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 goods necessary for loading their ships, which, on account of the ice, can seldom remain above six or eight weeks in those seas. This advantage of having a cargo ready prepared, could not for several years be acquired by private adventurers, and without it there seems to be no possibility of trading to Hudson's Bay. The moderate capital of the company, which, it is said, does not exceed one hundred and ten thousand pounds, may besides be sufficient to enable them to engross the whole, or almost the whole, trade and surplus produce of the miserable, though extensive country, comprehended within their charter. No private adventurers, accordingly, have ever attempted to trade to that country in competition with them. This company, therefore, have always enjoyed an exclusive trade in fact, though they may have no right to it in law. Over and above all this, the moderate capital of this company is said to be divided among a very small number of proprietors. But a joint stock company, consisting of a small number of proprietors, with a moderate capital, approaches very nearly to the nature of a private copartnery, and may be capable of nearly the same degree of vigilance and attention. It is not to be wondered at therefore if, in consequence of these different advantages, the Hudson's Bay Company had, before the late war, been able to carry on their trade with a considerable degree of success. It does not seem probable, however, that their profits ever approached to what the late Mr. Dobbs imagined them. A much more sober and judicious writer, Mr. Anderson, author of "The Historical and Chronological Deduction of Commerce," very justly observes that upon examining the accounts which Mr. Dobbs himself has given for several years together, of their exports and imports, and upon mak-


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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 ing proper allowances for their extraordinary risk and expense, it does not appear that their profits deserve to be envied, or that they can much, if at all, exceed the ordinary profits of trade.

The South Sea Company never had any forts or garrisons to maintain, and therefore were entirely exempted from one great expense to which other joint stock companies for foreign trade are subject. But they had an immense capital divided among an immense number of proprietors. It was naturally to be expected, therefore, that folly, negligence, and profusion should prevail in the whole management of their affairs. The knavery and extravagance of their stock-jobbing projects are sufficiently known, and the explication of them would be foreign to the present subject. Their mercantile projects were not much better conducted. The first trade which they engaged in was that of supplying the Spanish West Indies with negroes, of which (in consequence of what was called the Assiento contract granted them by the treaty of Utrecht) they had the exclusive privilege. But as it was not expected that much profit could be made by this trade—both the Portuguese and French companies, who had enjoyed it upon the same terms before them, having been ruined by it—they were allowed, as compensation, to send annually a ship of a certain burden to trade directly to the Spanish West Indies. Of the ten voyages which this annual ship was allowed to make, they are said to have gained considerably by one, that of the "Royal Caroline" in 1731, and to have been losers, more or less, by almost all the rest. Their ill success was imputed, by their factors and agents, to the extortion and oppression of the Spanish government; but was, perhaps, principally owing to the


text: The Earth Turns South/The Wheel

title: The Earth Turns South/The Wheel


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 as a stick to cut or a stile to climb and sit down upon,—how these poor folk get through their lives without being utterly weary of them, and dying from pure indolence, is a thing God only knows, if His mercy allows Him to think of it.

How the year went by I know not, only that I was abroad all day, shooting, or fishing, or minding the farm, or riding after some stray beast, or away by the sea-side below Glen-thorne, wondering at the great waters, and resolving to go for a sailor. For in those days I had a firm belief, as many other strong boys have, of being born for a scaman. And indeed I had been in a boat nearly twice; but the second time mother found it out, and came and drew me back again; and after that she cried so badly, that I was forced to give my word to her to go no more without telling her.

But Betty Muxworthy spoke her mind quite in a different way about it, the while she was wringing my hosen, and clattering to the drying-horse.

"Zailor, ees fai! ay and zarve un raight. Her can't kape out o' the watter here, whur a' must goo vor to vaind un, zame as a gurt to-ad squalloping, and mux up till I be wore out, I be, wi' the very saight of 's braiches. How will un ever baide aboard zhip, wi' the watter zinging out under un, and comin' up splash when the wind blow. Latt un goo, missus, latt un goo, zay I for wan, and old Davy wash his clouts for un."

And this discourse of Betty's tended more than my


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 mother's prayers, I fear, to keep me from going. For I hated Betty in those days, as children always hate a cross servant, and often get fond of a false one. But Betty, like many active women, was false by her crossness only; thinking it just for the moment perhaps, and rushing away with a bucket; ready to stick to it, like a clenched nail, if beaten the wrong way with argument; but melting over it, if you left her, as stinging soap, left alone in a basin, spreads all abroad without bubbling.

But all this is beyond the children, and beyond me too for that matter, even now in ripe experience; for I never did know what women mean, and never shall except when they tell me, if that be in their power. Now let that question pass. For although I am now in a place of some authority, I have observed that no one ever listens to me, when I attempt to lay down the law; but all are waiting with open ears until I do enforce it. And so methinks he who reads a history cares not much for the wisdom or folly of the writer (knowing well that the former is far less than his own, and the latter vastly greater), but hurries to know what the people did, and how they got on about it. And this I can tell, if anyone can, having been myself in the thick of it.

The fright I had taken that night in Glen Doone satisfied me for a long time thereafter; and I took good care not to venture even in the fields and woods of the outer farm, without John Fry for company. John was greatly surprised and pleased at the value I now set


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 profusion and depredations of those very factors and agents, some of whom are said to have acquired great fortunes even in one year. In 1734, the company petitioned the king that they might be allowed to dispose of the trade and tonnage of their annual ship, on account of the little profit which they made by it, and to accept of such equivalent as they could obtain from the King of Spain.

In 1724, this company had undertaken the whale-fishery. Of this, indeed, they had no monopoly; but as long as they carried it on, no other British subjects appear to have engaged in it. Of the eight voyages which their ships made to Greenland, they were gainers by one, and losers by all the rest. After their eighth and last voyage, when they had sold their ships, stores, and utensils, they found that their whole loss, upon this branch, capital and interest included, amounted to upward of two hundred and thirty-seven thousand pounds.

In 1722, this company petitioned the Parliament to be allowed to divide their immense capital of more than thirty-three millions eight hundred thousand pounds, the whole of which had been lent to government, into two equal parts: The one half, or upward of sixteen millions nine hundred thousand pounds, to be put upon the same footing with other government annuities, and not to be subject to the debts contracted, or losses incurred, by the directors of the company, in the prosecution of their mercantile projects; the other half to remain as before, a trading stock, and to be subject to those debts and losses. The petition was too reasonable not to be granted. In 1733, they again petitioned the Parliament, that three-fourths of their trading stock might be turned into annuity stock, and only one


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 fourth remain as trading stock, or exposed to the hazards arising from the bad management of their directors. Both their annuity and trading stocks had, by this time, been reduced more than two millions each, by several different payments from government; so that this fourth amounted only to £3,662,784 8s. 6d. In 1748, all the demands of the company upon the King of Spain, in consequence of the Assiento contract, were, by the treaty of Aix-la-Chapelle, given up for what was supposed an equivalent. An end was put to their trade with the Spanish West Indies, the remainder of their trading stock was turned into an annuity stock, and the company ceased in every respect to be a trading company.

It ought to be observed that in the trade which the South Sea Company carried on by means of their annual ship, the only trade by which it ever was expected that they could make any considerable profit, they were not without competitors, either in the foreign or in the home market. At Carthagena, Porto Bello, and La Vera Cruz, they had to encounter the competition of the Spanish merchants who brought from Cadiz, to those markets, European goods, of the same kind with the outward cargo of their ship; and in England they had to encounter that of the English merchants, who imported from Cadiz goods of the Spanish West Indies, of the same kind with the inward cargo. The goods both of the Spanish and English merchants, indeed, were, perhaps, subject to higher duties. But the loss occasioned by the negligence, profusion and malversation of the servants of the company had probably been a tax much heavier than all those duties. That a joint stock company should be able to carry on successfully any branch of foreign trade, when private adventurers can come


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 into any sort of open and fair competition with them, seems contrary to all experience.

