DUNCAN, Paul Parepano v Regina

1. [1]

   SIMPSON J: This is an appeal against a conviction by a jury in 2003. Section 6(1) of the Criminal Appeal Act 1912 (NSW) requires this Court to allow an appeal against conviction on a variety of specified grounds, one of which is “that on any other ground whatsoever there was a miscarriage of justice”. The history is somewhat unusual, and will be set out below. The appeal is based upon assertions of fact about the manner in which the trial was conducted by the trial judge. The appellant asserts that, within the meaning of s 6(1), there was a miscarriage of justice because the judge was asleep for significant periods during the course of the trial. He further asserts that that fact had two important consequences: one, that the judge failed to discharge his duty of supervision and control of the trial, and two, that the jury were aware of the judge’s indisposition, and were distracted by it and failed to treat the trial with the seriousness it deserved. I have read in draft the judgments of Hall J and Campbell J. I agree that the appeal must be dismissed. I prefer to state my own path to arriving at that conclusion. I propose to state what I see as the relevant facts, and my reasons for reaching that conclusion.

2. [2]

   The trial of the appellant and a co-offender, Adam Perre, began on 24 February 2003 in the District Court, before Dodd DCJ and a jury. On 24 March the jury returned verdicts of guilty in respect of two of the four counts on the indictment, of maliciously inflicting grievous bodily harm (on one victim), and affray (in respect of which a different victim was named). The appellant was represented by Ms L McSpedden of counsel; the co-accused by Mr R Greenhill SC. The Crown prosecutor was Ms N Adams.

3. [3]

   Both offenders were sentenced to lengthy terms of imprisonment.

4. [4]

   In 2004 both offenders appealed to this Court against the convictions (“the 2004 appeals”), and sought leave to appeal against the sentences. In each case, the conviction appeal was dismissed; in each case the sentence appeal was allowed in part, and the sentences reduced: R v Duncan; R v Perre [2004] NSWCCA 431. The facts and circumstances of the offences are comprehensively set out in that judgment and need not be repeated. They are irrelevant to the issues raised in the present appeal.

5. [5]

   The grounds raised in the 2004 appeals were confined to evidentiary rulings and directions given to the jury by the trial judge. No question concerning the conduct of the trial by the trial judge was raised.

6. [6]

   In 2004 the same judge presided over the trial of Rafael Cesan and Ruben Mas Rivadavia in respect of Commonwealth drug offences. Cesan and Mas Rivadavia were convicted. Each appealed to this Court against his conviction. In each case one ground of appeal was that the trial judge had been asleep during significant parts of the trial. By majority, the appeals to this Court against conviction were dismissed: Cesan v Director of Public Prosecutions (Cth); Mas Rivadavia v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385. On the basis of evidence adduced in the 2007 appeals, all members of the Court found, as a fact, that from time to time during the trial, the judge was “nodding off” and on occasions was “actually asleep” (per Basten JA at [63], [65], Grove AJ at [189], Howie J agreeing). The extent and detail of the evidence concerning the judge’s conduct of the trial is set out extensively in both judgments. I will not repeat it.

7. [7]

   Cesan and Mas Rivadavia were granted special leave to appeal to the High Court. The evidence established, to the satisfaction of the High Court, that there had been a substantial failure of the judicial process. On 3 September 2008 the High Court allowed the appeals, and ordered that the convictions be quashed and that there be a new trial: Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358 (hereinafter referred to as “Cesan”).

8. [8]

   Two different approaches can be discerned in the judgments of the High Court. The Chief Justice identified four separate factors relevant to the determination of whether there had been shown the reality or appearance of a failure by the trial judge to perform his or her duty. The fourth was:

9. [9]

   The other members of the Court appear to have placed greater emphasis on the impact of the alleged conduct on the jury, and less on a failure to maintain supervision and control the trial. Their focus was on the consequences of any demonstrated episodes of sleep. Gummow J said:

10. [10]

    Thereafter the appellant, or Ms Linda Machan, acting on his behalf, sought the intervention of various bodies and institutions. In 2005 Ms Machan made a complaint to the Judicial Commission of NSW about the conduct of the trial judge. Inter alia, she said:

11. [11]

    Under the heading “Details of Complaint”, Ms Machan said:

12. [12]

    Attached to this complaint document were a number of documents. These included a statement of Perre’s father, and statements of two solicitors who had been involved in representing the appellant. Also attached was a letter written by Ms Heidi Muggenthaler to the Chief Executive Officer of the Judicial Commission, and affidavits of the appellant and Ms Machan. Ms Muggenthaler identified herself as “the solicitor on the record” for the appellant in the trial. (The complaint to the Judicial Commission went into abeyance on the retirement of the judge at some time in 2005.)

13. [13]

    On 30 November 2009, pursuant to s 76 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), Ms Machan petitioned the Governor of NSW, Professor Marie Bashir (as she then was). She referred to the decision of the High Court in Cesan, and concluded:

14. [14]

    On a date not disclosed in the evidence, the appellant, under s 78 of the Appeal and Review Act, sought, in the Supreme Court, an inquiry into his conviction. On 26 June 2014, pursuant to s 79(1) of the Appeal and Review Act, Button J ordered that “the whole case” be referred to this Court to be dealt with as an appeal against conviction under the Criminal Appeal Act. That is the proceeding that is before this Court.

15. [15]

    Two grounds of appeal were identified on the appellant’s behalf. They are:

16. [16]

    I have mentioned the various earlier proceedings, not because they are relevant to the outcome of the present appeal, but because it was through the tender of these applications and their supporting documents that the appellant sought to prosecute his appeal and provide the evidentiary basis for the grounds of appeal. I will in due course refer to the contents of those documents that were admitted into evidence.

17. [17]

    Both grounds, as they were presented to this Court, necessitated proof of matters concerning the conduct of the trial. The essential factual matter upon which both grounds rested was the assertion that the trial judge was asleep from time to time during the course of the trial. If that fact is established, and if it is further established that, as a result, the jury was distracted from paying full attention to all of the evidence then a miscarriage of justice is established: Cesan [96], [105], [119]. It will be seen that three separate questions arise:

18. [18]

    The “duty and obligations” of the lawyers referred to in Ground 2 were said to be the duty and obligations to take up with the trial judge the asserted deficiencies in his conduct of the trial. The proposition that such duties and obligations exist is based also upon the judgment in Cesan: see [93], [120].

19. [19]

    The second ground depends upon a further factual proposition: that the appellant’s legal representatives at trial knew of, but did not raise with the trial judge the issue of his asserted inattention by reason of periods of sleep, or take any other steps to avert the consequences of that asserted inattention. That they did not take such steps was not in issue. There was no suggestion that either counsel or any of the solicitors involved drew the judge’s attention to the conduct that is now alleged. As it was argued, this ground depends entirely upon affirmative factual findings and conclusions in relation to the question that underlies Ground 1, but also upon a factual finding that the legal representatives were (or any of them was) aware of the trial judge’s inattention. That any of them was so aware is not established on the evidence. As I have said, should the questions underlying Ground 1 be answered affirmatively, Ground 1 must succeed, and there is no need to proceed to Ground 2. If, however, Ground 1 fails at either of its steps, there can be no basis for concluding that counsel failed in their duty or obligations. Ground 2 is therefore otiose.

20. [20]

    I return to the two questions that underlie Ground 1. The facts relevant to those questions were very much in issue in this appeal.

The evidence in the appeal

1. [21]

   The evidence was presented in somewhat chaotic form. An “Evidence Book” was filed. It contained a large number of documents, some of which were the various applications, petitions and supporting documents referred to above. Ultimately, the evidence sought to be relied on on behalf of the appellant was identified as:

2. [22]

   It is to be observed that no evidence was tendered, nor any identification of any part of the record of the trial made, to support a proposition that the judge failed to discharge his duty of supervision and control of the trial. Indeed, no such submission was made.

3. [23]

   During the course of the hearing, on objection by the Crown, the letter of Ms Muggenthaler was rejected, with reasons reserved. I deal below with the reasons for rejecting that document. A ruling on the admission of the report of Dr Dodwell was reserved (with counsel acknowledging that the appellant suffered no prejudice by reason of that course being taken).

4. [24]

   The appellant and Ms Machan gave oral evidence and were cross-examined.

5. [25]

   The Crown relied upon affidavit evidence of Ms McSpedden, Mr Greenhill, Mr Michael Stollery, Ms Natalie Adams and Ms Janet Bremner. Mr Stollery was the solicitor who instructed Ms Adams in the trial. Ms Bremner was a solicitor employed in the Office of the Director of Public Prosecutions. Of these, only Mr Stollery was required to attend for cross-examination.

6. [26]

   Before going to the content of the documents and the oral and affidavit evidence, it is convenient to deal with the reasons for rejecting the letter of Ms Muggenthaler to the Chief Executive Officer of the Judicial Commission dated 16 May 2005, and for reserving the question of the admissibility of the report of Dr Dodwell.

7. [27]

   Ms Muggenthaler identified herself as the solicitor “on the record” for the appellant in the trial. In the letter she said (inter alia):

8. [28]

   Objection to the admission of the letter was taken on behalf of the Crown. Senior counsel for the appellant pressed the tender, relying on s 69 of the Evidence Act.

