Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kearns v R [2011] NSWCCA 103 Hearing dates: 15 December 2010 Decision date: 06 May 2011 Before: Giles JA at [1], Latham J at [97], Rothman J at [98] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appellant convicted for various offences of improperly obtaining money - subsequent appeal dismissed - case referred by Attorneys to be dealt with as appeal - grounds of appeal did not involve only question of law - whether leave to appeal necessary - differing obiter views - whether open to jury to be satisfied beyond reasonable doubt that appellant was an officer of companies - on facts was open - whether open to jury to be satisfied beyond reasonable doubt that appellant made knowingly false representations - on facts was open - whether trial judge asleep or apparently asleep during trial - whether jury distracted from attention to the evidence - not established that judge was asleep - on evidence, no more than occasional appearance that was asleep - no distraction of jury constituting miscarriage of justice. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW); Criminal Appeal Act 1912 (NSW); Cases Cited: Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358; Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338; GAR v R (No 1) [2010] NSWCCA 163; GAR v R (No 2) [2010] NSWCCA 164; GAR v R (No 3) [2010] NSWCCA 165; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; Mickelberg v The Queen (1989) 167 CLR 259; The Queen v Nguyen [2010] HCA 38; (2010) 271 ALR 493; R v Catt [2005] NSWCCA 279; R v Chard (1984) AC 279; R v JJT [2006] NSWCCA 283; (2006) 67 NSWLR 152. Category: Principal judgment Parties: James Gordon Kearns - Appellant The Queen - Respondent Representation: Counsel: S G Finch SC- Applicant W J Abraham QC & S G Callan - Crown Solicitors: In person - Appellant Commonwealth Director of Public Prosecutions - Respondent File Number(s): CCA 2007/00003309 Decision under appeal Before: Dodd DCJ File Number(s): 02/11/0041 Judgment 1GILES JA : This is a case referred under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). For the reasons which follow, in my opinion the appeal should be dismissed. Background 2In the latter part of 2002 the appellant stood trial before Dodd DCJ and a jury on an indictment containing nine counts alleging breaches of the then Corporations Law (C'th) and the Crimes Act 1900 (NSW). The trial extended from 23 September 2002 to 2 December 2002. On the lastmentioned date the appellant was found guilty on all counts. 3The offences arose from the appellant's conduct between 30 September 1994 and 18 May 1995 in relation to Nambucca Investments Pty Ltd ("Nambucca") and related companies in the Nambucca Group. The Nambucca Group operated in and from Macksville in northern New South Wales. Funds were raised by the issue of debentures, and were used in the provision of mortgage finance and the purchase and development of property. Investors provided funds through a trustee pursuant to a trust deed. The funds were utilised through companies which included Nambucca, Lawnkin Pty Ltd ("Lawnkin") and Teamcask Pty Ltd ("Teamcask"). 4In summary, the offences of which the appellant was found guilty were - Count 1: Improperly using his position as an officer of Nambucca by causing it to pay $50,000 to Snoco Ltd ("Snoco") ( Corporations Law , ss 232(6) and 1317FA(1)); Count 2: Improperly using his position as an officer of Lawnkin by causing it to pay $50,000 to Snoco (ibid); Count 3: Improperly using his position as an officer of Lawnkin by causing it to pay $13,342.27 to Snoco (ibid); Count 4: Improperly using his position as an officer of Teamcask by causing it to pay $51,577.73 to Snoco (ibid); Count 5: Dishonestly obtaining by deception from Lawnkin bank cheques for $100,000 and $200,000 for himself or Snoco ( Crimes Act , s 178BA); Count 6: Making a false statement to Roselyn and Kevin Forbes with intent to obtain $130,000 for Nambucca ( Crimes Act , s 178BB); Count 7: Dishonestly obtaining by deception from Betty Bohannon a cheque for $20,000 for Nambucca ( Crimes Act , s 178BA); Count 8: Dishonestly obtaining by deception from Roselyn and Kevin Forbes a cheque for $30,000 for Nambucca (ibid); and Count 9: Making a false statement to Roselyn and Kevin Forbes with intent to obtain $88,717.56 for Nambucca ( Crimes Act , s 178BB). 5On 18 December 2002 the appellant was sentenced to an effective term of imprisonment for 6 years with a non-parole period of 4 years and 6 months. 6The appellant appealed against conviction and applied for leave to appeal against sentence. The sole ground of the conviction appeal was that the trial judge had also been the trial judge in a matter of Damien Parkes, another person involved in Nambucca. 7On 1 December 2003 the appeal against conviction was dismissed, and leave was granted to appeal against sentence but the appeal was dismissed: R v Kearns [2003] NSWCCA 367. 8An application for special leave to appeal to the High Court was refused: Kearns v The Queen [2004] HCA Trans 553. 9On 16 April 2007 the Minister for Justice and Customs referred the whole of the case in relation to the Commonwealth offences to this Court, to be dealt with as an appeal under the Criminal Appeal Act , pursuant to s 77(1)(b) of the Crimes (Appeal and Review) Act . On 1 August 2007 a like referral was made by the Attorney General for New South Wales in relation to the State offences. 10Grounds of appeal were filed. The grounds of appeal ultimately maintained were - "4. The verdict of the jury in respect of the alleged offences numbered (1) to (5) inclusive of the Indictment as to which the elements alleged by the Crown to ground the charges are that the Appellant was at all relevant times an officer of Nambucca by virtue of: a) the Appellant allegedly being in de facto control of Nambucca; b) the facts of the execution and delivery by the Trustee for Debenture Holders only and the delivery to the Appellant of, an instrument of retirement from that office, and the execution by the Appellant only and retention by him of, an instrument of acceptance of that office; and c) the signing and transmission by the Appellant of a certain facsimile alleged to have been signed and transmitted by the Appellant and referred to in the evidence at the trial as the '14:14 fax', should be set aside upon the ground that such verdicts could not and would not be supportable having regard to the whole of the evidence adduced at the trial." "11. The verdict of the jury in respect of the alleged offence numbered (7) in the Indictment should be set aside upon the ground that it is unreasonable or cannot be supported having regard to the evidence adduced at the trial." "13. By sleeping for significant periods during the trial, the trial Judge failed to exercise supervision and control of the trial resulting in a miscarriage of justice." Is leave to appeal necessary? 11The nature of an appeal on a referral pursuant to the Western Australian equivalent to s 77(1)(b) was recently considered in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125. That consideration was taken up for the predecessor to s 77(1)(b) in this State, s 474C(1)(b) of the Crimes Act , in R v JJT [2006] NSWCCA 283; (2006) 67 NSWLR 152. 12By the terms of s 77(1)(b), the "whole case" is referred, and is "to be dealt with as an appeal under the Criminal Appeal Act 1912". This confines the Court to following procedures and making orders apposite to an appeal. It was not disputed that, because the whole case was referred the appellant could rely on grounds of appeal other than the matter or matters raised in the petition for review of his conviction upon which the referrals had been made, see Mallard v The Queen at [10]. The Crown submitted, however, that s 5(1) of the Criminal Appeal Act applied so that leave to appeal against conviction was required unless the appeal was on a ground "which involves a question of law alone", and that leave to appeal was necessary for all the grounds of appeal. The Crown opposed the grant of leave to appeal, submitting that none of the grounds was reasonably arguable. 13The appellant accepted that none of the grounds of appeal involved only a question of law. He submitted that leave to appeal was not required, but that if it was leave should be granted. 14The appellant drew attention to R v Catt [2005] NSWCCA 279, a referral under s 474C(1)(b) of the Crimes Act , in which McClellan CJ at CL (with the agreements of Adams J and Smart AJ) observed at [14] that "[i]n so far as the appeal relates to matters of fact no leave is necessary, notwithstanding s 5 of the Criminal Appeal Act ". 15On the other hand, in GAR v R (No 1) [2010] NSWCCA 163, a referral pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act which is in materially the same terms as s 77(1)(b), the Court (Tobias JA and Johnson and Rothman JJ), said at [20] that "the better construction is that leave is required". Their Honours did not state a final conclusion, because "the grounds of appeal are at least arguable so that there should be a grant of leave". 