Cesan v Director of Public Prosecutions

Supreme Court of NSW|2014-05-23|Before: Hulme J, James J

DECISION 1R A HULME J: The applicant was convicted by a jury of being knowingly concerned in the importation of a commercial quantity of cocaine into Australia contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). 2The applicant was tried with six co-accused, all of whom were found guilty. His co-offenders were Garry Bartle, Maximiliano Diez, Peter Fox, Sir Thomas Fry, Thomas McCaffrey and Hamish Thompson. Russell Douglas Bateman was also involved in the enterprise but pleaded guilty and was sentenced by James J: R v Bateman [2000] NSWSC 915. 3The applicant's trial lasted for almost eight months, commencing on 5 February 2001 and concluding on 13 September 2001. 4The applicant was sentenced by the trial judge, Dodd DCJ, to imprisonment for 24 years with a non-parole period of 16 years. 5An appeal against both conviction and sentence was dismissed on 3 December 2003: R v Bartle [2003] NSWCCA 329; 181 FLR 1. 6The applicant now seeks an order under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) for the whole case to referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

Facts 7The Crown case at trial was summarised in R v Bartle at [4]-[47]. The following is a brief overview drawn from that summary. 8On 1 February 2000, Mr Roberti and his co-offender Thompson were arrested on a boat in Patonga, north of Sydney, which had 383 kilograms of pure cocaine (502 kilograms gross) on board. 9There was no dispute at trial that Thompson, Fry and the applicant had sailed the boat into Australian waters with the cocaine on board. The boat ("Ngaire Wha") was purchased in New Zealand and set out from the Bay of Islands. It met with another ship that had travelled from Panama and the cocaine was transhipped to the Ngaire Wha. The Ngaire Wha then continued on to Australia and landed at Patonga Beach. 10The applicant had travelled to New Zealand on 29 November 1999 in order to help repair a boat ("Lone Bird") that was originally meant to make the voyage from New Zealand. The applicant worked on the instruction of Fry, who purchased the Lone Bird with money that Bateman had transferred to him from Melbourne. 11Soon after the applicant arrived in New Zealand a decision was made to use another vessel and the Ngaire Wha was purchased. Thompson was the purchaser but Bateman transferred the purchase price (NZ$157,000) to Thompson soon after the purchase was made. This included AUD$100,000 lent to Bateman by McCaffrey. 12Between 8 and 13 December 1999 Bartle, Thompson, Fry and the applicant saw to the trial, purchase and repair of the Ngaire Wha in Auckland. On 9 and 10 December, Thompson, Fry and the applicant travelled to Gisborne, where the Lone Bird was being kept, and collected equipment and supplies from it to be used on the Ngaire Wha. 13On 12 December 1999, Fox flew to New Zealand and collected radio equipment and photographs taken by the applicant and Bartle and delivered them to Bateman in Melbourne. The applicant assisted Fox while he was in New Zealand. 14Between 15 and 22 December Fry, assisted by the applicant and Bartle, sailed the Ngaire Wha to the Bay of Islands, from where it was to depart for the rendezvous with the suppliers' vessel. Bartle distributed funds he acquired from Bateman to the applicant and Thompson as required. Thompson took over this role after Bartle flew to Melbourne to meet Bateman. 15Bateman repaid McCaffrey the AUD$100,000 on 16 December 1999. McCaffrey provided money to Bartle and the applicant, assisted with flights and communicated with Bateman. 16The applicant was to crew the Ngaire Wha but Bateman was concerned about his reliability and so he sent Fox to keep an eye on him. Fox, Thompson, Fry and the applicant remained in the Bay of Islands preparing the Ngaire Wha for its voyage. Fox, Thompson and the applicant sailed out of the Bay of Islands on 14 January 2000 and rendezvoused with the suppliers' yacht - the Bora Bora II - on about 17 January. The cocaine was transhipped from the Bora Bora II to the Ngaire Wha and the Bora Bora II continued to New Zealand, arriving on 19 January. 17A tender vessel was purchased to use in transferring the cocaine off the Ngaire Wha and landing it, but it was not used in the end. The Crown reasoned that it must have been decided to land the Ngaire Wha and unload the cocaine directly onto land. 18Bateman, McCaffrey, Fox and Bartle booked a motel on 31 January 2000 at Parsley Bay, opposite Patonga. They arranged vehicles to be used to offload the cocaine. At 12.11am on 1 February Fox's phone was used in an attempt to contact the satellite phone on the Ngaire Wha. At 2.46am the Ngaire Wha was stationary off Patonga beach. Fry disembarked and was later arrested under the wharf. 19The applicant and Thompson were arrested on the yacht. Bateman, Bartle and Fox were arrested at Brooklyn boat ramp. McCaffrey avoided arrest but was later arrested on 15 September 2001.

