Percy, Tom; Barns, Greg --- "Trial by judge alone" [2020] PrecedentAULA 69; (2020) 161 Precedent 18

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TRIAL BY JUDGE ALONE

By Tom Percy QC and Greg Barns SC

The right to trial by judge alone is an idea that has gained increasing momentum in recent times. With the acquittal of Cardinal Pell and the increasing need for flexibility and social distancing due to COVID-19, Australian jurisdictions appear more willing to experiment with the idea of a right to trial by judge alone.

Different procedures exist in each state and territory, with a range of freedoms available to an accused. Some jurisdictions allow trial by judge alone when both parties agree and there is a public interest (for example, Western Australia), and some jurisdictions completely prohibit the possibility of disposing a jury (for example, Tasmania).

Victoria, where Cardinal Pell was tried, did not allow for trial by judge alone until COVID-19 forced its hand. An amendment to the Criminal Procedure Act 2009 (Vic) now allows for trial by judge alone, although only until March 2021.^[1]

Recently in Western Australia, independent parliamentarian Aaron Stonehouse MLC introduced the Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 to Parliament, and an inquiry sought feedback from the legal profession and wider community on the impact of the Bill on the Western Australian legal system.

The flaws of the traditional jury system have become glaringly obvious in our digital age, with the exponential increase in the dissemination of information and the increasingly complex legal principles and factual scenarios in modern court cases. Demanding mandatory jury trials in the modern era is outdated and leaves many Australian jurisdictions with systems that unfairly prejudice accused persons.

PUBLICITY

One of the most potent arguments for the right to a trial by judge alone is that it avoids the possibility of jurors being affected, or potentially overwhelmed, by adverse publicity.

In the High Court case of Dupas v R,^[2] the applicant sought a permanent stay of proceedings in respect of a murder retrial. There had been extensive media coverage during the lead-up to the first and second trials and throughout the appeal, proceeding over some seven years. Further, the applicant was identified by the media from an early stage as a suspect.

The stay of proceedings was not granted, as it was held that the prejudice could be removed by the trial judge giving appropriate directions to the jury. As discussed below, this presumption is fraught with problems.

A further example is found in R v TS.^[3] The NSW Court of Criminal Appeal upheld an appeal and granted a new trial after the appellant’s trial overlapped with that of his co-accused. The appellant had previously applied for, and was ordered, a separate trial from the co-accused. The co-accused’s trial proceeded first, however the appellant’s trial began while the jury was deliberating on the first trial. The jury gave its decision on the second day of the appellant’s trial, which resulted in overwhelming media coverage and public outrage. Part of the media reporting included coverage of the Crown Prosecutor’s opening address and the evidence led at trial. Counsel for the appellant submitted that the jury should have been discharged and a six-month adjournment granted due to the publicity.

While the trial judge had warned the jury of the second trial not to consider the publicity of the first trial, the Court of Criminal Appeal held that the trial should have been aborted as the publicity seriously impeded the appellant’s right to a fair trial.

The issue of publicity has already been identified as a potential problem in relation to jury trials in Western Australia, however in that jurisdiction trial by judge alone has generally been granted only in cases of extraordinary and exceptional publicity (for example, in The State of Western Australia v Rayney^[4]).

Conversely, in Schmidt v The State of Western Australia,^[5] massive publicity preceding a murder trial (in which the media wrongly identified the accused as a member of an outlaw motorcycle gang) was seen as insufficient to warrant a trial by judge alone.

Adverse publicity in both traditional and social media should provide a reason for all persons charged in Australian intermediate and higher courts to be able to choose a trial by judge alone.

JURORS CONDUCTING THEIR OWN INVESTIGATIONS

Trial by judge alone avoids the possibility of jurors accessing inadmissible or inappropriate materials. Numerous cases have been aborted as a result of this.^[6]

In the English Court of Appeal, the case of R v Young^[7] demonstrated the risk of erroneous jury investigations. In that case the Court received affidavit evidence from all 12 jurors that while housed overnight at a hotel, four jurors indulged in a Ouija board séance to contact the deceased victim, with the aim of discovering whether the accused was guilty of murder. The results of that séance ultimately influenced the jury’s decision.

