Patel v The Queen - [2012] HCA 29

HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, HEYDON, KIEFEL AND BELL JJ
JAYANT MUKUNDRAY PATEL APPELLANT/APPLICANT
AND
THE QUEEN RESPONDENT
Patel v The Queen
[2012] HCA 29
24 August 2012
B11/2012 & B25/2011
ORDER
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.

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 appellant conducted upon Ian Rodney Vowles.
[1]Criminal Code (Q), s 303. References to provisions of the Criminal Code in these reasons are to the provisions as they stood at the relevant times.
[2]Criminal Code, s 320.
Allegations concerning the appellant's competence as a surgeon had been a subject of discussion at inquiries into the public hospital system in Queensland[3] and the subject of much discussion in the media. It was against this background that the prosecution opened its case before the jury. The general tenor of the case was that the appellant was generally incompetent and grossly negligent in: recommending the surgical procedures; the manner in which he carried out each of them; and the post-operative treatment which he supervised. Particulars of the prosecution case concerning the charge arising out of the surgical procedure performed on Mr Morris, which were provided some days into the trial, confirmed that the case ranged over the whole of the appellant's conduct as a surgeon. Particulars of the prosecution case on the other charges were not provided immediately. The defence applied, unsuccessfully, to have the jury discharged without giving a verdict[4], in part because of the absence of those particulars.
[3]See Commissions of Inquiry Order (No 1) 2005 (Q), published in Queensland Government Gazette, E84, 26 April 2005 (inquiry not completed); Commissions of Inquiry Order (No 2) 2005 (Q), published in Queensland Government Gazette, E5, 6 September 2005 as amended by Commissions of Inquiry Amendment Order (No 1) 2005 (Q), published in Queensland Government Gazette, E22, 23 September 2005 (report published as Davies, Queensland Public Hospitals Commission of Inquiry: Report, (2005)); Forster, Queensland Health Systems Review: Final Report, (2005).
[4]Jury Act 1995 (Q), s 60.
On day 43 of the trial the prosecution provided a set of revised particulars in each case, which had the effect of narrowing the case against the appellant. With the principal exception of the procedure concerning Mr Kemps, allegations that the appellant was criminally negligent in the conduct of surgery were no longer maintained, nor was it alleged that the deaths or grievous bodily harm were caused by negligent post-operative care. The prosecution case was now focused upon whether the surgical procedure in each case should have been undertaken. Following receipt of the revised particulars, the defence sought on day 44 of the trial, again unsuccessfully, to have the jury discharged on the basis that a great deal of prejudicial, and now largely irrelevant, evidence had been admitted.
The appellant's appeal against conviction was dismissed[5], the Court of Appeal of the Supreme Court of Queensland holding that, in all but one respect, the evidence remained relevant.
[5]R v Patel; ex parte A-G (Qld) [2011] QCA 81.
The appellant has been granted special leave to appeal on the ground that he has been convicted on a wrong basis. It was part of the prosecution case that the standard of care provided by the appellant in connection with the surgical procedures was so low as to breach the duty imposed by s 288 of the Criminal Code (Q) upon a person who undertakes to administer surgical treatment. It is the appellant's contention that s 288 applies to the conduct of surgery but not to the anterior decision to operate, which decision was the essence of the prosecution case following the filing of its revised particulars. Alternatively it is submitted that the section is ambiguous and ought not to be construed so as to extend its operation.
A further ground in respect of which the appellant seeks special leave to appeal has been referred to a Full Court of this Court. It is that there was a miscarriage of justice in the conduct of his trial. The appellant contends that the trial judge (Byrne SJA) wrongly permitted the trial to proceed on the basis of the original particulars, when they provided so many alternatives as to be incoherent and therefore to prejudice the defence. The appellant submits that the trial judge was wrong to refuse to discharge the jury on day 44 because evidence that was highly prejudicial and now largely irrelevant had been admitted and it was not possible to ameliorate its effects on the jury by directions. Alternatively, this Court can now determine that there has been a miscarriage of justice for those reasons.
The respondent seeks to uphold the decision of the Court of Appeal that almost all of the evidence in question remained relevant and submits that special leave should be refused because no objection was made to much of the evidence in question. By Notice of Contention the respondent contends that if there was a wrong decision on a question of law, by virtue of either the prosecution's reliance on s 288 or the wrongful admission of evidence, the proviso in s 668E(1A) of the Criminal Code[6] should be applied to maintain the convictions because there has been no substantial miscarriage of justice. It is submitted by the respondent that the evidence properly admitted proves to the requisite standard that the appellant was guilty of each of the charges.
