Cesan v The Queen; Mas Rivadavia v The Queen

Judgment 1This is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") for the referral of a conviction to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). The application has been made on behalf of Paul Parepano Duncan ("the applicant"). The key legislative provisions are as follows: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. ... 79 Consideration of applications (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 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convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify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. ... 2The basis of the application is the proposition that the conduct of the trial judge resulted in the applicant not receiving a fair trial, that a miscarriage of justice occurred as a result, and that that would give rise to a "doubt or question" on my part as to the applicant's guilt. In summary it is submitted that the trial judge was asleep or dozing at various times during the trial; that that conduct distracted the jury and led to them not fulfilling their role properly in the proceedings; and finally that the lawyers representing the applicant at the trial failed to address the situation adequately, with the result that it is now impossible to assess its consequences properly. 3The application consists of written submissions, prepared by Queen's Counsel for the applicant, which attach a number of annexures that seek to substantiate the asserted facts. I did not receive a transcript of the trial in question. 4I have also received written submissions from counsel for the respondent opposing the referral. Chronological background 5The following is derived from the material with which I have been provided. 6On 24 March 2003 the applicant and a co-offender, Adam John Perre, were found guilty of two offences after a trial before Judge Dodd and a jury in the District Court of New South Wales. 7The first offence was maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900 (NSW). The applicable maximum penalty for this offence was imprisonment for 25 years. 8The second offence was affray, contrary to s 93C of the Crimes Act. The applicable maximum penalty for this offence was imprisonment for 5 years. 9The applicant was acquitted of two property offences. 10To state the facts of the Crown case very simply, the applicant and the co-offender were involved in a fight that erupted between two groups of young men in the vicinity of Stuart Park in Wollongong. During the fight, a number of assailants, armed with poles, a machete, and a wheel brace attacked the victim, Christopher Wilson, resulting in his permanent disability. 11His Honour sentenced the applicant and the co-offender on 19 August 2003. With regard to the first offence of inflicting grievous bodily harm with intent, the applicant was sentenced to a head sentence of imprisonment for 16 years with a non-parole period of 12 years, each to commence on 30 November 2002. The head sentence was to expire on 29 November 2018, and the non-parole period was to expire on 29 November 2014. A concurrent fixed term of 2 years was imposed for the affray. 12Both the applicant and the co-offender appealed against their convictions to the Court of Criminal Appeal, and also sought leave to appeal against sentence. It is not necessary to canvas comprehensively the grounds of appeal against conviction relied upon by the applicant; it suffices to say that the issue of the trial judge falling asleep during the trial was not raised at all. 13On 8 December 2004 that Court delivered its judgment: see R v Duncan and Perre [2004] NSWCCA 431. The applicant's appeal against his convictions was dismissed. Leave to appeal against sentence with regard to the affray was refused. Leave to appeal against sentence with regard to the offence of inflicting grievous bodily harm with intent was granted, and the appeal was allowed. The Court of Criminal Appeal resentenced the applicant to a head sentence of imprisonment for 13 years with a non-parole period of 9 years, each to commence on 30 November 2002. The head sentence expires on 29 November 2015, and the non-parole period expired on 29 November 2011, on which day I understand that the applicant was released from custody. 14On 11 March 2005, a Deputy Senior Public Defender wrote to the applicant's solicitors at trial, Muggenthaler & Associates, advising that there were no reasonable prospects of success in an application for special leave to appeal to the High Court of Australia without more information about whether "there was any adverse impact upon the fair trial of the accused" as a result of the trial judge falling asleep. 