The old English East India Company was established in 1600, by a charter from Queen Elizabeth. In the first twelve voyages which they fitted out for India, they appear to have traded as a regulated company, with separate stocks, though only in the general ships of the company. In 1612, they united into a joint stock. Their charter was exclusive, and though not confirmed by act of Parliament, was in those days supposed to convey a real exclusive privilege. For many years, therefore, they were not much disturbed by interlopers. Their capital, which never exceeded seven hundred and forty-four thousand pounds, and of which fifty pounds was a share, was not so exorbitant, nor their dealings so extensive, as to afford either a pretext for gross negligence and profusion, or a cover to gross malversation. Notwithstanding some extraordinary losses, occasioned partly by the malice of the Dutch East India Company, and partly by other accidents, they carried on for many years a successful trade. But in process of time, when the principles of liberty were better understood, it became every day more and more doubtful how far a royal charter, not confirmed by act of Parliament, could convey an exclusive privilege. Upon this question the decisions of the courts of Justice were not uniform, but varied with the authority of government and the humors of the times. Interlopers multiplied upon them; and toward the end of the reign of Charles II. through the whole of that of James II. and during a part of that of William III. reduced them to great distress. In 1698, a proposal was made to Parliament of advancing two millions to government at eight per cent, provided the subscribers were erected into a new East


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 India Company with exclusive privileges. The old East India Company offered seven hundred thousand pounds, nearly the amount of their capital, at four per cent upon the same conditions. But such was at that time the state of public credit that it was more convenient for government to borrow two millions at eight per cent than seven hundred thousand pounds at four. The proposal of the new subscribers was accepted, and a new East India Company established in consequence. The old East India Company, however, had a right to continue their trade till 1701. They had, at the same time, in the name of their treasurer, subscribed, very artfully, three hundred and fifteen thousand pounds into the stock of the new. By a negligence in the expression of the act of Parliament, which vested the East India trade in the subscribers to this loan of two millions, it did not appear evident that they were all obliged to unite into a joint stock. A few private traders, whose subscriptions amounted only to seven thousand two hundred pounds, insisted upon the privilege of trading separately upon their own stocks and at their own risk. The old East India Company had a right to a separate trade upon their old stock till 1701; and they had likewise, both before and after that period, a right, like that of other private traders, to a separate trade upon the three hundred and fifteen thousand pounds, which they had subscribed into the stock of the new company. The competition of the two companies with the private traders, and with one another, is said to have well nigh ruined both. Upon a subsequent occasion, in 1730, when a proposal was made to Parliament for putting the trade under the management of a regulated company, and thereby laying it in some measure open, the East India Company, in opposition to this proposal, repre-


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 sented in very strong terms, what had been, at this time, the miserable effects, as they thought them, of this competition. In India, they said, it raised the price of goods so high that they were not worth the buying; and in England, by overstocking the market, it sunk their price so low that no profit could be made by them. That by a more plentiful supply, to the great advantage and convenience of the public, it must have reduced, very much, the price of India goods in the English market, cannot well be doubted; but that it should have raised very much their price in the Indian market seems not very probable, as all the extraordinary demand which that competition could occasion must have been but as a drop of water in the immense ocean of Indian commerce. The increase of demand, besides, though in the beginning it may sometimes raise the price of goods, never fails to lower it in the long run. It encourages production, and thereby increases the competition of the producers, who, in order to undersell one another, have recourse to new divisions of labor and new improvements of art, which might never otherwise have been thought of. The miserable effects of which the company complained, were the cheapness of consumption and the encouragement given to production, precisely the two effects which it is the great business of political economy to promote. The competition, however, of which they gave this doleful account, had not been allowed to be of long continuance. In 1702, the two companies were, in some measure, united by an indenture tripartite, to which the queen was the third party; and in 1708, they were, by act of Parliament, perfectly consolidated into one company by their present name of The United Company of Merchants trading to the East Indies. Into this act it was


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 thought worth while to insert a clause, allowing the separate traders to continue their trade till Michaelmas, 1711, but at the same time empowering the directors, upon three years' notice, to redeem their little capital of seven thousand two hundred pounds, and thereby to convert the whole stock of the company into a joint stock. By the same act, the capital of the company, in consequence of a new loan to government, was augmented from two millions to three millions two hundred thousand pounds. In 1743, the company advanced another million to government. But this million being raised, not by a call upon the proprietors, but by selling annuities and contracting bond-debts, it did not augment the stock upon which the proprietors could claim a dividend. It augmented, however, their trading stock, it being equally liable with the other three millions two hundred thousand pounds to the losses sustained, and debts contracted, by the company in prosecution of their mercantile projects. From 1708, or at least from 1711, this company, being delivered from all competitors, and fully established in the monopoly of the English commerce to the East Indies, carried on a successful trade, and from their profits made annually a moderate dividend to their proprietors. During the French war, which began in 1741, the ambition of Mr. Dupleix, the French governor of Pondicherry, involved them in the wars of the Carnatic, and in the politics of the Indian princes. After many signal successes, and equally signal losses, they at last lost Madras, at that time their principal settlement in India. It was restored to them by the treaty of Aix-la-Chapelle; and about this time the spirit of war and conquest seems to have taken possession of their servants in India, and never since to have left them. During the French war, which


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 began in 1755, their arms partook of the general good fortune of those of Great Britain. They defended Madras, took Pondicherry, recovered Calcutta, and acquired the revenues of a rich and extensive territory, amounting, it was then said, to upward of three millions a year. They remained for several years in quiet possession of this revenue: But in 1767, administration laid claim to their territorial acquisitions, and the revenue arising from them, as of right belonging to the crown; and the company, in compensation for this claim, agreed to pay to government four hundred thousand pounds a year. They had before this gradually augmented their dividend from about six to ten per cent; that is, upon their capital of three millions two hundred thousand pounds, they had increased it by a hundred and twenty-eight thousand pounds, or had raised it from one hundred and ninety-two thousand, to three hundred and twenty thousand pounds a year. They were attempting about this time to raise it still further to twelve and a half per cent, which would have made their annual payments to their proprietors equal to what they had agreed to pay annually to government, or to four hundred thousand pounds a year. But during the two years in which their agreement with government was to take place, they were restrained from any further increase of dividend by two successive acts of Parliament, of which the object was to enable them to make a speedier progress in the payment of their debts, which were at this time estimated at upward of six or seven millions sterling. In 1769, they renewed their agreement with government for five years more, and stipulated, that during the course of that period, they should be allowed gradually to increase their dividend to twelve and a half per cent; never increasing it, however,


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 their arms. The Baron appeared on the ramparts, Alleyn advanced to hear him. "The moment of attack," cried the Baron, "is the moment of death to your Chief. If you wish to preserve his life, desist from the assault, and depart in peace; and bear this message to the Countess, your mistress:—the Baron Malcolm will accept no other ransom for the life and liberty of the Earl, than her beauteous daughter whom he now sues to become his wife. If she accedes to these terms, the Earl is instantly liberated,—if she refuses,—he dies." The emotions of the Earl, and of Alleyn, on hearing these words, were inexpressible. The Earl spurned with haughty virtue, the base concession. "Give me death," cried he with loud impatience; the house of Athlin shall not be dishonoured by alliance with a murderer, renew the attack my brave people; since you cannot save the life, revenge the death of your Chief; he dies contented, since his death preserves his family from dishonour." The guards instantly surrounded the Earl.

Alleyn, whose heart, torn by contending emotions was yet true to the impulse of honour, on observing this, instantly threw down his arms, refusing to obey the command of the Earl; a hostage for whose life he demanded, while he hastened to the castle of Athlin with the conditions of the Baron. The clan following the example of Alleyn, rested on their arms while a few prepared to depart with him on the enbassy. In vain were the remonstrances and the commands of the Earl, his people loved him too well to obey them, and his heart was filled with anguish when he saw Alleyn depart from the wall.

The situation of Alleyn was highly pitiable; all the firm virtues of his soul were called upon to support it. He was commissioned on an embassy, the alternate conditions of which, would bring destruction on the woman he adored, or death to the friend whom he loved.

When the arrival of Alleyn was announced to the


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 "You enrage yourself at me," said Poirot placidly.

"I expected as much. As to what I meanI mean, Monsieur, that there is a second car with a lady in it. If you turn your head you will see her."

Derek spun round. His face darkened with anger.

"Mirelle, damn her!" he muttered. "I will soon"

Poirot arrested the movement he was about to make.

"Is it wise what you are about to do there?" he asked warningly. His eyes shone softly with a green light in them. But Derek was past noticing the warning signs.

In his anger he was completely off his guard.

"I have broken with her utterly, and she knows it," cried Derek angrily.

"You have broken with her, yes, but has she broken with you?

Derek gave a sudden harsh laugh.

"She won't break with two million pounds if she can help it," he murmured brutally; "trust Mirelle for that."

Poirot raised his eyebrows.

"You have the outlook cynical," he murmured.

"Have I?" There was no mirth in his sudden wide smile. "I have lived in the world long enough, M. Poirot, to know that all women are pretty much alike." His face softened suddenly. "All save one."

He met Poirot's gaze defiantly. A look of alertness crept into his eyes, then faded again. "That one," he said, and jerked his head in the direction of Cap Martin.

"Ah!" said Poirot.

This quiescence was well calculated to provoke the impetuous temperament of the other.


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 "I know what you are going to say," said Derek rapidly, "the kind of life I have led, the fact that I am not worthy of her. You will say that I have no right to think even of such a thing. You will say that it is not a case of giving a dog a bad nameI know that it is not decent to be speaking like this with my wife dead only a few days, and murdered at that."

He paused for breath, and Poirot took advantage of the pause to remark in his plaintive tone.

"But, indeed, I have not said anything at all."

"But you will."

"Eh?" said Poirot.

"You will say that I have no earthly chance of marrying Katherine."