9. [29]

   The letter clearly contained hearsay statements. Hearsay evidence, by s 59 of the Evidence Act, is not admissible unless the evidence is brought within one or more of a number of exceptions provided by the Evidence Act. Section 69, set out in the judgment of Hall J, provides one of those exceptions. Section 69 proceeds on the basis that the evidence in question is relevant to an issue in the proceeding: Evidence Act, s 56. Applicability of s 69 depends, first, upon the document being properly categorised as a “business record” within either para (i) or (ii) of s 69(1)(a) and s 69(1)(b) - that is (relevantly):

10. [30]

    Although I have reservations concerning whether it was intended that s 69 extend to a letter written by a solicitor on behalf of a client containing factual assertions derived from the client’s instructions, and thus become evidence of the truth of those factual assertions, such letters do appear to fit within the language of s 69(1). It is not necessary to reach a final conclusion on that question, because analysis of the content of Ms Muggenthaler’s letter reveals that neither of the possible purposes of the tender would be served by its admission. It therefore fails the relevance test imposed by s 56 of the Evidence Act.

11. [31]

    So far as the letter could be said to contain “representations” that the judge was sleeping during the trial, it fails in two respects. First, what Ms Muggenthaler said of her own observations did not prove, and could not contribute to proving, that fact. Ms Muggenthaler very fairly said that she could not say that the judge was asleep. Her description of her observations fell well short of raising even to prima facie level a case that the judge was asleep.

12. [32]

    Further, there is nothing in the letter to identify the source of the information contained in the representations - that is, the representations fail to satisfy s 69(2)(b) of the Evidence Act.

13. [33]

    So far as the letter purports to record reports potentially relevant to Ground 2 of the appeal, there is nothing in it that could establish that any such reports were made to the appellant’s legal representatives in the trial. The only person named in the letter as a recipient of the complaint is a counsel who had formerly represented the appellant. The final paragraph extracted above contains pure speculation.

14. [34]

    In the end, the letter was rejected, not for s 69 reasons, but as failing the relevance test (Evidence Act, s 56), and by reason of the credibility rule (s 102).

15. [35]

    The report of Dr Dodwell (dated 14 July 2005) was tendered on the same basis, that is, under s 69 as a business record. Objection was taken on behalf of the Crown. On its tender, the Court deferred ruling on its admission: see transcript p 15. At the conclusion of the appeal, the Court returned to consider the issue. The position then taken on behalf of the appellant was equivocal: see transcript p 66. Counsel acknowledged, however, that he was not prejudiced by deferral of the ruling.

16. [36]

    Given the equivocal position taken on behalf of the appellant, it is as well to determine the issue.

17. [37]

    Dr Dodwell’s report is on the letterhead of “HealthQuest: Workforce Health Management”. Dr Dodwell is identified as an occupational physician. He recorded that the trial judge had been referred to HealthQuest for assessment for his fitness to continue in judicial office. Included in the documents provided to Dr Dodwell for the purposes of his assessment were several reports of a Dr David Jankelson (described as a “sleep physician”). Dr Dodwell recorded that, on 1 September 2004, Dr Jankelson diagnosed the judge as suffering from severe obstructive sleep apnoea. The last report of Dr Jankelson to which Dr Dodwell referred was dated 9 June 2005, from which Dr Dodwell quoted in the following terms:

18. [38]

    Dr Dodwell expressed his own conclusions as follows:

19. [39]

    It was accepted on behalf of the Crown that Dr Dodwell’s report was, for the purposes of s 69, a business record.

20. [40]

    As was the case with the letter from Ms Muggenthaler, the fact relevant to the appeal that the appellant sought to establish through Dr Dodwell’s report was that during the trial the judge fell asleep from time to time. Dr Dodwell’s report was not capable of achieving this directly. It seems to me that the appellant sought to use Dr Dodwell’s report in the following way:

    1. (1)

       to establish that the trial judge suffered from obstructive sleep apnoea; and

    2. (2)

       to establish that, therefore, from time to time during the trial, he fell asleep.

21. [41]

    For the purposes of s 69, “the representation” contained in Dr Dodwell’s report is that the trial judge did suffer from obstructive sleep apnoea. That representation is contained, not in any statement made by Dr Dodwell relying on his own observations, but by reference to the reports of Dr Jankelson. Dr Jankelson’s reports that are not in evidence.

22. [42]

    The position is further complicated by this circumstance. Whether the trial judge suffered from obstructive sleep apnoea is a fact. However, that fact is to be proved by a medical diagnosis, which is itself an expression of opinion. Section 76(1) of the Evidence Act provides:

23. [43]

    A further exception is provided by s 79, which excludes the operation of s 76 where the opinion is expressed by a person having specialised knowledge based on the person’s training, study or experience, and the opinion expressed is wholly or substantially based on that knowledge.

24. [44]

    Thus, the representation contained in Dr Dodwell’s report is that Dr Jankelson was of the opinion that the judge suffered from obstructive sleep apnoea. There is here no question that Dr Jankelson held the necessary specialised training to express the opinion, and thereby to prove the fact. If Dr Jankelson’s report were in evidence, the present difficulty would not have arisen.

25. [45]

    It is not at all clear to me that the fact that the judge suffered from sleep apnoea could be proved indirectly, by proof that Dr Jankelson had an opinion to that effect. It may be supposed that Dr Jankelson’s opinion was based on information derived from either or both of two potential sources: (i) objective medical testing carried out or evaluated by himself; (ii) a history given to him by the judge.

26. [46]

    I have said that a medical diagnosis is an expression of opinion. That appears to be the assumption made by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37]. However, depending upon the circumstances, a medical diagnosis may come very close to the boundary that lies between an expression of opinion and a statement of fact. By way of illustration, where it is based upon objective evidence such as an x-ray, it may more closely resemble a statement of fact. But where it is based upon conclusions drawn from a range of symptoms (as to which conclusions medical practitioners may differ) it is more likely to be seen as the expression of opinion. Here, it may reasonably be inferred that Dr Jankelson’s diagnosis falls into the latter category.

27. [47]

    If Dr Jankelson’s opinion was based upon objective medical testing, and conveyed to Dr Dodwell through Dr Jankelson’s report, the republication made by Dr Dodwell would come within s 69(2)(b) - that is, it would be made on the basis of information directly or indirectly supplied by a person who might reasonably be supposed to have knowledge of the asserted fact.

28. [48]

    On the other hand, if Dr Jankelson’s opinion was based on a history of symptoms provided to him by the judge, Dr Dodwell’s representation would not come within s 69(2)(b), because the information would be supplied by Dr Jankelson, who could not reasonably be supposed to have had personal knowledge of those facts.

29. [49]

    The source of information upon which Dr Jankelson’s opinion was based is not identified. It has, therefore, not been shown that either of the tests of admissibility imposed by s 69(2)(a) and (b) has been met.

30. [50]

    Pursuant to s 69(2), Dr Dodwell’s report was capable of proving, as a fact, that Dr Jankelson had the stated opinion. It was not capable of going the further step and establishing the fact the existence of which is sought to be proved by the expression of that opinion: Evidence Act, s 76(1).

31. [51]

    The tender of the report was objectionable on other bases. There is nothing in the report that explains the effect of obstructive sleep apnoea. Specifically, there is nothing in the report from which any inference could be drawn that, because the judge suffered from obstructive sleep apnoea, he was likely to fall asleep from time to time while on the bench. If there were such references in the report, it would be capable of giving support to the observations of the appellant, Ms Machan, and others who made complaint.

32. [52]

    Further, the history recorded by Dr Dodwell includes that during 2004 the judge became aware that he was tired, but that he was not aware of falling asleep on the bench, and that the first complaint was lodged on behalf a defendant in another case in June or July 2004. It was then that the diagnosis of severe obstructive sleep apnoea was made by his general practitioner.

33. [53]

    It is not reasonably possible to extrapolate from that that in February 2003 - more than a year earlier - the judge had suffered from the same complaint. For these reasons I am of the view that Dr Dodwell’s report should not be treated as part of the evidence in the appeal.

34. [54]

    Having disposed of those matters, I now turn now to deal with the admitted evidence upon which the appellant relied to establish that the judge’s supervision and control of the trial process was compromised, or the jury was distracted, in the way described in Cesan.

35. [55]

    In his affidavit, sworn 30 November 2008, the appellant deposed:

36. [56]

    In her affidavit, sworn 6 February 2009, Ms Machan deposed:

37. [57]

    The very noticeable similarities in the affidavits of Ms Machan and the appellant may be explained by Exhibit A, tendered in the appellant’s case. Exhibit A was a letter written by Ms Machan to the appellant on 11 November 2008, nine days before he swore the affidavit. The purpose of the letter was stated to be to provide him with an “affidavit form” and to give him advice about formal procedures, as well as the information to be included in the affidavit. Inter alia, Ms Machan said:

38. [58]

    Ms Adams made it clear that she had first been asked to recall the events of the trial (which took place in 2003) late in 2014. However, she said that she had occasion to recall the trial because of subsequent publicity concerning the trial judge.

39. [59]

    Ms Adams said:

40. [60]

    Ms Adams further deposed that the circumstances of the trial and the court were such that she would not have been able to see more than four or five jurors when addressing the court or examining or cross-examining witnesses. She had no recollection of seeing any sign of the jury demonstrating amusement or distraction.

