DUNCAN, Paul Parepano v Regina

Complaint to the Judicial Commission of New South Wales

1. In April 2005, Ms Linda Machan, the mother of the appellant's then girlfriend, made a complaint on the appellant's behalf to the Judicial Commission of New South Wales about the judge's conduct in the trial. A copy of this complaint was tendered (Exhibits "A1" and "A2"). In summary, the complaint alleged that the trial judge fell asleep on a number of occasions during the course of the trial. Ms Machan claimed that she heard him snoring and that she had mentioned this to the appellant's solicitor and counsel.
2. In a sworn declaration supporting the abovementioned complaint, Ms Machan claimed that she had reported her observations to the appellant's legal representative but that they were "shrugged off", stating, "… even though the panel of jurors were shaking the [sic] in disbelief at judge asleep and snoring. This was happening every day …"
3. Subsequently, an application was made by the appellant pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 for referral of his conviction to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The application was heard by this Court in its Common Law Division (Button J). The hearing was on the papers and on 26 June 2014, his Honour delivered judgment. On the application his Honour made an order pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act that the whole case be referred to the Court of Criminal Appeal, to be dealt with as an appeal against conviction under the Criminal Appeal Act. The present appeal was heard on 2 February 2015.

Grounds of Appeal

1. The Notice of Appeal filed 16 July 2014 pleaded two grounds of appeal as follows:

Ground One - The appellant did not receive a fair trial and as such his conviction was the result of a miscarriage of justice due to the fact that the learned Trial Judge was asleep from time to time during the trial

1. The Particulars of Ground 1 were as follows: "a. The Conduct of the learned Trial Judge in sleeping, dozing off, resting his chin on his chest with his eyes closed, leaning back in his chair with his eyes closed, supporting his head with his hands with his elbow on the bench, his eyes were shut, and his head would fall forward and even to one side and rest on his shoulder, snoring, snorting and half choking thus resulting in the appellant not receiving a fair trial; b. The learned Trial Judge was asleep and not cognisant of his immediate surroundings from time to time during the trial, throughout most of the trial, mostly every day, mostly in the afternoon at trial; c. The jury were distracted by the judge sleeping, and dozing off from time to time during the course of the trial; d. The appellant and the co-accused Mr Adam Perre observed the learned trial judge sleeping during the course of the trial; e. Eyewitness observations of the learned trial judge sleeping were made by Ms Linda Machan, Ms Heidi Muggenthaler, Mr John Perre, Ms Renae Perre, Ms Lucianna Rossi, Ms Tiana Simicic, Mr Michael Stollery; f. Expert evidence from Professor Leon Lack establishes that the learned trial judge's dozing and sleeping would have resulted in a loss of attention and cognisance of the immediate situation, namely the trial itself; g. Expert evidence from Associate Professor Nick Antic establishes that the likely explanation for the choking/snorting noises thought to have been made on occasions by the learned trial judge was that they were the noise made by a sufferer of obstructive sleep apnoea recommencing breathing after an episode of sleep apnoea and further that during such episodes there would have been some inattention by the sufferer; h. The learned trial judge showed a total lack of respect for the judicial system during the course of the trial; i. The learned trial judge suffered from sleep apnoea at the relevant time during the course of the trial."

Ground 2 - the lawyers representing the Appellant failed in their duty and their obligations and as such a miscarriage of justice resulted

1. These grounds raise the following matters for consideration: 1. The evidence concerning the alleged conduct of the trial judge during the trial; 2. Whether the conduct of the trial judge during the trial required the legal representatives of the parties to respond by raising such conduct with the trial judge; 3. The impact or the effect, if any, upon the jury of any inappropriate conduct by the trial judge.

The Factual Background to the Offences

1. The nature of the issues raised in the present proceedings are such that a detailed analysis of the factual circumstances constituting and surrounding the offences upon which the appellant was convicted is not required. Accordingly, what follows is a summary of certain factual matters established at trial by way of background.
2. On the evening of 2 November 2001, five young men, including one Christopher Wilson, drove from Sydney to the lighthouse in Wollongong where they met three young women.
3. That group of young persons drove in two cars to nearby Stuart Park where there was a beach and a hut. All except Christopher Wilson left the two cars and went to the hut.
4. The appellant and his co-offenders had been attending a party at another venue that night.
5. In due course the appellant and his associates left the party and travelled to Stuart Park. Sometime later a confrontation occurred between a Mathew Michael, who had been with Christopher Wilson and his friends, and the appellant and another male.
6. The Crown case was that the appellant grabbed Mathew Michael's phone and left with it. A large group of the appellant's associates, about 15 in all, appeared in response to a signal given by the appellant. A violent confrontation then occurred.
7. At one point, the appellant began to drive a vehicle erratically in the car park, causing Mathew Michael and his friends to scatter in order to avoid the car. The evidence was that the appellant drove at them, spun the car around doing 'wheelies', 'burnouts' and 'spins', reversing the car suddenly and generally driving in a dangerous manner.
8. During the confrontation, Christopher Wilson was attacked with objects used as weapons by a number of the members of the group with which the appellant was associated. The events in this respect were summarised in the Crown's Written Submissions as follows: 43. When the weapons were produced the offenders yelled: "You Lebbos - Get out of here!" Matthew Michael and his friends managed to run away, not all without injury. Christopher Wilson was not so successful. He had been talking to one of the three young women, Jovana Ljubojevic, in a car in the car park. He was, therefore, not with the others of his group when the phone was taken. 44. Chi Binh Nguyen (nicknamed "Jap") wielding the machete attacked him (T 192.22). The machete struck his hand and nearly amputated his right little finger no doubt in an attempt by Christopher Wilson to defend himself. He was then hit to the back of the head, which felled him to the ground. He was then surrounded by a group of young men including Chi Binh Nguyen (Jap), Chi Tarn (Big Chi) (T 480.5) and Adam Perre who struck him repeatedly with weapons and kicked and punched him. Perre used one of the legs of the "For Sale" sign he had taken from the boot of Tracey Saye's car to beat the victim, including his head, to the extent that the stick kept breaking into the shorter lengths ultimately found at the scene of the crime by police. 45. After a number of people jumped in cars Carla Busuttil saw that one group remained. She gave evidence she saw the victim lying on the ground with Jap striking him with the machete. She also saw the appellant on top of him punching him, then get up and start kicking him in the stomach. She said the appellant then took the machete from Jap and started hitting him with it (T 543.43). Jap then started smashing car windows belonging to the Wilson group and returned to the victim to pull the appellant off the man (T 544.30). She then observed the appellant walk over to the cars and start smashing the windows (T 544.31). 46. The victim suffered appalling injuries. Fragments of his skull and brain matter were found on the ground (T 751). The ambulance officer who was later to arrive, Mr Ryan, described Christopher Wilson having 6 to 7 head wounds, one on top of his head with exposed brain tissue coming from the wound. He had severe swelling to one of his eye orbits and a couple of welt marks to his legs (T 746). The right little finger was partly severed. Jovana Ljubojevic begged his attackers to stop but they would not, several times returning to the attack. One of his attackers told her to "fuck off." (Crown Submissions at [43]-[46])

The Evidence in the Appeal Proceedings

1. The appellant relied upon the following evidence in the present appeal:

• Affidavit of the appellant, Paul Parepano Duncan sworn 30 November 2008;
• Affidavit of Linda Marian Machan bearing date 6 February 2009 but apparently sworn on 30 November 2009;
• Complaint made by Linda Machan to the Judicial Commission of New South Wales dated (Exhibits "A1" and "A2");
• Petition of Linda Machan to the Governor of New South Wales dated 30 November 2009 (Exhibit "B");
• Letter of Linda Marian Machan to the appellant dated 11 November 2008 (Exhibit "A" in the appeal proceedings, re-marked as Exhibit "C");
• Handwritten notes of the appellant made on an unspecified date in 2008 - (initially marked as Exhibit "B" in the appeal proceedings, re-marked as Exhibit "D").

1. The Crown relied upon the following evidence:

• Affidavit of Natalie Jane Adams SC, Crown Advocate, affirmed 12 November 2014;
• Affidavit of Robert Patrick Greenhill SC sworn 13 November 2014;
• Two affidavits of Michael John Stollery, solicitor employed by the Director of Public Prosecutions, respectively sworn 17 November 2014 and 29 January 2015;
• Affidavit of Linda Margaret McSpedden affirmed 19 November 2014, and
• Affidavit of Linda Bremner sworn 19 November 2014.

