Judge alone trials
How is a judge alone trial ordered?
An order for a judge alone trial must be made by the court where the accused person and the prosecution agree that the accused person should be tried by judge alone. This applies in both the District and Supreme Courts.
If the prosecution makes the application for a judge alone trial, the accused person must agree, otherwise the court must not make that order. If the prosecutor doesn’t agree with the accused person making that application, the court can order a judge-alone trial if it considers it is in the interests of justice to do so.
Importantly, before making an order for a judge-alone trial, the court must be satisfied that the accused person has been provided with advice about the effect of that order from an Australian legal practitioner.
The importance of juries
It is also necessary to recognise the great importance the criminal justice system places on trial-by-jury. The jury system is steeped with tradition stemming from the idea that members of an accused person’s community, will apply common sense in assessing the evidence before reaching a verdict. The court can refuse to make an order for a judge alone trial if it considers that the trial will involve factual questions that requires an application of objective community standards, for instance, questions of reasonableness, negligence, indecency, obscenity or dangerousness. Why is this important? Because it recognises that a jury of 12 people from the community have a greater ability to measure these factual issues than a judge does by him or herself.
What are the advantages of a judge-alone trial?
One of the biggest advantages of a judge-alone trial is that a judge is required to give reasons for his or her decision. This isn’t the case for jury trials. Juries deliberate in secret and the parties are never privy to the reasons why they might find an accused person either guilty or not guilty of a particular offence.
It’s been held in other cases that the complexity of the facts in a matter would be positively dealt with in a judge-alone trial. This can be in matters were there is complex scientific or expert evidence. It could also include very sophisticated frauds which rely on complex documentary evidence, such as financial crimes involving businesses or insider trading.
Judge-alone trials during the pandemic
There have been a great many changes to our lives recently but in law-land, this has meant fewer matters can be dealt with by the court simply for social distancing reasons and the ability for courts to adequately host jurors in trials at the moment has been compromised. The NSW Parliament has made legislative changes to assist courts to keep running, at least for some matters.
One of those changes is a temporary change to the Criminal Procedure Act which builds on those powers to order a judge alone trial. Under section 365, a judge can order an accused person to be tried by judge alone without either of the parties making the application. Similarly to the normal situation, a judge can do this only if the accused person consents and if satisfied the accused person has received advice about it from an Australian legal practitioner. Ultimately, this means that criminal trials can continue to be heard without having to make arrangements for juries. The effect is at least two-fold, firstly, social distancing can be more readily accommodated and a small dent can be made to a backlog in cases as a result of COVID-19.
If a prosecutor doesn’t agree with the judge making this order, the court can still make an order if it is in the interests of justice.
That very position was argued recently in the District Court before his Honour Judge Lerve. His Honour’s judgment emphasised the extraordinary measures the NSW government has taken to ensure that justice moves onwards and that courts ought to attend to work that can be done. This case and others heard recently in the District Court emphasise that the single test to be applied in granting a judge alone trial under this temporary change to the Criminal Procedure Act is that of “interests of justice”.
The following factors gave been identified as falling within the “interests of justice” in those cases:
Because the accused person has made the application
The considerable delay that would occur if the matter were to be heard by a jury
That the length of the delay cannot be stated with any certainty
That the accused is custody and is likely to remain there until trial
The clear intention of the NSW Parliament that the “business of the court” continue
To shorten the length of time that an accused person is in a “state of suspense”.
The Chief Judge of the District Court, The Honourable Justice Price recently announced that the suspension on jury trials would be lifted in some District Court locations from 15 June 2020 – in Sydney, Parramatta and Newcastle. But this will only be for limited courtrooms at those locations. The District Court also sits in other locations throughout Sydney and in regional areas and so an increase in judge alone trials is here to stay for the meantime.
In normal circumstances, the decision to make an application for a judge-alone trial is something to be carefully considered. Criminal defence lawyers will look at the advantages and disadvantages the apply in your particular matter when they provide advice. At the current time, with limited numbers of courts running, the considerations are now different.
Do you have a trial listed in the next few months and want to know more? Give Kingston Fox Lawyers a call on 0457 781 133 or book an appointment by clicking the button below.
