New Trial By Judge Alone Bill Introduced Into WA Parliament

Tuesday 12 December 2017 @ 10.42 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 (the Bill) was introduced into Western Australia’s Legislative Council on 7 December 2017 (as a Private Members Bill) by the Hon Aaron Stonehouse MLC, where it is currently awaiting further comment and discussion.

The Bill proposes to make amendments to the Criminal Procedure Act 2004 (the Act).

Background

According to the Bill’s Explanatory Memorandum, the Bill proposes to amend section 118 of the Criminal Procedure Act 2004 to introduce an element of personal choice into the legal system and streamline elements of the criminal justice system.

Its aim is to shift the onus of proof away from the defendant and towards the Crown and the court. It also removes a level of discretion which is currently granted to the court by replacing “may” with “must” unless the interests of the justice dictate otherwise.

The Proposed Amendments

Currently, all jurisdictions in Australia with the exceptions of NT, Tasmania and Victoria provide for criminal trials by judge alone in certain circumstances.

The Bill’s Explanatory Memorandum indicates that the aim of the proposed amendments will:

  • reduce average trial times by removing the need to empanel and instruct juries;
  • increase individual liberty by allowing the accused and his or her defence team the option of trial by judge alone;
  • reduce the burden on public money, considering shorter trials can be less expensive; and
  • increase transparency (given that judges are required to set down their reasoning) whereas juries are not.

Currently, under s 118 of the Act, an accused may apply to the court for an order that the trial be by judge alone, but the court still has an over-riding discretion as to whether or not to grant such a request.

In the Second Reading Speech in the Legislative Council he went on to say:

“The Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 seeks to introduce an element of personal choice into our legal system. It seeks to streamline elements of our criminal justice system, and it does so on the back of strong support from lawyers, advocates, and judges. And it seeks, first and foremost, to ensure that Justice remains at the heart of our legal determinations here in Western Australia … Having consulted widely, with lawyers from a range of practices, as well as with judges both serving and retired, I am also convinced that this Bill would save our courts time. A jury trial is often a long and drawn out process. It can’t be adjourned in the way that a judge alone trial can, and returned to in a few days’ time once other matters have been settled … And, importantly, I believe it will cut down on appeals. Not only are juries not required to give their reasons, they are required by law NOT to give them – the deliberations of the jury room remain secret. Judges, on the other hand, are required to give their reasons, which makes them less likely to err.”

According to Mr Stonehouse, the proposed amendments will in no way reduce the right of an accused person to be tried by jury, if that is their choice.

Support for Judge Only Trials

According to the Canberra Times, WA barrister Malcolm McCusker QC has made similar arguments about trial by judge alone in several papers he has written. In one of his papers he was quoted as saying:

"If you were an innocent person convicted of a crime, would you not want to know the reasons for the jury's verdict? … And if you were a victim of a crime which you are quite sure was committed by an accused person, but the jury acquitted, would you not want to know why the jury acquitted?"

The Canberra Times reported that "Mr McCusker said trial by juries invariably took much longer and were therefore more costly to the state and to the accused, as opposed to trials by judge alone."

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Sources:

Trial by judge alone bill set to be introduced into state parliament - canberratimes.com.au

Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 (WA) - Bill and supporting information available from TimeBase LawOne Service.

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