FORMER Bundaberg surgeon Jayant Patel has had his application for a judge-only trial dismissed.
Supreme Court Justice James Douglas delivered his decision this morning.
The court will hear whether Patel's permanent stay application tomorrow.
Outlining his reasons in a written judgment, Justice Douglas stated the law recognised juries were capable of handling pre-judice arising from pre-trial publicity.
"While I recognise the severity of the criticism of Dr Patel in the pre-trial publicity, and that it may affect jury deliberations, I am not persuaded that a properly directed jury will have difficulty in ignoring it in favour of the evidence that is led before it," he wrote.
"In other words, I believe that a fair trial can proceed before a jury in spite of the publicity."
Patel's defence barrister Kenneth Fleming applied to the Supreme Court last week for a judge-only trial, arguing the intense publicity of Patel's case had tainted the potential jury pool.
Last Wednesday he said a Google search for the names Dr Patel, Bundaberg butcher and Dr Death turning up a huge number of media articles.
Mr Fleming said the latter would result in four million hits, not all relating to Patel but still highly prejudicial.
"The well is so poisoned by now, it would be difficult to get a juror or jury who wouldn't have a view on Dr Patel," he said.
Mr Fleming told the court news articles speaking about "botched surgeries" and a "toxic ego" had also tainted the jury pool because those comments related to now inadmissible evidence.
While Crown prosecutor Peter Davis admitted during the hearing for a judge-only trial the reporting had been "robust" he said it was not all "one-way traffic".
He pointed to articles with human rights lawyers, another attacking Queensland Health, calls for calm, news reports citing Patel's family "expressing disgust" over how he had been treated and doubts over a fair trial.
Mr Davis said most reporting offered a "balanced view" on what occurred in a prominent case which had public interest.
The High Court quashed a grievous bodily harm and three manslaughter convictions in August and granted Patel re-trials.
Patel is expected to face his first trial in February next year accused of the manslaughter of Mervyn Morris 75, who died on June 14, 2003, weeks after Patel removed part of his bowel.
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