French CJ
30.
The general principle that a fair trial requires a judge to be attentive to the evidence and submissions of the parties was supported by the judgment of the Court of Appeal of England and Wales in Stansbury v Datapulse plc[1]. Peter Gibson LJ (Latham LJ and Sir Martin Nourse agreeing) said:
"A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights."
Peter Gibson LJ saw the proposition as reinforced by Art 6(1) of that Convention[2].
If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including:
1. Whether the conduct of the judge can be said to have affected the outcome of the trial.
- ↑ [2004] ICR 523 at 533 [28].
- ↑ Kraska v Switzerland (1993) 18 EHRR 188 at 200 [30], 201 [32]. Successful appeals based on the appearance of sleep were R v Weston-super-Mare Justices; Ex parte Taylor [1981] Crim LR 179; Kudrath v Ministry of Defence unreported, Employment Appeal Tribunal, 26 April 1999; cf R v Langham and Langham [1972] Crim LR 457.
Moringiello [1997] Crim LR 902; R v Betson [2004] 2 Cr App R (S) 52. In the United States: Chicago City Railway Co v Anderson 61 NE 999 (1901); United States v White 589 F 2d 1283 (1979); United States v Yanez-Baldenegro 1994 US App LEXIS 22103 (9th Circuit); Hummel v State 617 NW 2d 561 (Minn 2000); People v Degondea 769 NYS 2d 490 (2003); United States v Martinez 97 Fed Appx 869 (2004); Lampitok v State 817 NE 2d 630 (Ind App 2004). In Canada: R v Caley 1991 CanLII 304 (BC SC); R v Chan (2007) 429 AR 101 (which cited Cesan (2007) 174 A Crim R 385); Leader Media Productions Ltd v Sentinel Hill Alliance Atlantis Equicap Limited Partnership (2008) 90 OR (3d) 561.
