CESAN v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); MAS RIVADAVIA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2007] NSWCCA 273

Reported Decision: [2009] ALMD 2569174 A Crim R 385230 FLR 185 Appeal Outcome: Appeal allowed by the High Court - 6 November 2008 - S233/2008 & S236/2008Special leave granted by the High Court - 16 May 2008 - S503/2007 & S531/2007

New South Wales Court of Criminal Appeal

CITATION: CESAN v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); MAS RIVADAVIA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2007] NSWCCA 273

HEARING DATE(S): 8 June and 4 July 2007

JUDGMENT DATE: 5 September 2007

JUDGMENT OF: Basten JA at 1; Grove J at 158; Howie J at 216

In matter 2007/3286 (formerly 2007/925) (Cesan):

(1) Grant an extension of time for leave to appeal. (2) Dismiss the appeal against conviction. (3) Grant leave to appeal against sentence. DECISION: (4) Dismiss the appeal against sentence.

In matter 2005/4195 (formerly 2006/1603) (Mas Rivadavia): (1) Grant an extension of time for leave to appeal. (2) Dismiss the appeal against conviction. (3) Grant leave to appeal against sentence. (4) Dismiss the appeal against sentence.

CRIMINAL APPEAL – miscarriage of justice – judge asleep – essential element of trial by jury – Commonwealth Constitution s 80

CRIMINAL PROCEDURE – lies – implication of consciousness of guilt - Zoneff direction CATCHWORDS: JURISDICTION – proceedings heard and disposed of before a Judge – judge asleep – whether Court properly constituted if judge is sleeping – District Court Act 1973 s 11(1)

WORDS AND PHRASES – "before a Judge" – District Court Act 1973 s 11(1)

Constitution, s 80 Criminal Appeal Act 1912 (NSW), ss 6, 10(1), 12 Criminal Appeal Rules, r 3A, 4 Criminal Procedure Act 1986 (NSW), ss 3, 46, 130, 131, 132, Part 3 Criminal Code 1995 (Cth), s 11.5, Part 9.1 LEGISLATION CITED: Customs Act 1901 (Cth), s 233B District Court Act 1973 (NSW), ss 8, 9, 11, 166, Part 4 Evidence Act 1995 (NSW), ss 20, 55 Judicial Officers Act 1986 (NSW), s 15 Judiciary Act 1903 (Cth), ss 8, 9, 68, 78B Juries Act 1927 (SA) Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)