Robert Minniti v R

JUDGMENT 1The applicant, Robert Minniti, was convicted by a jury on 2 December 2004 on a charge of attempting to possess not less than a commercial quantity of methylenedioxymethamphetamine (MDMA) that had been imported into Australia on 4 October 2003. 2The applicant was sentenced on 17 March 2005 by the trial judge, Dodd DCJ, to a non parole period of eight (8) years, with a head sentence of twelve (12) years. 3The applicant appealed against his conviction and sentence. That appeal was dismissed on 20 February 2006 : Robert Minniti v R [2006] NSWCCA 30. Whilst I was a member of that Bench and joined in the orders that were made, the present application relies upon a ground that was not argued for the purposes of the appeal. 4The applicant seeks an order under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (the Act) referring the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The basis for the application arises out of the contents of a number of affidavits, which collectively assert that the trial judge and some members of the jury were asleep at various times during the trial. It is submitted that this evidence suggests that there was a significant departure from the proper conduct of the trial, in that the trial judge's supervision of the trial and the jury's attention to the evidence were inadequate. 5The Court can only refer the case "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" : s 79(2) of the Act. The inquiry is not a judicial act, but an administrative function : Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]. 6It is necessary to briefly refer to the Crown case at trial and the nature of the issues that were joined between the parties. 7On 4 October 2003 a large piece of farm equipment was imported into Sydney from Belgium. A very large quantity of tablets were secreted within the machinery. On examination by Customs the tablets were found to contain 3-4 Methylenedioxymethamphetamine also known as MDMA or ecstasy. 8On 9 October 2003, a Dutch national named Rutten entered Australia to supervise the distribution of the tablets. Later that month, two Belgian nationals came to Australia, removed the tablets from the machinery and provided them to the Rutten. 9Rutten took the tablets to a city apartment. Rutten and the Belgian nationals were arrested on 1 November 2003 by Federal police agents. On the same day, a Mr Vermes borrowed a white VW transporter with Victorian registration plates. 10Police substituted the ecstasy tablets in one of the containers with a large quantity of an inert substance. The police also took the Toyota vehicle which had been used by Rutten in Sydney and parked it in Goulburn Street at the intersection of George Street. The bag containing the inert substance was placed inside the vehicle. 11Rutten agreed to assist the police. He made a phone call to a man whose number had been provided to him by his European contact. On 2 November 2003 Rutten travelled to the corner of George and Goulburn Streets in possession of a covert recording device. Federal police kept Rutten under surveillance. 12Later that afternoon, Rutten met Vermes at a cafe at that location. Rutten recognized Vermes' voice from a telephone conversation the previous night. After some conversation they left the cafe together and headed towards the Toyota parked in Goulburn Street. They were joined en route by the applicant. 13At the vehicle, Rutten took out the bag the police had placed there and all three men retraced their steps back to the corner of George Street and Goulburn Street. Along the way, the applicant took over possession of the bag from Rutten. The applicant then left Rutten and Vermes at the intersection and took the bag from that location to Rawson Place, further south of George Street near Central Railway. On the way the applicant met up again with Vermes and another man who was standing in the street. All three kept walking south. The applicant left Vermes and the other man at the intersection of George Street and Rawson Place and proceeded along Rawson Place towards Pitt St. 14The Victorian VW was parked in Rawson Place. The applicant took the bag to an alcove near the vehicle and was then told to stop by a Federal police agent. The applicant left the bag and ran along Rawson Place away from George Street. He was apprehended by a number of Federal police agents. The bag was recovered and the applicant was found to have the keys to the VW vehicle in his pocket. 15Following retrieval of the recording device from Rutten later that day, a conversation between Vermes, Rutten and the applicant contained references by the applicant to walking back to the car with the bag "like normal fucking ... normal tourists." 16The applicant's case at trial was that he knew nothing about the contents of the bag. Upon his arrest, he exercised his right to silence. It was suggested to a number of police witnesses in the course of the trial that the applicant had not run from the police. The applicant's senior counsel submitted to the jury that at least one police witness had fabricated his account of the chase in that regard. The applicant did not give evidence and did not call any witnesses. 17Proof of the applicant's knowledge of the contents of the bag was circumstantial. The Crown relied upon the fact that the applicant and Vermes were at the relevant location together to meet Rutten, that the applicant took a very heavy bag, walked towards Central, was in possession of the keys to the vehicle, ran from police when they identified themselves and that the conversation recorded prior to his arrest was consistent with a plan to collect drugs whilst appearing to be tourists. 18The jury obviously drew the conclusion, beyond reasonable doubt, that there was no reasonable explanation on all of the evidence other than that the applicant was aware that the bag contained an illicit drug. Antecedent to that conclusion, it was necessary for the jury to find as a fact that the applicant ran from the police and that his "flight" evidenced a consciousness of guilt. In addition, the jury must have accepted the reliability of the tape recording and that the applicant's words disclosed a concerted effort to appear unobtrusive. 19The applicant has been represented throughout his trial, the Court of Criminal Appeal proceedings and in the lodgement of this application by the same solicitor. This factor assumes some significance for the purposes of determining whether the contents of the affidavits give rise to a sense of disquiet or unease in allowing the conviction to stand. 20As the affidavit evidence demonstrates, the applicant and members of his family complained to senior counsel at trial that the trial judge appeared to be sleeping for periods of time of up to 20 minutes. Up to three jurors were also observed to "nod off" during the trial. It is said that the applicant's legal representatives told the applicant that there was no legal redress available to him. 21About one month after the applicant was sentenced, the applicant's solicitor received an email from one of the applicant's supporters at the trial. In that email, which is annexed to the solicitor's affidavit of 24 June 2010, the author confirmed that the judge and a juror were asleep during the trial and that the applicant's family were of the opinion that the applicant did not get a fair trial. 