"No," said Poirot, "I would not say that. Your reputation is bad, yes, but with womennever does that deter them. If you were a man of excellent character, of strict morality who had done nothing that he should not do, andpossibly everything that he should do eh bien! then I should have grave doubts of your success. Moral worth, you understand, it is not romantic. It is appreciated, however, by widows."

Derek Kettering stared at him, then he swung round on his heel and went up to the waiting car.

Poirot looked after him with some interest. He saw the lovely vision lean out of the car and speak.

Derek Kettering did not stop. He lifted his hat and passed straight on.

"Ça y est," said M. Hercule Poirot, "it is time, I think, that I return chez moi."

He found the imperturbable George pressing trousers.


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 of art as he was in his daily life, and distinguished alike for his vigour of intellect, his rectitude of character, and his noble simplicity. He was born in a very humble station, at Andeleys, near Rouen, where his father kept a small school. The boy had the benefit of his parent's instruction, such as it was, but of that he is said to have been somewhat negligent, preferring to spend his time in covering his lesson-books and his slate with drawings. A country painter, much pleased with his sketches, besought his parents not to thwart him in his tastes. The painter agreed to give Poussin lessons, and he soon made such progress that his master had nothing more to teach him. Becoming restless, and desirous of further improving himself, Poussin, at the age of eighteen, set out for Paris, painting sign-boards on his way for a maintenance.

At Paris a new world of art opened before him, exciting his wonder and stimulating his emulation. He worked diligently in many studios, drawing, copying, and painting pictures. After a time he resolved, if possible, to visit Rome, and set out on his journey; but he only succeeded in getting as far as Florence, and again returned to Paris. A second attempt which he made to reach Rome was even less successful; for this time he only got as far as Lyons. He was, nevertheless, careful to take advantage of all opportunities for improvement which came in his way, and continued as sedulous as before in studying and working.

Thus twelve years passed, years of obscurity and toil, of failures and disappointments, and probably of privations. At length Poussin succeeded in reaching Rome. There he diligently studied the old masters, and especially the ancient


text:
Love Dreaming of Death

I dreamt my little Boys were dead, And I was sitting wild and lone: On my unmoving knees, my head
 * Lay rigid as a stone.

And there I sate without a tear, And though I drew Life's conscious breath, All life to me was cold and drear
 * And comfortless as death.

So time-destroying was my grief, Time moved not, neither slow nor fast; Nor reck'd I, whether periods brief
 * Or centuries had passed.

It was as if to marble cold My loss had petrified the air, And I was shut within its hold,
 * Made deathless by despair.

And more the gorgon horror crushed With dry petrific pressure in, Till forth my waking spirit rushed
 * With agonising din!

And oh! what joy it was to wake— To cast that haggard dream away, And from its stony influence break,
 * Into the living day.

I sought the objects of my care, And felt, while I embraced the twain, How much even from a dream's despair
 * A Father's love may gain.

title: Love Dreaming of Death


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 "A pleasant day, Georges, somewhat fatiguing, but not without interest,” he said.

George received these remarks in his usual wooden fashion.

"Indeed, sir."

"The personality of a criminal, Georges, is an interesting matter. Many murderers are men of great personal charm."

"I always heard, sir, that Dr. Crippen was a pleasant-spoken gentleman. And yet he cut up his wife like so much mincemeat."

"Your instances are always apt, Georges."

The valet did not reply, and at that moment the telephone rang. Poirot took up the receiver.

"'Allo'allo{yes, yes, it is Hercule Poirot who speaks."

"This is Knighton. Wi;; you hold the line a minute, M. Poirot? Mr. Van Aldin would like to speak to you."

There was a moment's pause, then the millionaire's voice came through.

"Is that you, M. Poirot? I just wanted to tell you that Mason came to me now of her own accord. She has been thinking it over, and she says that she is almost certain that the man at Paris was Derek Kettering. There was something familiar about him at the time, she says, but at the minute she could not place it. She seems pretty certain now."

"Ah," said Poirot, "thank you, M. Van Aldin. That advances us."

He replaced the receiver, and stood for a minute or two with a very curious smile on his face. George had to speak to him twice before obtaining an answer.


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 "Eh?" said Poirot. "What is that that you say to me?"

"Are you lunching here, sir, or are you going out?"

"Neither," said Poirot, "I shall go to bed and take a tisane. The expected has happened, and when the expected happens, it always causes me emotion."


text: The Mystery of the Blue Train/Chapter 24


text: Talk:Love Dreaming of Death

title: Talk:Love Dreaming of Death


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270*

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 statues, with whose perfection he was greatly impressed. For some time he lived with the sculptor Duquesnoi, as poor as himself, and assisted him in modelling figures after the antique. With him he carefully measured some of the most celebrated statues in Rome, more particularly the 'Antinous': and it is supposed that this practice exercised considerable influence on the formation of his future style. At the same time he studied anatomy, practised drawing from the life, and made a great store of sketches of postures and attitudes of people whom he met, carefully reading at his leisure such standard books on art as he could borrow from his friends.

During all this time he remained very poor, satisfied to be continually improving himself. He was glad to sell his pictures for whatever they would bring. One, of a prophet, he sold for eight livres; and another, the 'Plague of the Philistines,' he sold for 60 crowns—a picture afterwards bought by Cardinal de Richelieu for a thousand. To add to his troubles, he was stricken by a cruel malady, during the helplessness occasioned by which the Chevalier del Posso assisted him with money. For this gentleman Poussin afterwards painted the 'Rest in the Desert,' a fine picture, which far more than repaid the advances made during his illness.

The brave man went on toiling and learning through suffering. Still aiming at higher things, he went to Florence and Venice, enlarging the range of his studies. The fruits of his conscientious labour at length appeared in the series of great pictures which he now began to produce,—his Death of Germanicus,' followed by 'Extreme


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Matter No S233/2008

RAFAEL CESAN

AND

THE QUEEN

Matter No S236/2008

RUBEN MAS RIVADAVIA

AND

THE QUEEN

Matter No S233/2008

1. The appeal be allowed.

2. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

title: Page:Cesan v The Queen.pdf/1


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 :(a) The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

 * (b) There be a new trial of the appellant.

Matter No S236/2008

1. The appeal be allowed.

2. The orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 September 2007 dismissing the appellant's appeals against conviction and sentence be set aside and, in their place, there be orders:

 * (a) The appeal to the Court of Criminal Appeal against conviction be allowed and the appellant's conviction be quashed.

 * (b) There be a new trial of the appellant.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with H K Dhanji for the appellant in S233/2008 (instructed by Fragomen Global)

G O'L Reynolds SC with J C Hewitt for the appellant in S236/2008 (instructed by Legal Aid Commission of New South Wales)

W J Abraham QC with J G Renwick and L K Crowley for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales with R A Pepper intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

P M Tate SC, Solicitor-General for the State of Victoria with K L Walker intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

 * Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

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 company were desirous to know the particulars of it. The Count was requested to favour us with a circumstantial relation of that remarkable siege; but declined it with a great deal of politeness and modesty, directing the company to beg that favour of Baron de H******, who had given many proofs of his courage and superior talents on that occasion. The Baron, having not the least suspicion that his conduct on that occasion was notorious, accepted the challenge, with a presumptuous smile, as a just tribute of his merits, and began his narrative. I was astonished to hear with how much barefacedness that fellow interlarded his relation with a number of various adventures in which he pretended to have been engaged. There was no rencounter in which he had not acted a principal part: he made the whole company shudder at the dangers which he pretended to have experienced during the war; and it was merely owing to his modesty and delicacy that he forbore to speak

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 CATCHWORDS

Cesan v The Queen Mas Rivadavia v The Queen

Criminal law – Appeals – Trial judge asleep for periods during trial – Whether "miscarriage of justice" under Criminal Appeal Act 1912 (NSW), s 6(1) – Whether consequences of conduct of trial judge a departure from proper conduct of trial – Whether trial judge exercised sufficient supervision and control over trial process to ensure jury paid attention to evidence – Whether supervision and control over trial so indispensable to trial by jury that failure itself gives rise to miscarriage of justice – Whether trial judge's conduct distracted jury from attending to evidence – Whether distraction of jury resulted in miscarriage of justice – Whether appearance of unfairness sufficient to constitute miscarriage of justice – Duties of trial judge and counsel in trial by jury.

Criminal law – Appeals – Proviso – Whether no substantial miscarriage of justice actually occurred – Demonstration to appellate court from record of trial that accused guilty beyond reasonable doubt necessary but not sufficient condition for application of proviso – Natural limitations of appellate court acting on record of trial – Relevance of letter sent to trial judge by accused, after jury returned guilty verdict, but before sentence passed, to determining whether there was no substantial miscarriage of justice.

Words and phrases – "miscarriage of justice", "substantial miscarriage of justice".

Criminal Appeal Act 1912 (NSW), s 6(1).

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 Unction,' the 'Testament of Eudamidas,' the 'Manna,' and the 'Abduction of the Sabines.'

