The Cesan framework for assessing miscarriage of justice based on a sleeping trial judge requires an overall assessment of multiple factors; the evidence of experienced trial counsel who observed no substantial failure of judicial supervision and no jury distraction will ordinarily outweigh the impressions of lay observers. A medical diagnosis of obstructive sleep apnoea made 18 months after a trial is not relevant to prove the condition existed at the time of the trial without additional evidence bridging the temporal gap. Simpson J and Campbell J differed on whether a medical report recording another expert's diagnosis is admissible under s 69 of the Evidence Act 1995 (NSW), with Campbell J holding it admissible as a business record but irrelevant, and Simpson J questioning whether the opinion rule in s 76 presented an additional barrier.
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