15On an indeterminate day in April 2005, Ms Linda Machan, the mother of the applicant, made a complaint on his behalf to the Judicial Commission of New South Wales about the trial judge's conduct. The complaint stated: Judge Ian Dodd was appointed to preside over the trial of Paul Duncan and Adam Perre. However as Judge Dodd was [sic] constantly dozing off while the prosecution was able to influence the jury. Along with key evidence being ignored for the defence, while Paul's complaint and mine being shrugged off even though the panel of jurors were shaking the [sic] heads in disbelief at judge asleep and snoring. This was happening every day. The first time I noticed Judge Dodd asleep he had his hands clasped together on his chest and his head drooped down and I could hear him snoring so I mentioned it to Paul's barrister Linda McSpedden and solicitor Heidi Muggenthaler and Linda McSpedden said to me "Oh yes my dear he the judge has sleep apnoea and does this all the time", so you could imagine how I felt. The people present at court during that trial were Linda McSpedden, Heidi Muggenthaler, Leone Miller, Sheree Machan, John Perre, Renae Perre. What concerned me a great deal that when Judge Dodd was summing up, he left out any curcial [sic] evidence for the defence and when he was directing the jury he completely confused them and when the jury asked for the transcript so they could make a decision he Judge Dodd refused it to them and when he sentenced the two young men was grossley [sic] excessive. I think every Australian is entitled to a fair trial as we are talking about peoples lives and because of Judge Dodd, this trial was never going to be fair or just therefore a miscarriage of justice. [Emphasis added] 16In April 2005, John Perre, the father of the co-offender, made a statement as part of a complaint to the Judicial Commission in which he said that he "observed that Judge Dodd each day of the trial fell asleep for periods of time". Mr Perre did not say anything about the effect of that conduct upon the jury in his statement. 17On 11 May 2005, two solicitors for the co-offender at trial made statements as part of a complaint to the Judicial Commission on behalf of the co-offender. Both solicitors noted that during the trial their attention was focused on taking note of the evidence given by witnesses. One solicitor observed that throughout the trial "from time to time" the trial judge had his eyes shut, and "his head lulled forward such that his chin was almost touching his head". Similarly, the other solicitor observed that the trial judge would at times close his eyes, and that on some occasions "his head would fall forward or even to the side and rest on his shoulder". Neither solicitor made any observations in her statement about the effect of that conduct upon the jury. 18On 16 May 2005, the applicant's solicitor at trial wrote to the Judicial Commission with regard to Ms Machan's complaint. The applicant's solicitor at trial said that she "heard, rather than observed who [she] thought to be the judge making noises that were a mixture of a snort or half choke on a couple of occasions". She noted that "during trials [her] focus is mostly on the jury", but did not record in the statement any observations regarding the jury's reaction to the conduct of the trial judge. 19Following a preliminary examination, the complaint to the Judicial Commission was classified as "serious" and referred to the Conduct Division for further investigation. The Judicial Commission ceased its investigation when his Honour retired in August 2005. 20On 7 August 2006, the solicitor who had acted for the co-offender in the Court of Criminal Appeal wrote to the solicitor then acting for the applicant and the co-offender with regard to a possible appeal to the High Court. 21The solicitor who had acted for the co-offender in the Court of Criminal Appeal explained that the issue of the judge being asleep throughout the trial did not found a ground of appeal in the Court of Criminal Appeal on counsel's advice. 22She also stated that the issue of the judge being asleep had been raised with her by both the co-offender and his father, including in writing by the latter on 1 September 2003. That document from the father of the co-offender of 1 September 2003 did not form part of the material before me. She went on to state that the solicitor for the applicant had told her on or about 28 August 2003 that the trial judge "was asleep throughout much of the trial". 23On 11 August 2006, the solicitor then acting for the applicant and the co-offender sent a letter to senior counsel seeking advice with regard to the preparation of a petition under the Part. The solicitor indicated that he was in possession of statements of the two solicitors, the father of the co-offender, and the mother of the applicant, as well as letters from the solicitor who had acted for the co-offender in the Court of Criminal Appeal and the solicitor who had acted for the applicant at trial. All of the statements and letters referred to in that letter of 11 August 2006 are contained in the material before me, and have been referred to earlier in this chronological review. 24On 6 November 2008, the decision of the High Court in Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358 was handed down. That case concerned an appeal from a decision of the New South Wales Court of Criminal Appeal that dismissed an appeal against conviction founded in part on the conduct of Dodd DCJ during a different trial in June 2004. In short, the High Court acknowledged that his Honour had been asleep from time to time during the trial, due to sleep apnoea. The High Court also found that as a result the jury had been distracted from attending to the evidence given, thereby occasioning a miscarriage of justice that necessitated the ordering of new trials. I will return to discuss the decision of Cesan v The Queen in more detail below. 