Judge-alone trials

Section 131 of the Criminal Procedure Act 1986 requires criminal proceedings in the Supreme or District Court to be tried by a jury. The exception to this is judge-alone trials — the procedural requirements for which are set out in ss 132–133.

This chapter provides an overview of the relevant statutory provisions and case law applying to judge-alone trials as well as the general principles of procedural fairness and bias. Unless otherwise stated, the section numbers below refer to the provisions of the Criminal Procedure Act 1986.

[1-050] Section 132 — Orders for a judge-alone trial

Last reviewed: September 2023

An accused or the prosecutor may make an application for a judge-alone trial: s 132(1). Section 132(2)–(6) set out the manner in which the court should address an application for a trial by judge order made under s 132(1):

  • The court must make a trial by judge order if the accused and prosecutor agree to the accused being tried by a judge alone: s 132(2).

  • If the accused does not agree to a judge-alone trial, the court must not make such an order: s 132(3).

  • If the prosecutor does not agree to a judge-alone trial, the court may make such an order if it is considered in the interests of justice to do so: s 132(4).

  • The court may refuse to make a trial by judge alone order if it considers the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness: s 132(5).

  • An order can only be made if the court is satisfied the accused has received legal advice as to the effect of such an order: s 132(6).

  • The court may make an order in circumstances where there is a risk of a commission of an offence involving an interference with a witness, judge or juror. This subsection expressly operates “despite” s 132A: s 132(7); Alameddine v R [2022] NSWCCA 219 at [23]. See [1-055] Section 132A — Applications for trial by judge alone in criminal proceedings.

Although the accused person carries an evidentiary onus in relation to an application for a judge-alone trial, they are not required to displace any “presumption” of a jury trial. The court should not give particular weight to the fact that, absent an application for a judge-alone trial, the accused will be tried by jury, nor should it assume either form is more desirable than the other. The question for the court is whether it is in the interests of justice to make the order: DPP (NSW) v Farrugia [2017] NSWCCA 197 at [9]; R v Belghar [2012] NSWCCA 86 at [96]; R v Stanley [2013] NSWCCA 124 at [42].

Interests of justice — s 132(4)

Section 132(4) requires a binary decision, which depends upon an evaluation of potentially conflicting considerations including the interests of the parties and larger questions of legal principle, the public interest and policy considerations: DPP v Farrugia at [8]; Landsman v R [2014] NSWCCA 328 at [69]. Once it is found to be in the interests of justice to order a judge-alone trial, the court should make the order: Brown v DPP (NSW) [2018] NSWCCA 94 at [12]–[13].

Factors relevant to the interests of justice

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].

Community standards — s 132(5)

Where an alleged offence involves objective community standards, Parliament has made it clear that it may be preferable in the interests of justice that there be a trial by jury: R v Belghar at [100]. Section 132(5) provides that the court may refuse to make a judge-alone order if it considers the trial will involve a factual issue requiring the application of objective community standards, including an issue of reasonableness, negligence, indecency, obscenity, or dangerousness.

While the fact issues will arise requiring the application of objective community standards is a matter militating in favour of trial by jury, it is not determinative. The prevailing question is whether it is in the interests of justice to make an order: R v Qaumi at [116].

Intention

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).

Credibility

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].

Substantial impairment

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].

[1-055] Section 132A — Applications for trial by judge alone in criminal proceedings

Last reviewed: September 2023

Section 132A sets out the requirements for applications for trial by judge-alone in criminal proceedings. Where an application under s 132 for a judge-alone trial is made less than 28 days before the trial date, leave of the court is required: s 132A(1).

If the Crown opposes the application, the Crown should give careful consideration to opposing an application for leave to apply out of time, particularly where the application is made on the day fixed for trial if there is any possible perception of “judge shopping”: DPP v Farrugia [2017] NSWCCA 197 at [12]; R v Perry (1993) 29 NSWLR 589 at 594. The appearance of judge shopping can be dispelled by the provision of an explanation for the delay that discloses some reason for making the application, other than knowing the identity of the trial judge: Alameddine v R at [20]. If the Crown consents to a judge-alone application, this consent will be a strong factor in favour of the grant of leave. However, it is not determinative, and the court may still refuse leave under s 132A: Alameddine v R [2022] NSWCCA 219 at [12], [23]–[24], [26]–[27].

An application must not be made in a joint trial unless:

(a) 

all other accused persons apply to be tried by a judge alone, and

(b) 

each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial: s 132A(2).

An accused person or prosecutor who applies for an order under s 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury: s 132A(3).

