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CriminalApril 12, 2020

Judge alone trials

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All jurisdictions in Australia with the exception of Victoria, Tasmania and the Northern Territory currently provide for criminal trials by judge alone under certain circumstances.

 Under what circumstances can you have a trial before a Judge alone?

Most criminal trials in the District Court or Supreme Court involve a jury, consisting of 12 members from the community. However, there are circumstances where it is possible to have a trial conducted before a judge alone. In these cases the judge alone decides whether the accused is guilty or not guilty.

In Western Australia, under s. 118 of the Criminal Procedures Act 2004, an accused may apply to the Court for an order that the trial of a charge be by judge alone, without a jury.

When such an application is made, the onus is on the accused to argue why the case should be tried by a judge alone.This means that the defendant has to meet the requisite standard to prove that they should be exempt from a trial by jury. 

The question which must be determined when an application is made under s 118 is whether the court considers that the interests of justice will be enhanced or advanced by an order for trial by judge alone.

 What does ‘in the interests of justice’ mean?

 Good question. Ultimately, the court has an overriding discretion as to whether or not the request is granted.

 Basically, it is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is ‘in the interests of justice’ to order that there be a trial by a judge alone.

 The phrase ‘in the interests of justice’, in s118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under  s 118(1).

 They will vary and is therefore from case to case and must be determined on a case-by-case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor.

In what circumstanceshave judge only trials been allowed in the past?

Generally applications for a trial by judge alone are made in circumstances where there is an overwhelming amount of media coverage and attention prior to the trial. These cases often raise concerns as to whether a jury can remain unbiased and impartial and whether the jury can put everything that they have already read, seen or heard out of their mind when determining whether the accused is guilty or not guilty.

 An application for a trial by judge alone can also be made in circumstances where the length, or complexity, of the trial would be unreasonably burdensome on a jury.

 An example of this is the 2012 Lloyd Rayney trial, where Mr Rayney was accused of murdering his wife, Corryn Rayne.  Prior to the trial commencing, there had been considerable media coverage regarding Mrs Rayney’s murder and the investigation surrounding Mr Rayney.  The trial ran for over 3 months and involved a large number of witnesses that gave complex evidence regarding their field of expertise.

 How has the COVID-19 pandemic impacted the ability to apply for a Judge alone trial?

 In recent times, Covid-19 concerns have been taken into account when deciding whether a trial by judge alone is in the public interest.

 In particular, an accused person  who is in custody (without bail) awaiting trial where the accused’s trial has been delayed by suspension of jury trials due to Covid-19, and who can demonstrate, for example that the time spent in custody awaiting trial (without bail) would represent a disproportionate portion of the non-parole period of any possible sentence if they were convicted, is likely to be successful in an application for bail or that it is in the public interest for their trial to be enabled earlier by a judge alone trial.

What are the main differences between a jury and Judge alone trial?

 A jury decision must be unanimous(or, in the case of a majority verdict, the decision of at least 10 members of the jury).

If they cannot agree on their verdict, it is a ‘hung jury’ and the accused will usually be retried.

When a judge hears a case alone, there will always be a verdict, one way or the other.

 When a judge delivers their verdict in a judge alone trial, they must give reasons for their decision.

 Being informed of the reasons why a judge decided on a guilty verdict makes the process more transparent. It can show that the decision was made solely on an assessment of the evidence as opposed to a decision based on sympathy, prejudice or emotion.

The reasons given for a decision in a judge alone trial can also more readily provide grounds for appeal, if error can be detected.

 In cases involving a trial by jury, the jury deliberations are held “behind closed doors” in secret and the jury is not required to provide reasons for the basis of their decision. There is therefore no way of knowing whether the decision was made from a dispassionate and clinical assessment of the evidence.

In complex cases it can also be difficult for jurors to comprehend certain issues. These cases might typically involve expert scientific evidence (such as low count DNA evidence), or large amounts of forensic materials.

Therefore, how a jury can use propensity evidence (evidence of other similar offences by an accused which show a propensity to offend in a particular way) is often problematic.

 In these cases, judges are better equipped to analyse the evidence.

 The point can be further illustrated by reference to another category of case in which orders are customarily made under s 118 of the Act for trial by judge alone, being cases concerning the defence of unsoundness of mind.

Because those cases customarily turn upon the assessment of expert psychiatric evidence, it has been concluded many times that the interests of justice favoured trial by judge alone.

Proponents of jury trials highlight the fairness of having a group of ordinary citizens making the decision as opposed to putting the responsibility in the hands of a single person.

 Proponents of the jury system also argue that judges provide strong directions to jurors about the importance of focussing solely on the evidence and that the court’s faith in juries to perform that task is well established. They also believe that a jury trial can more accurately reflect the views of the community because the jury is randomly selected from members of the public.

It has been said that a single judge may be out of touch with the views of regular society, and their decision may not reflect the values of the community as a whole.

It has also been said that a jury has certain advantages, in making findings of fact, which a trial judge does not have, and a trial judge has the advantage of experience in making findings of fact, which a jury does not have.

However, as was recently seen in the High Court’s decision on Cardinal Pell’s appeal, the High Court decided that the jury ought to have had a reasonable doubt about Cardinal Pell’s guilt, as indeed should the two judges in the Victorian Court of Appeal who upheld the jury’s decision to convict, and that there was a real chance that an innocent man had been convicted.

An accused person should always consider the pros and cons of applying for a trial by judge alone. Experienced criminal lawyers can help inform that decision.




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