Dozing judge a miscarriage of justice

By Legal Eagle

The High Court has just handed down its decision in Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52. This case involved the 2004 trial of two alleged drug traffickers before Justice Dodd of the District Court of NSW. Notoriously, his Honour regularly fell asleep during various trials, including the trial of Cesan and Mas Rivadavia.

The question for the High Court was whether there had been a miscarriage of justice because of the trial judge’s propensity to fall asleep. A majority of the NSW Court of Criminal Appeal had decided previously that there was no miscarriage of justice. However, the High Court overturned that finding, and the defendants are now entitled to a retrial.

The longest judgment is that of the new Chief Justice, French CJ. His Honour says at [4]:

[The duty of a trial judge] extends to the supervision and control of the conduct of the trial. Where the judge is noticeably and repeatedly asleep or inattentive during the trial, there can be a miscarriage of justice. Putting to one side minor lapses, a substantial failure of that kind in the judge’s duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court. The trial in such a case is flawed in a fundamental respect. However apparently strong the evidence against the accused person may have been, it cannot generally be said with any confidence that there has been no substantial miscarriage of justice. The trial in this case was so flawed. There was a miscarriage of justice.

I have written a post on falling asleep in court before. Obviously, it is not ideal if the person who is supposed to be supervising the trial keeps falling asleep during the giving of evidence. It is also not ideal if the jury, court staff, lawyers and witnesses are all aware of it. As French CJ says at [76]:

It is difficult to distinguish in principle between the physical absence of a judge from the courtroom and sleep episodes which effect substantial discontinuities in the judge’s superintendence and control of the trial. If it be accepted that the supervision and control of the trial by the judge is indispensable to trial by jury there is no requirement for present purposes to inquire whether its absence can be characterised as a failure to maintain a duly constituted court capable of exercising federal jurisdiction.

However, as I’ve said in my previous post, I can’t help feeling a little sorry for Dodd DCJ. As it turned out, he had the medical condition of severe obstructive sleep apnoea. After the adverse publicity surrounding this trial and others, he sought treatment successfully, after which he no longer fell asleep at the bench. But he was later forced to retire on “health grounds”. It seems quite extraordinary that no one raised the issue with his Honour during the trial. There ought to be a way in which such an issue could be raised sensitively so as to encourage judges to seek treatment.

Perhaps my sympathy also stems from the fact that I have nodded off in court before myself as an articled clerk, even though I put a bulldog clip on my finger in an effort to keep awake. Court rooms are hardly the place of drama portrayed by the John Grishams of this world. In fact, with artificial lighting and heating, they are rather soporific, particularly if you have to listen to droning, repetitive, irrelevant or very technical submissions. I also feel sorry for juries who get in trouble for falling asleep or doing Sudoku to keep awake; I can well understand how this can happen.

In my previous post, I linked to an article by an Australian sleep specialist, Ronald Grunstein, who contrasted the treatment of Dodds DCJ with the treatment of other judges. He found that there were a variety of examples of judges falling asleep at the bench, so it is obviously not an isolated problem. He also found that the way in which in was treated varied according to the seniority of the particular judge:

One could contrast the media-driven approach to Judge Dodd with the deferential reference to the sleepiness of a more senior judge in NSW, Justice Roderick Meagher in 2005. In a speech in honor of the judge’s retirement, the president of the NSW Bar Association (the organization representing lawyers who appear in higher courts), Ian Harrison, stated that Justice Meagher “brought colour to the Court of Appeal,” Mr Harrison added, “but not, if I may say so…much movement.” Harrison told the audience that the judge was known for his ability to nod off on the bench, and Judge Meagher had once warned him: “Mr Harrison, I’m going to sleep now, and I don’t want you to be here when I wake up.” The etiology of his sleepiness was sleep apnea. No one seemed to question the effect of Justice Meagher’s sleepiness on his judicial competency, and the Justice himself had apparently always argued
that a transcript of evidence was also available. This argument has limitations as in many of the cases reported above; complaints about judicial sleepiness referred to its impact on juries, particularly the lack of importance of evidence being heard or even the ability of the judge to monitor the conduct of the prosecution or defense lawyers. Another example of judicial sleepiness being ignored despite widespread knowledge was the case of Lord Widgery, Lord Chief Justice of England and Wales. In 1979, he started to develop dementia, but his fellow judges covered up for him and wrote his judgments. He was not dismissed and continued to repeatedly fall asleep on the bench for another 9 months before he retired.

