Supreme Court New South Wales Medium Neutral Citation: The Application of Robert Minniti [2011] NSWSC 835 Hearing dates: On written submissions Decision date: 20 July 2011 Jurisdiction: Common Law - Criminal Before: Latham J Decision: The application under s 79(1)(b) Crimes (Appeal and Review) Act 2001 is refused. Catchwords: Criminal law - application for enquiry after conviction - application under s 79 Crimes (Appeal and Review) Act 2001 - claim of doubt or question as to applicant's guilt - no substantial failure of trial judge to perform duty in reality or appearance - judge's conduct did not affect outcome of trial or create a risk that trial would be affected Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Robert Minniti v R [2006] NSWCCA 30 Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Cesan v The Queen ; Mas Rivadavia v The Queen [2008] HCA 52 Cesan v Director of Public Prosecutions; Mas Rivadavia v Director of Public Prosecutions [2007] NSWCCA 273 TKWJ v The Queen (2002) 212 CLR124 Nudd v The Queen (2006) 80 ALJR 614 Application of Pedrana [2000] NSWSC 970 Category: Principal judgment Parties: Robert Minniti (Applicant) Regina (Respondent) Representation: Gregory J Goold (Applicant - submissions prior to 14 January 2010) Criminal Justice Division, Attorney-General's Department (Respondent - submissions prior to 3 June 2010) File Number(s): 10/10204 JUDGMENT 1The applicant, Robert Minniti, was convicted by a jury on 2 December 2004 on a charge of attempting to possess not less than a commercial quantity of methylenedioxymethamphetamine (MDMA) that had been imported into Australia on 4 October 2003. 2The applicant was sentenced on 17 March 2005 by the trial judge, Dodd DCJ, to a non parole period of eight (8) years, with a head sentence of twelve (12) years. 3The applicant appealed against his conviction and sentence. That appeal was dismissed on 20 February 2006 : Robert Minniti v R [2006] NSWCCA 30. Whilst I was a member of that Bench and joined in the orders that were made, the present application relies upon a ground that was not argued for the purposes of the appeal. 4The applicant seeks an order under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (the Act) referring the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The basis for the application arises out of the contents of a number of affidavits, which collectively assert that the trial judge and some members of the jury were asleep at various times during the trial. It is submitted that this evidence suggests that there was a significant departure from the proper conduct of the trial, in that the trial judge's supervision of the trial and the jury's attention to the evidence were inadequate. 5The Court can only refer the case "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case" : s 79(2) of the Act. The inquiry is not a judicial act, but an administrative function : Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]. 6It is necessary to briefly refer to the Crown case at trial and the nature of the issues that were joined between the parties. 7On 4 October 2003 a large piece of farm equipment was imported into Sydney from Belgium. A very large quantity of tablets were secreted within the machinery. On examination by Customs the tablets were found to contain 3-4 Methylenedioxymethamphetamine also known as MDMA or ecstasy. 8On 9 October 2003, a Dutch national named Rutten entered Australia to supervise the distribution of the tablets. Later that month, two Belgian nationals came to Australia, removed the tablets from the machinery and provided them to the Rutten. 9Rutten took the tablets to a city apartment. Rutten and the Belgian nationals were arrested on 1 November 2003 by Federal police agents. On the same day, a Mr Vermes borrowed a white VW transporter with Victorian registration plates. 10Police substituted the ecstasy tablets in one of the containers with a large quantity of an inert substance. The police also took the Toyota vehicle which had been used by Rutten in Sydney and parked it in Goulburn Street at the intersection of George Street. The bag containing the inert substance was placed inside the vehicle. 11Rutten agreed to assist the police. He made a phone call to a man whose number had been provided to him by his European contact. On 2 November 2003 Rutten travelled to the corner of George and Goulburn Streets in possession of a covert recording device. Federal police kept Rutten under surveillance. 12Later that afternoon, Rutten met Vermes at a cafe at that location. Rutten recognized Vermes' voice from a telephone conversation the previous night. After some conversation they left the cafe together and headed towards the Toyota parked in Goulburn Street. They were joined en route by the applicant. 