[6]Set out at [120] below.
For the reasons which follow, the appellant's argument respecting s 288 should be rejected. There should be a grant of special leave with respect to the ground that there was a miscarriage of justice. The reformulation of the prosecution case rendered irrelevant the evidence it had led to demonstrate that the appellant had done things in the operating theatre and in the post-operative care of the patients that were careless to the point of being criminally negligent. The prosecution case as eventually put to the jury was that no competent surgeon would have recommended to the patients the procedures which the appellant undertook and that to do so was so large a departure from the norm as to be criminally negligent.
A feature of the prosecution case was that the appellant should have appreciated that he lacked skill as a surgeon. As will be explained in these reasons, it was irrelevant whether, as the prosecution alleged, the appellant ought to have known of his shortcomings as a surgeon. The prosecution case as ultimately formulated turned on what the appellant was shown to have known about each patient's state of health: in particular, what he knew about the patient having the disease to which the surgery was directed and what he knew about the patient's state of health. What he knew, or ought to have known, about his own skill was not to the point.
Consideration of the appellant's allegation of miscarriage of justice and the respondent's response to it will require that consideration be given to the course of the trial and the conduct of the prosecution and defence cases.
Section 288
Under the Criminal Code, a person who causes the death of another is deemed to have killed that other person (s 293). A person who unlawfully kills another in circumstances which do not constitute murder is guilty of manslaughter (s 303). A person who kills another does so unlawfully unless the killing is authorised, justified or excused by law (s 291). In the present case, for convictions on the counts of manslaughter to be returned it was necessary for the prosecution to prove that the appellant caused the death of the three patients, thereby killing them (s 293). For a conviction on the count of grievous bodily harm, it was necessary to prove that the appellant had done grievous bodily harm to another and that the doing of it was unlawful (s 320).
Section 282 is an exculpatory provision which may apply in the case of a surgical procedure. At the relevant time, it provided:
"A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all circumstances of the case."
Section 288 appears in Ch 27 of the Criminal Code, which is entitled "DUTIES RELATING TO THE PRESERVATION OF HUMAN LIFE". The section provides:
"It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty."
Section 288 is not expressed in terms of criminal responsibility[7], but in terms of duty and causation. In R v Stott and Van Embden[8], McPherson JA observed that the provisions of Ch 27 were probably originally designed to cater for questions of causation arising out of cases of "'pure' omission or failure to act." Generally speaking, the law does not render a person liable for the consequences of such an omission where there is no obligation to act[9]. However, provisions of the Chapter came to be recognised as operating in relation to criminally negligent acts which might found a conviction for manslaughter.
[7]Which is defined by s 1 to mean liability to punishment as for an offence.
[8][2002] 2 Qd R 313 at 319 [16].
[9]Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408 at 421 [29]; [2011] HCA 43.
The decision in Callaghan v The Queen[10] explains how a provision like s 288 operates. That decision was concerned with a provision[11] equivalent to s 289 of the Criminal Code[12], which also appears in Ch 27. Section 289 imposes a duty on persons in charge of dangerous things to use reasonable care and take reasonable precautions to avoid danger to life, safety and health. It operates in a way similar to s 288.
[10](1952) 87 CLR 115; [1952] HCA 55.
[11]Criminal Code 1913-1945 (WA), s 266.
[12]"It is the duty of every person who has in the person's charge or under the person's control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."
In Callaghan v The Queen[13] it was observed that a defence which was of similar effect to s 23(1) of the Criminal Code[14] was not available under the equivalent of s 289, because the defence was expressed to be subject to provisions relating to negligent acts and omissions and the equivalent of s 289 was such a provision. Therefore, an event causing death which occurs independently of a person's will, or by accident, provides no excuse for the purposes of s 289. For that reason, and because s 289 holds a person omitting to perform the duty imposed to have caused any consequences which result to the life or health of another, breach of the duty of care becomes a constituent of the offence of manslaughter. The same may be said of the offence of grievous bodily harm.
[13](1952) 87 CLR 115 at 119.
[14]Section 23(1) of the Criminal Code provides:
"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
(a)an act or omission that occurs independently of the exercise of the person's will; or
(b) an event that occurs by accident."