The reputation of Poussin, however, grew but slowly. He was of a retiring disposition and shunned society. People gave him credit for being a thinker much more than a painter. When not actually employed in painting, he took long solitary walks in the country, meditating the designs of future pictures. One of his few friends while at Rome was Claude Lorraine, with whom he spent many hours at a time on the terrace of La Trinitédu-Mont, conversing about art and antiquarianism. The monotony and the quiet of Rome were suited to his taste, and, provided he could earn a moderate living by his brush, he had no wish to leave it.

But his fame now extended beyond Rome, and repeated invitations were sent him to return to Paris. He was offered the appointment of principal painter to the King. At first he hesitated; quoted the Italian proverb, Chi sta bene non si muove; said he had lived fifteen years in Rome, married a wife there, and looked forward to dying and being buried there. Urged again, he consented, and returned to Paris. But his appearance there awakened much professional jealousy, and he soon wished himself back in Rome again. While in Paris he painted some of his greatest works—his 'Saint Xavier,' the 'Baptism,' and the 'Last Supper.' He was kept constantly at work. At first he did whatever he was asked to do, such as designing frontispieces for the royal books, more particularly a Bible and a Virgil, cartoons for the Louvre, and designs for tapestry; but at length he expostulated:—"It is impossible for me," he said to M. de Chanteloup, "to work at the same time at


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CONFESSIONAL of the BLACK PENITENTS.

A ROMANCE.

ANN RADCLIFFE,

VOL. I.

LONDON:

1797.


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CONFESSIONAL of the BLACK PENITENTS.

A ROMANCE.

ANN RADCLIFFE,

VOL. II.

LONDON:

1797.


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CONFESSIONAL of the BLACK PENITENTS.

A ROMANCE.

ANN RADCLIFFE,

VOL. III.

LONDON:

1797.


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 you can come, come on Friday. Write to-morrow and say whether this be possible, and what time you will be at Keighley, that I may send the gig. I do not ask you to stay long; a few days is all I request."

Of course, her friend went; and a certain amount of benefit was derived from her society, always so grateful to Miss Brontë. But the evil was now too deep-rooted to be more than palliated for a time by "the little cheerful society" for which she so touchingly besought.

A relapse came on before long. She was very ill, and the remedies employed took an unusual effect on her peculiar sensitiveness of constitution. Mr. Brontë was miserably anxious about the state of his only remaining child, for she was reduced to the last degree of weakness, as she had been unable to swallow food for above a week before. She rallied, and derived her sole sustenance from half-a-tea-cup of liquid, administered by tea-spoonfuls, in the course of the day. Yet she kept out of bed, for her father's sake, and struggled in solitary patience through her worst hours.

When she was recovering, her spirits needed support, and then she yielded to her friend's entreaty that she would visit her. All the time that Miss Brontë's illness had lasted, Miss had been desirous of coming to her; but she refused to avail herself of this kindness, saying, that "it was enough to burden herself; that it would be misery to annoy another;" and, even at her worst time, she tells her friend, with


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271*

Flajs̄hans, Va̍clav, "Postilla Chelc̄icke̍ho," (Chelc̄icky̍'s Postil; . A:9). Prague:, vol. xxxv.

Holinką, Rudolf, –. (Peter Chelc̄icky̍'s Tracts: About the Three Estates – About the Holy Church; . A: 8 and 3). 4th volume in the series "Odkaz minulosti c̄eske̍," Prague: Melantrich, 1940.

Kara̍sek, J., ed.,, (Peter Chelc̄icky̍'s Lesser writings, comprising A: 10,11,12,15,16,17). 2 vols. Prague : Comenium, 1891.

Krofta, Kamil, O troji̍m lidu. (Peter Chelc̄icky̍'s Spiritual Combat and Threefold People, cf. A: 10a and 8)."Svētova̍ knihovna," no.916–918. Prague: Otto, 1911.

Rys̄a̍nek, Fr., ed.,. (Peter Chelc̄icky̍'s Interpretation of the Parable of the Laborers on the Lord's Vineyard).

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 humorous glee, how coolly she had managed to capture one of Miss 's letters to Mr. Brontë, which she suspected was of a kind to aggravate his alarm about his daughter's state, "and at once conjecturing its tenor, made its contents her own."

Happily for all parties, Mr. Brontë was wonderfully well this winter; good sleep, good spirits, and an excellent steady appetite, all seemed to mark vigour; and in such a state of health, Charlotte could leave him to spend a week with her friend, without any great anxiety.

She benefited greatly by the kind attentions and cheerful society of the family with whom she went to stay. They did not care for her in the least as "Currer Bell," but had known and loved her for years as Charlotte Brontë. To them her invalid weakness was only a fresh claim upon their tender regard, from the solitary woman, whom they had first known as a little, motherless school-girl.

Miss Brontë wrote to me about this time, and told me something of what she had suffered.

1em

"Certainly, the past winter has been to me a strange time; had I the prospect before me of living it over again, my prayer must necessarily be, 'Let this cup pass from me.' That depression of spirits, which I thought was gone by when I wrote last, came back again with a heavy recoil; internal congestion ensued,


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 Marquis, kissing her hand, whilst the ladies tenderly embraced her) you are, thank heaven, and that good lady, restored to your friends; I will consult Dr. Demouriez, as to our future proceedings, for I will do nothing rashly, and for your sake, would avoid draging you husband's crimes into public view."


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 and then inflammation. I had severe pain in my right side, frequent burning and aching in my chest; sleep almost forsook me, or would never come, except accompanied by ghastly dreams; appetite vanished, and slow fever was my continual companion. It was some time before I could bring myself to have recourse to medical advice. I thought my lungs were affected, and could feel no confidence in the power of medicine. When, at last, however, a doctor was consulted, he declared my lungs and chest sound, and ascribed all my sufferings to derangement of the liver, on which organ it seems the inflammation had fallen. This information was a great relief to my dear father, as well as to myself; but I had subsequently rather sharp medical discipline to undergo, and was much reduced. Though not yet well, it is with deep thankfulness that I can say, I am greatly better. My sleep, appetite, and strength seem all returning."

It was a great interest to her to be allowed an early reading of "Esmond;" and she expressed her thoughts on the subject, in a criticising letter to Mr. Smith, who had given her this privilege.

1em

"My dear Sir,—It has been a great delight to me to read Mr. Thackeray's work; and I so seldom now express my sense of kindness that, for once, you must permit me, without rebuke, to thank you for a pleasure


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CASTLE OF WOLFENBACH;


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CASTLE OF WOLFENBACH;


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 so rare and special. Yet I am not going to praise either Mr. Thackeray or his book. I have read, enjoyed, been interested, and, after all, feel full as much ire and sorrow as gratitude and admiration. And still one can never lay down a book of his without the last two feelings having their part, be the subject or treatment what it may. In the first half of the book, what chiefly struck me was the wonderful manner in which the writer throws himself into the spirit and letters of the times whereof he treats; the allusions, the illustrations, the style, all seem to me so masterly in their exact keeping, their harmonious consistency, their nice, natural truth, their pure exemption from exaggeration. No second-rate imitator can write in that way; no coarse scene-painter can charm us with an allusion so delicate and perfect. But what bitter satire, what relentless dissection of diseased subjects! Well, and this, too, is right, or would be right, if the savage surgeon did not seem so fiercely pleased with his work. Thackeray likes to dissect an ulcer or an aneurism; he has pleasure in putting his cruel knife or probe into quivering, living flesh. Thackeray would not like all the world to be good: no great satirist would like society to be perfect.

"As usual, he is unjust to women; quite unjust. There is hardly any punishment he does not deserve for making Lady Castlewood peep through a keyhole, listen at a door, and be jealous of a boy and a milkmaid. Many other things I noticed that, for my part, grieved and exasperated me as I read; but then, again, came


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 FRENCH CJ.

After a trial lasting 17 days in 2004 Rafael Cesan and Ruben Mas Rivadavia were convicted on 28 June 2004 of conspiracy to import ecstasy into Australia. They were sentenced to terms of imprisonment in March 2005. They appealed out of time to the New South Wales Court of Criminal Appeal against both their convictions and sentences. The Court gave them leave to appeal. A common complaint in their appeals was that the trial judge had been asleep during significant parts of the trial.

The appeals to the Court of Criminal Appeal were dismissed by majority on the basis that there was no demonstrated error or prejudice to the appellants flowing from the trial judge's conduct. The appellants obtained special leave to appeal to this Court on a number of grounds. Those grounds included, among other things, that there had been a miscarriage of justice and no trial by jury as required by s 80 of the Constitution in relation to indictable offences against laws of the Commonwealth. At the commencement of the appeal the Court invited the parties to address it on the question whether, the constitutional issues apart, there had been a miscarriage of justice.

At the close of oral argument the Court indicated that it would allow the appeals, set aside the convictions and remit the matters for retrials. The Court made orders to that effect. I now publish my reasons for joining in those orders.