41. [61]

    Mr Stollery made two affidavits. In the first, sworn 17 November 2014, he said:

42. [62]

    Mr Greenhill SC deposed:

43. [63]

    Ms McSpedden deposed:

44. [64]

    Mr Stollery deposed to another aspect of the trial, of which no issue was made in this appeal. This evidence was (apparently) directed to the evidence in the appellant’s case concerning the conduct of the jury, particularly observations of the jury appearing to be amused, or smiling or “smirking”, attributed on behalf of the appellant to the conduct of the judge, but by Mr Stollery to another cause. Mr Stollery described the jury as “unusually attentive, good humoured and enthusiastic” throughout the trial. He did, however, observe that the foreman of the jury was sketching during the trial, and on numerous occasions he observed other members of the jury glancing in his direction while he was sketching. They smiled and on occasions appeared to be “very amused” by what they observed.

45. [65]

    Mr Stollery said that, after the trial and after the discharge of the jury, the court officer showed him two of the sketches that had been made by the jury foreman. One was a very detailed caricature of the trial judge, which Mr Stollery described as “expertly drawn and very humorous”. He related this to the smiling and smirking he had observed on the part of the jury during the trial. The second sketch was of an exhibit table which had been used for the purpose of storing exhibits in the trial, and which, it appeared, was inadequate in size for the task.

Findings of fact in the appeal

1. [66]

   The area of factual conflict in the evidence is as to the extent (if any) to which the judge was sleeping during the trial, and if he were, the consequences of that. The essential question, however, is the extent, if any, to which the jury was distracted by any established episodes of sleeping. The preliminary question is therefore whether this Court should find, as a fact, that the trial judge did fall asleep from time to time. Ordinarily, it is not open to one person to say that another is asleep. However, the appearance of sleep can be so compelling that it would border on absurdity not to accept some observations as establishing the fact. But that is not this case. The appellant’s witnesses were, on the whole, astute to avoid saying that the judge was asleep. Rather, they properly framed their evidence in terms of what they observed, and the conclusions they drew from those observations.

2. [67]

   The appellant’s evidence was that, on the second day of the trial, it appeared to him that the judge was “clearly sleeping”. He observed this “on a number of occasions” during the trial. He distinctly remembered more than one occasion when the judge snored during the evidence. He thought the episodes were “of significant duration”, and were sufficient to cause him concern about the fairness of the trial (although he did not specify in what respect those concerns arose). He said that it was clear to him that the jury were aware of the circumstances, and appeared to be amused.

3. [68]

   As has been pointed out by Hall J, and as can be seen in the paragraphs extracted below, the affidavit of Ms Machan was, in many respects, virtually identical with that of the appellant. She, however, gave evidence of two specific instances of apparent sleep on the part of the judge. On one occasion, she said, the jury were laughing, and shrugging their shoulders; on the other they (appeared to be) distracted.

4. [69]

   This evidence is to be contrasted with that given on behalf of the Crown.

5. [70]

   Ms Adams saw that the judge had his eyes closed, perhaps five to six (possibly more) times during the month long trial. The episodes were to be measured in seconds rather than minutes. On one of these occasions, when the judge’s eyes were closed, he rejected a question. This reassured her that, notwithstanding the appearance of sleep, the judge was maintaining his concentration and supervision of the trial. Specifically, Ms Adams could not recall the judge ever closing his eyes during submissions by counsel. Mr Stollery’s evidence was along similar lines. He considered that, throughout the trial, the judge was listening to and fully understanding the evidence. He acknowledged that there were occasions when the judge appeared to be “dozing”, but said that the conduct of the trial demonstrated that he was, in fact, listening very carefully, and he often interjected or corrected errors. He did not observe any reaction from the jury.

6. [71]

   Mr Greenhill noticed that on occasion the trial judge had his eyes closed and “appeared to be dozing”, but said that he did not noticeably snore. He said that when a point arose that necessitated the jury’s attention, he promptly and effectively dealt with it. He also noticed no reaction by the jury. Ms McSpedden’s evidence was similar.

7. [72]

   It is difficult to reconcile the evidence. In my opinion, this Court should find, as a fact, that there were occasions when the judge at least appeared to be sleeping. So much is uncontroversial. I would infer, on the evidence, that there were occasions when he did in fact fall asleep. That this interfered with his supervision and conduct of the trial is not established. The highlighted transcript of the trial annexed to Ms Bremner’s affidavit was available to the appellant’s legal representatives. The attention of this Court was not drawn to a single instance that evidences lack of concentration, or failure to apply his mind to issues promptly as they arose on the part of the trial judge. The next and most important question concerns the consequences of some sleep episodes having occurred. (Cesan [112], [118]). It is in respect of this question that the conflict in the evidence becomes important. It is the observations of the appellant in para 12 of his affidavit, and of Ms Machan in para 14 of hers, and Ms Machan’s statement in her initial complaint to the Judicial Commission, that are the high point of the evidence for the appellant. To be contrasted with that is the evidence of Ms Adams, Mr Greenhill, Ms McSpedden and Mr Stollery.

8. [73]

   The evidence of the appellant and Ms Machan must be treated with some circumspection. That is not because of any reservations arising from observations of their demeanour. I found Ms Machan, in particular, to be a witness genuinely attempting to tell the truth. And I observed nothing in the demeanour of the appellant to cause me to doubt that he was also attempting to tell the truth. My reservations arise because of the manner in which their affidavit evidence was prepared. They are framed, in many paragraphs, in virtually identical language. When cross-examined about this, both gave the explanation that they had seen and heard the same things. That does not explain the uniformity of language in which they expressed their observations. I cannot escape the conclusion that their evidence is the result of collaboration. That does not apply, however, to Ms Machan’s complaint to the Judicial Commission, made in 2005, in which she raised concerns about the jury.

9. [74]

   By contrast, experienced counsel and solicitors made no observations of any jury distraction, at least by reason of the judge sleeping. (In adding the rider, I refer to the evidence of Mr Stollery concerning the artistic activities of the foreman.)

10. [75]

    On balance, I am not satisfied that any episodes of sleep by the trial judge adversely affected the jury’s attention to its duty. In saying this, I would accept that there was, or might have been, some mild amusement exhibited by members of the jury. But it was not sufficient to warrant a conclusion that they paid less than due attention to the evidence and the issues. I am mindful of Mr Stollery’s observation that this was an “unusually attentive, good humoured and enthusiastic” jury.

11. [76]

    I would reject Ground 1 of the appeal. Ground 2 does not arise for consideration.

12. [77]

    Before making final orders, it is necessary to set out the events that have occurred since the hearing of the appeal.

13. [78]

    The appeal was heard and judgment reserved on 2 February 2015. On 16 March the then Registrar of the Court received an email communication from the appellant’s legal representatives. The communication was in the following terms:

14. [79]

    The Registrar sought the view of the Director of Public Prosecutions (“DPP”) with respect to the request. The response was received in 18 March and was as follows:

15. [80]

    The appellant’s communication was also referred to the members of the Court who constituted the Bench. At the direction of the Bench, the Registrar wrote to the appellant’s legal representative on 20 March in the following terms:

16. [81]

    The response was received on 27 March, and was as follows:

17. [82]

    The Registrar again sought the views of the DPP who replied on 31 March:

18. [83]

    On 7 April, at the direction of the Bench, the Registrar wrote to the appellant’s legal representative, saying:

19. [84]

    On 17 April the appellant’s legal representative replied:

20. [85]

    Annexed to the letter was a copy of an affidavit apparently sworn by a Robert Arthur Coombs. The content of the affidavit is as follows:

21. [86]

    On 21 April the Registrar, at the request of the Bench, replied to the appellant’s legal representative as follows:

22. [87]

    In these circumstances, there is no basis for the re-opening of the appeal.

23. [88]

    It is well established that, once a proceeding (whether appeal or at first instance) is concluded and judgment reserved, leave is required before any further submissions are made, or evidence filed: see, for example Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422; 79 ALJR 881; Bale v Mills [2001] NSWCCA 226; Nguyen v R [2008] NSWCCA 322; Kendirjian v Ayoub [2008] NSWCA 194.

24. [89]

    As will be seen below, the factual matter to which the affidavit of Mr Coombs purportedly goes is potentially one of substance. However, it is not the subject of either of the existing grounds of appeal. It is not the subject of any application for leave to re-open, or any proposed amendment to the existing grounds of appeal.

25. [90]

    Both the Court, and the DPP, have sought to make clear to the appellant’s legal representative that leave is necessary before the Court could embark upon a consideration of any issues raised by the evidence. Leave cannot, and will not, be granted without an application. But the appellant’s legal representatives intransigently and discourteously decline to make the necessary application.

26. [91]

    On 24 April the Court afforded a further opportunity to the appellant’s legal representatives to apply for leave to re-open the appeal. The Registrar wrote to the appellant’s solicitor in the following terms:

27. [92]

    A response was received on 30 April, in which the Registrar was told that the appellant’s legal representatives would not be present to take judgment due to other commitments, and added:

28. [93]

    The Court has no alternative but to proceed to judgment on the basis of the appeal as it concluded on 2 February of this year. I propose the following order:

29. [94]

    HALL J: These proceedings concern an appeal by Paul Parepano Duncan against his conviction on charges heard in the District Court of New South Wales. The appellant and his co-offender were each charged on indictment with a number of offences. Count 1 alleged that on 3 November 2001, at Wollongong, the appellant and his co-offender maliciously inflicted grievous bodily harm upon one Christopher Wilson with intent to do grievous bodily harm to him, an offence pursuant to s 33 Crimes Act 1900. Count 2 related to an alleged offence of affray pursuant to s 93C of the Crimes Act, and Counts 3 and 4 alleged offences of causing malicious damage to property pursuant to s 195(a) of the Crimes Act.