The duty under s 288 is "to have reasonable skill and to use reasonable care", but the degree of negligence necessary to constitute a breach of duty is not that of the civil law of negligence. Callaghan v The Queen holds[15] that, because the provision appeared in a Code dealing with major crimes involving grave moral guilt, the standard to which a provision such as s 289 must be taken to refer is that set by the common law in cases where negligence amounts to manslaughter. The same standard applies to s 288.
[15](1952) 87 CLR 115 at 121, 124.
Criminal responsibility therefore attaches only if there has been "criminal" or "gross" negligence. In Bateman[16], Hewart LCJ said that whatever epithet be used, the standard of conduct must go beyond that relevant to a matter of compensation; it must be such as to show such disregard for the life and safety of others as to amount to a crime and to be conduct deserving punishment. In Nydam v The Queen[17], the requisite standard was said to involve "such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment."
[16](1925) 19 Cr App R 8 at 11-12.
[17][1977] VR 430 at 445.
The respondent submits that the prosecution case need not have depended upon a breach of the duty imposed by s 288 for a conviction of manslaughter or grievous bodily harm to be returned and that there is authority[18] for the view that, as an alternative to a case alleging criminal negligence, the prosecution could have simply alleged that the appellant directly or indirectly caused the deaths, relying upon ss 293 and 303 (or s 320 for grievous bodily harm). If that alternative path to a conviction had been taken, s 23(1) would have applied, as would s 282. Thus, in addition to proof of causation, the prosecution would have had to show that the deaths or grievous bodily harm were a foreseeable consequence of the surgical acts[19] and that s 282 did not operate to exculpate the appellant. The respondent appears to be prepared to concede, consistent with the aforementioned interpretation of s 288, that the standard it would have to address to negative a defence under s 282 is the criminal standard of negligence[20].
[18]Referring to Griffiths v The Queen (1994) 69 ALJR 77 at 79; 125 ALR 545 at 547; [1994] HCA 55.
[19]Referring to, inter alia, Kaporonovski v The Queen (1973) 133 CLR 209; [1973] HCA 35.
[20]As to which see Callaghan v The Queen (1952) 87 CLR 115 at 119-121.
The prosecution case was conducted by reference to s 288. As will be seen from the discussion concerning the conduct of the trial, it sought at a late point in the trial to run an alternative case, avoiding s 288, but the trial judge did not permit the prosecution to change its course. On that application the appellant argued to the contrary of its present position and submitted that s 288 did apply to the prosecution case.
The respondent's present contention is that, regardless of which path to conviction was taken, the questions which the prosecution had to address at the trial were essentially the same and therefore no miscarriage of justice has occurred if s 288 does not apply. That would not affect, and would leave for determination, the larger case that there was a miscarriage of justice by reason of the likely effects upon the jury of irrelevant and prejudicial evidence having been admitted. It is not necessary to determine the correctness of the respondent's contention. As will shortly be explained, s 288 applied to the prosecution case. Properly construed, s 288 does impose a duty with respect to the formation of a judgment that surgery be undertaken.
The appellant submits that s 288 deals with the actual performance of surgery or the provision of medical treatment, but that it does not, in terms, refer to a decision or recommendation to operate. The appellant's argument relies upon the text of s 288 and in particular the words "or to do any other lawful act" and "in doing such act". The physical sense of the word "act" does not, in the appellant's submission, accommodate any anterior decision to operate.
The appellant seeks further support from the terms of s 282, which he submits, by contrast, do extend to such a decision. The appellant's submission in this respect is that the words in s 282 "having regard to the patient's state at the time and to all circumstances of the case" encompass a decision to operate. Whether or not that is so, s 288 should first be considered in its own terms.
It may be accepted that the word "act" in the phrase "doing such act" refers back to "surgical or medical treatment … or … any other lawful act". The act to which it refers is not, however, restricted to the act of surgery. It refers to surgical treatment, which may readily be understood to encompass all that is provided in the course of such treatment, from the giving of an opinion relating to surgery to the aftermath of surgery. It would be a strange result if the section was taken as intending to impose a duty with respect to the conduct of surgery and its aftermath, but not to require the exercise of skill and care in the judgment which led to it.

Further support for a construction which gives full meaning to the term "surgical … treatment" and imposes a wider duty is provided by recognising the point at which the duty is imposed by the section. It arises when the person "undertakes" to administer surgical or medical treatment, which undertaking is given prior to the conduct of surgery and may commonly involve the formation of a judgment about whether surgery should be recommended.
