can't put a figure on the number of times. Nor, because of the position I was in, am I able to make any determination of how long on each occasion those times might have been. I must say that my perception at the moment is that it wasn't as widespread as has been indicated in some of the affidavit material, but I have to concede that there were others who were in a far better position than I was to determine those things. Q. Would you concede that it's possible that it was as widespread as indicated? A. It's possible, because those who have sworn the affidavits probably were in the position of observers only whereas I was dealing with a range of other things that I was in the position of at the time." 58 In relation to the jury, he gave the following evidence: "Q. And did you, at any point, make observations of the jury during the course of the trial laughing and smiling? A. I must say that I don't recall that. I've seen references to that in the affidavit material. I'm not necessarily saying it didn't, I just don't have any recollection of it three years down the track." Assessment of evidence 59 It may be noted that neither of the Appellants thought to call evidence from their own legal representatives at the trial. In relation to his own solicitor, Mr Ross Hill, the Appellant Cesan said that he attended only on one-third of the days of the trial. According to the conversations recounted by the Appellant's mother and sister, it may be inferred that he had appeared at trials before Judge Dodd on a number of occasions and treated his tendency to sleep as unremarkable. That, together with the somewhat vague recollections of Mr Bellew SC, may suggest that recollections of other practitioners of this particular trial, some five years after the event, would also have been vague. 60 One possible matter upon which the legal representatives of the accused may have been able to assist would have been in relation to the absence of any objection to the trial proceeding whilst the trial judge appeared to be sleeping. On the other hand, the fact that no objection was taken or, except on one or possibly two occasions, anyone sought to rouse him, is a matter of fact and the subjective reasons why no other steps were taken would arguably have been irrelevant. In any event, this matter was not explored on the appeal. 61 Putting to one side the position of the lawyers, all of the witnesses called on the appeal were friends or relatives to the two Appellants. Further, there was a significant degree of consistency between their accounts. However, none was challenged in cross-examination on the basis of interest clouding perception or recollection, nor was there any suggestion of collusion. Although these factors cannot be ignored as potentially relevant to an assessment of the evidence, they should be given limited weight. 62 On the other hand, it may be noted that several of the witnesses gave evidence, without objection, that they were surprised, shocked, dismayed or disbelieving at what they observed in relation to the conduct of the judge. Accepting, as I would, that conduct of the kind described in fact took place, the understandable responses may have led to particular incidents being exaggerated in the minds of the observers, over time, both in relation to their duration and extent of repetition. 63 Bearing all those matters in mind, I am nevertheless satisfied that:

(1) The trial judge did not merely appear to sleep, but was in fact asleep on a number of occasions during the 11 days of the trial when evidence was being given.

(2) During periods when he was asleep, I would infer that he was not conscious of what was occurring in the courtroom.

(3) As to the number of occasions on which he slept, and accepting Mr Bellew's view that they were less numerous than the affidavits suggest, I would accept that he slept for a period of several minutes on at least one occasion on most of the 11 days and on two or possibly three occasions on a handful of the days. There are two reasons for drawing that conclusion. First, the transcript of the evidence demonstrates that on most days there were long periods where there was no intervention on the part of the judge. Secondly, the regularity of such behaviour was supported by the explanation for it, namely that he was suffering from severe obstructive sleep apnoea, a condition which was consistent, prior to the judge obtaining treatment, with a continual lack of adequate sleep at night.

(4) I would accept that on a number of occasions, possibly between two and five, the judge was asleep for a period of between 10 and 15 minutes. On the majority of occasions, I would be satisfied that he was asleep for between two and 10 minutes. Only Ms Migues gave evidence that she had attempted to time the periods of his sleeping and, although periods as long as 20 minutes may have been possible, I am satisfied that an element of exaggeration may have crept into that estimate. Similarly, because it was a maximum period identified by a number of witnesses, I would infer that there was some discussion as to recollections, before the affidavits were settled.

(5) There were no doubt a number of occasions on which sleeping was accompanied by heavy breathing. However, audible snoring, which could be heard in the well of the court, would have been so remarkable that I would have expected those who heard it to remember it. The Appellant gave evidence of snoring during his cross-examination. It is beyond real doubt that there was an occasion during his cross-examination when either a court officer or the judge's associate made a noise with the purpose of waking the judge. Although a number of witnesses gave evidence that this occurred during the cross-examination of the Appellant Cesan, if it had occurred in a markedly audible manner on more than one occasion, I would have expected each of the witnesses to have recalled it. So long as the phrase "at times" is read as "at a time" I would accept the evidence of the Appellant in that respect, set out in paragraphs 9-11 of his affidavit, at [33] above. 64 Ms Abraham suggested on more than one occasion that whatever the extent of the sleeping, there was no evidence that it had any practical effect on the conduct or outcome of the trial. By that she meant, as I understand it, that there was no error in rulings on evidence; there was no conduct on the part of counsel which should properly have been stopped, but was not; to the extent that there are complaints about the summing-up, they are unrelated to the fact that the judge was asleep from time to time, and it could not be said that the verdict was unreasonable or unsupportable on the evidence. Those contentions may each be accepted, but there must remain a degree of disquiet in relation to the conduct of the trial which is, in part, revealed in the evidence. 65 First, the Appellant gave evidence, on which he was not challenged, that he found the snoring "very disruptive", in the sense that it "made it hard to concentrate on the questions". I accept that the actual snoring was, to an extent, disruptive and that it caused the Appellant Cesan to look around at the trial judge on two occasions. Although there was evidence from the relatives of the Appellant Mas Rivadavia that something similar occurred during his evidence, there was no evidence from the Appellant himself and there was no evidence from the other witnesses to that effect. I would not be satisfied that the conduct was repeated in the way described by the Appellant Cesan, in the course of the co-accused's evidence: had that occurred, one would expect at least some of the witnesses called for Mr Cesan to have adverted to that fact. As already noted, I am satisfied that the trial judge slept for some period on most of the days of the trial during which evidence was given and I include in that finding an acceptance that he slept during parts of the evidence of Mr Mas Rivadavia. However, I do not accept that he snored in a vigorous and audible manner, so as to disrupt the concentration of that Appellant. 66 Of greater concern is the evidence with respect to the behaviour of the jury, although its relevance and admissibility give rise to a separate issue. There is a consistency in the evidence that the jury was distracted, at least during the cross-examination of Mr Cesan and probably to a degree on other occasions, by the behaviour of the trial judge. For this purpose, it may in fact not matter that his Honour was asleep: if observers in the court thought that he was and if the jury reacted in a way which suggested that they also thought he was, that conduct by itself might be seen as distracting. Further, there was evidence from several witnesses, unchallenged by the Director, that some members of the jury found the behaviour of the trial judge amusing and some emulated his apparent inattention. 67 The relevance of this evidence will be considered further below. Legal principles 68 The submissions put on behalf of the Appellants, and in particular the Appellant Cesan, whose counsel provided the primary argument on this aspect of the appeal, underwent some degree of development, during the course of the hearing of the appeal, over two days. The fact that the trial judge slept was initially said to involve a miscarriage of justice because to a reasonable observer, there would have been an appearance that justice was not being done. The importance of the appearance of justice was derived from the caselaw concerning a reasonable apprehension of partiality or bias. 69 In the course of the first day of argument, a somewhat different proposition emerged, namely that for there to have been a proper trial, the whole of the proceedings needed to be conducted before a judge and jury. If the judge had been absent from the courtroom for any period, that requirement would not have been satisfied. A judge who is physically present in the courtroom, but unconscious, whether because asleep or for some other reason, is in the same position as an absent judge. Accordingly, it was contended, if the judge did sleep for any longer than a period which might be dismissed as de minimis the trial miscarried. The argument in support of that proposition was developed by Mr Dhanji on the first day, but the appeal was not concluded on that day. 70 Prior to the second day of the hearing of the appeal, notice was given of further amendments to the notice of appeal, one of which alleged that the trial was "a nullity as the court lacked jurisdiction as a consequence of the fact that the trial judge was asleep during parts of the trial", a ground which was intended to reflect the argument put on the prior occasion. The second amendment alleged that the trial "failed to comply with the minimum requirements of 'trial by jury' as required by s 80 of the Constitution". That ground was developed both in written submissions and in further oral argument, notice having been given under s 78B of the Judiciary Act 1903 (Cth) to the various Attorneys-General. None sought to intervene or be heard. 71 On one view, this appeal does not turn on the operation of the constitutional guarantee, because there was no law, either of the Commonwealth or the State, which might have been construed as providing a lesser standard of protection than that guaranteed by s 80. The complaint was that, in a relevant sense, there was a failure to comply with relevant legal principles under State law, which were not different from those engaged by s 80. However, as will appear below, s 80 was relevant because a trial conducted otherwise than in accordance with its imperatives will not be a lawful trial and neither the consent or acquiescence of the accused or his counsel, nor the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) will save any conviction. In addition, assistance was to be gained as to the essential elements or characteristics of a trial by jury from the discussion in the various authorities concerned with s 80. 72 Reliance on s 80 of the Constitution also focused attention on the fact that the indictment preferred a charge for an offence against the laws of the Commonwealth, with the result that the District Court was exercising federal jurisdiction pursuant to s 68(2) of the Judiciary Act. 73 The Court is established pursuant to s 8 and jurisdiction conferred by s 9 of the District Court Act 1973 (NSW) which, in relation to criminal jurisdiction provides: " 9 Jurisdiction of the Court generally … (2) The Court shall have a criminal jurisdiction, consisting of: (a) its jurisdiction conferred by Part 4, and (b) the jurisdiction conferred by or under any other Act or law on the Court in its criminal jurisdiction." 74 The like jurisdiction to which that provision refers is to be found in Part 2 of the District Court Act, establishing and conferring criminal jurisdiction on the Court. Section 11 of the District Court Act provides: " 11 Single Judge to constitute the Court (1) All civil and criminal proceedings in the Court, and all business arising out of any such proceedings shall, subject to this Act and the Jury Act 1977 , be heard and disposed of before a Judge, who shall constitute the Court." 75 Part 4 of the District Court Act makes further provision in respect of the criminal jurisdiction of the Court and in particular, s 166, relevantly provides: " 166 Criminal jurisdiction of the Court (1) The Court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act." 76 With exceptions in relation to matters such as treason and murder, which are not presently relevant, s 46 of the Criminal Procedure Act 1986 (NSW) provides that the District Court has jurisdiction in respect of all indictable offences. The term "indictable offence" is defined to mean an offence (including a common law offence) that may be prosecuted on indictment: s 3(1). 77 Jurisdiction may, of course, refer to the power and authority of a Court to deal with matters falling within a particular category; more specifically, it may also refer to the power and authority to hear and determine a particular matter. In the latter sense, the Court has jurisdiction conferred on it "with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned": Criminal Procedure Act, s 130(2). The Criminal Procedure Act further provides: " 131 Trial by jury in criminal proceedings Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part." 78 None of these provisions applies in respect of a federal offence of its own force, but there was no dispute in the present case that these provisions were all picked up and applied as part of federal law, to permit the District Court to exercise federal jurisdiction in respect of the indictment. Although not of direct relevance in the present case, it may be noted that Part 3 of Chapter 3 of the Criminal Procedure Act does have exceptions to the rule that proceedings are to be tried "by a jury", for example in circumstances where the accused person so elects, with the consent of the Director, and where the judge is satisfied that the person has received appropriate advice: s 132. The operation of a provision of that kind in federal jurisdiction would have attracted an issue concerning the operation of s 80 of the Constitution: see Brown v The Queen (1986) 160 CLR 171. No issue of that kind arose in the present case. 79 Because proceedings are to be "tried by a jury" they do not cease to be proceedings "heard and disposed of before a judge", for the purposes of s 11. Rather, in the compendious phrase adopted by Gleeson CJ and McHugh J in Brownlee v The Queen (2001) 207 CLR 278 at [1], [4] and [6] there is to be "a trial before a judge and jury": see also The King v Snow (1915) 20 CLR 315, 323 (Griffith CJ) and at 328-9 (Isaacs J). That must be so whether reference is had to s 130 of the Criminal Procedure Act or s 80 of the Constitution. It follows from the cases dealing with s 80, that proceedings will not satisfy that description unless they comply with the "essential characteristics" of such a trial. The caselaw with respect to those essential characteristics has been concerned with such matters as the need for uniformity amongst jurors, the effects of discharge of a juror and the minimum number of jurors: see, eg, Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 354-356 (Griffiths CJ), 375 (O'Connor J) and 385-386 (Isaacs J); Maher v The Queen (1987) 163 CLR 221; Cheatle v The Queen (1993) 177 CLR 541; Katsuno v The Queen (1999) 199 CLR 40; Wu v The Queen (1999) 199 CLR 99; Cheng v The Queen (2000) 203 CLR 248 and Brownlee v The Queen (2001) 207 CLR 278. These principles were applied by this Court in R v Brown & Tran (2004) 148 A Crim R 268 and Petroulias v R [2007] NSWCCA 134. However, none of these cases was concerned with that element which involved the constitution of the Court by the judicial officer. 80 The basic proposition put forward by the Appellants was that proceedings are not being conducted in a properly constituted court if the judge is absent. A judge who is physically present in the courtroom but unconscious is in substantially the same position as a judge who is outside the courtroom. These propositions were tested by reference to the possibility of a judge who is out of sight but not out of hearing, a judge who is absent for the briefest of periods, a judge who was present and conscious but abstracted or inadvertent and a judge who was present and conscious but indulging in buffoonery or other distracting conduct. 81 The last example suggests, as counsel for the Appellants accepted, that there may be two separate principles in issue in the present case. The first is essentially a jurisdictional argument, namely that the Court was not properly constituted; the second, while accepting that there was a properly constituted court, invites attention to the content of the process, because the judge, by his behaviour tended to distract the jury or trivialise the proceedings. To adopt an analogy, a message may pass not only by words, but by conduct. It is at least possible that a prohibited comment, for example under s 20 of the Evidence Act 1995 (NSW), could be made by a prejudicial gesture rather than by an explicit statement. In some cases, conduct suggestive of inadvertence, if thought to be deliberate, might fall into that category. That is, in substance, the second limb of the Appellants' case. 82 Turning to the first limb, and putting to one side questions of degree, a clear case could be envisaged in which a judge, sitting alone, might leave the room for extended periods during a trial, directing the parties to continue despite his or her physical absence. If counsel were addressing, it might be said that the damage was limited, because a transcript would be available to the trial judge of any parts which were not heard. The judge might be in little worse a position than if he or she had remained in the Court but been distracted by other passages in the evidence or in an authority, after counsel had moved to another matter, a not uncommon experience. However, if a witness was giving evidence in the absence of the judge who was the fact-finder, prejudice to the proper conduct of the trial would more readily appear. 83 There is a danger of straying, even by way of illustration, too far from the facts of the present case. Thus, the physical absence of a judge during submissions might not indicate a fatal flaw in the proceedings, if the parties did not object, and in circumstances where, as in a civil case, the parties might well waive the right to be heard orally and accept the sufficiency of written submissions. However, that approach might contravene an essential characteristic of a jury trial, which requires that both evidence and argument be presented orally before the judge and jury. 84 One difference between the case of a judge sitting alone and that of a judge sitting with a jury is that, in the latter case, the judge is not required to assess the facts and the witnesses, so as to arrive at findings. Nevertheless, the trial judge plays a fundamental role in a jury trial at all times. This was helpfully explained by Untermyer J, speaking for the Appellate Division of the Supreme Court of New York, in People v Silver 240 AD 259, 269 NYS 765 (1934). In that case the presiding judge had left the courtroom during the prosecutor's address. The precise period and circumstances of his absence were not recorded, but the Appellate Division considered an argument that there was no evidence of prejudice to the accused. His Honour stated (at 261): "But we do not need to consider any question of prejudice to the defendant, for the difficulty here lies deeper than the violation of a mere procedural right. It affects the very organization of the court by which the defendant has been tried. It is not sufficient that he was tried within a courtroom; he was entitled to a trial before a duly constituted court. Such a trial could not be had except under the direction and superintendence of a judge. To such a trial the defendant was entitled, not intermittently, but from the beginning to the very end."