As these reasons indicate, the case invited consideration of the duty of the judge in a trial by jury. That duty 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. It could not be said that the miscarriage was not substantial.

On 31 May 2004, the appellants were charged upon indictment that between about 12 February 2002 and about 24 April 2002, at Sydney, they conspired with each other and others to import into Australia a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied, namely narcotic goods consisting of a quantity of the narcotic drug commonly known as ecstasy. The

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weight of the drug involved was 642.5 grams and so exceeded the "commercial quantity" prescribed for the purposes of s 233B of the Act which was 500 grams. The conspiracy alleged was an offence against s 11.5 of the Criminal Code (Cth). Section 233B was repealed by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) the relevant provisions of which commenced on 6 December 2005. An equivalent offence-creating provision was incorporated in Pt 9.1 of the Criminal Code.

After a trial by jury, which commenced on 31 May 2004 and occupied 17 hearing days, the appellants were found guilty on 28 June 2004. They were not sentenced until 18 March 2005. The appellant Cesan was sentenced to imprisonment for 13 years six months, with a non-parole period of nine years. The appellant Mas Rivadavia was sentenced to imprisonment for 11 years.

The appellants lodged notices of appeal against conviction and applications for leave to appeal against sentence. Those notices and applications were out of time but extensions of time were granted by the Court of Criminal Appeal. There were substantial delays between conviction and sentencing and in relation to the lodging of the notices of appeal. Those delays are not material for present purposes save to the extent that they may have affected the recollection of witnesses called to give evidence in the Court of Criminal Appeal concerning the conduct of the trial.

So far as they related to conviction, the amended grounds of appeal filed on behalf of Cesan on 21 June 2007 included the ground that:

"A miscarriage of justice was occasioned as a result of the fact that the trial judge was asleep for significant parts of the trial."

The amended grounds of appeal filed on behalf of Mas Rivadavia on 3 July 2007 included the same ground.

The Court of Criminal Appeal received affidavit evidence relevant to whether the trial judge had been asleep from time to time during the trial and the number, duration and effect of his sleep episodes. There was cross-examination on the affidavits. The Court also received two reports by a medical practitioner in respect of the trial judge and correspondence relating to the judge's retirement on the grounds of permanent disability.

On 5 September 2007 the Court of Criminal Appeal, by majority (Grove and Howie JJ, Basten JA dissenting), made orders dismissing the appeals in the following terms (identical for each appellant):

"1. Grant an extension of time for leave to appeal.

2. Dismiss the appeal against conviction.

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 passages so true, so deeply thought, so tenderly felt, one could not help forgiving and admiring.

But I wish he could be told not to care much for dwelling on the political or religious intrigues of the times. Thackeray, in his heart, does not value political or religious intrigues of any age or date. He likes to show us human nature at home, as he himself daily sees it; his wonderful observant faculty likes to be in action. In him this faculty is a sort of captain and leader; and if ever any passage in his writings lacks interest, it is when this master-faculty is for a time thrust into a subordinate position. I think such is the case in the former half of the present volume. Towards the middle, he throws off restraint, becomes himself, and is strong to the close. Everything now depends on the second and third volumes. If, in pith and interest, they fall short of the first, a true success cannot ensue. If the continuation be an improvement upon the commencement, if the stream gather force as it rolls, Thackeray will triumph. Some people have been in the habit of terming him the second writer of the day; it just depends on himself whether or not these critics shall be justified in their award. He need not be the second. God made him second to no man. If I were he, I would show myself as I am, not as critics report me; at any rate, I would do my best. Mr. Thackeray is easy and indolent, and seldom cares to do his best. Thank you once more; and believe me yours sincerely, 2em


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3. Grant leave to appeal against sentence.

4. Dismiss the appeal against sentence."

On 16 May 2008 each of the appellants was granted special leave to appeal to this Court from the whole of the judgment and orders of the New South Wales Court of Criminal Appeal.

The grounds of appeal for the appellant Cesan were in the following terms:

"2.1 The Court of Criminal Appeal erred in holding that there was no miscarriage of justice arising from the fact that the trial judge was asleep during the course of the trial.

2.2 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in failing to hold that the trial did not comply with the requirements of 'trial by jury' as required by s 80 of the Commonwealth of Australia Constitution.

2.3 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in failing to find that the trial was held in a court which met the minimum requirements of a court for the purposes of Chapter III Commonwealth of Australia Constitution.

2.4 The Court of Criminal Appeal, having found that the trial judge was asleep during the trial, erred in holding that the trial was held 'before a judge' for the purposes of s 11 of the District Court Act, 1973."

The grounds of appeal for the appellant Mas Rivadavia were substantially the same.

The Court invited the parties to address it first on the question whether, Ch III and s 80 of the Constitution apart and s 11 of the District Court Act 1973 (NSW) apart, there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), whether no substantial miscarriage of justice actually occurred within the meaning of that sub-section, and whether, even if no substantial miscarriage of justice actually occurred, the proviso to s 6(1) of the Criminal Appeal Act was incapable of applying.

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Although the indictment did not so specify on its face, the offence with which each of the appellants was charged was, as indicated on the reverse of the indictment, the offence created by s 11.5 of the Criminal Code which is scheduled to the Criminal Code Act 1995 (Cth). The offence-creating part of that section provides:

"(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed."

The remaining sub-sections of s 11.5 are not material for present purposes.

Section 233B(1) of the Customs Act provided, at the relevant time:

"(1) Any person who:

 * (b) imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies; or

 * shall be guilty of an offence."

The District Court of New South Wales, in trying the indictments, was exercising the federal jurisdiction conferred upon the several courts of the States and Territories by s 68(2) of the Judiciary Act 1903 (Cth). The New South Wales Court of Criminal Appeal in hearing and deciding the appeals was also exercising jurisdiction under that provision

When a State or Territory court tries a person on indictment for a Commonwealth offence in the exercise of jurisdiction conferred by s 68(2) then, by force of s 68(1), the laws of the State or Territory respecting, inter alia, the trial and conviction of accused persons on indictment apply. That application is subject to the other provisions of s 68. The laws of the State or Territory with respect to the hearing and determination of appeals arising out of any such trial or

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clock from the old castle had just gone eight when the peaceful inhabitants of a neighbouring cottage, on the skirts of the wood, were about to seek that repose which labour had rendered necessary, and minds blest with innocence and tranquillity asfured them the enjoyment of. The evening was cold and tempestuous, the rain poured in torrents, and the distant thunders rolled with tremendous noise round the adjacent mountains, whilst the pale lightning added horrors to the scene.


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conviction also apply by virtue of s 68(1). Their application in this case was not in dispute.

The jurisdiction of the District Court of New South Wales is dealt with in the District Court Act and, for present purposes, in the Criminal Procedure Act 1986 (NSW). The criminal jurisdiction of the Court is defined in the former Act as the jurisdiction conferred by Pt 4 thereof and the jurisdiction conferred "by or under any other Act or law on the Court in its criminal jurisdiction". Under the Criminal Procedure Act the District Court "has jurisdiction in respect of all indictable offences" other than offences prescribed by regulation.

The only prescribed offences excluded from the jurisdiction thus conferred upon the District Court are those specified in ss 12 and 19A of the Crimes Act 1900 (NSW) namely treason and murder. The jurisdiction thereby conferred on the District Court attracted "the like jurisdiction" under s 68(2) of the Judiciary Act.

Section 11(1) of the District Court Act provides:

"All civil and criminal proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act and the Jury Act 1977, be heard and disposed of before a Judge, who shall constitute the Court."

Sub-section (2) is not material. Section 11(1) is to be read with s 131 of the Criminal Procedure Act which is found in Pt 3 of Ch 3 of that Act entitled "Trial procedures" and which provides:

"Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part."

There is an option for trial by judge alone in s 132(1) but, in respect of the trial on indictment of an offence against a law of the Commonwealth, s 80 of the Constitution requires that it be by a jury.

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 Pierre was already in bed, and Jaqueline preparing to follow, when the trampling of horses was heard, and immediately a loud knocking at the door; they were both alarmed; Pierre listened, Jaqueline trembled; the knocking was repeated with more violence; the peasant threw on his humble garment, and, advancing to the door, demanded who was there? "Two travellers, (answered a gentle voice) overtaken by the storm; pray, friend, afford us shelter." "O! (cried Jaqueline) perhaps they may be robbers, and we shall be murdered." "Pho! simpleton, (said Pierre) what can they expect to rob us of." He opened the door, and discovered a man supporting a lady who appeared almost fainting. "Pray, friend, (said the man) permit this lady to enter your cottage, I fear she has suffered much from the storm." "Poor soul, I am sorry for her; enter and welcome, (cried Pierre.) Jaqueline placed her wooden arm-chair by the chimney, ran for some wood, and kindled a blaze in a moment, whilst Pierre put the horse into a little


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The Criminal Appeal Act provides for appeals against conviction. Section 5 of that Act confers upon a person convicted on indictment a right to appeal to the Court of Criminal Appeal:

"(a) against the person's conviction on any ground which involves a question of law alone, and

(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and

(c) with the leave of the court against the sentence passed on the person's conviction."

