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  • Writer's pictureStuart Jeffery

Common(wealth) Knowledge #94: Samantha Murphy murder case to proceed with trial by jury

Patrick Stephenson will face a jury trial over the alleged murder of Samantha Murphy.

A suppression order has lifted on the identity of the alleged murderer of Ballarat mother Samantha Murphy, 51. The accused, Patrick Orren Stephenson, 22, will now proceed to trial.


Stephenson had been rumoured to be the accused murderer before his appearance before the Ballarat Magistrates’ Court. Although a suppression order was granted on 8 April, it was subsequently lifted at Stephenson’s request.


However, the fact that the court was willing to grant this order, which was ordered to ensure that Stephenson received a fair trial, suggests that he won’t be facing a trial by jury.


The right to trial by jury is one of the few rights enshrined in the Australian Constitution, in section 80.


This provision only affects Commonwealth trials, and is limited to ‘indictable offences.’ Parliament has the power to determine whether something is an ‘indictable’ or ‘summary’ offence.


Summary offences do not have the right to jury trial and generally consist of less serious offences. These cases don’t demand a complex, lengthy trial, so they can generally be dealt with relatively quickly, hence the name.


The states mirror this division, and also agree that murder, as one of the gravest offences, should be indictable, and therefore requires a jury.


Magistrates’ courts rarely, if ever, deal with indictable offences. However, they serve as the first point of call, to determine if there is enough evidence for the case to proceed.


The Magistrates’ Court doesn’t need to hear all the evidence, as that is the Supreme Court’s job. Rather, it just has to make sure that there is enough evidence to justify a trial. This is effectively a screening process.


The fact that a suppression order was made, even though it has since been lifted, would, in most other states, be an indication that it would be in the ‘interests of justice’ to have a trial by judge alone, largely because of the media attention and how that may bias jury members.


Importantly, its impossible to determine if it would cause actual bias, because not even judges can predict the future; rather, the question is whether there is a reasonable possibility for bias.


However, Victoria does not allow for a trial by judge alone.


Although temporarily introduced during the COVID-19 pandemic to help speed up the process, plus to avoid risks of spreading COVID-19 between jury members, this has since been reversed.


All Australian courts are governed by the doctrine that a person is innocent until proven guilty. ‘Blackstone’s ratio,’ which has received some criticism in recent years, says that ten guilty people should go free than that one innocent person is locked up.


The other Australian courts take this to mean that media bias may upset this presumption by suggesting that the accused is guilty, before the trial has even begun. Thus, it is in the interests of justice that a jury may not be used.


The Victorian approach, in contrast, emphasises due process, and says that no person should be denied the right to a trial by jury and that it would be unjust to do so.


Victorian courts have compensated for the temporary removal of juries by ruling that if a person entered a guilty plea during COVID-19, and because a trial by judge alone rushed them through the legal system without due process, their sentence should be reduced, since Worboyes v The Queen in 2021.


With the suppression order lifted, this means that Stephenson will be going into the trial with the knowledge that his position in the trial has already received considerable media attention, However, he also has the reassurance that his Victorian lawyers know how to deal with any effect that this media attention may have.


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