16There was no detailed consideration of the matter in either R v Catt or GAR v R (No 1) . In R v Catt McClellan CJ at CL referred also to s 474L of the Crimes Act . It provided that on receiving a reference under s 474C(1)(b) "the Court is to deal with the case so referred in the same way as if the convicted person had appealed against conviction ... under the Criminal Appeal Act 1912, and that Act applies accordingly". The equivalent under the Crimes (Appeal and Review) Act is s 86, in like terms. Section 86 was not mentioned in GAR v R (No 1) . 17At the time of R v Catt the Criminal Appeal Rules provided by r 78 that where there was a referral pursuant to s 474C(1) of the Crimes Act "the person convicted shall be deemed an appellant who has obtained the leave of the Court to appeal". Although it was not referred to, this underpinned the Chief Judge's observation. Rule 78 as then in force remains, despite the repeal of s 474C and its replacement by s 77(1) of the Crimes (Appeal and Review) Act . It appears that there has been oversight in making an equivalent rule in relation to a referral pursuant to s 77(1). 18If leave to appeal is necessary, until leave has been granted there is no appeal. On one view, ss 77(1)(b), 79(1)(b) and 86 dictate that there is an appeal, and the direction to deal with the case "as if the convicted person had appealed against conviction" bypasses any need for leave to appeal under s 5(1). The Criminal Appeal Act then applies as to the Court's powers and in particular in the disposal of the appeal in accordance with s 6 of that Act. On another view, the words "as if the convicted person had appealed against conviction" refer to the convicted person's act of appealing against conviction, which could include any necessary application for leave to appeal, and may not dictate that there is an appeal. The pivotal s 6 of the Criminal Appeal Act , and also s 7, apply where there is "an appeal under s 5(1)", and if a referral bypasses a need for leave to appeal under s 5(1) it may be that there is a difficulty in the application of these provisions; so that ss 77(1)(b), 79(1)(b) and 86 should be understood conformably with the leave requirement in s 5(1). 19I incline to the view that leave to appeal is not necessary. The leave requirement in s 5(1) acts as a filter, the alternative in that subsection of the trial judge's certificate that it is a fit case for appeal having the same function. The referral by the Minister (s 77) or the Supreme Court (s 79) is made after a petition for review or an application for an inquiry, and the consideration of the petition for review or the conduct of the inquiry takes the place of consideration of an application for leave to appeal and makes inappropriate a superadded need for leave. The referral involves satisfaction that the case is fit to be dealt with as an appeal. 20It is true that, because the whole case is referred and the appellant is not confined to grounds of appeal reflecting the matter or matters raised in the petition for review or the application for an inquiry, additional grounds of appeal may be relied on which might otherwise not have survived the filter of a leave requirement. That, however, is met by the approach of Toohey and Gaudron JJ, Mason CJ and Brennan J agreeing, in Mickelberg v The Queen (1989) 167 CLR 259 at 312, endorsed in Mallard v The Queen at [11] - "The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented." (footnote omitted) 21It may be noted that in R v Chard (1984) AC 279 at 289, in a passage cited with apparent approval in Mallard v The Queen at [12], Lord Diplock said of s 17(1)(a) of the Criminal Appeal Act 1968 (UK) that - " ... the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court." 22Section 17(1)(a) of the UK Act provided that the referred case "shall then be treated for all purposes as an appeal to the court ... ". Section 1 of the Criminal Appeal Act (UK) was an equivalent to s 5(1), although differently structured. Lord Diplock appears to have had it in mind, and to have considered that the leave requirement did not apply. 23It is not necessary to express a concluded view. That the Minister and the Attorney-General have seen fit to refer the case pursuant to s 77(1)(b) is ordinarily a sound, although not inevitable, reason to grant any necessary leave to appeal; see also McClellan CJ at CL in R v JJT at [88]. The Court is aware from interlocutory matters that in the present case the grounds of appeal go beyond the matters raised in the petition for review, which was essentially concerned with what is now ground 13. However, I do not regard the additional grounds as frivolous or vexatious; as will appear, I do not think that any of them should be upheld, but (with reservations as to ground 11) they warrant the grant of leave to appeal. 24In my opinion, if leave to appeal be necessary it should be granted. Ground 4 25Although it referred to "offences numbered (1) to (5) inclusive of the Indictment", this ground concerned only counts 1 to 4. Those counts involved that the appellant made improper use of his position as an officer of Nambucca, Lawnkin or Teamcask by causing money to be paid to Snoco. 26The ground was not happily worded. The argument was, in short, that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was an officer of the companies. The written submissions contained some criticism of the Crown's address to the jury and the summing-up, but it was said in oral submissions that that was "only there to highlight the fact that there was a difficulty with the evidence as presented to the jury". Expansion of the ground of appeal was disclaimed. 27It was common ground that the Court's approach to this ground, and to ground 11, was that most recently restated in The Queen v Nguyen [2010] HCA 38; (2010) 271 ALR 493 at [33] - "[33] The task of an appellate court in considering whether a verdict of guilty returned by a jury 'should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence' was described by this court in M . As four members of the court pointed out in M , the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being 'unsafe or unsatisfactory', 'unjust or unsafe' or 'dangerous or unsafe'. The question for the appellate court is one of fact. '[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' As the plurality in M went on to point out: 'But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. The authoritative guidance which this court provided in M about the task of a court of criminal appeal was expressed in the following terms: 'It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (footnotes omitted) 28The only issue under ground 4 as to satisfaction that the appellant was guilty was satisfaction that he was an officer of the companies. 29Snoco was controlled by the appellant. It held 30 per cent of the shares in a New Zealand company, Equitable Investments Ltd ("Equitable"), through which the appellant (by Snoco) was in a joint venture with the Spencer family who held the remaining 70 per cent of the shares in Equitable. Each of the parties had to subscribe funds to the joint venture, and Snoco had to provide $300,000 by 30 September 1994 and a further $200,000 by late December 2004. In addition, in August 1994 the appellant had made a written offer of $2.5 million to acquire the Spencer shareholding. 30The sums of money the subject of counts 1 to 4 were paid to Snoco in the period December 1994 - February 1995. On the Crown case, the appellant committed the offences the subject of those counts, and the other offences, to obtain money for Snoco to subscribe the required funds to the joint venture and to obtain money to finance the acquisition of the shares. On that case as to counts 1 to 4, the appellant obtained effective control over the Nambucca Group by falsely representing to the then trustee, and the then members of the board of Nambucca, that Equitable had offered to buy a number of Nambucca companies and to fund Nambucca, and that he was representing the interests of Equitable by assuming control of the Nambucca Group during an escrow period; and having obtained control, the appellant improperly used his position to obtain money to satisfy Snoco's obligation to contribute money to the Equitable joint venture. The trustee was Mr Hilton Searle, and the board members were Mr Phillip Hall, Mr Leslie Hall, Mr John Poynten and Mr John Florent. 31At the trial, "control" was often used in a shorthand way, but the Crown case as to being an officer of the companies as summed up to the jury was that an officer includes a director, a director includes a person in accordance with whose directions or instructions the directors of the company were accustomed to act, and the appellant was such a person (see Corporations Law , s 9). The question was and is one of satisfaction that the directors of the companies were accustomed to act in accordance with the directions or instructions of the appellant. 