Once upon a midnight dreary, while I pondered, weak and weary,
Over many a quaint and curious volume of forgotten [law]–
While I nodded, nearly napping, suddenly there came a tapping,
As of some one gently rapping, rapping at my chamber door.
“‘Tis some visitor,” I muttered, “tapping at my chamber door–
Only this, and nothing more.”
Actually, it was Judge Dodd’s aides loudly dropping those law booksto wake him up during a deadly dull drug trial. On Thursday, the High Court added another short volume. At last, we are blessed with the reasons for judgment in Cesan v The Queen; Mas Rivadavia v The Queen  HCA 52. The problem of sleeping judges raises two great questions and one silly one:
First, how can you tell if a judge is asleep? Recently, Refshauge J of the ACT Supreme Court had to determine whether he had nodded off during a deeply-dull-sounding matter about tracing improperly transferred Commonwealth funds. Allan Endresz, one of the matter’s twenty-nine defendants, having heard about the High Court allowing Cesan’s appeal, started claiming that Refshauge was occassionally driftig off during the triall. The judge told Endresz that his argument would be stronger if he pointed it out when it happened. Andresz didn’t quite comply, with his next allegation and the alleged nap being separated by a lunch break. However, matters came to a head when Edresz produced one of his employees who had been sitting in the gallery with a notebook. TTime pressures meant that Refshauge himself had to rule on whether he had been asleep at the times noted, which he noticed was as silly (and common) as a judge ruling on whether she or he was biased. He resolved the issue by considering the evidence: that no-one noticed any snoring; that Endresz’s main evidence (a fake objection to test the judge’s wakefulness that received a slow response) was inconclusive; that other counsel disagreed with Endresz’s observations; that Refshauge didn’t recall being asleep; that his notes showed no signs of ‘squiggles’; and that the tape recording of the incident was both familiar to him and appeared to catch him coughing. Mystery solved. Refshauge ruled that he had his eyes shut to concentrate and would be cautious about his demeanour in future.
The factualy mystery was less happily resolved in Ceasan’s case. Although the defendants raised Judge Dodd’s snoozes with their counsel, he advised them that they were better off with Dodd than 85% of the NSW judiciary. (French CJ concluded that this wasn’t a reference to the judciary’s sleepiness, but rather their pro-prosecution bias. What a relief!) But they did offer a slew of affidavits from themselves and their supporters on appeal. Conveniently for them, the majority of the NSWCCA (presumably part of the 85%) were so certain that sleepiness was no injustice that they glibly accepted the evidence that Dodd was napping and the ensuring circumstances (presumably assisted by medical evidence about Dodd.) So, facts weren’t the problem in the High Court.
Second, is a sleeping judge a miscarriage of justice? This is the question the NSWCCA came a cropper on, with the majority holding that the judge’s mere physical presence (unaccompanied by actual consciousness) was enough, at least if the judge wasn’t required to make any legal rulings while napping. The High Court overruled that, but on two quite different grounds. The majority focused exclusively on evidence that the jury was distracted by the judge’s napping. Cesan’s sister said:
During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appeared to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury’s behaviour when the judge was asleep.
Others testified that jurors joked, and jurors and officials slept while Dodd nodded. The majority held that such conduct was at odds with a proper trial. Trial judges had better be careful not to trigger a wave of yawns in future trials.
The new Chief Justice Robert French took a bolder view, holding that the jury’s conduct was mere evidence of a deeper problem causeed by the judge’s behaviour:
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 problem, French held, is the appearance of justice. Without that appearance, there might be miscarriage of justice. Refshauge better keep his eyes wide open in futere.
French held that the absence of complaint by counsel wasn’t determinative, given the amount of sleep proven and the evidence of jury distraction:
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.
