- Trial ruled unfair due to sleeping judge
- The Herald Sun
- 06/11/2008 Make a Comment
- Contributed by: The Rooster ( 264 articles in 2008 )
A PAIR of drug traffickers could not have received a fair trial because a judge fell asleep for up to 20 minutes at a time during their trial, the High Court has ruled.
Both Rafael Cesan and Ruben Mas Rivadavia appealed their 2004 convictions in the New South Wales District Court, saying Judge Ian Dodd was asleep for some of the trial.
Judge Dodd, who suffered from sleep apnoea, retired from the bench in July 2005.
Cesan was jailed for 13 years and six months, while Mas Rivadavis was jailed for 11 years after they were convicted of conspiring to import a commercial quantity of ecstasy.
The High Court, which upheld their appeals in September, published its reasons today.
Evidence from a hearing of the NSW Criminal Appeal Court indicated Judge Dodd appeared to sleep for periods of up to 20 minutes at a time, sometimes accompanied by snoring.
His sleep periods became longer as the trial proceeded with members of the jury visibly distracted and, at times, amused.
Court officials sometimes loudly dropped documents in a bid to wake the snoring judge.
Cesan, in his appeal evidence, said the judge's snoring was disruptive when he was being cross-examined.
Crown prosecutor Geoffrey Bellew swore an affidavit referring to occasions on which the judge appeared to be asleep.
The High Court unanimously ruled Judge Dodd did not exercise supervision of the trial as required by law and, as a result, the jury was distracted.
Chief Justice Robert French said a judge must be seen to be upholding this duty.
"Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice," he said.
"The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial."
The court ruled the men should be retried.
Both Rafael Cesan and Ruben Mas Rivadavia appealed their 2004 convictions in the New South Wales District Court, saying Judge Ian Dodd was asleep for some of the trial.
Judge Dodd, who suffered from sleep apnoea, retired from the bench in July 2005.
Cesan was jailed for 13 years and six months, while Mas Rivadavis was jailed for 11 years after they were convicted of conspiring to import a commercial quantity of ecstasy.
The High Court, which upheld their appeals in September, published its reasons today.
Evidence from a hearing of the NSW Criminal Appeal Court indicated Judge Dodd appeared to sleep for periods of up to 20 minutes at a time, sometimes accompanied by snoring.
His sleep periods became longer as the trial proceeded with members of the jury visibly distracted and, at times, amused.
Court officials sometimes loudly dropped documents in a bid to wake the snoring judge.
Cesan, in his appeal evidence, said the judge's snoring was disruptive when he was being cross-examined.
Crown prosecutor Geoffrey Bellew swore an affidavit referring to occasions on which the judge appeared to be asleep.
The High Court unanimously ruled Judge Dodd did not exercise supervision of the trial as required by law and, as a result, the jury was distracted.
Chief Justice Robert French said a judge must be seen to be upholding this duty.
"Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice," he said.
"The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial."
The court ruled the men should be retried.
Source: https://www.news.com.au/heraldsun/story/0,21985,24611106-5005961,00.html
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