Surgical treatment refers to all that is involved, from a recommendation that surgery should be performed, to its performance and the post-operative care which is necessary to be given or supervised by the person who conducted the surgery. The duty imposed by s 288 may be breached by a discrete act of gross negligence in carrying out the surgical procedure or if gross negligence attends the making of judgments about a patient's condition and the risks to the patient of the surgical procedure.
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
The prosecution case as opened with respect to Mr Morris' surgical procedure provides the clearest example of the width of the case. It was said that the jury would be invited to conclude from the evidence "that Mr Morris died from either of or a combination of the surgery performed by the accused and the post surgical care supervised by the accused." The appellant was described as the "wrong doctor" to perform the operation. The "wrong preparation" was done, in that insufficient care was taken to correctly diagnose his condition. Bundaberg Base Hospital was the "wrong hospital" in which to carry out surgery of this kind. Mr Morris should have been treated more conservatively and he received the wrong post-operative care.
At the conclusion of the first day of the trial Byrne SJA discussed the possible provision of particulars by the prosecution. The topic had been raised by his Honour at a directions hearing two days before the commencement of the trial. The concern expressed by his Honour at the conclusion of the first day of the trial was that the case as opened thus far contained many complaints about the appellant's conduct – before, during and after surgery – and that it was as yet unclear whether each of them in isolation or in combination might be said by the prosecution to be causally related to the deaths of the three patients. Clearly causation loomed as a potentially difficult issue because of the way in which the prosecution case was to be presented.
The trial proceeded for some days without particulars having been supplied. On the fifth day of the trial his Honour observed that, whilst the particulars might have an important role in the trial, the defence did not appear to be pressing for them. The defence responded by saying that it had requested particulars on the first day of the trial and was expecting them to be provided.
Original particulars – Mr Morris
On day 6 of the trial the prosecution provided particulars with respect to its case on the charges concerning Mr Morris' surgery. The original particulars ran to some 29 paragraphs but included much duplication. The detail in some of the particulars and general allegations, including those framed simply in the terms of s 282, may be put to one side. The essential allegations of negligence concerning the appellant's decision to operate were that the surgery should not have been undertaken and that further tests would have indicated this; and that the operation presented a high risk to the patient, not only because of the nature of the operation but also because of his poor state of health and the multiple conditions from which he suffered (described as "co-morbidities"). These allegations remained largely unchanged throughout the trial.
The original particulars also contained allegations of negligence in the performance of the surgical procedure and in the provision of post-operative care. Details of the former were that the surgery was performed or supervised in such a way as to give rise to (i) wound dehiscence (a breaking open of the surgical wound) which required surgical correction and (ii) the creation of an inadequate stoma (the colostomy opening in the abdominal wall), which was said to be a cause of post-operative partial bowel obstruction. The bowel obstruction alone or in combination with the incorrect placement of a nasogastric tube was said to have the consequence, post-operatively, that the patient vomited and aspirated the vomitus. Further, negligence in post-operative care was said to be shown by the inadequate attention that was paid by the appellant to the patient's nutrition, amongst other things. Mr Morris' death was said to have been caused by any of these matters alone or in combination.
An application to discharge the jury is made
On day 9 of the trial his Honour the trial judge observed that the defence task was difficult, given the multiplicity of allegations and the variety of alternative cases seemingly put by the prosecution. Although his Honour thought that the essence of the prosecution case was "that it was criminally negligent to conduct the operation at all", he was beginning to doubt that the case would be so confined by the time the matter went to the jury.
The following day the defence made an application to have the jury discharged. The application was made on two grounds, one of which related to the particulars which were outstanding with respect to all but the Morris charges[21]. The application was refused. His Honour observed that the defence had not sought particulars until very late and considered that the defence would have to abide by the consequences of what his Honour took to be a considered, tactical decision.
[21]The other ground related to the evidence of an expert witness and is not presently relevant.
The trial proceeded with particulars of the prosecution case on each of the other three charges being supplied prior to the evidence with respect to each charge being led. The process undertaken at trial was to call all medical and other evidence relating to one charge before moving to the next. Those witnesses giving evidence with respect to more than one charge were recalled as necessary. The trial proceeded with the trial judge expressing concerns about what appeared to be "roving investigations" into the appellant's conduct.
The Phillips, Kemps and Vowles particulars
The original particulars of the case concerning Mr Phillips' surgery alleged that the procedure should not have been performed given his state of health and medical history, and that there were other, less dangerous options available. It was alleged that the appellant should have consulted with the patient's treating doctors and in particular his renal physician. Relevant to the decision to perform the surgery was said to be the fact that Bundaberg Base Hospital had inadequate intensive care resources to care for the patient post-operatively. It was also alleged that the appellant performed the surgical procedure negligently in that he caused the patient to bleed internally at the end of the operation or shortly thereafter.
