Senior lawyers say Victoria should allow judge-only trials in some cases, after expressing concerns Cardinal George Pell would not get a fair hearing on historic sex charges.
As Cardinal Pell returned to Australia on Monday ahead of his July 26 court appearance, two QCs not connected to his case have raised doubts about the 76-year-old getting a fair hearing, should his case proceed to a jury trial.
They said it was time Victoria followed NSW, Queensland and Western Australia and had the option of judge-alone trials in cases with high-profile defendants.
Peter Chadwick and Remy van de Weil, QCs with more than three decades each of experience as barristers, questioned whether jurors could shut out their perceptions of the cardinal and the Catholic Church and focus solely on the criminal allegations.
"There's been an awful lot of publicity, a lot of discussion and it's a good argument for a judge-alone trial," Mr Chadwick said.
Australian Lawyers Alliance spokesman Greg Barns declined to comment on Cardinal Pell's case, but also said it was time Victoria followed the other states.
He cited as examples Lloyd Rayney, the Perth lawyer charged with murdering his wife; Simon Gittany, the Sydney man accused of killing his fiancee; and Dennis Ferguson, tried for sexual offending in Queensland, as cases where judges heard the cases alone after concerns were raised about the defendants getting a fair trial before juries.
"One of the difficulties in high-profile cases is it relies on people to put everything out of their mind that they have read, heard or seen. And it cuts both ways," Mr Barns said.
"I am simply saying the option of a judge-alone trial would stand as an added protection."
Victorian criminal trials are heard before juries of ordinary citizens. Lawyers cannot ask for jurors to be excluded on the basis of their religion, however jurors can raise their own circumstances with the judge if concerned they could not be impartial.
But Nick Papas, QC, a former Victorian chief magistrate who now defends and prosecutes in trials, insisted the current system worked well.
He said judges gave strong directions to jurors about the importance of focusing solely on the evidence, and that the courts' faith in juries to perform their roles was well established.
A robust, well-advised jury would give Cardinal Pell a fair hearing, Mr Papas said.
"My experience of the law is that jurors can be trusted to do their job. I am confident the system will cope. There are some stresses and strains but my expectation is he can get a fair trial," he said.
Mr Papas said concerns Cardinal Pell would not get a fair trial were not as bad as the case of paedophile priest Michael Glennon, whose earlier convictions were broadcast before a trial by Derryn Hinch in the 1980s.
Glennon argued in the High Court he could never get a fair trial, but the court ruled he could and the trial went ahead, albeit after a long delay. Glennon was eventually jailed.
The Law Institute of Victoria said it was confident all accused people could receive a fair trial, and that jurors were regularly confronted with prejudicial material before they were selected.
"Juries are a crucial part of our judicial system and there is no reason that the right decision should not be reached between 12 ordinary citizens who have carefully assessed the evidence presented to the court," a spokeswoman said.
Mr van de Weil said it could be time to rethink Victoria's long-held belief that accused people should only be judged by their peers, so long as it was the defendant who could request a judge-alone trial.
"I think it's not a bad idea," he said.
Peter Morrissey, SC, said it was up to the courts to manage Cardinal Pell's case and up to jurors to keep their conscience and decide the evidence fairly, should the case get to trial.
Mr Morrissey said he supported the jury system and was not convinced "there's the evidence you get a fairer trial with a judge alone".
Attorney General Martin Pakula said he was confident Victoria's justice system would provide a fair trial.
His opposition counterpart, John Pesutto, said juries were important because they allowed the public to be directly involved, which was "something we should not give away lightly".
The Supreme Court, the County Court and the Office of Public Prosecutions all declined to comment.