Background

1. [95]

   The trial proceeded in the District Court between 24 February 2003 and 24 March 2003 before Dodd DCJ and a jury of twelve.

2. [96]

   On the latter date the appellant and his co-offender were found guilty of two offences, namely, the offence of maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act, and an offence of affray contrary to s 93C of the Crimes Act.

3. [97]

   The relevant factual circumstances concerning the offences are recorded below. In summary, the appellant and his co-offender were involved in a fight that erupted between two groups of young men in the vicinity of Stuart Park near Wollongong. During the fight, a number of assailants, armed with poles, a machete, and a wheel brace attacked the victim, Christopher Wilson, resulting in his permanent disability.

4. [98]

   On 18 August 2003, the appellant and his co-offender were sentenced. With regard to the first offence of inflicting grievous bodily harm with intent, the appellant was sentenced to a head sentence of imprisonment of 16 years with a non-parole period of 12 years, each to commence on 30 November 2002. The head sentence was to expire on 29 November 2019, and the non-parole period was to expire on 29 November 2014. A concurrent fixed term of 2 years was imposed for the offence of affray.

5. [99]

   In 2004 the appellant and his co-offender appealed against their convictions to this Court and also sought leave to appeal against sentence. It is noted that no issue of the judge having fallen asleep during the trial was raised as a ground of appeal. The grounds that were relied upon in the 2004 appeal against conviction were identified in the Crown’s Written Submissions at [11] as follows:

6. [100]

   On 8 December 2004, this Court delivered its judgment in the appeal: R v Duncan and Perre [2004] NSWCCA 431. The appeal against conviction was dismissed. Leave to appeal against sentence with regard to the offence of affray was refused. Leave to appeal against the sentence with regard to the offence of inflicting grievous bodily harm with intent was granted, and the appeal against that sentence was allowed. The appellant was re-sentenced to a head sentence of imprisonment of 13 years with a non-parole period of 9 years, each to commence on 30 November 2002. The head sentence expires on 29 November 2015, and the non-parole period expired on 29 November 2011.

Complaint to the Judicial Commission of New South Wales

1. [101]

   In April 2005, Ms Linda Machan, the mother of the appellant’s then girlfriend, made a complaint on the appellant’s behalf to the Judicial Commission of New South Wales about the judge’s conduct in the trial. A copy of this complaint was tendered (Exhibits “A1” and “A2”). In summary, the complaint alleged that the trial judge fell asleep on a number of occasions during the course of the trial. Ms Machan claimed that she heard him snoring and that she had mentioned this to the appellant’s solicitor and counsel.

2. [102]

   In a sworn declaration supporting the abovementioned complaint, Ms Machan claimed that she had reported her observations to the appellant’s legal representative but that they were “shrugged off”, stating, “… even though the panel of jurors were shaking the [sic] in disbelief at judge asleep and snoring. This was happening every day …”

3. [103]

   Subsequently, an application was made by the appellant pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 for referral of his conviction to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The application was heard by this Court in its Common Law Division (Button J). The hearing was on the papers and on 26 June 2014, his Honour delivered judgment. On the application his Honour made an order pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act that the whole case be referred to the Court of Criminal Appeal, to be dealt with as an appeal against conviction under the Criminal Appeal Act. The present appeal was heard on 2 February 2015.

Grounds of Appeal

1. [104]

   The Notice of Appeal filed 16 July 2014 pleaded two grounds of appeal as follows:

2. [105]

   The Particulars of Ground 1 were as follows:

3. [106]

   These grounds raise the following matters for consideration:

   1. (1)

      The evidence concerning the alleged conduct of the trial judge during the trial;

   2. (2)

      Whether the conduct of the trial judge during the trial required the legal representatives of the parties to respond by raising such conduct with the trial judge;

   3. (3)

      The impact or the effect, if any, upon the jury of any inappropriate conduct by the trial judge.

The Factual Background to the Offences

1. [107]

   The nature of the issues raised in the present proceedings are such that a detailed analysis of the factual circumstances constituting and surrounding the offences upon which the appellant was convicted is not required. Accordingly, what follows is a summary of certain factual matters established at trial by way of background.

2. [108]

   On the evening of 2 November 2001, five young men, including one Christopher Wilson, drove from Sydney to the lighthouse in Wollongong where they met three young women.

3. [109]

   That group of young persons drove in two cars to nearby Stuart Park where there was a beach and a hut. All except Christopher Wilson left the two cars and went to the hut.

4. [110]

   The appellant and his co-offenders had been attending a party at another venue that night.

5. [111]

   In due course the appellant and his associates left the party and travelled to Stuart Park. Sometime later a confrontation occurred between a Mathew Michael, who had been with Christopher Wilson and his friends, and the appellant and another male.

6. [112]

   The Crown case was that the appellant grabbed Mathew Michael’s phone and left with it. A large group of the appellant’s associates, about 15 in all, appeared in response to a signal given by the appellant. A violent confrontation then occurred.

7. [113]

   At one point, the appellant began to drive a vehicle erratically in the car park, causing Mathew Michael and his friends to scatter in order to avoid the car. The evidence was that the appellant drove at them, spun the car around doing ‘wheelies’, ‘burnouts’ and ‘spins’, reversing the car suddenly and generally driving in a dangerous manner.

8. [114]

   During the confrontation, Christopher Wilson was attacked with objects used as weapons by a number of the members of the group with which the appellant was associated. The events in this respect were summarised in the Crown’s Written Submissions as follows:

The Evidence in the Appeal Proceedings

1. [115]

   The appellant relied upon the following evidence in the present appeal:

2. [116]

   The Crown relied upon the following evidence:

3. [117]

   The appellant, Ms Machan and Mr Stollery were the only witnesses required for cross-examination.

4. [118]

   The nature of the grounds of appeal necessitated evidence being called during the hearing of the appeal in this Court.

5. [119]

   On 6 August 2014, an “Evidence Book” was filed on behalf of the appellant. Not all of the material within it was admissible. It is necessary to make some brief observations in relation to the material contained in the book.

6. [120]

   At the outset of the hearing of the appeal on 2 February 2015, Senior Counsel for the appellant was requested to identify the documents in the evidence book that were relied upon for the purposes of the appeal. Mr Borick QC, who appeared with Mr D Moen of counsel for the appellant, identified a number of documents at T 2-21. The Crown opposed the tender of many of the documents identified by Mr Borick, some on several grounds. Mr Moen indicated in respect of Document Number 1 (the Complaint to the Judicial Commission), and Document No 18 (the Petition of Linda Machan), that it was proposed to establish their admissibility during the course of Ms Machan’s evidence and following which he would tender the documents: at T 6.

7. [121]

   Ms Machan was called for cross-examination on 2 February 2015 and gave evidence as recorded at T 29-44. Ms Machan gave oral evidence in chief at T 29-31. She was taken by Mr Moen to several documents in the Evidence Book.

8. [122]

   The first document in this respect was Document No 1, her complaint to the Judicial Commission. The questions put to her were limited to her identification of the handwritten complaint and the typed version of it, both contained in the “book”. The handwritten and the typed versions were tendered and were before this Court, marked as Exhibits “A1” and “A2”. Ms Machan was then taken to Document No 18, the Petition by Ms Machan under a power of attorney given to her by the appellant. She identified the document which was tendered. The document was marked as Exhibit “B”. Ms Machan was then shown a document that was initially marked as Exhibit “A” in the proceedings, bearing the date 21 November 2008. The document has been re-marked as Exhibit “C”.

9. [123]

   In relation to the other documents that had been tendered at the outset of the hearing, the Court was advised by Mr Moen, at T 23, that the only other document the appellant would seek to tender was Document No 5 in the evidence book, a letter by Heidi Muggenthaler solicitor, to the Judicial Commission of New South Wales. The tender was later rejected with reasons to be given in the final judgment of the Court on the appeal: T 28:40-45.

10. [124]

    There is conflict in the evidence adduced on behalf of the appellant and the Crown as to the trial judge’s conduct and control of the trial. Accordingly, it falls to this court to resolve disputed matters. In making the necessary findings of fact, the reliability of the appellant and Ms Machan is critical.

Rulings on Evidence

1. [125]

   Document No 5 in the Evidence Book was tendered by Mr Moen on behalf of the appellant at T 23:35-42.

2. [126]

   The tender relied upon the provision of s 69 of the Evidence Act 1995 which is an exception to the hearsay rule in s 59 of the Evidence Act.

3. [127]

   The onus of demonstrating the conditions of admissibility of evidence under the Evidence Act provisions lies with the tendering party: Lithgow City Council v Jackson [2011] HCA 36; 281 ALR 223 at [17].

4. [128]

   Section 69 creates an exception to the hearsay rule in relation to business records. I proceed upon the basis that the letter written by Ms Muggenthaler and addressed to Mr Schmatt of the Judicial Commission of New South Wales, dated 16 May 2006, was a business record within the meaning of s 69. However, as has been observed, s 69 does not render business records as such admissible. It concerns representations in a document which forms part of a business record within the meaning of s 69(1): Lithgow City Council v Jackson, supra, at [17]. The representation in question is admissible if s 69(2) is satisfied. In that respect, it is necessary to identify the ‘asserted fact’ and whether the same was something about which the person who made the document had personal knowledge.