1. The appellant, Ms Machan and Mr Stollery were the only witnesses required for cross-examination.
2. The nature of the grounds of appeal necessitated evidence being called during the hearing of the appeal in this Court.
3. On 6 August 2014, an "Evidence Book" was filed on behalf of the appellant. Not all of the material within it was admissible. It is necessary to make some brief observations in relation to the material contained in the book.
4. At the outset of the hearing of the appeal on 2 February 2015, Senior Counsel for the appellant was requested to identify the documents in the evidence book that were relied upon for the purposes of the appeal. Mr Borick QC, who appeared with Mr D Moen of counsel for the appellant, identified a number of documents at T 2-21. The Crown opposed the tender of many of the documents identified by Mr Borick, some on several grounds. Mr Moen indicated in respect of Document Number 1 (the Complaint to the Judicial Commission), and Document No 18 (the Petition of Linda Machan), that it was proposed to establish their admissibility during the course of Ms Machan's evidence and following which he would tender the documents: at T 6.
5. Ms Machan was called for cross-examination on 2 February 2015 and gave evidence as recorded at T 29-44. Ms Machan gave oral evidence in chief at T 29-31. She was taken by Mr Moen to several documents in the Evidence Book.
6. The first document in this respect was Document No 1, her complaint to the Judicial Commission. The questions put to her were limited to her identification of the handwritten complaint and the typed version of it, both contained in the "book". The handwritten and the typed versions were tendered and were before this Court, marked as Exhibits "A1" and "A2". Ms Machan was then taken to Document No 18, the Petition by Ms Machan under a power of attorney given to her by the appellant. She identified the document which was tendered. The document was marked as Exhibit "B". Ms Machan was then shown a document that was initially marked as Exhibit "A" in the proceedings, bearing the date 21 November 2008. The document has been re-marked as Exhibit "C".
7. In relation to the other documents that had been tendered at the outset of the hearing, the Court was advised by Mr Moen, at T 23, that the only other document the appellant would seek to tender was Document No 5 in the evidence book, a letter by Heidi Muggenthaler solicitor, to the Judicial Commission of New South Wales. The tender was later rejected with reasons to be given in the final judgment of the Court on the appeal: T 28:40-45.
8. There is conflict in the evidence adduced on behalf of the appellant and the Crown as to the trial judge's conduct and control of the trial. Accordingly, it falls to this court to resolve disputed matters. In making the necessary findings of fact, the reliability of the appellant and Ms Machan is critical.

Document No 5

1. Document No 5 in the Evidence Book was tendered by Mr Moen on behalf of the appellant at T 23:35-42.
2. The tender relied upon the provision of s 69 of the Evidence Act 1995 which is an exception to the hearsay rule in s 59 of the Evidence Act. "69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)."
3. The onus of demonstrating the conditions of admissibility of evidence under the Evidence Act provisions lies with the tendering party: Lithgow City Council v Jackson [2011] HCA 36; 281 ALR 223 at [17].
4. Section 69 creates an exception to the hearsay rule in relation to business records. I proceed upon the basis that the letter written by Ms Muggenthaler and addressed to Mr Schmatt of the Judicial Commission of New South Wales, dated 16 May 2006, was a business record within the meaning of s 69. However, as has been observed, s 69 does not render business records as such admissible. It concerns representations in a document which forms part of a business record within the meaning of s 69(1): Lithgow City Council v Jackson, supra, at [17]. The representation in question is admissible if s 69(2) is satisfied. In that respect, it is necessary to identify the 'asserted fact' and whether the same was something about which the person who made the document had personal knowledge.
5. In relation to Document No 5 the following matters are noted: 1. In the fourth paragraph there is reference to Ms Machan and Mr John Perre having raised the issue of the trial judge's conduct. However, it is clear from Ms Muggenthaler's letter that she did not have personal knowledge of either person having done so as she stated that she was not present at the meeting with the appellant's legal representatives where Ms Machan and Mr Perre were said to have raised that matter. 2. In the sixth paragraph of the letter Ms Muggenthaler referred to a comment she had made to Mr Schmatt of the Judicial Commission by telephone of having heard noises on "a couple of occasions" which she describes in the letter. However her statement or account is not one that asserted unequivocally that the noise was in fact one made by the trial judge. Her observation of having heard the noise to which she referred was not said to have been specifically based on her seeing or hearing the trial judge (as distinct from someone else present in the courtroom) make the noise. 3. The sixth paragraph of the letter contained reference to observations Ms Muggenthaler said she made herself as to the trial judge leaning back in the chair "now and then" and a statement "…I cannot say that I know that he was asleep" having previously made a statement to the effect, not that the trial judge in fact closed his eyes, but that he "apparently" did so.
6. As to (1) above, it is clear that whatever was said by Ms Machan and Mr John Perre was not said in her presence. Accordingly Mr Muggenthaler had no personal knowledge of what either may have said to others.
7. As to (2) above, "personal knowledge" of a fact can only be derived from seeing or hearing an event: Lithgow City Council v Jackson, supra at [17]. Ms Muggenthaler's statement does not assert that she saw and/or heard the trial judge make the noise on the two occasions to which she referred. The onus on the appellants of establishing the provisions of s 69 were met was not discharged.
8. Even if that not be correct, the statement in question should not, in my opinion, as a matter of discretion be admitted, as Ms Muggenthaler's account of hearing the noise leaves open the possibility that it was someone in the courtroom, not being the trial judge, who made the noise: s 135 Evidence Act. Additionally, I note that no affidavit from Ms Muggenthaler was produced and there was no suggestion that she was unable to be called to give evidence. Had she been called, her lastmentioned statement could have been tested and clarified.
9. As to point (3), Ms Muggenthaler's express statement that she could not say the trial judge was asleep evidences the limited nature and extent of her observations as to the trial judge's appearance or conduct. It is a statement of a negative and her evidence is not probative of the fact as to whether the trial judge was in fact asleep at the point in time to which her statement relates.

The HealthQuest Report

1. During the hearing of the appeal, a significant amount of time was spent on arguments concerning the admissibility of a document, annexed to Document No 23 in the Evidence Book, referred to as the 'HealthQuest Report.' The report was prepared by a Dr P Dodwell and is dated 14 July 2005. The report sets out a number of issues relating to the trial judge's personal health, based essentially on a series of other reports and documents listed on page 1 of the report under the heading 'Document Review'. It appears from the report that Dr Dodwell examined the (now retired) judge on an unspecified date. The report then sets out conclusions and recommendations.
2. Dr Dodwell could not be located by the appellants to provide further evidence in the appeal: T 5:5.
3. The Crown objected to the tender of the report on the following grounds: 1. That the report was not in the form of an expert's certificate: T 7:16. 2. That the report had no relevance because it was directed to the trial judge's condition in 2005 rather than 2003: T 9: 15-20. 3. That the Crown had no opportunity to cross-examine Dr Dodwell due to his absence: T 9:45. 4. That Dr Dodwell's qualifications were not identified: T 10:20-24. 5. That the document contained inadmissible material, particularly hearsay: T 9:22-25.
4. The appellant submitted that the report should be admitted, regardless of Dr Dodwell's hearsay reliance on other reports, because it formed part of a business record within the meaning of s 69 of the Evidence Act (T 13:42-45).
5. While the Crown effectively conceded that the Report was capable of forming part of a business record of HealthQuest (T 8: 28-35), its admissibility was disputed on the ground of relevance.
6. The HealthQuest report, in my opinion, should be rejected on the basis that it could not rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings: Evidence Act, s 55. The report does not contain any observations, findings or opinions that are capable of affecting the assessment of a fact in issue concerning the trial judge's conduct of the trial in 2003.
7. Counsel for the appellant submitted during the appeal hearing that the report was tendered to prove that at the time of the appellant's trial, that is, between February and March 2003, the trial judge was suffering from a sleeping disorder or sleep apnoea. However, nothing in the report addresses or deals with the trial judge's health in 2003. The report, which was prepared over two years after the appellant's trial had concluded, was, as earlier noted, based, in part, upon a series of reports by other medical practitioners made on various dates between 1 September 2004 and 6 July 2005. The appellant submitted that references made by Dr Dodwell to these reports, as well as a reference in the report itself to the trial judge having been diagnosed with sleep apnoea on or about June or July 2004 went to the question of the trial judge having suffered from that condition at the time of the appellant's trial over twelve months earlier: T 13:10-42. That submission, for the reasons stated above, must be rejected.
8. Neither the report of Dr Dodwell nor the report of Dr Jankelson (referred to by Dr Dodwell), contains any opinion or assessment of the trial judge's state of health or condition as at the period of the trial. The report is not admissible as it is not relevant to the issues with which this appeal is concerned: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [31]