The original particulars relating to Mr Kemps' surgery alleged that the appellant failed to control internal bleeding which occurred during the surgical procedure and delayed undertaking a second procedure in order to find the source of the bleeding. When he did undertake the second procedure, he failed to find the source of the bleeding and stop the bleeding.
The other allegations in the original particulars concerning Mr Kemps related to the appellant's decision to operate. It was alleged that the procedure should not have been undertaken given the risks to the patient's health and the availability of other options. It was also alleged that the lack of resources of the intensive care unit at Bundaberg Base Hospital should have been taken into account by the appellant.
The original particulars relating to Mr Vowles alleged that the surgical procedure was unnecessary because test results at that time did not indicate that the surgical procedure should be undertaken and there were further investigations that should have been performed. It was also alleged that the appellant performed the procedure without reasonable care and skill because the operation resulted in the patient having an inadequate stoma that later required rectification.
Particulars were also given of the treatment of one James Ashton Grave, although the appellant was not charged over the surgical procedure undertaken with respect to him (an oesophagectomy). Mr Grave survived the procedure, but had a difficult post-operative period, necessitating his transfer to a hospital in Brisbane which had a tertiary intensive care unit. It was alleged that it was dangerous to perform the operation on a patient with Mr Grave's medical history and that the procedure should not have been performed without further tests with respect to the conditions from which he suffered. The matters otherwise raised by the particulars were that the appellant should have known that Bundaberg Base Hospital lacked the capacity to care post-operatively for patients recovering from this type of operation and that the earlier death of Mr Phillips following an oesophagectomy showed that the appellant lacked the skill to perform such a procedure.
The evidence
The above short summary of the particulars provided by the prosecution does not convey fully the nature and extent of the evidence given in the prosecution case. It involved a large number of witnesses, as may be evident from the length of the trial. As observations made by the trial judge from time to time in the course of the trial confirm, the evidence given ranged beyond the acts identified in the particulars and extended to criticisms of the appellant's professional and personal conduct. The evidence was not restricted to the treatment of, and surgery conducted upon, the four patients and Mr Grave. Evidence was led about his working relationship with nursing and other staff and included references to his expressions of anger when his orders were disobeyed. His interpersonal skills at the hospital were described as "dysfunctional" and as affecting the welfare of his patients. Evidence was led that he instructed that another patient be removed from a ventilator so that he could conduct surgery upon Mr Kemps before going on holidays ("the ventilator incident"). Evidence was led about conversations the appellant had with relatives of Messrs Phillips, Kemps and Grave, when he failed to advise them of the true position relating to the patients' post-operative status. Much of this evidence reflected adversely upon the appellant as a person. It suggested that he was egotistical, uncaring, and dishonest in his dealings with the patients' families, and felt guilty about his performance as a surgeon. In summary, the prosecution case might be described as a wide-ranging attack upon the appellant both professionally and personally.
It is true that much of the focus of the prosecution was upon the judgment formed by the appellant as to the need for surgery in each case. Considerable time was taken with the questioning of experts called on that issue; but so too was considerable time taken in connection with the conduct by the appellant of the surgery itself, in the cases of Mr Morris, Mr Phillips and Mr Kemps. And, in the case of Mr Kemps, much of the evidence about the extent of the uncontrolled bleeding and attempts to stop it was very graphic. A considerable amount of evidence was given about problems which were experienced post-operatively, not only in the case of these three gentlemen, but also in the case of Mr Grave. The jury was provided with the records of the patients electronically and was taken through the stages of each patient's demise with detail being provided of the nature and extent of their suffering.
In all, approximately 36 doctors (or retired doctors) who had had some connection with the treatment of the patients were called. In addition, it appears that some five independent expert witnesses were called to review the decisions taken, the surgery performed and the problems encountered with post-operative care and to explain the duties of a surgeon in each respect. Opinions, which differed, were given about the adequacy of the facilities at the intensive care unit of Bundaberg Base Hospital to deal with the post-operative care of patients with complex, pre-existing conditions and those who had surgery as major as an oesophagectomy. Some 25 nurses were called.
