A man jailed over a Frankston bar fight has had his conviction overturned and a new trial ordered after one of the jurors repeatedly fell asleep during his trial.
Hayden Doyle was convicted of recklessly causing serious injury after punching Alex Van Staveren outside the Deck Bar in Melbourne’s south-east in October 2019, and was sentenced to four years and nine months in prison.
County Court of Victoria.Credit: Darrian Traynor
But that sentence was overturned and a new trial ordered in May after the Victorian Court of Appeal found the juror’s “somnolent or slumbering condition” was no “minor blemish” on the verdict and that a miscarriage of justice had occurred.
Court documents show County Court judge Kevin Doyle revisiting the issue of the sleeping juror numerous times in the original trial in September 2021 with prosecutor Joanne L Piggott and defence barrister Amit Malik.
Malik said the juror is “able to pay attention for maybe 30 seconds or so”, but then “you can see her eyes close and then she drops her head”.
Piggott agreed, telling Judge Doyle that she had “real concerns” because the juror “appears not to be conscious”, “dropping off and then coming to”, and there was a “lot of detail” in the case.
Malik asked for the jury to be discharged, but Judge Doyle refused.
Piggott added that the informant – the police officer giving evidence – also “formed the same view, that [the juror] appeared not to be awake” and “didn’t appear to me to at all be coping”.
Judge Doyle then said he would “keep [his] eye on her”.
Transcripts show Judge Doyle, who refers to the juror as the “older lady”, consistently defending her, telling the barristers she was falling asleep but waking up soon after.
“Look,” Judge Doyle said while the jury was not in the courtroom, “I thought for most of that time, the juror was concentrating.
“There was a period right at the end there, right at the end, where she appeared to get sleepy.
“She seemed better. However, at the end there … to me she appeared to fall asleep.”
A short time later in the case, before Van Staveren’s wife had finished giving evidence, Malik brought the sleeping juror up again.
“Your Honour, just back on the topic of the jury that we’ve been discussing,” Malik said, to which Judge Doyle responded: “Well, there was one point that I paused, and she rallied.”
Later in the case, when the accused man Hayden Doyle was giving evidence of his own defence, Judge Doyle told the court that just because the woman had her head down didn’t mean she was asleep.
“Is there an objection?” Judge Doyle asked.
“No, no objection Your Honour. I probably noticed over the last five minutes or so the juror was really struggling,” Malik responded.
“She was sleeping,” Piggott agreed.
“The older lady?” Judge Doyle said.
“Yes, so I noticed dropping off, eyes closing, and then momentarily leading up to ...” Malik said.
“All right,” Judge Doyle said.
“Yes, Your Honour might have a better vantage viewpoint,” Malik said.
“Yes, I don’t, she’s not asleep, when she puts her head down she’s still awake,” Judge Doyle said.
Hayden Doyle’s appeal is not the first time a case has been overturned due to a sleeping member of the court.
In June 2004, Rafael Luis Cesan and Ruben Mas Rivadavia were each found guilty in Sydney’s District Court, the equivalent of the County Court in NSW, of conspiring to import a commercial quantity of ecstasy.
The appeal court heard evidence from people who were at the trial, including one man who said he saw jurors “smiling, rolling their eyes and laughing” at times when the judge was asleep.
The High Court overturned their convictions and ordered a new trial after Judge Ian Dodd, who suffered from sleep apnoea and retired in July 2005, fell asleep during the case, distracting the jurors.
The Court of Appeal found Hayden Doyle’s conviction couldn’t hold because the juror did not pay attention to evidence presented at trial, and, in particular, the evidence of the accused.
“As is clear from the record of the trial, prosecuting and defending counsel both were sufficiently concerned about the allegedly sleeping juror that they sought a discharge of the jury,” Justices Stephen Kaye and Phillip Priest said in a joint decision.
“We do not consider that the juror’s somnolent or slumbering condition can properly be characterised as a minor blemish. Her apparent slumbering represented a substantial failure by the juror to adhere to her oath or affirmation.”
Kaye and Priest point out that although both Piggott and Malik sought for the jury to be discharged, neither applied for only that juror to be dismissed, which Judge Doyle had the power to do.
“Had the judge seen fit to discharge the apparently sleeping juror – without discharging the entire jury – the verdict of the jury would have been untainted,” Kaye and Priest said.
At the end of their decision, Kaye and Priest issued a warning.
“Should a trial judge in the future be confronted with a situation of the kind that manifested itself in the applicant’s trial, discharge of an apparently sleeping juror will need to be given careful consideration in conformity with these reasons,” they said.
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