25After that decision was handed down, a number of petitions to the Governor of New South Wales for a review of the applicant's convictions were lodged on behalf of the applicant pursuant to the Act. The key legislative provisions, which are analogous to the provisions extracted above concerning applications to the Supreme Court for an inquiry, are as follows: 76 Petitions to Governor A petition for a review of a conviction or sentence or the exercise of the Governor's pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person. 77 Consideration of petitions (1) After the consideration of a petition: (a) the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or (c) the Minister may request the Court of Criminal Appeal to give an opinion on any point arising in the case. (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. ... 26The petitions lodged on behalf of the applicant were based on the complaint that the trial judge had been asleep at various times during the applicant's trial. They included some material to suggest that that conduct had adversely affected the juror's ability to fulfil their role. The petitions sought to have the applicant's case referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912, pursuant to s 77(1)(b) of the Act. 27On 30 November 2008 the applicant swore an affidavit. He deposed that over the course of the trial he observed the trial judge sleeping on a number of occasions. He also said: "It was clear to me that the members of the jury were very much aware of these incidents as I saw them smiling, nudging each other and rolling their eyes as if it were a matter of some amusement to them." 28On 6 February 2009 Linda Machan swore an affidavit. Ms Machan said that she observed the trial judge sleeping on a number of occasions. She provided two examples of times when "the jury were distracted by the judge sleeping", including the following: "I distinctly remember when Detective Kelly was giving evidence, the Judge was asleep and the jury were laughing and looking at each other and shrugging their shoulders at the judge being asleep." She went on to say that: "It was clear to me that the members of the jury were very much aware of These [sic] incidents as I saw them smiling, nudging each other and rolling their eyes as if it were quite funny that the judge was having a sleep. The jury were distracted and did not pay attention to the evidence presented by witnesses ..." 29On 30 November 2009 the initial petition was lodged with the Governor. The affidavit of the applicant of 30 November 2008 and the affidavit of Linda Machan of 6 February 2009 were lodged in support of the application. 30In response to this petition, Michael Stollery, solicitor for the Crown at trial, provided a report dated 23 March 2010 to the Director of Public Prosecutions. This report relevantly stated: Having perused the trial transcript, I am unable to locate anything in the transcript, which would suggest that the trial judge was asleep during the trial. From my recollection, I am able to say that on the number of occasions I notice [sic] the trial judge with his head down, he appeared to be dozing. I recall making similar observations of some members of the jury and other persons in the courtroom. At no stage during the trial did I form the view that the trial judge was asleep and not listening to the evidence. I did not at any stage feel any sense of "unease" nor any "sense of disquiet" in relation to how the trial was conducted. ... The weather conditions in Sydney in February are often quite oppressive - that was the case during this trial. I recall that on a few occasions during the trial people in court occasionally 'nodded off', momentarily. I recall the Trial judge appearing to "nod off" on a few occasions, some jurors, the court staff and people in the public gallery. At no stage did I feel concerned that the trail [sic] judge was not giving the matter proper attention. ... To the best of my recollection, the trial was well supervised by HH and was in all respects a fair trial. I specifically recall the jury being very responsive and very attentive throughout the trial. [Emphasis added] 31The applicant was informed by letter from the Governor of 17 June 2010 that the Attorney General had recommended to her Excellency that his application for "clemency" be declined. The letter advised that "the material provided by way of support for the [application] did not justify the exercise by [the Governor] of the Royal prerogative". 32Ms Machan responded on behalf of the applicant, and in reply received a letter from the Director General of the Department of Justice and Attorney General of 2 November 2010. The Director General invited the applicant to provide "additional comments" that would be "treated as a fresh petition to the NSW Governor". 33On 2 November 2010, Queen's Counsel for the applicant provided additional submissions and material to the Director General of the Department of Justice and Attorney General. The correspondence contained no further direct evidence of what occurred at the trial. The petition was again based on the conduct of the trial judge. 