His Honour also noted the approval given by the US Supreme Court in Capital Traction Co v Hof , 174 US 1 (1899) to the principle that trial by jury was a trial of issue by 12 jurors, "under the direction and superintendence of the court", noting that this "direction and superintendence was an essential part of the trial". 85 Of a significant number of authorities relied upon in Silver, one was Bateson v State 80 SW 88 (1904), being an appeal from a trial in which the trial judge had absented himself from the courtroom to prepare his summation, while counsel addressed. The Texas Court of Criminal Appeals (in a judgment delivered by Henderson J) stated the principle in the following terms (p 91): "We agree with the contention of appellant that our Constitution guaranties [sic] the right of trial by jury, and that no citizen of this state shall be deprived of his life or liberty without due course of the law of the land; and that no person can be tried for a felony, unless such trial is had before the district court; and that this trial must be in open court; and that there can be no court, unless presided over by the district judge. So that, if the district judge was not present presiding at the trial and throughout the entire progress thereof, in such case there is no court, and a conviction cannot be maintained. This direction and control must continue during the entire trial, and pervade every part thereof, for it cannot be said that one portion of the trial is more important than another. Certainly it will not be contended that the argument before the jury, which is guarantied to a defendant by the Constitution, is of so little importance as that the presiding judge need take no cognizance of it, much less absent himself during the argument. … This presence of the judge, who is the presiding genius of the court, is construed not to mean absolutely within the courtroom, but so near as to be within sight and hearing of the proceedings; that is, in such a situation as to retain control of all that transpires during the trial. Otherwise, there is no way by which the court can be informed as to any errors which may occur, for as to these he does not get his information by proxy, but he must judge of the matter by his own ear and his own eye." 86 This Court's attention was not drawn to any judgment in this country dealing with a case in which a judicial officer had absented himself or herself from the courtroom during a jury trial. Common experience is that, whenever such a step is necessary, the Court is adjourned to allow that to happen. As a practical matter, it seems almost inconceivable that a judge would deliberately leave the courtroom for any purpose without first adjourning the hearing. There is no basis for supposing that the essential characteristic of a trial by judge and jury does not require the physical presence of the judge at all times whilst the proceedings are on foot. If such circumstances were to arise, so that the judge was absent more than momentarily, it would be difficult to say that the proceedings were "before" the judge or being determined "by" a judge and jury. 87 It is then necessary to consider whether any conclusion which might be drawn in relation to physical absence of the judge would also have application where the judge was physically present, but not conscious, for certain periods, whether by way of illness or through being asleep. 88 The answer to that question must lie, not in any purported 'analogy', but in the application of the underlying principle, requiring that the proceedings be conducted within the sight and hearing of the judge. That principle is expressed above to be based on the requirement that the judge have direct superintendence and control of the proceedings at all times. In this respect, the rationale accepted in the United States has been accepted by the High Court as relevant in relation to s 80 of the Constitution. Thus in Huddart Parker, O'Connor J said, in a passage quoted with apparent approval by Gleeson CJ and McHugh J in Brownlee, 207 CLR 278 at [16]: "What are the essential features of a trial by jury? … It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process." 89 Just as, in the case of an absent judge, it is treated as insufficient that the judge may be able to be physically recalled to the court from time to time to exercise direction and control, so it would seem an inadequate response in relation to a sleeping judge that he or she could be awakened as the need arose, and, if necessary, have a question and objection repeated so as to be able to make a ruling. Depending on the circumstances, one might envisage a number of pragmatic responses. Thus, David Pannick QC, in Judges (OUP, 1987) at p 77 referred to one story of a sleeping judge in the following passage: "In the eighteenth century Lord Chancellor King 'often dozed over his cases when upon the bench'. However, 'it was no prejudice to the suitors', because two eminent barristers, Sir Philip Yorke and Mr Charles Talbot, were invariably briefed for the opposing parties in the court and they 'were both men of … good principles and strict integrity and … were sensible on which side the right lay'. They would instruct the registrar of the court what order it was appropriate to record."

