When a legal matter goes to trial, the outcome is determined by a Judge or jury. Most civil trials are decided by Judges (aside from defamation) and most criminal cases are decided by jurors. However, there are circumstances where a criminal defendant can request a Judge-only trial.
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Section 132 of the Criminal Procedures Act 1986 (NSW) allows a judge to make findings of fact, which is typically the responsibility of a jury in a criminal trial. Furthermore, it requires the Judge to consider the applied principles of law and decide on findings of fact, as well as observe any warnings and instructions normally given to the jury.
History of Judge Alone Trials in NSW
In 1990, an amendment was made to the Criminal Procedure Act 1986 (NSW) to allow for a trial by a Judge alone with the condition being that the accused requested the application and the prosecution consented. However from 2011, the recent amendment enabled the defendant to apply for such trial in the absence of consent by the prosecution. Prior to this, only the prosecution was allowed to apply for Judge-only trials.
Additionally, Section 132 stipulates that a defendant or prosecutor may apply for a District or Supreme Court trial to be tried by a judge alone – ‘trial by judge order’.
Criteria for Judge only Trials
Section 132 Orders for Trial by Judge Alone
- matter must be held in either the District Court or Supreme Court
- only if both parties agree to the application order
- prosecutor cannot make the order if the defendant disagrees
- if prosecutor does not agree to the order, the court may make a trial by judge order if it considers it is in the interests of justice to do so.
- the court may refuse to make the order if it considers a factual issue that requires the application of objective community standards:
- Negligence
- Reasonableness
- Indecency
- Obscenity
- Dangerousness
- Must refuse to make the order unless satisfied the defendant has sought and received advice about such orders from an Australian lawyer
Application Deadline
Section 132A requires the application for a judge-only trial for criminal proceeding be made at least 28 days prior to the trial date, except with the permission of the court.
Another stipulation is that an application cannot be made where there is a joint trial, this means where there are multiple defendants.
Benefit of Judge-Only Trial
Moreover, the Principal Council Officer of the Standing Committee on Law and Justice, Cathryn Cummins commented that the, “The benefit of including an exception for jury tampering in the model is that it recognises that there may be limited circumstances where there is a concern from the outset that the soundness of a jury verdict in a particular case may ultimately be questionable”.
Also, a complex of history of the particular matter and the accused may be more suitable for judge-only trials. This may be where the allegations are of a sensitive nature or in circumstances where the case attracts publicity. Still, it is the only exception put forward to the principle that an accused has a right to a jury trial.
How to make an application
Applications are filed under Section 132(1) by completing and filing the NSW Supreme Court Form 74AJ.
However, if the application is refused, the defendant may appeal this decision under section 5F of the Criminal Appeal Act 1912.
Rates of Acquittal
Furthermore, this is the most recent statistics from the NSW Bureau of Criminal Statistics and Research. Hence, it represents the acquittal rates in judge-alone trials versus jury trials
| Total Trials | Judge Alone | Acquittal Rate – Judge Alone | Acquittal Rate – Jury | |
| 2009 | 575 | 53 | 17.3% | 43.8% |
| 2010 | 545 | 55 | 41.8% | 43.5% |
| 2011 | 500 | 83 | 43.4% | 44.6% |
| 2012 | 502 | 95 | 33.7% | 41% |
| 2013 | 546 | 112 | 25% | 35.3% |
| 2014 | 378 | 93 | 33.3% | 35.2% |
Summary
Therefore, decisions to apply for a Judge-alone trial is an important consideration in which a defendant must seek advice from a lawyer. By considering the statistics as well as the nature of the trials, the defendant must weigh up the options to decide if they will apply.