Affidavit Evidence of Mr Paul Duncan

1. The appellant's affidavit evidence of 30 November 2008 was that the trial judge on the second day of the trial appeared to be sleeping. He said he brought this to the attention of his counsel, Ms McSpedden. He said that he observed the trial judge sleeping on other occasions and snoring "on more than one occasion" (at [7]).
2. The appellant's evidence on these observations were set out in the following paragraphs of his affidavit: "2. On the second day of my trial, I noticed that his Honour was sitting with his arms folded and eyes closed with his chin resting on his chest. It appeared to me that he was clearly sleeping. 3. At the morning tea break I brought this to the attention of the instructing solicitor Heidie Muggenthaler and Linda McSpedeen QC [sic] of counsel. 4. The advice given to me at that time was that I should not worry about it, that his Honour had the condition known as sleep apnoea, and that there was nothing that could be done about it. 5. I felt frustrated and extremely anxious about the situation and thought that it was most unfair and was not consistent with the requirements of a fair trial. 6. During the course of the rest of the trial which lasted some four weeks, I observed him sleeping on a number of other occasions. 7. I distinctly remembered that on more than one occasion his Honour was snoring when evidence was being led before the jury. … 11. Although I am unable to provide precise timings as to when the incidents of sleeping occurred, it was clear to me and to all those present including the members of the jury, that the incidents of sleeping were of significant duration and sufficiently frequent to cause me concern as to the fairness of my trial. 12. 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. 13. Anyone present in court would have been able to observe this happening and would have shared my concern that the jury members were being distracted from their task of listening carefully to the evidence which was being presented to the court."
3. Particular matters concerning this evidence will be considered below.

Affidavit Evidence of Ms Machan

1. In paragraph [2] of her affidavit of 6 February 2009, Ms Machan stated that on the second day of the trial the trial judge sat "… with his arms folded and eyes closed with his chin resting on his chest". She added: "He appeared to me that he was sleeping. On some occasions he seemed to be in a deep sleep because his head would hang to one side and you could hear him snoring."
2. Ms Machan stated (at [3]) that at the morning tea break on that day she brought this to the attention of both the appellant's solicitor, Ms Muggenthaler, and his counsel, Ms McSpedden. Whilst Ms McSpedden in her evidence acknowledged that Ms Machan made reference to the trial judge sleeping, she did not corroborate affidavit evidence of Ms Machan having reported hearing the trial judge snoring. Ms Machan, in her affidavit at [9], referred to the judge snoring on other occasions. At [6], she referred to having observed the trial judge sleeping "on a number of occasions". It is noted that her statement as to having seen the trial judge asleep is an account in the nature of a conclusion without reference to the particular facts upon which that conclusion was based. Ms Machan earlier, in paragraph [2], referred to what "appeared" to her to be the judge sleeping. This stands in contrast to her statement to the effect that the trial judge was sleeping "on a number of occasions".
3. On the evidence of Ms Machan to the effect that she saw the trial judge "sleeping" on occasions during the trial and hearing him snore, the following matters are noted: 1. There is evidence from witnesses who gave evidence at the hearing of the appeal that the trial judge on a number of occasions sat with his eyes closed. 2. The question in relation to that evidence is whether on such occasions the trial judge was in fact asleep or whether on some, most, or all of them he was listening to and following the evidence with eyes closed. The distinction between the appearance of the judge sleeping based upon the fact of him having closed his eyes whilst adopting a posture as described in evidence, and whether he was in fact actually asleep on the evidence is one requiring consideration in this case.

Similarities in the Evidence of the Appellant and Ms Machan

1. In his oral evidence in chief the appellant said that he wrote notes by hand setting out his recollection of certain trial events in 2003 when he was in Wellington Correctional Centre in the year 2008. A copy was tendered which became Exhibit "B" (subsequently remarked as Exhibit "D"). He said that Ms Machan had requested him to put down in writing his recollection of his observations of the trial judge during the trial. He said he sent a copy of his handwritten notes to Ms Machan who at the time was assisting him in relation to the present proceedings.
2. Extracted below is the letter sent by Ms Machan to the appellant (Exhibit "C"). That letter reads as follows: Dear Paul, I have enclosed an Affidavit form for you to complete and send back to me. Make sure you sign it in the presence of a Justice of the Peace, and sign where I have indicated. Before you begin filling the details of your statement of what I mention in the paragraph below, write out what you want to say on a blank sheet of paper and then copy it, so you can pick up any mistakes you make. Then you get the Justice of the Peace to witness your signature. In your own words what you remember about the trial and the judge sleeping, and what steps we took and very importantly how you felt throughout the trial while the judge slept. You begin with the date of your trial which started on 25th February 2003 and finished on or about the 20th March, 2003. The Instructing Solicitor for the Trial was Heidi Muggenthaler. The Barrister for the Trial was Linda McSpedden and also present was a Solicitor named Sasha Wong. The Barrister who did your appeal was Sue Kluss. You must remember to include that you instructed Heidi Muggenthaler to include as one of the grounds of appeal was the judge sleeping through your trial. After you have completed filling in the form send it back to me as soon as possible. Yours [sic] other mum, Linda Machan
3. In his affidavit, the appellant set out observations that he said he had made of the trial judge having fallen asleep on occasions during the trial. He said that he observed the judge snoring on a number of occasions. However, in his handwritten notes, Exhibit "D", he referred to remembering the judge snoring "on one occasion".
4. When asked in the course of cross-examination if he could provide an explanation for the latter inconsistency, he indicated that he was not in a position to do so: T 53:15-20.
5. As to Ms Machan and her role or involvement in assisting the appellant, she stated in her affidavit (at [1]) that she was present in court on every day of the trial except for one morning.
6. In cross-examination by the Crown Ms Machan acknowledged: 1. That her daughter had been the appellant's girlfriend; 2. That the appellant had, for a period, resided in Ms Machan's home during a ten-month period whilst on bail: T 31; 3. That she had had a very close relationship with the appellant and presently was "… his support person, I keep in touch with him every day": T 32; 4. That she had assisted the appellant in pursuing the present proceedings; 5. That a number of the paragraphs in her affidavit were in similar in terms to paragraphs appearing in the appellant's affidavit.
7. In cross-examination Ms Machan gave the following evidence: "Q. In fact, in terms of the affidavit, you spoke to Paul a lot about what was in his affidavit, didn't you? A. Well, in what way do you mean? Q. You had contact with Paul before he made the affidavit, didn't you? A. Yes, I did. Q. And I take it you spoke to him about what was going to go in the affidavit? A. Well, he needed to know information which he didn't have and I had to remind him of what he needed to do. Q. You in fact I suggest reminded him of things that happened in Court, didn't you? A. That's right." (T 32:26-39)
8. Ms Machan, in her affidavit, (at [2]) set out observations she said she made of the trial judge on the second day of the trial. In that respect she stated: "… I noticed that His Honour was sitting with his arms folded and eyes closed with his chin resting on his chest. It appeared to me that he was sleeping …"
9. That evidence is in identical terms to the account given by the appellant in paragraph 2 of his affidavit save for the fact that he added the word "clearly" before the word "sleeping" which does not appear in Ms Machan's affidavit. Ms Machan added to her observations in paragraph 2 of her affidavit the additional sentence, "On some occasions he seemed to be in a deep sleep because his head would hang to one side and you could hear him snoring."
10. Paragraphs 3 and 4 of Ms Machan's affidavit are in identical terms to paragraphs 3 and 4 of the appellant's affidavit.
11. Paragraph 5 of Ms Machan's affidavit concludes with the words "… not consistent with the requirements of a fair trial". Those nine words also appear in paragraph 5 of the appellant's affidavit.
12. Similarly, in paragraph 6 of Ms Machan's affidavit she stated "I observed him sleeping on a number of other occasions". Those words are identical to the appellant's statement in paragraph 6 of his affidavit, i.e., "… I observed him sleeping on a number of occasions", except for the word "other".
13. Both Ms Machan (at [9]) and the appellant (at [7]) state in identical terms (except that the appellant uses the word "remembered" rather than "remember"): "I distinctly remember that on more than one occasion his Honour was snoring when evidence was being led before the jury."
14. In this aspect, as noted above, the appellant's affidavit evidence is inconsistent with his handwritten notes (Exhibit "D"), further discussed below.
15. There are other paragraphs of the two affidavits containing similar or identical word formulations. See in this respect, paragraphs 8, 9, 10, 11 and 12 of the appellant's affidavit, and paragraphs 10, 11, 12, 13 and 14 of Ms Machan's affidavit.
16. It is apparent from the above discussion as to the similarities of the contents in the affidavit evidence of both the appellant and Ms Machan as to the observations each is said to have made as to the conduct of the trial judge, that their evidence must be treated with caution. The close similarities in the affidavit evidence to which reference has been made above suggests that either Ms Machan or the appellant wrote the identical or near identical paragraphs and the other simply adopted what the other had written. The appellant in cross-examination denied that Ms Machan had told him what to put in the affidavit and denied being in close discussion with her about the preparation of his affidavit: T 49:19-21. In cross-examination the appellant also denied having a copy of Ms Machan's affidavit when he completed his affidavit: T 49:10-15. Whilst it is always possible that one person may adopt another's recollection of events as accurately reflecting his or her own recollection, there remains a risk that one of the two has been inappropriately influenced by the account of the other in recalling past events. That risk I consider exists in this case and is one that has materialised in this case. This applies, in particular, to the account given by each having heard the trial judge snoring on multiple occasions. As earlier noted, in the appellant's handwritten notes (Exhibit "D"), the appellant referred to only one occasion on which he heard the trial judge snoring: "… throughout the rest of the trial which went for … a further 4 weeks I observed him on a number of occasions falling asleep and distinctly remembering on one occasion when he was snoring when evidence was being presented to the jury …" (at p 1). (emphasis added)
17. The appellant's handwritten notes (Exhibit "D") suggests that apart from the one occasion referred to by him in the notes, he did not otherwise have a recollection that the trial judge snoring "on more than one occasion" as stated in paragraph 7 of his affidavit, and as also recorded in Ms Machan's affidavit. I am satisfied on the evidence that the probabilities are that the appellant has simply adopted what Ms Machan said in that latter respect in paragraph 9 of her affidavit.
18. In so concluding, I do not consider that Ms Machan set out to deliberately or dishonestly influence the appellant in formulating his affidavit. That was not a proposition raised by the Crown. In cross-examination, Ms Machan frankly conceded that she provided assistance and support to the appellant in preparing for the present proceedings and that she has indeed been supportive of the appellant during the trial and thereafter.
19. It is clear that Ms Machan was very motivated to help the appellant as far as possible but being a layperson and without the assistance of a lawyer in the preparation of affidavit evidence, it is likely that she inadvertently influenced him in adopting her version of events as to whether the trial judge was snoring rather than his own more limited recollection as recorded in Exhibit "D".

