Barns, Greg; Green, Lucy --- "Applications for judge-alone trials" [2017] PrecedentAULA 60; (2017) 142 Precedent 42

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APPLICATIONS FOR JUDGE-ALONE TRIALS

By Greg Barns and Lucy Green

INTRODUCTION

In an age of 24-hour news cycles and social media, trial by judge and jury may be viewed as problematic. There are questions as to whether potential jurors can put out of their minds all that they have seen, heard and read from these sources about an accused person in a high profile case.^[1]

A recent discussion on the merits of trial by jury compared to trial by judge alone concluded that:

‘The limited research available shows that it is neither more nor less fair than trial by judge alone. However, it does reveal two important matters. First, jurors continue to experience difficulty in understanding and applying legal concepts to evidence. Second, both judges and jurors use the “story model” of decision making – fitting evidence to narrative rather than narrative to evidence.’^[2]

The capacity for an accused person to seek a trial by judge alone is limited in Australia to the ACT, New South Wales (NSW), Queensland, South Australia (SA) and Western Australia (WA). It is not available in the Northern Territory, Tasmania or Victoria, or in any jurisdiction in relation to charges under Commonwealth laws.

COMMONWEALTH

It is not possible for a person charged with an offence under Commonwealth law to avail themselves of the trial by judge alone procedures in any jurisdiction in Australia.

The decision in Alqudsi v The Queen^[3] (Alqudsi) means that an order for trial by judge alone cannot be made by a court where it is exercising federal jurisdiction conferred by s68 of the Judiciary Act 1903 (Cth) to try offences against laws of the Commonwealth. This is because such an order would be inconsistent with s80 of the Constitution, which provides that ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury’.

In Alqudsi, the applicant’s motion to be tried by judge alone for seven terrorism recruitment offences under s7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) was rejected on the basis that the NSW Supreme Court was exercising federal jurisdiction and therefore must comply with s80 of the Constitution. Important to Kiefel, Bell and Keane JJ’s judgment (French CJ dissented) was the rejection of the applicant’s suggestion that the conceptualisation of ‘trial by jury’ has evolved, asserting that regardless of whether ‘one characterises trial on indictment by judge alone as a qualification relating to the operation of the evolving institution of trial by jury or not, trial by judge alone is not trial by jury’.^[4]

ACT

The Supreme Court Act 1933 (ACT) goes much further than other jurisdictions in that it mandates a trial by judge alone if certain criteria are satisfied. Section 68B provides that any criminal proceeding brought against an accused person must be tried by a judge alone if:

• the accused elects in writing to be tried by judge alone; and

• the accused produces a certificate signed by a legal practitioner stating that they have been advised in relation to making an election and that they make that election freely; and

• the election and relevant certificate are filed with the court before the identity of the trial judge is known to the accused or their legal representative, and before any time limit that may have been prescribed by the rules; and

• there is more than one accused person in the proceeding, all other accused persons have also elected to be tried by a judge alone for all offences for which that person will be tried and none of the offences are an excluded offence.

However, in relation to a range of so called ‘excluded offences’ the court cannot make such an order. An ‘excluded offence’ includes offences where death is alleged to have been caused by the accused, and serious sexual offences.^[5]

An accused who elects to be tried by judge alone may then elect to be tried by a jury at any time before they are arraigned. However, if the accused makes an election to be tried by judge alone and later withdraws that election, they are not permitted to make another request.^[6]

NEW SOUTH WALES

Section 132(1) of the Criminal Procedure Act 1986 (NSW) provides that either the ‘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’.

A trial by judge order must be made by the court if both the accused and the prosecutor agree to the accused being tried by a judge alone.^[7] There are some limits and exceptions to this obligation. The court may refuse to make an order if it considers that the trial will involve factual issues that require the application of objective community standards,^[8] including reasonableness, negligence, indecency, obscenity or dangerousness.

Further, the court must be satisfied that the accused person has sought and received advice from a legal practitioner pertaining to the effect of a judge-alone trial before it makes such an order.^[9]

While an order cannot be made by the court if the accused does not agree to being tried by judge alone,^[10] an order can be made where the prosecution does not agree to a judge alone trial but the court nevertheless ‘considers it is in the interests of justice to’ make the order.^[11]

The court has the power to make an order for trial by judge alone despite any of the above restrictions if it is of the opinion that an offence such as threatening a witness, interfering with a juror or similar^[12] is likely to be committed and such a risk cannot be reasonably mitigated by other means.^[13]

Section 132A of the Criminal Procedure Act 1986 (NSW) contains various procedural requirements for the making of an application for trial by judge alone. An application must be made at least 28 days before the date fixed for trial, except where leave has been granted by the court.^[14] An application for trial by judge alone cannot be made in a joint trial unless all other accused persons involved also apply to be tried by judge alone, and each application is made in respect of all offences with which the accused persons are being charged.^[15] It should also be noted that any accused person or prosecutor who applies for an order under s132 for a judge alone trial may, at any time before the date fixed for trial, apply for a trial by jury.^[16]

