Gimme that old double standard

Why is it do you think that jurors playing Sudoku during a criminal trial amounts to a miscarriage of justice sufficient to abort a trial but it’s perfectly OK for a judge to fall asleep and snore?

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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12 Responses to Gimme that old double standard

  1. I say the difference is that in the first case there’s been no verdict yet.

  2. Ken Parish says:


    That’s certainly a difference, but I’m not sure it’s a very convincing one. Surely if there’s a miscarriage of justice in relation to a matter that has already been heard and determined, it’s just as appopriate in the interests of justice that the matter be reheard fairly as it is for a part-heard matter.

    Having belatedly read the judgment, I must say I agree with Basten JA in dissent:

    Of greater concern is the evidence with respect to the behaviour of the jury, although its relevance and admissibility give rise to a separate issue. There is a consistency in the evidence that the jury was distracted, at least during the cross-examination of Mr Cesan and probably to a degree on other occasions, by the behaviour of the trial judge. For this purpose, it may in fact not matter that his Honour was asleep: if observers in the court thought that he was and if the jury reacted in a way which suggested that they also thought he was, that conduct by itself might be seen as distracting. Further, there was evidence from several witnesses, unchallenged by the Director, that some members of the jury found the behaviour of the trial judge amusing and some emulated his apparent inattention. …

    Just as, in the case of an absent judge, it is treated as insufficient that the judge may be able to be physically recalled to the court from time to time to exercise direction and control, so it would seem an inadequate response in relation to a sleeping judge that he or she could be awakened as the need arose, and, if necessary, have a question and objection repeated so as to be able to make a ruling. Depending on the circumstances, one might envisage a number of pragmatic responses. …

    An unfair trial can arise from the conduct of a participant. Conduct has cause and consequences. Where the conduct is that of the trial judge, its causes will usually be irrelevant, unless it is related to the way in which the trial is being conducted by the parties. Its consequences will not be irrelevant, but need not require the demonstration of an unjust conviction. As the Chief Justice explained in Nudd, an unfair process may preclude an assessment of the justness of the outcome; further, a departure from an essential requirement will be sufficient in itself to demonstrate a miscarriage of justice.

    For the reasons given above, in my view the conduct of a trial before a judge and jury required that the judge be present and conscious during the whole of the trial proceedings, at least to the extent that any absence or period of sleep beyond any period which was insignificant because not more than momentary. Further, I am satisfied that the periods during which the judge was asleep could not be dismissed as insignificant for the conduct of the trial. …

    The evidence suggests that the jury was in fact distracted and may have paid less attention to the evidence when the judge was perceived to be asleep. However, in my view such evidence was not necessary and was either irrelevant, or at least of very limited relevance. That is because the proper test is an objective one. It is the conduct of the judge which should properly be assessed, not the apparent responses of the jurors. It should be assumed that the conduct of the judge established on the facts would have had two related effects. First, it tended to undermine the routine directions which his Honour gave at the commencement of the trial, to listen carefully to the evidence, to put aside preconceptions and to assess the evidence against the directions given as to the law in a responsible and considered manner. The Appellants were each facing a maximum penalty of imprisonment for life if convicted. Conduct which tended to diminish the jurys understanding of the seriousness and responsibility of their task impacted directly on the fairness of the process.

    Secondly, the administration of criminal justice rests squarely on the presumption that the jury will follow the judges instructions. Because the decision-making process is opaque, that presumption, on which many appeals have foundered, is a central quality or essential characteristic of trial by jury. If the conduct of the judge casts doubt on the reliability of that presumption, the soundness of which cannot realistically be tested except in extraordinary cases, the process will have miscarried.

    Thus, the judges conduct not only undermined the specific directions given, but, in a broader sense, tended to undermine the likelihood that correct directions were taken seriously and carefully applied. They may have been, but it is impossible to know. Far from exercising control over the Court, the trial judges behaviour itself constituted a distraction. As Mr Dhanji pointed out, the conduct was of the kind which, had it occurred in the public area of the court, in the presence of a conscious judge, would have been stopped by the judge and about which he would have warned the jury not to be distracted. He might even have taken steps to have relevant evidence read back to them had he observed that some were indeed distracted.

    Accordingly, there was a real possibility that the judges conduct adversely affected the jurys performance of its function, in a material respect, which was sufficient to render the trial unfair and to deprive the proceedings of an essential characteristic of trial by jury. …

  3. FDB says:

    I was juror in a murder trial in the Perth Magistrate’s Court when the judge repeatedly nodded off. The defence lawyer was not at all amused, but seemed not to think it grounds for a mistrial.

  4. Graham Bell says:

    Ken Parish:

    You bet there is a double-standard.

    Twelve innocent citizens have been brought together to waste many days out of their lives just so that a bunch of highly-qualified unjailed scallywags can justify a king’s ransom in professional fees.

    This whole circus has very little to do with determining whether anyone is guilty or innocent of anything. Even the most convoluted case in the world could be decided justly within FOUR sitting days.