[1-060] Section 133 — Verdict of a single judge

Last reviewed: September 2023

Section 133 provides requirements for verdicts handed down by a single judge. The requirements of s 133 were summarised by the High Court in Fleming v The Queen (1998) 197 CLR 250 and in the CCA in W v R [2014] NSWCCA 110 at [108]. A judge trying criminal proceedings alone may make any finding that could have been made by a jury on the question of the accused’s guilt. Such a finding has the same effect as a jury verdict: s 133(1).

Obligation to give reasons — s 133(2)

Any judgment in a judge-alone trial must include the principles of law applied and findings of fact on which the judge relied: s 133(2). The obligation to give reasons in a judge-alone trial is imposed by statute and by common law, the latter being a broader requirement: s 133(2); Gardiner v R [2023] NSWCCA 89 at [92]; AK v State of Western Australia (2008) 232 CLR 438 at [89]–[98], [101]; Garay v R (No 3) [2023] ACTCA 2 at [137].

The judge must state findings on the main grounds critical to the contest between the parties, and on which the verdict rests and expose the reasoning process by linking the relevant principles of law to the facts as found: Fleming v The Queen at [28]; Douglass v The Queen [2012] HCA 34 at [8]; Toohey v R [2020] NSWCCA 166 at [204]–[208]; R v BK [2022] NSWCCA 51 at [137], [141]; R v Lazarus [2017] NSWCCA 279 at [149]; Wade v R [2018] NSWCCA 85 at [103].

Ordinarily this will involve a trial judge identifying the elements of the offence, summarising the crucial arguments of the parties, resolving any issues of law and fact which needed to be determined, explaining any resolutions arrived at, applying the law to the facts found, and explaining how the verdict followed: AK v State of Western Australia at [44], [85]; DL v The Queen (2018) 266 CLR 1 at [33]; [81]–[82]. In a circumstantial evidence case, the judge should address any defence hypotheses consistent with innocence: R v Becirovic [2017] SASCFC 156 at [271].

The obligations on the judge to give reasons are often too onerous to be discharged by what may, effectively, be a single draft. Section 133 requires the preparation of well-ordered, comprehensive reasons. This task can rarely be satisfactorily accomplished in an ex tempore fashion, which is apt to result in error: Gardiner v R [2023] NSWCCA 89 at [98].

The approach of adopting prosecution submissions where they coincide with the analysis of the trial judge and are comprehensive, may be sufficient to satisfy the terms of s 133(2) where the submissions comprehensively and cogently analyse the central issues at trial, however it is preferable to articulate a separate analysis: Garay v The Queen (No 3) [2023] ACTCA 2 per McCallum CJ at [153].

Exchanges with counsel during addresses do not form part of the reasons. Even where a judge provides substantial reasons for rejecting an argument during the course of addresses, the judge must address that argument in the formal reasons if the argument is not entirely lacking in substance: AK v State of Western Australia at [14]–[16].

Warnings — s 133(3)

The judge is to consider any warnings required to be given to a jury: s 133(3). It is sufficient if, as a matter of implication, it can be seen from the judgment that the judge took into account the requisite warnings. Properly construed, what the judge must take into account is the subject matter of any required warning: GBB v R [2019] NSWCCA 296 at [33]; Filippou v The Queen (2015) 256 CLR 47 at [52]. Section 133(3) only relates to warnings, not every direction given: W v R at [111]; Filippou v The Queen at [52]. The section’s purpose may appear to be subverted where the judge’s findings precede the warnings: Toohey v R at [9]. It is, however, important that the reasons of the trial judge be read as a whole and not taken to be the order in which the trial judge approached the task: Gardiner v R [2023] NSWCCA 89 at [234].

Interaction between s 133 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 31

Section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act) permits the court to enter a special verdict at any stage in proceedings provided:

(a) 

the defendant and prosecutor agree the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment,

(b) 

the defendant is legally represented and

(c) 

the court, after considering that evidence, is satisfied the defence is established.

In a judge-alone trial, the judge is open to proceed, pursuant to s 31, without formally considering the applicable legal principles and explaining the matters referred to in s 29 of the MHCIFP Act. Although the court is exercising the powers and functions of the tribunal of fact, it retains the powers and functions of the tribunal of law, one of which is the function provided by s 31: R v Tonga [2021] NSWSC 1064 at [99]–[100].

A s 31 hearing is not a “trial” and it is therefore unnecessary to comply with s 133. However, there is a general law requirement in performing a judicial function to expose reasoning: R v Sands [2021] NSWSC 1325 at [4]; R v Jackson [2021] NSWSC 1404 at [7]; R v Lailna [2023] NSWSC 48 at [24].

