Sleepers wake!

The first decision from the French Court! Yes, already. And it’s a doozy. The court has issued orders, with reasons to follow, allowing the appeals of Messrs Cesan and Rivadavia, the pair who had the good luck of being convicted by a jury under the ‘supervision’ of Judge Dodd, who nodded off for parts of the proceedings. Each of them have had their convictions quashed and will get a new trial.

Obviously, there are no reasons yet. But the transcript shows that:

  • The Court made its decision based on standard ‘miscarriage of justice’ grounds. The Court said from the outset (in a development that must have chilled Wendy Abraham SC, Counsel for the DPP) that the parties should leave out the grounds based on s. 80 of the Constitution.
  • The Court seemed unimpressed with the majority of the NSW Court of Criminal Appeal’s view that only a judge’s ‘acts’ or ‘omissions’ can constitute a miscarriage of justice; rather, it focused on dissenting Justice Basten’s view that distraction of the jury is itself a matter of great concern.
  • The Court appears to be contemplating treating the judge’s sleepiness as a procedural irregularty that precludes the operation of the ‘proviso’ (which would otherwise allow the court to consider whether the evidence, arguably including a post-verdict note to the judge from one of the defendants, was so overwhelming that the guilty verdicts couldn’t be a miscarriage of justice); in particular, the court was skeptical about how you could measure which parts of a trial matter or how you could take account of the actual guilty verict in these circumstances.
  • The Court was unimpressed by the DPP’s arguments that there was sharp conduct by the defendants or their counsel in not raising the issue at trial (much less by Abraham’s insane fresh evidence point.) Indeed, Abraham herself conceded that NSW court rules do not oblige counsel to raise the sleepiness of the judge (or risk denial of leave to raise the ground on appeal).

There was no reference to a ‘majority’ of the Court making the orders, so it sounds like it’s unanimous.

Obviously, I’ll have more on this case and its relevance to Charter s. 24 when the reasons for judgment come out. But, while I’m here, let me gripe about one thing: this is a six-judge judgment. Justice Kirby is not involved. Presumably, the reason for that is that Kirby is due to retire in March 2009 and so, conceivably, the judgment might not have been brought down by then. Likewise, today’s judgment in the NSW Crime Commission case was also a six-judge judgment, with Gleeson not involved in the original hearing because of his pending retirement (three days before the judgment came out, but presumably well after the drafts were all finalised). This drop to six judges is something that happens for a four or five month period every single time a High Court judge retires.

[EDIT: Inchoate notes a past practice of the Court to delay the listing of seven-judge cases in this circumstance. But that clearly didn’t happen with these two cases, doubtless because the delay would have to be until after Kirby J goes too. These days, with listing times much shorter than in the past – due, I think, to a dip in special leave grants about a year back – it would be quite a pain to delay sittings even when there aren’t back-to-back retirements. For example, I understand that the coming ICE appeal – presumably what would usually be a seven-judge matter – will be heard in less than two months after special leave was granted. Kirby J, presumably, won’t be sitting, but his successor won’t be there either.]

Now, as it happens, all we’ve missed out on on these two occasions is the respective reasons (if there were any separate ones) of Gleeson and Kirby. But it could have been much worse, if the Court in these two cases had been evenly split. Then Gummow ACJ would have carried the day in the first case and French CJ would have carried the day in the second.

[EDIT: Oops. No it wouldn’t. Inchoate has thankfully noticed my sloppy failure to check the relevant provision of the Judiciary Act:

23(2) [W]hen the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority; but if the Court is equally divided in opinion:

(a) in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of a Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed; and

(b) in any other case, the opinion of the Chief Justice, or if he or she is absent the opinion of the Senior Justice present, shall prevail.

The ‘senior judge’ rule only applies when the Court is exercising original jurisdiction (and, then, not when it is reviewing another court.) Otherwise, the appeal simply fails. So, in both these cases, a 3-3 split would have preserved the NSWCCA decisions that the High Court unanimously reversed. Still, my point remains.]

And I think the whole thing is unnecessary. While I guess there is a constitutional bar on a judge joining an order (and, slightly less clearly, issuing reasons for judgment) after they have retired (or been forced to retire), it seems to me that an appropriate solution would be to appoint the incoming judge four or five months early, to allow the new judge to sit when the old one would have, thus ensuring that all full court judgments continue to be seven-judge judgments.

It seems to me that there’s two reasons why this doesn’t happen: (1) there may be some difficult questions of protocol if, say, Gleeson and French held their appointments simultaneously; though French could always have been appointed as a non-Chief, pending Gleeson’s retirement. (2) there’d be a doubling up of judicial pay. I don’t think either of these reasons are worth the cost of having judgments of lesser precedential value on important issues every single time one of the seven judges approaches retirement.

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