The applicant's evidence at trial 20A summary of the applicant's evidence at trial is provided in R v Bartle at [284]-[286]: "[284] Roberti gave evidence. He said that he had known Bateman since the early 1980s. Bateman asked him to go to New Zealand in November 1999 to work on a yacht he was bringing to Australia to charter for the Olympic Games. He obliged. He used a passport in the name of Brian Russell because Bateman had stolen papers he had gathered to apply for a passport. He later learned that Bateman had thereby obtained a passport in Roberti's name. For the same reason Roberti also had a passport in the name of James Simmons. Bateman had organised that for him. [285] Roberti agreed about the role he had played in Gisborne, Auckland and the Bay of Islands. He said that when they sailed out of the Bay of Islands he thought that they were going on a sea trial of the Ngaire Wha. However, once they were at sea Fry told him that they were continuing on to Australia. He realised that there were parcels on board. Fry told them that the contents were clay. He did not believe Fry but thought that it might have been marijuana. Fry continued to insist that it was clay. Telephone calls he had made from the Ngaire Wha to Bartle were to ask Bartle to ask Bateman to get in touch with him so that he could inform Bateman about his predicament. [286] Roberti told the police that he thought that the contents of the parcels were clay. He explained at trial that he had said that because that was what Fry had told him. He said that he had used the name James Simmons when questioned by the police because he was shaken up and frightened. He denied knowing that the Ngaire Wha was carrying cocaine."

The appeal to the Court of Criminal Appeal 21The applicant and six of his co-offenders appealed against their convictions and sentences. Fox, McCaffrey and Thompson had their convictions quashed and new trials were ordered. The rest of the offenders, including the applicant, had their appeals against conviction and sentence dismissed. Crown appeals against sentence were also dismissed. 22The applicant raised nine grounds of appeal in his amended grounds of appeal against his conviction. Two are said to be relevant to the present application. Ground 5 was as follows: "The trial judge erred in that he failed to discharge the jury as a result of persistent, improper questioning by the Crown Prosecutor causing an outburst from Mr Roberti in which he made admissions as to his criminal antecedents and the antecedents of fellow co-accused." 23Ground 7 asserted that: "The trial judge erred in the exercise of his discretion in that he failed to discharge the jury following the Crown closing, in which the Crown referred to evidence previously struck from the record." 24None of the grounds raised any complaint about the trial judge sleeping during the trial. It appears from the letters attached to this application that this was because the applicant had been advised that it could not be raised as a ground of appeal.

The current application 25The applicant asserts in his application that grounds 5 and 7 in his appeal to the Court of Criminal Appeal, extracted above, should be re-considered "in the light of the contention that Judge Dodd slept through portions of the trial". 26In particular, in respect of ground 5 it was submitted that: "the sleeping judge was likely to have distracted the jury at a crucial time and that he failed to properly supervise the cross-examiner in circumstances where defence counsel had unsuccessfully objected on numerous occasions during the course of the cross-examination". 27In relation to ground 7 it was submitted that: "the sleeping judge could be said to have contributed indirectly to a flaw in the proceedings that gives rise to a doubt or question to a part of the evidence in the case". 28The basis of the current application arises out of various affidavits provided by the applicant. The affidavits collectively assert that the trial judge was asleep at various times during the trial and the applicant contends that this gave rise to a miscarriage of justice. 29The applicant also relies on various letters. They confirm that he had attempted to raise the sleeping judge point as a ground of appeal, both in the Court of Criminal Appeal and subsequently in an unsuccessful attempt to persuade lawyers that there should be an appeal to the High Court of Australia.

