It’s an enormous relief that the the NSW Court of Criminal Appeal has affirmed an underpinning principle – that justice can still be done by unconscious or “dormant” presiding trial judges.
The damage to the system and the prospect of countless retrials in the event of any less a finding would be too daunting to contemplate.
Only the other day The New York Times was commenting on a lecture by US federal appeals judge Dennis Jacobs entitled The Secret Lives of Judges. His thesis was that judges generally can be counted on to rule in favor of anything that protects and empowers lawyers, and that includes other judges.
Of course, there are plenty of splendid reasons why this should be so and the appeal court’s thinking in Cesan v DPP unpacks a fair few of them.
The majority judgment in the sleeping Judge Dodd appeal was carefully constructed. Justices Michael Grove and Rod Howie thought that it was the effect on the trial of the judge’s inattention, not the behaviour itself that was the crucial factor.
Since there was “no identified act or omission of the trial judge” which would have made the outcome of the trial different from one where a judge had been “bright-eyed throughout the entire process”, there was no reason to overturn the guilty verdicts of two ecstasy importers, Raphael Cesan and Mas Rivadavia. Grove, who wrote the majority reasons, said:
“I find the probability to be that, from time to time, the judge was ‘nodding off’ and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense … [however] the evidence shows that he returned from sleep either by the operation of his own body mechanisms or by the provocation provided by tapping or the creation of noise by other means such as clearing of throat or movement of books and papers.”
Neither Grove, Howie, nor John Basten in the minority, accepted the evidence of the appellants that they were “distracted” by the sound of Dodds snoring.
Grove said the appellants had pointed to no adverse effect on the issues at trial or upon their determination “derived from the judge’s episodes of dormancy.”
While he accepted that Dodd had been asleep during the trial “from time to time, Basten quantified it a little better. He found the judge had slept for between two and five occasions for periods up to 15 minutes. On the majority of occasions he had slept for between two and 10 minutes. Basten didn’t accept the judge snored so audibly as to disrupt the concentration of the appellants, although the sleeping was accompanied by “heavy breathing”.
Grove highlighted the absence of protest from defence counsel and a letter from one of the accused, before sentencing, in which he thanked the judge for “a very fair trial”.
“I do not accept that three counsel would press on, remaining mute about the situation, if something of genuine significance was occurring without then, or even at a later time, drawing his Honour’s attention to what he had apparently missed. The importance I have ascribed to this is that, in my view, the mere fact that the judge has been asleep (on and off) during the trial does not, without more, demonstrate that the trial had been unfair.”
There was no useful distinction, it was said, between a judge disengaged from what is occurring by distraction, by deliberate choice or by sleep. Of course, it was “regrettable” that Dodd (pic) fell unconscious “from time to time”.
The appellants argued that the District Court Act required trials to be heard “before a judge” and that a sleeping judge was not properly present and did not meet this requirement.
Grove thought this phrase meant only physical presence.
“It could not have been the intention of the legislature when using the expression ‘before a judge’ that there be some investigation or analysis of fluctuations in mental activity or inactivity…
“It would seem that a consequence of acceptance of these arguments would be the existence of intermittent situations of existence and non-existence of a duly constituted court in parallel with the judge’s soporific and non-soporific state. It would venture into the realms of absurdity to consider that the court would oscillate in and out of jurisdiction in harmony with which of those states was for the time being current.”
Basten didn’t think much of that at all and, frankly, nor should anyone else. He found the judge’s behaviour undermined the credibility of his routine directions to the jury, “to listen carefully to the evidence, to put aside preconceptions and to assess the evidence … in a responsible and considered manner”.
Dodd’s conduct undermined the presumption that the jury takes the judge’s directions seriously. This was sufficient to raise a possibility of unfairness and required a re-trial.
The conduct of the unconscious judge is to be assessed objectively. Evidence of the jury’s response to the judge’s snoozing or the accused’s subjective belief in the fairness of the trial are not relevant. After much careful weighing of argument Basten came to the breathless conclusion that for a court and the trial to be properly constituted:
“required that the judge be present and conscious during the whole of the trial proceedings… Further, I am satisfied that the periods during which the judge was asleep could not be dismissed as insignificant for the conduct of the trial.”
There’s plenty of case law on the issue of sleeping judges. Last month in the United States, the Nevada Judicial Discipline Commission suspended District Judge Elizabeth Halverson for, among other reasons, falling asleep every day in court.
In 2006, British judge Michael Findlay Baker QC told The Observer:
“It would be foolish to pretend we don’t ever feel sleepy. Some judges even take smelling salts into court with them… I do accept, however, that it is catastrophic for appearances if the judge falls asleep and appearances are very important.”
In May 2005, Evan Whitton columnised in Justinian that for the look of it, judges should at least appear to be taking an interest, particularly if members of the great unwashed are in court.
But he is a fan of Dodd. As a young solicitor Doddy played an important part in the Nagle Royal Commission into NSW prisons. Indirectly he helped drag the state’s prison system out of the 18th century.
Maybe he should have adopted the habit of Willie Watson, aka Lord Thankerton (1873-1948, Lord of Appeal in Ordinary 1929-48) who, to stay awake, took up knitting on the bench.
David Pannick QC, in Judges (OUP, 1987) referred to Lord Chancellor King in the 18th century who often dozed during cases. However, this was no problem because two eminent barristers Sir Philip Yorke and Mr Charles Talbot were invariably briefed for the opposing parties and they:
“were both men of … good principles and strict integrity and … were sensible on which side the right lay. They would instruct the registrar of the court what order it was appropriate to record.”