the thrill of legal proceedings

This is not a great look: link, judgment.  The High Court in Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52 has overturned two criminal convictions on the basis that the trial judge was asleep (and snoring) during large parts of the trial.

Having been a judge’s associate I can certainly sympathise with his Honour (and attest to the fact that this phenomenon is not all that uncommon*).  On the other hand the judge is the one person in a courtroom who has the power to stop a hearing for a bit of a break and a cup of tea as and when required.

I like the fact that the judge being asleep was not the problem so much as the distraction this caused to the jury.  Slotting into his supervisory role to the lower, sleepier courts nicely, the new Chief Justice of the High Court helpfully remarked that:

Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice.

In the facts, we are also told by French CJ that:

The next day [the accused] again noticed that the judge appeared to be asleep. He would slump in his chair and his head would fall forward and it would stay down for some time. He would suddenly lift it and appear to wake up before “nodding off again”. This happened several times for up to five or more minutes at a time.

and, furthermore, that:

At times during cross-examination he heard a “deep rumbling noise” from behind. He eventually realised it was the sound of snoring. Some of the jury looked at the judge, rather than at Cesan or the prosecutor. Some appeared surprised and others smiled. When he first heard the noise it was soft and not particularly distracting but eventually he found it hard to concentrate on the questions. When the snoring was at its loudest the prosecutor seemed to stop asking questions. Cesan turned to the judge’s associate, who shrugged her shoulders. There was a loud banging noise behind him and he looked back and saw the judge looking up startled. Questioning resumed, but after about 10 minutes he heard the snoring again. This happened a number of times while he was giving his evidence.

And as a former associate, I can definitely sympathise with this:*

The judge’s associate made a commotion with some papers and books and noticeable banging of the table until the judge opened his eyes. Members of the jury looked at the friends and family of Cesan during the proceedings and smiled, rolled their eyes, stared, laughed and engaged in “similar behaviour”. This was most apparent when Cesan was on the stand and the judge was sleeping.

Presumably it was somewhat more engaging for the guys up on serious drug charges…

* [The judge to whom I had the privilege of being an associate never slept in Court, although the solemn nature of hearings sometimes made it extremely difficult to attract his attention when he was deep in thought or concentrating on a witness or barrister.]