Affidavit evidence 30The applicant's affidavit was sworn on 31 December 2012. It indicates that early on in the trial, he began to hear snoring. The judge's associate would cough or bang the bench wall with her elbow and the snoring would stop and the judge would wake up. This happened very often throughout the trial. Most times he looked over at the judge and he would be slouched with his eyes closed. By the middle stages of the trial the jury were themselves nodding off whenever the judge was asleep. 31The applicant then isolates 12 specific points in the trial transcript during which he remembers the trial judge was sleeping and/or woken up. He also indicates that he raised the issue with his solicitor and counsel but no action was taken until four months into the trial when counsel for the applicant passed a note to the judge's associate. It is said that "the Judge replied to that note saying he was up late with other commitments as well as going through our case - this was happening day after day without any explanation". 32Mr John Spencer of counsel appeared for Mr Roberti at trial. His affidavit, sworn on 25 February 2012 indicates the trial judge fell asleep several times throughout the trial. By the middle and later stages of the trial the judge would fall asleep at least five to six times per week. "On most occasions you could hear the Judge snoring. His Associate would on each occasion cough very loudly or do other things to wake the Judge up." The jury would "often be distracted by the fact that the Judge was asleep and would often need to be woken up by his Associate. They would look in his direction when he was asleep". 33Ms Dianne Fiedler is the applicant's sister. Her affidavit was sworn on 26 May 2011. She attended the trial on 23 July 2001. During the day she was nudged by Sue Goodie [sic], a friend of the applicant's, who whispered: "The Judge is sleeping". She then looked at the judge and saw him with his head down, his chin resting on his collarbone and his eyes closed. She could not see the jury from where she was sitting. During an interval she approached one of the lawyers in the trial and said: "Excuse me but the Judge is sleeping". The lawyer replied: "He knows what is going on". 34Ms Sue Godde's affidavit was sworn on 23 January 2013. She attended approximately 20 weeks of the trial, between 5 February and 13 September 2001. On numerous occasions she noticed that the judge's eyes were closed and that his head was tilted forward for extended periods.

The law applicable to the current application 35The applicant seeks to have his case referred to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act to be dealt with as an appeal under the Criminal Appeal Act. Section 79 provides: "(1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 . (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. 36Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251 summarised the principles applicable to an application under s 79: "[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19] [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. Some Other Features of the Jurisdiction 9 The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result." 37The applicant relies on the High Court decision of Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358 ("Cesan") in support of this application. The High Court decided Cesan on the basis of whether there had been a miscarriage of justice according to s 6(1) of the Criminal Appeal Act. The test under s 79(2) is less demanding than that under s 6(1) of the Criminal Appeal Act: The Application of Raymond Grant Pedrana [2000] NSWSC 970; 17 A Crim R 459, but the matters taken into account by the High Court in Cesan have a bearing on this application: see, for example, The Application of Robert Minniti [2011] NSWSC 835 at [54]. 38Cesan overturned the majority decision in Cesan v Director of Public Prosecutions (Cth); Max Rivadavia v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385. The evidence before the Court of Criminal Appeal was that the judge was asleep on a number of occasions on the 11 days when evidence was being given; he slept at least once on most of those days and on some days on two or three occasions; some of the sleep episodes, possibly between two and five, lasted from 10 to 15 minutes - most lasted between two and 10 minutes; the judge's sleeping was accompanied by heavy breathing on a number of occasions and he snored when the accused was giving evidence - this was disruptive and caused him to look around at the trial judge; the jury was distracted by the judge's sleep episodes; and some of the jury members found his behaviour amusing and even emulated it: Cesan at [94]. 39French CJ in found that: "[93] If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including:

Whether the conduct of the judge can be said to have affected the outcome of the trial. 2. Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected. 3. Whether counsel raised the question of the trial judge's conduct at the trial. 4. Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge's conduct. None of these factors, taken by itself, is determinative. There is an overall assessment to be made in deciding whether a failure or apparent failure by the judge for whatever reason to attend to the duty of supervising and controlling the trial process amounts to a miscarriage of justice. In so saying it should be emphasised that the duty of counsel in a case of non-trivial inattention or sleep episodes is to draw these issues to the attention of the judge in the absence of the jury. The failure of counsel to do so may support an inference that the judge's conduct did not amount to a substantial failure in the judicial process at trial. However, it will not always be determinative." 40French CJ concluded that there was a miscarriage of justice by failure of the judicial process. The judge failed to maintain the necessary supervision and control of the trial, and his conduct created a distraction during the trial process. In particular it distracted the jury and led at least some of the members of the jury to regard the judge with amusement: at [96]. 41Hayne, Crennan and Kiefel JJ held: "[119] What is important in these cases, is that the jury was distracted from paying attention to all of the evidence. And it was upon the assessment of all of the evidence led at trial that the jury's verdict had to be founded. The repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the accused was giving his evidence, constituted a miscarriage of justice." 42Gummow J expressed the same conclusion, based upon the distraction of the jury from paying attention to all of the evidence (at [105]). Heydon J agreed with Gummow, Hayne, Crennan and Kiefel JJ (at [133]).