The report went on to say:

The opposite of this “cover-up” approach is the high-profile media-driven “frenzy” approach aimed at removing the judge from the judicial system, as typified by the case of Judge Dodd. It would seem that a culture change is required to prevent ongoing judicial “failure” so that it is seen in the interest of both the judge’s health and the judicial system to have episodes of judicial sleepiness investigated. A process of identification of inappropriate sleepiness must be coupled with appropriate interventions and countermeasures. It may be a simple matter of the judge avoiding sleep deprivation or getting expedited treatment of sleep apnea. Rapid assessment and treatment would prevent situations in which multiple defendants seek compensation or continued media attention result[ing] in judges departing the bench.

The answer is not to try to conceal the problem of judicial sleepiness. Nor should we ignore it until miscarriages of justice occur, and then hound the judge out of office. As Dr Grunstein suggests, there needs to be some kind of program for identifying and dealing with sleep issues before they lead to injustice or resignation of judges.


  1. Posted November 6, 2008 at 9:47 pm | Permalink

    Your Windbags beware might hint at one possible cause. I wonder if there is any data to correlate judicial snooziness with particular advocates?

    Of course, that’s a snide remark… it’s a serious issue.

    And while everyone is in a WestWing mood comparing Obama and WW’s Santos, I’m about to go to my shelves to find the WW episode where the (progressive) head of the high court (ooops, it’s not called that in the US I think, but you know what I mean) is having problems and needs to be persuaded to retire.

  2. Posted November 7, 2008 at 1:18 am | Permalink

    Dodd DCJ.

    Meagher JA was on the Court of Appeal, so he wasn’t presiding over trials. Nevertheless, it must be said that Meagher, however loved as a character, was a bit of a disapointment once he went on the bench. This was not so much because of any doziness, but because of the brevity of his judgments, which maintained the opinionatedness but not the detail of learning or energy of exposition which he previously exhibited as an author of legal texts.

  3. Peter Evans
    Posted November 8, 2008 at 4:13 am | Permalink

    The comments in the media concerning Judge Ian Dodds sleep apnea reflect the general public’s attitude to the disorder & disbelieve that there is any such medical condition. Most people don’t believe the diagnosis & think it is a cover-up or an excuse for laziness.
    I was recently diganosed with this condition & supplied with a CPAP machine that uses a compressor that tracks my airflow & increases the airflow into my lungs. Some times I fall asleep at night when I go to bed, with out putting on the mask and usually wake up at first light, then start to fall sleepy by 11:00 am & if left will sleep for up to 2 hrs. If I use the CPAP every night I tend to sleep till my alarm wakes me and can get thru the day without falling asleep. Without it, I can’t work effectively at any creative or intellectual work ( Engineering design) after 11 am, ie only 3 hours a day.
    I can sympathise with Judge Dodd & I hope he has been equipped with a CPAP machine, and if so, consideration should be given to re-instate him,

3 Trackbacks

  1. By skepticlawyer » Re-run of “Sudoku trial” finishes on November 15, 2008 at 12:20 pm

    […] posted on dozing judges a few days ago, and made a glancing reference to the infamous “Sudoku trial”, where jurors completed […]

  2. […] the term of appointment, including the desirability of a compulsory retirement age, and the merit of full-time, part-time or other arrangements: Who cares, as long as there is time for golf with enough energy left over so they don’t fall asleep in court!  […]

  3. By Skepticlawyer » Scanning Judges on August 2, 2010 at 6:22 am

    […] Dodd, a NSW District Court judge who fell asleep during trials. As I’ve said in previous posts, I have sympathy for Judge Dodd. His Honour suffered from severe obstructive sleep apnoea, for […]

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