Trial By Judge Alone: Lessons From The Pending Trial of Cardinal Pell

The recent swarm of publicity associated with the pending criminal charges faced by Australia's leading member of the cloth, Cardinal George Pell, has created cause for alarm on the issue of whether, in light of such publicity, the Cardinal can truly expect to be fairly tried by a jury. If it were the case that an accused person had a right to trial by Judge alone at their request, it would surely be the case that such concerns would be a non-issue. Instead, the controversial question that may loom for Victorian Courts is whether the said media hype surrounding Cardinal Pell has given cause for the Court to grant a temporary or permanent stay of proceedings. These discussions have agitated a far broader discussion across the various Australian States that do not have a statutory regime for trial by judge alone at the election of an accused. 

The Western Australian Statutory Regime

In Western Australia, an Accused person can apply for a trial by judge alone pursuant to section 118 of the Criminal Procedure Act 2004 (WA) (the CPA). In making an application pursuant to the CPA, it will be incumbent upon an Accused person to establish that it is "in the interests of justice" that a trial be heard by Judge alone, as opposed to being heard by a Judge and Jury (the prima facie position). Further, section 118(5) of the Act sets out a number of factors such as the length of the trial or the likelihood of juror's being threatened by a third party as matters that may agitate a finding that a trial by judge alone for a particular matter is in the interests of justice. Conversely, section 118(6) provides that a Court may refuse to grant an application where the trial upon which the application relates would involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

So what exactly does this mean? In simple terms, it means that trials by Judge alone are not for the asking. Whilst it is a relevant (and important) factor that an Accused person wishes to be tried by Judge alone, there are other competing factors that are relevant to the Court's assessment of such an application. The recent decision of the majority of the Court of Appeal in LFG v The State of Western Australia [2015] WASCA 88 sets out a number of accepted (and not accepted) basis for applying for a trial by Judge alone. In that case, Justice Buss (as he then was) noted at [337] that It may be 'in the interests of justice', within s 118(4), to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:

(a) pre-trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside (The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);

(b) the nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance (Bell v The State of Western Australia [No 2] [2014] WASC 260); and

(c) the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact.

Conversely, the application to which LFG related was made on the basis of the State having previously applied (successfully) to lead evidence of the Accused's propensity to commit sexual offences. On that basis, it was submitted that he was unlikely to be tried fairly by the jury in the circumstances where they would be considering highly prejudicial material relating to the accused's character. The application for trial by judge alone was therefore, in the submission advanced on behalf of the accused, the only mechanism by which the accused could hope to cure such prejudice. The majority of the Court of Appeal (Martin CJ dissenting) took the view that any potential prejudice aroused by the admission of the propensity evidence could be cured by judicial directions, that being a fundamental premise of the common law. It follows that applications for trial by judge alone are unlikely to be granted on the basis of prejudicial material being before the jury.

So where does this fit in the context of recent media discussions?

It is important to note, in the context of the recent Pell publicity, that were the Cardinal to make an application for trial by judge alone in this State, his prospects of success would be fair (in light of the various decisions on s 118). The question is, does the statutory regime in Western Australia need fixing? First, were there to be more trials be heard by Judge alone, one can certainly imagine the significant cost savings to the State for the conduct of a trial when the State does not have to reimburse 12 - 18 jurors for their time in sitting at trial. So if for no other reason, the financial benefit to the State could be significant in the context of such a legislative change. Secondly, whilst the appellant's case in LFG was that a jury would not be able to put aside matters of prejudice flowing from the leading of propensity evidence, no forensic support was provided for that submission. This was despite the wealth of juror research, both domestically and internationally, that provides overwhelming support for the fact that juror's do not follow what are commonly referred to as "limiting directions". For instance, when juror's are told that they can consider propensity evidence to infer such propensity as a relevant matter but they are not to decide the outcome of the case on that evidence alone, the available research for similar scenarios indicates that juror's do not follow such directions (despite their best intentions). Similarly, in the age of the internet, a real question looms over whether juror's can absolutely be expected to not conduct their own research on matters arising in the course of a trial. 

How should WA move forward in light of all of this?

In light of all of this, it's perhaps time that legislative changes be made to afford an accused person the right to elect whether to be tried by Judge alone or before a Judge and a Jury. For the cynical folks, all that needs to be said is that it'll save an enormous amount of taxpayer funds. For those that believe in the right to a fair trial, the opportunity of a trial by judge alone can avail an accused person of any anxiety relating to a perceived injustice when highly prejudicial material is before the jury. The fact of the matter is, it shouldn't take a media scrum to provide a basis for an application for trial by judge alone - There are far more fundamental concerns of an accused that arise in trials every day around the State and these concerns should not be overlooked.