13At the vehicle, Rutten took out the bag the police had placed there and all three men retraced their steps back to the corner of George Street and Goulburn Street. Along the way, the applicant took over possession of the bag from Rutten. The applicant then left Rutten and Vermes at the intersection and took the bag from that location to Rawson Place, further south of George Street near Central Railway. On the way the applicant met up again with Vermes and another man who was standing in the street. All three kept walking south. The applicant left Vermes and the other man at the intersection of George Street and Rawson Place and proceeded along Rawson Place towards Pitt St. 14The Victorian VW was parked in Rawson Place. The applicant took the bag to an alcove near the vehicle and was then told to stop by a Federal police agent. The applicant left the bag and ran along Rawson Place away from George Street. He was apprehended by a number of Federal police agents. The bag was recovered and the applicant was found to have the keys to the VW vehicle in his pocket. 15Following retrieval of the recording device from Rutten later that day, a conversation between Vermes, Rutten and the applicant contained references by the applicant to walking back to the car with the bag "like normal fucking ... normal tourists." 16The applicant's case at trial was that he knew nothing about the contents of the bag. Upon his arrest, he exercised his right to silence. It was suggested to a number of police witnesses in the course of the trial that the applicant had not run from the police. The applicant's senior counsel submitted to the jury that at least one police witness had fabricated his account of the chase in that regard. The applicant did not give evidence and did not call any witnesses. 17Proof of the applicant's knowledge of the contents of the bag was circumstantial. The Crown relied upon the fact that the applicant and Vermes were at the relevant location together to meet Rutten, that the applicant took a very heavy bag, walked towards Central, was in possession of the keys to the vehicle, ran from police when they identified themselves and that the conversation recorded prior to his arrest was consistent with a plan to collect drugs whilst appearing to be tourists. 18The jury obviously drew the conclusion, beyond reasonable doubt, that there was no reasonable explanation on all of the evidence other than that the applicant was aware that the bag contained an illicit drug. Antecedent to that conclusion, it was necessary for the jury to find as a fact that the applicant ran from the police and that his "flight" evidenced a consciousness of guilt. In addition, the jury must have accepted the reliability of the tape recording and that the applicant's words disclosed a concerted effort to appear unobtrusive. 19The applicant has been represented throughout his trial, the Court of Criminal Appeal proceedings and in the lodgement of this application by the same solicitor. This factor assumes some significance for the purposes of determining whether the contents of the affidavits give rise to a sense of disquiet or unease in allowing the conviction to stand. 20As the affidavit evidence demonstrates, the applicant and members of his family complained to senior counsel at trial that the trial judge appeared to be sleeping for periods of time of up to 20 minutes. Up to three jurors were also observed to "nod off" during the trial. It is said that the applicant's legal representatives told the applicant that there was no legal redress available to him. 21About one month after the applicant was sentenced, the applicant's solicitor received an email from one of the applicant's supporters at the trial. In that email, which is annexed to the solicitor's affidavit of 24 June 2010, the author confirmed that the judge and a juror were asleep during the trial and that the applicant's family were of the opinion that the applicant did not get a fair trial. 22The solicitor responded by email on 2 May 2005, in part in the following terms :- "once we are in a position to prepare the grounds of appeal, I have no doubt that [counsel] will be keen to take every point and if he feels there is any mileage to be made out of the judge's attentiveness during the trial then by all means it will be made. Further I believe the shadow that this matter has cast over all the trials the judge has conducted will be something we can use in the appeal." 23Nine months elapsed between this email exchange and the hearing of the appeal. Different senior counsel appeared for the applicant on the hearing of the appeal. The applicant maintains that he and members of his family again raised this issue with counsel before the hearing of the appeal, but were told that it was not a viable ground of appeal. The applicant's solicitor confirms that he received the same advice from counsel. 24Six months after the applicant's trial, the applicant made a complaint to the Judicial Commission, consistent with the evidence that is now produced, to the extent that it was asserted that the trial judge slept from time to time. That complaint was not ultimately the subject of a hearing in the Conduct Division because of the retirement of the judge in late July 2005. 