5. [129]

   In relation to Document No 5 the following matters are noted:

   1. (1)

      In the fourth paragraph there is reference to Ms Machan and Mr John Perre having raised the issue of the trial judge’s conduct. However, it is clear from Ms Muggenthaler’s letter that she did not have personal knowledge of either person having done so as she stated that she was not present at the meeting with the appellant’s legal representatives where Ms Machan and Mr Perre were said to have raised that matter.

   2. (2)

      In the sixth paragraph of the letter Ms Muggenthaler referred to a comment she had made to Mr Schmatt of the Judicial Commission by telephone of having heard noises on “a couple of occasions” which she describes in the letter. However her statement or account is not one that asserted unequivocally that the noise was in fact one made by the trial judge. Her observation of having heard the noise to which she referred was not said to have been specifically based on her seeing or hearing the trial judge (as distinct from someone else present in the courtroom) make the noise.

   3. (3)

      The sixth paragraph of the letter contained reference to observations Ms Muggenthaler said she made herself as to the trial judge leaning back in the chair “now and then” and a statement “…I cannot say that I know that he was asleep” having previously made a statement to the effect, not that the trial judge in fact closed his eyes, but that he “apparently” did so.

6. [130]

   As to (1) above, it is clear that whatever was said by Ms Machan and Mr John Perre was not said in her presence. Accordingly Mr Muggenthaler had no personal knowledge of what either may have said to others.

7. [131]

   As to (2) above, “personal knowledge” of a fact can only be derived from seeing or hearing an event: Lithgow City Council v Jackson, supra at [17]. Ms Muggenthaler’s statement does not assert that she saw and/or heard the trial judge make the noise on the two occasions to which she referred. The onus on the appellants of establishing the provisions of s 69 were met was not discharged.

8. [132]

   Even if that not be correct, the statement in question should not, in my opinion, as a matter of discretion be admitted, as Ms Muggenthaler’s account of hearing the noise leaves open the possibility that it was someone in the courtroom, not being the trial judge, who made the noise: s 135 Evidence Act. Additionally, I note that no affidavit from Ms Muggenthaler was produced and there was no suggestion that she was unable to be called to give evidence. Had she been called, her lastmentioned statement could have been tested and clarified.

9. [133]

   As to point (3), Ms Muggenthaler’s express statement that she could not say the trial judge was asleep evidences the limited nature and extent of her observations as to the trial judge’s appearance or conduct. It is a statement of a negative and her evidence is not probative of the fact as to whether the trial judge was in fact asleep at the point in time to which her statement relates.

10. [134]

    During the hearing of the appeal, a significant amount of time was spent on arguments concerning the admissibility of a document, annexed to Document No 23 in the Evidence Book, referred to as the ‘HealthQuest Report.’ The report was prepared by a Dr P Dodwell and is dated 14 July 2005. The report sets out a number of issues relating to the trial judge’s personal health, based essentially on a series of other reports and documents listed on page 1 of the report under the heading ‘Document Review’. It appears from the report that Dr Dodwell examined the (now retired) judge on an unspecified date. The report then sets out conclusions and recommendations.

11. [135]

    Dr Dodwell could not be located by the appellants to provide further evidence in the appeal: T 5:5.

12. [136]

    The Crown objected to the tender of the report on the following grounds:

    1. (1)

       That the report was not in the form of an expert’s certificate: T 7:16.

    2. (2)

       That the report had no relevance because it was directed to the trial judge’s condition in 2005 rather than 2003: T 9: 15-20.

    3. (3)

       That the Crown had no opportunity to cross-examine Dr Dodwell due to his absence: T 9:45.

    4. (4)

       That Dr Dodwell’s qualifications were not identified: T 10:20-24.

    5. (5)

       That the document contained inadmissible material, particularly hearsay: T 9:22-25.

13. [137]

    The appellant submitted that the report should be admitted, regardless of Dr Dodwell’s hearsay reliance on other reports, because it formed part of a business record within the meaning of s 69 of the Evidence Act (T 13:42-45).

14. [138]

    While the Crown effectively conceded that the Report was capable of forming part of a business record of HealthQuest (T 8: 28-35), its admissibility was disputed on the ground of relevance.

15. [139]

    The HealthQuest report, in my opinion, should be rejected on the basis that it could not rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings: Evidence Act, s 55. The report does not contain any observations, findings or opinions that are capable of affecting the assessment of a fact in issue concerning the trial judge’s conduct of the trial in 2003.

16. [140]

    Counsel for the appellant submitted during the appeal hearing that the report was tendered to prove that at the time of the appellant’s trial, that is, between February and March 2003, the trial judge was suffering from a sleeping disorder or sleep apnoea. However, nothing in the report addresses or deals with the trial judge’s health in 2003. The report, which was prepared over two years after the appellant’s trial had concluded, was, as earlier noted, based, in part, upon a series of reports by other medical practitioners made on various dates between 1 September 2004 and 6 July 2005. The appellant submitted that references made by Dr Dodwell to these reports, as well as a reference in the report itself to the trial judge having been diagnosed with sleep apnoea on or about June or July 2004 went to the question of the trial judge having suffered from that condition at the time of the appellant’s trial over twelve months earlier: T 13:10-42. That submission, for the reasons stated above, must be rejected.

17. [141]

    Neither the report of Dr Dodwell nor the report of Dr Jankelson (referred to by Dr Dodwell), contains any opinion or assessment of the trial judge’s state of health or condition as at the period of the trial. The report is not admissible as it is not relevant to the issues with which this appeal is concerned: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [31]

Evidence in the Appellant’s Case

1. [142]

   The appellant’s affidavit evidence of 30 November 2008 was that the trial judge on the second day of the trial appeared to be sleeping. He said he brought this to the attention of his counsel, Ms McSpedden. He said that he observed the trial judge sleeping on other occasions and snoring “on more than one occasion” (at [7]).

2. [143]

   The appellant’s evidence on these observations were set out in the following paragraphs of his affidavit:

3. [144]

   Particular matters concerning this evidence will be considered below.

4. [145]

   In paragraph [2] of her affidavit of 6 February 2009, Ms Machan stated that on the second day of the trial the trial judge sat “… with his arms folded and eyes closed with his chin resting on his chest”. She added:

5. [146]

   Ms Machan stated (at [3]) that at the morning tea break on that day she brought this to the attention of both the appellant’s solicitor, Ms Muggenthaler, and his counsel, Ms McSpedden. Whilst Ms McSpedden in her evidence acknowledged that Ms Machan made reference to the trial judge sleeping, she did not corroborate affidavit evidence of Ms Machan having reported hearing the trial judge snoring. Ms Machan, in her affidavit at [9], referred to the judge snoring on other occasions. At [6], she referred to having observed the trial judge sleeping “on a number of occasions”. It is noted that her statement as to having seen the trial judge asleep is an account in the nature of a conclusion without reference to the particular facts upon which that conclusion was based. Ms Machan earlier, in paragraph [2], referred to what “appeared” to her to be the judge sleeping. This stands in contrast to her statement to the effect that the trial judge was sleeping “on a number of occasions”.

6. [147]

   On the evidence of Ms Machan to the effect that she saw the trial judge “sleeping” on occasions during the trial and hearing him snore, the following matters are noted:

   1. (1)

      There is evidence from witnesses who gave evidence at the hearing of the appeal that the trial judge on a number of occasions sat with his eyes closed.

   2. (2)

      The question in relation to that evidence is whether on such occasions the trial judge was in fact asleep or whether on some, most, or all of them he was listening to and following the evidence with eyes closed. The distinction between the appearance of the judge sleeping based upon the fact of him having closed his eyes whilst adopting a posture as described in evidence, and whether he was in fact actually asleep on the evidence is one requiring consideration in this case.

Similarities in the Evidence of the Appellant and Ms Machan

1. [148]

   In his oral evidence in chief the appellant said that he wrote notes by hand setting out his recollection of certain trial events in 2003 when he was in Wellington Correctional Centre in the year 2008. A copy was tendered which became Exhibit “B” (subsequently remarked as Exhibit “D”). He said that Ms Machan had requested him to put down in writing his recollection of his observations of the trial judge during the trial. He said he sent a copy of his handwritten notes to Ms Machan who at the time was assisting him in relation to the present proceedings.

2. [149]

   Extracted below is the letter sent by Ms Machan to the appellant (Exhibit “C”). That letter reads as follows:

3. [150]

   In his affidavit, the appellant set out observations that he said he had made of the trial judge having fallen asleep on occasions during the trial. He said that he observed the judge snoring on a number of occasions. However, in his handwritten notes, Exhibit “D”, he referred to remembering the judge snoring “on one occasion”.

4. [151]

   When asked in the course of cross-examination if he could provide an explanation for the latter inconsistency, he indicated that he was not in a position to do so: T 53:15-20.

5. [152]

   As to Ms Machan and her role or involvement in assisting the appellant, she stated in her affidavit (at [1]) that she was present in court on every day of the trial except for one morning.

