02 Aug Trial by Jury and Trial by Judge Alone
When charged with an indictable offence under state criminal law a person in South Australia has a right to trial by a jury of his or her peers.
If a person is charged with a Commonwealth Indictable Offence then any trial must be before a jury as the Federal Constitution guarantees that all trials are to be trials by jury. The South Australian Constitution has no such guarantee, and therefore in certain circumstances an accused can elect for a trial before a Judge sitting without a jury.
Indictable offences under South Australian Criminal Law are divided into two categories, major indictable and minor indictable. For a summary of the different categories of offences please refer to the earlier blog here.
When a person is charged with a minor indictable offence, they will ordinarily be tried in the Magistrates Court. However, they can elect to be tried in the District Court before a jury. If they elect to be tried in the District Court, then they must proceed before a jury and cannot elect for Judge alone.
If a person is charged with a state major indictable offence, they will usually proceed to be tried before a jury of 12 people in the District or Supreme Court.
However, an accused may elect to have a state major indictable offence matter heard by a Judge sitting alone, rather than a jury.
The accused has a right to elect for a trial before a Judge sitting without a jury, but this right is subject to qualifications:
- Where there is more than one accused in a trial, all accused must make the election before the order can be made; and
- The accused must make the election in accordance with the rules of the Court.
The rules of the Court provide that an accused must have received appropriate legal advice about the election and the election must be made within a certain time period.
The Court has the power to extend the time period within which an election may be made.
The primary concern when the Court considers granting an extension of time within which to elect for a trial by Judge alone is to guard against any perception of “forum shopping” on behalf of the accused. Forum shopping occurs where an accused person endeavours to have a certain Judge hear their matter.
If an accused applies for an extension of time to elect for trial by Judge alone once it is known which Judge is to hear the matter then often the application will be refused, or a different Judge will then be allocated.
However, sometimes the matter will proceed before the same Judge when there can be no suggestion of forum shopping. This can occur when a lengthy trial before a jury has mis-trialled for some reason when it is almost finished. In those circumstances, prosecution and defence can agree that the trial take place before the same Judge who has already heard the evidence in an effort to prevent additional costs being incurred by the accused and the State.
If you or someone you know is facing criminal charges and wishes to receive advice about election for trial by judge alone, then please contact our office.