Albeit an extreme example, this case demonstrates the risk of a jury conducting erroneous investigations (or adopting impermissible methods of adjudication), which is a risk that exists in any jury trial.

The internet

With the prevalence of the internet in modern society, there has become a real and likely possibility that, particularly in high-profile cases, juries will be exposed to highly prejudicial information about the allegations before they are even empanelled as jurors.

Although there has always been the risk of juries conducting their own investigations, this has been compounded by the widespread availability of the internet and the speed and ease of distributing and accessing information.

In 2020, the Tasmanian Law Reform Institute released a report on juries, social media and the right to a fair trial.^[8] It brought together various examples of jurors conducting impermissible forms of investigation, including using the internet and social media to research the parties, the judge, the lawyers involved, legal concepts and terms, and media reports on the allegations in the case.^[9]

Another example is the Victorian case of R v Benbrika,^[10] where a trial judge ‘repeatedly and unambiguously told the jury that the case was to be decided on the evidence given in the courtroom’. In spite of those directions, there was evidence that the jury had used the internet to access Wikipedia. In R v Folbigg,^[11] a juror downloaded information from the internet concerning the retention of body heat in a deceased baby.

In the NSW case of R v K,^[12] after the jury verdict was delivered the jury members and defence counsel convened at a nearby hotel and (albeit improperly) discussed the case. Through these discussions it was revealed that the jury had wrongly investigated the history of the matter using the internet. The jury had discovered that the appellant had been accused of murdering his second wife, and that the current trial was a retrial in relation to the alleged murder of his first wife.

On appeal the Court ruled that the affidavits of the jurors were admissible, but it did not consider the admissibility of the evidence of the materials the jury had accessed as this would infringe upon the principle that the court cannot hear evidence of court deliberations. The Court held that the evidence showing that some jurors had learned the case was a retrial due to internet searches did not warrant a new trial.

In this case, the Court further observed that it may be appropriate to consider amendments to the Jury Act 1977 (NSW) to make it an offence for jurors to conduct external investigations. The Court also stated that this issue could be avoided by the trial judge giving clear and unambiguous directions warning against juries conducting their own investigations.

Judges in every Australian state and territory routinely give jurors such directions; see, for example, the model directions set out in the bench books of NSW, Victoria and Queensland.^[13] However are such directions of much use? Particularly given that in January 2020, Australia had 22.31 million internet users (an internet penetration of 88 per cent) and 18 million social media users (a social media penetration of 71 per cent).^[14]

Merely warning a jury not to conduct its own investigations is therefore a simplistic and unrealistic approach to the issue, given that monitoring whether juries are conducting their own investigations, particularly through the internet, is almost impossible. Additionally, even where jurors do not decide to actively conduct their own investigations, the information may still inadvertently appear on their newsfeed.

JURY BIAS

There is some understandable mistrust in the legal system by people who come from marginalised groups, such as Aboriginal and Torres Strait Islander people, those accused of being members of an outlaw motorcycle gang or a non-mainstream religion, or those charged with an offence of the type that has been the subject of significant public derision.^[15]

In particular, with the increase in prosecutions for historical sex offences, it has been the experience of criminal defence lawyers that the alleged offences often overwhelm and shock public sensibility. This can mean that verdicts of guilty are returned in some cases that ordinarily (on their face) would have demanded a sense of reasonable doubt.

For example, in LFG v The State of Western Australia,^[16] before the trial had commenced the appellant had applied to be tried by judge alone after his prior convictions of sexual offences were ruled to be admissible as propensity evidence. It was submitted on behalf of the accused that there was a real risk that one or more of the jurors may have found it difficult to exclude from consideration the prejudicial effect of evidence that suggested the appellant had previously sexually interfered with four young boys in approximately the same age group as the complainant. Although the case did not fall within the ambit of s118(6) of the Criminal Procedure Act 2004 (WA) regarding the requirement of an evaluation of community standards, the Chief Judge dismissed the application for a trial by judge alone. This was upheld on appeal.

