1. 27. The sentencing of an offender is seldom, if ever, an easy task. It was certainly not in this case. Obviously if the criminal justice system is to function effectively and fairly and not itself to be productive of injustice, the sentencing of offenders should never be permitted to become a mechanical process that pays little regard to the complexities of human behaviours, capacities, circumstances and motivations or fails to recognize that sentencing is directed to the attainment of a variety of social objectives not all of which can be seen to be compatible in a given situation. It is inherent, in the very nature of this task, that sentences effect balances between the sometimes competing values and objectives of the criminal law and inevitable that there will be occasions upon which the members of an appellate court would have arrived at a different conclusion. The authorities make clear that the mere existence of such a different view does not justify appellate intervention. That can only occur where error is manifest. Per Vincent JA in DPP (Vic) v Green [2008] VSCA 36, VSC (CA) 6 March 2008.

2. 3. … I have researched the matter and can find no instance in the history of the Court in which a jury trial has been heard to completion in Melbourne and then the plea and sentence remitted to the regional city of origin. I think the principles of regularity and of unity of proceedings require that the balance of these proceedings remain in Melbourne. Accordingly I so direct.

4. Unfortunately something else needs be said. Yesterday in submissions, senior counsel for the accused stated “I don’t fancy walking into court and being spat on” (T.2210). That was an irresponsible statement and should not have been made. I have no doubt – none whatsoever – that if held in Mildura the proceedings would be conducted in a proper and orderly way. The many grieving and afflicted families involved in this case have conducted themselves with the most admirable dignity throughout. The city of Mildura is a fine city with fine citizens. Counsel’s comment should not have been made. Per Cummins J in DPP v Towle (Ruling no 11) [2008] VSC 64 (13 March 2008).

3. “I have taken pains to explain my hesitations in reaching that conclusion, given the two points that I have identified but which the appellants omitted, or declined, to argue. It is an unpleasant thing for a judge to be required to reach a conclusion upon a legal basis about which the judge has serious reservations. That is the position I am now in. I have therefore explained my reservations in the hope that, by mentioning them, it may ultimately encourage future attention to their merits. These questions should not be allowed “forever to pass under the radar” simply because parties, presumably due to perceptions of private forensic advantage, choose not to argue them.” Per Kirby J in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 (6 August 2008).

4. 1. It is a self-evident truth that Australia’s transport system is dominated by the automobile. The machine has also assumed a revered cultural status in our society. Australian historian Graeme Davison described the evolution in these terms:[1]

Like a human love affair, our love affair with the car unfolded, step by step, from its first moment of distant admiration through casual acquaintance, infatuation and deep bonding to taken-for-granted familiarity.

As an object of mass consumption, it has entrenched itself economically and has spawned many related industries.

2. The motor car however is not without some less desirable characteristics which provide the context for this case. It is present on our roads in large numbers, it is a source of pollution, it has the potential to cause injury or death to occupants and other road users, and it is relatively easy to steal. Consequently, it has generated a rich and complex regulatory regime which focuses upon vehicle standards, road safety initiatives, protection of vehicle occupants and law enforcement directed to curtailing trade in stolen motor vehicles. Per Vickery J in Sami v Roads Corporation [2008] VSC 377; (2008) 51 MVR 118, VSC, 25 September 2008.
[1] Davison G (2004) Car Wars: How the Car Won our Hearts and Conquered our Cities (Crows Nest, Allen and Unwin), p. xii.

5. “Whether sleep or inattention by a trial judge can constitute a miscarriage of justice in a trial by jury
90. It is perhaps a reflection of the human condition and the demanding nature and expectations of the judicial function that the phenomenon of the sleeping or apparently sleeping judge has a long history dating back to Plato’s reference to “dozing judges”[61].

91. Appellate courts in common law jurisdictions have deprecated judicial sleepiness where it has occurred. Nevertheless in reported cases in the United Kingdom, the United States and Canada there has been a tendency to focus on the practical effects of the judge’s conduct on the trial process. In many of the cases this may be attributed, at least in part, to the brevity or inconsequential character of the incidents. In some cases failure by counsel to raise concerns at trial about the judge’s condition has been a significant factor weighing against appellate intervention[62].

92. The general principle that a fair trial requires a judge to be attentive to the evidence and submissions of the parties was supported by the judgment of the Court of Appeal of England and Wales in Stansbury v Datapulse plc[63]. Peter Gibson LJ (Latham LJ and Sir Martin Nourse agreeing) said:

“A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights.”

