Can I get a judge-alone trial for a criminal matter in New South Wales?

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Most criminal trials are determined before a judge and jury, but an order may be made for a judge-alone trial.
Australia Criminal Law
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A study has found that judge-alone trials are more likely to result in an acquittal (i.e., a finding of not guilty) than jury trials. Judge-alone trials can be held across any type of criminal case, including sexual assault charges.

Whilst most criminal trials in the District Court and Supreme Court are determined before a judge and jury, in certain circumstances an order may be made for a trial without a jury.

In most criminal matters, a jury of 12 laypeople will be required to collectively decide on a verdict.

However, in judge-alone trials, the single judge determines the facts of the matter and the ultimate verdict of guilty or not guilty.

The New South Wales Bureau of Crime Statistics and Research ('BOCSAR') compared acquittal rates, imprisonment rates, prison sentences and trial length for 5,064 jury trials and 805 judge-alone trials finalised between January 2011 and December 2019.

It found that judge-alone trials were associated with a 12% increase in the probability of acquittal.

They were also associated with a decrease in sentence length by an average of 7.6 months, where the defendant was found guilty, and an average decrease of two days in trial length, among cases with prejudicial and complex offences.

However, BOCSAR conceded that it was unable to determine: "whether these outcomes are caused by judge-alone trials themselves, or by factors that affect whether a trial 'goes judge-alone'."

The findings detailed that the proportion of judge-alone criminal trials has increased from 6% of trials in 1999 to 18% of trials in 2019.

"Interviews with legal practitioners suggested the difference in acquittals could be because judges apply a higher threshold of what constitutes 'beyond reasonable doubt'. Judges must also provide detailed reasons for their verdict (which can be the basis for an appeal), whereas juries do not.

"Another possibility is that factors which make a case more likely to be heard judge alone may also be associated with weaker prosecution cases." said Jackie Fitzgerald, Executive Director of BOCSAR.

In considering trial length, those interviewed as part of the study (including Judges, prosecutors, and criminal lawyers) unanimously stated that judge-alone trials were shorter.

They stated that this is due to the increased use of written evidence rather than in-person testimony, flexible scheduling, and quicker presentations of evidence.

What is a 'Judge Alone' Trial in New South Wales?

In New South Wales, an order made by made for a judge-alone trial, as outlined under section 132 of the Criminal Procedure Act 1986 ( NSW). It provides that an accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone, instead of a jury panel.

When Can I Get a Judge Alone Trial?

Where both parties agree, the Court must make an order for a judge-alone trial.

If the prosecutor proposes a judge-alone trial but the accused person does not agree, the court must not make a trial by judge order. However, where the accused person proposes a judge-alone trial, but the prosecutor does not agree, the Court may nonetheless make a trial by judge order if it considers it is in the interests of justice to do so, as per section 132(4).

This requires the Court to evaluate the potentially conflicting considerations including the interests of the parties and larger questions of legal principle, the public interest and policy considerations.

Factors that are relevant to the interests of justice include:

  • Where the matter involves a risk of prejudice (arising from material contained in the evidence of the case itself, from the media publicity surrounding the proceedings or from the risk that a jury may interrogate the internet). However, it is important to note that media coverage of a case must be "extraordinary" or "emotive" to justify a judge-alone trial order (as outlined in R v Qaumi at [77]).
  • Where the evidence expected to be adduced is complex, making it so that it could not be comprehended by a jury, or there is something to suggest it will be of such length that a jury will not be able to understand the evidence or follow directions (as outlined in DPP v Farrugia [2017] NSWCCA 197, [11]).

If the factor utilised involves potential prejudice, it will be important to consider whether this may instead be adequately addressed through the process of jury selection or by instructions to the jury by the trial judge.

Other factors may include the efficiency and length of trial (comparing the likely length of the trial if conducted by jury to if it were by judge alone), as well as if the interests of justice would be advanced by the giving of reasons (i.e., if it involves complex engineering, scientific or medical issues).

It is important to note that whilst a jury only needs to announce 'guilty' or 'not guilty' in relation to the offence/s, judges are required to provide detailed reasons for the verdict/s.

The Court may also make an order in circumstances where there is a risk of a commission of an offence involving an interference with a witness, judge, or juror, and the risk of those acts occurring may not reasonably be mitigated by other means.

It must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

Furthermore, it may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity, or dangerousness.

Section 132A provides that an application that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial, except with the leave of the court.

Furthermore, an accused person or a prosecutor who applies for an order may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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