The Court granted the accused's application for trial by judge alone under s 118 of the Criminal Procedure Act 2004 (WA), finding that the combination of extensive adverse pre-trial publicity — particularly articles linking the accused to OMCG 'bikie wars', other uncharged criminal conduct, and discontinued sexual offence charges — created a real risk that the accused would not receive a fair trial before a jury, which could not be adequately mitigated by judicial directions. The Court held that neither the complexity of the case nor the OMCG context alone would have justified the order, but the cumulative effect of the prejudicial publicity, including reporting of the judge-alone application itself which risked becoming self-fulfilling, tipped the balance. The Court confirmed that where pre-trial publicity is the basis for a s 118 application, there is more scope to take publicity into account than on a stay application, because the alternative mode of trial can more effectively remove the prejudice without unfairness to the State.
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