By Adam Cooper and David Estcourt
Barristers and people accused of crimes in Victoria have largely shunned a new law allowing cases to be heard by a judge alone, with lawyers instead expressing their strong faith in the jury system.
Victoria's first judge-only criminal trial is to start on Monday, when a man and woman on drugs charges will have their cases decided by County Court judge Liz Gaynor.
Judge Gaynor will pass a verdict instead of 12 jurors, with jury trials still suspended due to the COVID-19 pandemic.
Judge Liz Gaynor will oversee Victoria's first judge-only criminal trial.
Only two applications have been made for judge-only trials since the Victorian government passed laws allowing them in late April.
The other trial was abandoned when the accused man pleaded guilty.
The suspension of jury trials since March has meant hundreds of accused people have had their cases delayed – many will not be heard until 2021 at the earliest – but Monday's is the only judge-alone trial before the Supreme and County courts.
Accused people can apply for judge-only trials and effectively jump the queue if the court approves, but the legal sector has a strong preference for jury trials.
Barrister Sharn Coombes said even though the pandemic meant a longer wait for trials, accused people preferred being judged by their peers rather than one person from a life in law.
"It is an illuminating statement that accused persons are not opting for judge-alone trials, especially where delay in reaching a trial date is inevitable given the pandemic," Ms Coombes said.
"For those in custody awaiting trial, without taking up this option, speaks volumes about the faith an accused and their representatives have in the jury system."
Other barristers, such as Damien Hannan, said the lukewarm response could be due to the odds of a guilty verdict.
"It is harder for the prosecution to convince 12 people of guilt than one," he said. "While not infallible, a jury trial is considered superior and of less risk to an accused for that very reason alone."
A prosecutor, speaking on the condition of anonymity, said: "I reckon most accused people say, 'I don't want a judge deciding. I might be able to baffle a jury because they're told time and time again about reasonable doubt and they have to be pretty sure I did it, but that's not enough.' But judges are somewhat more astute and more jaded maybe, and probably more willing to say [guilty]."
Tim Marsh, Victoria Legal Aid's chief counsel, favours jury trials but was surprised more accused people had not sought the alternative if in custody and awaiting their day in court.
"I would have thought given the perfect storm of bail reform and delay there could be people who might have a triable case who think they might take a chance with a judge alone," he said.
Victoria Legal Aid chief counsel Tim Marsh is surprised more accused people have not sought judge-only trials.Credit: Contributed
An accused person must consent to a judge-only trial and a judge must rule it is in the best interests of the law for the case to proceed without a jury. Judges will have to give written reasons for verdicts, which some lawyers say could dissuade some from hearing trials.
The principle of community standards means it is also preferable for juries to hear certain trials, such as self-defence arguments or sexual assault cases where consent is the issue, because a community cross-section is well placed to rule on what is reasonable conduct and what is not.
Victoria's legislation for judge-only trials has a sunset clause of October but for now brings it into line with the other mainland states.
Judge-only trials are notable interstate to ensure prejudice is not an issue. In Perth, a judge will soon pass verdict on Bradley Edwards, the man accused of being the Claremont serial killer.
Defence barrister Dermot Dann, QC, said a high-profile defendant or cases with details that would prompt strong emotional responses in jurors could be best heard by a judge alone.
"Those sort of extreme cases you might say a judge alone might be more appropriate," he said.
Jury trials, with jurors adopting strict social distancing, are scheduled to return in Victoria from July 20. However, the courts are closely monitoring the recent spike in coronavirus numbers.
Criminal Bar Association of Victoria chair Daniel Gurvich, QC, said judge-only applications could increase if jury trials did not resume soon.
"That is quite likely, particularly in cases where the accused is in custody, or where they’re on bail but under onerous bail conditions," he said.
Criminal Bar Association of Victoria chair Daniel Gurvich says judge-only trial applications may increase if jury trials do not resume soon.Credit: Paul Jeffers
"Those people will generally want to have their cases heard and a delay of two or three years is unacceptable to them."
Mr Dann said: "At the moment, we're in a bit of a no-man's land in a sense that we don't know that jury trials will come back. That's the hope, but nothing's certain, is it?"
Research in NSW found judge-only trials comprised 7 per cent of 16,000 trials in the state between 1993 and 2014.
There was a 49.5 per cent acquittal rate in judge-only trials, compared to 46.1 per cent in jury trials.
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