The right of election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT) may be revived where a trial date is vacated, and the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) requires that decisive weight be given to the accused's right to make that election where there is no prejudice to the Crown. The test is not whether proceeding without the election would result in an unfair trial, but whether the accused has the right to make the election as part of the holding of a fair trial.
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