34The applicant was advised by letter of 25 March 2011 that the Attorney General had declined to refer the applicant's case to the Court of Criminal Appeal. The position was confirmed by a further letter, seemingly of 15 June 2011, responding to a request by Queen's Counsel for the applicant that the newly appointed Attorney General reconsider the petition. The further and final letter stated: "The Attorney General was satisfied that the consequences of the judge's sleeping must be clear before the matter could be referred back to the Court. The fact of the sleeping was not sufficient to raise the necessary doubts about the conviction which must be present if the Attorney General is to intervene." 35On 18 June 2012 the applicant sought special leave to appeal from the decision of the Court of Criminal Appeal of 8 December 2004 to the High Court. The application for special leave was based on the allegation that the trial judge was asleep from time to time during the trial. The application was dismissed on the papers on 12 December 2012. The High Court accepted the submission of the Crown that there was no evidence before the Court to support the allegation that the trial judge was asleep: Duncan v The Queen [2012] HCASL 195. Applicant's submissions 36Queen's Counsel for the applicant submitted that the conduct of the trial judge, the distraction this conduct created for the jury, and the failings of the lawyers involved in both the trial and the appeal, meant that the applicant did not receive a fair trial. Having already appealed his convictions to the Court of Criminal Appeal on other grounds, and made an unsuccessful application for special leave to the High Court, the applicant has exhausted his avenues of appeal. And yet, Queen's Counsel submitted, in light of the potential deficiencies in the applicant's trial, there is a real question about the soundness of the convictions recorded against him. 37The written submissions of Queen's Counsel for the applicant made a number of allegations of fact in support of the application for an inquiry. These allegations are said to be substantiated by specific evidentiary material, including the: (a)correspondence relating to the complaint made to the Judicial Commission in 2005; (b)correspondence and other materials relating to the petitions made to the Governor between 2009 and 2011; (c)affidavits, statements and reports of persons involved in the trial before his Honour; (d)medical reports and articles about sleep apnoea; and (e)the summaries of argument relied upon by both parties in the application for special leave to appeal to the High Court. 38He submitted that, in light of the fact that the applicant's appeal to the Court of Criminal Appeal was on different, unrelated grounds, and the application for special leave to the High Court was refused on the basis of there being no evidence of the matters that founded the application, no court has previously considered the evidentiary material that supports this application. 39The submissions on behalf of the applicant emphasised that it is the failings of the lawyers involved in the trial process, rather than the conduct of the trial judge, that form the basis of this application. Queen's Counsel for the applicant conceded that, following the decision of the High Court in Cesan v The Queen, the consequences of the trial judge sleeping must be tolerably clear. He submitted that it follows that when the propriety of a trial is compromised by the inattention of the trial judge, the lawyers involved have an obligation or duty to ensure that any consequences of that inattention are appropriately addressed. He drew attention to discussion of that obligation or duty by French CJ in Cesan v The Queen at [93]. He submitted that, at the very least, this duty required that the lawyers involved in the trial make a note or some other record of the trial judge's conduct. 40Queen's Counsel for the applicant submitted that the failure of the lawyers involved in the trial process to record adequately the consequences of the trial judge's conduct means that those consequences cannot now be properly assessed. He submitted that the fact that there is no reference in the transcript to the trial judge sleeping, nor any contemporaneous evidence from the lawyers involved in the trial process regarding the trial judge sleeping, supports his submission that the applicant did not receive a fair trial. 41He similarly submitted that the lawyers involved in the appeal to the Court of Criminal Appeal failed in their duty and obligation to the court by not raising the trial judge's conduct and its effect on the attention of the jury as a ground of appeal. He submitted that, as a result, the appeal court was deprived of relevant information concerning the conduct of the trial judge and its consequences, and that the applicant was therefore deprived of a fair appeal hearing. 