Evidence in the Crown's Case

1. By way of preliminary observation I note the following matters: 1. The evidence of Mr Greenhill and Ms McSpedden does not take issue or dispute the evidence in the appellant's case that the trial judge was seen on occasions to close his eyes during the trial. 2. Their evidence was to the effect that whilst his Honour at times closed his eyes, he was not in fact asleep on all or even most of the occasions when that occurred. In this respect, the evidence of counsel for the Crown, and for the appellant and his co-offender, established that the trial judge demonstrated, by his intervention and what the evidence indicates were appropriate rulings, that he was in fact listening to, and following the evidence notwithstanding that immediately before such interventions he, at times, had his eyes closed. 3. The contention that the judge was snoring during the trial and that his conduct overall distracted the jury, was strongly disputed by all trial counsel and by Mr Stollery. Mr Stollery's evidence is consistent with the appellant's note in Exhibit "D" that if the trial judge did snore at all it was most likely limited to a single, isolated occasion.

Evidence of Linda Margaret McSpedden

1. Ms McSpedden stated that she was briefed to appear for the appellant in his trial, instructed by Muggenthaler and Associates.
2. Ms McSpedden's evidence was that there was an occasion at some early point in the trial when, during an adjournment, Mrs Machan said words to the effect "That judge is sleeping. He shouldn't be doing that". As Ms McSpedden was focussed on the witnesses giving evidence she said she had not, at that point, noticed whether the trial judge was sleeping. She said she recalled saying to Ms Machan "I think he has narcolepsy - he has nodded off on other cases I have seen". She said she did not believe that, as at 2003, she was aware of the term "sleep apnoea".
3. In her affidavit, Ms McSpedden stated: "6. The trial continued and I had no cause for concern as to the judge being asleep, although there may have been times when he appeared to close his eyes for periods of time. The physical appearance of the judge was that he had a plump face and wore a totally ungroomed and wild red beard and moustache which in combination with his bushy eyebrows meant that little of his face was visible other than the top of his cheeks and his eyes. 7. I have no recollection of observing any reactions from the jury such as shaking of heads in disbelief, laughing and looking at each other and shrugging their shoulders or rolling their eyes, or apparently reacting to the judge in any way. Had there been such a reaction observed by me I would have had concern and considered what action ought to have been taken. I was intent on cross-examination of a number of young witnesses, many of whom had been under the influence of alcohol at the time they witnessed events. The reaction of the jury to the course of the evidence was a matter that was relevant for me to take into consideration. I did not hear the judge snoring or snorting. 8. After the trial was considerably progressed I recall that Mrs Machan again spoke to me about the judge only on one further occasion. I do not know whether this was when Detective Kelly was giving evidence on day 12 of the 16 days of evidence but it was certainly towards the end of the trial. I recall that a conversation took place between Mrs Machan, Mr John Perre, the father of the co-accused, and Mr Greenhill SC, my instructing clerk Sascha Wong and me. I do not know if Mr Greenhill's solicitor was present. Mrs Machan and Mr Perre expressed concern that the judge was falling asleep. I do not recollect the precise terms of that conversation. I had not noticed the episode they were referring to. I instructed Mr Wong to take particular note of the judge for the balance of the trial and to immediately draw to my attention any occasion when he appeared to go to sleep. From that point on my attention was also directed to making observations of the judge. 9. I myself observed during the balance of the trial a number of occasions when his Honour closed his eyes, and I also observed that very quickly after that His Honour would interject in such a manner as to indicate to me that he was well and truly aware of the evidence. Mr Wong reported to me that while there were times he thought the judge had closed his eyes, he could not be definite because of his face being obscured by his facial hair. 10. During the balance of the trial I do not recall any actions by the jury members that could be attributed to a reaction to the judge."

Evidence of Robert Patrick Greenhill SC

1. Mr Greenhill, as earlier noted, appeared for Adam Perre in his joint trial with the appellant. Mr Greenhill's evidence dealt with both the issue of the trial judge's superintendence of the trial and the question of the impact, if any, of the judge's conduct on the jury.
2. Mr Greenhill stated in his affidavit: "2. As I recall, the trial lasted for about one month. 3. On occasions during the trial I noticed that his Honour had his eyes closed and appeared to be dozing. He did not noticeably snore. 4. I did not form the opinion that his Honour was sleeping at any time during the trial. 5. The trial involved many factual and legal issues as can be seen from this honourable Court's judgment in the Appeal of Duncan and Perre [2004] NSWCCA 431 and in the transcript of the trial. 6. Whenever a point arose during the trial, whether of fact, of procedure or of law which necessitated his Honour's attention he immediately opened his eyes, if they were shut, and promptly and effectively dealt with the issue. The manner in which his Honour so dealt with the multitude of issues which arose in this strenuously contested and difficult trial convinced me that, despite appearances, his Honour was indeed concentrating at all times during the trial. 7. At some stage Perre's father raised with me as to whether the Judge was sleeping and I told him that, in my opinion, he was not. I doubt that I told him that the Judge had sleep apnoea as I believe that I did not know that to be the case at the time. 8. Without intending any criticism of Perre's father, understandably he was very much affected by the conviction, and sentence, of his son. 9. As to the alleged behaviour of the Jury, during my lengthy practice as a defence lawyer I habitually and closely watch the jury in any trial in which I appear for the Accused. I do not recall seeing any noticeable or objectionable reaction of the jury in this particular trial in relation to his Honour's appearance on the Bench which caused me any concern."

