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13 July, 2007  
To sleep, perchance to dream

A judge who sleeps through a trial may not necessarily be “absent” from proceedings, according to preliminary musings from some on the NSW Court of Criminal Appeal. Confidence in the justice system may be enhanced if judges are unconscious

imageThe NSW Court of Criminal Appeal is reserved in the Rafael Cesan case.

A District Court jury convicted Cesan of drug offences at a trial presided over by Judge Ian Dodd, who slept for extended bouts during the hearing.

“Noddy” Doddy has since left the bench to prevent his sleep getting in the way of his judging. Apart from being very tired he was a decent codger and not a bad judge.

Cesan is appealing his conviction on the grounds that a sleeping judge meant that he did not get a fair trial and that there was a miscarriage of justice. Basten, Grove and Howie presided over this question for two days – June 8 and July 4.

The hearing threw up many insights into the challenge posed by the extended judicial snooze.

John Basten said that three things may have been affected by the dozing judge:

1. Justice Dodd’s summing up.

2. The jury may have inferred he took a certain attitude about the evidence, and

3. A judge going to sleep is like a judge not being in the court, raising a jurisdictional issue.

Hament Dhanji, for the convicted man, called witnesses who testified that Dodd had fallen asleep for periods of up to 25 minutes at a stretch.

Cesan testified that at worst the judge nodded off for periods of 15 to 20 minutes a couple of times during the 14-day trial, including while he was being cross-examined. He said he could hear Dodd snoring and his associate would make noises to wake him up.

Margarita Migues, Cesan’s mother, told the appeal judges that she knew Judge Dodd was sleeping because he was slumped on his chair, arms resting on the bench, head tilted forward and was completely still. She thought that he had fallen asleep at some time during the trial on a daily basis, sometimes for a few minutes.

Ivan Amaro, a friend of the appellant, gave evidence that Noddy slept for two to 15 minutes at a time. He said he knew Dodd was sleeping because he was slouched back, had his hands clasped in front of him, head tilted to the side and eyes closed.

Veronica Cabrera recalled that Dodd fell asleep for periods of up to 25 minutes and she heard him snoring while Cesan was giving evidence. She said he also slept while the crown was questioning to witnesses.

Patricia Lawson said that when Dodd fell asleep, the prosecutor would knock the microphone to get his attention. Both the prosecution and defence would clear their throats and speak more loudly. She claimed he fell asleep for periods of 15 to 20 minutes.

Gabriella Cesan, Rafael’s sister, gave evidence that the trial judge fell asleep for periods of approximately 20 minutes. She said a couple of times she heard him snoring when her brother was giving evidence.

Magalli Locaputo, the appellant’s aunt, gave evidence that she heard Dodd snoring for periods up to about 15 minutes, including when Cesan was giving evidence.

Geoffrey Bellew, SC, the prosecutor at the trial, said he remembered one occasion when Dodd appeared to be asleep. He thought the judge was probably asleep on other occasions.

Dhanji submitted that if the judge was asleep, he was effectively absent and the court was not properly constituted and the proceedings were not properly heard or disposed of. He went so far as to say that justice must not only be done, but it must also be seen to be done.

imageWendy Abraham QC, for the crown, submitted that while she accepted that Dodd (pic) appeared to be asleep, he was not sleeping to the extent claimed by the appellant. She said that both judges and counsel have been known to close their eyes without being asleep. Cesan admitted under cross-examination that he had written a letter to the judge saying that he had had a “very fair trial”.

Justice “Hot” Rod Howie declared that he was not satisfied that Dodd slept for periods of 20 minutes and that the witnesses were giving estimations more than three years after the event. It was not necessarily a case of justice not being seen to be done, he thought, because the accused believed he had had a fair and just trial, while knowing Dodd had nodded off.

At the July 4 hearing, Dhanji introduced a fresh constitutional angle. He submitted that a trial by jury is required and that the notion of trial by jury is one of the jury sitting with a judge who is present, available, and who instructs the jury as required by law. By falling asleep the judge undermined the ability of the court as well as public confidence in it.

Howie disagreed because, notwithstanding that the judge fell sleep, Cesan thought he got a fair trial, so public confidence could not have been undermined.

Dhanji said that when the judge was awake he was assumed to be capable of doing more than one thing at a time. If the judge was asleep, or drifting in and out of sleep, he was no longer capable of acting as required. The judge is withdrawn from the proceedings.

Howie said that a judge who is asleep is physically present and that there is a difference between saying that a judge is absent from the court room and being present but asleep.

Dhanji put it that an absent judge has control over his absence while a sleeping judge lacks control over his absence.

Abraham submitted that the evidence did not bear out that the judge had been asleep for significant periods, and that the accused and his counsel knew the judge was sleeping at the time and nothing was done about it.

She said that the judge was a good draw for them and that the accused had not produced evidence that Dodd had made an error. She claimed that Dhanji had elevated the judge’s apparent sleeping to constituting absence from the court.

Hot Rod said that there was clear evidence the judge was asleep at some stages during the trial, but there was a question as to how often and how long.

The judgment on whether you can still get a decent trial if the judge is unconscious is eagerly awaited by those of us who can stay awake long enough.