42In short, Queen's Counsel for the applicant submitted that I would experience a doubt or question as to the applicant's guilt, founded upon the proposition that the failings of the lawyers involved in the trial and appeal process mean that the consequences of the trial judge sleeping during the trial cannot be adequately assessed, and the applicant's trial therefore constituted a miscarriage of justice. Respondent's submissions 43Counsel for the respondent submitted that there was insufficient evidence to support the factual allegations made. He submitted that I would not be satisfied that the trial judge was asleep, except for fleeting periods. He also submitted that there is no reliable evidence that any such conduct affected the jury adversely; as a result, I would not experience a "doubt or question" about the guilt of the applicant. 44He drew my attention to the emphasis that the High Court placed on evidence of the jury being distracted in Cesan v The Queen. He also referred to this Court's consideration of Part 7 of the Act in Application of Peter James Holland [2008] NSWSC 251 at [8], where Johnson J noted that: "There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet." 45In support of this submission, counsel for the respondent noted that the petitions previously lodged on behalf of the applicant and the application for special leave to appeal to the High Court were rejected because there was insufficient or no evidence to support the submissions made on behalf of the applicant. He submitted that no additional evidence has been presented in support of this application. He placed particular emphasis on the fact that there was no evidence from counsel or solicitors who appeared for the applicant at trial as to the timing, extent, and frequency of the trial judge sleeping. 46Further, counsel for the respondent submitted that the bulk of the evidence post-dates the decision in Cesan v The Queen, thereby sharply calling into question its probative value. In other words, he submitted that one would reflect upon the possibility that the evidence filed after 6 November 2008 has been tailored in an attempt to bring the matter within the principles enunciated in that decision. 47Counsel for the respondent acknowledged that the emphasis of this application is different from that of the previous two petitions, in that it focuses on the alleged incompetence of the lawyers involved in the trial and appeal, rather than the conduct of the trial judge. However, he submitted that, as there is no sufficient evidentiary basis for acceptance of the proposition that the trial judge was asleep, submissions with regard to whether the lawyers in the trial and appeal failed to act appropriately are not to the point. 48Finally, counsel for the respondent submitted that I may exercise my discretion pursuant to s 79(3)(a)(ii) to dismiss the application, as two petitions have previously been rejected pursuant to Part 7 of the Act. Determination 49The first question is whether an application founded upon alleged failings in the process leading to conviction, as opposed to upon a question of guilt itself, can be made pursuant to s 78 of the Act. 50The recent decision of Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 establishes that, in the context of an application such as this, "any [...] matter upon which a finding of guilt is dependent" can properly form the basis of a "doubt or question as to the convicted persons guilt": at [27] and [30] - [31]. The requisite "doubt or question" can arise from any aspect of the process of finding guilt: see also Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [135] and [138]. Accordingly, I consider that a question as to whether an applicant's trial was a miscarriage of justice (as opposed to a question of the actual guilt or innocence of the applicant) can properly form the basis of a referral. 51The second question is the approach I should adopt to the test in Part 7 of the Act. 52The Court of Appeal discussed the test to be applied in determining inquiries made to the Supreme Court in Varley v Attorney General (NSW)(1987) 8 NSWLR 30. In that decision it was said at 48: "To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry." 53The requisite "doubt or question" was described as a feeling of "unease": at 48. 54The principles applicable to an application under s 79 of the Act were discussed more recently by Johnson J in Application of Peter James Holland at [6]-[9]. These passages were referred to with approval by RA Hulme J in Application by Robert Roberti pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 683. Johnson J said: "[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 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." 55I approach the question in accordance with the principles contained in these passages. 56The third question is what is the precise subject matter about which the evidence and submissions need to establish a feeling of unease on my part. In order to answer that question, it is necessary to discuss the legal principles in more detail. 57The High Court in Cesan v The Queen considered an appeal based on the allegation that a trial judge slept intermittently throughout a trial by jury. French CJ considered whether inattention by the trial judge could constitute a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912. His Honour said at [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: 1. 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 dutyof 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. 