32It was common ground that Lawnkin and Teamcask were wholly owned subsidiaries of Nambucca. The trial judge suggested to the jury that because of the way the trial had been conducted, if the appellant was an officer of one of the companies he was also an officer of the other companies. It was not suggested on appeal that if the appellant was an officer of Nambucca, he was not also an officer of Lawnkin and Teamcask. 33The appellant's submissions attributed to the Crown that the relevant control came from the appellant becoming trustee in place of Mr Searle and receiving transfers of the shares in Nambucca companies. He submitted that neither alone nor in combination did those matters establish that the directors of Nambucca were accustomed to act in accordance with his directions or instructions. 34However, the Crown case was not so limited, and the question was to be decided on the full effect of the whole of the evidence. There was ample evidence (of which becoming trustee in place of Mr Searle and obtaining the share transfers was part) on which it was open to the jury to be satisfied beyond reasonable doubt that the appellant was an officer of Nambucca. 35The appellant was introduced to Mr Phillip Hall by Mr Parkes, with whom the appellant had a business relationship, in August 2004. Mr Phillip Hall understood from the discussion that the appellant wished to borrow $3 million to buy out the Spencers, and wanted a further $1.3 million to discharge mortgages over property held by the Equitable Group. At a subsequent meeting, according to Mr Phillip Hall, it was suggested by another person - "Why don't you get Nambucca Investments to put up its assets to lend the money to Mr Kearns, and then perhaps you could strike a deal where the insurance company [Equitable] would then take control of Nambucca Investments. That was the basic premise of the suggestion." 36The appellant took up the suggestion. On 10 September 1994 the appellant visited Coffs Harbour to discuss the proposal with Mr Florent. On 19 September 1994 the appellant, Mr Phillip Hall and Mr Florent met in New Zealand. The appellant (falsely) told the others that the board of Equitable had agreed to take control of Nambucca. 37A memorandum dated 27 September 1994 from Mr Phillip Hall to Mr Florent referred to approval of "the takeover by Equitable of Nambucca Investments" and set out a number of "formalities ... in order to effect the takeover". They included that "[a] Sydney solicitor associated with Equitable" would offer himself as trustee to replace Mr Searle "and consents to such a position", and that existing directors and secretaries would retire and Equitable's directors and secretaries would be appointed. 38The appellant was the Sydney solicitor. On 28 September 1994 he sent a 12.05 fax to Mr Searle saying, "Further to Phillip Hall's letters of yesterday I confirm my consent to act as trustee", and also confirming "our preparedness to purchase all of the shares of the Nambucca Group (except Watercraft P/L, F & H Bennett P/L and Spectrum Marketing P/L) for $2 per company". He sent a 14.14 fax to Mr Searle stating that in the capacity as Executive Deputy Chairman of the Equitable Group of companies he would, amongst other things, arrange through Equitable Insurance "to unconditionally fund Nambucca Investments Pty Ltd to cover all debenture withdrawals and all funds required by the group that arise in the normal course of business", and that he confirmed the offer to purchase the shares. The appellant's case at trial was that he had no knowledge of these faxes and that his signature upon them had been fabricated. The jury must have rejected that, and it was accepted on appeal that it was open to them to so find. 39On 29 September 1994 Messrs Phillip Hall, Leslie Hall, Florent and Searle attended meetings with the appellant and Mr Parkes. Mr Searle signed a Deed of Retirement as trustee. The appellant signed a Deed of Appointment as trustee. The directors of Nambucca and the Nambucca companies resigned and the Messrs Hall were (re)appointed. Transfers of the shares in the Nambucca companies from Nambucca to Equitable had been prepared, and these were signed by the Messrs Hall and given to the appellant. The appellant did not execute them, saying that he wished to keep them blank to enable him to nominate the appropriate corporate entity once the Spencers had been bought out and there was an Equitable/Nambucca restructure. 40According to the minutes of Nambucca, the appellant "was instructed as solicitor to attend to the attaching of the Companies Common Seal and organising of the Directors signatures on all deeds and share transfers and to lodge all documents for stamping and registration and complete such documents as required by law to affect [sic] his appointment". 41The Messrs Hall continued as directors of Nambucca. However, each gave evidence to the effect that he did what Mr Parkes told him to do because the appellant told them that he appointed Mr Parkes to represent him and that he would give his directions to them through Mr Parkes. Some of the evidence was as follows. 42Mr Phillip Hall gave evidence - "A. That Mr Jim Kearns stated that he would require two people to be directors of the Nambucca Group for what was referred to as the escrow period. That escrow period being referred to was the period from 29 September until such time as the insurance company, Equitable Insurance Limited, had taken control of the Nambucca Group, upon which time my father and I would be extinguished as directors. We were referred to as escrow directors to take instructions from either Mr Parkes, Mr Kearns or a solicitor Mr Michael Fitzgerald." 43Mr Phillip Hall gave evidence as to signing a Lawnkin document on 30 September 1994 - "Q. How did that document come to be executed by you on that day? A. Damien Parkes put it in front of me and asked me to sign it so I signed it. Q. Why at that time were you doing what Damien Parkes asked you to do? A. Because I was told some time prior to or on 29 September that I was to take instructions from either Mr Kearns, I was told by Mr Kearns to either take them from himself or Mr Parkes who would be operating the affairs on a day to day basis and or Mr Michael Fitzgerald. Q. The affairs of what on a day to day basis did you understand Mr Parkes and Mr Fitzgerald to be conducting? A. What I understood they were doing were the day to day activities of allowing Equitable Insurance to take control of Nambucca Investments. Q. You were appointed a director of Nambucca on 29 September. We've seen the document appointing you, and that your father continued as a director as and from that date. Why was it that you were taking instruction and direction as a director from somebody who was not so connected with the company? A. Because Mr Kearns had accepted the role as trustee on the day before, and the trustee, as I had known from several years of experience with the trustee of Nambucca Investments Mr Hilton Searle, had the ultimate control of the company." 44In connection with the appellant as trustee, Mr Phillip Hall also gave evidence that he understood that under the terms of the trust deed the trustee could require directors' resignations "if there's a skirmish or reason to ask ... ". 45Mr Phillip Hall said more generally - "A. No, all financial matters were under the control of Damien Parkes, who was given the title of financial controller for the Nambucca Investments Group by Mr Kearns. ... Q. To what extent did you have contact with Mr Parkes, was it regular, was it intermittent, what was it? A. We would talk on the phone many times during the course of each day. He would send me written instructions as to what to do by facsimile, and obviously when he came up he'd sit face to face with me and we'd do things together." 46According to Mr Leslie Hall, he was asked by the appellant "if I would carry on until more or less the due diligence had been completed", and - "Q. In that period of time whilst the due diligence you say was being undertaken did you have any understanding as to who you were to take directions from or who you were to receive instructions from to do the things that you were asked to do? A. Either Mr Parkes or Mr Kearns. Q. And who told you that you were to take your instructions or directions from those two fellows? A. Mr Kearns." 47Mr Florent gave evidence that the appellant said he would take Nambucca on to bigger and better things, and - "After, shall we say the formal handshake, signing, hand shaking, we're now in control, Mr Kearns made the statement that Mr Parkes, his directions would go through Mr Parkes, and any instruction or direction given by Mr Parkes was to be considered to be a direction from him, and that anything or everything should be directed through him first to get to Mr Kearns," 48Mr Florent, who was a solicitor, continued to do some conveyancing work for a Nambucca development. He took instructions from Mr Parkes, and said that he did so because "Jim Kearns told me that he was Jim Kearns' representative and also the representative of the Equitable Insurance Group". 