The conviction in Sydney last November of businessman Simon Gittany for the murder of his ballerina girlfriend by throwing her over a balcony in a rage has been regarded as another triumph for bench trial. Justice Lucy McCallum, sitting alone, finished the case in a month while experts thought it would take six weeks with a jury, saving the defence around A$110,000.
As a result, Gittany had enough money to pay for his trial. He did not qualify for legal aid and would not have had sufficient money in the kitty to finance his defence before a jury.
Judge-alone cases have been heard in Australia for the last 10 years and there are now about 75 a year.
At first, both prosecution and defence had to agree to a judge-alone case but now the defence can elect one subject to objections by the prosecution. In this case, because of the financial considerations, the length of the trial and the fact that the main witness for the prosecution would have had to return from America if the trial had not gone ahead promptly, the judge ruled it was suitable for her to hear.
Statistically, Gittany stood a better chance of an acquittal with a bench trial. Although at present there may be too few cases for the figures to be reliable, there are something like 14% more acquittals in trials by judge alone. Public opinion had been strongly against the defendant in this case, and the press thought that while he would have been guaranteed to be convicted by a jury, he at least had a run with a single judge.
I was always told that the best tribunal for a defendant was a single unbiased judge. As it is, lay magistrates are always complaining that defendants are electing trial by jury. In part, the reason for this is that defendants and their lawyers do not think magistrates are unbiased and prefer to take their chance with a jury. How about offering them the option of a trial by a single judge who will be required to give detailed and cogent reasons for their findings?
The Sydney Morning Herald summed things up nicely: ‘Would you want your fate determined by 12 people who were too stupid to get themselves out of jury duty?’.
James Morton is a writer and former criminal defence solicitor