(The anecdote was taken from John Lord Campbell, Lives of the Lord Chancellors (5th ed, 1868, vol 6) p 121-2.) However, the chance of such pragmatic solutions, subject to questions of consent or waiver, does nothing to demonstrate that an essential characteristic of a criminal trial is not missing if the judge is either absent or unconscious, other perhaps than momentarily, during the course of the proceedings. 90 Against this conclusion, counsel for the Director sought to argue that there was no difference in principle between the case of the sleeping or unconscious judge who was physically present and that of the inadvertent judge. Further, she noted that in some cases it might be hard to know which was the true explanation, or even whether a judge was in fact inadvertent or asleep in circumstances where, whilst the judge's eyes were closed, there might be good reason to think that he or she was entirely attentive. However, the potentiality for difficult factual questions to arise does not demonstrate that the principle suggested above has been misstated. If the underlying factual premise is not made out, in a particular case, no relief will result. As already suggested, where the trial judge is merely inattentive or merely appears to be asleep, the jurisdictional argument will not arise. 91 Further, the Director placed reliance upon the English case of Regina v Betson & Ors [2004] EWCA Crim 254, [2004] 2 Cr App R (S) 52 (Rose LJ and Davis and Wakerley JJ). On the facts, it is clear that the case was not dissimilar to the present. Thus, at [27] the complaint was noted in the following terms: "First it is said that the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions so that prejudice occurred to Betson and he did not receive a fair trial. The judge admits having nodded off during counsel's final speeches and this Court also admitted fresh evidence, in the form of written statements, not challenged by the prosecution, by two witnesses present at the trial: one, a solicitor's clerk, acting for a co-defendant, and the other a journalist. The first statement says that there were a few occasions towards the end of the trial when the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring. Some jurors drew the attention of each other to this and two of them shook their head[s] in apparent disbelief. On one occasion, because the judge was asleep, he failed to notice that one of the jurors had also dozed off." 92 The consideration of this ground appears at [47]-[48]. In substance, the complaint was rejected on the basis that no prejudice had been demonstrated by reference to any inadequacy in the summing-up, and that no objection had been taken at the time. This conclusion was reached after a statement of principle in the following terms at [47]: "Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial." 93 Two comments may be made in relation to this passage. First, as appears from the statement of the ground at [27], set out at [91], the argument was not based upon any question of jurisdiction but rather on prejudice, resulting in an unfair trial. The second comment is that, that being so, the distinction between sleeping and inattentiveness may not bear the significance which it may have in the context of the jurisdictional issue. 94 A consideration of Betson leads directly into a further point relied upon by the Director, namely that errors of the kind now being considered will only provide a ground for relief if a miscarriage of justice can be identified by reference to some inadequacy of the summing-up or other specific error. In the authorities questions of prejudice are often discussed together with the consequence of a failure on the part of counsel to take a timely objection to the conduct. Absence of objection may also be relevant to the jurisdictional argument, but in almost all cases where the need to demonstrate consequential error has been affirmed, the need for objection has been assumed and its absence has often been treated as conclusive. One such case was Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106 (MacRossan CJ, Pincus JA and White J). That was a civil case, where it was alleged that the trial judge had fallen asleep at several points in the proceedings, an allegation which was disputed. The complaint was rejected, by analogy with a case of apprehended bias, on the basis that a legal representative is not entitled to stand by and await a final judgment before raising an objection on the basis of circumstances which were known to exist before or during the trial. Support for that approach was derived from The Queen v Grant [1964] SASR 331 (Napier CJ, Travers and Bright JJ), a case in which it was alleged that a juror had been asleep during a portion of the trial, but the matter had not been drawn to the attention of the trial judge, with an application that appropriate action be taken: at [338]. 95 In Stathooles reliance was also placed on two English decisions unreported, but noted as follows: R v Edworthy (1961) Crim LR 325 and R v Langham and Langham (1972) Crim LR 457. In Edworthy, a Courts-Martial appeal court (Lord Parker CJ, Winn and Widgery JJ) set aside a conviction on the basis of a number of errors, but noted in relation to the suggestion that at one stage the Judge-Advocate had fallen asleep, that "this would not by itself have affected the trial (except so far as appearances were concerned) provided that he had delivered an impeccable summing-up" (at 325). In Langham, the Court of Appeal constituted by Lord Widgery CJ, Phillimore LJ and Talbot J rejected, as a matter of fact, a complaint that the judge was asleep during the evidence and held, in relation to a complaint that the judge "appeared to be asleep", that, "if true was a matter which the court would certainly deplore but was not a sufficient ground for saying that justice was not seen to be done" (at 457). The note continued: "It was very easy to rely on that hallowed phrase in order to raise a complaint over a very wide field, but it was necessary to point to some factor on which the doing of justice depended and to show that that factor was not visible to those present in court. If during speeches counsel had free access to the jury and their submissions to the jury were not handicapped it was not possible to take the somewhat facile step of saying that justice was not seen to be done because the judge appeared inattentive or even asleep. … It was not wholly without relevance that none of the experienced counsel present found it necessary to take steps to awaken the judge or to acquaint him with the fact that his appearance seemed to be less alert than it should have been." 96 Finally, in Stathooles, reference was made to a decision of the Appellate Court of Illinois in Ferman v Estwing Manufacturing Company 334 NE 2d 171 (1975), a civil case involving conduct on the part of a single juror which led the trial judge to believe that she might be "bored, inattentive and, perhaps, ill": p 174. Steps were taken by the trial judge in that regard and the matter was raised with counsel on two occasions, but they "insisted the trial proceed and that the juror not be dismissed". The case provides little assistance for present purposes. 97 There is no need for the Appellants to demonstrate that the conduct of the trial judge led to some consequential error, demonstrating a miscarriage of justice, if a breach of s 80 of the Constitution is made good. In Cheng v The Queen, 203 CLR 248 at [29]-[30], Gleeson CJ, Gummow and Hayne JJ stated: "29 The text of s 80 gives rise to various issues of construction, some of which are concluded by authority, and others of which may still be open to debate. Before turning to those matters which the applicants would seek to agitate on appeals following grants of special leave, it should be noted that s 80 imposes various imperatives upon trials on indictment of offences against Commonwealth law. 30 For example, if a trial is not held in the State where the offence against Commonwealth law was committed … any conviction would be liable to be set aside on the ground that the trial had not been held in accordance with the command in s 80. This result would not involve any holding that a particular law was invalid for non-compliance with s 80; rather, the trial process itself would have miscarried." 98 It was that proposition, cited with approval by Gaudron, Gummow and Hayne JJ in Brownlee, 207 CLR 278 at [49] upon which the Appellants seek to rely. If they establish contravention of one of the "various imperatives" contained within s 80, they are entitled to have the trial set aside. 99 No clearer example of that principle may be found than Brown v The Queen, 160 CLR 177, in which the appellant had exercised a statutory right of election to be tried by judge alone, in accordance with the Juries Act 1927 (SA) but the trial judge held that s 80 precluded the appellant from making such an election and directed that the trial proceed before a jury. He appealed on the basis that he had been entitled to elect to be tried by judge alone. He argued that he was entitled to "waive" his right to trial by jury, despite s 80 of the Constitution. The High Court held he had no such entitlement and that the trial judge was correct to reject his election. It follows that, if the Appellants in the present case can invoke a constitutional imperative, which has been contravened, their convictions cannot stand. 100 There is no principle inconsistent with this conclusion to be derived from the passages in the judgment of Gleeson CJ in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [7] and [8] referred to at [115] and by Grove J at [196] below. In that case criticisms were made of the conduct of counsel for the accused at trial. This fell within a class of miscarriage of justice involving a "failure of process". As Gleeson CJ succinctly stated at [9]: "It is the fairness of the process that is in question; not the wisdom of counsel." 101 An unfair trial can arise from the conduct of a participant. Conduct has cause and consequences. Where the conduct is that of the trial judge, its causes will usually be irrelevant, unless it is related to the way in which the trial is being conducted by the parties. Its consequences will not be irrelevant, but need not require the demonstration of an unjust conviction. As the Chief Justice explained in Nudd, an unfair process may preclude an assessment of the justness of the outcome; further, a departure from an essential requirement will be sufficient in itself to demonstrate a miscarriage of justice. 102 For the reasons given above, in my view the conduct of a trial before a judge and jury required that the judge be present and conscious during the whole of the trial proceedings, at least to the extent that any absence or period of sleep beyond any period which was insignificant because not more than momentary. Further, I am satisfied that the periods during which the judge was asleep could not be dismissed as insignificant for the conduct of the trial. The alternative approach: unfairness or miscarriage 103 The alternative approach relied on by the Appellants involved the proposition that even if the Court had, and was exercising, federal jurisdiction, that exercise was not consistent with the principle that justice must not only be done but be seen to be done. The need for the jurisdiction to be exercised in a manner which did not impermissibly put at risk the maintenance of public confidence in the exercise of the judicial system was said to derive from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. As explained in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [27] (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) quoting Kirby J in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [116], "the ultimate foundation for the judicial requirements of independence and impartiality rests on the requirements of, and implications derived from, Ch III of the Constitution." 104 The attempt by the Appellants to derive from these cases a broad-based principle that the exercise of judicial power will miscarry if the "appearance" of doing justice is not preserved is ill-founded. It fails to give due recognition to the real focus of the cases. One group (including Kable and Bradley) is concerned with the principle of independence from the executive government, a principle inextricably connected with the doctrine of separation of powers. The references in Kable to maintenance of public confidence in the judicial system should be understood in their context, which was an application to the State judicial system of the principle that conferral on a court of functions which are incompatible with the independent exercise of judicial power is a contravention of Ch III of the Constitution. This is a systemic issue: the present case does not involve that area of discourse. 105 The second group of cases (including Ebner) is concerned with protection from prejudice, partiality and prejudgment. In that area, which involves a core principle of procedural fairness in individual cases, different principles are at stake. But again to derive some broad underlying principle requiring the appearance of justice as a precondition to the valid exercise of judicial power is misconceived. Reliance on a reasonable apprehension of bias may involve two separate justifications. One is indeed that the public interest in avoiding partiality or bias is so strong that even a reasonable apprehension invalidates the process. A second justification is that what is being assessed is the objective character of particular facts, rather than their subjective effect on the individual decision-maker, because the latter is often not capable of independently verifiable ascertainment. This latter justification is consistent with other elements of procedural fairness. Thus, once it has been shown that a complainant has in fact been denied an opportunity to address adverse allegations or inferences, which could be material to the outcome of the process, the Court will set aside the decision unless affirmatively satisfied that the contravention could not have affected the outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. 106 Properly understood, the Appellants' complaints involve the latter principle. The factual premise on which it is based is that the judge's behaviour had the capacity to affect the jury's assessment of the Appellants' cases. If that is established, then unless the Court is satisfied that the impact could not have affected the outcome, the proceedings will have been unfair, so as to involve a miscarriage of justice. In a case where the credibility of each accused was a central issue, a material diminution of, or interference with, the jury's ability to make a proper and independent assessment of that issue will render the trial subject to a fundamental flaw, amounting to a miscarriage of justice. 107 The evidence suggests that the jury was in fact distracted and may have paid less attention to the evidence when the judge was perceived to be asleep. However, in my view such evidence was not necessary and was either irrelevant, or at least of very limited relevance. That is because the proper test is an objective one. It is the conduct of the judge which should properly be assessed, not the apparent responses of the jurors. It should be assumed that the conduct of the judge established on the facts would have had two related effects. First, it tended to undermine the routine directions which his Honour gave at the commencement of the trial, to listen carefully to the evidence, to put aside preconceptions and to assess the evidence against the directions given as to the law in a responsible and considered manner. The Appellants were each facing a maximum penalty of imprisonment for life if convicted. Conduct which tended to diminish the jury's understanding of the seriousness and responsibility of their task impacted directly on the fairness of the process. 108 Secondly, the administration of criminal justice rests squarely on the presumption that the jury will follow the judge's instructions. Because the decision-making process is opaque, that presumption, on which many appeals have foundered, is a central quality or essential characteristic of trial by jury. If the conduct of the judge casts doubt on the reliability of that presumption, the soundness of which cannot realistically be tested except in extraordinary cases, the process will have miscarried. 109 Thus, the judge's conduct not only undermined the specific directions given, but, in a broader sense, tended to undermine the likelihood that correct directions were taken seriously and carefully applied. They may have been, but it is impossible to know. Far from exercising control over the Court, the trial judge's behaviour itself constituted a distraction. As Mr Dhanji pointed out, the conduct was of the kind which, had it occurred in the public area of the court, in the presence of a conscious judge, would have been stopped by the judge and about which he would have warned the jury not to be distracted. He might even have taken steps to have relevant evidence read back to them had he observed that some were indeed distracted. 110 Accordingly, there was a real possibility that the judge's conduct adversely affected the jury's performance of its function, in a material respect, which was sufficient to render the trial unfair and to deprive the proceedings of an essential characteristic of trial by jury. 111 This result is resisted by the Director in part on the basis that the Appellant Cesan, in a letter to the trial judge, acknowledged that he had had a fair trial. There are a number of reasons to reject this argument. First, the belief of the Appellant is not of great relevance, if any. As noted above, the effect of the judge's conduct must be assessed objectively. Secondly, the question of fair trial or no, is a mixed question of fact and law and an admission or opinion based on unrevealed understandings of the relevant law, is either inadmissible or worthless. Thirdly, if the letter is to be treated as a waiver of an essential element of trial by jury, it will not avoid the requirements of s 80 of the Constitution. Operation of proviso 112 There remains a question as to the application of the proviso to s 6(1) of the Criminal Appeal Act. On one view, a failure to comply with a constitutional imperative encompassed by s 80 must constitute a substantial miscarriage of justice. On another view, it may do so, in which case a further assessment may be required to determine whether to apply the proviso. 113 In Wilde v The Queen (1987-1988) 164 CLR 365 at 372-373, Brennan, Dawson and Toohey JJ, after referring to an earlier decision of the Court stated: "This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' …; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, than it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso… ." 114 This passage has not been doubted in subsequent cases, but it remains necessary, as occurred in Wilde itself, to consider what constitutes "such a radical or fundamental error": Wilde at 373. 115 In Nudd v The Queen (2006) 80 ALJR 614, the Court considered the question of miscarriage of justice, in a case involving the alleged incompetence of trial counsel for the appellant. Gleeson CJ noted at [7]: "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial." 116 Gummow and Hayne JJ referred to the passage set out above from Wilde and noted that it was not necessary "to explore the boundaries" of that proposition "or to attempt to identify circumstances in which it could find application": at [36]. Their Honours continued: "To do so would require close attention to what is meant by 'essential requirements of the law' and 'the root of the proceedings'. These notions may reflect what has been said by some members of the Court respecting aspects of 'due process' discerned from Ch III of the Constitution."

