French CJ
14.
observed that Cesan's mother had not linked her observations of the trial judge's conduct to any aspect of the course of trial contemporaneous with her observation. Implying some scepticism about the witnesses' estimates of the duration of the sleep episodes, Grove J referred to Ivan Amaro's observation that:
"What must have been five – ten seconds seemed to be an eternity"
and characterised it as "a more realistic description of what was happening"[1] during Cesan's testimony.
His Honour rejected, as an exaggeration, Patricia Lawson's testimony that the judge was asleep most of the time during the nine days she attended the trial. He referred to Gabriela Cesan's evidence and noted she did not time the longer episodes of sleep to which she deposed. Juan David Uribe's evidence was said to be, in some respects, incompatible with the record of the proceedings on the days to which he referred. But even assuming that what he said was basically correct it carried the issue no further. He also referred to the evidence of Catalina Cal, Magalli Locaputo and Mr Bellew without comment.
Two important passages of his Honour's judgment followed his reference to the evidence. He said[2]:
"It is necessary to make findings of fact in respect of these matters for the purpose of dealing with the grounds. I accept that the judge was asleep from time to time. In reference to the evidence of Cesan, Basten JA has commented 'commonsense suggests that (his) estimates must have been subject to a significant margin of error'. I agree and would apply that comment also and particularly to those witnesses who testified to lengthy periods of fifteen to twenty minutes. I find the probability to be that, from time to time, the judge was 'nodding off' and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense. I am persuaded by the tenor of all the evidence that it was on these latter occasions that the associate or perhaps the court staff, or Mr Bellew by clearing his throat, restored the judge's attention.
I do not accept that three counsel would press on, remaining mute about the situation, if something of genuine significance was occurring without then, or even at a later time, drawing his Honour's attention to what he had apparently missed. The importance I have ascribed to this is that, in my view, the mere fact that the judge has been asleep (on and off) during the trial does not, without more, demonstrate that the trial had been