Section 6 provides:

"(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered."

Section 6(3) is not material for present purposes.

Section 8 of the Act provides:

"(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.

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 out-house which held their firing and his working implements, and returned with a portmantua to the lady. They had only some bread and milk to offer, but they made it warm, and prevailed on their guest to take some. The man, who appeared an attendant, did the same. The lady soon got her clothes dry, but she wanted rest, and they had no bed to offer. One single room answered all their purposes of life; their humble bed was on the floor, in a corner of it, but though mean it was whole and clean. Jaqueline entreated the lady to lie down; she refused for some time, but growing faint from exhausted spirits and fatigue, she was compelled to accept the offer; the others sat silently round the fire: but, alas! horror and affliction precluded sleep, and the fair traveller, after laying about two hours, returned again to the fire-side, weary and unrefreshed. "Is there any house near this?" (demanded she.) "No, madam, (replied Jaqueline) there is no house, but there is a fine old castle just by, where there is room enough, for only one old man and his wife live


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(2) Provision shall be made by rules of court for detaining the appellant until the fresh trial has terminated, or for ordering the appellant into any former custody."

The Court of Criminal Appeal received affidavit evidence from a number of persons who had been present at the trial. They were the appellant Cesan, the Crown Prosecutor Mr Bellew SC, the appellant Cesan's mother, his sister and four friends. Affidavits were also received from the appellant Mas Rivadavia's sister and his aunt. Mr Cesan's solicitor, Mr Kessels, swore a short affidavit to the effect that he had made inquiries about the existence of tapes of the trial and had been informed by the Reporting Services Branch of the Attorney-General's Department of New South Wales that no tapes existed.

The Court of Criminal Appeal was divided in its opinion. The majority held in substance that there was no demonstrated error or prejudice flowing from the trial judge's conduct. Because of the majority judges' effects based approach, their findings of fact about the conduct of the trial judge were somewhat ambulatory in character. That is not a criticism of those findings, but an explanation of how the majority's reasoning affected their form. Because I do not agree with the approach taken by the majority, it is necessary to have regard to the evidentiary basis for the findings of fact made by the dissenting judge which were not inconsistent with those of the majority. A review of that evidence follows.

The appellant Cesan said that, on or about the second day of the trial, when recordings of some telephone intercepts were being played to the jury, the judge was "slumped in his chair and appeared to be asleep". He raised the matter with his solicitor. His solicitor said words to the effect:

"Look mate it doesn't really matter, it happens with this judge."

The next day he again noticed that the judge appeared to be asleep. He would slump in his chair and his head would fall forward and it would stay down for some time. He would suddenly lift it and appear to wake up before "nodding off again". This happened several times for up to five or more minutes at a time.

The judge appeared to him to be asleep on many occasions in the second week of the trial. A lot of tapes were played during that time. These episodes appeared to occur more in the afternoons than in the mornings. He did not know exactly how frequently or for how long the judge slept, but the episodes seemed to be for periods of 10, or 15, or even 20 minutes. Members of the jury often looked at the judge. He raised the matter again with his solicitor after a few days. His solicitor said that Cesan did not want to be upsetting the trial judge but he

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would bring it up with counsel. Cesan later spoke to counsel who said that there was nothing they could do about it.

When Cesan gave his evidence, he faced the bar table and the jury. The judge was behind him. At times during cross-examination he heard a "deep rumbling noise" from behind. He eventually realised it was the sound of snoring. Some of the jury looked at the judge, rather than at Cesan or the prosecutor. Some appeared surprised and others smiled. When he first heard the noise it was soft and not particularly distracting but eventually he found it hard to concentrate on the questions. When the snoring was at its loudest the prosecutor seemed to stop asking questions. Cesan turned to the judge's associate, who shrugged her shoulders. There was a loud banging noise behind him and he looked back and saw the judge looking up startled. Questioning resumed, but after about 10 minutes he heard the snoring again. This happened a number of times while he was giving his evidence. Under cross-examination in the Court of Criminal Appeal Cesan was challenged on his estimates, but stood by them:

"I have said that I heard him snoring for a period for 20 – period from between 15 and 20 minutes, and then his assistant would make some noise and then the snoring would stop."

Cesan acknowledged that he had written a letter to the judge before sentencing. The letter was dated 13 December 2004. It began with the following words:

"I would like to take this opportunity to thank you for what was a very fair trial, one wherein I accept the decision made by my peers and I am today at your mercy, asking for some leniency in my sentencing."

He wrote of a change in his perspectives, recognition of the impact of his drug abuse on members of his family and other people around him and his commitment to a good Christian life. The letter went on:

"I sincerely hope you have taken into account the above when deciding my sentence. I once again thank you and the institution you represent for allowing me very [sic] opportunity to defend myself in a fair and just trial. In no way do I hold a grudge against any of the authorities involved, since they have given me the chance to become a new man."

He acknowledged in cross-examination that he had accepted that he had a very fair trial.

Cesan's mother was present at the trial on every day except 31 May 2004. She had a clear view of the entire courtroom including the judge. When the judge was participating in the trial he would look at the witnesses, the jury or the lawyers and talk to them. He would turn pages, move items on his table, accept documents, move his glasses to read or look at counsel or a witness and make

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 Miss Brontë's health continued such, that she could not apply herself to writing as she wished, for many weeks after the serious attack from which she had suffered. There was not very much to cheer her in the few events that touched her interests during this time. She heard in March of the death of a friend's relation in the Colonies; and we see something of what was the corroding dread at her heart.

"The news of E's death came to me last week in a letter from M; a long letter, which wrung my heart so, in its simple, strong, truthful emotion, I have only ventured to read it once. It ripped up half-scarred wounds with terrible force. The death-bed was just the same,—breath failing, &c. She fears she shall now, in her dreary solitude, become a 'stern, harsh, selfish woman.' This fear struck home; again and again have I felt it for myself, and what is my position to M's? May God help her, as God only can help!"

Again and again, her friend urged her to leave home; nor were various invitations wanting to enable her to do this, when these constitutional accesses of low spirits preyed too much upon her in her solitude. But she would not allow herself any such indulgence, unless it became absolutely necessary from the state of her health. She dreaded the perpetual recourse to such stimulants as change of scene and society, because of the reaction that was sure to follow. As far as she could see, her life was ordained to be lonely, and she must subdue her


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 nature to her life, and, if possible, bring the two into harmony. When she could employ herself in fiction, all was comparatively well. The characters were her companions in the quiet hours, which she spent utterly alone, unable often to stir out of doors for many days together. The interests of the persons in her novels supplied the lack of interest in her own life; and Memory and Imagination found their appropriate work, and ceased to prey upon her vitals. But too frequently she could not write, could not see her people, nor hear them speak; a great mist of headache had blotted them out; they were non existent to her.

This was the case all through the present spring; and anxious as her publishers were for its completion, "Villette" stood still. Even her letters to her friend are scarce and brief. Here and there I find a sentence in them which can be extracted, and which is worth preserving.

"M's letter is very interesting; it shows a mind one cannot but truly admire. Compare its serene trusting strength, with poor 's vacillating dependence. When the latter was in her first burst of happiness, I never remember the feeling finding vent in expressions of gratitude to God. There was always a continued claim upon your sympathy in the mistrust and doubt she felt of her own bliss. M believes; her faith is grateful and at peace; yet while happy in herself, how thoughtful she is for others!"


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 of finance, who, paralysed in all his limbs, but still retaining a complete command of his tongue, supported Rubezahl’s claims. “My own adventure,” said the Countess, with all the tone of settling the question, “is a clear proof that what we hear of the Spirit of the Mountain is pure fable. Were he sovereign of these parts, were he endowed with the noble qualities which folly so liberally bestows on him, he would never have allowed with impunity his name to be dishonoured by the ragamuffin who attacked us this evening. Oh! no; depend upon it, this same Spirit is a nonentity, not half so real as the fellow who called himself Rubezahl in order to frighten us, and who, but for the generous aid of Lord Giantdale, would, no doubt, have had everything his own way.”

The lord of the mansion, though he sat by, had hitherto taken no part in the philosophical discussion going on; he now blandly addressed himself to the Countess: “Your Ladyship has completely depopulated the world of spirits. Before your enlightened views, all these creations of the dreaming fancy have disappeared, as a morning mist before the rising sun. You have satisfactorily demonstrated that the notion about this ancient inhabitant of the mountains is an entire fallacy, and his champion, our friend the Finance-Counsellor, is effectually silenced. Yet it appears to me that some objections


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other small, but definite, movements. On 3 June 2004, she observed the judge sitting upright but slumped in his chair. His head was slightly forward as if he were reading. He was completely still. He had his arms resting on his desk and his hands clasped in front of his chest. He jerked abruptly when he woke up. On this occasion, he was asleep for about 10 minutes.