49In a Deputy Chairman's report to the Equitable Group for a board meeting on 23 November 1994 the appellant said - "I am completing due diligence on the Nambucca Group of Companies which operates in the Coffs Harbour area of New South Wales. This Group has grown haphazardly but consists of hotels, subdivisional real estate, miscellaneous properties and a loan book. I have arranged the sale of one of the hotels, have reorganised the management (halved the staff) of the better hotel to make it profitable and I am reorganising the real estate as a property group (for 'liquidation' to cash for lending). I believe that through the Nambucca Group (which is now effectively under my control) we can develop a business in Australia as a regional finance group. I have had some discussions with Colin Grady as to his heading up this Group as I feel it will acquire similar strengths to those that he showed in New Zealand in rebuilding our north island operations" 50It was not challenged on appeal that the appellant caused Nambucca, or Lawnkin or Teamcask, to pay the sums of money to Snoco. The causation itself could go to control of Nambucca by the appellant, and when the payment involved one of the directors it could go to the director acting in accordance with the appellant's directions. The Nambucca $50,000 and the Lawnkin $50,000 were paid by cheques signed by Mr Phillip Hall on the instructions of Mr Parkes, from the other evidence as the appellant's representative. 51The appellant's assumption of the office of trustee did not of itself give him control of Nambucca, but it was an indicium of his dominance in the Nambucca Group's affairs and was seen by the Messrs Hall as occasion to act as the appellant instructed. So also was the appellant's holding of the share transfers and ability to complete them as he wished occasion for the directors to act as he instructed. Going beyond those matters, there was direct evidence from the Messrs Hall that they deferred to the appellant's directions or instructions, and in the report of 23 November 1994 the appellant himself asserted that the Nambucca Group was effectively under his control. It was well open to the jury to be satisfied beyond reasonable doubt that this was a correct assertion, through the directors of Nambucca being accustomed to act in accordance with the appellant's directions or instructions. Ground 11 52Count 7 was more fully - "7. On 5 May 1995 at Coffs Harbour in the State of New South Wales dishonestly obtain from Betty Bohannon for Nambucca Investments Pty Limited a valuable thing, namely a cheque in the sum of $20,000 drawn on the account of V & B Bohannon at Advance Bank, North Sydney, by deception, namely by falsely representing to Betty Bohannon that the said sum of $20,000 would be invested pursuant to a prospectus in Equitable Life Insurance Company Ltd ('Equitable Life') for the purchase of insurance bonds, at a time when he knew that no investment would be made in insurance bonds in Equitable Life contrary to section 178BA Crimes Act 1900 (NSW) ('the Bohannon count')." 53The appellant accepted that Mrs Bohannon provided a cheque for $20,000 to him pursuant to representations by him that the funds would be invested in two insurance bonds in Equitable, upon the basis of a prospectus issued by Equitable and provided by the appellant to Mrs Bohannon. The ground was concerned with the falsity of the representation. It was submitted that there was no evidence that the appellant knew that the representations as to investment in insurance bonds were false when made other than the subsequent dealing with the money by payment to Nambucca, and that "the weight of evidence is that he had nothing to do with dealing with the funds ... in a manner inconsistent with those representations". 54A submission expressed in terms of "the weight of the evidence" does not properly reflect the approach required of this Court, see The Queen v Nguyen above. 55Mrs Bohannon's cheque was made out to the trust account of Mr Florent. She gave evidence that the appellant told her to make the cheque out to Mr Florent's trust account because the money was to be deposited in the trust account until released by Mr Florent for the purpose of acquiring the insurance bonds. The cheque was paid into Mr Florent's trust account on 12 May 1995. The money was paid out to Nambucca on the same day. 56Mr Florent gave evidence that the appellant brought the cheque to his office, and that in the presence of the appellant he telephoned Mrs Bohannon. He said that this occurred on 5 May 1995. Mrs Bohannon said that she and her husband "wanted to go ahead with the insurance bonds for their grandchildren", and that he could deposit the cheque into his trust account and then draw a cheque "to who [the appellant] nominated". The appellant nominated Nambucca, indicating that "he would then transfer the funds from Nambucca over to Equitable, because Equitable was funding Nambucca". Mr Florent told Mrs Bohannon that "it had to be made out to Nambucca". She asked why, and the appellant "basically then elaborated on what I had just said was 'goes into Nambucca, we will transfer it as Equitable is funding Nambucca and we're doing it all through Nambucca'". 57Mr Florent drew a cheque to Nambucca. The money remained in Nambucca, and was not transferred to Equitable. It was not invested in insurance bonds in Equitable. 58If the jury accepted Mr Florent's evidence, it was undoubtedly open to them to be satisfied beyond reasonable doubt that the representations made by the appellant to Mrs Bohannon were knowingly false, and that the cheque was obtained for Nambucca and the appellant knew that it would not be invested in insurance bonds. In the appellant's submission, however, Mr Florent's evidence was undermined by other evidence, namely - * Mrs Bohannon's evidence was that on 5 May 1995 the appellant was at her house with her and her husband, when he obtained the cheque; it was the day after her birthday; * Mrs Bohannon denied that she "authorise[d] Mr Florent to withdraw that money and deposit it with Nambucca Investments"; and * on 15 May 1995 Mrs Bohannon wrote to Mr Florent's assistant, Mrs Duncan, "I should have 'phoned you on Friday authorising you to put the cheque for $20,000 into a trust for our two grandsons, but I got distracted and completely forgot about it", and gave birthdates of the grandchildren. 59The appellant submitted that "the essential elements of the conversation alleged by Mr Florent" were denied by Mrs Bohannon, and that the conversation was not consistent with the letter of 15 May 1995; further, that Mrs Bohannon was likely to have accurately recalled 5 May 1995 as the day after her birthday, and the day the appellant was at her house collecting the cheque. He submitted, in substance, that Mr Florent's evidence of the appellant instructing that the money be paid to Nambucca could not be accepted, and that Mr Florent had paid the money out to Nambucca without instructions. 60There is no substance in these matters. The cheque was paid into Mr Florent's trust account on 12 May 1995, and the jury could readily conclude that he was in error as to the date on which the appellant was in his office. Mrs Bohannon's denial must be seen in context: to her, the money was being paid to Equitable, and any agreement to Mr Florent paying it to Nambucca was only as a step to payment to Equitable. It was readily open to the jury to consider that she did not deny "the essential elements of the conversation alleged by Mr Florent", and to regard the letter of 15 May 1995 as referring, in Mrs Bohannon's mind and as she said in her evidence when asked about it, to putting the money into "an insurance trust", meaning the purchase of the insurance bonds. Ground 13 61For ground 13 further evidence was put before this Court, namely - * an affidavit of the appellant sworn 21 October 2010; * a bundle of Judicial Commission documents, as to the documents dated 5 May, 6 July and 4 August 2004 as evidence of the facts and as to the remaining documents as communications to and from the Judicial Commission; and * an affidavit of Ms Kay Marinos sworn 19 November 2010. 62The appellant was cross-examined on and beyond his affidavit. The Judicial Commission documents were concerned with complaint by the appellant against the trial judge by reason of his sleeping during the trial. Ms Marinos was not cross-examined. 63The appellant relied on Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358. He submitted that the facts were "sufficiently similar to those in Cesan v The Queen ... to warrant the same approach being adopted in this case and accordingly to allow the appeal for the same reasons". 64In Cesan v The Queen the evidence was described at some length in the reasons of French CJ at [23]-[45]. The fact finding by Basten JA in this Court was summarised by his Honour at [58], and evidently accepted, and his Honour said at [94]-[95] - "[ 94] 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." 