58French CJ went on to consider whether it could be said that "no substantial miscarriage of justice has actually occurred" for the purposes of applying the proviso to s 6(1), drawing attention to the fact that the "judge's conduct had a discernible distracting effect on the jury": at [67]. 59The reasons of Gummow J, and those of Hayne, Krennan and Kiefel JJ, similarly emphasise that it was the "consequences of the trial judge falling asleep" - namely the fact that it distracted the jurors and thereby detracted from their ability to properly discharge their function - that meant that it was not possible to conclude that no substantial miscarriage of justice had occurred: Gummow J at [105]; Hayne, Krennan and Kiefel JJ at [112], [119]-[120] and [127]. 60In short, I consider that, in order to refer the matter to the Court of Criminal Appeal, I would need to experience a feeling of unease not only about whether the trial judge was asleep during substantial portions of the trial, but also about whether that distracted the jury from proper fulfilment of its role, thereby occasioning a miscarriage of justice. 61The fourth question is whether the evidence and submissions have that effect upon me. 62On all of the evidence placed before me, I experience a real doubt about whether the trial judge was asleep during extended periods of the trial. Quite apart from anything else, there is evidence that comment and complaint about that topic was made by a number of persons years before the decision in Cesan v The Queen was handed down. As my chronological review shows, those persons include the mother of the applicant, the father of the co-offender, and three solicitors. As for the countervailing material, it is not a matter of me rejecting the report of the solicitor for the Crown at trial; it is merely a matter of me experiencing a sense of unease. 63As for the question of effect on the trial in general and the jury in particular, I respectfully reject the submission of the applicant that the fact that his lawyers did not take steps at trial or on appeal to remedy the effects of the trial judge sleeping on the trial as a whole itself establishes that the trial miscarried in a way that should lead to referral. To my mind, that reasoning presupposes that any such sleeping had the effect for which the applicant contends; and yet whether it did or not is the question under consideration. I respectfully consider that this submission of the applicant reveals circular reasoning. 64I turn now to the question of whether my doubt about whether the trial judge was asleep for substantial portions of the trial leads me also to experience a feeling of unease about whether that could have adversely affected the jury sufficiently to constitute a miscarriage of justice. In doing so, I appreciate that that was not the main thrust of the submissions of the applicant. Nonetheless, I consider that the question arises from the totality of the material placed before me. 65It is true that the evidence of the sleeping of the trial judge having an adverse effect upon the jury and the trial as a whole is relatively sparse. Nevertheless, I have come to experience a feeling of unease about whether, in this trial, that occurred. That is so for a number of reasons. 66First, both the applicant and his mother have sworn affidavits to that effect. True it is that that occurred in the months after the decision in Cesan v The Queen was handed down. That leads me to accord them less weight; in the absence of cross-examination, I do not discount them entirely. 67Secondly, it is true that many of the statements of persons who attended at the trial focus on the behaviour of the trial judge and not its effects on the jury. But that is hardly surprising. The phenomenon of a sleeping judge is liable to make an immediate impression on an interested observer; its effects, less so. Furthermore, until the crucial judgment was handed down by the High Court, few would have had the perspicacity to appreciate that it is not the sleeping of the judge that could undermine the trial, but rather its effects upon the jury. 68Thirdly, the fact that the transcript apparently reveals neither the conduct of the judge nor any effects on the jury is hardly surprising. One can understand the reticence of counsel in raising such a matter; the fact that it was not done tells against the application but it is not determinative. As for distraction or worse on the part of the jury, to my mind it is quite possible for those phenomena not to be reflected in the transcript, especially if the judge was asleep during them. 69Fourthly, it is not the case that there is no evidence of the effects on the jury and on the trial resulting from sleeping on the part of the trial judge. In that respect, this application can be sharply contrasted to the application considered in the recent refusal to refer a matter in Application by Robert Roberti at [49]-[51] and [55]. In contrast to that case, in which the only affidavit evidence for the proposition that the jury was adversely affected was contained in an affidavit of the applicant sworn years after the judgement in Cesan v the Queen was handed down, here, as I have demonstrated, the mother of the applicant complained to the Judicial Commission of that very phenomenon years before the delivery of that judgment. And the subsequent material from the solicitor for the Crown at trial, whilst in general speaking against the application, provides some support for it, in that it speaks of jurors appearing to be "dozing" during the trial. 