6. [153]

   In cross-examination by the Crown Ms Machan acknowledged:

   1. (1)

      That her daughter had been the appellant’s girlfriend;

   2. (2)

      That the appellant had, for a period, resided in Ms Machan’s home during a ten-month period whilst on bail: T 31;

   3. (3)

      That she had had a very close relationship with the appellant and presently was “… his support person, I keep in touch with him every day”: T 32;

   4. (4)

      That she had assisted the appellant in pursuing the present proceedings;

   5. (5)

      That a number of the paragraphs in her affidavit were in similar in terms to paragraphs appearing in the appellant’s affidavit.

7. [154]

   In cross-examination Ms Machan gave the following evidence:

8. [155]

   Ms Machan, in her affidavit, (at [2]) set out observations she said she made of the trial judge on the second day of the trial. In that respect she stated:

9. [156]

   That evidence is in identical terms to the account given by the appellant in paragraph 2 of his affidavit save for the fact that he added the word “clearly” before the word “sleeping” which does not appear in Ms Machan’s affidavit. Ms Machan added to her observations in paragraph 2 of her affidavit the additional sentence, “On some occasions he seemed to be in a deep sleep because his head would hang to one side and you could hear him snoring.”

10. [157]

    Paragraphs 3 and 4 of Ms Machan’s affidavit are in identical terms to paragraphs 3 and 4 of the appellant’s affidavit.

11. [158]

    Paragraph 5 of Ms Machan’s affidavit concludes with the words “… not consistent with the requirements of a fair trial”. Those nine words also appear in paragraph 5 of the appellant’s affidavit.

12. [159]

    Similarly, in paragraph 6 of Ms Machan’s affidavit she stated “I observed him sleeping on a number of other occasions”. Those words are identical to the appellant’s statement in paragraph 6 of his affidavit, i.e., “… I observed him sleeping on a number of occasions”, except for the word “other”.

13. [160]

    Both Ms Machan (at [9]) and the appellant (at [7]) state in identical terms (except that the appellant uses the word “remembered” rather than “remember”):

14. [161]

    In this aspect, as noted above, the appellant’s affidavit evidence is inconsistent with his handwritten notes (Exhibit “D”), further discussed below.

15. [162]

    There are other paragraphs of the two affidavits containing similar or identical word formulations. See in this respect, paragraphs 8, 9, 10, 11 and 12 of the appellant’s affidavit, and paragraphs 10, 11, 12, 13 and 14 of Ms Machan’s affidavit.

16. [163]

    It is apparent from the above discussion as to the similarities of the contents in the affidavit evidence of both the appellant and Ms Machan as to the observations each is said to have made as to the conduct of the trial judge, that their evidence must be treated with caution. The close similarities in the affidavit evidence to which reference has been made above suggests that either Ms Machan or the appellant wrote the identical or near identical paragraphs and the other simply adopted what the other had written. The appellant in cross-examination denied that Ms Machan had told him what to put in the affidavit and denied being in close discussion with her about the preparation of his affidavit: T 49:19-21. In cross-examination the appellant also denied having a copy of Ms Machan’s affidavit when he completed his affidavit: T 49:10-15. Whilst it is always possible that one person may adopt another’s recollection of events as accurately reflecting his or her own recollection, there remains a risk that one of the two has been inappropriately influenced by the account of the other in recalling past events. That risk I consider exists in this case and is one that has materialised in this case. This applies, in particular, to the account given by each having heard the trial judge snoring on multiple occasions. As earlier noted, in the appellant’s handwritten notes (Exhibit “D”), the appellant referred to only one occasion on which he heard the trial judge snoring:

17. [164]

    The appellant’s handwritten notes (Exhibit “D”) suggests that apart from the one occasion referred to by him in the notes, he did not otherwise have a recollection that the trial judge snoring “on more than one occasion” as stated in paragraph 7 of his affidavit, and as also recorded in Ms Machan’s affidavit. I am satisfied on the evidence that the probabilities are that the appellant has simply adopted what Ms Machan said in that latter respect in paragraph 9 of her affidavit.

18. [165]

    In so concluding, I do not consider that Ms Machan set out to deliberately or dishonestly influence the appellant in formulating his affidavit. That was not a proposition raised by the Crown. In cross-examination, Ms Machan frankly conceded that she provided assistance and support to the appellant in preparing for the present proceedings and that she has indeed been supportive of the appellant during the trial and thereafter.

19. [166]

    It is clear that Ms Machan was very motivated to help the appellant as far as possible but being a layperson and without the assistance of a lawyer in the preparation of affidavit evidence, it is likely that she inadvertently influenced him in adopting her version of events as to whether the trial judge was snoring rather than his own more limited recollection as recorded in Exhibit “D”.

Evidence in the Crown’s Case

1. [167]

   By way of preliminary observation I note the following matters:

   1. (1)

      The evidence of Mr Greenhill and Ms McSpedden does not take issue or dispute the evidence in the appellant’s case that the trial judge was seen on occasions to close his eyes during the trial.

   2. (2)

      Their evidence was to the effect that whilst his Honour at times closed his eyes, he was not in fact asleep on all or even most of the occasions when that occurred. In this respect, the evidence of counsel for the Crown, and for the appellant and his co-offender, established that the trial judge demonstrated, by his intervention and what the evidence indicates were appropriate rulings, that he was in fact listening to, and following the evidence notwithstanding that immediately before such interventions he, at times, had his eyes closed.

   3. (3)

      The contention that the judge was snoring during the trial and that his conduct overall distracted the jury, was strongly disputed by all trial counsel and by Mr Stollery. Mr Stollery’s evidence is consistent with the appellant’s note in Exhibit “D” that if the trial judge did snore at all it was most likely limited to a single, isolated occasion.

Evidence in the Crown Case

1. [168]

   Ms McSpedden stated that she was briefed to appear for the appellant in his trial, instructed by Muggenthaler and Associates.

2. [169]

   Ms McSpedden’s evidence was that there was an occasion at some early point in the trial when, during an adjournment, Mrs Machan said words to the effect “That judge is sleeping. He shouldn’t be doing that”. As Ms McSpedden was focussed on the witnesses giving evidence she said she had not, at that point, noticed whether the trial judge was sleeping. She said she recalled saying to Ms Machan “I think he has narcolepsy – he has nodded off on other cases I have seen”. She said she did not believe that, as at 2003, she was aware of the term “sleep apnoea”.

3. [170]

   In her affidavit, Ms McSpedden stated:

4. [171]

   Mr Greenhill, as earlier noted, appeared for Adam Perre in his joint trial with the appellant. Mr Greenhill’s evidence dealt with both the issue of the trial judge’s superintendence of the trial and the question of the impact, if any, of the judge’s conduct on the jury.

5. [172]

   Mr Greenhill stated in his affidavit:

6. [173]

   Ms Adams has been New South Wales Crown Advocate since 28 November 2011. Between 2002 and 2011 she was a Crown Prosecutor.

7. [174]

   Ms Adams was the Crown Prosecutor briefed in the prosecution of the appellant along with his then co-accused, Adam Perre.

8. [175]

   Ms Adams set out in her affidavit details of the circumstances in which she came to swear her affidavit in these proceedings, including the fact of having read the judgment of his Honour Button J in the appellant’s application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 and the nature and extent of her recollection of the prosecution and trial itself.

9. [176]

   Ms Adams’ recollections of the trial judge’s conduct during the trial specifically addressed, amongst other matters, his Honour’s superintendence and control of the trial as it appeared to her. She stated that a number of legal arguments arose during the trial. His Honour, she recalled:

10. [177]

    Ms Adams stated:

11. [178]

    Ms Adams explained the practical circumstances which prevented her from maintaining continuing observations on the trial judge. These included the need for her to focus on the evidence and taking notes of the evidence in cross-examination. Her best opportunity to observe the judge, she stated, was in the course of legal arguments: at [10].

12. [179]

    As to the assertions made by Ms Machan to the effect that the jurors were shaking their heads, nudging each other, laughing and rolling their eyes at various times throughout the trial, Ms Adams’ evidence was that the first time she became aware of such an allegation was when she read assertions to that effect as recorded in the judgment of Button J: at [12].

13. [180]

    Ms Adams described certain physical features of the courtrooms in the Downing Centre District Court. Ms Adams estimated that if the Crown Prosecutor stood facing straight ahead towards the witness box or the judge, he or she would probably be able to see four or five jurors out of his or her peripheral vision.

14. [181]

    To see the rest of the jury, she said, would require the Crown Prosecutor to turn and face the jury. The jury box is less than a metre away: at [13].

15. [182]

    Ms Adams stated that it was her practice to only look directly at the jury when delivering her opening and closing address or if watching whilst an exhibit was being handed around or when the jurors filed in or out of court, or when commencing an argument or calling a witness.

16. [183]

    In paragraph 15 of her affidavit, Ms Adams states;

17. [184]

    Mr Stollery is a solicitor in the office of the Director of Public Prosecutions, a position he has held since October 1990.

18. [185]

    Mr Stollery had the care, control and management of proceedings relating to the appellant and his co-accused.

19. [186]

    Mr Stollery said he was present in the courtroom with Ms Adams throughout the trial and paid close attention to the proceedings. He took detailed notes and reviewed the daily transcript.

