CESAN v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); MAS RIVADAVIA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2007] NSWCCA 273

CESAN v DIRECTOR OF PUBLIC PROSECUTIONS (CTH); MAS RIVADAVIA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2007] NSWCCA 273

The majority of the Court (Grove J, Howie J agreeing) held that while the judge was inattentive and sometimes asleep during parts of the trial, this did not amount to a miscarriage of justice or deprive the proceedings of an essential characteristic of trial by jury. No adverse effect on the fairness of the trial or outcome was demonstrated. The directions to the jury, including those about lies and elements of conspiracy, were appropriate. The appeals against conviction and sentence were therefore dismissed. Basten JA (dissenting) would have allowed the appeal on the basis of contravention of s 80 of the Constitution, quashed the convictions, and ordered a retrial.

Parties
Appellant: Rafael Luis Cesan; Appellant: Ruben Mas Rivadavia; Respondent: Director of Public Prosecutions (Cth)
Jurisdiction
Australia
Judgment Date
05 September 2007
Procedural Posture
Criminal Appeal / Decision of Court of Criminal Appeal (nsw)
Outcome
Appeal against conviction and sentence dismissed (majority; Basten JA dissenting)
Legal Topics
Miscarriage of Justice, Judge Asleep at Trial, Essential Elements of Trial by Jury, Directions on Lies, Sentence Disparity
Criminal Law Constitutional Law Miscarriage of Justice Judge Asleep at Trial Essential Elements of Trial by Jury Directions on Lies Sentence Disparity

Case Brief

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Parties

Rafael Luis Cesan

Appellant

Ruben Mas Rivadavia

Appellant

Director of Public Prosecutions (Cth)

Respondent

Procedural Posture

Criminal Appeal / Decision of Court of Criminal Appeal (nsw)

Legal Issues

  1. 1 Whether a miscarriage of justice occurred due to the trial judge being asleep for parts of the trial
  2. 2 Whether the trial judge erred in directing the jury as to the elements of conspiracy
  3. 3 Whether the trial judge erred in giving directions concerning lies

Ratio Decidendi

The majority of the Court (Grove J, Howie J agreeing) held that while the judge was inattentive and sometimes asleep during parts of the trial, this did not amount to a miscarriage of justice or deprive the proceedings of an essential characteristic of trial by jury. No adverse effect on the fairness of the trial or outcome was demonstrated. The directions to the jury, including those about lies and elements of conspiracy, were appropriate. The appeals against conviction and sentence were therefore dismissed. Basten JA (dissenting) would have allowed the appeal on the basis of contravention of s 80 of the Constitution, quashed the convictions, and ordered a retrial.

Court Disposition

Appeal against conviction and sentence dismissed (majority; Basten JA dissenting)

Orders

  • Grant an extension of time for leave to appeal.
  • Dismiss the appeal against conviction (majority).