65Gummow J referred at [105] to "[t]he evidence which was accepted by the Court of Criminal Appeal". It is not clear whether this is a reference to the findings by Basten JA, or to the summary next mentioned in the joint judgment of Hayne, Crennan and Kiefel JJ. 66Their Honours said at [115] - " [115] All members of the Court of Criminal Appeal accepted that, as Grove J put it, 'the probability [was] 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'. And all members of the Court of Criminal Appeal accepted the evidence of Mr Cesan that, during his cross-examination, the trial judge was heard to snore and that, as a result, some members of the jury 'were looking at the judge and not [Mr Cesan] or the prosecutor' and that some 'looked surprised and others were smiling'." 67The appellant represented himself at the trial. As earlier noted, it extended over some ten weeks. 68The appellant said in his affidavit that - * from time to time when the Crown Prosecutor was examining witnesses he would occasionally note a lengthy pause in the proceedings, causing him to look up from making notes of the evidence, and that on some of those occasions he observed that the judge appeared to be asleep (para 3); * the pauses commenced approximately 4 days into the trial and mainly in the afternoon, and were limited to occasions when the Crown Prosecutor was on her feet in the afternoon (para 3); * the pauses were not every day, and over the course of the trial he "observed this happen" once or twice a week (para 3); * on occasion when one of these breaks occurred he noticed a juror touch another juror on the shoulder "and direct her attention toward Judge Dodd, who appeared to me to be asleep, and they would both grin and giggle to themselves" (para 5); * "On occasions other adjacent jurors would appear to me also to take note of Judge Dodd's sleeping as a result of the actions of these two jurors" (para 6); * he occasionally observed that when the judge's associate noted the pause or the actions of the jury she would take actions to waken the judge (para 7); * "Due to the volume of documents called into evidence during the examination of Crown witnesses these periods of apparent sleep did not last, on my observation, for extended periods, usually in the order of minutes, but became more frequent as the trial drew on" (para 8); * the judge "seemed fully awake and involved when I was cross-examining witnesses" (para 9); and * when a tape recording of an ASIC record of interview was played for some hours on 31 October and 1 November 2002, and was played on another day, the judge "appeared to sleep for lengthy periods and I observed that some jurors (including but not limited to the two young members mentioned earlier) to at first find the Judge's demeanour amusing and later to display no apparent interest in listening to the playing of the record of interview, talking and laughing amongst themselves" (para 11). 69The appellant said that he did not think it was his role to draw attention to the apparent sleeping during the presentation of the Crown evidence, and that he "wasn't game enough to do it myself". He said that he did not refer to the sleeping during the hearing or in his closing address "because I didn't want to get [the judge] offside". 70Before referring to the cross-examination of the appellant, it is convenient to note the three documents in the Judicial Commission documents standing as evidence of the facts and the affidavit of Ms Marinos. 71In March 2004 the appellant wrote to the Judicial Commission concerning the judge sleeping, and on 25 April 2004 he made a formal complaint. The complaint was investigated, and the Commission determined that it was established and that it should be classified as minor pursuant to s 30(2) of the Judicial Officers Act 1986 (NSW) and referred to the Chief Judge. 72One document was a file note of a conversation on 6 July 2004 between an officer of the Judicial Commission and Fullerton SC, who had been the Crown Prosecutor at the trial. It read - "ELIZABETH FULLERTON SC - FORBES CHAMBERS 9390 7777 (6 JULY 2004) * Knows the judge well - not in a social sense. * Appeared before him more than once. * During the course of a trial he drops his chin, which can give the appearance that he is 'nodding off'. * When he drops his chin in this way it could appear to an observer that he was asleep. * If one stops - he will immediately pay attention - he misses absolutely nothing. * In her experience it does not impact on his ability to concentrate on the evidence. * He is generally painstaking in his attention to detail and in the Kearn's [sic] trial he provided a very good summing up. * While he may appear to be asleep at times, she could not say that he was. * Mr Kearn's [sic] represented himself and the judge assisted him to the full extent that he could. * Happy to make a formal statement if required." 73Another document was a letter from the trial judge to the Judicial Commission dated 5 May 2004, responding to a letter from the Judicial Commission which was not in evidence but apparently conveyed the appellant's formal complaint. That complaint had included that the judge "was often asleep during the afternoon for periods of approximately 15-45 minutes and on some occasions either Counsel for the Prosecution or the Defendant had to wait for his Associate ... to make sufficient noise to wake him up so that he could address a question of evidence/procedure". 74It is sufficient to note from the trial judge's letter - "I do not believe I fell asleep on the bench during Mr Kearns' trial. I was not 'often asleep during the afternoon for periods of approximately 15-45 minutes'. I did not have to be woken to address questions of evidence or procedure. I do not believe that any action or behaviour on my part affected adversely the jury's understanding of the case or the outcome for Mr Kearns. ... I suggest that the possibility that a judge would be allowed to be clearly asleep or even suspected to be asleep by the parties for 15-45 minutes during a trial is bordering on preposterous. At some point at the trial of Mr Kearns I believe I adopted the practice of taking a short break at about 3 pm, primarily for the jury's benefit. I suggest that practice alone makes it highly unlikely that I was asleep for up to 45 minutes in the afternoons. I do not deny that during some trials there is a danger of sleep, either due to tiredness or boredom or a combination of both. I have a variety of strategies to deal with that danger. One of them is to tell my associate to make sure that I do not go to sleep during what I know will be trying periods in a trial. I have no doubt that to this end at some times during Mr Kearns' trial my then associate passed notes to me and occasionally tapped the bench or made other slight noises. This was not on the basis that the parties had to wait for her to make sufficient noise to wake me up so that I could address a question of evidence or procedure." 75The third document was another letter from the trial judge to the Judicial Commission dated 4 August 2004, responding to another letter from the Judicial Commission which was not in evidence. Specifically as to the appellant's trial, the judge wrote - "As to Mr Kearns' complaint, I expressed myself in part in terms of 'belief' as opposed to absolute denial because his trial took place a considerable time ago and I do not have a detailed recollection of every day of it. But the more I think about it and the more I recollect the more convinced I become that I am correct in my belief that I did not fall asleep during the trial even for seconds. As to the gravamen of his complaint, I assert absolutely that I have never been asleep on the bench for 15-35 minutes. For one thing, during his trial there were a large number of documents admitted into evidence both for the Crown and in his own defence case and a large number of documents marked for identification. Pronouncing upon those as they arose sprinkled thoughout the case would have kept anyone awake most of the time. For another, some afternoons were taken up with Mr Kearns being on his feet, cross-examining one or other of the witnesses. I assert absolutely that when he was on his feet I was not asleep. As I recollect, I had to deal with a number of Crown objections from time to time. I recollect that Mr Kearns had difficulty, particularly some afternoons, in formulating his questions. On at least one such occasion or possibly more he searched among his papers, literally wandering from one file to another unsuccessfully. I believe I may have given him a short adjournment on at least one such occasion to collect his material and his thoughts. It may be that I adjourned early one afternoon, either for that purpose or because he was not feeling well. On occasion he would, in the course of cross-examination, seek the Crown's assistance in locating or checking documents. I believe the transcript (which I do not have) will show some but not all of this. It will not show his physical movements nor will it record all of the long pauses between questions that sometimes occurred. It will probably not record the fact of his consultations from time to time with the Crown. It will record my dealing with questions of evidence and procedure as they arose and my belief is that the transcript will record my dealing with those matters promptly and with a full understanding of what has gone before. Mr Kearns himself gave evidence over 4 days. I assert absolutely that I was not asleep while he gave evidence. I believe that I gave him what assistance I properly could in the presentation of his evidence. On a further day Mr Kearns called 2 witnesses in his defence case. I assert absolutely that I was not asleep while he was presenting his case through those witnesses. Addresses were made over 4 days. I assert absolutely that I was not asleep while the Crown or Mr Kearns was addressing the jury. I know that I listened to Mr Kearns for one day and part of the next day attentively. I then commenced summing up immediately and that continued over the next 2 days. Quite frankly I do not know where I could possibly have got the opportunity to go to sleep during Mr Kearns' trial." 