20. [187]

    In his first affidavit, Mr Stollery stated:

21. [188]

    Mr Stollery said that the issues in the trial were vigorously contested. He said:

22. [189]

    Mr Stollery stated:

23. [190]

    In his second affidavit Mr Stollery stated:

24. [191]

    Mr Stollery said, in his second affidavit, that after the sentencing proceedings had been concluded and whilst packing files away he had a short conversation with a Court Officer who had been in court during the sentence hearing and at various times during the trial. Mr Stollery stated:

25. [192]

    In his oral evidence in cross-examination, Mr Stollery confirmed that the foreperson of the jury had made two sketches. He was referred to his affidavit, sworn 29 January 2015, and gave evidence as follows:

26. [193]

    Mr Stollery described one of the sketches:

27. [194]

    In relation to his observations during the trial, Mr Stollery gave the following evidence:

28. [195]

    Finally, Mr Stollery gave the following evidence towards the end of the cross-examination:

Consideration

1. [196]

   The primary issue raised in this appeal is whether there was, by reason of the trial judge’s conduct during the trial, a miscarriage of justice. The answer to that question requires consideration of the evidence as to the following factual questions:

   1. (1)

      Whether the trial judge failed to attend to the evidence and the arguments of the parties or otherwise failed to appropriately control and conduct the proceedings. In particular, whether the trial judge failed to perform his judicial function by reason of periods of sleep during the trial.

   2. (2)

      Depending upon the factual findings made in respect of (1) above, whether any failure or failures in the trial judge’s conduct required the legal representatives of the parties to the proceedings to have raised such matters with the trial judge.

   3. (3)

      Depending upon the factual findings made in respect of (1) above, whether any inappropriate conduct by the trial judge during the trial impacted upon or affected the jury.

2. [197]

   In Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358; [2008] HCA 52 the issue in that case was whether a miscarriage arose in circumstances in which the trial judge was asleep for periods during the trial and whether the consequence of such conduct represented a departure from proper conduct of the trial. French CJ stated at [74]:

3. [198]

   In Cesan the question was whether there were substantial discontinuities in the judge’s superintendence and control of the trial due to the alleged sleep episodes and, if so, whether that resulted in a miscarriage of justice. On that question, French CJ observed:

4. [199]

   The evidence in the present appeal, in my assessment, establishes the following matters:

   1. (1)

      The trial judge from time to time during the trial closed his eyes, and folded his arms whilst doing so. On certain of those occasions he also rested his chin on his chest.

   2. (2)

      The trial judge’s posture and conduct as described in (1), was capable of giving the appearance of sleep episodes.

   3. (3)

      The matters in (1) and (2) must be considered in context. As stated by the Chief Justice in Cesan, an overall assessment is to be made. That requires in this case consideration of evidence given by a number of witnesses that indicates that though the judge appeared at times to have periods of sleep, he in fact was listening to and following the flow of evidence. This was indicated by his verbal responses to the evidence and the trial judge’s demonstrated capacity to make ex tempore rulings throughout the trial.

   4. (4)

      The affidavit evidence of the legal representatives in particular, provides consistent and strong support for a finding that during the trial the trial judge displayed an understanding of the issues and the evidence in what was a strongly contested trial. This was demonstrated by his ability and capacity to make rulings which were assessed by trial counsel as having been appropriate.

   5. (5)

      There was no attack in this appeal upon the trial judge’s summing-up or, in particular, upon his trial directions. This is at least consistent with the fact that his Honour maintained a sufficient and appropriate command and control of the trial.

   6. (6)

      The evidence of Ms Machan, that she heard the judge snoring at various times during the trial, is not consistent with the evidence of trial counsel and that of Mr Stollery whose evidence I accept. Upon close consideration I do not consider that the appellant’s evidence as to the judge snoring on multiple occasions is reliable or cogent evidence. In his handwritten statement written many years after the trial, the appellant could recall and record only one occasion when he said he heard the judge snore. He was unable to explain his later inconsistent affidavit account of hearing snoring on a number of occasions. The most plausible and probable explanation, on the probabilities, is that his affidavit account of hearing snoring was the result of having discussed that aspect of the matter with Ms Machan.

   7. (7)

      The evidence of Ms Machan of seeing jurors acting in a way that conveyed that they were being distracted by the trial judge falling asleep is not corroborated by what I consider to be reliable evidence given by trial counsel and Mr Stollery. Her account of hearing the trial judge snore was made a considerable time after the trial concluded. Her evidence as to the jurors being distracted by the trial judge was given for the first time many years after the event. Ms Machan’s evidence on this latter point was very strongly refuted by the evidence of the legal representatives. Mr Greenwood’s evidence, in particular, was that it was his practice in criminal trials to focus his attention upon the jury and that he did not see any member of the jury during the trial indicate or convey any reaction to the trial judge that was consistent with or indicative of distraction having been caused by the trial judge’s conduct.

   8. (8)

      Having closely considered the evidence of Ms Adams SC, Ms McSpedden, Mr Greenwood SC, and Mr Stollery which, as I have stated, I accept as reliable evidence, I find that the jury were not distracted during the trial by the trial judge’s conduct as Ms Machan stated in her affidavit. In so concluding, I consider that any smiling or signs of amusement by one or more jurors on one or more occasions during the trial on the probabilities arose by reason of humorous or amusing aspects of the sketch or sketches produced by the foreman of the jury during the trial as described in evidence by Mr Stollery.

Conclusion

1. [200]

   I have concluded that the trial judge was not repeatedly asleep during the trial but that his Honour in fact exercised appropriate superintendence and control of the trial and conducted it according to law. In particular, I do not accept that the trial judge was snoring from time to time during the trial.

2. [201]

   Whilst I accept that his Honour did close his eyes at various times during the trial and adopt a posture at such times as earlier described, on the evidence that was not inconsistent with him listening to and following the evidence. This is indicated by the trial judge’s demonstrated ability and actions in responding appropriately to the evidence led at such times as and when required.

3. [202]

   Whilst I accept that it is possible that the trial judge may on occasions have had momentary sleep episodes, on the evidence if they occurred they were not sufficient to establish that the trial judge “substantially failed to discharge” his duty of supervision and control of the trial process: see Cesan, supra, at [93]. That conclusion finds solid support in the evidence of trial counsel and that given by Mr Stollery. That evidence establishes that the trial judge in fact exercised supervision and control of what, on the evidence, was a vigorously contested trial of some complexity. The evidence establishes to my satisfaction that the superintendence of trial met the high standards expected of a trial judge such as to exclude the possibility of a miscarriage of justice due to his Honour’s conduct.

4. [203]

   It follows that I reject entirely the evidence adduced in the appellant’s case to the effect that the jurors were distracted by the trial judge’s alleged conduct. I find that no such distraction as alleged occurred.

5. [204]

   Ground 1, in my opinion, is without merit and should be dismissed.

6. [205]

   It follows that there is no basis for the contention in Ground 2 that the appellant’s legal representatives failed in any way in their duty to raise the trial judge’s conduct. Accordingly, that ground should, in my opinion, be dismissed.

Order

1. [206]

   The order I propose is that the appeal be dismissed.

2. [207]

   CAMPBELL J: I have had the great advantage of reading Hall J’s judgment in draft. I agree with the orders proposed by his Honour for the reasons he gives. But I wish to add some additional reasons about three matters: first, the admissibility of Dr Dodwell’s report; secondly, an additional reason for preferring the evidence of the four lawyers appearing in and instructing at the trial (whose affidavits were read) to the evidence of Ms Machan and Mr Duncan; and thirdly, another matter arising out of the evidence of Mr Stollery, one of the lawyers.

The admissibility of Dr Dodwell’s report

1. [208]

   Dr Dodwell’s report does not purport to be a certificate of expert evidence under s 177 Evidence Act 1995 (NSW), but it was tendered as a business record of Health Quest under s 69. There is no question, as the Crown conceded, that the report was capable of forming part of its business records. The condition of admissibility set out in s 69(2)(b) is that the hearsay rule does not apply to a business record (so far as it contains a representation) if the representation, inter alia, was made on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had personal knowledge of the fact asserted in the representation. Section 69(2) needs to be read in the light of the requirements of s 69(1). These are, relevantly in the present context, first, that the report forms part of the records kept by Health Quest for the purpose of a business. This is clearly so having regard to the width of the definition contained in Cl 1 of Pt 2 of the Dictionary to the Act. Secondly, the document must contain a previous representation, inter alia, recorded in the document for the purpose of the business. Reading ss (1) and (2) together it is enough if a record of the business contains a representation, recorded for the purpose of the business provided the recorded representation was made on the basis of information even indirectly supplied by a person who might reasonably be supposed to have personal knowledge of the asserted fact. That person need not be in any way associated with the business, nor need he or she have acquired that personal knowledge for the purpose, or in the course, of the business.

2. [209]

   Assuming relevance, matters of history and complaint of symptoms given by Judge Dodd to Dr Dodwell are admissible through Dr Dodwell’s report because Judge Dodd may be supposed to have had personal knowledge of those matters. Dr Dodwell’s findings on examination and professional opinion are likewise admissible because he has personal knowledge of them. Dr Dodwell’s record of the opinions of Dr David Jankelson is also admissible by this means because: (a) Dr Dodwell’s report forms part of the records belonging to Health Quest for the purpose of a business; (b) Dr Dodwell recorded as previous representations for the purpose of the business the opinions expressed by Dr Jankelson; and (c) those representations were based on information indirectly supplied by Dr Jankelson (by means of his reports) who might reasonably be supposed to have person knowledge of the facts asserted by his expressions of opinion.

