FRENCH CJ.
Introduction
After a trial lasting 17 days in 2004 Rafael Cesan and Ruben Mas Rivadavia were convicted on 28 June 2004 of conspiracy to import ecstasy into Australia. They were sentenced to terms of imprisonment in March 2005. They appealed out of time to the New South Wales Court of Criminal Appeal against both their convictions and sentences. The Court gave them leave to appeal. A common complaint in their appeals was that the trial judge had been asleep during significant parts of the trial.
The appeals to the Court of Criminal Appeal were dismissed by majority on the basis that there was no demonstrated error or prejudice to the appellants flowing from the trial judge's conduct. The appellants obtained special leave to appeal to this Court on a number of grounds. Those grounds included, among other things, that there had been a miscarriage of justice and no trial by jury as required by s 80 of the Constitution in relation to indictable offences against laws of the Commonwealth. At the commencement of the appeal the Court invited the parties to address it on the question whether, the constitutional issues apart, there had been a miscarriage of justice.
At the close of oral argument the Court indicated that it would allow the appeals, set aside the convictions and remit the matters for retrials. The Court made orders to that effect. I now publish my reasons for joining in those orders.
As these reasons indicate, the case invited consideration of the duty of the judge in a trial by jury. That duty extends to the supervision and control of the conduct of the trial. Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice. Putting to one side minor lapses, a substantial failure of that kind in the judge's duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court. The trial in such a case is flawed in a fundamental respect. However apparently strong the evidence against the accused person may have been, it cannot generally be said with any confidence that there has been no substantial miscarriage of justice. The trial in this case was so flawed. There was a miscarriage of justice. It could not be said that the miscarriage was not substantial.
Factual and procedural background
On 31 May 2004, the appellants were charged upon indictment that between about 12 February 2002 and about 24 April 2002, at Sydney, they conspired with each other and others to import into Australia a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied, namely narcotic goods consisting of a quantity of the narcotic drug commonly known as ecstasy. The
