Trials by Judge Alone
Available as of right in South Australia and the ACT (although note certain offences excluded in that jurisdiction). In the other three jurisdictions that allow judge alone trials (WA, NSW and QLD) judges have an overriding discretion whether to allow proceed via judge alone trial (although in NSW this can be avoided if both parties consent).
Queensland Legislation
Prosecution/accused may apply to the court for a no jury order: s 614 Criminal Code (Qld). If prosecution apply accused must consent to the making of such order: s 615(2).
Judges decide whether such an order should be made and apply an 'interests of justice' test. That is, the judge will only permit this mode of trial if it is 'in the interests of justice to do so': s 615(1):
'The phrase "interests of justice" is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial ... [t]he interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.' (R v Prisk and Harris [2009] QSC 315, [25]).
Examples are provided in the legislation as to when this mode of trial may be appropriate, including if the trial would be unreasonably burdensome on a jury because of its length/complexity or both (s 615(4)(a)); because there is a possibility of offences against jury members (s 615(4)(b)); or because there has been signficiant pre-trial publicity (s 615(4)(c)).
The legislation also provides a test of when a judge alone trial would be inappropriate. That is where the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness: (s 615(5)).
If the judge's identity is known 'special reasons' must be demonstrated for this order to be made: s 614(3). Principles guiding the interpretation of whether special reasons exist include:
'(a) The expression must always be construed in light of its context
(b) The application of the expression is not to be confined by precise limits or rules.
(c) Circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons.
(d) Special reasons are reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular weight. There must be some factor over and above the interests of justice.
(e) But, that does not mean that the case must be extremely unusual, uncommon or exceptional.' (R v Prisk and Harris [2009] QSC 315, [9]).
In the event of a judge alone trial - the judge (unlike a jury) must provide reasons for their decision: s 615C.
Judges decide whether such an order should be made and apply an 'interests of justice' test. That is, the judge will only permit this mode of trial if it is 'in the interests of justice to do so': s 615(1):
'The phrase "interests of justice" is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial ... [t]he interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.' (R v Prisk and Harris [2009] QSC 315, [25]).
Examples are provided in the legislation as to when this mode of trial may be appropriate, including if the trial would be unreasonably burdensome on a jury because of its length/complexity or both (s 615(4)(a)); because there is a possibility of offences against jury members (s 615(4)(b)); or because there has been signficiant pre-trial publicity (s 615(4)(c)).
The legislation also provides a test of when a judge alone trial would be inappropriate. That is where the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness: (s 615(5)).
If the judge's identity is known 'special reasons' must be demonstrated for this order to be made: s 614(3). Principles guiding the interpretation of whether special reasons exist include:
'(a) The expression must always be construed in light of its context
(b) The application of the expression is not to be confined by precise limits or rules.
(c) Circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons.
(d) Special reasons are reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular weight. There must be some factor over and above the interests of justice.
(e) But, that does not mean that the case must be extremely unusual, uncommon or exceptional.' (R v Prisk and Harris [2009] QSC 315, [9]).
In the event of a judge alone trial - the judge (unlike a jury) must provide reasons for their decision: s 615C.
Queensland Case Examples
Trial by judge alone permitted
R v Clough [2008] QSC 307 (murder) - based on complexity of evidence and ultimately in the interests of justice
R v Schloss (unreported, QDC 5 November 2008) (child sex offences) - prejudicial publicity R v SAA [2009] QDC 5 (sex offences against child) based on complexity of charge but ultimately in the interests of justice R v Ferguson [2008] QDC 158 (sex offences against child) - prejudicial publicity. |
Trial by judge alone refused
R v Brady [2009] QDC 48 (unlawful wounding) 'amorphous concerns about the nature and cost of jury trials do not, in my view, present sufficient grounds'
R v Pretorious [2009] QDC 414 (sex offences) R v Prisk and Harris [2009] QSC 315 (murder) R v Fardon (Rape) - see comments in R v Fardon [2010] QCA 317 R v Kissier [2010] QDC 242 – upheld in R v Kissier [2011] QCA 223 (burglary & AOBH) R v Patel [2012] QSC 419 (Manslaughter). |
For further discussion of trials by judge alone see: Jodie O'Leary, 'Twelve Angry Peers or One Angry Judge: An Analysis of Judge Alone Trials in Australia' (2011) 35 Criminal Law Journal 154 and Jodie O'leary, ' Inspiring or Undermining Confidence? Amendments to the Right to Judge Alone Trials in the ACT' (2011) 10(3) Canberra Law Review 30.