25Following the High Court's decision in Cesan v The Queen ; Mas Rivadavia v The Queen [2008] HCA 52 on 6 November 2008, the applicant and members of his family provided the affidavits (in December 2008) that are the basis of this application. All of those affidavits annex statutory declarations that were originally prepared in January 2007. The affidavit of the applicant's solicitor however was not prepared until June 2010 in response to the Crown's submissions on the application. 26I turn to the affidavits. 27The applicant's affidavit indicates that the applicant saw the trial judge "sleeping on many occasions throughout my entire trial proceedings. At times it was blatantly obvious that he was sleeping as his head fell forward and his reading glasses slid down towards the end of his nose and we could hear him snore." 28An affidavit sworn by Josie Minniti indicates that she witnessed the trial judge "fall asleep several times during the court case" and that the trial judge "would occasionally sit back in his chair, close his eyes and what appeared to be snoring." 29The affidavit of Giuseppe Minniti indicates that throughout the applicant's trial he saw the trial judge "close his eyes and what appeared to be him falling asleep." Mr Minniti also saw one member of the jury fall asleep, in that "she closed her eyes and appeared to have lost interest in the case and fell asleep". 30Teresa Minniti refers in her affidavit to the trial judge "closing his eyes, and appeared to be falling asleep on numerous occasions" and that this occurred "when important evidence was being given." 31Ms Christine Minniti says that she saw the trial judge "fall asleep throughout the trial". 32The applicant's partner, Kim Powell, says in her affidavit that she saw the trial judge "sleep for short and long periods of time". Ms Powell recalls one occasion when the trial judge slept throughout the whole of senior counsel's closing address which lasted, according to her estimate, for two hours. Ms Powell also saw three jurors "nodding off". 33Ms Angela Perrone says in her affidavit that she saw the trial judge falling asleep, in that "when he nodded off his glasses would slide to the end of his nose and his head would recline forward. At times he would nod off for short periods of five to 10 minutes and other times 20 minute intervals. I once even heard him snore." Ms Perrone also refers to one of the jury habitually falling asleep. 34Mr Anthony Ozzimo says in his affidavit that he saw the trial judge "falling asleep every day for up to 20 minutes at a time." He also saw "various jury members having naps and not paying attention during the trial." 35The applicant's mother says in her affidavit that she saw the trial judge asleep "on numerous occasions". She remembers certain characteristics, including "when he fell asleep he had a pen in his hand that would fall when he'd sleep. Glasses he was wearing would slide down his nose when his head would lower, he would awaken and fix them to their proper position. He would also rest his head in the palm of his hand and when he fell into a deep sleep his head would fall down. [The judge] would also bang his hands on the bench from awakening." Mrs Minniti said that she saw a number of jurors asleep. 36The applicant's father says in his affidavit that he saw the trial judge "lean back in his chair with his head resting on the back of the seat sleeping." 37Antonella Ozzimo, the applicant's sister, says in her affidavit that she saw the trial judge "on various occasions falling asleep at the bench." She also saw "various members of the jury falling asleep during the trial." 38Gino Perrone says in his affidavit that the trial judge was "sleeping or nodding off on many occasions." He indicates that the judge would fall asleep for five or 10 minutes "and snore loudly". Mr Perrone also describes the trial judge adjusting "his glasses towards the bottom of his nose as a decoy for his eyes closing and entering in a sleeping pattern." 39The affidavit of Gregory Goold, the applicant's solicitor during the trial, confirms that various members of the applicant's family were present during the trial and that, from time to time, members of the applicant's family approached him during breaks in the proceedings and at the end of the day's proceedings, in order to bring to his attention their observations of the trial judge's behaviour. Mr Goold responded on one occasion "well I saw him with his eyes closed but don't know whether he was sleeping or not." Mr Goold goes on to say that he brought these matters to the attention of the applicant's senior counsel. Mr Goold says that he remembers "from time to time looking at the judge and noticing that he had his eyes closed and was leaning back in his chair. For a majority of the time however my gaze was either directed at witnesses giving evidence or I was taking notes of the proceedings." Mr Goold raised the matter with senior counsel at the end of the trial in response to further complaints from members of the applicant's family and from the applicant himself. According to Mr Goold, senior counsel "indicated that he was unsure what could be done about this situation." 