On an application for trial by judge alone under s 118 of the Criminal Procedure Act 2004 (WA), the court adopts a neutral starting point with no presumption in favour of jury trial. The five standards in s 118(6) are non-exhaustive examples; the broader principle is that cases involving factual issues upon which there may be legitimate scope for differences of opinion reflecting community values may favour trial by jury. Pre-trial publicity, even if extensive, will not justify trial by judge alone unless it is of a nature to encourage prejudgment, prejudice or hostility that cannot be adequately addressed by judicial directions to the jury.
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