The revised particulars
On day 40 the prosecution sought to put forward a case which did not depend upon s 288. It appears from his Honour the trial judge's ruling that the reason for the change of direction in the prosecution case was that the expert evidence, which had then concluded, suggested that at least three of the four operations conducted by the appellant were performed with reasonable care and skill. During his later summing up, his Honour would say that all the procedures had been "performed competently enough". The prosecution was concerned that s 288 might not extend to the anterior decision to operate or the recommendation to operate. His Honour ruled that the prosecution should confine itself to the case it had opened, which depended upon a failure to observe the duty imposed by s 288. His Honour was of the view that s 288 extended to a case where it was grossly negligent to undertake the surgery.
It appears from the discussion following the ruling that the prosecution nevertheless intended to rely upon aspects of the appellant's lack of surgical competence as relevant to the decision to operate. Not for the first time his Honour remarked that the approach taken was akin to throwing "every little piece of mud in the hope that some will stick", taking up a metaphor which had been used by defence counsel. The matter was left at that point on the basis that the prosecution would provide further particulars of the case it now intended to put to the jury.
Revised particulars of each of the four cases were provided on day 43. His Honour the trial judge referred to the revised particulars as the first comprehensible particulars provided and described the revised particulars pertaining to Mr Morris as a "vast improvement".
The particulars of the appellant's breach of duty in deciding to undertake the procedure on Mr Morris were retained but were now more specific. It was alleged that the appellant did not undertake proper testing, had not determined the cause of the bleeding with which the patient had presented and had not excluded the possibility that it was caused by radiation proctitis, of which there was evidence in the patient's medical history. The symptom of bleeding was said to be insufficient to justify the operation and the patient's age and the conditions from which he suffered made it dangerous. It was alleged that the appellant knew or ought to have known of his limitations as a result of the treatment of Mr Phillips, which predated Mr Morris' surgery.
It is unclear whether the limitations of which it was said the appellant should have been aware concerned his ability to perform surgery, or his judgment about whether surgery was warranted, or both. The latter is consistent with the tenor of the revised particulars. With that qualification, the revised particulars contained no allegations of negligence in the performance of the surgery. The previous particulars concerning negligent post-operative care were not repeated.
The revised particulars with respect to Mr Phillips' surgical procedure alleged that the surgery should not have been undertaken because it was too dangerous to perform given this patient's multiple pre-existing conditions, and was not appropriate for the condition from which he then suffered. It was said that the surgical treatment was wrongly undertaken because the cancer was of a nature which did not justify the procedure and the appellant failed to investigate whether the cancer had metastasised (which would have made the operation pointless). Other treatment options were alleged to have been available. Further, it was alleged that the operation was performed at a hospital which would have difficulty dealing with post-operative complications. These matters relate to the appellant's judgment in deciding to perform the surgery. The original allegation concerning the conduct of the surgery itself, namely, that the appellant caused the patient to bleed, was maintained.
The revised particulars with respect to Mr Kemps alleged that the surgery should not have been performed because the cancer was too advanced; there was evidence of metastatic spread, making the surgery pointless; the patient was too old and unwell to survive the operation or the recovery period; and there were other treatment options available. It was alleged that the appellant should have known of his limits at this point because of the outcomes of the operations upon Messrs Phillips, Morris, Grave and Vowles; and of the limits of the intensive care unit at Bundaberg Base Hospital because of problems encountered post-operatively with respect to Messrs Phillips and Grave, and because of conversations he had had with other staff.

Allegations concerning the appellant's surgical competence were maintained in these particulars. It was alleged that the appellant failed to stop the uncontrolled bleeding during the first procedure, delayed undertaking a second procedure to locate and stop it and, having undertaken the second procedure, failed to stop the bleeding.
The revised particulars relating to Mr Vowles continued the allegations that the surgery was unnecessary. It was now alleged that the polyp found by the appellant was non-malignant. It was alleged that the appellant should have known of his limitations as a result of the treatment of Messrs Phillips, Morris and Grave. However, there was no mention of the previous allegation that the stoma had been incorrectly positioned. That is to say, there was now no suggestion that the appellant had been negligent in the conduct of the surgery itself.
The Oregon Order
It is necessary to mention a document which was referred to in some of the original and revised particulars. It was referred to in the proceedings as "the Oregon Order".
The appellant had trained as a surgeon in the United States of America and in 1989 had obtained a licence to practise medicine in Oregon. By the terms of an order made on 7 September 2000 by the Board of Medical Examiners of that State, an organisation responsible for regulating health care providers, the appellant acknowledged that he had engaged in conduct that was described as "gross or repeated acts of negligence in the practice of medicine" and that this conduct amounted to unprofessional conduct.
