An application for trial by judge alone under s 132(4) cannot succeed on the basis of an apprehension of racial prejudice against the accused without evidence supporting that apprehension; a judge who acts on such an apprehension brings an extraneous matter to bear and commits reviewable error under House v The King. The nature of the evidence in a sexual assault case, even where the facts are disturbing and uncontested, does not without more justify departure from jury trial, given the availability of jury selection procedures and judicial directions to address prejudice. The determination of whether an accused formed a specific intent involves the application of objective community standards within the meaning of s 132(5), making the jury the preferable tribunal of fact for such questions.
The full text is available to signed-in members, including the 38 later cases that cite this judgment.
1 of the 38 citing cases carry a classified treatment. How each court treated it is available to signed-in members.