3. [210]

   Dr Jankelson’s opinions include: the diagnosis of severe obstructive sleep apnoea made on 1st September 2004; the record made on1st June 2005 that the prescribed treatment was effective in controlling Judge Dodd’s condition; and on 9th June 2005, “obstructive sleep apnoea is well controlled … Judge Dodd’s [licence] has been suspended by the RTA while awaiting this data which objectively shows that he is compliant with therapy and treatment is effective”. All of this is recorded in Dr Dodwell’s report, which I have said is part of Health Quest’s business records.

4. [211]

   I think it fair to say that Dr Dodwell expresses no opinion as to diagnosis, but relies on Dr Jankelson’s views. This follows from the summary of the opinions of Dr Jankelson derived from his reports that were in the possession of Dr Dodwell, and the contents of the first paragraph appearing under the heading “Conclusions” on page 3 of his report. In particular, Dr Dodwell there uses the phrase “on the evidence provided”. The use of this phrase makes it clear that he is not expressing his own independently formed opinion about either the diagnosis or the fact that the condition is now well controlled by treatment.

5. [212]

   Dr Dodwell, who is an occupational physician, expresses his own opinion about the development of a variable anxiety state as “an appropriate reaction to the very public exposure of [Judge Dodd’s] health problems”. He also expresses an opinion about Judge Dodd’s fitness for work as at the date of his examination on 14th July 2005.

6. [213]

   It is clear from this that there are, what might be referred to for present purposes as, matters of both primary fact and opinion contained in Dr Dodwell’s report. The matters of primary fact arise from the narrative given by Judge Dodd as recorded by Dr Dodwell. The matters of opinion include both Dr Jankelson’s opinions and Dr Dodwell’s own opinions. The purely factual representations commence with Judge Dodd’s awareness “during 2004” that he was tired, but being unaware of having fallen asleep on the bench. This matter, of course, post-dates Mr Duncan’s trial in 2003. It is clear, however, that the judge’s appreciation is wrong because when a complaint was lodged in June/July 2004 the judge saw his GP and was sent for tests which, Dr Jankelson said, demonstrated severe obstructive sleep apnoea. As Hall J says, it cannot be said from the history given by Judge Dodd that he had the same problem in 2003, but his unawareness of the problem at that time could possibly be relevant, because of the evidence from reliable witnesses that he did appear to be asleep at times during the trial.

7. [214]

   Moving on to the matters of opinion. Again assuming relevance, the opinions of Dr Jankelson are admissible through Dr Dodwell for the reasons rehearsed. Expert opinion, of course, forms an exception to the exclusionary opinion rule created by s 76. Section 79 provides:

8. [215]

   As was made clear during argument (T 11.10 - .35), the fact in issue that the appellant asserts the opinion proves, or assists in proving, is that at the time of the trial in 2003, Judge Dodd suffered from obstructive sleep apnoea. If established, that fact, at least indirectly, could rationally affect the assessment of the probability that Judge Dodd fell asleep during Mr Duncan’s trial. Clearly Dr Dodwell’s own expressions of opinion cannot be relevant to that issue. He accepts Dr Jankelson’s views about diagnosis without forming his own. And Dr Dodwell’s opinion about Judge Dodd’s fitness for the work of his Office in July 2005 is entirely incapable of rationally affecting, directly or indirectly, the assessment of the probability of Judge Dodd having fallen asleep at the trial at 2003.

9. [216]

   Looking at the question of whether Dr Jankelson’s opinion as recorded by Dr Dodwell in his report is capable of rationally affecting the assessment of the probability of Judge Dodd falling asleep during the trial, I am of the view it does not. The trial took place in February and March 2003. Dr Jankelson’s opinion was expressed in September 2004, 18 months later. It is difficult to see how, without more, an expression of present opinion at that time would tend to prove Judge Dodd suffered from the condition in February and March of 2003. The reliable evidence that the judge appeared to be dozing at the trial in 2003, in my judgment, is not enough to constitute “something more”. To approach the matter that way would invite irrational circuity of reasoning: the judge appeared to be dozing in February and March of 2003; in September 2004 he was diagnosed as suffering from obstructive sleep apnoea; if he was dozing in 2003 it must have been because he then had obstructive sleep apnoea; and if he had obstructive sleep apnoea in 2003, he must have been dozing during the trial. Expressed this way, it is easy to see that Dr Jankelson’s opinion of September 2004 cannot rationally affect even indirectly the existence of a fact in issue in the proceedings. No presumption of continuity arises from proof, on the one hand, that Judge Dodd appeared to be dozing at the trial in 2003, and on the other, that he was diagnosed as suffering from obstructive sleep apnoea in September 2004. Moreover, as I have said, Judge Dodd himself says his problem commenced “during 2004”. From the law reports, the Cesan trial occurred in May and June 2004.

10. [217]

    The plurality in Hawchar pointed out (602 [32]):

The preferable evidence

1. [218]

   I turn to the second matter. To Hall J’s references to the judgment of French CJ in Cesan ([104] – [105]), I would wish to add some further references. At 390 [105] Gummow J said:

2. [219]

   It is plain on the evidence in this case that Ms Machan and Mr Perre raised complaints during the trial with counsel briefed to appear on behalf of both accused. This is a very significant matter. And, it having been raised with them, counsel for both accused were vigilant in assessing whether the judge was discharging his duty of superintending the trial, and also whether the jury were paying attention to all of the evidence. I agree with Hall J’s analysis of the evidence, and with his preference for the evidence of Ms Adams SC, Ms McSpedden, Mr Greenwood SC and Mr Stollery. That experienced counsel said nothing, having been alerted to the concern of Ms Machan and Mr Perre, makes it impossible to conclude that the jury were not paying full attention to the evidence that was being lead: Cesan [120]. The contrary impression of Ms Machan and Mr Perre is insufficient to displace this.

3. [220]

   I wish to record my agreement with the views expressed by Hall J at [165] – [166] that Ms Machan inadvertently influenced the appellant in the account he gave. At the same time, I wish to say that I was very impressed with Ms Machan’s manner whilst giving evidence. She was obviously honest and sincere in recounting her impressions. I formed the view that she was well motivated, had made Mr Duncan’s case her cause and was concerned only to see justice done. But for the reasons given by Hall J, I have formed the view that there was no miscarriage of justice at the trial. The focus must be upon the respect, or respects, in which it was said that there was some departure from the proper conduct of the trial: Cesan at [118] by Hayne, Crennan and Keifel JJ. For the reasons given by Hall J I am satisfied that there was no departure from the proper conduct of the trial by reason of the jury not paying full attention to the evidence because they were distracted for significant periods by the judge sleeping. I agree with the conclusions and findings expressed by Hall J at [199] – [203] of his Honour’s judgment. I am not persuaded on the balance of probabilities that Judge Dodd did fall asleep during the trial, even accepting the possibility discussed by Hall J at [202].

Mr Stollery’s evidence – foreman sketching

1. [221]

   I turn to the third and final matter. As is evident from each of the separate judgments in Cesan, distraction of the jury from paying full attention to all of the evidence is the critical consideration in deciding whether the conduct of a trial judge has led to a fundamental departure from the standards that must be observed in criminal trials. Bearing this in mind, Mr Stollery’s evidence about the reaction of some jurors to the artistry of the foreperson could be of some concern: the critical question is whether there has been a departure from the proper conduct of the trial, rather than its cause. If a jury was distracted by the artistic efforts of its foreperson and a trial judge failed to correct them, a miscarriage of justice could occur.

2. [222]

   Mr Stollery’s evidence is set out by Hall J at [184] to [195]. In addition to the references given by Hall J, I wish to include the cross-examination about his evidence that “on numerous occasions during the trial, I observed members of the jury glancing in the direction of the foreman … he was sketching [and] some of the jurors on a number of occasions appeared to be very amused by what they observed” (second affidavit [6]). The cross-examination elicited the following evidence:

3. [223]

   Reading Mr Stollery’s evidence as a whole, including the passage I have just quoted, I am not satisfied that it establishes that the jury were in fact distracted from paying attention to all of the evidence by their forepersons sketching. I interpolate that the description of the drawing of the “Exhibits Table” suggests to me that his sketching was a form of note taking. One needs to read the whole of this evidence to provide context to the passage of cross-examination I have just recounted. The amusement of the jurors described by Mr Stollery was “fleeting”. At its highest this evidence suggests occasional periods of diversion, not substantial distraction.

4. [224]

   I make these observations for completeness sake. This matter was not a ground of appeal; it is not “a respect in which it is said there was some departure from the proper conduct of the trial”: Cesan [118]. It formed no part of the argument made on behalf of the appellant that there had been a substantial miscarriage of justice. It may therefore be put entirely to one side.

Ground 2

1. [225]

   I agree with Hall J that as Ground 1 has not been made out, Ground 2 must fail. I wish to record, however, that agreeing as I do with Hall J, the acceptable evidence, as I have already remarked, demonstrates that counsel were vigilant in their duty to assist the judge in the proper conduct of the trial according to law.

2. [226]

   Since writing these reasons I have had the benefit of considering Simpson J’s judgment in draft with which I am in general agreement. Obviously, there are some differences between us about the application of s 79 Evidence Act 1995. Those differences are not material to the result.

3. [227]

   With respect, I wish to express my complete agreement with what her Honour has written at [77] – [93].