40Mr Goold's affidavit also confirms that the applicant's supporters were seated throughout the trial behind a glass wall separating the public gallery from the courtroom. Mr Goold maintains that he also sat there on occasions during the trial and that his hearing was not impeded by the glass wall. 41In summary, the evidence that emerges from the affidavits is:- * All of the deponents were present throughout the eight days of the trial in the public gallery, which was separated from the courtroom by a glass wall. * The trial judge was observed to close his eyes, drop his head and snore on several occasions during the trial, indicating that he had fallen asleep. * These periods of sleep were variously estimated at 5 to 10 minutes, up to 20 minutes, and on one occasion (during the applicant's counsel's closing address) for up to 2 hours. * The trial judge appeared to sleep for some period of time every day of the trial. * At least one, and as many as three, jurors appeared to "nod off" or sleep for some indeterminate periods of time during the trial (although the evidence is silent as to whether more than one juror was asleep at the same time on any given occasion). 42The Commonwealth Crown's instructing solicitor, Crown Prosecutor and the Australian Federal Police informant during the trial have no recollection of the trial judge sleeping on any occasion, although that may well be due to the passage of time since December 2004. More importantly, the Crown notes that the Judicial Commission records indicate that the judge commenced treatment for obstructive sleep apnoea in September 2004, that is, between the trial of Cesan ; Mas Rivadavia in June 2004 and the applicant's trial. Some improvement in the judge's condition might be reasonably expected to have occurred by the start of the applicant's trial on 23 November 2004. 43The tenor of the evidence in support of the application is consistent with the observations made of the same trial judge by witnesses in this Court in the appeal of Cesan v Director of Public Prosecutions and Mas Rivadavia v Director of Public Prosecutions [2007] NSWCCA 273. Given the reliance placed by the applicant upon the High Court's decision overturning the majority decision of the Court of Criminal Appeal, a closer analysis of the reasons supporting the High Court's decision is warranted. 44French CJ in Cesan at [72] noted that :- The appearance of a court not attending to the evidence and arguments of the parties and control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process is not being followed. That is not to say that every minor distraction, inattention, sign of fatigue or even momentary sleepiness constitutes a failure of the judicial function. 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. Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case. In so saying, it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act . 45Section 6(1) of the Criminal Appeal Act 1912 provides that the Court may set aside the verdict of a jury if it is of the opinion that there has been a miscarriage of justice. Notwithstanding the success of the appellant's case, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred (the proviso). 46Later in the course of French CJ's judgment in Cesan , "miscarriage of justice" was examined having regard to other High Court decisions, notably, TKWJ v The Queen (2002) 212 CLR 124 and Nudd v The Queen (2006) 80 ALJR 614, where the defect in the trials was one of trial process rather than error in directions. 47Ultimately, the Chief Justice formulated the approach to be taken in cases where a miscarriage of justice is said to arise from a failure of the judicial function in these terms (at [93]) :- If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including: 1. Whether the conduct of the judge can be said to have affected the outcome of the trial. 2. Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected. 3. Whether counsel raised the question of the trial judge's conduct at the trial. 4. Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge's conduct. None of these factors, taken by itself, is determinative. There is an overall assessment to be made in deciding whether a failure or apparent failure by the judge for whatever reason to attend to the duty of supervising and controlling the trial process amounts to a miscarriage of justice. In so saying it should be emphasised that the duty of counsel in a case of non-trivial inattention or sleep episodes is to draw these issues to the attention of the judge in the absence of the jury. The failure of counsel to do so may support an inference that the judge's conduct did not amount to a substantial failure in the judicial process at trial. However, it will not always be determinative. 