[1-065] Procedural fairness

Last reviewed: September 2023

The “bedrock rule” for judge-alone trials is the necessity for the judge to ensure that a fair trial takes place and to ensure procedural fairness extends to both the prosecutor and the defence: DPP (NSW) v Wililo [2012] NSWSC 713 at [52]. While one of the advantages of a judge-alone trial is that it may be more efficient, excessive telescoping of the procedures in such cases can lead to a sense of disquiet or unfairness on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented: Antoun v the Queen [2006] HCA 2 at [28]. The procedural fairness obligations in a judge-alone trial will depend upon the circumstances. For example, in Gardiner v R [2023] NSWCCA 89, an appeal from a judge-alone trial, the applicant was denied procedural fairness in circumstances where the judge took into account the applicant’s demeanour in the dock in an unspecified manner to make adverse findings as to his credibility without giving notice: see [134], [144]–[145].

If a matter is to be taken into account which is not evidence (such as demeanour in the dock), then procedural fairness requires the judge to draw it to the attention of the parties in a timely manner so the affected parties have an opportunity to address that matter: Gardiner v R at [134], [137]. Where a finding is to be made as to credit, based on a difference in evidence between what an accused states and what is put on behalf of an accused, the judge will usually be obliged to raise any inconsistency with the parties: Gardiner v R at [156]–[160]; R v Abdallah [2001] NSWCCA 506; Hofer v R [2019] NSWCCA 244 at [120]–[132].

A judge should not sit silent throughout the trial without raising issues and technical problems until final conclusions: Vakauta v Kelly (1989) 167 CLR 568 at [26]. While it is preferable for a judge to express tentative or preliminary views to the parties to allow them to address on such matters, care must be taken not to transgress into an impermissible indication of prejudgment or apprehended bias: see Antoun v The Queen and [1-070] Apprehension of bias below.

Where an accused is self-represented at their trial, additional procedures may need to be adopted to ensure procedural fairness: see Self-represented accused at [1-800].

[1-070] Apprehension of bias

Last reviewed: September 2023

Particular care must be taken to avoid an apprehension of bias in judge-alone trials. A judge should recuse themselves if a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The question is one of possibility, not probability: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]–[7]; applied in the judge-alone trial context in Antoun v The Queen [2006] HCA 2 at [1], [51], [80]–[85]. However, it is necessary to keep in mind that a judge should not automatically or lightly accede to an application that they are subject to a reasonable apprehension of bias and so recuse themself too readily from hearing a matter: Livesey v NSW Bar Assn (1983) 151 CLR 288 at 294; Johnson v Johnson (2000) 201 CLR 488 at [45]; McIver v R [2020] NSWCCA 343 at [72] per Davies J; cf Antoun v The Queen at [35].

[1-075] Commonwealth offences

Last reviewed: September 2023

All Commonwealth offences on indictment must be tried by jury: s 80 of the Constitution (which provides that “[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury […]”); Alqudsi v The Queen (2016) 258 CLR 203 at [120]. Verdicts for Commonwealth offences must be unanimous: Fittock v The Queen (2003) 217 CLR 508 at [23].

[1-080] Additional resources

Last reviewed: September 2023

The Judicial College of Victoria’s publication “Judge alone trials — proceedings” provides a summary of the helpful practical advice provided by Justice McCallum (as her Honour then was) on 13 May 2020, during a Webinar entitled “Judge Alone Trials: A NSW Judge’s Reflections”:

1. 

Formality — it is important to maintain the same atmosphere in court as if a jury were present. Relaxing the normal sense of decorum may lead to a laxness in the performance of proper procedure. The importance of this may be doubled in cases that proceed electronically as the institutional authority of the court will need to be conveyed to distant participants.

2. 

Publicity — the media reporting, particularly in electronic trials, will be intensive and tend to emphasise the salacious. For that reason, care should be taken with the release of exhibits and it might be worth considering having the media enter into an undertaking regarding the materials released.

3. 

Judgment writing — start from the beginning with the very first witness and ruling. Being disciplined from the outset will allow a judge to create the chronological bare bones of a judgment and serve as a memory prompt. Be certain to state enough to demonstrate a knowledge of the principles that apply. Try to carve out time after trial to go “on verdict” and take a few days to prepare the reasons for judgment, this should be prioritised and a judge should not proceed directly to the next case.

4. 

Addressing counsel should be done with care during their final address. It should be done respectfully, fairly, openly and without arguing about the submission being put.

5. 

It is important to be mindful of the heavy burden that being both the judge and the jury will entail, reach out to colleagues for support.

Extracted from Judicial College of Victoria, “Judge-alone trials/proceedings”.