The background to the Oregon Order was a peer review conducted in 1998 by the appellant's then employer of 79 charts of his patients. The appellant's then employer restricted his surgical practice to exclude surgeries involving the pancreas, resections of the liver and the construction of ileoanal pouches. The Oregon Board of Medical Examiners conducted its own investigations, including obtaining a list of detrimentally affected patients from the appellant's employer, and questioned the appellant. The Oregon Order was the result of these investigations. The Oregon Order recorded a settlement of the matter whereby the appellant agreed not to undertake the abovementioned surgery and to obtain a second opinion pre-operatively "on complicated surgical cases" from approved surgeons. "Complicated surgical cases" were defined to include surgeries on high risk patients with severe co-morbidities including heart or renal failure, oesophageal and gastric surgeries, and surgeries on post-operative patients with more than two days' stay in an intensive care unit.
The Oregon Order was the subject of a pre-trial ruling of admissibility[22] over the objection of the defence. It had been referred to in the original particulars concerning Mr Morris' and Mr Vowles' surgical procedures, but only in connection with an allegation that the appellant lacked good faith in conducting the operations, for the purposes of s 282. The Oregon Order was referred to in the revised particulars. So far as concerned Mr Morris' procedure, it was relied upon to show that the appellant was required to obtain a second opinion before operating upon a patient with severe co-morbidities. So far as concerned Mr Kemps and Mr Vowles, it was relied upon to show that a second opinion was required with respect to the types of surgical procedures conducted upon them.
[22]In the matter of Patel unreported, Supreme Court of Queensland, 20 March 2010 per Byrne SJA.
The defence applies again to discharge the jury
Upon receipt of the revised particulars, the defence raised the matter of what it described as a large quantity of evidence which had been given in preceding weeks but which did not now appear to be relevant. The following day, day 44 of the trial, the defence applied to have the jury discharged without rendering a verdict on the basis that the appellant could not secure a fair trial. The trial at this point was described by defence counsel as a "movable feast". The defence provided a schedule of evidence said to be irrelevant in light of the narrower case now pursued by the prosecution, although it was said that it may not be exhaustive. Much more evidence is now said to have been both prejudicial and irrelevant. Amongst the evidence which the defence did identify on its application as having become irrelevant was evidence which reflected upon the appellant's competence as a surgeon, evidence concerning the ventilator incident and evidence of the conversations which the appellant had with members of three of the patients' families, when he reassured them about the patients' conditions when they were in fact deteriorating.
His Honour the trial judge was understandably concerned about discharging a jury at so late a stage in a long trial and when the matter was about to go to the jury. His Honour acknowledged that whilst some evidence, such as that of mistakes made in other cases, might have probative value in connection with the appellant's knowledge about his abilities and could thus be connected to his decisions to embark upon surgery, other evidence of surgical misadventures had the potential for prejudice which far outweighed its probative value. There was a risk that the jury might misuse the evidence. His Honour observed that some jurors might feel overwhelmed by the sheer magnitude of the criticisms made of the appellant. His Honour, however, observed that save for some pre-trial applications, the evidence had not been objected to. His Honour reiterated his view that the defence appeared to have allowed the matter to proceed to trial on an unparticularised basis, as a result of a tactical decision. But his Honour's refusal to discharge the jury appears to have been based principally upon a view that directions to the jury might overcome much of the prejudice. His Honour invited the defence to identify evidence that should be subject to directions. However, the defence subsequently informed his Honour that it did not wish to make submissions on the point beyond those it had made on its application for the discharge of the jury.
Summing up about the nature of the prosecution case
At an early point in summing up, his Honour directed the jury as to the use that could be made of the Oregon Order. His Honour pointed out that the Oregon Order did not affect the appellant's entitlement to practise as a surgeon in Queensland and that it did not prohibit the procedures involved in the charges. His Honour further noted that even in Oregon they might have been performed, albeit following a second opinion. An additional question might be what opinion the appellant might have obtained from surgeons in Australia. His Honour directed the jury that the only uses that could be made of the Oregon Order were: (i) in considering the weight to be given to the patient's choice to undergo a procedure; and (ii) that its requirements might be thought to suggest that the appellant had reason to reflect, before recommending major surgery to patients, on any deficiencies there may have been in his knowledge and aptitude. His Honour directed the jury that it would be wrong to suppose that, because the appellant had admitted to having been grossly negligent in surgery in Oregon, it was likely that he had committed the offences charged.