Consideration 43The contention that grounds 5 and 7 in the applicant's appeal to the Court of Criminal Appeal should be re-considered in light of the evidence that Dodd DCJ was sleeping for portions of the trial may be put aside immediately. The amended fifth ground, that the trial judge erred in failing to discharge the jury as a result of "persistent, improper questioning by the Crown Prosecutor causing an outburst from Mr Roberti in which he made admissions as to his criminal antecedents and the antecedents of fellow co-accused" was dealt with on appeal at [76]-[89]. "[76] Roberti was being cross-examined by the Crown Prosecutor on his and Bateman's use of names other than their own. The suggestion was that by doing so they were trying to reduce the chances of being identified as actors in a criminal enterprise. There had been evidence that Bateman had travelled on a passport in Roberti's name, and that Roberti had used passports provided by Bateman in the names of Russell and Simmons. Then there were these questions and answers (T 4277-8) - Q. Did you hear him at any time on that trip being addressed as Mr Hendrie rather than Mr Roberti? A. No. You've got me on trial for my past here, we've all got criminal records-- Q. Mr Roberti-- A. --and been in gaol and Mr Bateman has made a fool out of all of us including you and mainly myself and your policemen. Q. Mr Roberti-- A. And he's got your policemen to lie to a judge for you. Q. Mr Roberti stay calm? A. Stay - how can I stay calm. He's judging me - he's trialing me on my bloody - on my past and he's leading the jury wrong-- Q. Mr Roberti-- A. --he's leading them that I'm on-- Q. Please Mr Roberti-- A. How can I, I'm not being - he's misleading the jury. [77] The trial judge immediately sent the jury out and a debate ensued. His Honour recalled the jury and warned them in these terms- Members of the jury you heard some time ago a fairly emotional outburst from Mr Roberti in the witness box. I am striking out all what he said in that emotional outburst. You are not to hold anything that he said in that outburst against him. You are to remove completely from your mind anything that you heard him say or thought you heard him say we all from time to time give vent to our emotions and sometimes in doing so say things that are wrong and that we know later when we think about it we shouldn't have said and that we regret saying. And in this case this has been an emotional outburst from Mr Roberti. It's a difficult task being in the witness box for several days, subject to questioning. Difficult for anyone. I am going to adjourn the trial so far as today is concerned in fairness to Mr Roberti, to allow himself to calm down and recompose himself, so he can return to give evidence in the witness box again. In one particular respect I'll refer to the particular words that he used because they were totally wrong in fact and at one stage he said "we've all got criminal records and been in gaol" and that is totally wrong in fact. You are to completely ignore that as well as the rest of what Mr Roberti said. You are to completely remove it from your minds and pay no attention to it, so far as the trial is concerned. [78] His Honour sent the jury home until the following day. Counsel for Bartle and other accused applied for an order discharging the jury. His Honour refused to do so. ... [80] This ground of appeal asserts an error on the part of the trial judge in refusing to discharge the jury and a resulting miscarriage of justice. Roberti's answers were unresponsive and the evidence inadmissible. There was a risk that the jury would misuse the evidence. It was the duty of the trial judge to remove the risk or, if that could not be done, to discharge the jury. The criterion for the exercise of the discretion was the maintenance of the fairness of the trial. The test for the discharge of the jury was one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440. [81] In exercising his discretion the trial judge could take into account all that had happened and all that was likely thereafter to happen. In giving judgment refusing to discharge the jury his Honour said this ... - However, I am still faced with the situation where the outburst occurred and I must decide whether in the circumstances any prejudice caused to his own case by Mr Roberti should entail the result that I discharge the jury as far as his case is concerned. I have dealt so far with the prejudicial material by striking out the passage and by telling the jury that they are to completely ignore it and by telling them that what he said was in fact wrong. I have attempted to soften the impact of that so far as Mr Roberti's case is concerned by attempting to place those comments in the context of it being an emotional outburst. I put it to the jury that people when they are upset and emotional frequently giving vent to feelings and express matters which they later regret, which they know to be wrong, and which they wish they had never said. Whether that ultimately has the effect intended or not, so far as the jury is concerned, must be obviously a matter of some conjecture, but I would think that in general terms the members of the jury are prepared to accept that kind of an explanation and in particular, in my view, a jury is likely to follow the instruction to ignore what was said in terms of paying no heed to it in their consideration of the case. ... Mr Whitehead (trial counsel for Thompson), he has basically adopted the submissions of Mr Paish (trial counsel for Fry). Obviously he does not have the same factual basis for his application. For the same general reasons as I have given in respect of the other applications and in particular for those reasons relating to the application of Mr Spencer for Mr Roberti I refuse the application for discharge so far as Mr Thompson is concerned. For those same general reasons I also refuse the application for discharge made by Mr Simpson on behalf of Mr Bartle. [82] His Honour was correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out. The experience of the Courts is that reliance on the integrity and sense of duty of jurors is not misplaced: The Queen v Glennon (1992) 173 CLR 592 per Dawson J at 614-5. [83] Speaking in a different context about the expectation of the Courts that juries will obey the directions they are given, McHugh J said this in Gilbert v The Queen [2000] HCA 15 at 31- The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. [84] The submission on appeal that his Honour erred in his discretion or, alternatively, that the resulting trial miscarried rests upon a single proposition, namely that the evidence was of such a nature that the jury would have found themselves unable to comply with the direction to put it out of their minds. Putting aside for the moment the question whether the jury would have understood the words "totally wrong" to mean anything other than "wrong", the jury knew as soon as he said the words that Roberti's evidence was not completely correct. ... [85] ... [T]he jury knew that one accused had committed some serious criminal offences and had been to prison on at least one occasion and