Criminal Trial Courts Bench Book — Trial procedure

Below are some of the judicially accepted factors relevant to whether a judge-alone trial is in the interests of justice.

Application for order

The fact an accused has decided, on legal advice, to seek an order for a trial by judge and the accused’s subjective views in dispensing with a jury trial are relevant matters to be considered when determining where the interests of justice lie: R v Stanley at [42]; R v Belghar at [99]; Redman v R [2015] NSWCCA 110 at [13]; R v Simmons (No 4) [2015] NSWSC 259 at [60]; R v Qaumi (No 14) (Judge alone application) [2016] NSWSC 274 at [22].

However, there must be more than a mere stated apprehension, without supporting evidence, that the accused will be prejudiced in a jury trial: R v Stanley at [42]; R v Qaumi at [22]. The judge must assess whether that apprehension is soundly based: R v Belghar at [101].

Efficiency and length of trial

While the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone is a matter that may form “part of the mix of issues” to be considered in a particular case, those efficiencies are of little weight in assessing where the interests of justice lies: R v Belghar at [110]–[111]; R v Qaumi at [24]; R v Gittany [2013] NSWSC 1503 at [43]–[44]; R v Abdaly (No 3) [2022] NSWSC 1511 at [21]. The difficulties that may attend the conduct of a jury trial, such as applications for discharge because of prejudicial evidence, are not generally major factors in the resolution of whether a judge-alone trial is in the interests of justice: R v Qaumi at [25], [27]. However, the obligation on prospective jurors to spend many months away from their normal activities, including their employment, may be a significant matter in a particular case when determining where the interests of justice lie: R v Belghar at [110].

During the period of restrictions as a consequence of the COVID-19 pandemic, efficiency emerged as a particularly relevant factor in ordering a judge-alone trial: see R v Kerollos [2020] NSWSC 1758, R v Jaghbir (No 2) [2020] NSWSC 955 and R v Scott [2021] NSWSC 1004 for decisions relating to judge-alone trials during this period.

Case complexity and comprehensibility

If the evidence expected to be adduced is of such complexity that it could not be comprehended by a jury, or there is something to suggest it will be of such length that a jury will not be able to understand the evidence or follow directions, this will support a judge-alone trial: R v Qaumi at [29]–[31]; R v Belghar at [110]; DPP v Farrugia at [11]. However, in some cases this may be overcome by proper explanation and presentation of the evidence: R v Adams (No 2) [2016] NSWSC 1359 at [43]–[45]; R v Dean [2013] NSWSC 661 at [63].

Reasons for verdict

The interests of justice are enhanced by the giving of reasons. This is particularly the case in trials involving complex engineering, scientific or medical issues. However, reasons remain but one factor to be considered in determining the interests of justice and the weight given to them depends on the issues in the trial: R v Belghar at [112]. A judge-alone trial order should not be made solely because a reasoned judgment is more transparent than a jury verdict or a “correct” result is more likely: DPP v Farrugia at [11].

Community standards

Section 132 gives weight to the importance of the application of objective community standards in the resolution of a range of factual issues. That is a consideration which favours trial by jury, in accordance with underlying principle: DPP v Farrugia at [10]. See also, s 132(5), discussed below.

Media publicity and prejudice

Many applications for trial by judge alone are based on the risk of prejudice arising from material contained in the evidence of the case itself, from the media publicity surrounding the proceedings or from the risk that a jury may interrogate the internet: R v Simmons at [84]. The significance of a risk of prejudice varies from case to case depending on the nature of the allegations, the nature of the defence and the character of the potential prejudice: Redman v R [2015] NSWCCA 110 at [16].

It should be assumed that jurors will undertake their duties in a fair and balanced way, informed only by the evidence adduced at trial: R v Obeid [2015] NSWSC 897 at [68]; R v Jamal (2008) 72 NSWLR 258 at [60]. To justify a judge-alone trial order, media coverage of a case must be “extraordinary” or “emotive”: R v Qaumi at [77].

The lapse of time between publicity and the trial itself is a significant factor in determining the prejudicial effect of media coverage: R v Obeid at [61]; Montgomery v HM Advocate [2003] 1 AC 641 at 673; R v McNeil [2015] NSWSC 357 at [75]. A jury’s memories of prejudicial material will fade with the passage of time: R v Obeid at [65].

Steps can be taken to reduce the impact of publicity and assist the conduct of a fair trial: R v Obeid at [75]. Jurors who might have a detailed recollection of relevant media coverage can be identified during pre-empanelment procedures and excused: R v Qaumi at [78]. Orders can be made to remove prejudicial material from the internet, and jury access to any remaining material can be alleviated by additional measures such as suppressing the accused’s name from court lists and giving certain jury directions: R v Qaumi at [79]–[82]. Section 68C of the Jury Act 1977 also operates to prohibit jurors from making inquiries about trial matters: R v Obeid at [63], [74].

The authorities are divided on whether a jury is the preferable tribunal of fact for judging the formation of intent and whether intention is a matter raising objective community standards: R v Abdaly (No 3) [2022] NSWSC 1511 at [20]; see for example the discussions in Stanley v R at [55]–[59], [60]–[61]; R v McNeil at [93], [95]; AK v State of Western Australia (2008) 232 CLR 438 at [95]; R v King [2013] NSWSC 448 at [48]–[53]; R v Dean at [58]; R v Belghar at [100]; R v Qaumi at [36]–[37]. In R v Simmons at [65] Hamill J applied R v Abrahams [2013] NSWSC 729 at [73]–[77], concluding there is a qualitative difference between the application of community standards to questions such as whether an act is obscene, reasonable or negligent and a factual inquiry as to whether a particular accused formed the necessary intention to constitute a specified criminal offence. His Honour observed that if the Parliament was of the view that intention was one involving the application of community standards, it would have been very easy to include that issue within the non-exhaustive list of matters identified in s 132(5).

Generally, the fact a trial involves issues of credibility is a neutral factor in determining whether it is in the interests of justice for the trial to be by judge alone: R v Qaumi at [39], [42]; R v Simmons at [82]; Redman v R at [14]; R v Kerollos at [44]. Whether it is in the interests of justice for credibility disputes to be determined by a jury is a matter to be assessed on a case-by-case basis and, in some cases, jury determination may be desirable: R v Kerollos at [44]; see also R v McNeil at [102]–[104]; R v Obeid at [93]; R v Mackie (No 2) [2018] NSWSC 1654 at [25]. The training and experience of a judge in deciding matters of credibility putting aside matters of emotion must be assessed against the benefit of the range of experience and training of each of the 12 members of the jury who can discuss together and are required to reach a unanimous verdict. Further, bias, especially unconscious bias, may be less likely to affect a decision made by a group rather than a decision made by a single decision maker: R v McCloskey (No 2) [2019] NSWSC 1176 at [71].

While the question of substantial impairment involves an application of community standards and is generally best suited to determination by a jury, this does not preclude the making of an order for a judge-alone trial: R v Scott at [47]; R v Gokhan Eyuboglu [2019] NSWSC 181 at [13]; R v Kerollos at [51]; R v Scott at [47].