To sleep perchance to dream

In films judges are usually eagle eyed and alert. That is usually the position in real life. However it is not always the case.

Recently the Australian High Court overturned convictions of two alleged drug traffickers, Rafael Cesan and Ruben Mas Rivadavia, because of the conduct of Judge Ian Dodd during their 17 day trial in 2004. The Judge had actually retired in July 2005. Apparently (although this was not known during 2004) he suffered from sleep apnoea. This is a condition can interfere with of airflow during sleep and consequently can lead to loud snoring. None of the lawyers nor the jurors knew that he suffered from the condition during the trial, but they certainly heard the snoring. The judge regularly fell asleep during the trial, sleeping to periods of up to 20 minutes. Everyone could hear a loud snoring from the bench, even during cross examination. It was obvious that various jury members were distracted or amused by the loud snoring, and sometimes both. Eventually court officials resulted to dropping documents in as loud a fashion as possible in order to wake the judge up. As the trial went on the periods of sleep got longer.

Whilst the judge may have been dreaming, from the point of view of the defendants the trial must have seemed a nightmare, especially when Mr Cesan and Mr Rivadavia, were respectively jailed for 13-and-a-half years and 11 years after the jury convicted them of conspiring to import ecstasy. Unsurprisingly the appeal Court held that this affected the fairness of the trial, and so the men must face a retrial.

You would think that this would be a unique occurrence, and in the sense of the frequency with which it occurred, the length of the periods of sleep, and the slapstick comedy style loud snoring, it almost certainly was. However I know of several instances where judges have either nodded off briefly (albeit only for a moment or two) or seemed to be desperately fighting to stay awake.

In more than one trial I have heard of the judge was sitting having returned from either America or the Caribbean the night before or in the early hours of the morning, after a holiday. I would always rather that the judge skip a court today in those circumstances rather than insist on sitting. I have never heard of a judge in such circumstances falling asleep, but if they are obviously tired , pale and drawn you do wonder whether their brains can be functioning with the usual acuity. With judges hearing civil matters this is even more important because of course that least in the Australian trial ultimately the jury was making a decision. (Having said that of course, the judge has to sum up the case and he can hardly do that fairly if he's been asleep for large parts of it). In a civil trial the judge is making the decision. If he is too tired there is always the risk that he might not notice submissions or parts of the evidence in the same way as would otherwise be the case.

I know of one application in a civil case which took place the day following a big legal dinner, which the judge had attended and that which he had been seen to get into the spirit of things as regards drinking with dinner. After lunch the next day the judge seemed a little tired. Some judges sometimes close their eyes when they are concentrating ferociously on a point, and can even address comments from that position. The opinion of the advocates in this case, although they did not like to ask the judge, was that he had briefly nodded off, if only for a few seconds. At least when counsel rephrased the same submission (essentially to say the same point, but to give himself a get out of jail card in case the judge barked at him "you've just said that"), the judge didn't seem to recognize it as something he had already heard.

In one family case the hearing started late because the mother sent in a message saying she couldn't find a babysitter and so the hearing ended up starting in the afternoon rather than the morning. The judge said in the interests of justice he would sit to finish the case. By about eight o'clock in the evening, the judge, who was very elderly and very close to retirement (and who to be fair, was not expecting to be in court beyond 4:30 p.m.) nodded off briefly. The advocates paused. They were unsure what to do. The judge was probably only asleep for 30 seconds, but a silent 30 seconds in the court room sounds to be a long time. He then awoke and asked counsel why on earth he had stopped addressing him. Rather than appear to insult the judge, Counsel took the prudent course of apologising and carrying on with his submissions.

All this goes to show the following. If you ever become a barrister, you really do have to be prepared to anything.