Cesan v R: The Sleeping Judge

Published date01 April 2009
Date01 April 2009
DOIhttp://doi.org/10.1350/ijep.2009.13.2.316
Subject MatterCase Notes
CASE NOTE
CESANvR: THE SLEEPING JUDGE
CASE NOTES
Cesan vR: the sleeping judge
By Dr Damien Cremean*
Barrister at Law
Keywords Fair trial; Miscarriage of justice; Jury
ord Hewart CJ in RvSussex Justices, ex p. McCarthy1said it ‘is of fundamental
importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done’. Many do not know there is
authority (Avory J in RvEssex Justices, ex p. Perkins)2for saying the words ‘be seen’ are
a misprint for the word ‘seem’. Be that as it may, the importance of the principle is
not in doubt. As Gaudron J said in Ebner vOfficial Trustee in Bankruptcy:3‘Impartiality
and the appearance of impartiality are necessary for the maintenance of public
confidence in the judicial system’. But is justice being done, or being seen to be
done, if the judge falls asleep during a hearing? What would the fair-minded and
informed observer think?
This is not a novel problem: ‘how far better’, Plato said, ‘it is to arrange one’s life so
that one has no need of a judge dozing on the bench’.4Rose LJ, delivering the
court’s judgment in RvBetson,5said: ‘Because the appearance as well as the
actuality of justice being done is important, no judge ought, in any circumstances,
to fall asleep during any stage of a criminal trial’. In RvLangham6the Court of
Appeal (Criminal Division) said if the complaint that the judge in that case had
been asleep was true, this was ‘a matter which the court would certainly deplore’.
doi:1350/ijep.2009.13.2.316
130 (2009) 13 E&P 130–136 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
1 [1924] 1 KB 256 at 259.
2 [1927] 2 KB 475 at 488.
3 (2000) 205 CLR 337 at 363.
4 See D. Pannick, Judges (Oxford University Press: Oxford, 1987) 77, 228.
5 [2004] EWCA Crim 254, quoted in Cesan vDPP [2007] NSWCCA 273 at [190], per Grove J.
6 [1972] Crim LR 457.
L
* Email: Damien.Cremean@justice.vic.gov.au.

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