Published by Geoff Harrison | 1 November 2024
An application for a judge-alone trial must be made not less than 28 days prior to the date fixed for trial. If the prosecutor does not consent to a judge-alone trial, a judge can still make an order for a judge-alone trial if it is in the interest of justice to do so. Factors that are relevant to the interest of justice include, if 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 (s132(5) Criminal Procedure Act 1986).
Other Sources:
Cases:
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
R v Belghar [2012] NSWCCA 86 (at [96])
Landsman v R [2014] NSWCCA 328 (Interest of Justice at [69])
Extracted Legislation:
CRIMINAL PROCEDURE ACT 1986 - SECT 132
Orders for trial by Judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a"trial by judge order" ).
(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.
(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the courtmay make a trial by judge order if it considers it is in the interests of justice to do so.
(5) Without limiting subsection (4), the court may refuse to make an order if it considers that 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.
(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.
(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that-- (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means.
CRIMINAL PROCEDURE ACT 1986 - SECT 132A
Applications for trial by judge alone in criminal proceedings
(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.
(2) An application must not be made in a joint trial unless-- (a) all other accused person 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.
(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person's trial, subsequently apply for a trial by a jury.
(4) Rules of court may be made with respect to applications under section 132 or this section.
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