48The outcome of this approach in Cesan was that a miscarriage of justice occurred as a result of the trial judge's substantial failure to maintain the necessary supervision and control of the trial and because the jury was distracted by his conduct, particularly during the accuseds' evidence. The substantial failure of the judicial process was established by the evidence before the Court of Criminal Appeal, which included the fact that the trial judge was asleep on a number of occasions on the 11 days when evidence was being given, that he slept at least once on most of those days and on some days on two or three occasions, that some of the sleep episodes lasted from 10 to 15 minutes while most lasted between two and 10 minutes, and that the judge's sleeping was accompanied by heavy breathing on a number of occasions and snoring during the accused's evidence. Furthermore, "it could not be said in this case that there was no substantial miscarriage of justice [given that] the judge's conduct had a discernible distracting effect on the jury." (at [97]) 49Gummow J also found that there was a miscarriage of justice constituted by the fact 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." (at [105]) His Honour agreed with Hayne, Crennan and Kiefel JJ with respect to the application of the proviso. 50Hayne, Crennan and Kiefel JJ noted at [112] that "the occasion for the departure from the proper conduct of the trial was the trial judge falling asleep. ... But for present purposes, attention should focus upon the consequences of the trial judge falling asleep." (referring to TKWJ and Nudd ). Their Honours placed particular emphasis upon the evidence in the Court of Criminal Appeal which demonstrated 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." (at [116]) 51Later their Honours said at [120] - [121] :- 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. 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. 52With respect to the application of the proviso, their Honours said :- 127. In these cases the miscarriage lies in the distraction of members of the jury from their task. And because that is the miscarriage of justice that occurred in these cases, it is not possible to conclude, on the written record of the trial, that the evidence properly admitted at trial proved the appellants guilty beyond reasonable doubt. ........... 129. In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty. 130. Each accused proffered an explanation of what was put against him. ... But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. 53Heydon J agreed with Gummow, Hayne, Crennan and Kiefel JJ. 54It is appropriate to observe at this point that the question whether the circumstances relied upon by the applicant give rise to the relevant sense of unease or disquiet is of a different character to the question whether a miscarriage of justice has occurred. The test under s 79 of the Act is less demanding than that under s 6(1) of the Criminal Appeal Act : Application of Pedrana [2000] NSWSC 970. However, the matters taken into account by the High Court in Cesan have a bearing on this application. 55The claims advanced in support of the application suggest that there has been the reality or appearance of a substantial failure by the judge to perform his duty. However, an examination of the trial transcript produces a rather different impression. 56The transcript demonstrates relevant and regular interventions by the trial judge on every day of the trial during the evidence of every witness. The frequency of these interventions can best be gauged by noting that there are 45 of them, eleven of them occurring on sequential pages, five of them at intervals of three pages, five of them at intervals of five pages, and the remainder at intervals of two, four, six, eight, nine and twelve pages. The longest period of no intervention is represented by 28 pages of transcript. The trial judge's comments include the repetition of a witness' answer to a question that is misinterpreted or misheard by counsel, queries as to the relevance of a question, directing a witness' or the jury's attention to an exhibit that is the subject of a question and rejection of repetitive questions. 57The trial transcript also reveals some exchanges between the judge and counsel which suggest that one specific claim made about the judge's conduct is grossly exaggerated, namely, the assertion by one deponent that the judge slept through the whole of senior counsel's closing address. 58The last witness in the Crown case commenced his evidence at 10:40 am on 30 November 2004. The Crown commenced its closing address immediately after the cross examination of that witness and continued until the luncheon adjournment. There was no morning tea adjournment. 