Will My Trial be Before a Magistrate, a Judge or a Judge and Jury?


In Western Australia, all criminal charges are either summary offences that can be dealt with in the Magistrates Court by a Magistrate, or more serious offences that cannot be dealt with in the Magistrates Court and must, instead, be dealt with on indictment in a superior court (District Court or Supreme Court) before a Judge or a Judge and Jury. Some offences are known as “either way” offences, which means that it will be heard summarily unless the prosecution or defence apply for the matter to be heard on indictment.

If you have been charged with a summary offence, your trial will be in the Magistrates Court before a Magistrate. This means a Magistrate will hear all of the evidence and determine whether you are guilty or not guilty. If you are found guilty, the same Magistrate will sentence you.

Summary Offences That Are Heard in the Magistrates Court include:

If you are charged with a serious offence that has to be dealt with in the District Court or Supreme Court, your trial will ordinarily be before a jury. A jury is a group of 12 people, randomly selected from the community, who will listen to all of the evidence and determine whether you are guilty or innocent of the charges. A jury has no role in determining what someone is sentenced to and, if you are convicted, the Judge will impose the sentence on you.

In some circumstances, an accused person may apply for a trial by judge alone. This would mean that there is no jury. An advantage of having a trial by judge alone is that a jury is not required to give any reasons for their verdict (and cannot be asked to explain their reasons for it), whereas a judge must provide detailed reasons.

A trial by judge alone is not an automatic right in Western Australia, and an application must be made to the Court.  In order to be granted a trial by judge alone, you must satisfy the court that it is in the interests of justice to do so. In determining whether that is the case, the court may consider:

  1. The complexity or length of the trial and whether it would be unreasonably burdensome to a jury;

  2. Whether the jurors may be threatened or intimidated;

  3. Whether there has been significant publicity.

A court will not allow a trial by judge alone if the trial will involve a factual dispute that requires the application of objective community standards, for example, in cases where the jury would be required to resolve whether something is indecent, dangerous, reasonable or negligent.

If you need advice about criminal charges and advice about which court your trial will be heard in, please contact us on (08) 9500 8915 to discuss your options.