This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Criminal Trials by Judge Alone (ACT)


A criminal defendant in Canberra was recently acquitted of seven serious sex offences in a case run without a jury. While the usual procedure for sexual offences is to hold a jury trial, this has been varied due to the COVID-19 pandemic. For the period of the COVID-19 emergency, defendants facing charges that are usually excluded from the election for a trial by judge alone will have the opportunity to make such an election.

Election for trial by judge alone

In the past, the ACT allowed defendants charged with sexual assaults to elect to be tried by a judge alone. However, in recent years, the ACT Government decreed that sexual-assault matters were to be decided by a jury, ending the option of electing for a judge alone trial in these matters. Sexual assault matters joined murder and other serious charges on a schedule of offences excluded from judge alone election.

COVID-19 emergency period

The COVID-19 pandemic led the ACT government to amend the Supreme Court Act 1933 to provide that election for judge-alone trials would be returned for “excluded offences” for the “COVID-19 emergency period”, which it defined to run from 16 March until 31 December 2020.

Case study

The defendant mentioned above was contesting six charges of sexual intercourse with a child and one charge of committing an act of indecency on a child. He made the election for trial by judge alone, appearing before Justice Mossop in the ACT Supreme Court. He was acquitted on all counts.

Why a trial by judge alone?

The decision of whether to be tried by judge and jury, or by judge alone, is an idiosyncratic one. There are many, varying views on what is the best course in any particular case and with any particular defendant.

Ultimately, when a defendant is eligible to make an election, it is always a choice for the defendant, after advice from his or her lawyer. The decision revolves around perceptions of how jury members, as opposed to judges, go about approaching the evidence before them.

In a jury trial, while the jury is the judge of the facts, the judge is the judge of the law. The judge gives the jury directions as to how it must apply the law to the facts. What happens in the jury room remains the greatest mystery of our criminal-justice system as jurors are not allowed to disclose what occurred during deliberations, even after the trail has concluded.

When a judge-alone election is made, the judge becomes the judge of the facts and the law. The judge must give themselves the many quite technical legal directions they would otherwise give to a jury. In the case mentioned above, directions took up the first half-dozen pages of Justice Mossop’s judgment, including capturing in classic terms how decision-making should be done in court.

“As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material,” he declared. “I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will …

“I must determine the relevant facts … without acting capriciously or irrationally.”

Suspicions that not all jurors can bring that cold, clinical and dispassionate mindset to court – especially in child-sex allegations – are often behind the election for a judge-alone trial, when that option is available.

Fine distinctions must be made by the jurors, or the judge, when assessing the guilt or innocence of an accused.

Justice Mossop began his conclusion by saying, “The decision that I have ultimately reached is that, although the complaints made by the complainant appear credible and it is likely that the complainant was sexually interfered with by the accused, I have what I consider to be a reasonable doubt about the accuracy of the complainant’s evidence.”

He went so far as to say “there must be grave suspicion surrounding the conduct of the accused toward the complainant” but, taken collectively, a number of doubts led him to find that he was “not able to accept the accuracy of the complainant’s evidence to the high standard that the law requires”.

Some have suggested that many potential jury members would not be capable of such fine distinctions.

In the ACT, from as early as New Year’s Day 2021, the choice of judge-alone trials will again be removed from a defendant facing child sex charges or other charged excluded from judge alone election.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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