59Following the luncheon adjournment the trial judge said :- Members of the jury, I owe you an apology for having kept you there this morning for so long. I'm sorry about that. I should have thought about that earlier, so please accept my apology, and if at any stage this afternoon any of you are feeling uncomfortable for any reason in the jury box, just give me a bit of a wave and let me know. I was looking at all of you from time to time, of course, this morning. I didn't see any signs of discomfort, otherwise I would have taken a break, but please let me know if there is anything like that this afternoon or at any time, for that matter. It sometimes happens for various reasons, I know. 60The Crown Prosecutor then continued his closing address for a further short period of time, which, judging from the four pages of transcript, may not have lasted more than about 10 minutes. The applicant's senior counsel commenced his closing address immediately thereafter. The address continued uninterrupted until the following exchange :- HH : Mr Ramage, I notice it is four o'clock. Are you going to be some further time? Counsel : I am not going to finish in the next minute, your Honour. HH : All right. Can I interrupt you there ... and can we finish it for the day? Counsel : Yes. 61The trial judge then allowed the jury to separate. The following discussion took place between the trial judge and senior counsel in the absence of the jury :- HH : Mr Ramage, I have let you go on because I don't like to interrupt counsel, but I am going to have to tell the jury that all of this stuff about the surveillance observations and the police officers' notes or not taking notes and the way in which they made their statements, and all that kind of stuff is, in view of the way the issues now stand, completely irrelevant. 62Senior counsel responded to that statement. The judge further queried the relevance of those aspects of his closing address, against the background of the content of the Crown address. The applicant's senior counsel submitted that the Crown Prosecutor had not confined himself in his address to six circumstances in order to establish the Crown case. His Honour then said :- That's what he did in the end, whatever it is he said along the way. You have conceded at the outset of your address that your client took the bag and took it down George Street, whether it was a long way, a short way, that's what he did. [And further] At this stage of the case I'm going to tell the jury to concentrate on what the real issues are. ..... I didn't interrupt your address while you were doing it, and I said that right at the start. If you are going to continue with it tomorrow, well, that's up to you. But I thought I should let you know now that that's what I will be saying to the jury. 63The applicant's senior counsel made further comments in relation to certain irrelevant portions of the Crown's closing address. The trial judge agreed to some extent, saying :- I will say appropriate things to the jury about both addresses, but you spent a lot of time on the evidence quoting particular bits of the evidence of particular police officers , and I thought I should say that to you at this stage, because that's my view, unless you can persuade me that it is in some way relevant to the issues that the jury has to decide. 64The proceedings then adjourned to 1 December 2004. 65The next day there was some preliminary discussion between the bench and counsel on the subject of directions relating to flight. The applicant's senior counsel resumed his closing address, which was transcribed over 11 pages, until the morning tea adjournment. Following the morning tea adjournment the closing address continued until the luncheon adjournment. 66After the luncheon adjournment, but in the absence of the jury, the judge said :- Just while the jury is coming, Mr Ramage, there was one thing, I know you didn't say it deliberately, but I thought I heard you say in respect of Ms Owens something like "who claims to have heard" - and this is not quoting you exactly - "what the accused yelled out". Counsel : I thought I withdrew that. It said she heard but couldn't make out the words. I quoted exactly. HH : No, no, but later on in another context, I think you said that, when you were talking about her not hearing Galic calling out to the accused, "police stop". Counsel : Yes, I did say that. Am I wrong? HH : I don't think she claims to have heard what the accused yelled out. Counsel : No, no, I accept that. I read out those passages. HH : Yes, but subsequently, when you were talking about what Galic said he called out to the accused - Counsel : Yes HH : - you said that Owens hadn't heard it, and you referred to her as someone who claimed to have heard what the accused had yelled out to Vermes and - Counsel : I meant that she claimed to have been present. ..................................................................... HH : That is not what she said, as I understand it. She said she didn't hear what they said. 67There was further discussion on the accuracy of senior counsel's representation of the evidence. 68Senior counsel's address then continued for a further 16 typed pages of the transcript. The trial judge commenced the summing up immediately thereafter, which continued over 18 typed pages of transcript. After sending the jury home, a further exchange occurred between the trial judge and the applicant's senior counsel. That exchange contained the following :- HH : Mr Ramage, there is only one other thing I wanted to raise with you that I think I ought to tell the jury. You said in your address when referring to the recorded conversation which is exhibit C, and the Crown's submission in relation to what occurs at line 34, that Rutten wasn't asked if he understood the conversation in the way suggested by the Crown, but, of course, if the Crown had asked that question of him, then whether you had objected or not, I wouldn't have allowed it. 69The trial was then adjourned to 2 December 2004. 