Trial by jury or judge alone in NSW?

Two ways to try a serious charge.

Serious indictable charges are tried in the District or Supreme Court, and they can be tried in two ways. The usual way is before a jury, twelve members of the public who decide the facts and deliver the verdict. The alternative is a judge-alone trial, where a single judge decides both the law and the facts and gives a reasoned verdict. Each has advantages, and choosing between them is a real strategic decision.

This is general information, not advice on your matter. Whether a judge-alone trial is available and wise depends on the charge, the issues, and the evidence, and it is a decision to make with careful advice. The choice can shape the whole trial, so it is not one to make lightly or without understanding the trade-offs.

How is a case tried by default?

The default for a serious indictable charge is trial by jury. A jury of twelve is empanelled, hears the evidence, receives directions on the law from the judge, and then retires to decide whether the prosecution has proved the charge beyond reasonable doubt. The jury delivers a verdict of guilty or not guilty but gives no reasons, and its deliberations are secret.

The jury system reflects a long tradition of having serious criminal charges decided by ordinary members of the community rather than by the state alone. For many cases it remains the standard mode of trial, and for some charges a jury trial is required and a judge-alone trial is not available at all. The default position, unless something is done to change it, is a jury.

When can you have a judge-alone trial?

An accused can apply for a judge-alone trial. If the prosecution consents, the court will usually make the order. If the prosecution does not consent, the court can still order a judge-alone trial where it is satisfied that it is in the interests of justice to do so. So the accused can seek it, but cannot always have it as of right; the court has the final say where the prosecution objects.

There are limits. Some offences must be tried by jury and cannot be tried by judge alone, and the court considers whether the trial will involve issues, such as community standards, that are better decided by a jury. A judge-alone trial is an option to be assessed case by case, not a switch the accused can simply flip. The application, and the reasons for it, have to be made out.

Why choose a judge-alone trial?

The main attraction of a judge-alone trial is a reasoned verdict from a legally trained decision-maker. Where a case turns on complex or technical evidence, or on a difficult point of law, a judge may be better placed than a jury to work through it, and the judge must give reasons that can be examined on appeal. Where there has been prejudicial publicity, a judge is also expected to be less influenced by it than a jury might be.

A judge-alone trial can suit a case that is legally complex, document-heavy, or at risk of emotional prejudice, where a dispassionate, reasoned decision is an advantage. The reasons requirement also gives a clearer basis for appeal if the verdict is wrong, because the judge has explained the path to it. For the right case, these are real advantages.

Why keep a jury trial?

A jury has its own advantages for the defence. Twelve people must be satisfied beyond reasonable doubt, and a jury may bring a common-sense scepticism, or sympathy, that a judge applying the law strictly might not. In a case with strong emotional appeal for the defence, or where the defence wants the community's judgment rather than a lawyer's, a jury can be the better forum.

A jury also gives no reasons, which cuts both ways. There is no reasoned path to attack on appeal, but equally the jury is not bound to explain a merciful verdict. Whether a jury or a judge suits a particular defence depends on the facts, the issues, and the kind of case being run, which is exactly why the choice deserves careful thought with advice.

How do you decide which way to go?

The decision turns on the nature of the case. Legally or technically complex cases, cases at risk of prejudice, and cases where a reasoned verdict helps the defence tend to favour a judge. Cases with emotional appeal for the defence, or where community judgment is an advantage, tend to favour a jury. There is no general rule; it is a judgment about this case, these issues, and this evidence.

Because the choice can shape the whole trial and cannot easily be undone, it is one of the more important tactical decisions in a serious matter, and it is made with the benefit of full advice once the brief and the issues are known. It sits alongside the other early decisions in an indictable matter, such as the plea and the charges, that our note on the first thirty days discusses.

Primary sources: trial by judge alone is governed by sections 132 and 133 of the Criminal Procedure Act 1986 (NSW), which allow an accused to apply, permit the court to order a judge-alone trial in the interests of justice where the prosecution does not consent, and require the judge to give reasons. NSW decisions on judge-alone applications are searchable on JADE.

Common questions

Can you choose a judge-alone trial in NSW?

An accused can apply for a judge-alone trial under section 132 of the Criminal Procedure Act. If the prosecution consents, the court usually makes the order. If the prosecution does not consent, the court can still order it where satisfied it is in the interests of justice. Some offences must be tried by jury and cannot be tried by judge alone.

What is the default mode of trial for a serious charge?

Trial by jury. For a serious indictable charge, a jury of twelve is empanelled, hears the evidence, receives directions on the law, and decides whether the charge is proved beyond reasonable doubt. The jury gives a verdict but no reasons, and its deliberations are secret. Unless a judge-alone order is made, the default is a jury.

Why choose a judge-alone trial?

The main attraction is a reasoned verdict from a legally trained decision-maker, which suits cases that are legally complex, technical, or document-heavy. A judge is also expected to be less influenced by prejudicial publicity than a jury, and the reasons requirement gives a clearer basis for appeal if the verdict is wrong.

Why keep a jury trial?

A jury requires twelve people to be satisfied beyond reasonable doubt and may bring common-sense scepticism or sympathy. In a case with emotional appeal for the defence, or where community judgment is an advantage, a jury can be the better forum. A jury also gives no reasons, so there is no reasoned path for the prosecution to defend on appeal.

Who decides whether a trial is by judge or jury?

The accused can apply for a judge-alone trial. With the prosecution's consent the court usually grants it. Without consent, the court decides whether a judge-alone trial is in the interests of justice. Some offences must be tried by jury. So the accused can seek a judge-alone trial but does not always have it as of right.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 30 August 2026. It is general information and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The law changes and procedure varies from case to case. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More commentary by Aaron Kernaghan.

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