Evidence of Natalie Jane Adams SC

1. Ms Adams has been New South Wales Crown Advocate since 28 November 2011. Between 2002 and 2011 she was a Crown Prosecutor.
2. Ms Adams was the Crown Prosecutor briefed in the prosecution of the appellant along with his then co-accused, Adam Perre.
3. Ms Adams set out in her affidavit details of the circumstances in which she came to swear her affidavit in these proceedings, including the fact of having read the judgment of his Honour Button J in the appellant's application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 and the nature and extent of her recollection of the prosecution and trial itself.
4. Ms Adams' recollections of the trial judge's conduct during the trial specifically addressed, amongst other matters, his Honour's superintendence and control of the trial as it appeared to her. She stated that a number of legal arguments arose during the trial. His Honour, she recalled: "… was attentive during all legal arguments and made appropriate rulings on each occasion. I considered him to have a sound grasp of the relevant factual and legal considerations at all times" (at [8]).
5. Ms Adams stated: "9. I recall that there were a number of times during the trial that I saw the judge had his eyes closed. I cannot now estimate how many times I saw the judge with his eyes closed but during the one month trial I saw it perhaps 5-6 times, possibly more. On the occasions I observed this it occurred for time periods measured in seconds rather than minutes. There is one occasion I can recall when the judge had his eyes closed and whilst I was wondering whether he was asleep he rejected a question whilst his eyes were still closed. I specifically recall this instance as it satisfied me that even if the judge's eyes were closed he was still properly supervising the trial. Overall, I formed the view that closing his eyes for short periods of time was just something this judge did and it didn't affect his ability to preside over the trial. Although my recollection is that defence counsel were also aware that the judge would close his eyes for short periods I do not now recall if we ever discussed it but we possibly did. I do not recall either defence counsel raising with me any concerns regarding the trial judge's conduct of the trial."
6. Ms Adams explained the practical circumstances which prevented her from maintaining continuing observations on the trial judge. These included the need for her to focus on the evidence and taking notes of the evidence in cross-examination. Her best opportunity to observe the judge, she stated, was in the course of legal arguments: at [10].
7. As to the assertions made by Ms Machan to the effect that the jurors were shaking their heads, nudging each other, laughing and rolling their eyes at various times throughout the trial, Ms Adams' evidence was that the first time she became aware of such an allegation was when she read assertions to that effect as recorded in the judgment of Button J: at [12].
8. Ms Adams described certain physical features of the courtrooms in the Downing Centre District Court. Ms Adams estimated that if the Crown Prosecutor stood facing straight ahead towards the witness box or the judge, he or she would probably be able to see four or five jurors out of his or her peripheral vision.
9. To see the rest of the jury, she said, would require the Crown Prosecutor to turn and face the jury. The jury box is less than a metre away: at [13].
10. Ms Adams stated that it was her practice to only look directly at the jury when delivering her opening and closing address or if watching whilst an exhibit was being handed around or when the jurors filed in or out of court, or when commencing an argument or calling a witness.
11. In paragraph 15 of her affidavit, Ms Adams states; "I do not now have any recollection of seeing or hearing any jurors doing anything to suggest they were distracted by the trial judge. Nobody ever brought any such concerns to my attention during the trial. If anyone had brought to my attention concerns about any of the jurors being distracted I would have requested my instructing solicitor or anyone else present in court associated with the prosecution team to be on the lookout for any such matters and I would try to do so as well. This has occurred in other trials I have conducted over the years. If I was satisfied that any member of the jury was consistently distracted I would have spoken to defence counsel and either raised it with the trial judge or sought instructions from Director's Chambers about it."

Evidence of Michael John Stollery

1. Mr Stollery is a solicitor in the office of the Director of Public Prosecutions, a position he has held since October 1990.
2. Mr Stollery had the care, control and management of proceedings relating to the appellant and his co-accused.
3. Mr Stollery said he was present in the courtroom with Ms Adams throughout the trial and paid close attention to the proceedings. He took detailed notes and reviewed the daily transcript.
4. In his first affidavit, Mr Stollery stated: "10. I recall the jury, they were unusually attentive, good humoured and enthusiastic throughout the trial. I observed the foreman of the jury sketching during the trial. 11. On numerous occasions during the trial I observed members of the jury glancing in the direction of the foreman, whilst he was sketching. They smiled and on occasions appeared to be very amused by what they observed. 12. At the conclusion of the trial, I recall being in the courtroom when one of the court officers showed me two sketches. I was told that the sketches had been compiled by the foreman of the jury and that he had asked the court officer to give one of the sketches to Judge Dodd. That sketch was a very detailed caricature of Dodd DCJ. The sketch was expertly drawn and very humorous. I immediately appreciated why some members of the jury had smiled and smirked at regular intervals during the trial. The second sketch was of similar size to the one of Dodd DCJ, it was about A3 size on what appeared to be butchers paper. The second sketch depicted a very small table at the bottom of the page, it was titled 'The Exhibit Table', and each exhibit tendered during the trial was drawn, marked with the exhibit number and appeared stacked on the little table so that the little table was stacked to overflowing with exhibits. 13. I recall being quite astonished by the skill, detail and good humour of the sketch. As with the first sketch, as soon as I saw it I immediately appreciated why some members of the jury were smiling and smirking during the trial." (at [10]-[13])
5. Mr Stollery said that the issues in the trial were vigorously contested. He said: "… the trial was well supervised by his Honour Judge Dodd and was a very fair trial. Throughout the trial His Honour demonstrated that he was listening to and fully understanding the evidence." (at [14])
6. Mr Stollery stated: "15. On a few occasions during the trial, I am unable to say on which days, I observed his Honour with his eyes closed and his head bent forward. He gave the impression that he might have been dozing. However, his conduct demonstrated to me that he was in fact listening very carefully to what was being said and often interjected or corrected an error in what had been said. 16. I did not observe His Honour sleeping during the trial nor did I observe him sleeping or snoring. 17. On the few occasions when I observed His Honour with his eyes closed I did not observe any corresponding reaction from the members of the jury. I do not recall the jury appearing to be distracted by His Honour's conduct. 18. At no time during the trial did I feel that there was any reason to be concerned about His Honour's conduct. During the trial I was satisfied that he was discharging his obligations diligently and was giving the matter full and proper attention. I have no recollection of anyone making any comment during the course of the trial about His Honour appearing to be dozing. I first became aware of the suggestion in about March 2010. 19. At no stage during the trial did I feel any sense of unease or any sense of disquiet in relation to the conduct of the trial. Throughout the trial His Honour demonstrated that he was listening and fully understanding the evidence. 20. I am aware of the High Court decision in Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358. I have read the decision and can say without reservation that at no stage during the Duncan Perre trial did I observe His Honour Judge Dodd conduct himself in anyway similar to that described in the decision of Cesan." (at [15]-[20])
7. In his second affidavit Mr Stollery stated: "On numerous occasions during the trial I observed members of the jury glancing in the direction of the foreman. From time to time the hand movements of the foreman suggested to me that he was sketching. Some of the other jurors, on a number of occasions, appeared to be very amused by what they observed." (at [6])
8. Mr Stollery said, in his second affidavit, that after the sentencing proceedings had been concluded and whilst packing files away he had a short conversation with a Court Officer who had been in court during the sentence hearing and at various times during the trial. Mr Stollery stated: "9. The Court Officer showed me a sketch, it was on white paper about A3 size or possibly larger. At the foot of the page a small table had been drawn and written on the table were the words 'Exhibit Table'. Various items had been drawn and stacked on the exhibit table so that there was a large pile of sketched items up to the top of the page. The items were tagged and numbered. The items were skilfully drawn. I immediately recognised the items depicted in the sketch as the exhibits that had been tendered in the trial. 10. The Court Officer informed me that the sketch had been prepared during the trial by the foreman of the jury. 11. The same Court Officer informed me that the foreman of the jury had asked him to give the sketch to me at the end of the proceedings. 12. The same Court Officer then showed me a second sketch. It was on similar sized white paper. The sketch was a very detailed cartoon style caricature of Judge Dodd. It was skilfully drawn and very amusing. 13. The same Court Officer told me that the foreman of the jury had asked him to give the second sketch to Judge Dodd at the end of the proceedings. 14. To the best of my recollection there were two Court Officers in the courtroom at the time the conversation took place about the two sketches. I do not recall anyone else being present in the courtroom at the time."
9. In his oral evidence in cross-examination, Mr Stollery confirmed that the foreperson of the jury had made two sketches. He was referred to his affidavit, sworn 29 January 2015, and gave evidence as follows: "Q. Right thank you. Paragraph 11, and it says this, "the same court officer informed me that the foreman of the jury had asked him to give the sketch to me at the end of proceedings". Can I ask you this at all. Prior to receiving these sketches, you had observed the foreman obviously sketching on a number of occasions, during the trial? A. I'd form the impression that he was sketching. Q. How did you form that impression? A. Because of his hand movements. I couldn't actually see what he was doing but his hand movements were not consistent with writing. It wasn't a continuous movement of the hand. Q. Was this at times that you observed that occurring, that you also observed perhaps his Honour closing his eyes or not? A. In what sort of timeframe - at the same time or. Q. At the same time, you obviously had your head on a swivel, so to speak, so you were looking at the jury and then no doubt looking at his Honour and looking at the witnesses. Can you tell their Honours at any time that you observed the foreman of the jury sketching, that his Honour was in a position whereby his eyes were closed? A. I couldn't say. I don't recall the two going together. Q. Where is the sketch, at least the one in relation to what you described as being the humorous one? A. Well, the sketches were both Q. Just deal with it one at a time, the humorous one that you've described in your most recent affidavit, and I'll come to that in a moment, but where is it at the moment? A. I received one sketch. I was shown the other one in the courtroom. The sketch that I received, was on what are recorded as being something like butcher's paper. Q. Yes I understand that. A. It was at least A3 size if not a big bigger. Q. The question I asked - I'm just asking where it is - where you last saw it? A. I kept it in my office in Wollongong up until about 2004 when the director's office in Wollongong moved to another location. That move was carried out by removalists and the sketch was lost during that move." (T 54-55)
10. Mr Stollery described one of the sketches: "Q. Can you tell their Honours what was depicted in that diagram as you sit here right now or not? A. My recollection was that it was a similar size piece of butcher's paper, about the size as the first sketch that I saw. It was of the torso, upper torso and head and wig of Judge Dodd. It's something that I only saw the once whereas the other one I had in my office for quite some time but my recollection is that it incorporated some of the exhibits dangling from his Honour's wig and there were other features that I can't now dredge up because it was too long ago. Q. Did it depict the eyes of the judge as closed or open, can you recall Mr Stollery? A. I have no recollection of that. Q. And so the humorous side of this diagram that you observed was the dangly bits of the exhibits of the judge's head, is that right? A. It was in the detail. It was extremely well drawn, the person who drew it had obvious talent. The detail in the wig and the judge's robes I remember as being quite exceptional. Q. You only saw that the one time I think you said? A. Only saw that once in the courtroom. Q. So who then retained possession of that? A. My recollection is that the court officer who was filling in as associate to Judge Dodd had indicated to me that the foreman had asked him to give that to the judge." (T 56:24-50)
11. In relation to his observations during the trial, Mr Stollery gave the following evidence: "Q. And you say you don't have any recollection at all, do you distinctly remember in any way shape or form that the eyes depicted were firstly covered by glasses or not? A. My recollection is of the detail incorporated in the wig and the gowns and the exhibits that were attached to the wig and I've got no recollection of the eyes at all. Q. You did observe his Honour however appear to be dozing off during the course of the trial didn't you? A. I saw him on a few occasions with his head bent forward with his eyes closed. Q. And making sort of snuffling noises, as one sometimes does as they're waking from a deep sleep or a semi sleep? A. No, I have no recollection of that. Q. Your focus wasn't at all at material times on his Honour, we can agree on that point presumably? A. Well visually yes but I was also listening to the details of what was happening in court at all times. Q. Did you and was it raised between yourself and any of the prosecutors any concerns at that stage about his Honour dozing off during the course of the trial? A. None whatsoever. Q. Was it ever raised with you by any defence counsel that they had some concerns, I'm talking about this trial here of Mr Duncan, any stage during the trial was it raised with you? A. Not at any stage, I have no recollection of anyone raising this informally or in any other way. It first came to my attention I think in March 2010." (T 57:10-40)
12. Finally, Mr Stollery gave the following evidence towards the end of the cross-examination: "Q. In this paragraph however you describe the foreman of the jury being a graphic artist. I want to ask you this how did you know at that time when you were putting this document together that that foreman of the jury was a graphic artist? A. I don't know with certainty, that's what the court officer indicated to me in our conversation in the courtroom. Q. Did you have any interaction with the foreman of the jury outside of the court at any time? A. None whatsoever. Q. Did you at any time make eye contact with the foreman of the jury whilst he was sketching and doodling during the course of the trial? A. Not that I recall, no. Q. I think you said this also in that paragraph and I just want to clarify this large drawing, and can I assume there what you're referring to is the one that is on the butcher's paper, that is the exhibits diagram that was somewhat humorous? A. Yes. Q. You said this, "This large drawing was given to me at the end of the trial and was an outstanding reference tool for all on the jury." This humorous document being an outstanding reference tool, how did you come to the view that it was an outstanding reference tool? What did it depict as being? A. It depicted all of the exhibits and their number and they were on one document and they were gradiated as they were stacked up in the document and it occurred to me that it was a very useful reference tool for someone considering the matter and I retained that and I regret that I've lost the sketch" (T 59: 19-47)

