Chapter 3
The existing court process for sexual violence cases

Key differences between trial by jury and trial by judge-alone

3.70There are a number of differences between jury trials and trials by judge-alone. Principal among these is that in a jury trial, the jury is the “fact-finder” – that is, the jury is responsible for determining the relevant facts of the case and applying the law to reach a verdict of guilty or not guilty. The jury may be discharged from giving a verdict if it cannot agree.210 The role of the judge is to oversee and control the conduct of the trial in a general way. In a trial by judge-alone, by contrast, the judge takes on the role of fact-finder. All the evidence is presented to the judge and he or she is responsible for determining the facts and delivering the verdict.211
3.71Another key difference is that a jury is not required to and does not give reasons for its verdict. In a judge-alone trial, by comparison, the court is required to give reasons for its decision.212

3.72Jury trials are usually longer and more procedurally complex than trials heard by judge-alone. There are detailed rules in the Evidence Act 2006 about what a jury is and is not permitted to hear in a criminal proceeding. At times the jury will be required to leave the courtroom so that the judge and counsel can discuss whether evidence should be presented on certain matters. A judge sitting alone, by comparison, is expected to be able to hear all the evidence and distinguish between what is relevant and what is irrelevant in a determination of the facts. This explains why different procedures apply for determining admissibility of evidence pre-trial in a judge-alone trial versus a jury trial (see “Decisions about admissibility of evidence sought to be adduced at trial” above).

3.73Additional procedural steps apply in a jury trial. A trial callover hearing must take place in which counsel discuss key trial management information.213 The jury must be empanelled. The jurors are given a short briefing by the judge about what to expect and their basic obligations as jurors. Jurors can be excused or discharged in certain situations, while the expectation is that every juror will remain on the jury for the full length of the trial.
210Juries Act 1981, s 22(3)(b).
211Criminal Procedure Act 2011, s 106.
212Criminal Procedure Act 2011, s 106(2).
213Criminal Procedure Act 2011, s 87.