The number of accused criminals applying to have their cases heard by a judge rather than a jury has increased as new data shows more people have been acquitted in judge-only trials.

Applications for judge-alone trials before the County Court have increased ahead of the temporary measure ending at the end of the month, with 20 applications in the past two months alone, compared to 21 in the first five months of operation.

Director of Public Prosecutions Kerri Judd believes matters involving complex scientific evidence could better suit a judge-alone trial.Credit:Paul Jeffers

While Victoria’s head of prosecutions hasn’t ruled-out supporting judge-alone trials as a permanent option, major legal organisations backed the continued availability of the trials.

“If consented to by the accused, judge-alone trials would help reduce trial times and costs and could also help to improve transparency because of the requirement of judges to provide written reasons for their decisions,” Law Institute of Victoria president Tania Wolff said, warning the right to a trial by a jury was still fundamental.

“We think judge-alone trials should proceed by exception rather than rule.”

Judge-alone trials were introduced in April last year as a temporary measure when jury trials were suspended because of the pandemic. The measure brought Victoria into line with other mainland states, which have the option of running trials without juries.

New data from the Victorian County Court showed six out of the 11 finalised cases – or 54 per cent – have resulted in acquittals.

This included a stepmother found not guilty of abusing her teenage stepson in the 1980s, a rape case and another case where a man was acquitted of trespassing and physically assaulting someone.

In two trials, the accused was found not guilty on the major charge, but pleaded guilty to lesser offences.

In three cases, judges made a guilty finding. But this included cases where there was a not guilty verdict on some charges and guilt on others. Such was the case for Jackson Williams, who was found not guilty of intending to commit a sexual offence, but guilty of the common law assault of a woman he dragged into an alleyway in Melbourne.

Jackson Williams was acquitted of intending to commit a sexual offence following a judge-alone trial. Credit:The Age

The Supreme Court has held two judge-only trials, with one man acquitted of murder but found guilty of manslaughter, and another acquitted of all charges over a non-fatal shooting.

Jury trials were suspended for eight months, but returned in November. Courts now face a huge backlog of about 1700 trials, which will take years to address.

Lawyers say judge-only trials are a good fit for cases that focus on specific points of law or to ensure a fair hearing for a high-profile accused or a notorious crime, such as Claremont killer Bradley Edwards, who was last year found guilty by a Perth judge of murdering two women in the 1990s.

Of the other 46 judge-alone cases in the Victorian County Court, 19 were waiting to start, eight were resolved in a guilty plea before the trial began and another eight cases either were discontinued before the trial started or the accused withdrew their application altogether.

In only one case was an application knocked back, while two defendants appealed the court’s decision to refuse their request to be dealt with by a judge and won.

Criminal Bar Association vice chair Sally Flynn, QC, said barristers preferred to argue their case in front of 12 members of the community, but with the impact of the pandemic causing massive delays, judge-alone trials should continue as a temporary measure.

“In Victoria, we are slow to embrace any erosion of the system of justice that we know and love, trial by jury. Were it not for the extraordinary delays exacerbated by the pandemic, we might never have contemplated trial by judge-alone in this state,” she said.

Ms Flynn said particular cases can better suit a judge-only trial, including when an accused is so high-profile or notorious that their right to a fair trial is in danger, or significantly complex or lengthy trials.

Bradley Edwards (pictured) was convicted of the murders of Ciara Glennon and Jane Rimmer (also pictured) in a judge-alone trial in WA.

In a submission to a Victorian Law Reform Commission inquiry, the Office of Public Prosecution said it didn’t support the continuation of judge-only trials – conceding their experience has “not been an entirely positive one”. But Director of Public Prosecutions Kerri Judd has not completely ruled out judge-only trials.

Ms Judd told The Sunday Age WorkSafe cases, fraud or matters involving complex scientific evidence could better suit a judge alone, though judgments about sexual assault cases were often better left for juries.

“If it involves a judgment, for example, about standards of behaviour, I do think it’s important that you’ve got 12 members of the community making that rule,” she said.

A government spokesperson said jury trials remained a cornerstone of the justice system and a continuation of judge-alone trials would require extensive consultation.

Criminal lawyer Michael FitzGerald said he supported judge-alone criminal trials to become a permanent option in Victoria. Judge-only trials are available in NSW, the ACT, South Australia, Western Australia and Queensland.

Mr FitzGerald, who represented the stepmother acquitted of abusing her stepson, said while there is some evidence of marginally higher acquittal rates over the first 20 years of judge-alone trials in NSW, it was too early to draw conclusions about Victoria.

“The system is effectively an ‘opt-in’ one – in other words, the accused person has, on legal advice, elected to apply for a judge-alone trial (and presumably saw some reason for doing so),” he said.

An analysis of about 15 published applications for judge-only trials, just four – including two sexual assault cases and a dangerous driving causing death matter – were opposed by prosecutors on the grounds it required a judgment about community standards. In most cases, judges said delay was the key reason for approving a judge-alone trial.

In Victoria, 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 also have to give written reasons for verdicts.

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