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Recently, New South Wales amended its legislation to provide for judicial discretion when determining, upon request, whether an accused will face a trial by judge alone for indictable criminal matters. This article examines the application of those provisions and comparable legislation in Queensland and Western Australia, revealing an overarching tension as to the correct legal approach. Broadly, there is a dispute over the weight that should be afforded to the accused’s right to choose or whether a presumption of a jury trial exists. Such a conflict arises from the different justifications for jury trials. On the one hand the jury trial was envisaged to protect the rights of accused. On the other, jury trials involve the community in the administration of justice. The acceptable reasons for granting judge alone trials and the grounds for excluding matters from their ambit are applied inconsistently, depending on whether the protection theory or the community participation theory is preferred.
This document has been peer reviewed.