22The solicitor responded by email on 2 May 2005, in part in the following terms :- "once we are in a position to prepare the grounds of appeal, I have no doubt that [counsel] will be keen to take every point and if he feels there is any mileage to be made out of the judge's attentiveness during the trial then by all means it will be made. Further I believe the shadow that this matter has cast over all the trials the judge has conducted will be something we can use in the appeal." 23Nine months elapsed between this email exchange and the hearing of the appeal. Different senior counsel appeared for the applicant on the hearing of the appeal. The applicant maintains that he and members of his family again raised this issue with counsel before the hearing of the appeal, but were told that it was not a viable ground of appeal. The applicant's solicitor confirms that he received the same advice from counsel. 24Six months after the applicant's trial, the applicant made a complaint to the Judicial Commission, consistent with the evidence that is now produced, to the extent that it was asserted that the trial judge slept from time to time. That complaint was not ultimately the subject of a hearing in the Conduct Division because of the retirement of the judge in late July 2005. 25Following the High Court's decision in Cesan v The Queen ; Mas Rivadavia v The Queen [2008] HCA 52 on 6 November 2008, the applicant and members of his family provided the affidavits (in December 2008) that are the basis of this application. All of those affidavits annex statutory declarations that were originally prepared in January 2007. The affidavit of the applicant's solicitor however was not prepared until June 2010 in response to the Crown's submissions on the application. 26I turn to the affidavits. 27The applicant's affidavit indicates that the applicant saw the trial judge "sleeping on many occasions throughout my entire trial proceedings. At times it was blatantly obvious that he was sleeping as his head fell forward and his reading glasses slid down towards the end of his nose and we could hear him snore." 28An affidavit sworn by Josie Minniti indicates that she witnessed the trial judge "fall asleep several times during the court case" and that the trial judge "would occasionally sit back in his chair, close his eyes and what appeared to be snoring." 29The affidavit of Giuseppe Minniti indicates that throughout the applicant's trial he saw the trial judge "close his eyes and what appeared to be him falling asleep." Mr Minniti also saw one member of the jury fall asleep, in that "she closed her eyes and appeared to have lost interest in the case and fell asleep". 30Teresa Minniti refers in her affidavit to the trial judge "closing his eyes, and appeared to be falling asleep on numerous occasions" and that this occurred "when important evidence was being given." 31Ms Christine Minniti says that she saw the trial judge "fall asleep throughout the trial". 32The applicant's partner, Kim Powell, says in her affidavit that she saw the trial judge "sleep for short and long periods of time". Ms Powell recalls one occasion when the trial judge slept throughout the whole of senior counsel's closing address which lasted, according to her estimate, for two hours. Ms Powell also saw three jurors "nodding off". 33Ms Angela Perrone says in her affidavit that she saw the trial judge falling asleep, in that "when he nodded off his glasses would slide to the end of his nose and his head would recline forward. At times he would nod off for short periods of five to 10 minutes and other times 20 minute intervals. I once even heard him snore." Ms Perrone also refers to one of the jury habitually falling asleep. 34Mr Anthony Ozzimo says in his affidavit that he saw the trial judge "falling asleep every day for up to 20 minutes at a time." He also saw "various jury members having naps and not paying attention during the trial." 35The applicant's mother says in her affidavit that she saw the trial judge asleep "on numerous occasions". She remembers certain characteristics, including "when he fell asleep he had a pen in his hand that would fall when he'd sleep. Glasses he was wearing would slide down his nose when his head would lower, he would awaken and fix them to their proper position. He would also rest his head in the palm of his hand and when he fell into a deep sleep his head would fall down. [The judge] would also bang his hands on the bench from awakening." Mrs Minniti said that she saw a number of jurors asleep. 36The applicant's father says in his affidavit that he saw the trial judge "lean back in his chair with his head resting on the back of the seat sleeping." 37Antonella Ozzimo, the applicant's sister, says in her affidavit that she saw the trial judge "on various occasions falling asleep at the bench." She also saw "various members of the jury falling asleep during the trial." 38Gino Perrone says in his affidavit that the trial judge was "sleeping or nodding off on many occasions." He indicates that the judge would fall asleep for five or 10 minutes "and snore loudly". Mr Perrone also describes the trial judge adjusting "his glasses towards the bottom of his nose as a decoy for his eyes closing and entering in a sleeping pattern." 39The affidavit of Gregory Goold, the applicant's solicitor during the trial, confirms that various members of the applicant's family were present during the trial and that, from time to time, members of the applicant's family approached him during breaks in the proceedings and at the end of the day's proceedings, in order to bring to his attention their observations of the trial judge's behaviour. Mr Goold responded on one occasion "well I saw him with his eyes closed but don't know whether he was sleeping or not." Mr Goold goes on to say that he brought these matters to the attention of the applicant's senior counsel. Mr Goold says that he remembers "from time to time looking at the judge and noticing that he had his eyes closed and was leaning back in his chair. For a majority of the time however my gaze was either directed at witnesses giving evidence or I was taking notes of the proceedings." Mr Goold raised the matter with senior counsel at the end of the trial in response to further complaints from members of the applicant's family and from the applicant himself. According to Mr Goold, senior counsel "indicated that he was unsure what could be done about this situation." 40Mr Goold's affidavit also confirms that the applicant's supporters were seated throughout the trial behind a glass wall separating the public gallery from the courtroom. Mr Goold maintains that he also sat there on occasions during the trial and that his hearing was not impeded by the glass wall. 41In summary, the evidence that emerges from the affidavits is:-