The Charter vs sleep

The High Court has granted special leave in the sleepy judge case. That was a no-brainer, although not a certainty.

For those who’ve been asleep for the last year, the case involves two accused – and, for now, convicted – drug smugglers who had the bad fortune of being linked to several parcels of ecstasy via a complex web of business records and covert telephone recordings. They also had what is likely to be the very good fortune of drawing District Court Judge Ian Dodd as their trial judge. He had terrible sleep apnea, which meant that he barely got any sleep at all at night. So, it seems, he caught up during the day, especially during the boring moments in the trial whenever everyone listened to tapes of telephone buggings or one of the defendants was cross-examined:

When I was giving my evidence I was facing the bar table and the jury and the judge was behind me. At times during the prosecutor’s cross-examination I heard a deep rumbling noise come from behind me. At first I was not sure what it was and then I realised that it was snoring. It became louder and I realised that some of the other people in the Court and the jury appeared to have noticed and were looking at the judge and not me or the prosecutor. Some of the jury looked surprised and others were smiling. When I first heard the noise it was quite soft and not particularly distracting but as it became louder and other people appeared to notice I found it very disruptive and it made it hard to concentrate on the questions. I did not really know what to do about this and I did my best to just try to concentrate on the questions and my answers. At one point, when the snoring was at its loudest, the prosecutor appeared to stop asking questions and I turned to the associate who shrugged her shoulders. I looked back and then I heard a loud banging noise behind me and I turned to look back and saw the judge looking up startled. The questioning continued and after maybe ten minutes I heard the snoring noise again. This happened a number of times whilst I was giving my evidence.

Or so one of the accused swore to the NSW Court of Criminal Appeal, a story matched by several of their friends and family watching the trial. When this phenomenon was raised with their solicitor, he told them that it wasn’t a one-off problem, but it was best not to annoy – or was that wake? – Judge Dodd. Even the prosecutor conceded there were times when he ‘appeared’ to be asleep.

Wendy Abraham, in-house senior counsel for the Commonwealth DPP was quite the model litigant in her response to these tales: she argued that all of these complaints weren’t ‘fresh evidence’ (meaning the appeal court had to disregard them) and, indeed, that the arguments they raised infringed rules against inquiring into the jury’s deliberations. Moreover, she submitted, one of the defendants had waived his right to complain, because his grovelling pre-sentencing note to the judge began: “I would like to take this opportunity to thank you for what was a very fair trial…” And, finally, she argued that there was nothing wrong with a sleeping judge anyway, so long as he didn’t make any wrong decisions in his sleep. Apparently, she said all of this with a straight face.

And, believe it or not, two judges of the NSW Court of Criminal Appeal went along with most of it. Justice Michael Grove wrote that the defendant’s note (thought to be an admission of his guilt) was ‘not… insignificant’, nor was the fact that three lawyers  ‘remain[ed].. mute’ while the judge allegedly snored. The defendants’ minimal rights to a properly constituted court were satisfied by the judge’s mere physical presence, not his mental presence.  Judges shouldn’t be judged by their conduct, but rather by the effect of their conduct and the defendants couldn’t point to any errors that were actually made (and all that stuff about the jury laughing and pretending to be asleep themselves wasn’t of concern.) Justice Rod Howie roused himself briefly to say that he agreed with Grove J. And that was that. Not exactly a highpoint in the NSW Court of Criminal Appeal’s recent history, which is saying a lot. Judgments of this quality certainly support the crown’s argument that there’s no great harm  to justice when a judge nods off.

Alas for the crown, the third judge on the appellate bench was Justice John Basten, who delivered a lengthy and wide-awake dissent. He argued that a court led by an unconscious judge isn’t a court at all and, moreover, the risk that the jury was distracted or diminished by the judge’s example was a miscarriage of justice, one that no ‘proviso’ could magic away. He also found that the trial failed a boilerplate provision in NSW’s District Court Act:

All civil and criminal proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act and the Jury Act 1977 , be heard and disposed of before a Judge, who shall constitute the Court.

Indeed, he all but endorsed the defendants’ ambitious argument that their federal trial was actually unconstitutional thanks to the Constitution’s right to trial  by jury, which arguably requires a jury supervised – in an active way – by a judge.

Victorian criminal defendants these days would have an (even) easier time making such arguments, because of the crystal clear terms of Charter s. 24(1):

24 (1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Or would they? Readers of this blog well know the problem: the Charter’s conduct mandate doesn’t apply to courts in their non-adminstrative functions. On the other hand, it does seem to be a bit of a stretch to say the Judge Dodd was exercising a judicial function in his sleep. An alternative would be to say that he was not exercising a function at all. Or maybe he was administrating?

Even if you get past that problem, there’s a further difficulty, buried within the exceptions to the conduct mandate:

38(3) This section does not apply to an act or decision of a private nature.

What could be more private than sleeping? Actually, I can think of some things, which trial judges have also been known to get up to in open court. I guess Grove J would say that Judge Donald Thompson‘s trials were still fair, given his physical presence, albeit with penis pump accompanient.

Fortunately, the conduct mandate isn’t necessary. Like in NSW, there are a number of Victorian provisions – in the Supreme Court and the County Court – which might be amenable to ‘re-interpretation’ to require that the mere physical presence of a judge is not enough. Assuming, that is, that such an interpretation is consistent with those provisions’ purpose. As well, as I argued recently, the conduct mandate isn’t necessary, although Victorian defendants who are tried by snoozing judges will have to wait until their appeal for an opportunity to raise the Charter. The High Court in hearing the NSW case will have to apply their ‘read that statute, then decide‘ test; presumably, if they manage to stay awake, they’ll conclude that there was a miscarriage of justice, although who knows how they’ll apply the proviso?  Justice Kirby – but presumably none of the other judges – will doubtless take the opportunity to ditch Weiss when it comes to federal constituitonal cases, although he’ll probably take up Justice Basten’s approach too. It’s hard to see, though, how the High Court using its current methodology will be in a position to declare that trial by sleeping judge is never acceptable in any Australian jurisdiction. So, the Charter may make a difference to Victoria’s judges after all.

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