The criminal justice system in Australia is based around the concept of impartiality and getting a fair trial. Although this sounds great in principle, there are some circumstances that have the potential to place the integrity of the judicial system in question.
If you are facing a trial for a criminal matter and you feel you won’t be able to undergo a fair process, your lawyer can take action, depending on the circumstances of the trial and the charges you are facing. It’s important that all criminal proceedings are conducted in a fair manner, both to ensure an unbiased outcome, and to maintain public confidence in the criminal justice system as a whole.
What circumstances could lead to an unfair trial?
There are a number of different situations that are recognised as having the potential to negatively affect the fairness of a criminal trial. If your lawyer can successfully put forward the argument that the outcome of a trial will be affected under normal circumstances, you may be granted a trial under special circumstances, which usually involves the case being heard by a single judge instead of a jury.
Media attention and publicity
A large amount of media attention and publicity can be one of the biggest contributors to an unfair trial, especially in the case of jury trials. In a high profile case, it will be extremely difficult if not impossible to find jurors who haven’t already read about the circumstances surrounding it in the media and formed their own opinions about the matter.
This situation can be exacerbated in cases like the upcoming trial of Omarjan Azari, who has been accused of plotting a terrorism attack after he was arrested in highly publicised anti-terrorism raids in Sydney last year. Due to the widespread media attention and the controversial nature of the case it will be extremely difficult to find a jury that doesn’t contain at least some members who are aware of the case and may have already formed opinions as to the defendant’s guilt or innocence, and may therefore be unable to make an impartial decision based on the evidence alone.
In 2013, Sydney man Simon Gittany was granted a judge-alone trial for the murder of his fiancée, because the level of media coverage and publicity surrounding the circumstances of the case made the likelihood of a fair trial by a jury extremely low.
Although Mr Gittany was ultimately found guilty of murdering his fiancée, the idea behind a judge-alone trial is that with the amount of legal training judges have, they are more able to put any publicity surrounding the case out of their minds and make a ruling based on the evidence alone than a jury of ordinary people with no previous legal training.
Complex circumstances and evidence
It is also possible to successfully argue that a trial by jury would be unfair if the evidence and circumstances surrounding the case are particularly complicated. If the case relies largely on very technical or scientific evidence it may be difficult for a jury to fully understand the legal significance of the evidence, which could lead to a miscarriage of justice and an unfair trial.
With developments in technology allowing for new types of forensic evidence and other processes that have not been used previously, it is easy for juries to be misled and to believe evidence that is presented as irrefutable fact when a more experienced person may be aware that even technology is fallible and ‘experts’ can be wrong.
Lengthy trial
In cases where a trial is expected to go on for an extremely long period of time, it can be considered to be an unfair burden on a jury, and together with other circumstances, may in practice contribute to a judge-alone trial being granted.
In many cases, many factors can contribute to the potential for an unfair trial. Complex trials are often lengthy in nature, and there may also be publicity surrounding the person accused, which could be prejudicial. The more factors that are at play, and the more concerning each one of them are, the more likely an application for a judge-alone trial will be successful.
What can your lawyer do to help you avoid an unfair trial?
If you are facing a trial by jury, and there is a chance that you will not be able to get a fair trial, your lawyer may be able to apply for a judge-only trial on your behalf. This means that instead of a jury, a judge or justice will hear the evidence for both sides and make a decision themselves.
The first step to a judge-alone trial is to apply to the court for a trial by judge order. To do this yourself, you will need to be able to demonstrate that you have sought advice from an Australian lawyer beforehand. You can only be tried in a judge-alone trial if you agree to it. If you don’t, nobody can force you to forego your right to a jury trial.
An experienced criminal lawyer can assist you to secure a judge-alone trial by completing the necessary documentation, negotiating with the prosecution and arguing the application before a court if necessary. It can be quite difficult to get an application for a judge-alone trial granted, so it’s important that you find a good lawyer, who has experience in these types of applications and in criminal trials generally.
Given the fact that Australia rather bizarrely allows uncorroborated single witness testimony as the only evidence I would always apply for a judge alone trial. It beggars belief that people can be convicted on this basis. Whatever happened to beyond reasonable doubt? There is always reasonable doubt when it’s one persons word versus another. I am amazed these cases even get to court! (that poor woman from prisoners being a case in point) We definitely have become an Idiocrasy. There seems to be this notion in Australia that the more repulsive the crime is, the more guilty you are, before the case even commences! The crime convicts you, not the evidence. What a joke.
I was convicted in a judge-alone trial of indecent assault for touching breasts of a mentally ill female with neither witnesses nor forensic evidence. Police did not swab complainant’s breasts for my DNA nor under my finger-nails for complainant’s DNA. I allege his Honour was biased against me because I have coloured skin and Pakistani inter alia ethnicity and that this is malicious prosecution and wrongful conviction as in Wood v. NSW. His Honour was acting as a chief prosecutor hurling questions at me and had a very aggressive demeanor towards me, thus violating his judicial oath and the role of a judge. I complained about his Honour to NSW Judicial Commission but this was dismissed. I also allege the appellate judge who confirmed my conviction was a biased feminist activist.
How did someone come to the conclusion that a Judge alone can do the same job as a Jury panel? The fact there are so many Appeal Courts to sort out Judges mistakes should have raised alarm bells. Obviously if there are to be trials without a Jury they should be decided by a majority decision of three Judges. And why is a Jury required to make a decision at the end of the trial and can’t be discharged until they do so whereas a Judge substituting for a Jury can adjourn the trial for as long as he/she likes to come to a decision? The system of trial by Judge alone in Australia needs to be reviewed.