Gittany's financial struggles were not the only reason his trial was heard by a judge, without a jury, costing him an estimate of $280,000. Photo: Sahlan Hayes
One of the puzzles of the Simon Gittany case was why such a high-profile murder trial was heard in the Supreme Court without a jury. The oft-reported explanation was Gittany was short of funds, but that's not the entire story.
With a jury, the trial was optimistically anticipated to last for six weeks, whereas a judge alone could canter through it all in four weeks. At the commencement of the trial the accused had $170,000 remaining in his solicitor's trust account. At one point the Legal Aid Commission had been told that almost $223,000 was held in the trust account, a factor that was relied on in deciding Gittany failed the assets test for a grant of aid.
The estimate of his costs for a four-week judge-alone trial was $280,000, while the expected costs of a six-week jury trial was $370,000. Gittany was sufficiently well off not to qualify for legal aid, but not well enough endowed to fund a defence that lasted longer than a month.
The committal in which Tony Bellanto acted for the accused ran for longer than anticipated and chewed up more money. Other funding in the form of loans from family and friends did not eventuate, so Gittany was shy of at least two weeks' worth of lawyers if he was to be tried by his peers.
If the application for a judge-alone trial were refused, the accused would be unrepresented and would probably ask for an adjournment to raise more money or have to hire different lawyers who were prepared to work ''at private rates''. Of itself, that would explain the defence's enthusiasm for a speedier, cheaper, judge-alone trial.
However, that's not the end of the story. The Crown, the DPP, or whatever manifestation the state of NSW prefers to call itself, has a partial veto over an accused's request for a judge-alone trial. In cases where each side do not together consent, it is left to the judge to decide, ''in the interests of justice''.
The Crown had its own difficulties. Its star witness, Josh Rathmell, had told the DPP's instructing solicitor that he would probably not be available if the trial was adjourned until next year. He had a permanent job waiting for him in America and as Justice Lucy McCallum put it: ''It would occasion considerable embarrassment and inconvenience to him if the trial does not proceed within a two-week window evidently notified to him on the strength of the present trial date.''
Mark Tedeschi, the prosecutor, remained ''formally opposed'' to the application for trial by a judge alone, but told the court that if it boiled down to a choice between the risk of a lengthy adjournment and a trial by judge alone on the date set down, then he would prefer the latter.
So that was the background to Justice McCallum, rather than a jury of 12, making a finding of guilt.
Needless to say, lawyers and judges prefer juries. The lawyers can do fabulous performance tricks that might be more persuasive to jurors than to seasoned judges, who have seen it all before and done the same tricks themselves in an earlier life. And anything that takes longer means more fees.
Judges generally aren't fond of conducting criminal trials by themselves because they have to write reasons that are appeal-proof. That takes more time and often means they can't sit on other cases while tied up with writing.
On Saturday, the Herald reported that a higher proportion of
trials heard by a Supreme Court judge alone result in an acquittal than those heard by a jury. That analysis came from figures prepared by the NSW Bureau of Crime Statistics and Research between 1993 and 2011.
NSW's Senior Public Defender, Mark Ierace, thinks trials by judge alone are yielding a higher rate of acquittals by about 12-14 percentage points. He told a judges conference in 2011 that the figures suggest a rate of about three judge-alone trials per fortnight, or about 75 a year. That is a significant number in a place where the idea of juries has been fought for and ingrained for a long while.
From a reporting perspective, you can see the advantage of flying without juries. There would be fewer suppression orders, take-down orders, problems with prejudice and reporting of priors, all of which are highly strung elements of contention in the internet age.
We even had a congratulatory media release on Wednesday from the Attorney-General saying he was impressed Twitterers did such a good job during the delivery of the lengthy verdict. The tweets were informative and accurate. Greg Smith said that, from what he had seen, all varieties of the media had engaged in ''respectful and responsible reporting which helped educate the public''.
Wonders will never cease.