Judge alone

Unlike in the Commonwealth jurisdiction (which requires that trial always be by jury, per section 80 of the Australian Constitution), section 132 of the Criminal Procedure Act 1986 permits the court to order that trial be by Judge alone if the accused person consents, and it is “in the interests of justice to do so”.

The default position in New South Wales has always been that trial should be by jury.

Unlike in the Commonwealth jurisdiction (which requires that trial always be by jury, per section 80 of the Australian Constitution), section 132 of the Criminal Procedure Act 1986 permits the court to order that trial be by Judge alone if the accused person consents, and it is “in the interests of justice to do so”.

This means that the accused has a “veto” over the question of a trial being by judge alone. Whilst the accused bears an evidentiary onus, it is not necessary for the accused to “displace” an assumption that the trial be by jury (R v Belghar [2012] NSWCCA 86).

One of the key matters the court will need to consider in determining the interests of justice is the extent to which directions can resolve the matters raised in the application. In that respect, “The law assumes, and trial judges are required to assume, that jurors will follow the directions of law given and that they are followed” (R v Stanley [2013] NSWCCA 124).

Coates

Coates v Western Australia [2009] WASCA 142

“But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.”