6. Judge-alone trials

6.1 General

Parliament has introduced legislation allowing for trials to be heard and determined by a judge alone in particular circumstances.
A party to proceedings in respect of a crime may apply to the court for an order to have the trial determined by a single judge in place of a trial by jury (s361AA(1) of the Criminal Code). Applications may only be made within the three-month period immediately after the accused has been committed to the Supreme Court, unless the court is satisfied the applicant has provided a reasonable explanation for the delay.

A prosecutor may only apply for a trial to be determined by a single judge in place of a trial by jury if the accused person has given informed consent (s361AA(2)(b)(i)) or if there is a significant risk that an offence under s63 of the Juries Act 2003 may occur if the accused person is tried by a jury (ss361AA(2)(b)(ii) and (8)).

The court must not make an order for a judge-alone trial unless it is satisfied that:

• The accused has given informed consent to the making of the order (unless the application is made by the Crown on the basis of s63 of the Juries Act 2003 (s361AA(8))
• It is in the interests of justice for the order to be made
• If the accused has been charged with more than one crime or offence and the offences are to be tried together, the order is to relate to all charges
• If there is more than one accused person to be tried together for the crime, an application has been made, under this section in relation to the crime, by each accused person to be tried together and that each accused has given informed consent to the making of the order (unless the application is made by the Crown on the basis of s63 of the Juries Act 2003).

The accused will have given informed consent if the court is satisfied that they understand the nature and effect of the proposed order, and they have been provided with legal advice, or have been offered or advised to obtain such legal advice, and they have refused (ss361AA(6)(a) and (6)(b)).

Where an accused person has been provided with legal advice in relation to the making of an order the practitioner who provided the advice must certify in writing that the legal advice was provided, and they believe that informed consent has been freely given (s361AA(6)(c)).

An accused has an evidentiary onus to establish that it is in the interest of justice that there be a Judge alone trial; see MJL v Tasmania [2022] TASSC 70 at [93].

In determining whether it is in the interests of justice to make an order for a judge-alone trial, the court is to take into account whether the relevant crime(s) involve an element or a question of fact that is more appropriately determined by a jury to ensure that community standards and opinions are reflected. This includes, but is not limited to, questions of reasonableness, dangerousness, indecency, negligence and obscenity. The court may take into account any other matter or circumstance that it considers relevant (s361AA(7)(b)) and inform itself in any manner it thinks appropriate (s361AA(4)).

Prosecutors should carefully consider whether any crime intended to be included on the indictment contains a question or element of fact that is best determined by a jury in order to ensure the criminal justice system is appropriately reflective of community views and standards. Examples of crimes where a judge-alone trial may not be appropriate include:

• Manslaughter
• Indecent assault
• Committing an indecent act with a child or young person
• Procuring a child or young person for sexual abuse
• Communications with intent to procure a child or a young person
• Indecency
• Crimes involving possession, production or distribution of child exploitation material
• Dangerous driving
• Dangerous driving causing grievous bodily harm
• Dangerous driving causing death
• Failure to report the killing of a person
• Crimes involving a consideration of self-defence, defence of another or defence of property
• Crimes involving a consideration of the defence of honest and reasonable mistake

This list is not intended to be exhaustive.

In addition, in determining whether to oppose an application for a judge-alone trial, prosecutors should have regard to the following:

• The important role of juries, as representatives of the community, in the administration of justice. Where the credibility of a witness arises as an issue in the trial, this factor may appear in favour of a jury trial; see MJL v Tasmania supra [87] to [89]
• Whether the application was made within the statutory time limit or whether there is a reasonable explanation for the delay
• Whether any potential prejudice may be adequately addressed by directions to the jury by the trial judge
• Whether the trial involves highly technical or complex evidence
• The length of the trial
• The efficiency of the prosecution process.

The interest of justice includes not only the interest of the parties, but also the public interest. There is a public interest in maintaining the proper functioning and integrity of the criminal justice system as administered by the Courts (see LGF v The State of Western Australia [2015] WASCA 88).

It may be in the interest of justice to order a trial Judge alone trial instead of a trial by or before a jury, if, there is a real and substantial (as distinct from remote) risk that:

• Pre-trial publicity has created a public climate of hostility or prejudice to the accused which the jury may be unable to properly put aside
• The nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable to properly consider its relevance and significance.
• The jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at trial or properly understanding difficult legal principles in the context of complicated questions of fact; see LGF v The State of Western Australia supra; and MJL v Tasmanian supra at [98]

The approval of the Director or Deputy Director must be sought before an application for a judge-alone trial is consented to by the Crown.

On the rare occasion in which there is a real risk that an offence under s63 of the Juries Act 2003 may be committed if a matter is tried by a jury, an application by the Crown for a judge-alone trial can only be made with the authorisation of the Director of Public Prosecutions.

If an application for a judge-alone trial is made and then withdrawn before it is determined, an accused is not permitted to make a further application unless the court is satisfied that exceptional circumstances exist (s361AA(10)).

Where an order is made for a judge-alone trial, it can only be revoked if the court is satisfied the information on which the order was made was false or misleading, or otherwise considers there are reasonable grounds to revoke it (s361AA(11)).

If a judge-alone trial is conducted, in accordance with s371 of the Criminal Code Crown counsel will address the court orally and will not provide written submissions (s361AA(9)).

If an order for a judge-alone trial is made, the judge must give reasons for the verdict, including the principles of law applied and the findings of fact relied upon (s383 of the Criminal Code).

6.2 Appeals in relation to judge-alone trials

Section 361AB of the Criminal Code allows a party to proceedings to appeal to the Court of Criminal Appeal a decision of a court to make, or refuse to make, an order for a judge-alone trial.

Where a judge-alone trial has occurred, the Crown can appeal against a decision on a question of law or fact, or a verdict on the grounds that it is unreasonable or cannot be supported having regard to the evidence (s401(2)(bb)).