Consideration

1. The primary issue raised in this appeal is whether there was, by reason of the trial judge's conduct during the trial, a miscarriage of justice. The answer to that question requires consideration of the evidence as to the following factual questions: 1. Whether the trial judge failed to attend to the evidence and the arguments of the parties or otherwise failed to appropriately control and conduct the proceedings. In particular, whether the trial judge failed to perform his judicial function by reason of periods of sleep during the trial. 2. Depending upon the factual findings made in respect of (1) above, whether any failure or failures in the trial judge's conduct required the legal representatives of the parties to the proceedings to have raised such matters with the trial judge. 3. Depending upon the factual findings made in respect of (1) above, whether any inappropriate conduct by the trial judge during the trial impacted upon or affected the jury.
2. In Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358; [2008] HCA 52 the issue in that case was whether a miscarriage arose in circumstances in which the trial judge was asleep for periods during the trial and whether the consequence of such conduct represented a departure from proper conduct of the trial. French CJ stated at [74]: "In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge's function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. It requires no less a standard of attentiveness to the evidence and the conduct of the trial generally than the standard applicable to a judge sitting alone. Indeed, because of the involvement of the jury it requires more."
3. In Cesan the question was whether there were substantial discontinuities in the judge's superintendence and control of the trial due to the alleged sleep episodes and, if so, whether that resulted in a miscarriage of justice. On that question, French CJ observed: "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 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." (at [93])
4. The evidence in the present appeal, in my assessment, establishes the following matters: 1. The trial judge from time to time during the trial closed his eyes, and folded his arms whilst doing so. On certain of those occasions he also rested his chin on his chest. 2. The trial judge's posture and conduct as described in (1), was capable of giving the appearance of sleep episodes. 3. The matters in (1) and (2) must be considered in context. As stated by the Chief Justice in Cesan, an overall assessment is to be made. That requires in this case consideration of evidence given by a number of witnesses that indicates that though the judge appeared at times to have periods of sleep, he in fact was listening to and following the flow of evidence. This was indicated by his verbal responses to the evidence and the trial judge's demonstrated capacity to make ex tempore rulings throughout the trial. 4. The affidavit evidence of the legal representatives in particular, provides consistent and strong support for a finding that during the trial the trial judge displayed an understanding of the issues and the evidence in what was a strongly contested trial. This was demonstrated by his ability and capacity to make rulings which were assessed by trial counsel as having been appropriate. 5. There was no attack in this appeal upon the trial judge's summing-up or, in particular, upon his trial directions. This is at least consistent with the fact that his Honour maintained a sufficient and appropriate command and control of the trial. 6. The evidence of Ms Machan, that she heard the judge snoring at various times during the trial, is not consistent with the evidence of trial counsel and that of Mr Stollery whose evidence I accept. Upon close consideration I do not consider that the appellant's evidence as to the judge snoring on multiple occasions is reliable or cogent evidence. In his handwritten statement written many years after the trial, the appellant could recall and record only one occasion when he said he heard the judge snore. He was unable to explain his later inconsistent affidavit account of hearing snoring on a number of occasions. The most plausible and probable explanation, on the probabilities, is that his affidavit account of hearing snoring was the result of having discussed that aspect of the matter with Ms Machan. 7. The evidence of Ms Machan of seeing jurors acting in a way that conveyed that they were being distracted by the trial judge falling asleep is not corroborated by what I consider to be reliable evidence given by trial counsel and Mr Stollery. Her account of hearing the trial judge snore was made a considerable time after the trial concluded. Her evidence as to the jurors being distracted by the trial judge was given for the first time many years after the event. Ms Machan's evidence on this latter point was very strongly refuted by the evidence of the legal representatives. Mr Greenwood's evidence, in particular, was that it was his practice in criminal trials to focus his attention upon the jury and that he did not see any member of the jury during the trial indicate or convey any reaction to the trial judge that was consistent with or indicative of distraction having been caused by the trial judge's conduct. 8. Having closely considered the evidence of Ms Adams SC, Ms McSpedden, Mr Greenwood SC, and Mr Stollery which, as I have stated, I accept as reliable evidence, I find that the jury were not distracted during the trial by the trial judge's conduct as Ms Machan stated in her affidavit. In so concluding, I consider that any smiling or signs of amusement by one or more jurors on one or more occasions during the trial on the probabilities arose by reason of humorous or amusing aspects of the sketch or sketches produced by the foreman of the jury during the trial as described in evidence by Mr Stollery.