70The judge's summing up continued the next day, concluding at the morning tea adjournment. During that adjournment, the applicant's counsel raised some aspects of the summing up which he considered required correction or supplementation. Relevantly, during that discussion, the judge received a note from the jury requesting written directions on possession and circumstantial evidence. 71After morning tea, the jury was given final oral directions and some written directions on flight. The jury retired on verdict at 12:18 pm. Written directions on possession and circumstantial evidence were supplied to the jury a short time later. 72The nature and content of the exchanges set out above, particularly the italicised passages, are completely inconsistent with the proposition that the judge slept through the entirety of the applicant's counsel's closing address. On the contrary, the judge demonstrates by his comments that he has paid close attention to it and that he has been mindful of the jury during this part of the proceedings. 73The judge's invitation to the jury to signal the need for a break during the closing addresses is also inconsistent with a failure to supervise the trial process. 74Having regard to the objective evidence relating to the conduct of the trial, I am not persuaded that there was either the reality or the appearance of a substantial failure by the trial judge to perform his duty. I am fortified in this conclusion by the fact that very experienced senior counsel and a specialist criminal instructing solicitor were not moved to put anything on the record at trial, or to pursue an avenue of appeal that had been plainly raised by the applicant. The refusal to do so was apparently supported by another senior counsel of the Victorian bar. The inference that is available from these circumstances is that these practitioners considered that, to the extent that the judge appeared to sleep for short periods of time during the trial, those periods of inattention did not constitute a substantial failure of the judicial process. 75Accepting for the purposes of the application that there may have been occasions when the judge appeared to sleep, or did "nod off" for short periods of time, there is no sound basis for concluding that the jury was distracted or otherwise affected by the judge's conduct, in the sense explained by the High Court in Cesan . None of the material suggests that the jury failed to perform their task of paying attention to the evidence in the trial because they were distracted by the judge's behaviour. It is said that some members of the jury appeared to "nod off" or "nap" or sleep from time to time, but episodes of fatigue and momentary inattention in the course of a trial among members of a jury are within "the margin of appreciation for human limitations". There has not been shown to be any compelling connection between the judge's conduct and the behaviour of certain members of the jury, such as was demonstrated in Cesan . 76It is instructive that Mr Goold's affidavit contains no reference to members of the jury falling asleep and that the complaints made to him by members of the applicant's family during the trial did not include observations about the impact of the judge's conduct on any member of the jury. Nor does Mr Goold refer to any episodes of audible snoring by the trial judge, notwithstanding that he was seated at the bar table for the majority of the trial and was therefore in much closer proximity to the bench than any member of the applicant's family. The applicant himself does not refer to any episodes of sleep on the part of the jury. 77Finally, once again accepting for the purposes of the application that the judge appeared to sleep or did sleep for relatively short periods of time, that conduct cannot be said to have affected the outcome of the trial, or created a risk that the outcome of the trial may have been affected. The issue for the jury was a very narrow one. The applicant made formal admissions under s 184 of the Evidence Act 1995 on the second day of the trial as to the whole of the Crown case up to the events of 2 November 2003. The jury's attention was confined to the evidence from which they were asked to draw the inference as to knowledge on the part of the applicant of the contents of the bag. The jury received written directions on flight, the concept of possession and the nature of a circumstantial case. In the absence of any evidence from the applicant that contributed to the pool of evidence from which the jury could draw the critical inference, the jury's task was relatively straightforward. 78Taking all of these matters into account, I have no sense of disquiet or unease in allowing the conviction to stand. In my view, there is no doubt or question as to the applicant's guilt. The application is refused. ********** 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: 04 August 2011