Criminal trials in New South Wales are most commonly heard before a jury in the District or Supreme Court. For many people, the idea of a jury of 12 community members deciding guilt or innocence is central to how criminal justice operates.
However, in limited circumstances, the law also allows for a criminal trial to proceed without a jury. In these cases, a single judge determines both the law and the facts. Understanding the difference between these two trial formats and when each may apply is an important part of criminal defence strategy.
How Does a Judge-Alone Trial Differ from a Jury Trial?
In a jury trial:
- the judge rules on questions of law, and
- the jury determines the facts and delivers a verdict.
In a judge-alone trial:
- the judge determines both the law and the facts, effectively performing the role of judge and jury combined.
In either scenario, if convicted, a judge alone presides over sentencing.
The procedural aspects of the trial are otherwise largely the same.
Jury Trials
Most criminal proceedings in the District Court and Supreme Court of New South Wales are required to be tried before a jury pursuant to section 131 of the Criminal Procedure Act 1986 (NSW).
All Commonwealth offences heard in the District Court and Supreme Court must be heard by a jury, pursuant to section 80 of the Constitution. In the ACT, can accused may elect to be heard by a judge alone in the ACT Supreme Court for any offence, except sex offences and offences where the victim has died as a result of the alleged conduct.
This legislative requirement reflects the long-standing principle that serious criminal responsibility should be determined by members of the community, acting as impartial fact-finders under the direction of the trial judge.
Judge-Alone Trials
Judge-alone trials are not automatic and only occur where a court is satisfied that proceeding without a jury is in the interests of justice.
Legislative Framework
Judge-alone trials are governed by sections 132, 132A and 133 of the Criminal Procedure Act 1986 (NSW).
Section 132 – Applying for a Judge-Alone Trial
Under section 132, either the accused or the prosecution may apply for a trial in the District Court or Supreme Court to be conducted by a judge alone.
Once an application is made, the court:
- Must order a judge-alone trial if both parties agree to the accused being tried by a Judge alone;
- Can not make the order if the accused does not consent;
- May make the order if the prosecution does not consent, provided it is in the interests of justice to do so;
- May refuse the application if the trial involves factual issues requiring the application of objective community standards;
- Must refuse the application unless satisfied the accused has received advice from an Australian legal practitioner about judge-alone trials.
Importantly, the court may still order a judge-alone trial despite the above factors if there is a substantial risk that a jury trial may lead to offences such as interference with jurors, witnesses or judges under Division 3 of Part 7 of the Crimes Act 1900 (NSW), and that risk cannot be reasonably mitigated by other means.
Timing of the Application – Section 132A
An application for a judge-alone trial must generally be made at least 28 days before the trial date, unless the court grants leave for a later application.
Findings of Fact – Section 133
Where a trial proceeds before a judge alone, section 133 requires the judge to provide reasons for their decision, including:
- the principles of law applied, and
- the findings of fact upon which the verdict is based.
This ensures transparency and allows the decision to be properly reviewed on appeal if necessary.
When Might a Jury Trial Be Unfair?
There are circumstances where a jury trial may be considered unfair or impractical, making a judge-alone trial more appropriate. These may include:
- Extensive media coverage or publicity, which may influence jurors despite judicial directions
- Highly complex evidence or legal issues, which may be difficult for a jury to assess
- Exceptionally long trials, which may place an unreasonable burden on jurors
If the court accepts that these factors threaten the fairness of the trial, it may determine that a judge-alone trial is in the interests of justice.
Is a Judge-Alone Trial Better Than a Jury Trial?
There is no universal answer to whether a judge-alone trial is “better” than a jury trial. The appropriate trial format depends entirely on the circumstances of the case, the nature of the evidence, and the legal issues involved.
Getting Advice on Your Trial
Deciding whether to proceed with a jury trial or seek a judge-alone trial can have a significant impact on the conduct and outcome of a criminal case. This decision requires careful consideration of the evidence, the legal issues involved, and whether a particular trial format best serves the interests of justice in the circumstances.
If you or someone you know has been charged with a criminal offence, it is essential to obtain advice from an experienced criminal defence lawyer at an early stage. A lawyer can assess whether a judge-alone trial may be available or appropriate and guide you through the strategic considerations involved. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