Conclusion

1. I have concluded that the trial judge was not repeatedly asleep during the trial but that his Honour in fact exercised appropriate superintendence and control of the trial and conducted it according to law. In particular, I do not accept that the trial judge was snoring from time to time during the trial.
2. Whilst I accept that his Honour did close his eyes at various times during the trial and adopt a posture at such times as earlier described, on the evidence that was not inconsistent with him listening to and following the evidence. This is indicated by the trial judge's demonstrated ability and actions in responding appropriately to the evidence led at such times as and when required.
3. Whilst I accept that it is possible that the trial judge may on occasions have had momentary sleep episodes, on the evidence if they occurred they were not sufficient to establish that the trial judge "substantially failed to discharge" his duty of supervision and control of the trial process: see Cesan, supra, at [93]. That conclusion finds solid support in the evidence of trial counsel and that given by Mr Stollery. That evidence establishes that the trial judge in fact exercised supervision and control of what, on the evidence, was a vigorously contested trial of some complexity. The evidence establishes to my satisfaction that the superintendence of trial met the high standards expected of a trial judge such as to exclude the possibility of a miscarriage of justice due to his Honour's conduct.
4. It follows that I reject entirely the evidence adduced in the appellant's case to the effect that the jurors were distracted by the trial judge's alleged conduct. I find that no such distraction as alleged occurred.
5. Ground 1, in my opinion, is without merit and should be dismissed.
6. It follows that there is no basis for the contention in Ground 2 that the appellant's legal representatives failed in any way in their duty to raise the trial judge's conduct. Accordingly, that ground should, in my opinion, be dismissed.

Order

1. The order I propose is that the appeal be dismissed.
2. CAMPBELL J: I have had the great advantage of reading Hall J's judgment in draft. I agree with the orders proposed by his Honour for the reasons he gives. But I wish to add some additional reasons about three matters: first, the admissibility of Dr Dodwell's report; secondly, an additional reason for preferring the evidence of the four lawyers appearing in and instructing at the trial (whose affidavits were read) to the evidence of Ms Machan and Mr Duncan; and thirdly, another matter arising out of the evidence of Mr Stollery, one of the lawyers.

The admissibility of Dr Dodwell's report

1. Dr Dodwell's report does not purport to be a certificate of expert evidence under s 177 Evidence Act 1995 (NSW), but it was tendered as a business record of Health Quest under s 69. There is no question, as the Crown conceded, that the report was capable of forming part of its business records. The condition of admissibility set out in s 69(2)(b) is that the hearsay rule does not apply to a business record (so far as it contains a representation) if the representation, inter alia, was made on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had personal knowledge of the fact asserted in the representation. Section 69(2) needs to be read in the light of the requirements of s 69(1). These are, relevantly in the present context, first, that the report forms part of the records kept by Health Quest for the purpose of a business. This is clearly so having regard to the width of the definition contained in Cl 1 of Pt 2 of the Dictionary to the Act. Secondly, the document must contain a previous representation, inter alia, recorded in the document for the purpose of the business. Reading ss (1) and (2) together it is enough if a record of the business contains a representation, recorded for the purpose of the business provided the recorded representation was made on the basis of information even indirectly supplied by a person who might reasonably be supposed to have personal knowledge of the asserted fact. That person need not be in any way associated with the business, nor need he or she have acquired that personal knowledge for the purpose, or in the course, of the business.
2. Assuming relevance, matters of history and complaint of symptoms given by Judge Dodd to Dr Dodwell are admissible through Dr Dodwell's report because Judge Dodd may be supposed to have had personal knowledge of those matters. Dr Dodwell's findings on examination and professional opinion are likewise admissible because he has personal knowledge of them. Dr Dodwell's record of the opinions of Dr David Jankelson is also admissible by this means because: (a) Dr Dodwell's report forms part of the records belonging to Health Quest for the purpose of a business; (b) Dr Dodwell recorded as previous representations for the purpose of the business the opinions expressed by Dr Jankelson; and (c) those representations were based on information indirectly supplied by Dr Jankelson (by means of his reports) who might reasonably be supposed to have person knowledge of the facts asserted by his expressions of opinion.
3. Dr Jankelson's opinions include: the diagnosis of severe obstructive sleep apnoea made on 1st September 2004; the record made on1st June 2005 that the prescribed treatment was effective in controlling Judge Dodd's condition; and on 9th June 2005, "obstructive sleep apnoea is well controlled … Judge Dodd's [licence] has been suspended by the RTA while awaiting this data which objectively shows that he is compliant with therapy and treatment is effective". All of this is recorded in Dr Dodwell's report, which I have said is part of Health Quest's business records.
4. I think it fair to say that Dr Dodwell expresses no opinion as to diagnosis, but relies on Dr Jankelson's views. This follows from the summary of the opinions of Dr Jankelson derived from his reports that were in the possession of Dr Dodwell, and the contents of the first paragraph appearing under the heading "Conclusions" on page 3 of his report. In particular, Dr Dodwell there uses the phrase "on the evidence provided". The use of this phrase makes it clear that he is not expressing his own independently formed opinion about either the diagnosis or the fact that the condition is now well controlled by treatment.
5. Dr Dodwell, who is an occupational physician, expresses his own opinion about the development of a variable anxiety state as "an appropriate reaction to the very public exposure of [Judge Dodd's] health problems". He also expresses an opinion about Judge Dodd's fitness for work as at the date of his examination on 14th July 2005.
6. It is clear from this that there are, what might be referred to for present purposes as, matters of both primary fact and opinion contained in Dr Dodwell's report. The matters of primary fact arise from the narrative given by Judge Dodd as recorded by Dr Dodwell. The matters of opinion include both Dr Jankelson's opinions and Dr Dodwell's own opinions. The purely factual representations commence with Judge Dodd's awareness "during 2004" that he was tired, but being unaware of having fallen asleep on the bench. This matter, of course, post-dates Mr Duncan's trial in 2003. It is clear, however, that the judge's appreciation is wrong because when a complaint was lodged in June/July 2004 the judge saw his GP and was sent for tests which, Dr Jankelson said, demonstrated severe obstructive sleep apnoea. As Hall J says, it cannot be said from the history given by Judge Dodd that he had the same problem in 2003, but his unawareness of the problem at that time could possibly be relevant, because of the evidence from reliable witnesses that he did appear to be asleep at times during the trial.
7. Moving on to the matters of opinion. Again assuming relevance, the opinions of Dr Jankelson are admissible through Dr Dodwell for the reasons rehearsed. Expert opinion, of course, forms an exception to the exclusionary opinion rule created by s 76. Section 79 provides: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 a plurality of six justices of the High Court of Australia said (at 602 [31]): [The exclusionary opinion rule] does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which a tendering party will ask the tribunal of fact to make. Considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. (Emphasis added) (See also Honeysett v The Queen [2014] HCA 29; 88 ALJR 320 at [25])
8. As was made clear during argument (T 11.10 - .35), the fact in issue that the appellant asserts the opinion proves, or assists in proving, is that at the time of the trial in 2003, Judge Dodd suffered from obstructive sleep apnoea. If established, that fact, at least indirectly, could rationally affect the assessment of the probability that Judge Dodd fell asleep during Mr Duncan's trial. Clearly Dr Dodwell's own expressions of opinion cannot be relevant to that issue. He accepts Dr Jankelson's views about diagnosis without forming his own. And Dr Dodwell's opinion about Judge Dodd's fitness for the work of his Office in July 2005 is entirely incapable of rationally affecting, directly or indirectly, the assessment of the probability of Judge Dodd having fallen asleep at the trial at 2003.
9. Looking at the question of whether Dr Jankelson's opinion as recorded by Dr Dodwell in his report is capable of rationally affecting the assessment of the probability of Judge Dodd falling asleep during the trial, I am of the view it does not. The trial took place in February and March 2003. Dr Jankelson's opinion was expressed in September 2004, 18 months later. It is difficult to see how, without more, an expression of present opinion at that time would tend to prove Judge Dodd suffered from the condition in February and March of 2003. The reliable evidence that the judge appeared to be dozing at the trial in 2003, in my judgment, is not enough to constitute "something more". To approach the matter that way would invite irrational circuity of reasoning: the judge appeared to be dozing in February and March of 2003; in September 2004 he was diagnosed as suffering from obstructive sleep apnoea; if he was dozing in 2003 it must have been because he then had obstructive sleep apnoea; and if he had obstructive sleep apnoea in 2003, he must have been dozing during the trial. Expressed this way, it is easy to see that Dr Jankelson's opinion of September 2004 cannot rationally affect even indirectly the existence of a fact in issue in the proceedings. No presumption of continuity arises from proof, on the one hand, that Judge Dodd appeared to be dozing at the trial in 2003, and on the other, that he was diagnosed as suffering from obstructive sleep apnoea in September 2004. Moreover, as I have said, Judge Dodd himself says his problem commenced "during 2004". From the law reports, the Cesan trial occurred in May and June 2004.
10. The plurality in Hawchar pointed out (602 [32]): To be admissible under s79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based upon the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge". From the description of Dr Jankelson as a sleep physician, I would be prepared to infer that he has specialised knowledge based upon his training, study or experience as a specialist medical practitioner and that his opinion that Judge Dodd was suffering from severe sleep apnoea was wholly or substantially based upon that knowledge. However, as I have said, the difficulty is not expertise, but relevance.