(This reference to "due process" referred in a footnote to Wheeler, "Due Process, Judicial Power and Chapter III in the New High Court" (2004) 32 Fed L Rev 205.) 117 Kirby J referred to a similar concept, noting that the trial occurred in federal jurisdiction, at [111]. His Honour continued: "In accordance with s 80 of the Constitution, the appellant was entitled to, and secured, trial by jury. Such trial was obliged to conform to all requirements of Ch III of the Constitution. No arguments were advanced in this Court, whether based upon the terms of s 80 of the Constitution or more generally upon any due process implications to be found in Ch III that the application of the criminal appeal provisions of the statute law of Queensland, picked up and applied to a trial in federal jurisdiction, were inconsistent with any constitutional requirements governing the appellant's trial."

His Honour concluded that it was not necessary to pursue those issues, as they had not been raised in the course of the appeal. However, it may also be noted that s 80 may apply directly to the requirements of the trial, and not merely by way of avoiding inconsistent provisions in State law. 118 In Darkan v The Queen (2006) 80 ALJR 1250 at [94] the joint judgment (Gleeson CJ, Gummow, Heydon and Crennan JJ) noted that in Weiss v The Queen (2005) 224 CLR 300 at [45]-[46], the Court had "put aside questions relating to two particular kinds of defect in a trial". Their Honours continued: "One was whether the proviso could be applied when there had been 'a significant denial of procedural fairness'. … The other was whether the proviso could be applied where there had been a sufficiently 'serious breach of the presuppositions of the trial'. This was a reference to a trial which had 'so far miscarried as hardly to a trial at all' or 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'."

