For many people, envisioning a trial within NSW generally involves a panel of 12 jurors who determine their guilt or innocence. Whilst this is often the case, in some extenuating circumstances, the jury may be completely absent and, instead, have the judge performing both the role of the court’s justice and the decision-maker on questions of law. These trials are called judge-only trials and may be held in NSW upon application if it is deemed that a trial by jury would oppose the best interests of justice.
The Legislation
Within NSW, individuals may be allowed a judge-alone trial regarding state offences, as outlined under sections 132, 132A and 133 of the Criminal Procedure Act 1986 (NSW).
Section 132 of this legislation states that either the defendant or prosecutor may apply for a District or Supreme Court trial to be tried by a judge alone. This section outlines that upon an application being made, the court:
- Must make such the order if both parties agree,
- Cannot make the order if the defendant disagrees,
- May make the order if the prosecution disagrees if it is in the interests of justice to do so,
- May refuse to make the order if the trial will involve a factual issue that requires the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness,
- Must refuse to make the order unless satisfied the defendant has sought and received advice about such orders from an Australian lawyer, and
- May make the order despite any of the above if there is a substantial risk a jury trial may lead to an offence of interfering with jurors, witnesses or judges under sections 320 to 326 of the Crimes Act 1900 (NSW), and that risk cannot be mitigated.
Further, as prescribed under section 132A, an application under section 132 of the Criminal Procedure Act 1986 must be made at least 28 days before the trial date. Section 133 further empowers a judge to make findings of fact when sitting alone, requiring that the judge includes the applied principles of law and findings of fact in any judgement.
‘Objective community standards’
Section 132 of the act states, “The court 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”.
Whether or not a case requires the “application of objective community standards” has been the subject of judicial interpretation. The possible circumstances that may require the application of community standards is outlined further by Heydon J in the High Court case of AK v. State of Western Australia, stating,
“Other examples of factual issues requiring jury trial involve the application of “objective community standards” include whether the behaviour was “threatening, abusive or insulting”; whether the conduct was “dishonest”, a matter to be decided by the jury “according to the ordinary standards of reasonable and honest people”; whether an assault is “indecent”; and whether an accused person had a particular intention”.
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What circumstances could lead to an unfair trial?
Various circumstances that could negatively affect the fairness of a criminal trial that, if accepted by the court, may result in a trial under special circumstances, usually involving a judge-alone trial.
This may include, amongst other things:
- Significant media attention and publicity as jurors may have influenced opinions before the trial starts
- Complex circumstances and evidence, as it may be difficult for a jury to fully understand the evidence and its legal significance
- A lengthy trial may be considered an unfair burden on a jury
How does a judge-alone trial work, compared to a trial by jury?
A judge-alone trial will take place following a successful application, where the applicant has been approved by the court that it is in the interests of justice not to be heard before a jury. In these circumstances, it is solely the judge to determine questions of law and fact, doing both the role that judge and jury would in a trial before a jury.
Making an application
Applications for a judge-only trial under section 132 (1) are made through the approved Form 74AJ. Refusal or applications may be appealed under section 5F of the Criminal Appeal Act 1912.
Is it better to have a jury trial or a judge-alone trial?
Whether a judge or jury trial is better depends on the case’s circumstances and the body of evidence relied on by both the defence and prosecution. Most matters heard in the district and supreme court in NSW are heard before a panel of 12 jurors, with judge-only trials occurring in more specific circumstances.
Generally speaking, statistics show defendants have a greater likelihood of acquittal in a trial by judge, with the 2012 Bureau of Crime Statistics finding a non-guilty verdict 55.4% of the time in a judge-alone trial, compared to 29% in when heard before a jury.
Key Takeaways
- NSW allows judge-only trials under certain conditions, aiming to ensure fairness and justice.
- Applications for a judge-only trial can be made by either the defense or prosecution, with various criteria influencing the court's decision.
- Factors considered include potential jury bias, case complexity, and the presence of substantial legal questions.
- Judge-only trials may offer benefits in terms of legal expertise and objective analysis but lack the community representation of jury trials.
What are the benefits of a trial by jury?
The concept of trial by jury is central to the criminal justice system in New South Wales. Jury trials can be beneficial for some if the evidence is dependent on witness statement and more emotional appeals, as jurors may have more compassion than judges as a general rule. However, these trials can hold greater unpredictability and lack the same expertise and legal knowledge that may be advantageous in a judge-only trial.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
