2.Appeal treated as instituted and heard instanter, and allowed.
3.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 21 April 2011 and, in its place, order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's convictions for the manslaughter of Mervyn John Morris, James Edward Phillips and Gerardus Wilhelmus Gosewinus Kemps and for unlawfully doing grievous bodily harm to Ian Rodney Vowles be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of Queensland
Representation
L F Kelly SC with D M Turner and P F Mylne for the appellant/applicant (instructed by Raniga Lawyers)
W Sofronoff QC, Solicitor-General of the State of Queensland and P J Davis SC with D L Meredith and J R Jones for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Patel v The Queen
Criminal law – Manslaughter by criminal negligence – Appellant convicted of manslaughter and unlawfully doing grievous bodily harm – Section 288 of Criminal Code (Q) imposes duty on persons who undertake to administer surgical treatment to have reasonable skill and use reasonable care – Prosecution alleged appellant breached his duty by deciding to operate on certain patients – Whether "surgical treatment" in s 288 encompasses decision to operate.
Criminal law – Miscarriage of justice – Change in prosecution case at late point in trial – Prejudicial evidence admitted – Whether test of criminal negligence is objective – Whether evidence remained relevant on revised case – Significance of tactical decisions by defence counsel.
Criminal law – Appeal – Application of "proviso" – Irrelevant and prejudicial evidence admitted – Whether no substantial miscarriage of justice actually occurred – Consideration of Wilde v The Queen (1988) 164 CLR 365 and concept of fundamental error.
Words and phrases – "fundamental error", "miscarriage of justice", "moral culpability", "no substantial miscarriage of justice has actually occurred", "proviso", "surgical treatment".
Criminal Code (Q), ss 282, 288-289, 303, 320, 668E(1)-(1A).
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ. On 29 June 2010 Jayant Mukundray Patel ("the appellant") was convicted by a jury of three counts of manslaughter[1] and one count of unlawfully doing grievous bodily harm[2], after a trial in the Supreme Court of Queensland which lasted 58 days. The appellant was at the relevant times employed as a surgeon at Bundaberg Base Hospital. The charges of manslaughter arose out of surgery conducted by the appellant upon Mervyn John Morris, James Edward Phillips and Gerardus Wilhelmus Gosewinus Kemps and that of grievous bodily harm related to surgery that the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Patel v The Queen [2012] HCA 29
Case
[2012] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by a surgeon, Dr Patel, who had been convicted of manslaughter and unlawfully doing grievous bodily harm. The prosecution alleged that the appellant breached his duty of care under s 288 of the Criminal Code (Qld) by deciding to operate on certain patients, leading to their deaths or serious injury. The central dispute revolved around whether the decision to operate fell within the scope of "surgical treatment" as contemplated by s 288, and whether the trial process had resulted in a miscarriage of justice due to the admission of prejudicial evidence and a late change in the prosecution's case.
The legal issues before the Court included whether the test for criminal negligence is objective, the relevance of evidence on a revised prosecution case, and the significance of tactical decisions made by defence counsel. Crucially, the Court had to determine whether the admission of irrelevant and prejudicial evidence, particularly concerning events surrounding the operations and post-operative care, constituted a substantial miscarriage of justice, thereby precluding the application of the proviso under s 668E(1A) of the Criminal Code. The Court also considered the concept of "fundamental error" in the context of a miscarriage of justice.
The Court reasoned that while the physical act of surgery is necessary for criminal responsibility, the duty of care under s 288 extends to the pre-operative assessment and decision-making process. However, the Court found that a significant amount of evidence admitted at trial was irrelevant to the revised prosecution case and highly prejudicial to the appellant. This evidence, concerning alleged incompetence in surgery and post-operative care, and graphic descriptions of the patients' conditions, was admitted despite efforts by the trial judge to mitigate its impact. The Court concluded that the sheer volume, intensity, and repetitiveness of this inadmissible evidence, particularly when introduced early in the trial, had a profound and illegitimate effect on the jury, rendering the convictions miscarriages of justice due to a failure in the trial process.
In matter B11/2012, the appeal was dismissed. However, in matter B25/2011, special leave to appeal was granted, the appeal was treated as instituted and heard instanter, and allowed. The convictions for manslaughter and unlawfully doing grievous bodily harm were quashed, and a new trial was ordered.
Orders
Orders of the court
In matter B11/2012:
Appeal dismissed.
In matter B25/2011:
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter, and allowed.
3. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 21 April 2011 and, in its place, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's convictions for the manslaughter of Mervyn John Morris, James Edward Phillips and Gerardus Wilhelmus Gosewinus Kemps and for unlawfully doing grievous bodily harm to Ian Rodney Vowles be quashed; and
(c) a new trial be had.
Background
Background to the litigation
It is of course obvious that there can be no criminal responsibility for a death or grievous bodily harm without the physical act of surgery. However, recognition of the causative significance of the act of surgery does not prevent the duty from arising at an earlier point. Section 288 is apt to refer to the matters necessary to be considered before surgery is performed. There can be no criminal responsibility for manslaughter or grievous bodily harm merely by the formation of an opinion or the giving of a recommendation. But once the surgery is performed, the person performing it may be guilty of those offences if his or her assessment of the need for it, or of the risks to the patient which would attend it, is criminally negligent and death or grievous bodily harm results.Background Mr Morris was aged 75 years at the time the appellant undertook the removal of his sigmoid colon (a sigmoid colectomy) and the attachment of a colostomy bag. The appellant determined that the bleeding per rectum from which this patient suffered was caused by diverticulosis. Mr Morris died on 14 June 2003 from the effects of the sequelae of the operation. Mr Phillips was aged only 46 years, but was in poor health at the time of his surgery. He was in the final stages of renal failure, an earlier kidney transplant having failed. He required haemodialysis to survive. He had previously suffered a heart attack. Prior to surgery he had been found to have dangerously high levels of potassium in his system, the most likely cause of which was inadequate dialysis because of poor vascular access. Tests conducted on Mr Phillips showed that he suffered cancer of the oesophagus which was invasive and terminal. The appellant removed Mr Phillips' oesophagus (by way of an oesophagectomy) on 19 May 2003. Mr Phillips died two days later after an acute cardiac event brought about by high potassium levels. Mr Kemps was 77 years of age when he underwent an oesophagectomy following a diagnosis of cancer in the oesophagus. He suffered from heart disease and impaired kidney function, amongst other conditions. He had recently suffered post-operative complications following another surgical procedure which necessitated his transfer from the hospital in Bundaberg to an intensive care unit in Brisbane. Mr Kemps died on 21 December 2004, the day following the oesophagectomy. The cause of death was uncontrolled bleeding from an unidentified source. Mr Vowles, the subject of the charge of grievous bodily harm, had part of his large bowel removed in 1999 and again in 2003, when cancers were detected in his colon. The appellant recommended removal of the large bowel (by a proctocolectomy with ileostomy), and undertook this operation on 4 October 2004. The appellant did so on the basis of his interpretation of test results as showing pre-malignant changes which were signs of cancer and taking into account Mr Vowles' history and the likelihood of familial colon cancer. In fact Mr Vowles did not have cancer of the colon.The conduct of the trial
Evidence
Evidence Before The Court
Conclusion. The irrelevance of this evidence as to what happened after the appellant had recommended surgery became even more marked once the summing up had been delivered. Evidence relating to Mr Kemps What the revised particulars said. The revised particulars relating to Mr Kemps alleged negligence in the decision to operate largely because it was pointless; because other, less dangerous, treatments were available; and because of the "lessons of experience". They contained, unlike the original particulars, no allegations of incompetence in performing the surgery or in providing post‑operative care, save for the appellant's failure to stop Mr Kemps's internal bleeding in either operation and the appellant's delay in starting the second operation. Some problems arise with the evidence relating to Mr Kemps. One concerns evidence which lay outside the prosecution case, as it was explained in the trial judge's summing up. Another relates to the "ventilator" evidence (which had been objected to before the trial). Inadmissible evidence of incompetent surgery. The trial judge's direction to the jury that surgical and post-operative competence was not in issue was subject to a qualification in relation to Mr Kemps. The prosecution had not abandoned the allegations about the appellant's failure to stop Mr Kemps's bleeding and his tardy start to the second operation. Even so, there was still evidence before the jury that was irrelevant to the case it was to consider. It may be taken in chronological order. There was expert evidence that, contrary to basic principles of cancer surgery, not all the cancer cells had been removed from Mr Kemps because not enough of the oesophagus had been removed. There was evidence that, during the first operation on Mr Kemps, a nurse drew the appellant's attention to the fact that a Bellovac drain had no vacuum on it, was freely flowing and was over half full, to receive the reply, "That's what drains are for". There was also inadmissible evidence concerning the second operation. Prejudicial evidence which went beyond proof of the objective facts on which