French CJ
2.
weight of the drug involved was 642.5 grams and so exceeded the "commercial quantity" prescribed for the purposes of s 233B of the Act which was 500 grams. The conspiracy alleged was an offence against s 11.5 of the Criminal Code (Cth). Section 233B was repealed by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) the relevant provisions of which commenced on 6 December 2005. An equivalent offence-creating provision was incorporated in Pt 9.1 of the Criminal Code.
After a trial by jury, which commenced on 31 May 2004 and occupied 17 hearing days, the appellants were found guilty on 28 June 2004. They were not sentenced until 18 March 2005. The appellant Cesan was sentenced to imprisonment for 13 years six months, with a non-parole period of nine years. The appellant Mas Rivadavia was sentenced to imprisonment for 11 years.
The appellants lodged notices of appeal against conviction and applications for leave to appeal against sentence. Those notices and applications were out of time but extensions of time were granted by the Court of Criminal Appeal. There were substantial delays between conviction and sentencing and in relation to the lodging of the notices of appeal. Those delays are not material for present purposes save to the extent that they may have affected the recollection of witnesses called to give evidence in the Court of Criminal Appeal concerning the conduct of the trial.
So far as they related to conviction, the amended grounds of appeal filed on behalf of Cesan on 21 June 2007 included the ground that:
"A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial."
The amended grounds of appeal filed on behalf of Mas Rivadavia on 3 July 2007 included the same ground.
The Court of Criminal Appeal received affidavit evidence relevant to whether the trial judge had been asleep from time to time during the trial and the number, duration and effect of his sleep episodes. There was cross-examination on the affidavits. The Court also received two reports by a medical practitioner in respect of the trial judge and correspondence relating to the judge's retirement on the grounds of permanent disability.
On 5 September 2007 the Court of Criminal Appeal, by majority (Grove and Howie JJ, Basten JA dissenting), made orders dismissing the appeals in the following terms (identical for each appellant):
"1. Grant an extension of time for leave to appeal.
2. Dismiss the appeal against conviction.
