TAS Releases Draft Bill for Judge Alone Trials for Public Comment

Thursday 17 December 2020 @ 2.13 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The Tasmanian Department of Justice has released a draft version of the Criminal Code Amendment (Judge Alone Trials) Bill 2020 for public comment and consultation. The consultation period will close on 12 February 2021.

The Tasmanian Government is seeking public comment on draft legislation to allow for the option of criminal trials to be held without a jury in the Supreme Court of Tasmania.

The Draft Bill

According to a Media Release from Minister for Corrections, Elise Archer, “Tasmania does not currently have the option of trial by judge alone”. Unless the defendant pleads guilty to an indictable offence, they are entitled to be tried before a judge and jury in the Supreme Court of Tasmania, with the jury determining whether they are guilty or not of an offence.

The Minister also noted the introduction of the option for a judge alone criminal trial would also bring Tasmania into line with most other Australian states.

Proposed Outcomes

One of the advantages of judge alone criminal trials, is to provide an alternative to jury trials and assist in helping to reduce court backlogs. They could also allow for better access to justice while taking into account physical distancing requirements as a result of COVID-19.

Minister Archer also commented:

“[that she] will also be looking to consult on the instances in which the option for a criminal trial without a jury may be considered, mainly based on work already commenced in other jurisdictions. This would include that the defendant or the prosecution may apply for a judge only trial; that the accused and any co-accused must consent; that a judge may make an order if it is ‘in the interests of justice’ to do so; and that a judge in a judge only trial can make any finding that a jury can”.

Brief Overview of the Proposed Amendments

As noted on the Tasmanian Department of Justice, Community Consultations website, some of the proposed amendments will amend the Criminal Code Act 1924 (Tas) to provide:

  • that any party to the proceedings may apply for an order for trial by judge alone within two months of the date the accused was committed to stand trial. An application may be considered outside of this expiry period if exceptional circumstances exist;
  • in circumstances where the prosecution are seeking a judge alone trial order the draft Bill requires that this is only available with the consent of the accused;
  • for the consent requirements that a court is to satisfy itself of to be able to make an order;
  • the law and procedure to be applied in a trial by judge alone sitting without a jury.

Comment on the Draft Bill

The Advocate reports that Minister Archer said “judge-only trials exist in New South Wales, Queensland, South Australia, Western Australia and the Northern Territory and ACT” and noted that “judge-alone criminal trials provide an alternative to jury trials and may assist in helping to reduce court backlogs”.

The Minister went on to say that defendants or the prosecution may be allowed to apply for a judge-only trial or a judge may make an order for one if it is in “the interests of justice”.

According to figures published in The Examiner, as of 11 December 2020, the “criminal backlog figure for the Supreme Court as of June 30 was 688. Director of Public Prosecutions, Daryl Coates SC reported that delays had a significant impact for victims, accused, witnesses and the quality of justice”.

Mr Coates wrote to The Advocate in October 2019 explaining:

“that unless he [DPP Daryl Coates SC] is ‘given significant extra resources, the criminal backlog will continue to increase’. The effects of such a large backlog has a deleterious effect on both the overall quality of justice and on individuals who come in contact with the justice system, victims, witnesses and accused alike … As cases become older witnesses' recollections are not as good and this can lead to a higher number of acquittals and discharges …The backlog has, in fact, increased from 382 in 2016-17 to 627 in 2018-19, an increase of 60 per cent”.

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