In R v Simmons; R v Moore (No. 4),^[17] Hamill J noted that:

‘[I]t must be correct that the accused has no right to demand a trial by judge alone. On the other hand the fact that the accused has decided on legal advice to relinquish his right to a jury trial is a matter to be weighed in determining where the interest of justice lie. Similarly, any subjective apprehension in the accused that he will not receive a fair trial in the hands of the jury is a relevant consideration’.^[18] (citations omitted)

However, his Honour however noted that in R v Stanley^[19] ‘it was held ... that there must be more than a mere stated apprehension without supporting evidence’.^[20]

QUEENSLAND

In Queensland, trial by a judge alone (called a ‘no jury order’) is dealt with in ss614 and 615 of the Criminal Code 1899 (Qld). The court may make a no jury order if it considers it is in the interests of justice to do so.^[21] The court may also make such an order where it considers that the trial, due to its complexity or length, is likely to be unreasonably burdensome to a jury, where there is a real possibility of an offence being committed in relation to a member of a jury, or if there has been significant pre-trial publicity that may affect jury deliberations.^[22]

The latter consideration is of real relevance in the context of the rise of social media and the traditional media’s embrace of the electronic format which allows the continued updating and republication of news stories. In R v Fardon (Fardon),^[23] Muir JA observed that the ‘overriding consideration in the exercise of a discretion under s615 is whether it is in the interests of justice to make the order’.^[24]

Where the prosecution has applied for a no jury order, the court may only grant it if the accused person consents to the order.^[25] Furthermore, the court must be satisfied that the accused person properly understands the nature of the application for a no jury order, should they not be represented by a lawyer.^[26]

The court may refuse to make a no jury order where the trial will involve a factual issue that requires the application of objective community standards.^[27] Examples of such standards provided by the act include reasonableness, negligence, indecency, obscenity or dangerousness.

In Fardon, Chesterman JA observed that a ‘trial on indictment before a judge without a jury is exceptional’.^[28] In his Honour’s view, therefore:

‘An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the [Criminal Code 1899 (Qld)] expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.’^[29]

SOUTH AUSTRALIA

Section 7 of the Juries Act 1927 (SA) provides that in a criminal trial before the Supreme Court or District Court, a trial can proceed with a judge alone where the accused has elected to be tried by a judge alone, and where the presiding judge is satisfied that the accused, before making such an election, sought and received advice from a legal practitioner.^[30]

However, an accused cannot make an election to be tried by judge alone where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.^[31] Similarly, an order for trial by judge alone cannot be made where two or more persons are jointly charged, unless all concur to a judge alone trial.^[32]

The Director of Public Prosecutions (the Director) can also apply to the court for an order that the accused be tried by judge alone.^[33] This can occur where the Director has been presented with information under s275 of the Criminal Law Consolidation Act 1935 (SA), which includes a charge of a serious and organised crime offence. Where such an application has been made by the Director, the court can make an order for a judge alone trial if it considers it in the interests of justice to do so. The court may also make an order for judge alone trial on application by the Director if it considers that there is a real possibility of an offence being committed in relation to a member of the jury. Such an order can be made any time before the commencement of the trial, regardless of whether a jury has been formed. Where the court has made such an order in response to an application made by the Director, the order can be appealed against in the same manner as any decision that concerns an issue antecedent to trial.^[34]

Where an order for a judge-alone trial has been made and a criminal trial proceeds without a jury, the judge is entitled to make any decision that could have been made by a jury and any such decision will have the same effect as a verdict reached by a jury.^[35]

WESTERN AUSTRALIA

In WA, s118 of the Criminal Procedure Act 2004 (WA) provides that either the accused or the prosecution can apply to the court for an order of trial by judge alone without a jury. This can only occur where the accused is committed or indicted on a charge in a superior court, and the application must be made before the identity of the trial judge is known to the parties.

If the application is made by the prosecution, the court must have the consent of the accused to make such an order.^[36]

The court may make such an order if it considers it to be in the interests of justice to do so. The court may also make such an order if it considers that the trial’s anticipated complexity or length is likely to be unreasonably burdensome to a jury, or that it is likely an offence may be committed in respect to a member of the jury.^[37]

Like the provision in NSW, in WA the court may refuse to make the order if the trial is likely to involve a factual issue that that would require the application of objective community standards. The Criminal Procedure Act 2004 (WA) suggests that issues of reasonableness, negligence, indecency, obscenity or dangerousness would likely fall into this category of community standards.^[38]

Where an accused is charged with two or more offences that shall be tried together, an order for trial by judge alone must be made in respect of both charges. Similarly, where two or more accused persons are being tried together, such an order cannot be made in respect of one accused person unless it is also made in respect to the other.^[39]

If an order for trial by judge alone is made, the court cannot cancel this order once the identity of the trial judge is known to the parties.^[40]

In LFG v The State of Western Australia,^[41] the Supreme Court surveyed the case law concerning s118 and the issues surrounding the use of that provision. Both Martin CJ and Buss JA set out the principles that govern s118 applications.