Cesan's mother raised the matter with his solicitor in the presence of her daughter and two other friends who also gave evidence to the Court of Criminal Appeal. She asked the solicitor if he had seen the judge sleeping. The solicitor said that 85% of all the judges that her son could have had would have been much worse. This was evidently a reference to judges thought to be less favourable to accused persons. The solicitor told her that the judge fell asleep in court, but there was nothing that could be done about it. She pressed him and he said he would speak to counsel and they would talk about it later. She said that she spoke to the solicitor on at least one other occasion.

Cesan's mother said that the judge fell asleep on practically every day of the trial, sometimes for only a few minutes and sometimes for up to 20 minutes. He fell asleep at least once a day every day. Some days he fell asleep a number of times in the morning and the afternoon. She began to look at her watch to see how long he slept. She was able to say that the time was between five and 20 minutes. On some occasions it would be 10 or 12 minutes, and on some occasions as long as 20 minutes. Members of the jury would smile or shrug their shoulders and look at each other and the judge.

In cross-examination Cesan's mother denied that there were any days that she did not observe the judge being asleep. She acknowledged that she was not at the trial on 31 May. She denied that there was any occasion upon which she thought the judge was asleep simply by reason of the fact that he had his eyes closed. She referred to his posture and immobility.

Ivan Amaro, a friend of Cesan, was present for the majority of the trial. In the early days of June he and a few others had noticed that the judge would slump back in his chair and close his eyes. He recalled joking about the fact that the judge was "just having a nap". This ceased to be a laughing matter as they suspected he was truly asleep. During quiet moments in the courtroom, a light but persistent snoring could be heard. The judge slept for anywhere between a few minutes and up to 20 minutes. This happened at the very least once a day but often more frequently. He described what happened when Cesan was giving evidence as one of the more memorable moments of the judge's sleeping patterns. He heard a loud snore. He saw the judge slumping back in his chair, eyes closed, and arms crossed. Another snore was clearly heard throughout the courtroom. He said:

"What must have been 5–10 seconds seemed to be an eternity as everything and everyone came to a standstill."

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 in it, and, Lord help us, I would not be in their place for all the fine things there." "Why so?" (said the lady.) "O! dear madam, why it is haunted; there are bloody floors, prison rooms, and scriptions, they say, on the windows, to make a body's hair stand an end." "And how far from your cottage is this castle?" "A little step, madam, farther up the wood." "And do you think we could obtain entrance there?" "O, Lord! yes, madam, and thank you too: why the poor old souls rejoice to see a body call there now and then; I go sometimes in the middle of the day, but I take good care to keep from the fine rooms and never to be out after dark." "I wish, (said the lady) it was possible to get there." Pierre instantly offered his service to conduct her as soon as it was light, and notwithstanding some very horrible stories recounted by Jacqueline, she determined to visit this proscribed place.

When the morning came, the inhabitants of the cottage set out for the castle. The


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The judge's associate made a commotion with some papers and books and noticeable banging of the table until the judge opened his eyes. Members of the jury looked at the friends and family of Cesan during the proceedings and smiled, rolled their eyes, stared, laughed and engaged in "similar behaviour". This was most apparent when Cesan was on the stand and the judge was sleeping.

In cross-examination Mr Amaro denied that the judge normally appeared to be asleep for only a few minutes. He could only recall one specific occasion of the judge sleeping while Cesan was giving evidence. He did not recall snoring on other occasions but did remember heavy breathing.

Veronica Cabrera was a friend of Cesan who was present during most of his trial during June 2004. On each day that she attended the court she sat through the whole day. She said that her view was unobstructed. On 3 June 2004, towards lunch time she observed that the judge was sleeping. She mentioned this to the person beside her. Those present began murmuring amongst themselves. She continued to look at the judge to make sure she was not mistaken. She described him as slumped in his chair whereas previously he had been sitting upright. His head was tilted forward, his chin resting on his chest and his movements "erratic as if he was in and out of sleep". She said she had observed this behaviour for about 15–25 minutes before the lunch break interrupted. She said that the judge continued to sleep at various times throughout the trial. Often he would fall asleep six or more times in one session and would be asleep anywhere between five and 20 minutes. When taped evidence was being played the judge often slept for 15–20 minutes at a time.

Ms Cabrera said that some of the jurors and officials dozed unchecked throughout periods when the judge was sleeping. She observed court officers attempt to wake him by banging their books loudly. She said:

"It seemed as if the whole courtroom slipped into a state of irreverence."

During Cesan's evidence she heard the judge snoring. The snoring subsided after a court officer banged on the table with some papers. The judge slept at some point on every day of the trial, except one day which was shorter than the others. She was cross-examined along lines similar to those of the preceding witnesses and gave broadly similar answers.

Patricia Lawson, another friend of Cesan and his family, attended at least nine days of the trial in June 2004 and was there each day in the morning until lunch time. She remembered attending on days when taped telephone conversations were being played and the days when Cesan and Mas Rivadavia gave evidence, and when a witness for Cesan gave evidence. She could see everybody in the courtroom including the judge.

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 lady was so much enfeebled, from fatigue and want of rest, that she was obliged to be placed on the horse, and they found it very difficult to lead him through the thickets. They at length espied a fine old building, with two wings, and a turret on the top, where a large clock stood, a high wall surrounded the house, a pair of great gates gave entrance into a spacious court, surrounded with flowering shrubs, which lay broken and neglected on the ground, intermixed with the weeds which were above a foot high in every part.

Whilst the lady's attendant lifted her from the horse, Pierre repaired to the kitchen door where the old couple lived, which stood in one of the wings, and knocking pretty loudly, the old woman opened it, and, with a look of astonishment, fixed her eyes on the lady and her servant. "Good neighbour, (said Pierre) here is a great gentlewoman cruel ill; she wants food and sleep, we have brought her here, she is not afeared of your ghosts and so therefore you can give her a


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 good bed, I suppose." "To be sure I can, (answered Bertha, which was the woman's name:) to be sure I can make a bed fit for the emperor, when the linen is aired: walk in, madam; you look very weak." Indeed the want of rest the preceding night had so much added to her former feeble state, that it was with difficulty they conveyed her into the kitchen. Bertha warmed a little wine, toasted a bit of bread, and leaving Jacqueline to attend the lady, she made a fire in a handsome bedroom that was in that wing, took some fine linen out of a chest and brought it down to air. "Dear, my lady, (cried she) make yourself easy, I'll take care of you, and if you aren't afeared, you will have rooms for a princess." Pierre and Jacqueline being about to return to their daily labour, found their kindness amply rewarded by the generosity of the stranger, who gave them money enough, they said, to serve them for six months. With a thousand blessings they retired, promising however to call daily on the lady whilst she staid at the castle, though their hearts misgave


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 1em

"You say, dear E, that you often wish I would chat on paper, as you do. How can I? Where are my materials? Is my life fertile in subjects of chat? What callers do I see? What visits do I pay? No, you must chat, and I must listen, and say 'Yes,' and 'No,' and 'Thank you!' for five minutes' recreation.

"I am amused at the interest you take in politics. Don't expect to rouse me; to me, all ministries and all oppositions seem to be pretty much alike. D'Israeli was factious as leader of the Opposition; Lord John Russell is going to be factious, now that he has stepped into D'Israeli's shoes. Lord Derby's 'Christian love and spirit,' is worth three half-pence farthing."

1em

"My dear Sir,—Mr. Smith intimated a short time since, that he had some thoughts of publishing a reprint of 'Shirley.' Having revised the work, I now enclose the errata. I have likewise sent off to-day, per rail, a return-box of Cornhill books.

"I have lately read with great pleasure, 'The Two Families.' This work, it seems, should have reached me in January; but owing to a mistake, it was detained at the Dead Letter Office, and lay there nearly two months. I liked the commencement very much; the close seemed


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Although she could not remember exactly what she saw on each separate occasion, she observed at various times at the trial that the judge would cross his arms, sit upright in the chair, begin to slouch a little, close his eyes, and tilt his head slightly forward and to the left. Sometimes he would jerk awake and his eyes would open suddenly, and then he would slowly close them and his head would tilt to the side again. As to the duration of these incidents, she said he would doze off many times, at least four or five during each morning or afternoon session which she attended, and seemed to be asleep for at least five minutes. She believed it was 15-20 minutes when tapes were being played and when counsel were making their submissions to the jury. She could clearly recall the judge being asleep at various times when Cesan was giving his evidence.

In cross-examination she testified about the techniques used to wake the judge. These included counsel clearing their throats or knocking a microphone and a court officer moving and shuffling papers. She claimed in cross-examination that the judge was asleep for most of the trial. The shorter periods were "[p]robably a little bit longer than 5 minutes". At one point she said in cross-examination that the judge "was asleep most of the time, from my observation".

