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Judge-alone trials and their rise to popularity
Words by Emily Cousins
South Australia is one of the few Australian jurisdictions that entitles an accused to elect for their trial to be heard by a Judge sitting alone (rather than a jury).
Even in South Australia, the default position for a trial in the District Court or Supreme Court is for the trial to be heard by a jury.
A jury consists of twelve members of the community and is selected by random ballot.
Anyone who is on the electoral roll can be called up for jury service. The selection process from there, really is like a lottery.
The accused has the right to ‘challenge’ jurors during the selection process, and this right is often used by Counsel acting on behalf of the accused.
When a jury hears a trial, they are the deciders of the facts.
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The Judge presiding over the trial directs the jurors on the legal issues (for example how to and how not to use certain pieces of evidence) but the jurors are the ones to decide whether the accused is guilty beyond reasonable doubt.
A jury can return either a unanimous verdict (all agreeing) or (in some circumstances) a majority verdict (10 or more agreeing).
Once the jury has determined the matter, the verdict is provided to the Court by the foreperson – guilty or not guilty.
Juries are not required to provide reasons for their verdicts.
Alternatively, when a Judge hears a trial sitting alone, the Judge is the decider of the facts.
This means that the Judge must direct themselves on the legal issues, but then also decides whether the accused is guilty beyond reasonable doubt.
The main difference with a Judge sitting alone, is that the Judge must provide reasons for their verdict.
This can be particularly important for an accused where there are significant legal complexities to their defence.
In the wake of Covid, other states around the country have implemented trials by Judge alone.
This has prompted questions about the jury process and whether it remains fair to an accused person.
In her recent article for The Conversation, Is it possible to have a fair jury trial anymore?, Arlie Loughnan discusses the move to Judge alone trials and the advantages of this new system in New South Wales, as well as other improvements that could be made to ensure the legitimacy of jury trials.
It’s interesting to see South Australia leading in this area. Maybe other states in Australia could learn a thing or two from our state!