In New South Wales, criminal trials are typically decided by a jury. However, under certain circumstances, a trial may proceed without one. This type of proceeding—known as a judge-alone trial—is governed by specific legal conditions and must be approved by the court.

When Is a Judge-Alone Trial Allowed?

A judge-alone trial can occur if:

• Both the prosecution and the accused consent to it.
• The court determines it is in the interests of justice, even without the prosecution’s agreement.
• There is a significant risk of jury interference, such as potential tampering or undue influence.

Legal Framework: Section 132 of the Criminal Procedure Act 1986 (NSW)

Mutual Agreement

If both the defendant and the prosecution agree to a judge-alone trial, the court must approve the request.

Interests of Justice

Even if the prosecution does not consent, the court may still order a judge-alone trial if it believes this will best serve the interests of justice.

Jury Interference

If there is a real risk that the jury could be improperly influenced, the court may decide that a judge-alone trial is the most appropriate course of action.

Legal Advice Requirement

The accused must have received legal advice on the nature and consequences of a judge-alone trial. The court must be satisfied that this requirement has been met.

Community Standards Exception

The court can refuse a judge-alone trial if the case involves issues, such as indecency, obscenity, or reasonableness, that require the application of community standards, where a jury’s perspective is considered crucial.

No Automatic Right

It’s important to note that a judge-alone trial is not a guaranteed right. Approval is subject to judicial discretion and strict legal criteria.

Application Process

To apply for a judge-alone trial in NSW, the accused must meet the following requirements:

• Form Requirement: Use the official Form 74AJ.
• Filing Deadline: Submit the application at least 28 days before the trial date, unless the court grants permission for late submission.
• Co-Accused Agreement: All co-accused must consent, if applicable.
• Affidavit Evidence: Must be included to support the application.
• Judicial Discretion: The court will assess risks of jury bias, case complexity, and the significance of legal issues.

Judge-alone trials offer an alternative path for resolving criminal matters in NSW but are only available under specific legal and procedural conditions.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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