The preferable evidence

1. I turn to the second matter. To Hall J's references to the judgment of French CJ in Cesan ([104] - [105]), I would wish to add some further references. At 390 [105] Gummow J said: The superintendence of the trial by the trial judge required him to ensure that the jury was not distracted from paying full attention. The evidence which was accepted by the Court of Criminal Appeal showed both that the jury was distracted from paying attention to all of the evidence and that the very source of the distraction was the sleeping judge. At 393 [118] - [120] Hayne, Crennan and Keifel JJ said: As noted earlier in these reasons, in considering whether there was a miscarriage of justice at the trial, attention must focus upon the respect or respects in which it is said that there was some departure from the proper conduct of the trial, rather than upon the cause of the departure. That is why, in the present cases, to focus only upon the fact that the trial judge fell asleep during some parts of the trial diverts attention from identifying whether there was some miscarriage. 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. Ensuring that the jury is not distracted from paying full attention to its task is pre-eminently a matter for the trial judge. If trial counsel is concerned that members of the jury cannot give, or are not giving, proper attention during the trial, it will be for counsel to raise that issue with the trial judge. Ordinarily, if the trial judge does not act of his or her own motion, and if trial counsel says nothing, an appellate court will not later be able to conclude that the jury did not pay attention to the evidence that was led. In particular, proffering the opinion of one or more observers about whether the jury appeared to be paying attention to proceedings would not ordinarily suffice to show that there has been a miscarriage of justice. The absence of intervention by the trial judge will usually far outweigh the value of any opinion offered by some observer after the trial is over.
2. It is plain on the evidence in this case that Ms Machan and Mr Perre raised complaints during the trial with counsel briefed to appear on behalf of both accused. This is a very significant matter. And, it having been raised with them, counsel for both accused were vigilant in assessing whether the judge was discharging his duty of superintending the trial, and also whether the jury were paying attention to all of the evidence. I agree with Hall J's analysis of the evidence, and with his preference for the evidence of Ms Adams SC, Ms McSpedden, Mr Greenwood SC and Mr Stollery. That experienced counsel said nothing, having been alerted to the concern of Ms Machan and Mr Perre, makes it impossible to conclude that the jury were not paying full attention to the evidence that was being lead: Cesan [120]. The contrary impression of Ms Machan and Mr Perre is insufficient to displace this.
3. I wish to record my agreement with the views expressed by Hall J at [165] - [166] that Ms Machan inadvertently influenced the appellant in the account he gave. At the same time, I wish to say that I was very impressed with Ms Machan's manner whilst giving evidence. She was obviously honest and sincere in recounting her impressions. I formed the view that she was well motivated, had made Mr Duncan's case her cause and was concerned only to see justice done. But for the reasons given by Hall J, I have formed the view that there was no miscarriage of justice at the trial. The focus must be upon the respect, or respects, in which it was said that there was some departure from the proper conduct of the trial: Cesan at [118] by Hayne, Crennan and Keifel JJ. For the reasons given by Hall J I am satisfied that there was no departure from the proper conduct of the trial by reason of the jury not paying full attention to the evidence because they were distracted for significant periods by the judge sleeping. I agree with the conclusions and findings expressed by Hall J at [199] - [203] of his Honour's judgment. I am not persuaded on the balance of probabilities that Judge Dodd did fall asleep during the trial, even accepting the possibility discussed by Hall J at [202].

Mr Stollery's evidence - foreman sketching

1. I turn to the third and final matter. As is evident from each of the separate judgments in Cesan, distraction of the jury from paying full attention to all of the evidence is the critical consideration in deciding whether the conduct of a trial judge has led to a fundamental departure from the standards that must be observed in criminal trials. Bearing this in mind, Mr Stollery's evidence about the reaction of some jurors to the artistry of the foreperson could be of some concern: the critical question is whether there has been a departure from the proper conduct of the trial, rather than its cause. If a jury was distracted by the artistic efforts of its foreperson and a trial judge failed to correct them, a miscarriage of justice could occur.
2. Mr Stollery's evidence is set out by Hall J at [184] to [195]. In addition to the references given by Hall J, I wish to include the cross-examination about his evidence that "on numerous occasions during the trial, I observed members of the jury glancing in the direction of the foreman … he was sketching [and] some of the jurors on a number of occasions appeared to be very amused by what they observed" (second affidavit [6]). The cross-examination elicited the following evidence: Q. I just want to ask you a couple of final areas if I can, in your most recent statement 29 January you said this at paragraph 6; "On numerous occasions during the trial I observed members of the jury glancing in the direction of the foreman. From time to time the hand movements of the foreman suggested to me that he was sketching some of the jurors on a number of occasions appeared to be very amused by what they observed." It was during this period of time that you made these observations, are you able to tell their Honours when in the course of the evidence that that was that was being led in the trial? A. No. Q. Are you able to give any specific reference to the transcript that has been provided to the court as to those specific occasions when you observed this occurring? A. No, I couldn't do that. Q. Are you able to at least shed some light in relation to who was giving evidence at that time when these particular observations of you and the jury were being made? A. No, it was no more fleeting that (SIL than) observing jurors when they walk into court sometimes smiling or laughing or talking to each other. Q. But these were your words "On numerous occasions during the trial"? A. Yes on numerous occasions I observed them appearing to be a very good humoured jury. Q. I'm not asking that, I'm asking your observations about the foreman and his drawing and the jury's interaction with that. How many occasions did you observe that occur during the course of the trial please Mr Stollery? A. I couldn't say exactly. Q. Are we talking ten, less, more? A. I couldn't say with any certainty.
3. Reading Mr Stollery's evidence as a whole, including the passage I have just quoted, I am not satisfied that it establishes that the jury were in fact distracted from paying attention to all of the evidence by their forepersons sketching. I interpolate that the description of the drawing of the "Exhibits Table" suggests to me that his sketching was a form of note taking. One needs to read the whole of this evidence to provide context to the passage of cross-examination I have just recounted. The amusement of the jurors described by Mr Stollery was "fleeting". At its highest this evidence suggests occasional periods of diversion, not substantial distraction.
4. I make these observations for completeness sake. This matter was not a ground of appeal; it is not "a respect in which it is said there was some departure from the proper conduct of the trial": Cesan [118]. It formed no part of the argument made on behalf of the appellant that there had been a substantial miscarriage of justice. It may therefore be put entirely to one side.

Ground 2

1. I agree with Hall J that as Ground 1 has not been made out, Ground 2 must fail. I wish to record, however, that agreeing as I do with Hall J, the acceptable evidence, as I have already remarked, demonstrates that counsel were vigilant in their duty to assist the judge in the proper conduct of the trial according to law.
2. Since writing these reasons I have had the benefit of considering Simpson J's judgment in draft with which I am in general agreement. Obviously, there are some differences between us about the application of s 79 Evidence Act 1995. Those differences are not material to the result.
3. With respect, I wish to express my complete agreement with what her Honour has written at [77] - [93].

Amendments 21 May 2015 - Amended to correct cross-referenced paragraph numbers. 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: 21 May 2015