It was not necessary to resolve those questions in Darkan either. 119 The relationship between the proviso and such essential characteristics was addressed by this Court in Swansson & Henry v Regina [2007] NSWCCA 67 and in Petroulias v R [2007] NSWCCA 134. The question in Swansson & Henry was whether the trial was invalid because it proceeded on more than one indictment. The Court (Spigelman CJ, McClellan CJ at CL, Sully, Simpson and Howie JJ) upheld the appeal. The Court held, relying in part on Munday v Gill (1930) 44 CLR 38, as stated by Gavan, Duffy and Starke JJ at 76, that a trial on several indictments "was a nullity and without jurisdiction". Further, as the Chief Justice noted at [21], applying Abdul Rahman v The King-Emperor (1926) LR 54 Ind App 96 at 104, "no serious defect in the mode of conduct a criminal trial can be justified … by the consent of the advocate of the accused". 120 In Swansson & Henry, there was a degree of uncertainty in the minds of some members of the Court as to whether the proviso could be applied, in circumstances where there was a fundamental error of the kind there identified. An approach, consistent with the analysis in Wilde, was adopted by the Chief Justice at [43]-[54], McClellan CJ at CL and Sully J agreeing. Simpson J, at [154]-[175], in a passage in which Howie J concurred at [188]-[189] appears to have concluded that the proviso "has no application" because the error resulted in the characterisation of the trials as "nullities": at [175]. On either approach (if there were indeed a difference) the result was the same. The desirability of avoiding the drawing of specific conclusions from terms like "nullity" has long been understood, in the context of both administrative law and the criminal law, and was reiterated in Bounds v The Queen (2006) 80 ALJR 1380 at [10] (Gleeson CJ, Hayne, Callinan and Crennan JJ). 121 In a case in federal jurisdiction, once it is accepted that there has been a contravention of a requirement given constitutional force by s 80, it is appropriate to conclude that the requirement is properly characterised as one which either, in its own terms, gives rise to a substantial miscarriage of justice or is one to which the proviso has no application. That is because to apply the proviso would be to give legal force and effect to a trial which does not qualify as a trial by jury, in accordance with the requirements of s 80 of the Constitution. The constitutional imperatives cannot be put aside in that way. Accordingly, the appeals should be upheld and the convictions set aside. Other grounds of appeal: 122 In Swansson, there was some debate as to whether, once it was concluded that a trial lacked essential qualities in the way set out above, it was appropriate to go on and consider other challenges to the convictions. However, a court is frequently in a position where it is desirable that it proceed to consider matters which are irrelevant once a particular conclusion has been reached, in case its conclusion were held to be in error. In the interests of finality, that approach should be adopted in the present case. (i) Instructions with respect to elements of offence 123 The Appellant Mas Rivadavia complained that the trial judge did not properly direct the jury in relation to the legal elements in s 11.5 of the Criminal Code, with respect to conspiracy. The substance of the complaint was that the trial judge failed to instruct the jury that they must be satisfied that at least one party to the agreement had "committed an overt act" pursuant to the agreement, for the purposes of s 11.5(2)(c). 124 The substance of the complaint was in effect an extension of the Appellant's explanation that he thought that Cesan and Andres were involved in the separate conspiracy concerning the importation of heroin from Hong Kong. There was, in that case, a reasonable hypothesis consistent with innocence in relation to overt acts, namely that such acts as were engaged in by one of the conspirators, were not known by Mas Rivadavia to have been engaged in in furtherance of the agreement to import ecstasy. 125 The Appellant concedes that no redirection was sought at trial. 126 The complaint has an air of unreality. In some cases involving conspiracies it may be possible to conclude that there was an agreement to carry out an unlawful act but nothing was done pursuant to the agreement. That is not this case. The prosecution could not demonstrate an express agreement; it had no document or conversation to that effect. Rather, the case was run upon conversations, of which the key passages related to actual conduct of one or other of the conspirators. In summing up the case for this Appellant, the trial judge explained in clear terms his contention that he did not participate in any second agreement, but only in the separate agreement to import heroin, for which he had pleaded guilty and been sentenced. His Honour continued (Tcpt, 23/6/04, p 26): "He says to you that you would not draw the conclusion, the inference, from the telephone conversations in relation to packages one to six nor in relation to the other circumstances relied upon by the Crown that he was party to a second agreement to import ecstasy into Australia and he says that after the heroin had in fact come in on 4 April 2002 that there was no further activity by him relation to any of these packages. That was because his role in relation to any unlawful activity was then at an end." 127 Further directions to similar effect were given, summarising the defence case at Tcpt, pp 51-52. 128 It was not necessary for the Appellant himself to have committed any overt act, but the jury had to be satisfied, and was so directed, that he was party to an agreement with others, including Cesan and Andres, one of whom did commit a relevant overt act. Neither of the co-accused contended that parcels were not sent from Germany and Belgium to Australia, nor did Cesan contend that he had no involvement with the importation of the parcels. The prosecution case depended on demonstrating such involvement; there was no basis upon which the jury could convict the Appellant Mas Rivadavia unless they were satisfied that he was party to such an agreement which involved the important of the various parcels. It seems likely further directions were not sought by counsel at the trial because they would have served no useful purpose. That view would have been correct. There is no substance in the ground of appeal. (ii) Directions in relation to lies 129 Both Appellants challenge the summing up on the basis that it failed adequately to direct the jury in accordance with principles established in Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. These complaints need to be separately assessed in relation to each Appellant, as the relevant lies differed. 130 In relation to the Appellant Cesan, there was no dispute that he had lied in the witness box and agreed that he had done so. His case was that he had been involved in the importation of packages from Europe, and to that end had passed messages between Andres and a man known as Ngakuru. His role, as a "run around person" did not involve any knowledge on his part of their agreement to import a quantity of narcotics. At first, he had denied that he had "paid or arranged to pay taxes and charges" in relation to packets four and five: Tcpt, 17/6/04, p 465. However, when pressed in relation to the contents of intercepted conversations, he agreed that he had discussed such arrangements with Mr Andres: Tcpt, 18/6/04, pp 523-525. His earlier evidence was then put to him and, after some equivocation, he agreed that the answers could not stand together and that he had not, in his earlier answers, been telling the truth: p 526. Further questions and answers followed (p 527): "Q. And in telling that lie to the members of the jury, you were endeavouring to minimise your role in this scheme, weren't you? A. You could say that, yes. Q. In an effort to try and distance yourself from what was going on? A. No. Q. In an effort to try and make us all believe that you didn't know that the purpose of the importation was narcotics. That was the purpose in the answer that you gave, wasn't it? A. No." 131 The prosecution addressed the jury on the basis that he had told lies in order to seek to distance himself from the other parties to the conspiracy and to minimise his role, in very much the terms in which the cross-examination had proceeded. 132 The directions given by the trial judge in relation to this matter were in the following terms. First, his Honour noted that the two accused had given evidence although they were not obliged to do so and subjected themselves to cross-examination. He reiterated that the onus at all stages remained on the prosecution to satisfy the jury of the guilt of each beyond reasonable doubt. He then continued (Tcpt, 23/6/04, pp 29-30): "In his address to you the Crown referred to what he described as lies told by each of the accused at different times. It is a matter for you to determine in any particular instance referred to by the Crown whether it was a lie. A lie is a deliberate untruth. It is for you to determine whether what an accused said was untrue in any such instance and if it was whether he was deliberately telling an untruth. If you decide that a lie was told it is for you to decide what significance that has. Even if you decide in any instance that an accused did tell a lie you should keep in mind that the mere fact that he told a lie is not in itself evidence of guilt. If you think that there is or may be some innocent explanation for a lie then you should take no notice of it." 133 His Honour returned to the direction in relation to the Appellant Cesan and the prosecution's suggestions that he had lied to minimise his role in the importations and to distance himself from what was going on: Tcpt, p 45-46. Complaint is made of the following passage: "I have already given you a direction in relation to how you are to approach what are said to be lies and, if any of that has any particular significance for you in the context of this case, then you will take it into account accordingly, but, if not, you will ignore it, but in particular the Crown says that he tried to minimise his role by making out that he was a mere contact point and … you would come to the conclusion that he was much more than a mere contact point and he had an active role… ." 134 The complaint made for the Appellant Cesan was that the direction given "failed to prohibit the use of lies as part of a process of reasoning". However, there is no authority for the proposition that, as a general rule, any such prohibition should be required. What is prohibited is the elision which may occur between the conclusion that a person lied and the inference that he or she did so from a consciousness of guilt. In Zoneff, the joint judgment recommended that, if there were doubt about how the prosecution sought to put its case, the trial judge should inquire whether it contended that lies "may constitute evidence of consciousness of guilt": at [17]. That happened in the present case, and the prosecution disavowed the suggestion that a "Zoneff-style of direction" was required: Tcpt, 22/6/04, p 18. 135 As Zoneff itself illustrates, fears that a jury will misuse evidence can result in unnecessary and inappropriate directions. The nature of lies, and the possible inferences which can be drawn from them will vary significantly between cases and even between different passages in the evidence. An innocent accused may lie because he or she fears that an admission of opportunity will be relied upon by the jury (incorrectly) to infer guilt. Obviously it would be an irony if, the answer having been demonstrated to be untrue, the jury inferred guilt from the fact of a deliberate untruth. What is important is that the jury's mind be directed to the possibility of a range of available inferences and explanations. However, where the motive for the lie has been expressly explored in cross-examination, there may be less danger of false reasoning than in other cases. In the present case, the direction given was, taking into account the manner in which the Crown had put its case, both in cross-examination and in address, adequate to avoid that risk. It would be to prefer form over substance to accept the contention that some specific prescriptive language is to be derived from Zoneff at [23]-[24]. In my view there is no substance in the complaint made with respect to the summing-up on behalf of the Appellant Cesan. 136 A similar complaint was made by the Appellant Mas Rivadavia, although the context differed. 137 The directions given in relation to the Appellant Mas Rivadavia included the general direction with respect to lies, referred to above and, more specifically, the allegation by the prosecution that the Appellant had lied in his evidence in denying knowledge of that which preceded the attempted ecstasy importation: Tcpt, 23/6/04, p 39. It is obvious that where a person accused of an offence has gone into the witness box and denied his involvement, the prosecution will invite the jury to find that he or she has lied. That does not involve reasoning of the kind discussed in Edwards and Zoneff. 138 In addition, and more specifically, the Appellant complained that the prosecution had asserted, and the trial judge had repeated the assertion, that an implication could be drawn from the fact that, although the Appellant said that he thought the packages were involved in the heroin importation, for which he had been sentenced, he made no mention of those packages in the sentencing proceedings. 139 To complain about what is not said in relation to evidence which, at best, forms part of a circumstantial case, provides no obvious basis for asserting error. An omission is not a lie and the jury was not invited to treat it as such. If the particular circumstance had little weight, one might think that the less said about it the better. It is understandable that no further direction was sought at trial. No error being demonstrated, there is no need to address the effect of r 4 of the Criminal Appeal Rules in this context. However, if there had been doubt in that regard, it might have been thought that these were precisely the kind of circumstances in which the rule should be applied. 140 This ground also should be rejected in relation to the Appellant Mas Rivadavia. Sentence 141 Both Appellants sought leave to appeal against sentence. 142 Again on the basis that there may be error in the assessment of the appeals against conviction, it is appropriate to address the applications for leave to appeal against sentence. In relation to the Appellant Cesan, the first complaint is the assessment by the trial judge of the role played by the Appellant in the conspiracy. He assessed the role as equal to that played by Mr Andres, and, accordingly, sought to give him a comparable sentence, taking into account the fact that Andres had pleaded guilty in relation to both the ecstasy conspiracy in question and the separate conspiracy to import heroin, to which the Appellant Mas Rivadavia had also pleaded guilty: Judgment on sentence, 18 March 2005, p 14. Although the Appellant Cesan separately argued that he had a justifiable sense of grievance by virtue of the disparity between his sentence and those imposed on Mr Andres and Mr Mas Rivadavia, for present purposes, the question is whether there was error demonstrated in treating his role as "equal to the role played by Andres": Judgment, p 4. 143 The Appellant's case at trial had been that, as noted in the cross-examination relating to his lie about his role, he was merely a "run around person" for the other participants. The trial judge rejected that as an inadequate description of his role, in sentencing him. He did so on a number of bases. These were identified in the following terms (pp 4-5):

(1) "You were, in some instances, aware of details of the packages, such as airway bill numbers, before either Andres or Mas Rivadavia. This indicates that you were in contact with those who were responsible for the dispatch of the packages overseas."

(2) "You were aware that the nature of the scheme involved practice runs, to the point of being able to reassure Andres that there was no cause for concern when things did not proceed according to plan."

(3) "In relation to package two, which had been delivered to the wrong address, it was your role to fix what had gone wrong. You called the number of the person to whom the package had been delivered and posed as an employee of FedEx. You went to this effort to ensure that things did not go wrong with any future packages."

(4) "In the case of package three, you provided an address to which the package could be delivered and also arranged for a relative to be the recipient. …"

