Trial By Judge Alone: is it possible and if so, is it preferable?

In recent years, there have been numerous high profile criminal defendants across Australia that have been the subject of intense media coverage, including Gerard Bayden-Clay, Adrian Bayley, Robert Hughes and Cardinal George Pell.In Western Australia, there was a veritable media frenzy during the trials of Lloyd Rayney, Francis Wark and now, the alleged ‘Claremont serial killer’ Bradley John Edwards.

Invariably, the accused in these cases is discredited, encumbered by ignominy and highly unlikely to attract any sympathy – until and unless, of course, they are found not guilty, in the style of Lindy Chamberlain.

In an age of search engines and social media, the likelihood of prospective jurors being exposed to prejudicial publicity in the lead-up to a trial has never been greater.1 The spectre of an “unfair” trial is therefore a very real fear for a person who intends to plead not guilty in a high profile case.

Trial by judge alone, however, is not available in all jurisdictions. For example, it is not offered in Victoria – and will therefore not an option for Cardinal George Pell – and it is not available if an accused has been tried with a Commonwealth offence (such as drug importation, or anti-terrorism laws).

In Western Australia, it is only available in limited circumstances and an applicant must convince the Court that it is in the interests of justice to have a trial by judge alone.

Interestingly, either the Accused or the DPP can make the application, but the Court will only allow the application if the Accused consents to the application made by the DPP.

The Court will also only allow a trial by judge alone before the identity of the trial judge is known (so an Accused doesn’t go ‘judge shopping’) and if Court accepts that:

  • The length, or complexity, of the trial would be unreasonably burdensome; or
  • There would
    likely to be some form of intimidation or threat to the jurors.

Further, a Court will not allow a trial by judge alone if the Court believes that the trial involves a matter that needs the application of an objective community standard, such as the consideration of what constitutes negligence, dangerousness or indecency.

The fact that there is no automatic right to trial by judge alone remains controversial. Presently, WA Liberal Democrats MP Aaron Stonehouse has drafted a private members bill, which is proposing amendments to the Criminal Procedure Act 2004. The amendments effectively reverse the existing process. That is, following a request from an Accused, a Court must make an order for a criminal trial to be judge alone, unless the Court was satisfied it was not in the interests of justice.

In the case of the State of Western Australia v Francis John Wark2, Mr Frank Wark made the application on the grounds that:

  • the extent and the nature of pre-trial publicity had created prejudice against Mr Wark;
  • Mr Wark was of the view that he would not receive a fair trial; and
  • Pursuant to section 118 (6) of the Act, the trial would not involve a factual issue that requires the application of objective community standards, such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

In that case, the Court upheld the application, holding that Mr Wark had been the subject of considerable publicity regarding both the Hayley Dodd disappearance and an unrelated matter. Accordingly, the Court held that it would have been very difficult to safeguard a jury against lingering prejudice and it would therefore lead to an unfair trial.   

There are a number of obvious benefits of trial by judge alone. Most notably, it means that a judge has to give reasons for his or her verdict. This is in contrast to a jury decision, whose deliberations remain secret. Accordingly, a judge’s analysis of the evidence, the application of the law and the reasons for the decision are transparent. This therefore means that an Accused can more easily appeal a verdict – as occurred in the case of State of Western Australia v Francis John Wark.

Notably, however, recent research suggests that there is little clear empirical evidence to suggest judges are significantly more capable than jurors of putting prejudicial information to one side in decision-making3.

Accordingly, the decision to make an application for trial by judge alone should be made after careful consideration with the accused’s lawyers and will very much depend on the facts of each individual case.

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2. [The State of Western Australia v Wark [2017] WASC 154]
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