Gabriela Cesan, Cesan's sister, was present on every day of the trial except the first day. In the first few days the judge would sleep for short periods, maybe two or three minutes at a time. As the trial progressed he would sleep for longer periods. If things were dragging on a bit he would sleep for 10 or 15 minutes at a time, and possibly longer. Sometimes she noticed members of the jury looking at the judge, and then looking at each other and then looking back to the judge very intently. She said:

"During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appeared to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury's behaviour when the judge was asleep."

In cross-examination, she deposed to the snoring that occurred when Cesan was giving his evidence. She also deposed to the conversations her mother had with Cesan's solicitor who, according to her recollection, said there was nothing they could do.

Another friend, Juan David Uribe, attended the trial on two days. On the first day he was there until lunch time. On the second occasion he was there for the full day. On both days he saw the judge sleep during the proceedings. It was

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 them that they should never see her more, from their apprehensions of the ghosts that inhabited the rooms above stairs. When the apartment was arranged, the lady was assisted by Bertha and laid comfortably to rest; she gave her some money to procure food and necessaries, and desired her servant might have a bed also. This the good woman promised, and, wishing her a good sleep, returned to the kitchen.

"God bless the poor lady, (said she) why she is as weak as a child; sure you must have come a great way from home." "Yes, (answered Albert, the servant's name,) we have indeed, and my poor lady is worn down by sorrow and fatigue; I fear she must rest some time before she can pursue her journey." "Well, (said Bertha) she may stay as long as she likes here, no body will disturb her in the day time, I am sure." "And what will disturb her at night?" (asked Albert.) "O, my good friend, (answered she) no body will sleep in the rooms up stairs; the gentlefolks


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 to me scarcely equal to 'Rose Douglas.' I thought the authoress committed a mistake in shifting the main interest from the two personages on whom it first rests—viz., Ben Wilson and Mary—to other characters of quite inferior conception. Had she made Ben and Mary her hero and heroine, and continued the development of their fortunes and characters in the same truthful natural vein in which she commences it, an excellent, even an original, book might have been the result. As for Lilias and Ronald, they are mere romantic figments, with nothing of the genuine Scottish peasant about them; they do not even speak the Caledonian dialect; they palaver like a fine lady and gentleman.

"I ought long since to have acknowledged the gratification with which I read Miss Kavanagh's 'Women of Christianity.' Her charity and (on the whole) her impartiality are very beautiful. She touches, indeed, with too gentle a hand the theme of Elizabeth of Hungary; and, in her own mind, she evidently misconstrues the fact of Protestant charities seeming to be fewer than Catholic. She forgets, or does not know, that Protestantism is a quieter creed than Romanism; as it does not clothe its priesthood in scarlet, so neither does it set up its good women for saints, canonize their names, and proclaim their good works. In the records of man, their almsgiving will not perhaps be found registered, but Heaven has its account as well as earth.

"With kind regards to yourself and family, who, I trust, have all safely weathered the rough winter lately past, as well as the east winds, which are still nipping


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more than half a dozen times on each day. He heard snoring. He saw people in the jury smirking and heard giggling "from the jury area". In cross-examination Mr Uribe said that counsel were making submissions on the first day that he attended the trial and that the judge appeared to be asleep while they were talking. He thought that the judge was asleep for periods of five to 10 minutes. He based his opinion that the judge was asleep on the fact that the judge's eyes were closed and the body language that he observed. On a few occasions the lawyers paused and waited for the judge to wake up. Sometimes they just kept on talking.

Catalina Cal was the appellant Mas Rivadavia's sister. She had tried to attend the trial two or three times a week to give support to her brother. When at court she had a clear view of the judge. She noticed that he tended to fall asleep in the afternoons, although she could not remember exactly how many times he fell asleep each day. She saw the associate hitting or striking the bench or making noises to wake the judge up and saw the jury smiling at the loud noises the associate was making. The sleeping periods kept occurring throughout the three weeks she was at the trial. In oral evidence she said she didn't really know how long the judge had been asleep. She knew there were periods of minutes. There were no concessions in her cross-examination.

Magalli Locaputo was Mas Rivadavia's aunt. She attended her nephew's trial about two or three times a week including the day her nephew gave evidence. On that day she heard snoring coming from where the judge was sitting while Mas Rivadavia was giving evidence. The judge had his head down and his eyes closed on many occasions. There were three occasions in one day on which she saw one of the court officers tapping to wake the judge. She did not observe the jury during that time but did notice a woman juror falling asleep on one occasion. In oral examination-in-chief, she said that she had heard the judge snore on a few occasions. He would snore for a short time then wake. Asked about the longest period for which the judge was asleep she said it could have been 10 to 15 minutes but she did not recall. In cross-examination she said on some occasions the judge appeared to be asleep for just a few minutes and sometimes longer than a few minutes.

Prosecuting counsel at the trial, Mr Bellew SC, swore an affidavit in which he referred to the various affidavits that had been filed on behalf of Cesan. He recalled that there were occasions during the course of the trial in which the trial judge appeared to be asleep. He was not able to specify the number of those occasions although he thought it was less than the estimates given in some of the affidavit material adduced for Cesan. He had no recollection of raising his voice or clearing his throat to wake the judge.

It was put to Mr Bellew in cross-examination that his focus was not necessarily on the judge at any given time. He said that when leading evidence from a witness or cross-examining his focus would be on the witness. The

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occasions on which he looked at the judge were generally limited to those on which he was addressing him directly. He recalled turning towards the judge on one occasion, at about the time of the morning break, to ask whether it was a convenient time to adjourn. The judge, who had his head on his chest and appeared to be asleep, responded with what he would probably call a "startle". He could not put a figure on the number of times the judge fell asleep. Asked whether he conceded that it was possible that the judge's sleeping was as widespread as indicated in the affidavit evidence he said:

"It's possible, because those who have sworn the affidavits probably were in the position of observers only whereas I was dealing with a range of other things that I was in the position of at the time."

No evidence was called from the solicitor or counsel who represented the appellants at trial.

The medical evidence showed that at the time of the trial the judge was suffering from severe obstructive sleep apnoea. That condition was later brought under control but he developed a variable anxiety state and his capacity for continued judicial work was limited. He sought to retire from his office on the grounds of permanent disability. It is not in contention that he did retire.

The reasons for judgment of the majority in the Court of Criminal Appeal were delivered by Grove J. Howie J agreed with the reasons and the proposed orders. It is only necessary to refer to that part of the judgment relevant to the trial judge's conduct.

Grove J observed that no application had been made at trial about the judge's sleep episodes. No omission, misdirection or error was said to have resulted. The complaint about the judge's sleep episodes was raised for the first time on appeal. The letter which Cesan had written to the trial judge before he was sentenced was "not … insignificant". It had not been contended that the verdicts of the jury were unreasonable or could not be supported. What was sought was a repeat trial.

Grove J referred to the evidence before the Court of Criminal Appeal as summarised by Basten JA. He focussed on the absence of any suggestion that the trial judge had missed anything relevant or that Cesan himself had made any error in his evidence as a result of the judge's sleep episodes. His Honour

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observed that Cesan's mother had not linked her observations of the trial judge's conduct to any aspect of the course of trial contemporaneous with her observation. Implying some scepticism about the witnesses' estimates of the duration of the sleep episodes, Grove J referred to Ivan Amaro's observation that:

"What must have been five – ten seconds seemed to be an eternity"

and characterised it as "a more realistic description of what was happening" during Cesan's testimony.

His Honour rejected, as an exaggeration, Patricia Lawson's testimony that the judge was asleep most of the time during the nine days she attended the trial. He referred to Gabriela Cesan's evidence and noted she did not time the longer episodes of sleep to which she deposed. Juan David Uribe's evidence was said to be, in some respects, incompatible with the record of the proceedings on the days to which he referred. But even assuming that what he said was basically correct it carried the issue no further. He also referred to the evidence of Catalina Cal, Magalli Locaputo and Mr Bellew without comment.

Two important passages of his Honour's judgment followed his reference to the evidence. He said :

"It is necessary to make findings of fact in respect of these matters for the purpose of dealing with the grounds. I accept that the judge was asleep from time to time. In reference to the evidence of Cesan, Basten JA has commented 'commonsense suggests that (his) estimates must have been subject to a significant margin of error'. I agree and would apply that comment also and particularly to those witnesses who testified to lengthy periods of fifteen to twenty minutes. I find the probability to be that, from time to time, the judge was 'nodding off' and on other occasions, notably when he was heard to snore, was asleep in a real and practical sense. I am persuaded by the tenor of all the evidence that it was on these latter occasions that the associate or perhaps the court staff, or Mr Bellew by clearing his throat, restored the judge's attention.

I do not accept that three counsel would press on, remaining mute about the situation, if something of genuine significance was occurring without then, or even at a later time, drawing his Honour's attention to what he had apparently missed. The importance I have ascribed to this is that, in my view, the mere fact that the judge has been asleep (on and off) during the trial does not, without more, demonstrate that the trial had been

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