(5) "You were also responsible for making arrangements for the duties and taxes applicable to packages four and five, to the point of making an offer to attend at FedEx and make the payment." 144 The contention was that none of these five factors demonstrated beyond reasonable doubt a role greater than that of "run around person" and, therefore, a role subservient to that of Mr Andres. However, the Appellant's approach assumes that the trial judge accepted his own self-description. Significantly, that description was put forward, despite the lie in relation to payment of taxes and charges, as a means for demonstrating that he was sufficiently distant from the principal players not to know of the purpose of the various importations. However, the conviction at least entailed rejection of the inference sought to be drawn and very likely involved rejection of the self-description on which it was based. Although it has not been detailed in the reasons for sentence, the findings of fact generally, though briefly expressed, involve acceptance of the prosecution's case in relation to the meaning of the telephone intercepts. These give colour to the assessment undertaken by the trial judge for the purposes of sentencing, and justify the conclusion that the Appellant Cesan had a role similar to that of Mr Andres. There was, no doubt, some substance to the contention that the role of Mr Andres was significant because of his position as an employee of Federal Express, a position not shared by the Appellant Cesan, but it did not demonstrate error in the overall assessment. 145 It is convenient at this point to note that when the Appellant was sentenced, Mr Andres was subject to a sentence of 10 years imprisonment for the ecstasy conspiracy, but was the subject of a Crown appeal. (Mr Andres himself also appealed on the basis that the sentence was excessive.) That sentence had been subject to a discount of 25%, for an early plea of guilty, suggesting a starting point of 13 years and four months. The sentence imposed on the Appellant Cesan was 13 years and six months. That sentence involves a purely nominal increase over the sentence imposed on Mr Andres by the trial judge in his matter. 146 On appeal to this Court, the challenge to the sentence raised by Mr Andres was dismissed and the Crown appeal was allowed. The resentencing, in accordance with established principle, was at the lower end of an appropriate range and also accepted the propriety of a discount of 25% for an early guilty plea, resulted in a sentence of 12 years and six months: see Kardoulias and Andres v Regina [2005] NSWCCA 456, (2005) 159 A Crim R 252 at [130]. That is consistent with a starting point of 16 years 8 months. In circumstances where both Mr Andres and the present Appellant had favourable "subjective" factors, it is not possible to accept any justified sense of grievance on the part of the Appellant in comparison with the sentence imposed on Mr Andres. Indeed, even if the submission were accepted that the Appellant played a somewhat lesser role in the conspiracy than Mr Andres, according to the standard accepted in this Court on the Crown appeal in relation to Mr Andres, no basis is established for interfering with the sentence imposed by the trial judge in the present matter. 147 There is also an appeal against sentence on behalf of the Appellant Mas Rivadavia. He was treated as playing a lesser role than Mr Andres and as having "acted under the influence of Mr Andres, who is many years your senior and was your superior at FedEx": Judgment, p 15. His Honour imposed a sentence of 11 years, being two years six months less than the sentence imposed on the Appellant Cesan and one year six months less than the sentence ultimately imposed by this Court on Mr Andres, after taking account of his guilty plea. 148 The Appellant Mas Rivadavia had been sentenced, taking account of the Crown appeal against his original sentence, on the heroin conspiracy, to a period of 8 years 3 months imprisonment with a non-parole period of 5 years 3 months. Each was to date from 8 April 2002. In the present matter, the trial judge sentenced him to a period of 11 years imprisonment to date from 8 April 2006, thus accumulating on four years of his prior sentence and giving an overall sentence period for the two offences of 15 years. His non-parole period was extended by 4 years 9 months, to give a total non-parole period of 10 years, dating from 8 April 2002. The overall effect of the further sentence and the increased non-parole period was to maintain the relationship of a non-parole of approximately two-thirds of the total sentence. 149 The complaint made by the Appellant is that, by comparison with Mr Andres, he has a justifiable sense of grievance, based on inadequate disparity. In other words, given the more serious nature of Mr Andres' conduct, the sentence imposed on the Appellant should have been lower to convey a proper proportionality. Thus, in relation to the heroin conspiracy, the Appellant Mas Rivadavia received a sentence which was 75% of that imposed on Mr Andres. However, after the addition of the sentences for the ecstasy conspiracy, the disparity had been reduced from 25% to 10%. That effect resulted from both sentences being accumulated on four years of the original terms. To maintain a ratio of 75%, it would be necessary to reduce the period of accumulation in the case of the Appellant to approximately 4 years 1 month and to reduce the non-parole period to eight years three months, which would be an increase of 3 years on the non-parole period set for the heroin conspiracy. 150 This reasoning, however, fails to take into account the fact that the trial judge did not assess the disparity between the positions of Mr Andres and the Appellant Mas Rivadavia in the way now calculated. Rather, he based his comparison on the sentence imposed on Mr Andres at trial in relation to the ecstasy conspiracy which was a sentence of 10 years imprisonment with a notional non-parole period of six years six months. Thus, the sentence of 11 years imposed on the Appellant in relation to the ecstasy conspiracy was actually greater than the sentence imposed on Mr Andres, because of the latter's guilty plea. On the other hand, as a proportion of the sentence which would, notionally, have been imposed on Mr Andres, absent a guilty plea, the proportion was 82.5%. To maintain that proportion, in the light of the increase in the sentence imposed on Mr Andres, in this Court, it would have been necessary to increase the sentence imposed on the Appellant. 151 The other aspect of the calculation follows from the effect of accumulating the two sentences. Thus, in the case of Mr Andres, if one commences with the sentence for the heroin conspiracy, the trial judge accumulated the (inadequate) 10 year sentence for the ecstasy conspiracy so that it commenced 4 years and 6 months into the sentence for the heroin conspiracy. The trial judge in the present case accumulated the Appellant's ecstasy conspiracy sentence so as to commence after 4 years of the heroin conspiracy sentence. It is true that the Appellant has served a disproportionate part of the sentence for the heroin conspiracy, when compared with Mr Andres. However, those calculations were known to this Court in resentencing Mr Andres. In considering the question of accumulation and totality, this Court stated (Kardoulias v The Queen; Andres v The Queen (2005) 159 A Crim R 252) at [131]: "There were two distinct conspiracies involving different drugs and, to an extent, different co-conspirators. Mr Kardoulias was involved in the heroin conspiracy but not the ecstasy conspiracy. Mr Cesan was involved in the ecstasy conspiracy but not the heroin conspiracy. Mr Mas Rivadavia was involved in both conspiracies, but to a lesser extent than Mr Andres. I note that Mr Mas Rivadavia, for both conspiracies, received a total sentence of imprisonment for 15 years with a non-parole period of 10 years to date from 8 April 2002." 152 The Court then noted that there were "certain overlapping features" involving the role of Mr Andres in the two conspiracies and "a substantial overlap in time". The Court also stated, at [132]: "It is appropriate to have regard to the sentences imposed upon Mr Mas Rivadavia for both conspiracies in fixing sentences for Mr Andres for the same offences." 153 Some changes in proportionality between sentences is inevitable where co-offenders are sentenced at different times. That may be particularly so where one offender is sentenced first, but appeals after a second offender has been sentenced, so that this Court reconsiders the first offender's sentence having regard to that imposed on the second offender. An attempt at achieving an appropriate level of parity or disparity may be frustrated if the second offender later appeals successfully. Nevertheless, if the second offender has a legitimate grievance, this Court must take account of it and act appropriately, despite the possible consequences in relation to proportionality, with respect to the first offender. 154 Taking those considerations into account, I am nevertheless not persuaded that it is appropriate to interfere in the present case. The effective accumulation imposed by the trial judge meant that the Appellant served a little under half of the sentence for the heroin conspiracy before commencing his second sentence. The fact that Mr Andres, having been resentenced by this Court, is now to serve less than half of his sentence on the heroin conspiracy, before commencing his second sentence, must be seen in part as an application of the principle that the overall sentence imposed following a successful Crown appeal is to be at the lower of the end of the appropriate range. Bearing in mind that the sentence imposed on the Appellant was actually longer than that imposed on Mr Andres at trial, because of the reduction that Mr Andres received in pleading guilty to the more serious offence, no legitimate sense of grievance has been created by reference to the sentences imposed on Mr Andres. Conclusions 155 As noted above, in each case the appropriate extension of time should be granted in relation to the notice of appeal and the application for leave to appeal against sentence. 156 With respect to the conviction appeals, in each case the appeal should be allowed, the conviction quashed and a re-trial ordered. 157 Had it been necessary to consider the applications for leave to appeal against sentence the appropriate orders, in each case, would have been to grant leave to appeal but dismiss the appeal. 158 GROVE J: In these appeals I have had the advantage of reading the judgment of Basten JA in draft form. I have formed conclusions different from those which led his Honour to propose that the convictions be quashed and new trials ordered, but insofar as I can refer to the judgment and avoid repetition of background description, evidence and matters upon which I am in agreement, I will gratefully do so. 159 Each of the appellants was convicted of conspiring to import a commercial quantity of a prohibited drug commonly called Ecstasy. Such convictions rendered them liable to sentences of imprisonment for life. Cesan was sentenced to imprisonment for thirteen years six months with a non-parole period of nine years. Mas Rivadavia was sentenced to imprisonment for eleven years for this offence but, associated with a sentence for a separate offence of conspiring to import heroin, he became required to serve a sentence of fifteen years imprisonment with a non-parole period of ten years. 160 In their final forms, the grounds of appeal relied on by the respective appellants were:

Cesan 1. A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial.

1A. The trial was a nullity as the court lacked jurisdiction as a consequence of the fact that the trial judge was asleep during parts of the trial.

1B. The trial failed to comply with the minimum requirements of "trial by jury" as required by s 80 of the Constitution.

2. A miscarriage of justice was occasioned by the failure of the learned trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant.

3. The learned sentencing judge erred in his assessment of the role played by the appellant.

4. The learned sentencing judge erred in failing to apply the appropriate tests to facts relied on in aggravation.

5. The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and those passed on his co-offenders. 161 Mas Rivadavia 1. The trial judge erred by failing to sum up on the elements of the offence of conspiracy as prescribed by the Commonwealth Criminal Code.

2. The trial judge erred in his directions on lies.

2a. The trial judge erred in respect of his directions concerning the evidence of the appellant's alleged omissions in the account he gave in earlier sentencing proceedings.