70Fifthly, I know from experience as both counsel and judge the importance in any proceedings of the tone set and atmosphere created by the trial judge in the courtroom. That is especially the case in trial by jury, which involves the sudden and intense exposure of a group of laypersons to the criminal justice system. Relying on that general experience, and experiencing as I do a doubt about the possibility that the trial judge was sleeping on a significant number of occasions throughout the trial, I experience a feeling of unease about the fact that it could very well have affected the jury's concentration upon and commitment to its task. 71In short, I have a feeling of unease not only about whether the trial judge was sleeping. I also have a feeling of unease about whether that affected the trial in a way that could constitute a miscarriage of justice. Accordingly, save for any discretionary considerations, the statute requires me to refer the matter to the Court of Criminal Appeal. 72That fifth and final question calls for a consideration of the factors contained in s 79(3) of the Act, and discretionary matters generally. 73As for s 79(3)(a) of the Act, it is true that the matter has been dealt with repeatedly under Part 7 of the Act, by way of the various petitions that have been rejected: see s 79(3)(a)(ii). 74In light of the chequered forensic history of the matter, it cannot be said that the matter giving rise to the application has been "fully dealt with" either at first instance, in the Court of Criminal Appeal, or in the High Court: see s 79(3)(a)(i). Nor can it be said that no appeal founded on the "matter" has been made, or that any appeal has been withdrawn or allowed to lapse: see ss 79(3)(a)(iii) and (iv) of the Act. To the contrary, once special leave was refused the applicant had exhausted all of his rights of appeal. 75As for s 79(3)(b), I consider that it could be said that there are special facts and circumstances that justify the taking of further action. I have a doubt about whether the trial judge was asleep during significant portions of a trial by jury for a very grave criminal offence. The conviction led to the applicant spending years of his life in gaol, and bearing a permanent stain on his character. It could be that the lawyers for the applicant felt that nothing could or should be done at first instance. Nor, it seems, was it truly appreciated by all of the lawyers involved, before Cesan v The Queen, that a sleeping judge and its effect could found a ground of appeal to the Court of Criminal Appeal. The foundation of the special leave application was, as one would expect in light of the circumscription of foregoing proceedings, unsupported by evidence: see Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at 265-271, 297-299; Eastman v The Queen [2000] HCA 29; 203 CLR 1. The net result is that the crucial question has never been placed before a court. Finally, I consider that the phenomenon of a judge sleeping in a trial by jury is thankfully sufficiently rare for it to be regarded as "special". 76But in any event, the combined operation of s 79(3)(a)(ii) and (b) does not require deep analysis. That is because whether the application should be refused remains a matter for my discretion, as can be seen from the use of the word "may" in the chapeaux of s 79(3). 77I have come to a different view of the evidence from those who assessed it previously pursuant to Part 7 of the Act. I experience a sense of unease as to whether or not there has been a miscarriage of justice in the trial of an extremely serious crime that lead to the applicant spending years in gaol. In those circumstances, even if I were satisfied of the matters contained in s 79(3)(a)(iii) and (b), I would be very loath to refuse to consider or otherwise deal with the matter. I do not propose to exercise my discretion, pursuant to the s 79(3), to decline to refer the matter. Nor do I consider that there is any other discretionary basis on which I should decline the relief sought. 78The statute therefore calls upon me to refer the matter to the Court of Criminal Appeal. Conclusion 79I emphasise that, of course, I have not come to any view as to whether the appeal against conviction will or even may succeed in the Court of Criminal Appeal: see Varley v Attorney General (NSW) at 48, extracted above at [52]. No doubt the reconstruction of precisely what occurred in the trial many years after the event will be very difficult indeed. However, all the statute calls upon me to determine is whether I experience a sense of unease with regard to the guilt of the applicant, in the sense of whether the proceedings that led to the conviction of the applicant may have constituted a miscarriage of justice. For the reasons that I have explained, I have come to possess that state of mind. Order (1)Pursuant to s 79(1)(b) of the Crimes (Appeal And Review) Act 2001, the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against conviction under the Criminal Appeal Act 1912.