The majority held that a trial judge sleeping intermittently during a criminal trial does not, without more, constitute a miscarriage of justice or a breach of s 80 of the Commonwealth Constitution; it is the effect, not the fact, of judicial inattention that is determinative, and an appellant must demonstrate some adverse consequence flowing from the judge's sleeping. The dissent (Basten JA) would have held that consciousness of the judge throughout trial is an essential feature of trial by jury under s 80, and that the proviso cannot cure such a constitutional breach. The question remains open for determination by the High Court.
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