3. A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial.

1.(Sentence) The sentence imposed upon the applicant's co-offender, Andres, gives rise to a justifiable sense of grievance on the part of the applicant. 162 At the hearing of the appeal, counsel for Mas Rivadavia abandoned ground 1. 163 I have, as indicated above, formed a conclusion different from Basten JA specifically on grounds 1, 1A and 1B (Cesan) and ground 3 (Mas Rivadavia) which, unless I considered any of grounds 2 (Cesan) or 2 or 2a (Mas Rivadavia) had been made out, would result in the dismissal of the appeals against conviction. It will be convenient to deal with these latter grounds first. His Honour provisionally expressed views that those grounds should not be sustained and I agree with his opinion. In that circumstance I can deal with them relatively briefly. 164 The Crown evidence demonstrated the despatch into Australia of a sequence of six packages originating from places in Europe. The contention was that the first five despatches were "dummy runs" and that the sixth despatch sought to deliver approximately 1.4 kilograms of ecstasy tablets. This package had been lodged at a FedEx agency in Germany. Suspicion led to examination of it and drugs were detected embedded in soap within it. The drugs were seized and the package, emptied of the contraband, was onforwarded to Australia where police reconstructed it and permitted its delivery from the FedEx office in Alexandria. It was collected from there by one Iden Chan who departed in a taxi which was later stopped by police. Chan was arrested and the package recovered. 165 Cesan was a former employee of FedEx. Mas Rivadavia and another co-accused Andres were currently employees of FedEx. The evidence included the product of telephone interception of numerous calls between the conspirators including Cesan. He gave evidence which essentially did not challenge the Crown material. He acknowledged that he had participated with Mas Rivadavia, Andres and others in the importation but asserted that he believed that what was being imported was pirated software and associated computer equipment which was usable in the recording and digital manipulation of music. He and the two abovementioned co-conspirators were members of a band. There is no complaint about the appropriateness of his Honour's directions concerning the consequences of any jury finding that Cesan may have held such a belief. 166 In the course of his evidence Cesan admitted telling lies. In regard to one of the "dummy packages" addressed to an organization named Software Associates, he agreed that he had telephoned them purporting to be "someone from FedEx" which was a lie (T479). He also agreed that he had given inconsistent answers, only one of which could be true, concerning his participation in the arrangements concerning the packages such as paying taxes and charges in respect of them. This exchange in cross examination was recorded (T526-7): "Q. I asked you in terms of whether you had paid or arranged to pay taxes and charges in relation to those packages, and you said 'no', correct? A. That's correct. Q. I asked you a few moments ago, after we resumed after this morning's adjournment, whether in doing all of those things I took you to, you were arranging to pay taxes and charges for these packages, and you answered 'yes'? A. Correct. Q. The two answers don't sit together, do they? A. No. Q. Which is the truth, what you told the court yesterday, or what you told the Court this morning? A. The truth is what I have just told you. Q. Which is what, sir, did you or didn't you make arrangements to pay these taxes and charges? A. Yes. Q. Your answer 'no' yesterday was a lie, wasn't it? A. After going through the transcript, I've realised that yes, I had some part in the arrangement. Q. You had been through these transcripts before you gave evidence yesterday, hadn't you? A. Yes, I had. Q. You have had access to these transcripts for a long period of time, haven't you? A. Yes. Q. What you said yesterday was a lie, wasn't it? A. Partially, yes. Q. And in telling that lie to the members of the jury, you were endeavouring to minimise your role in this scheme, weren't you? A. You could say that, yes. Q. In an effort to try and distance yourself from what was going on? A. No. Q. In an effort to try and make us all believe that you didn't know that the purpose of this importation was narcotics. That was the purpose in the answer that you gave, wasn't it? A. No." 167 The learned trial judge raised the question of directions which may be needed and this exchange with counsel is also recorded: "HIS HONOUR: ……A certain amount has been - I suppose this comes back to you Mr Crown. Lies. You said a certain number of things said by each of the accused amounted to lies. Are you seeking any form of direction as to lies? CROWN PROSECUTOR: No, I am not. HIS HONOUR: So, you would be saying then, that I should give what is now commonly referred to as Zonef (sic) style of direction? Do you agree with that or is there a particular direction you wish me to give? MOSCHOUDIS (for Mas Rivadavia): No, there is not. HOENIG(for Cesan): I agree." 168 Clearly the Crown was not inviting the jury to reason that lies told by Cesan were in themselves a demonstration of a consciousness of guilt of the charge. Neither was it the case in relation to Mas Rivadavia. There was no call for instruction along the lines expounded in Edwards v The Queen (1993) 178 CLR 193. The general rule is that such a direction should only be given when the Crown seeks such reliance: Zoneff v The Queen (2000) 200 CLR 234 at 244. 169 It was, of course, obvious at trial that insofar as Cesan proclaimed his belief that he was assisting in the importation of computer equipment, it was the Crown case that he was telling untruths. Such is always the case where an accused person denies an element of the offence charged. The guidance in the joint judgment of Gleeson CJ and Hayne J in Dhanhoa v The Queen (2003) 217 CLR 1 at 12 is germane: "It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards , or of the kind referred to in Zoneff , every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction ( Zoneff v The Queen (2000) 200 CLR at 244; R v Burge [1996] 1 Cr App R 162 at 173). Zoneff was said to be an unusual case ( Zoneff v The Queen (2000) 200 CLR 234 at 245), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case." 170 Neither was this such a case. Basten JA has set out the relevant parts of his Honour's charge to the jury and I do not need to repeat them. They were appropriate to the circumstances of this trial. 171 The situation concerning Mas Rivadavia was different. He had previously been charged with others, including Andres but not Cesan, with conspiracy to import into Australia a traffickable quantity of heroin. In short, the modus operandi of that importation was similar to that undertaken in the present case. Mas Rivadavia (and Andres) had pleaded guilty to the conspiracy to import heroin. Mas Rivadavia gave evidence in the trial revealing and affirming his guilt in respect of that crime but contending that any activity by him, or knowledge of actions by co-conspirators, was directed to the furtherance of that conspiracy and that he was unaware of any discrete agreement between others to import ecstasy and he did not knowingly participate in it. 172 Whilst the challenge to the directions on lies given by his Honour insofar as they affected Mas Rivadavia is contained in grounds 2 and 2a, it was specified by counsel at the hearing of the appeal that ground 2a was added for (more) "abundant caution" and it is not necessary to deal with the two grounds separately. 173 In his evidence in chief Mas Rivadavia had testified that he had involved himself in the heroin importation after representations from Andres that he expected to achieve appointment to an upcoming manager's position and therefore could arrange jobs under his supervision and approve overtime with benefits thereby flowing to Mas Rivadavia. In that sense Mas Rivadavia had something to gain (T309). He was cross examined about evidence that he had given in the sentencing proceedings in the District Court where he had said that he had involved himself in the heroin importation to help out a friend without any expectation that he would receive financial reward or benefit. He agreed that he had not mentioned this indirect benefit in the District Court and that what he had there said was "not the whole truth" (T346). 174 It is debatable whether the jury may have misunderstood this omission to constitute a lie at all, but it could not reasonably be proposed that such omission constituted a lie which the Crown was inviting the jury to utilize as demonstrating a consciousness of guilt of the charge against Mas Rivadavia. There was no call for his Honour to give any direction beyond those which he gave. In particular, referring to both appellants, he had said: "Even if you decide in any instance that an accused did tell a lie you should keep in mind that the mere fact that he told a lie is not in itself evidence of guilt." 175 I would reject all of grounds 2 (Cesan) and ground 2 and 2a (Mas Rivadavia). 176 I turn to deal with grounds 1, 1A and 1B (Cesan) and ground 3 (Mas Rivadavia) which have in common a dependence upon allegations that, during the course of the trial, the presiding judge was asleep. No application was made at the trial concerning this and, in particular, there is still no identification of any omission, misdirection or error which is asserted to be of consequence in the conduct of the trial emerging from intermittent episodes of inattention which resulted from the judge being asleep. Complaint is raised for the first time about this on appeal. I do not regard it as insignificant in relation to Cesan's appeal that, prior to sentence, he wrote to the judge in these terms: "I would like to take this opportunity to thank you for what was a very fair trial, one wherein I accept the decision made by my peers and I am today at your mercy, asking for some leniency in my sentencing. I have spent the last 19 months in custody, this has totally changed my perspective on life in many ways. Up until about a year prior to my incarceration I had a problem with drugs. Only now that I am clean can I acknowledge the severe impact it was having not only on myself but my family and those around me. It obviously clouded my judgment. In custody I have been given the opportunity to work with alcohol and other drug counsellors and have had regular, clean urine tests whilst in custody. My time in custody has also given me the chance to re assess my environment and my role in society. I feel I have a great deal to contribute to society and those around me and much to look forward to in the future. Above all your Honour this experience has taught me the most important lesson in my life, that which is accepting God as our creator and Jesus Christ as our saviour. The 8th of March 2004 marks the day I was born again and it has changed every aspect of my life. Words cannot describe my feelings and how thankful I am to the Lord for blessing me as one of his children. I have undertaken studies in pastoral theology with the Christian Training Program and it has become my destiny to follow the path of a good Christian. I sincerely hope you have taken into account the above when deciding my sentence. I once again thank you and the institution you represent for allowing me very (sic) opportunity to defend myself in a fair and just trial. In no way do I hold a grudge against any of the authorities involved, since they have given me the chance to become a new man. I apologise to the Court, Police and the Community for having to expend their resources on me when I never should have allowed that to happen. I thank you for your consideration." 177 It was sought to diminish the impact of this letter by assertion that it had been written on the advice of legal representatives. Even so, the letter, although it avoids words of direct confession, plainly acknowledges Cesan's guilt and it is somewhat paradoxical that this Court is then asked to quash his conviction after what this offender describes to have been a "fair and just trial" because of occurrences which it is not sought to demonstrate had any derogatory effect. It is not argued that the verdicts were unreasonable or cannot be supported and what is sought is a repeat trial. 178 Basten JA has summarized the evidence of the individual witnesses who described their observations of the judge falling asleep. Cesan described the judge as "nodding off" during the playing of the tapes, that is the recordings of intercepted conversations. This exercise spread over five days. Transcripts of the intercepted conversations were available: Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180. It is instructive to note that the transcripts are reproduced in Volume 2 of the Appeal Books and they run to 702 pages. It was not, and could not, be suggested that every utterance in the captured conversations was germane to an issue at trial. Nor has there been any suggestion that the judge "missed" anything relevant about which he should have made a ruling or given some guidance or direction to the jury. 179 Cesan described hearing the judge snoring from time to time during his own evidence. His affidavit complained that he found this disruptive and made it hard to concentrate on the questions. These complaints were general in expression. He did not attempt to identify any error which he made in his evidence as a result of this difficulty, nor to identify anything different from what he did say that he would wish to have said, nor anything that he had omitted to say during his evidence. 180 The appellant Cesan's mother said she attended court every day except the first. No evidence was taken on that day. She described what she saw and her conclusion was that the judge was, from time to time, asleep on occasions for up to twenty minutes. She did not link her observations to any aspect of the course of trial which was contemporaneous with her observation. 181 Ivan Amaro attended the hearing on most days. He recalled the judge snoring during Cesan's evidence. In what impressed me as a more realistic description of what was happening he deposed, inter alia: "What must have been five - ten seconds seemed to be an eternity….." 182 Veronica Cabrera attended most days of the trial. She saw the judge asleep for periods between five and twenty minutes. 183 Patricia Lawson attended at least nine days of the trial and considered that the judge was asleep most of the time. The exaggeration implicit in that purported observation is inconsistent with the progress of the trial to verdict. I would reject that testimony. 184 Gabriela Cesan said she saw the judge asleep, sometimes for two or three minutes and also for longer periods but she did not time these longer periods. 