    Time to clean out the Augian Stables that is pretending to be a legal system.

    b.t.w., My heartiest congratulations to the much-maligned jurors; you have, in your understandable reaction to bum-numbing boredom, done more for advancing justice in Australia than have all the bewigged – and befuddled – professionals.

  5. Nabakov says:

    I was a juror once in a criminal trial where the Crown Prosecutor in his opening statement asked that the case be dismissed on the grounds of diminished responsibility because of temporary insanity (or some such phrasing).

    Everyone was in full agreement from the judge to the defence Legal Aid dudess to the accused – a very mild mannered and incredibly embarrassed recent Romanian immigrant whose domestic was overheard by the neighbors who called the cops. When they turned up, he then freaked out, flashing back to when he’d been bastardised in the Romanian Army by Romanian MPs (who I suspect are total bastards). Once it dawned on him it was just the old VicPol after, he put down his shotgun (a length of pipe) and came out and apologised.

    But for some reason charges were laid and had to be heard. The beak had a good squint at him and obviously agreed this was a non-event, perhaps demanding at worst a three month good behaviour bond.

    However VicPol, under fire at the time for some heavy-handed efforts, used some legal loophole to insist the case be properly heard so they could get onto the record their sensitive “community-oriented” handling of this case.

    Easier said than done. After two long hours of a VicPol technician doing M. Hulot impersonations with a malfunctioning tape recording of the cops responses, the Judge said “ahem” loudly, made a throat slitting gesture to the hapless tech, deliberately caught the eye of all the players, including the jury, and then announced “case dismissed”.

    It was a commonsense outcome for what was basically a trivial contretemps. The Romanian guy cheerfully left arm in arm with his wife and us jurors had a nice yarn to tell others. The only people pissed off were VicPol for completely screwing up their evidence and the Judge and Crown Prosecutor for having their time wasted by a backfiring PR stunt.

    Basically Justice wasn’t so much blind as bored out of her mind.

    And what did us jurors do to kill time as VicPol struggled with its tapes? We surreptitiously played Hangman.

    I also remember fondly the selection of a jury foreman that day. After we were sworn in (Choice of oaths too. On the Bible or non-secular.), we were ushered into a dingy little room off the courtroom and told by the tipstaff? to select a foreman.

    “See who volunteers and hold your hand up if you’re OK with ’em.”

    After 10 minutes of typical Aus self-depreciating comments and mild snarking about the process, a nice old matron said well OK, she’d have a go. Done. Sorted. Then the rest of the jury discussion revolved around why we couldn’t get a decent cup of coffee or tea while twiddling our thumbs.

    All in all, I feel justice was served that day in a very Australian fashion, albeit at unnecessary cost to the taxpayers.

  6. FDB says:

    “All in all, I feel justice was served that day in a very Australian fashion, albeit at unnecessary cost to the taxpayers.”

    What’s unAustralian about that? ;)

  7. Geoff says:

    I’m not a lawyer, although I am a bit of a pedant. Would the difference be that a jury is required to evaluate the facts (as presented in evidence) while a judge (that is, a judge sitting with a jury, not a judge sitting alone) is not? The judge’s job is to interpret the law, which usually doesn’t change much while he’s asleep. Of course, I’m not suggesting that sleeping judges are a good idea.

  8. FDB says:

    Sure, Geoff. That is a difference between jury and judge, but the pertinent thing to look at is the similarity. Both are required to be present during proceedings for them to be lawful. Asleep is not present in any meaningful way.

  9. Ken Parish says:


    That’s certainly a relevant distinction, however even where the jury is the tribunal of fact:

    (a) the judge has to rule on admissibility of evidence and can and does (if awake) keep counsel in line in terms of the questions they ask, sometimes even without the need for objection from opposing counsel. It’s rather difficult to fulfil that role while asleep;
    (b) As Basten JA points out, the judge’s demeanour and attentiveness or otherwise provide a model for the jury in how seriously they take their own task, and in the case in question it seems the judge’s sleeping DID have a noticeably adverse effect on the jury’s attitude.

  10. Sorry to have been so cryptic, KP. I was actually supporting your point. The presiding judge had no difficulty in discharging the jury in the first case because doing so reflected no discredit on the presiding judge (himself!). The majority appellate judges in the second case were less inclined to take a step when that step would reflect discredit on the presiding judge.

  11. Graham Bell says:

    Ken Parish and all:

    My own experience of jury duty was very good. The bailiff took very good care of us. The judge and the judge’s associate treated us as intelligent fellow s on the same team. The only ones who spoilt it were those committing barristry. [Naturally, I cannot pass a public opinion on the accused].

    Left to the judge, the judge’s associate, the court staff and the jury – guilt or innocence would have been accurately and fairly determined within a few hours …. and then justice truly done. But where was the profit in that???

    Nabakov [5]:

    How naughty! You used those two swear-words: Common sense and Justice.

  12. Pingback: Club Troppo » Abolish juries?

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