We can contrast this with what occurred in Ferguson v R.^[17] Mr Ferguson had endured an extraordinary degree of adverse media publicity, because of his prior serious sex offending record, before being granted a judge-alone trial in Queensland in 2009. He was subsequently acquitted^[18] in that judge-alone trial.

In the Court’s judgment in LFG, the following passage from TVM v The State of Western Australia^[19] was relied upon:

‘[I]t is the law and the experience of the law that juries are, when properly directed, able to put aside prejudices and sympathy, and deliver verdicts on the facts in a dispassionate manner’.^[20]

The confidence courts have in juries is emphatic. In John Fairfax Publications Pty Ltd v District Court of NSW,^[21] Spiegelman CJ observed:

‘Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.’^[22]

These observations from superior courts are curious and somewhat remarkable given that there is no way for courts to know how jurors deliberate or whether they act on their own biases and prejudices. In our observations, particularly in cases dealing with sexual offences against children and those leading propensity or tendency evidence, some verdicts suggest that juries are unable to separate emotion from the rational processes required for determining an accused’s guilt, particularly where a case involves multiple charges. There is also demonstrable evidence that racial bias leads to higher conviction rates by juries for persons of colour, both in Australia and the United States.^[23]

There is some academic support for juror attitudes to the trial deliberation process. A 2013 jury study^[24] conducted in NSW made some disturbing findings. These included:

‘Thirty three per cent (33%) of juror respondents (26 jurors) across 16 of the 20 trials indicated in various ways that they perceived that their task was to deliver a verdict that reflected a determination of objective, not procedural truth; Twenty per cent (20%) of juror respondents (16 jurors) across 11 trials expressed views that suggested in various ways that they believed the prosecution and the defence had, or should have, equal rights and obligations. A significant number of these indicated that defence rights should be curtailed. Fifteen per cent (15%) of juror respondents (that is, 12 jurors) across 8 trials expressed the view or acted in ways that indicated that they viewed it as justifiable in certain circumstances to ignore a presiding judge’s direction that a juror must not engage in personal search. An additional 2 jurors in another 2 trials were neutral as to whether juror investigation and research was “very acceptable ... where a juror felt frustrated with the adequacy of evidence in a trial”.’^[25] [Emphasis added]

JURY INTIMIDATION

There have been cases where jurors have been subject to subtle and even overt threats both inside and outside of the jury room.^[26] For example, in Smith v The State of Western Australia [No. 2]^[27] (Smith) the appellant challenged his conviction on the basis that a juror alleged that he had been physically threatened and coerced into joining the verdicts of guilty by the other jurors. It was held by the Court in dismissing the appeal that the evidence of the other jurors, who denied that any impropriety had taken place, was more credible and the first juror’s evidence was not accepted.

Although the appeal was unsuccessful, the circumstances of Smith demonstrate that it is often difficult to ascertain what occurs in a jury room, and even more difficult to prove if an abnormality has occurred. In a trial by judge alone, the possibility of jury intimidation would be completely removed.

DISSENTING JURORS

The problem of the jury not being able to agree (or being ‘hung’) is an issue that would never be encountered in a judge-alone trial. Occasionally (especially in relation to federal charges) a unanimous verdict is required and the problems of even one stand-alone juror causing a trial to be aborted is well-acknowledged.^[28]

ACCOUNTABILITY AND REASONS FOR DECISION

One major advantage of a trial by judge alone over a jury trial is that it results in a clear set of reasons as to why the acquittal or conviction eventuated. This enhances transparency,^[29] with the reasons behind a decision to convict or acquit freely available to be accessed by the community. As Malcolm McCusker QC, former Governor of Western Australia, has observed, the right to a fair trial should include the right to know and understand why the accused has been found guilty. This point has also been made by the European Court of Human Rights.^[30]

Currently in Western Australia, s120 of the Criminal Procedure Act 2004 (WA) requires a judge sitting in a trial by judge alone to provide a judgment that includes the principles of law that have been applied and the findings of fact that have been relied upon. In NSW, s133 of the Criminal Procedure Act 1986 has a similar provision.