76Ms Marinos instructed Ms Fullerton during the trial. She sat at the bar table, assisting with documents and taking notes. She said that the Judicial Commission file note of Ms Fullerton's comments "accurately reflects my observations during the trial regarding his Honour", and that to the best of her recollection she did not observe that the judge appeared to have fallen asleep nearly every afternoon, was often asleep nearly every afternoon, was often asleep for periods of approximately 15-45 minutes, or slept during the prosecution's examination in chief. She also said - "10. I am also aware of the specific allegations made in the applicant's most recent affidavit sworn on 21 October 2010. With reference to the specific allegations set out in: (i) paragraph 3 - to the best of my recollection I did not observe the judge to sleep as described by the applicant, or at all. (ii) paragraphs 5 and 6 - to the best of my recollection I cannot recall observing any jurors behaving in the manner as described by the applicant. As stated above, I was seated at the bar table, closer to the jury box than the applicant. (iii) paragraph 11 - to the best of my recollection I did not observe the alleged conduct of Dodd DCJ nor of the jurors, as described by the applicant. A copy of an edited version of the transcript of the applicant' record of interview was tendered as part of Exhibit C2, and each juror was provided with a copy before the tapes of the interview were played (see trial transcript AB V5 at 1075)." 77It will be apparent that the complaint to the Judicial Commission of often sleeping during the afternoon for periods of approximately 15 to 45 minutes differs from the evidence in the appellant's affidavit. The principal differences between that evidence and the appellant's communications with the Judicial Commission were - * In a letter of 17 March 2004 the appellant said that during his trial "it did appear Judge Dodd had fallen asleep nearly every afternoon and often there would be a delay (much to the amusement of the jury) while we waited for his associate ... to surreptitiously take steps to wake him up"; this did not confine the sleeping to during the Crown case, and "nearly every afternoon" was more frequent than once or twice a week. * In the formal complaint the appellant said that the judge "was often asleep during the afternoon for periods of approximately 15-45 minutes and on some occasions either Counsel for the Prosecution or the defendant had to wait for the Associate ... to make sufficient noise to wake him up so that he could address a question of evidence/ procedure"; apart from frequency, this asserted longer periods of sleeping. * In the communications to the Judicial Commission the appellant made no specific reference to sleeping during the playing of the tape recording of the ASIC record of interview. * Save for the general reference in the letter of 17 March 2004 to the amusement of the jury in those communications, the appellant did not refer to occasions of the jury's notice of and reaction to the apparent sleeping. 78These matters were taken up in the cross-examination of the appellant. 79The appellant affirmed his evidence that the sleeping was in the afternoons, when the Crown Prosecutor was leading evidence, one or two times a week. He said that a pause would cause him to look up, and his observation of the jury would lead him to the judge. He agreed that the judge "would be alert and proceedings would continue". 80The appellant said that he was talking of minutes, not of twenty or forty-five minutes. He agreed that what he wrote to the Judicial Commission about forty-five minutes was not accurate; "No it was just my attempt to bring the whole thing to their attention for them to address it". What he wrote about counsel for the prosecution or the defendant having to wait for the judge to wake up was also not accurate - "I was trying to draw the attention of the Judicial Commission to what I considered a serious sort of miscarriage if you like that they should address. I didn't, I thought once they got that information they would get it from other people. It was not just in regard to my trial, it was a general problem." 81The appellant also agreed that telling the Judicial Commission it was nearly every afternoon was not accurate, and that he "exaggerated the frequency". He agreed also that he exaggerated the length of time and exaggerated "that it had anything to do with you being on your feet". 82The appellant agreed that he said nothing to the Judicial Commission about the playing of tapes; he was unable to agree that there was only one afternoon spent playing a tape. He agreed that he had not said to the Judicial Commission that the jury was distracted from listening to the evidence. Importantly, he said, "I don't know whether I would say that [the sleeping] has distracted them from listening to the evidence". 83In my opinion, the account given by the appellant in his affidavit should not be accepted. He submitted to the effect that the differences from what was said to the Judicial Commission favoured its acceptance, because he could have tailored his evidence to match the earlier complaints; this, however, is odd reasoning, particularly when the assertion of sleeping for up to forty-five minutes would plainly not survive examination. There is no reason to give greater credence to the cut-down account than to an admittedly exaggerated account given not for accuracy, but to excite the Judicial Commission's interest. The appellant's credibility is significantly damaged. 84It is not irrelevant that the 17 March 2004 letter to the Judicial Commission shows that the appellant had been told by an acquaintance prior to the trial that the judge "goes to sleep most afternoons during criminal trials, you should get that on the record", and that he was game enough to make a bias application to the trial judge although fearful that it would put the judge offside; this casts doubt on why, if there was the extent of jury distraction of which he gave evidence, he did not get the sleeping on the record. The assertion in para 11 of his affidavit that jurors displayed no apparent interest in listening to the playing of the record of interview is particularly at odds with the appellant's reticence in his oral evidence to say that the sleeping had distracted the jury from listening to the evidence. 85In other respects doubt is cast on the appellant's evidence. He said that the pauses when the Crown Prosecutor was on her feet commenced approximately four days into the trial, but on days 4, 5, 6 and 7 the appellant was cross-examining Mr Phillip Hall. Only on five days was the Crown leading evidence during the whole of the afternoon, and on those occasions there were many documentary tenders. Further, the tape recording of the ASIC record of interview was not played on the afternoon of 1 November 2002, although it may be that the appellant had not intended to attribute the tape recording sleeping to afternoons. 86There is no evidence before the Court, which I accept, that his Honour was asleep on any occasion. Further, when regard is had to the file note of the conversation with Ms Fullerton, and to the affidavit of Ms Marinos who was not cross-examined, I am not satisfied that there was more than occasional appearance that the trial judge was asleep; but upon the pause the trial judge (as the appellant agreed) "would be alert and proceedings would continue". I do not accept that there was the jury reaction of grinning and giggling, or when the tape recording was played of distraction from listening, as asserted in the affidavit. 87The facts in the present case are markedly different from the facts in Cesan v The Queen . It is nonetheless necessary to address whether there was a miscarriage of justice on the facts in this case. 88In Cesan v The Queen French CJ said at [93] that "[i]f 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". His Honour concluded - " ... that 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," (at [96]) 89His Honour's conclusion was amplified in his consideration of the application of the proviso - " [97] It could not be said in this case that there was no substantial miscarriage of justice within the meaning of the proviso to s 6(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." 