Peter Gibson LJ saw the proposition as reinforced by Art 6(1) of that Convention[64].

93. 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.

Whether the judge’s conduct in this case constituted a miscarriage of justice
94. In this case the facts, as found by Basten JA, were amply supported by the evidence taken before the Court of Criminal Appeal, which was reviewed earlier in these reasons. They indicated a substantial failure of the judicial process. The trial judge was asleep on a number of occasions on the 11 days when evidence was being given. He slept at least once on most of those days and on some days on two or three occasions. Some of the sleep episodes, possibly between two and five, lasted from 10 to 15 minutes. Most lasted between two and 10 minutes. The judge’s sleeping was accompanied by heavy breathing on a number of occasions and he snored when Cesan was giving his evidence. This was disruptive and caused Cesan to look around at the trial judge. The judge also slept through parts of Mas Rivadavia’s evidence. The jury was distracted by the judge’s sleep episodes and some of the jury members found his behaviour amusing and even emulated it.

95. The fact that counsel at the trial did not draw the matter to the judge’s attention does not, on the evidence in this case, appear to be based upon any assessment that the judge’s conduct did not matter. Rather, it seemed it had been based on the defeatist proposition that nothing could be done.

96. In this case there was a miscarriage of justice by failure of the judicial process. It was constituted by the judge’s substantial failure to maintain the necessary supervision and control of the trial. Further, his conduct created a distraction during the trial process. In particular it distracted the jury and led at least some of the members of the jury to regard the judge with amusement.

Whether there was no substantial miscarriage of justice
97. It could not be said in this case that there was no substantial miscarriage of justice within the meaning of the proviso to s6(1). The judge’s conduct had a discernible distracting effect on the jury. The reaction of some of the jury members raised a real question about the extent to which they would have attended to the evidence and accorded to the judge’s directions the respect and attention they required. The Court of Criminal Appeal was in no position to assess these imponderables. The nature of the miscarriage of justice which occurred put such inquiry beyond its reach. Further, this 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.

98. For the preceding reasons, I joined in the orders in this case allowing the appeals, setting aside the convictions and remitting the matters for retrial.” Per French CJ in Cesan v R [2008] HCA 52; (2008) 236 CLR 358; (2008) 250 ALR 192; (2008) 83 ALJR 43; (2008) 189 A Crim R 527, High Court, 6 November 2008.

[61] See Pannick, Judges, (1987) at 77-78; Foss, A Biographical Dictionary of the Judges of England, (1870) referring at 223 to Judge Doderidge. See also William Hogarth’s 1758 painting The Bench.
[62] Examples abound. In the United Kingdom: R v Edworthy [1961] Crim LR 325; R v Tancred unreported, Court of Appeal (Criminal Division), 14 April 1997; R v Moringiello [1997] Crim LR 902; R v Betson [2004] 2 Cr App R (S) 52. In the United States: Chicago City Railway Co v Anderson 61 NE 999 (1901); United States v White 589 F 2d 1283 (1979); United States v Yanez-Baldenegro 1994 US App LEXIS 22103 (9th Circuit); Hummel v State 617 NW 2d 561 (Minn 2000); People v Degondea 769 NYS 2d 490 (2003); United States v Martinez 97 Fed Appx 869 (2004); Lampitok v State 817 NE 2d 630 (Ind App 2004). In Canada: R v Caley (1991) CanLII 304 (BC SC); R v Chan (2007) 429 AR 101 (which cited Cesan (2007) 174 A Crim R 385); Leader Media Productions Ltd v Sentinel Hill Alliance Atlantis Equicap Limited Partnership (2008) 90 OR (3d) 561.
[63] [2003] EWHC 719 (Ch); [2003] 3 All ER 1091; [2004] IRLR 466; [2004] ICR 523 at 533 [28]; [2003] All ER (D) 264; [2004] UKHRR 340.
[64] Kraska v Switzerland  (1993) 18 EHRR 188 at 200 [30]; (1993) ECHR 17. Successful appeals based on the appearance of sleep were R v Weston-super-Mare Justices; Ex parte Taylor [1981] Crim LR 179; Kudrath v Ministry of Defence, unreported, Employment Appeal Tribunal, 26 April 1999; cf R v Langham and Langham [1972] Crim LR 457.