that another had committed no offences and had not been to prison. [86] The jury knew about some less serious criminal activity on the part of other accused, for example McCaffrey's association with LSD, marijuana and ecstasy, but there was no other evidence that any accused other than Diez had been involved in criminal activity anything like as serious as that charged. [87] We do not think that these circumstances lead to the conclusion that the jury would have been unable to put out of their minds the things Roberti had said. ... [88] Moreover, the outburst, though no doubt intense, was short. It was followed quite soon by a firm direction that the jury put it out of their minds. The trial judge told the jury that what Roberti had said was wrong (for that is what we think the jury would have understood by the direction), and they knew that it was wrong. The trial lasted some seven months. The incident complained of happened on 4 July and more than two months elapsed between then and the delivery of the verdicts on 13 September. We do not think in the circumstances that the trial turned out unfairly for Bartle so that he lost a reasonable chance of acquittal. [89] We do not think that the discretion of the trial judge in refusing to discharge the jury miscarried. We do not think that the resulting trial miscarried. We do not think that this ground of appeal has been made good. 44Whether or not the applicant's "outburst" was caused by the judge failing to "supervise the cross-examiner in circumstances where defence counsel has unsuccessfully objected on numerous occasions during the course of the cross-examination" is irrelevant and, furthermore, not supported by the evidence. The Court was concerned with the effect of the outburst, not its cause. Furthermore, the transcript clearly shows that the trial judge immediately intervened when the outburst began (T4277.52) and had intervened three pages earlier where his Honour corrected the applicant's description of the place he had travelled to from the United States (T4274.36). That the outburst was occasioned by observing the trial judge was sleeping is also inconsistent with Mr Roberti's counsel's statement made in the absence of the jury just after the outburst that: "He is in a state where a similar outburst could occur at any moment. I'm told he's not getting his medication, he's getting some psychiatric intervention at the gaol" (T4279.30). 45It is similarly not apparent how the purported failure of supervision bears on ground 7. The Court of Criminal Appeal dealt with this ground at [311]-[314]. There is nothing in the evidence now before me that affects their Honours' reasoning. 46The broader question is whether considering the matter leads to sense of unease or disquiet in allowing the conviction to stand. It does not. 47The transcript shows relevant and regular interventions by the trial judge on almost every day of the eight-month trial. The applicant specifies 12 portions of the transcript during which he contends that the judge was sleeping, but this was done over 10 years after the conclusion of the trial. The applicant has shown that he previously sought to rely on this point as a ground of appeal and so to some extent is not responsible for the delay. But it is difficult to conceive that such a purported recollection of precise points in the trial when the judge was asleep, extending to reference to specific transcript pages, and sometimes to line numbers on pages, could be at all reliable without corroborating evidence. 48There is nothing in the transcript itself that supports the claim that the judge was sleeping at the specific times asserted. At every reference point in the applicant's affidavit the transcript reveals that the trial judge responds coherently and as would be expected. The trial judge responds in each instance in various ways: with a caution to the jury; an adjournment for the day or for a break; an instruction for the jury to leave in order to discuss matters with counsel in their absence; upholding or disallowing an objection; and with questions to the applicant regarding the evidence being given. A specific example of this is referred to above, namely in the lead up to the outburst where the judge corrected the applicant's description of the place he had travelled to from the United States. 49The applicant's affidavit includes that "by the middle stages of the trial the jury were themselves nodding off whenever the Judge was asleep". That is the extent of his assertion as to the jury being distracted. It may be accepted that were occasions when the judge did fall asleep; after all, it was accepted to be the case in Cesan where it was noted (at [112]) that he had been diagnosed with severe obstructive sleep apnoea. But I cannot accept that one or more jurors were asleep in a courtroom full of lawyers and no-one said anything about it. 50The affidavit of Mr Spencer generally supports the applicant's claim that the trial judge was asleep at various points in the trial, but the assertions contained therein are understandably imprecise, given the length of time that had elapsed between the trial and the swearing of the affidavit. In particular, it makes no reference to when the judge was allegedly sleeping, such as during the cross-examination of the applicant or otherwise. Furthermore, Mr Spencer was unable to provide specific details about how the jury reacted or responded to the judge being asleep "as the trial took place such a long time ago". The most he could provide is that members of the jury would look in the judge's direction when he was asleep. But whether they were distracted more than momentarily (and therefore insignificantly) is beyond Mr Spencer's recollection. 51There is nothing in the affidavit evidence that suggests that the trial judge failed to adequately supervise and control the trial, or that his conduct created any significant distraction during the trial process. This conclusion is fortified by the fact that neither the Crown Prosecutor nor the many defence counsel raised a question about the issue during the very lengthy trial. 52The case against the applicant was a strong one and works against producing a sense of unease or disquiet in allowing the conviction to stand. The defence case was that Mr Roberti had no idea that there was a plan to import cocaine into Australia until the cocaine in question was loaded on to the Bora Bora II. He claimed that he did not intend to join or assist the criminal enterprise and wished to get off the boat as soon as possible after coming to suspect that the packages contained illegal drugs. 53The applicant's activities leading up to arrest were strongly supportive of the Crown case. He was using a false passport (Bartle at [284]) and gave the police a false name when arrested (at [286]). He knew of Bateman's criminal history (T4234) and knew that Bateman purchased the yacht in the name of Thompson (T4391). He referred to the Ngaire Wha in coded terms (as a "car" - T4491) and spoke to Bateman by phone from the Ngaire Wha after he had apparently learnt that the packages contained cocaine in a relaxed and jovial manner (T4525-6).