90Gummow J expressed the occasion for the miscarriage of justice - "[105] The superintendence of the trial by the trial judge required him to ensure that the jury was not distracted from paying full attention. The evidence which was accepted by the Court of Criminal Appeal showed both that the jury was distracted from paying attention to all of the evidence and that the very source of the distraction was the sleeping judge." 91The joint judgment of Hayne, Crennan and Kiefel JJ referred at [112] to a miscarriage of justice "because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given". Their Honours later said - "[116] The importance of the evidence given in the Court of Criminal Appeal by Mr Cesan was that it showed that during the cross-examination of one of the two accused on trial at least some members of the jury were not paying attention to the evidence being given. And the findings made by all members of the Court of Criminal Appeal showed that the distraction that occurred during Mr Cesan's cross-examination was probably no isolated incident. There were other substantial periods of time during the trial when the trial judge was asleep and it follows, as Basten JA rightly concluded, that it is probable that the attention of members of the jury was distracted from other evidence being adduced because the trial judge was asleep. And because the trial judge was asleep, no step was taken to refocus the jury's attention upon the evidence. ... [118] As noted earlier in these reasons, in considering whether there was a miscarriage of justice at the trial, attention must focus upon the respect or respects in which it is said that there was some departure from the proper conduct of the trial, rather than upon the cause of the departure. That is why, in the present cases, to focus only upon the fact that the trial judge fell asleep during some parts of the trial diverts attention from identifying whether there was some miscarriage. [119] What is important, in these cases, is that the jury was distracted from paying attention to all of the evidence. And it was upon the assessment of all of the evidence led at trial that the jury's verdict had to be founded. The repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the accused was giving his evidence, constituted a miscarriage of justice. [120] Ensuring that the jury is not distracted from paying full attention to its task is pre-eminently a matter for the trial judge. If trial counsel is concerned that members of the jury cannot give, or are not giving, proper attention during the trial, it will be for counsel to raise that issue with the trial judge. Ordinarily, if the trial judge does not act of his or her own motion, and if trial counsel says nothing, an appellate court will not later be able to conclude that the jury did not pay attention to the evidence that was led. In particular, proffering the opinion of one or more observers about whether the jury appeared to be paying attention to proceedings would not ordinarily suffice to show that there has been a miscarriage of justice. The absence of intervention by the trial judge will usually far outweigh the value of any opinion offered by some observer after the trial is over. [121] In the present cases, however, the evidence that was accepted by the Court of Criminal Appeal went beyond the bald assertion of observers that the jury seemed not to have paid attention during the trial. The evidence that was led in the Court of Criminal Appeal showed that the jury was distracted from paying attention to all of the evidence and was distracted because the trial judge was asleep." (footnotes omitted) 92Heydon J adopted the reasons given by Gummow J and by Hayne, Crennan and Kiefel JJ. 93There may be a difference in emphasis between the Chief Justice and the other members of the court. The Chief Justice may have regarded a judge's substantial failure to maintain the necessary supervision and control of the trial as a matter distinct from whether the judge's conduct created a distraction during the trial process, whereas the other judges saw the distraction by the judge's conduct as itself the failure in necessary supervision of the proceedings. 94Not every minor inattention by a judge or distraction of the jury, however, will bring failure of the judicial process or departure from the proper conduct of the trial amounting to a miscarriage of justice. As was said by French CJ in Cesan v The Queen at [72], "The courts are human institutions operated by human beings and there must be a margin of appreciation for human limitations. Otherwise the judicial system would be rendered unworkable by the imposition of unachievable standards". 95This was a long trial, to which these observations are particularly pertinent. In my opinion, it has not been shown that, by the occasional appearance of sleeping, there was distraction of the jury from attention to the evidence and to the trial judge's directions constituting a miscarriage of justice. Order 96I propose that the appeal be dismissed. 97LATHAM J : I agree with Giles JA. 98ROTHMAN J : I have had the advantage of reading in draft the reasons for judgment of Giles JA. I agree with the orders proposed by his Honour and with his Honour's reasons for judgment, except on the question of leave to appeal. 99As a consequence of his Honour's treatment of the facts and grounds for appeal, it is unnecessary to repeat any of the detail, but I can content myself with a comment on two distinct issues. Leave to appeal 100As a member of the Court in GAR v R (No 1) [2010] NSWCCA 163, it is appropriate for me to comment, at least briefly, on the issue of the grant of leave. To the reference by his Honour Giles JA to GAR v R (No 1) , supra, should also be added GAR v R (No 2) [2010] NSWCCA 164 at [10] and GAR v R (No 3) [2010] NSWCCA 165 at [5]. The three judgments were handed down as a suite of judgments dealing with three distinct appeals that were argued at the same time and relied upon the same issue of alleged "fresh evidence". The issue of whether leave to appeal was necessary did not loom large in the submissions of any of the parties in any one of those appeals. Rather, the parties concentrated on whether leave should issue on the merits. Nor did the requirement for leave occupy significant discussion time between the Court and counsel. 101The earlier provisions of s 474C of the Crimes Act 1900 required the Court "to deal with the case so referred in the same way as if the convicted person had appealed against conviction". On one view, a person appeals before leave is granted: see s 5 of the Criminal Appeal Act 1912. By the foregoing section a person appeals under the Act "with the leave of the court or upon certificate of the judge of the court of trial" on any ground involving the question of fact alone, a question of mixed law and fact or any other question. Relevantly and most importantly, the Act prescribes that "a person convicted ... may appeal" either as of right or by leave or certificate. The grant of leave (or the grant of a certificate by the trial judge) relates to "any ground of appeal" which involves questions of fact or mixed law and fact. An appeal by right is against the conviction "on any ground which involves a question of law alone". 102Thus, leaving aside a reference to the Court, such as the present case, any proceeding initiated by an appellant may involve grounds for which there is a right of appeal, grounds for which a certificate of the trial judge has issued and/or grounds for which leave is necessary. It is not all of the "appeal" that is of right; it is the ground of appeal that is either of right or requires leave or a certificate. 103The foregoing analysis renders even more difficult the construction of the relevant provisions. The Court must be extremely cautious in using the Criminal Appeal Rules, promulgated as delegated legislation under the Criminal Appeal Act , as a basis upon which to construe the Act itself. Further, it would seem that the provisions of s 77(1)(b) are more likely to result in the outcome which Giles JA prefers than would a construction of s 474C(1). The reason for that view is that s 77(1)(b) requires that the whole case "be dealt with as an appeal", while s 474C(1) of the Crimes Act , and the ancillary provisions thereto, referred to the case being dealt with in the same way "as if the convicted person had appealed". To the extent that there is a distinction in those words, the latter provision is more consistent with the continued requirement to obtain leave or a certificate. 104In most instances, and certainly in this case, the issue is not a live one. If leave were necessary, then, in my view, leave should be granted. 105Nevertheless, it is necessary, in my view, to deal in a little more detail with the operation of the Criminal Appeal Act and the relevant provisions of the Crimes (Appeal and Review) Act 2001. As earlier stated, an application to the Court of Criminal Appeal to overturn a conviction is allowed by s 5(1) of the Criminal Appeal Act . It grants a right to a convicted person to appeal. 