An Australian judge's habit of repeatedly nodding off during a drug trial was "regrettable" but did not alter the outcome of the hearing, an appeal court ruled Wednesday.
The mere fact the judge had fallen asleep did not mean the trial was unfair and it could not be assumed that there had been a miscarriage of justice, the New South Wales Court of Criminal Appeal said in a majority decision.
Australian Associated Press reported that two of the three judges on the appeal bench ruled the convicts' lawyers had not showed the outcome of the 2004 trial would have been different if the judge was "bright-eyed" throughout.
The men, Rafael Luis Cesan and Ruben Mas Rivadavia, were each found guilty of conspiring to import a commercial quantity of ecstasy and sentenced to 13 years and 10 years respectively.
The judge who sentenced them, Ian Dodd, retired in July 2005 and was later found to have sleep apnoea.
Judge Michael Grove accepted that Dodd "nodded off" from time to time and "on other occasions, notably when he was heard to snore, was asleep in a real and practical sense".
Grove said the judge woke up either "by the operation of his own body mechanisms" or by the "provocation" of someone creating a noise by clearing their throat or moving a book.
But he dismissed the appeal, describing the sleeping as "regrettable" but concluding "that a judge must be constantly attentive is not a fundamental requirement".
The dissenting appeal court judge, John Basten, believed the convictions should be overturned, accepting Cesan's assertion that he was distracted when Dodd began snoring as he gave evidence to the court.
Basten said there was a real possibility the judge's conduct adversely affected the District Court jury's performance of its function.
He concluded that a judge was required to be "present and conscious" during the whole of a trial before a jury, except for insignificant or momentary absence or sleep.
"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," he said.