In contrast, s56BC(1) of the Juries Act 1957 (WA) makes it an offence to disclose any statement, opinion or argument advanced by members of the jury in the course of their deliberations. Section 56BC(2) allows for that information to be disclosed to a court or the police for the purpose of investigation, however that power is rarely exercised. Similar provisions exist in other Australian jurisdictions^[31] and, likewise, are rarely used.

In cases that are technical, highly emotional or have received excessive publicity, it is difficult to detect when juries may have relied upon improper or erroneous findings of fact, or misinterpreted legal principles. This difficulty is completely removed in the case of a trial by judge alone as the judges are required to explain their reasoning and findings in full.

FLEXIBILITY

If a trial proceeds by judge alone the court has significantly greater flexibility in deciding when to sit, and if an adjournment for some protracted period is necessary the court is in a position to accommodate.

Conversely, if a witness or members of the jury become unavailable, or for some other reason the trial is unable to proceed, then the trial must be aborted. Generally speaking, a trial is unable to be adjourned for much longer than a day without the jury needing to be discharged.

The accused person must then have another trial listed, a process which currently means a 12- to 18-month delay. This is expensive, and of course stressful, for the accused. It further prejudices the accused by increasing Longman-type (forensic disadvantage) considerations.

Albeit not a central consideration, a trial by judge alone provides the court with some flexibility with respect to the running of the trial and may provide some comfort to the accused that the trial will not be aborted due to issues beyond their control.

COST

Running a trial without a jury is obviously far less costly than a conventional jury trial. The many costs associated with paying and reimbursing jurors (as well as reserve jurors) could be avoided in a trial by judge alone.

It would also significantly shorten trials as it would remove the need to empanel juries, instruct them, conduct the jury ballot and allow time for deliberation. This could, in some cases, remove up to two days from a standard trial. This would not only reduce the cost of paying jurors but also the cost of court security, custodial services, court staff and Legal Aid.

Again, although this ought not be a determinative reason for reform, it has a potential public interest benefit.

THE CASE AGAINST TRIAL BY JUDGE ALONE

The principal reason generally advanced in opposition to a trial by judge alone is that the foundation of our system requires that a person be adjudicated upon by a jury of his/her peers, reflecting community values. This is an ancient proposition that may have outlived its usefulness, at least in some types of cases. The right to a jury trial remains an important and essential component of the criminal justice system. However, there is no reason why a trial by jury is likely to represent a more just outcome than that by judge alone. The argument in support of judge-alone trials does not intend to subtract from the criminal justice system by removing all jury trials, but rather seeks to add to the rights of the accused by providing an option to maximise the opportunity for a fair trial.

The requirement of a judge to provide reasons is sometimes seen (particularly by the judiciary) as being onerous and a time-consuming task. While there may be some validity in this, it is also true that most modern trials require such complex and lengthy jury directions that the preparation involved in performing this function is not manifestly greater than that which is involved in preparing a judgment.

Accepting however that there will be some extra workload placed on judges in this regard, the matter could be resolved by the appointment of more judges, or the provision of extra professional staff to assist in the writing of judgments. This issue ought not prevail against the manifest benefits to justice associated with allowing an accused the option of a trial by judge alone.

There is also a further (albeit very low) risk that the trial judge may hold their own biases which may prejudice an accused person. The requirement for judges to provide reasons for their decisions would, however, significantly reduce the potential for a judge to act upon any inherent biases.

