Canberra · Trials
Jury vs judge-alone trials in the ACT.
The ACT lets an accused choose, for many offences, to be tried by a judge alone rather than a jury. It is a genuine strategic decision, and most sites barely mention it. Here is how it works.
- Jury12 jurorsJuries Act 1967 (ACT)
- Judge-alones 68B electionSupreme Court Act 1933 (ACT)
- ExcludedSchedule 2 offencesMurder, sexual offences, others
- RevertOnce, before arraignmentOne election only
The two ways a serious ACT matter can be tried.
A trial in the ACT Supreme Court is heard either by a jury of 12 or, where the offence allows and the accused elects, by a judge sitting alone. A jury decides the facts on the evidence and the judge's directions. A judge sitting alone decides both the facts and the law, and gives reasons for the verdict.
How the judge-alone election works.
Under s 68B of the Supreme Court Act 1933 (ACT), an accused can elect to be tried by a judge alone. The election must be made in writing. It has to be supported by a certificate from a legal practitioner stating that the practitioner advised the accused about the election and that the accused made it freely. It must be filed before the accused or the accused's lawyer knows the identity of the trial judge, and within the time the rules allow.
An accused who has elected judge-alone can go back to a jury at any time before arraignment. But it is a single choice: an election that is made and then withdrawn cannot be made again. Where there are co-accused, all of them must elect judge-alone, and none can be charged with an excluded offence.
Which offences cannot be tried by judge alone.
Schedule 2 of the Act lists the excluded offences. They are the most serious offences, and they must be tried by a jury. The list includes murder, manslaughter, culpable driving causing death, the sexual assault offences and sexual intercourse without consent, acts of indecency, child sexual offences, and industrial manslaughter. For those offences there is no judge-alone election.
When a judge-alone trial can be the right call.
There is no default answer. A judge-alone trial can suit a matter that turns on a technical or legal defence, or on detailed documentary evidence, where a reasoned decision by a judge is an advantage. A jury can suit a matter with a strong human or fairness dimension. The decision depends on the charge, the evidence, and the defence being run, and it should be made on advice, matter by matter.
Frequently asked.
Can I choose a judge-alone trial in the ACT?
For many offences, yes. Section 68B of the Supreme Court Act 1933 (ACT) allows an accused to elect a judge-alone trial. The election is in writing, supported by a legal practitioner's certificate, and filed before the trial judge is known.
Which offences cannot be tried by a judge alone in the ACT?
The excluded offences in Schedule 2, which include murder, manslaughter, culpable driving causing death, sexual assault and sexual intercourse without consent, acts of indecency, child sexual offences and industrial manslaughter. These must be tried by a jury.
Can I change my mind after electing a judge-alone trial?
You can revert to a jury at any time before arraignment, but only once. An election that is made and then withdrawn cannot be made again.
Is a judge-alone trial better than a jury?
Neither is better in the abstract. A judge-alone trial can suit a technical or documentary case where a reasoned decision helps. A jury can suit a case with a strong fairness dimension. It is a decision to make on advice for the particular matter.
How many jurors are on an ACT jury?
Twelve, under the Juries Act 1967 (ACT), with the trial able to continue with as few as 10 if jurors are discharged.
Weighing a jury against a judge-alone trial?
A confidential first conference. The brief is read. The realistic options are set out. Speak to Aaron Kernaghan directly before you decide anything.
Request a confidential consult 0421 717 019