185 David Uriba was at the trial on two days. On both occasions he said he saw the judge asleep. His descriptions of what was occurring on those days are in some respects incompatible with the record of proceedings but, even assuming that what he said was basically correct, it carries the issue no further one way or the other. 186 Catalina Cal attended the trial two or three times a week and recalls seeing the judge fall asleep in the afternoons. She estimated this to occur for periods which she would measure in minutes. 187 Magalli Locaputo also attended two or three times per week. She heard the judge snoring when her nephew (Mas Rivadavia) was giving evidence. She saw the judge's head down and eyes closed on many occasions. One day she observed a person (obviously the judge's associate) tapping in order to awaken him and this happened three times on that day. 188 Geoffrey Bellew SC, who prosecuted at trial, recalled occasions when the judge appeared to be asleep but, having read the affidavits of the abovementioned (except Gabriela Cesan), he stated that his recollection was that the times estimated (that the judge was or appeared to be asleep) were less than deposed to by those witnesses. 189 It is necessary to make findings of fact in respect of these matters for the purpose of dealing with the grounds. I accept that the judge was asleep from time to time. In reference to the evidence of Cesan, Basten JA has commented "commonsense suggests that (his) estimates must have been subject to a significant margin of error". I agree and would apply that comment also and particularly to those witnesses who testified to lengthy periods of fifteen to twenty minutes. I find the probability to be that, from time to time, the judge was "nodding off" and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense. I am persuaded by the tenor of all the evidence that it was on these latter occasions that the associate or perhaps the court staff, or Mr Bellew by clearing his throat, restored the judge's attention. 190 I do not accept that three counsel would press on, remaining mute about the situation, if something of genuine significance was occurring without then, or even at a later time, drawing his Honour's attention to what he had apparently missed. The importance I have ascribed to this is that, in my view, the mere fact that the judge has been asleep (on and off) during the trial does not, without more, demonstrate that the trial had been unfair, or, put in the terms of the Criminal Appeal Act, that there had been a miscarriage of justice. 191 I would respectfully endorse and adopt the manifest wisdom of the England & Wales Court of Appeal (Rose LJ, Davis and Wakerley JJ) in R v Betson & Ors [2004] EWCA Crim 254 where the Vice President, delivering the judgment of the Court said: "There remains the ground in relation to the judge's falling asleep. Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial. We give two examples by way of illustration. First, if a judge is inattentive, however briefly, during a defendant's evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury. Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings. In the present case, the judge, as he frankly and properly admits, was, for a time, asleep during the speeches of counsel for Betson and Ciarrocchi. We are prepared to accept that he was also asleep on a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. It is however of some significance that, at the trial, no defendant, no counsel in the case, (of whom there was a total of 13), and no juror, was sufficiently concerned to raise the matter with the judge, other counsel, or the court usher. It is of greater significance that, before this Court, it has not been shown that, because he slept, the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches. On the contrary, this summing-up, extending to approximately 250 pages of transcript and delivered, as we have said, over four days, shows every sign of having been carefully prepared. It was comprehensive and balanced, accurate as to the law and detailed as to the evidence. The defence of each defendant was fully put. Had the judge been awake when he was asleep, the appearance of justice would, of course, have been obviously enhanced. But the trial would have followed no different course. Furthermore, regrettable though it is that the judge occasionally slept, no objection having been made at the time, we are unpersuaded that the jury was, even arguably, unfairly prejudiced against any defendant, bearing in mind also the length of trial, the full, fair and accurate summing-up, the lengthy period of retirement, the pertinent question asked by the jury, and the compelling, powerful evidence against the defendants." 192 The similarity between the issue in that case and the issue in the present case is obvious. As I have earlier stressed, there has been no identification by the appellants of any defect in the trial and their assertions in respect of these grounds are, subject to the raising of the "constitutional" point, wholly based upon complaints about appearance. 193 It was sought to dissuade this Court from reliance upon Betson by arguing that the court there erroneously failed to distinguish between the "unconsciousness" of a sleeping judge and the inattention of a judge who is not asleep. The posited distinction is between causes, but what should be considered is effect. A judge (or anyone else) whose mind is disengaged from what is occurring by distraction, by deliberate choice or otherwise is as much a non participant as one whose mind has been disengaged by sleep. 194 The presiding judge was always physically present. The evidence shows that he returned from sleep either by the operation of his own body mechanisms or by the provocation provided by tapping or the creation of noise by other means such as clearing of throat or movement of books and papers. It is a false analogy to describe him as being absent and no useful guidance can be gained from cases such as Bateson v State of Texas 1904 46 Tex Cr R 34 where a judge left the court during the address of counsel to the jury. 195 The power of this Court to intervene following trial is vested by s 6(1) of the Criminal Appeal Act 1912: "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 196 The arguments of the appellants are premised upon a contention that, where a judge has fallen asleep during the course of trial, there has been a miscarriage of justice. Gleeson CJ in Nudd v The Queen [2006] 80 ALJR 614 observed that it is neither possible nor desirable to reduce miscarriages of justice to a single formula and he continued (at p 618)" "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial. Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions." 197 There has been no identified act or omission of the trial judge which has produced consequence that is asserted to be different from that which would have occurred if the judge had been bright-eyed throughout the entire process. Of course, as was observed in Betson, it is regrettable if a judge falls asleep or is inattentive but it is the effect not the fact which is crucial. The appellants have pointed to no adverse effect on the canvass of issues at trial nor upon their determination which has been derived from the judge's episodes of dormancy. There has been no failure of process of such a kind as to make it impossible for this Court to decide that the convictions were just. 198 An argument was presented based upon construction of provisions in the District Court Act 1973, in particular s 11(1) which provides: "11(1) All civil and criminal proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act and the Jury Act 1977, be heard and disposed of before a Judge, who shall constitute the Court." 199 The submission was that, if a judge be asleep, then proceedings are not being heard "before" him or her and the court is therefore not duly constituted at such times. It was contended that such a trial would be a nullity. 200 I would construe the expression "before a judge" where it appears in s 11(1) as referring to physical presence. It remains my view as above expressed that it is an immaterial exercise to seek to make distinctions between the causes which distract or divert a judge's attention from the presiding role. It could not have been the intention of the Legislature when using the expression "before a judge" that there be some investigation or analysis of fluctuations in mental activity or inactivity. 201 Allied to this submission was a further argument having reference to the Commonwealth of Australia Constitution (the offence charged was conspiracy in relation to Federal law) s 80 of which prescribes: "80 Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." 202 That provision has been described as conferring constitutionally entrenched status on the "essential features" of the institution of jury trial: Ng v The Queen (2003) 217 CLR 521. The appellants argue, even conceding that a constantly alert and attentive presiding judge may not be a requisite standard revealing an absence of an essential feature, that a judge who is asleep does reveal such an absence. As would be the case with the argument directed to s 11(1) of the District Court Act, it would seem that a consequence of acceptance of these arguments would be the existence of intermittent situations of existence and non-existence of a duly constituted court in parallel with the judge's soporific and non-soporific state. It would venture into the realms of absurdity to consider that the court would oscillate in and out of jurisdiction in harmony with which of those states was for the time being current. 203 The submission in relation to s 80 was that a minimum requirement of trial by jury must include the judge "being present (in the real sense) during the course of the trial" but that language is essentially another way of putting that a judge has to be present, attentive and alert, throughout every moment of trial. The minimum requirement is physical presence. It is no part of the constitutional requirement that there be satisfaction about the mental state of the judge in the sense of whether, at any given moment, or throughout the whole course of trial, adequate attention is being paid. That a judge for any reason is intermittently inattentive does not mean that there has not been a trial and it is not a nullity but, if by reason of some consequential effect, it can be shown that the accused has not had a fair trial, appellate intervention would be warranted. 204 The relevant decisions which have defined the essential characteristics of trial by jury including Brownlee v The Queen (2001) 207 CLR 278; Cheatle v The Queen (1993) 17 CLR 541 and Ng do not suggest the existence of a requirement such as is contended. 205 It is not to the point, either in respect of this argument or that presented concerning s 11(1), to note that failure to observe the requirements of the criminal process in a fundamental respect renders a purported trial a nullity: cf Maher v The Queen (1987) 163 CLR 221 unless there has been such a failure. That a judge must be constantly attentive is not a fundamental requirement. What is fundamental is that there be no miscarriage of justice and I reiterate that what is fundamental is therefore the absence of adverse effect and not mere, however regrettable, occurrence. 206 The circumstance that from time to time the judge was asleep and for that reason inattentive does not have the consequence that the appellant was deprived of the constitutional guarantee of trial by jury. 207 Before departing from the appeals against conviction, I should record my difference of opinion concerning an aspect of a matter addressed by Basten JA. His Honour, adverting to some evidence concerning the observation of the jurors at the times when the judge was asleep, opined that it was the conduct of the judge which should properly be assessed, not the response of the jurors. As the passage from the judgment of Gleeson CJ in Nudd above cited notes, it is the acts and omissions of the judge that matter; not personal failings and problems that might account for those acts and omissions. 208 Thus it is not the conduct of the judge that should be assessed, but the effect of any conduct which might be shown to have deprived the trial of the quality of fairness. 209 His Honour stated that it should be assumed that the conduct of the judge, which in the context I take to mean nodding off or sleeping from time to time, should have two related effects, first, undermining the routine instructions given at the commencement of trial and, second, casting doubt upon the reliability of the presumption that the jury acts upon the judge's directions. 210 No authority is cited as foundation for making the assumption and I respectfully am unable to share the opinion that it should be made. After rejection of the grounds relating to instructions concerning lies, the fact remains that the directions of the judge to the jury at the beginning and at the end of the evidence and addresses were untainted by error. I see no reason to depart from the established presumption that jurors act in accordance with the instructions given to them because there have been isolated occurrences not associated with those directions during the course of trial. 211 I am not, of course, suggesting that a sleeping judge can preside over a trial, I am saying that, if a presiding judge sleeps from time to time, appellate intervention is only justified if it can be demonstrated that this resulted in error or deprived the accused of a fair trial in some respect. Where, as was the case, the trial would have followed no different course, full and fair directions were given to the jury and there was compelling evidence sustaining the verdicts, there is no call for this Court to require the convictions to be quashed and the trial relitigated. 212 I would reject the grounds of appeal against conviction. 213 In the alternative, each appellant sought leave to appeal against severity of sentence. Basten JA has addressed the issues in these regards. I agree with what he has written. It is plain that, particularly following the outcome of the Crown appeal in the case of Andres, Cesan can have no justifiable sense of grievance arising out of their respective treatment and neither can Mas Rivadavia harbour such a justifiable grievance. It is not necessary to reproduce the comparative sentence calculations that his Honour has set out. 214 It suffices to record that no error by the sentencing judge has been shown and in my view the sentences lay well within the range of the sound exercise of discretion. 215 For the reasons given by Basten JA, I would grant such extension of time as is required to bring the appeals, but in each case I would dismiss the appeal against conviction, grant leave to appeal against sentence, but dismiss each of those appeals also. 216 HOWIE J: I agree with the orders proposed by Grove J and the reasons given by him. **********

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