Buss JA noted a number of factors to be taken into account in interpreting s118:

‘First, the ordinary mode of trial in [WA], if an accused is committed on a charge to a superior court or indicted in a superior court on a charge, is a trial by or before a jury. Secondly, that is the mode of trial in this State unless the court makes an order under s118(1) that the trial of the charge be by a judge alone. Thirdly, the court may only make an order, on an application under s118(1), 'if' the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so. Fourthly, if the court is not affirmatively satisfied that, in the particular case, it is in the interests of justice to make an order for the trial of the accused by a judge alone, the accused must be tried by or before a jury. Fifthly, the requirement for a process of evaluation to be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone, and the requirement that the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury, arise by necessary implication from the text of s118 in the context of the first, second, third and fourth points I have made.’^[42]

Martin CJ also set out his interpretation of s118 in a series of 12 propositions. His Honour’s second proposition was that:

‘[I]n the case of an application by the prosecutor, an order can only be made for a trial by judge alone with the consent of the accused. The requirement for the consent of the accused reflects legislative recognition of the fact that the right to trial by jury on an indictable offence is generally regarded as a right of the accused. It is consistent with the implicit legislative recognition of that right to give at least some weight to the views of the accused which are not fanciful or irrational in the exercise of the discretion conferred by the section.’^[43]

Martin CJ concluded that:

‘[I]t is of particular significance to the proper construction and effect of s118 that the court's jurisdiction to make an order for trial by judge alone is enlivened by the court's conclusion that it would be in the interests of justice to make such an order, and is not conditional upon the court concluding that an order for trial by judge alone is 'necessary' to ensure a fair trial, or to achieve a just result.

CONCLUSION

Judge-alone trials can be an important tool in ensuring just outcomes in criminal trials. When considering whether your client’s interests would best be served by this format, examination of any public comment on the alleged offences and the complexity of the issues will be relevant.

Greg Barns is a Barrister at the Tasmanian and Victorian Bars and a Sessional Lecturer in the Juris Doctor program at RMIT University. He is also the ALA’s spokesperson on asylum seekers, criminal justice and human rights. PHONE [phone] EMAIL [e-mail].

Lucy Green is a Juris Doctor student at the University of Melbourne. EMAIL [e-mail].

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^[1] The case of Cardinal George Pell illustrates the issue. After being charged in relation to historic sexual assault allegations in July 2017 two senior Melbourne counsel, Remy Van De Wiel QC and Peter Chadwick QC questioned whether he could receive a fair trial with Mr Chadwick saying, "There's been an awful lot of publicity, a lot of discussion and it's a good argument for a judge alone trial”: A Cooper, ‘Fears that George Pell might not get a fair go drive calls for judge-only trials’, The Age (online), 11 July 2017, <http://www.theage.com.au/victoria/fears-that-george-pell-might-not-get-a-fair-go-drive-calls-for-judgeonly-trials-20170710-gx80dv.html> .

^[2] J Awad, ‘Tradition versus research’ (2017) 91(7) Law Institute Journal 30, 32.

^[3] [2016] HCA 24.

^[4] Alqudsi v R [98]

^[5] Supreme Court Act 1933 (ACT), s68B(1).

^[6] Ibid, s68B(3).

^[7] Criminal Procedure Act 1986 (NSW), s132(2).

^[8] Ibid, s132(5).

^[9] Ibid, s132(6).

^[10] Ibid, s132(3).

^[11] Ibid, s132(4).

^[12] Set out in Div 3, Pt 7 of the Crimes Act 1900 (NSW).

^[13] Criminal Procedure Act 1986 (NSW), s132(7).

^[14] Ibid, s132A(1).

^[15] Ibid, s132A(2).

^[16] Ibid, s132A(3).

^[17] [2015] NSWSC 259.

^[18] Ibid, [59]-[60].

^[19] [2013] NSWCCA 124.

^[20] R v Simmons; R v Moore (No. 4) [2015] NSWSC 259, [58].

^[21] Criminal Code 1899 (Qld), s615(1).

^[22] Ibid, s615(4).

^[23] (2010) QCA 317.

^[24] Ibid, [44].

^[25] Criminal Code 1899 (Qld), s615(2).

^[26] Ibid, s615(3).

^[27] Ibid, s615(5).

^[28] Fardon (2010) QCA 317, [81].

^[29] Ibid.

^[30] Juries Act 1927 (SA), s7(1).

^[31] Ibid, s7(2).

^[32] Ibid, s7(3).

^[33] Ibid, s7(3a).

^[34] Ibid, s7(3d).

^[35] Ibid, s7(4).

^[36] Criminal Procedure Act 2004 (WA), s118(4).

^[37] Ibid, s118(5).

^[38] Ibid, s118(6).

^[39] Ibid, s118(6).

^[40] Ibid, s118(9).

^[41] [2015] WASCA 88.

^[42] Ibid, [327].

^[43] Ibid, [116].