Crime and the Australian version of The Big Sleep

[ChristopherGMoore]

Authors of crime fiction often draw from real events to interject the feel of reality into their novels. Sometimes, though, reality becomes stranger than fiction, and the author may using “facts” that spoil the fictional world. For example, take a long trial before a jury and the judge nods off. No doubt this has happened on more than one occasion. But what if the judge has a condition that predisposes him to suddenly slip into a coma like sleep?

There is a court decision on this precise point that deserves wider circulation. In this case a judge who presided (when he was a awake) over a criminal case where the defendants were accused of drug offense. The judge fell asleep during the trial. Not once, but many times. The two defendants were found guilty by a jury, and they appealed on the not wholly unreasonable argument that the judge should have been awake during their trial.

Here’s what the dissenting appellate court judge in Australia (New South Wales Court of Criminal Appeal) had to say:

First he reviewed the evidence:

“Sometimes when the judge was asleep I noticed that some members of the jury would look at the judge and then look at each other and then look back to the judge very intently. It was clear to me that some of the jury appeared to be paying a lot of attention to the judge when he was sleeping. During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appear to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury’s behaviour when the judge was asleep.”

Here’s what the convicted men argued at the appellate level:

“9. When I was giving my evidence I was facing the bar table and the jury and the judge was behind me. At times during the prosecutor’s cross-examination I heard a deep rumbling noise come from behind me. At first I was not sure what it was and then I realised that it was snoring. It became louder and I realised that some of the other people in the Court and the jury appeared to have noticed and were looking at the judge and not me or the prosecutor. Some of the jury looked surprised and others were smiling.

10. When I first heard the noise it was quite soft and not particularly distracting but as it became louder and other people appeared to notice I found it very disruptive and it made it hard to concentrate on the questions. I did not really know what to do about this and I did my best to just try to concentrate on the questions and my answers.

11. At one point, when the snoring was at its loudest, the prosecutor appeared to stop asking questions and I turned to the associate who shrugged her shoulders. I looked back and then I heard a loud banging noise behind me and I turned to look back and saw the judge looking up startled. The questioning continued and after maybe ten minutes I heard the snoring noise again. This happened a number of times whilst I was giving my evidence.”

The argument on appeal:

“The basic proposition put forward by the Appellants was that proceedings are not being conducted in a properly constituted court if the judge is absent. A judge who is physically present in the courtroom but unconscious is in substantially the same position as a judge who is outside the courtroom. These propositions were tested by reference to the possibility of a judge who is out of sight but not out of hearing, a judge who is absent for the briefest of periods, a judge who was present and conscious but abstracted or inadvertent and a judge who was present and conscious but indulging in buffoonery or other distracting conduct.”

And the dissenter concluded:

“[I]n my view the conduct of a trial before a judge and jury required that the judge be present and conscious during the whole of the trial proceedings, at least to the extent that any absence or period of sleep beyond any period which was insignificant because not more than momentary. Further, I am satisfied that the periods during which the judge was asleep could not be dismissed as insignificant for the conduct of the trial.”

The majority of the court, however, held the BIG SLEEP hadn't caused a miscarriage of the justice and the convictions were confirmed.

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

A tip of the cap to Professor David Vaver, Oxford University, for drawing this case to my attention.