106The use of the word "may" in s 5(1) is facultative, it allows an "appeal" at the discretion of the person convicted, which, if lodged, must be considered by the Court: Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347-348. 107By operation of s 5(1)(a) of the Criminal Appeal Act , the convicted person may appeal to the Court against conviction on any ground involving a question of law alone. Further, by operation of s 5(1)(b) of the Criminal Appeal Act , the convicted person may appeal to the Court, by leave or after grant of a certificate by the trial judge, against conviction, on any other ground. It is unnecessary to deal with sentence appeals under s 5(1)(c), other than to note that they also require leave of the Court. 108As earlier stated, a document (to use a neutral term) lodged may seek to appeal both conviction and sentence; and may seek to appeal conviction under each or both of s 5(1)(a) and s 5(1)(b). In such a case, the appeal against conviction on a ground or grounds involving a question of law alone is of right and any other ground requires either a certificate of the trial judge or leave of the Court. 109In that way, the Criminal Appeal Act requires that each ground of appeal be treated quite separately. The Act seems to treat each ground as a separate appeal, which must, procedurally at least, be dealt with separately. The foregoing is not intended to suggest, and does not require, separate proceedings. 110Once an appeal is lodged, and leaving to one side the requirement for leave, the Court is required to deal with it: see Brideson , supra. For each ground for which leave is necessary, there must be consideration of the grant of leave. 111In this case, the only basis for the application or petition for review was what has become Ground 13 in these proceedings. The petition for review of the conviction raised only that ground. The Minister of the Commonwealth referred "the case" and the Minister of the State referred "the whole case" to the Court of Criminal Appeal, each under s 77(1)(b) of the Crimes (Appeal and Review) Act . 112The question of leave depends on the proper interpretation of the phrase "the whole case" (s 77(1)(b)) and the meaning of the term "be dealt with as an appeal" (s 77(1)(b) of the Crimes (Appeal and Review) Act ). 113In that respect, it is necessary to consider the judgments in Mickelberg , supra, Mallard , supra, and JJT , supra. In Mickelberg , the High Court was dealing with an appeal from the Supreme Court of Western Australia in which application was made to admit fresh evidence. The Attorney General of New South Wales, intervening pursuant to the s 78B Notice, submitted that, where the Attorney General possessed a power to refer the matter to the Court of Criminal Appeal, then, if fresh evidence could be admitted, it ought not. 114In Mickelberg , the joint judgment of Toohey and Gaudron JJ, recited by Giles JA, above, refers to the whole case. But in that case, the ground of appeal was that the fresh evidence disclosed, and otherwise there existed, an unreasonable verdict (as it would now be called). In those circumstances, it must be necessary for the Court of Criminal Appeal to examine all of the evidence (and the whole of the trial) in order to reach a conclusion. 115Likewise, in Mallard , supra, the High Court was dealing (again in relation to the equivalent Western Australian legislation) with the effect of fresh evidence on the appropriateness of conviction. As a consequence, all of the evidence, "whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant" is required to be considered: Mallard , supra, at [10], per Gummow, Hayne, Callinan and Heydon JJ. 116In both Mickelberg and Mallard , "the case" was the unreasonableness of the verdict and/or miscarriage of justice and required all aspects of the trial to be examined. This is also true in JJT , supra, where there was a "change in heart" on the part of one of the witnesses requiring reassessment of the whole evidence. 117In the case now before the Court, no ground was raised in the petition other than a miscarriage of justice based upon the allegation that the judge was asleep. It was not suggested that any ruling was incorrect. Nor was it suggested that the summing-up was deficient. Further, it was not suggested that the result was unreasonable. The petition raised one matter. The justiciable controversy was whether, because the judge had fallen asleep during the trial, there had been a miscarriage of justice. 118In resolving that justiciable controversy, it would be necessary to examine the trial, in its entirety, for evidence of inattentiveness or otherwise supporting (or excluding) the allegation of inattentiveness, or any resulting miscarriage. 119But the controversy is defined by the pleadings, in this case, the petition and the reference. The "whole case" is the whole of that controversy. The reference replaces, where it may otherwise have been required, the grant of leave by the Court or the issue of a certificate by the trial judge. 120After reference, any ground of appeal that is not within the justiciable controversy referred is to be treated in the same way as if it were an appeal under s 5(1) of the Criminal Appeal Act . The alternative construction would lead to some anomalies. 121The Governor or Minister may refuse to consider or otherwise deal with a petition, if the matter complained of has been fully dealt with in the proceedings at trial; has previously been dealt with under the review provisions; or has been the subject of appeal. 122If, as is suggested by some analyses but not accepted by me, the provisions of the Act mandate the consideration of each and every ground raised at the hearing of the appeal but not in the petition, then no inherent or implied power would entitle the Court to ignore a ground. Of course, if the ground were truly frivolous or vexatious, it would take little or no consideration, but there is a significant difference between, on the one hand, the exclusion from consideration of any issue that the Court is mandated to consider and, on the other hand, the determination that the issue is frivolous or vexatious, as a consequence of which the appeal on that ground would be dismissed. 123Further, such a construction would lead to the anomalous result, that grounds of appeal could be raised at hearing, and would be required to be dealt with, which grounds would have resulted in the ground not being considered by the Governor or Minister, pursuant to s 77(3) of the Crimes (Appeal and Review) Act . 124I accept that the foregoing is an interpretation of the legislation that is not universally accepted, and may be against the generally accepted view. But in my view, the Governor or Minister refers the case raised by the petition, and may, in so doing, refer some grounds, but not others. And the Court is required to deal with the whole of the case referred. The "appellant" may raise other grounds (i.e. that were not raised in the petition and referred), but the Court is required to deal with such grounds as if it were an appeal proceeding, namely, to the extent necessary, consider leave for each ground not described by s 5(1)(a) of the Criminal Appeal Act . 125Ground 13 in these proceedings was the basis for the matter referred by the Attorneys, and each other ground, to the extent that it does not involve a question of law alone, requires leave. 126As earlier stated, it is unnecessary to determine the issue finally. If leave were necessary, it should be granted. Ground 13 127As already stated, I fully agree with the analysis of Giles JA on the question of facts and all other questions save as to whether leave is needed. 128The evidence before the Court on this appeal, relevant to Ground 13, is in relatively short compass. The appellant has given a version in the witness box which is at odds with the version given on earlier occasions and, frankly, none of his versions can be believed. 129As a consequence, there is no evidence before the Court, which can be accepted, that his Honour the trial judge was asleep on any occasion. Independent evidence is inconsistent with the assertions of the appellant in that respect (see, particularly, the Affidavit of Ms Marinos, who was not cross-examined). 130While there is other evidence that his Honour's positioning of his head may have given an uninformed observer the impression that his Honour may be nodding off, that impression was, on the evidence before the Court, disabused by the obvious attentiveness of his Honour to the occurrences in court, including objections to evidence, the tendering of material, and the issues that arose from time-to-time, seemingly at a point in time when his Honour was giving the earlier mentioned impression. 131I agree with the analysis of Giles JA in this and other regards and with his analysis on all grounds of appeal. For the reasons given by Giles JA, and the further reasons herein, I agree that the appeal should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2011