CONCLUSION

Courtrooms in Australia have been running jury trials since the nation’s inception. However there is a strong argument to be made that given the enormous access to a 24-hour news cycle through social media and other web-based platforms, and often overly complex and technical cases, the current model may be considered outdated in some circumstances, and may be prejudicial towards accused persons. The right to elect for a trial by judge alone appears to be increasingly obvious. In a legal system that venerates the principle of innocent until proven guilty, the ability to elect for a trial by judge alone protects an accused’s rights and ensures a transparent and fair trial.

The authors would like to thank Rachel Porter LLB (Hons) for her research and assistance.

Tom Percy QC is a barrister practising from Albert Wolff Chambers, Perth. Greg Barns SC is a barrister practising from Salamanca Chambers, Hobart.

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^[1] Criminal Procedure Act 2009 (Vic), s420ZN.

^[2] [2010] HCA 20; 241 CLR 237.

^[3] [2004] NSWCCA 98.

^[4] [2011] WASC 326; (2011) 42 WAR 383.

^[5] (2014) 239 A Crim R 460.

^[6] Bright v R (2000) 114 A Crim R 446.

^[7] (1995) QB 324.

^[8] Tasmanian Law Reform Institute, Jurors, Social Media and the Right of an Accused to a Fair Trial (Report, January 2020).

^[9] Ibid, 2–3.

^[10] [2009] VSC 142.

^[11] [2007] NSWCCA 371.

^[12] [2003] NSWCCA 406.

^[13] In NSW, see Criminal Trial Courts Bench Book, [1]–[490]; in Victoria, see Criminal Charge Book [1]–[5]; in Queensland, see Supreme and District Court Bench Books, [23].

^[14] Social Media Perth, This is it. The ultimate list of social media statistics that you need to know in 2020 (22 July 2020) <https://www.smperth.com/resources/2020-social-media-statistics/>.

^[15] Webb & Hay v R [1994] HCA 30; [1994] 68 ALJR 582.

^[16] [2015] WASCA 88.

^[17] Ferguson v R [2009] QDC 158.

^[18] C Flatley, ‘Paedophile Ferguson found not guilty’, The Sydney Morning Herald (online), 6 March 2009, <https://www.smh.com.au/national/pedophile-ferguson-found-not-guilty-20090306-8qhc.html>.

^[19] [2007] WASC 299; (2007) 180 A Crim R 183.

^[20] Ibid, [29].

^[21] [2004] NSWCA 324; (2004) 61 NSWLR 344.

^[22] Ibid, 366, [103].

^[23] R Dioso-Villa, ‘A repository of wrongful convictions in Australia: First steps towards estimating the prevalence and causal contributing factors’, Flinders Law Journal, Vol. 17, 2015, 163; K Roach, ‘The wrongful conviction of indigenous people in Australia and Canada’, Flinders Law Journal, Vol. 17, 2015, 203; G Stratton and A Sigamoney, ‘Why we don’t see race: How Australia has overlooked race as an influence on miscarriages of justice’, Race and Justice, May 2020.

^[24] JB Hunter, Jurors' Notions of Justice: An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions (Report, 2014).

^[25] Ibid, 18.

^[26] See Wong v The State of Western Australia [2011] WASCA 56. Also see Ashley v The Queen [2016] NTCCA 2 (Ashley), in which a note from the jury room indicated that three jurors were biased against the accused.

^[27] [2016] WASCA 136; (2016) 263 A Crim R 449.

^[28] Edwards v R [2000] 116 A Crim R 522.

^[29] Ashley, above note 26.

^[30] Hon Malcolm McCusker AC QC, Inquiry into the Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 (Submission, 28 October 2019) Attachment 1, 6. In Taxquet v Belgium [2009] ECHR 2279, the European Court of Human Rights held that the defendant's right to a fair trial under Article 6 of the European Convention of Human Rights was infringed because the jury did not give reasons for finding him guilty of murder.

^[31] Jury Act 1977 (NSW), s68B prohibits unauthorised disclosures after a trial about the deliberations of the jury.