7.
(2) Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody."
Evidence before the Court of Criminal Appeal
The Court of Criminal Appeal received affidavit evidence from a number of persons who had been present at the trial. They were the appellant Cesan, the Crown Prosecutor Mr Bellew SC, the appellant Cesan's mother, his sister and four friends. Affidavits were also received from the appellant Mas Rivadavia's sister and his aunt. Mr Cesan's solicitor, Mr Kessels, swore a short affidavit to the effect that he had made inquiries about the existence of tapes of the trial and had been informed by the Reporting Services Branch of the Attorney-General's Department of New South Wales that no tapes existed.
The Court of Criminal Appeal was divided in its opinion. The majority held in substance that there was no demonstrated error or prejudice flowing from the trial judge's conduct. Because of the majority judges' effects based approach, their findings of fact about the conduct of the trial judge were somewhat ambulatory in character. That is not a criticism of those findings, but an explanation of how the majority's reasoning affected their form. Because I do not agree with the approach taken by the majority, it is necessary to have regard to the evidentiary basis for the findings of fact made by the dissenting judge which were not inconsistent with those of the majority. A review of that evidence follows.
The appellant Cesan said that, on or about the second day of the trial, when recordings of some telephone intercepts were being played to the jury, the judge was "slumped in his chair and appeared to be asleep". He raised the matter with his solicitor. His solicitor said words to the effect:
"Look mate it doesn't really matter, it happens with this judge."
The next day he again noticed that the judge appeared to be asleep. He would slump in his chair and his head would fall forward and it would stay down for some time. He would suddenly lift it and appear to wake up before "nodding off again". This happened several times for up to five or more minutes at a time.
The judge appeared to him to be asleep on many occasions in the second week of the trial. A lot of tapes were played during that time. These episodes appeared to occur more in the afternoons than in the mornings. He did not know exactly how frequently or for how long the judge slept, but the episodes seemed to be for periods of 10, or 15, or even 20 minutes. Members of the jury often looked at the judge. He raised the matter again with his solicitor after a few days. His solicitor said that Cesan did not want to be upsetting the trial judge but he
