This Chapter sets out the principles of selecting a jury and considering applications for judge alone trials.

The prosecution is allowed three challenges without restriction to stand aside a potential juror for each accused.

The prosecution may also challenge a juror for cause. This right of challenge should only be exercised if there is reasonable cause for doing so.

The prosecution’s right of challenge should never be exercised so as to attempt to select a jury that is not representative of the community, including as to age, gender, gender identification, sexual orientation, ethnic origin, religious belief, marital status or economic, cultural or social background. The most important concern is to secure a fair and impartial jury.

Most trials in the District Court and the Supreme Court are heard before a judge and jury. However, in certain circumstances, an order may be made for a  judge alone trial.

If the accused applies for a judge alone trial but the prosecutor does not agree, it will be for the judge to determine whether it is in the interests of justice to make the order.

In determining whether to agree to a judge alone trial, prosecutors must have regard to:

1. the important role of juries, as representatives of the community, in the administration of criminal justice
2. whether the trial will involve a factual issue that requires the application of objective community standards, such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness
3. any evidence in support of the accused’s request
4. the timing of the application, that is whether it was made within the statutory time limit or whether leave to make the request out of time is required, particularly if the application is made shortly before or on the day fixed for trial
5. whether any potential prejudice may be adequately addressed through the process of jury selection or by instructions to the jury by the trial judge
6. whether the trial involves highly technical or complex expert evidence 
7. public health emergencies that prevent jury trials.

Predictions as to the likelihood of conviction by either trial by jury or trial by judge alone should not be considered in determining the prosecutor’s position.

Prosecutors must assess any request for a judge alone trial on its merits and make submissions against the making of such an order in appropriate cases.