Alas, the other four Howard appointees and Gummow didn’ even mention French’s approach. Interesting politics, there. Perhaps they couldn’t stomach the fact that French cited a European Court of Human Rights judgment on the right to a fair hearing for his ‘appearance of justice approach.’ More likely, they were probably pissed off that French spent much of his judgment defining the term ‘miscarriage of justice’, contrary to the Gleeson court’s approach to interpreting appeal statutes, where century-old terms have been belatedly deemed undefinable and definitions are regarded as inappropriate and irrelevant judicial glosses.
And, now, the silly question: should the defendants get a new trial? All Australian appeal statutes permit appeal courts to dismiss appeals if there was no ‘substantial’ miscarriage of justice. French had no problem with this question:
[T]his is a case in which the miscarriage of justice was substantial because it created the appearance of injustice which could not be cured by the Court of Criminal Appeal forming the opinion that a reasonable jury would have convicted the appellants in any event.
But the majority had a harder time, because they subscribe to the idea that the term ‘substantial miscarriage of justice’ is also undefinable and therefore that appeal courts are tasked with objectively assessing whether the defendant was guilty on the evidence:
The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.
This test effectively means that defendants who didn’t get a fair hearing must always surmount the obstacle of a paper hearing by appeal judges if they want a remedy. This barrier is highly susceptible to appeal judges’ own prejudices about whether or not a particular flaw in a trial is a mere technicality and whether or not the evidence can be assessed despite the ‘natural limitations’ of appellate work. Typically, rape defendants do well and others do badly. To see what I mean, compare this case (where a rape defendant’s appeal was allowed due to the admission of similar fact evidence without any consideration of the proviso) and this case, decided shortly after (where a child porn defendant’s appeal was dismissed despite the admission of similar fact evidence because of the proviso.)
As I’ve argued earlier, I think this non-masterpiece of High Court reasoning is ripe for re-interpretation under the Charer’s interpretation mandate. One relevant right is this one:
25(4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.
Can it really be said that the High Court’s ‘decide for yourself’ ‘objective’ test is one that matches the rule of law considerations required by Charter s. 25(4)? Is the Charter really satisfied by an appeal rule which appears to be determined by what side of the bed a majority of the judges happened to get out of that day?
Anyway, the majority, having allowed Cesan’s and Mas Rivadavia’s appeals on the day of the hearing needed to say why. This was painful for them, as doubtless they regarded the defendants as lucky benficiaries of a technicality and guity like all other drug smugglers. Alas:
In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty.
As Don Mathias points out in his blog, it’s not clear why the distraction of a sleeping judge is somehow different to the more traditional distraction of wrongly admitted prejudicial evidence (which, in Weiss, was somehow consistent with taking account of the jury’s guilty verdict made in light of the wrong admission of irrelevant evidence that the defendant had been having sex with a fourteen year-old.)
Fortunately, the High Court also rejected a key consideration in the NSWCCA (ridiculous pressed by Abraham at the special leave hearing):
Finally, some weight was given by the majority in the Court of Criminal Appeal to a letter written by Mr Cesan to the trial judge after the jury had returned a guilty verdict and before sentence was passed. The majority in the Court of Criminal Appeal considered that, in the letter, he admitted his guilt of the offence charged. The letter was written for the evident purpose of mitigating the sentence that was then to be passed upon Mr Cesan. To do other than accept the jury’s verdict would have aggravated the sentence. No weight can be attached to what was said in the letter in deciding whether there was no substantial miscarriage of justice.
Thank god for that, though what it means for pleas in mitigation of this sort is unclear. Interesting that the High Court is comfortable with a continued claim of innocence being an aggravating factor at sentence.
So, how did the High Court resolve whether or not there was a substantial miscarriage of justice in the end?:
Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty.
The mystery is why this conclusion doesn’t follow in virtually every appeal case. Wouldn’t it be more appropriate for the High Court, instead of eschewing ‘tests’ all the time, to simply develop a jurisprudence of what is and isn’t a substantial miscarriage of justice, by identifying categories of errors that are too fundamental to ignore? Arguably, Chater s. 25(4) means that Victorian courts, applying the interpretation mandate, should ditch all this nonsense and do the job themselves. French’s ruling in this case would be a good place to start.