Conclusion 54Evidence that a judge may have slept for portions of a trial on its own does not lead to a conclusion that there was a miscarriage of justice. The focus should be upon a question whether there was some departure from the proper conduct of the trial, rather than the cause of any departure: Cesan at [112], [119] (Hayne, Crennan and Kiefel JJ). 55In Cesan there was clear evidence of the jury being distracted from paying attention to the evidence. In the present case there are bald assertions of distraction but nothing remotely definitive. The conclusion I have reached is consistent with the determination of a similar application by Latham J in The Application of Robert Minniti [2011] NSWSC 835. Her Honour concluded: "[75] Accepting for the purposes of the application that there may have been occasions when the judge appeared to sleep, or did 'nod off' for short periods of time, there is no sound basis for concluding that the jury was distracted or otherwise affected by the judge's conduct, in the sense explained by the High Court in Cesan. None of the material suggests that the jury failed to perform their task of paying attention to the evidence in the trial because they were distracted by the judge's behaviour. It is said that some members of the jury appeared to 'nod off' or 'nap' or sleep from time to time, but episodes of fatigue and momentary inattention in the course of a trial among members of a jury are within 'the margin of appreciation for human limitations'. There has not been shown to be any compelling connection between the judge's conduct and the behaviour of certain members of the jury, such as was demonstrated in Cesan." 56The evidence has not produced a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The application must be refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2014

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