Judge or Jury Trial?

Judge or Jury Trial?

By Joseph Harb, Solicitor at LY Lawyers.

One of the most important decisions that defence lawyers need to make in the trial process, is whether their client’s innocence or guilt is decided by a Jury or a Judge.


The test under s. 132 of the Criminal Procedure Act


How will a court determine whether there is a judge or jury trial in my case?

Section 132 of the Criminal Procedure Act NSW provides that an accused charged with an indictable offence tried in the District or Supreme Court of NSW can ask for an order from the presiding judge that they be tried before a judge sitting alone. The judge is to consider the “interests of justice” in deciding whether to make the order.

This provision has been used in cases where defendants think that adverse media coverage will make it impossible for them to get a fair trial before a jury. There have also been applications made by accused persons for a trial by judge alone in cases where the evidence is complex and/or the trial will be lengthy.

If both the defence and prosecution consent to a Judge alone trial, the Judge must preside over the matter as Judge and Jury.


Are Judges more likely to find Not Guilty?


Statistics reveal that in NSW that you are likely to be acquitted if your matter is decided by a Judge rather than a Jury. In fact between 1993 and 2011, defendants were acquitted of all charges in 55.4 per cent of judge-alone trials compared with 29 per cent of jury trials.

Some of the main reasons that Judge alone trials can produce a better outcome for the defendant is that judges are less guided by emotions and prejudices and are better placed to approach their decision more objectively than a jury made up of all segments of the community.

Further a Judge alone trial would be a good option where there are highly complicated technical issues to one of the parties’ case, which a judge would more easily understand than a jury of laypeople.

One of the more obvious benefits for the defendant in a Judge alone trial is the reduced legal costs, as Jury trials last longer because of the Jury selection process and the deliberation process.


The Gittany Trial


One of the most high profile cases to date whether the defendant was granted a judge alone trial was the matter of Simon Gittany. The Judge in that case ruled that Mr Gittany’s matter should be heard by a Judge only because he had been refused legal aid and a judge alone trial would be two weeks shorter. This avoided the risk he would run out of funds and have to represent himself.

Having a trial by jury also has its benefits. Twelve people must be convinced of a person’s guilt in order to convict. For a defendant, there is safety in numbers. Getting a majority of twelve people or all twelve to agree to convict would be harder for the prosecution than it would be convincing one person (Judge alone).

The decision whether to have a matter decided by a Jury or Judge alone is one of the most important decisions defence lawyers need to consider. While each method has its benefits, there are also disadvantages to both methods.