the prosecution was relying was received. One example is that blood poured out of Mr Kemps and the nurses "scooped kidney basin after kidney basin" out of him. Another is that there were blood clots all over the floor and footprints of blood throughout the operating theatre. Another is that the appellant incompetently employed an unreliable indicator of blood loss by looking at the drain collecting the blood. Inadmissible evidence about post-operative events. There were numerous examples of inadmissible evidence about events after, or distinct from, the operations. An example is evidence of Mr Kemps's widow that the appellant had misled her about the success of the first operation and that his notes did not accurately record a conversation with her. Another example is that when the appellant returned to the theatre and found Mr Kemps still there he expressed anger. Another is evidence that the appellant had claimed, in a loud and unprompted way, that Mr Kemps's bleeding was not the result of his surgery. There was also evidence that he repeated this claim to Mrs Kemps later. There was evidence that this claim was wrong and not connected with reality. Another example is that, during the second operation, the appellant instructed junior doctors to keep "tight-lipped" and not discuss the matter with anyone. Another example is that the appellant remarked: "Maybe they're right, maybe we shouldn't do oesophagectomies here." Another example is evidence that the appellant said: "Maybe I should start thinking about not doing these type of procedures any more." Another example is evidence that the appellant had "a very uncaring look about him" after Mr Kemps had died. To that might be added evidence of the appellant's unprompted statement to a nurse after the second operation that it had been the worst day of his life. There was evidence that the death of Mr Kemps had not been referred to the coroner even though the appellant's team had been asked to do so and that it was the responsibility of the appellant to have done so. Finally, there was evidence that, on an occasion in some way connected with Mr Kemps, and after his death, the appellant had said that the local community was lucky to have someone like him because he had increased activity at Bundaberg Base Hospital and brought in a lot of money.
Decision
Reasons for decision
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ
Section 24(1) of the Code. A fifth argument is that the evidence was relevant to the defence provided by s 24(1) of the Code. That sub-section provided:"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist."It was submitted that the evidence was relevant, both to the existence of the appellant's belief and to its reasonableness. This point was even less developed in argument than the last. In those circumstances it must be rejected.Conclusion The prosecution case, even on the revised particulars as the trial judge initially understood them, had rendered inadmissible a lot of evidence that may arguably have been admissible on the original particulars. And the prosecution case on the revised particulars in final address, as the trial judge summarised it to the jury, rendered even more evidence inadmissible. The bulk, intensity, significance and repetitiveness of the evidence thus rendered inadmissible is likely to have had a profound and illegitimate effect on the jury. Its prejudicial effect was increased by the fact that much of it was referred to in opening, at a time when its content would be likely to have had a considerable impact. The trial judge's endeavours throughout the trial to minimise the problems which eventually emerged were earnest, energetic, even heroic. But despite those endeavours, circumstances had conspired to ensure that the prejudice to which the prosecution's conduct of the trial had exposed the appellant was incapable of being overcome. None of the standard techniques for dealing with material which, having been received into evidence, turns out to be inadmissible could have surmounted it[121]. [121]BBH v The Queen (2012) 86 ALJR 357 at 378 [94]; 286 ALR 89 at 114; [2012] HCA 9. The convictions were miscarriages of justice. They were miscarriages of justice because a "failure ... occurred in observing the conditions which … [were] essential to a satisfactory trial"[122]. It was a failure in process. "[T]he concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related."[123] "[I]t is the process itself that is judged, not the individual performance of the participants in the process."[124] Subject to the proviso, the miscarriages of justice are sufficient to justify allowing the appeal. [122]Davies v The King (1937) 57 CLR 170 at 180 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ; [1937] HCA 27.[123]Nudd v The Queen (2006) 80 ALJR 614 at 617 [3] per Gleeson CJ; 225 ALR 161 at 162; [2006] HCA 9.[124]Nudd v The Queen (2006) 80 ALJR 614 at 618 [8]; 225 ALR 161 at 164.The proviso The respondent claimed that if the appellant's case in relation to the wrongful admission of evidence were sound, the appeal should be dismissed pursuant to the "proviso"[125]. The claim depends on this Court being "persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the [appellant's] guilt of the offence[s] on which the jury returned its verdict[s] of guilty."[126] (emphasis added) [125]Section 668E(1A) provided: "the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."[126]Weiss v The Queen (2005) 224 CLR 300 at 317 [44]; [2005] HCA 81.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, KIEFEL AND BELL JJ