Lawyers warn against judge-only rape trials

Juryless rape trials could backfire on victims, leading criminal defence lawyers say, claiming any accused rapist with a public profile, such as Bruce Lehrmann, could be advantaged by being heard by a judge only.

Bruce Lehrmann may benefit from a judge-only trial, experts say.

Juryless rape trials could backfire on victims and benefit defendants, leading criminal defence lawyers say, claiming any accused rapist with a public profile, such as Bruce Lehrmann, could gain a great advantage in a trial being heard by a judge only.

After a landmark blueprint was handed to the nation’s attorneys-general urging them to further investigate juryless rape trials, the lawyers also said removing a jury from a specific trial was “anti-democratic” and indicated a distrust in the general population.

Top-ranked criminal lawyer Karen Espiner said some high-profile defendants would benefit from being heard before a judge only, as jurors would not be able to carry preconceived opinions of them into a courtroom.

“Juries are told to be impartial … to put everything they’ve heard that is not evidence out of their minds because when they come to … being a juror, with the experience they’ve got, they sometimes would have prejudged matters. A judge is much more likely to follow the legal direction of disregarding all that … because they are legally trained to do so,” she said.

“Take (former Liberal staffer) Bruce Lehrmann. Interestingly, and somewhat ironically, he would be best placed with a judge-alone trial because it’s very likely pre-trial publicity will make it unlikely for him to get a fair trial with a jury, and difficult to find 12 people that can remain impartial.”

Ms Espiner, a partner at Hugo Law Group, said jury trials were the “cornerstone of our criminal justice system” and without them defendants would not get a fair trial. “If the jury system were to be replaced by a judge-alone system, there would be just as much if not more criticism about the legal process, because you would have just one person who’s making the decision.

“Rightly or wrongly, judges are often criticised for being elitist and out of touch with community standards. The good thing about the jury system is that it involves 12 people picked completely at random from the community. Each juror brings with them their own life experiences. It also means you have 12 people who can bounce ideas off each other when it comes to considering evidence.”

The blueprint, commissioned by federal Attorney-General Mark Dreyfus’s department and the Australasian Institute of Judicial Administration, says rape myths, which “include suggestions such as that the complainant … acted or dressed in a way to encourage sexual activity” can have significant impacts on a jury.

The report discusses Scotland’s plans to implement a juryless rape trial pilot, which have been met with fierce opposition from senior members of the legal profession. However, the researchers cite the South African model – which has sexual assault trials heard by a judge and a two-person lay panel – as a “successful example of an alternative approach to the traditional adversarial trial”.

Veteran criminal defence lawyer Paul Blake said removing juries from rape trials was operating on the “presumption that populism is going to work for the defendant, which is not the case”. “I’ve seen juries that just stare at my guy,” said Mr Blake, a partner at KPT Legal, adding it would be anti-democratic to host juryless trials for sexual assault matters.

“The problem with this proposal is the message this change sends to the community about how the justice system views their judgment across this broad category of alleged offending. This … says their views are no longer wanted, and that the random people drawn by chance to judge their fellows are now not to be trusted.”