It is at this point that his Honour directed the jury as to the essential nature of the prosecution case concerning the surgery performed by the appellant. His Honour said, "It is critical to appreciate that this trial is not about botched surgery. Instead, it is about surgery performed competently enough." His Honour continued, "It is not how the Accused performed surgery that matters in these four cases." His Honour explained that what mattered was the appellant's judgment in deciding to commend the surgery and then, having obtained a patient's consent, performing the surgery, and that the prosecution contended that the operations were unnecessary or inappropriate. The respondent did not take issue with the correctness of this aspect of his Honour's summing up either in the Court of Appeal or in this Court.
Miscarriage of justice?
The contentions
The appellant submits that he was always entitled to particulars of the acts relied upon in proof of the offences[23]. So much may be accepted. The defence might have applied for them at any time in the numerous pre-trial hearings which took place. However, doing so may have served to focus the prosecution on the essential strengths of its case. It may readily be inferred, as his Honour the trial judge did, that a tactical decision was made by the defence not to demand particulars until his Honour raised questions about their need shortly prior to the commencement of the trial. The appellant is bound by the decision made in this regard[24].
[23]Referring to, inter alia, Johnson v Miller (1937) 59 CLR 467 at 489; [1937] HCA 77. See also Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 557 [26]; [2010] HCA 1.
[24]Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]; 225 ALR 161 at 164; [2006] HCA 9.
The particulars that were originally supplied, especially those relating to Mr Morris' surgical procedure, were complex. The many alternative bases relied upon for findings of guilt would necessitate individual assessments of causation which might not be consistent with each other. The appellant submits that his Honour ought not to have permitted the trial to proceed on the basis of particulars which were legally incoherent. But his Honour's complaints about the incoherence of the particulars appear not to have motivated the defence to attack them. The appellant cannot now be heard to say that unfairness resulted to him on this account. In any event, it is the effect of the particulars, not their quality, which is now in issue.
If there was a miscarriage of justice, it was because the prosecution case changed at a very late point in the trial with the result that much of the evidence that had been admitted on the wide-ranging prosecution case no longer remained relevant to the more confined case that went to the jury. This is the matter which requires further consideration. The question is not, however, whether the trial judge was wrong in refusing to discharge the jury on this basis. As Sachs LJ observed in R v Weaver[25], there is no rule that, where inadmissible or prejudicial evidence is admitted through inadvertence, a jury must be discharged. This statement was referred to with approval by Gibbs ACJ[26] in Maric v The Queen. His Honour said that when an accused has been convicted, the appeal is not against the failure to discharge the jury, but against the conviction[27]. His Honour's observation remains relevant to a case such as this, even if the test as to what constitutes a miscarriage of justice sufficient to warrant the quashing of a conviction referred to in Maric is affected by what was later said by this Court in Weiss v The Queen[28].
[25][1968] 1 QB 353 at 360.
[26]Maric v The Queen (1978) 52 ALJR 631 at 634; 20 ALR 513 at 519-520.
[27]Maric v The Queen (1978) 52 ALJR 631 at 634; 20 ALR 513 at 520.
[28](2005) 224 CLR 300; [2005] HCA 81.
Relevant evidence?
Questions as to the relevance of evidence cannot properly be understood except by reference to the matters which it was necessary for the prosecution to prove or which it might reasonably be necessary to meet in anticipation of a defence[29].
[29]See HMLv The Queen (2008) 235 CLR 334 at 351 [5]; [2008] HCA 16.
It is useful to start with what the prosecution case did not involve following the revised particulars. The prosecution case did not involve allegations of surgery performed so incompetently as to amount to criminal negligence. The effect of the evidence at the point the revised particulars were provided, as his Honour the trial judge later observed, was that the surgical procedures had been performed competently.
The revised particulars relating to Mr Phillips, which contain the allegation that the appellant caused some bleeding at the conclusion of the operation, do not detract from this assessment. It appears to have been an allegation that went nowhere. The particulars relating to Mr Kemps did consistently allege negligence in the conduct of surgery: in the appellant concluding the first procedure without locating the source of the internal bleeding and stopping it and, subsequently, in delaying the patient's return to surgery and then again failing to locate and stop the bleeding. However, these particulars require some further clarification, in light of the expert evidence.
As the trial judge observed in summing up in relation to Mr Kemps' procedure, "again, the focus is not on proficiency in carrying out a surgical procedure." Although the oesophagectomy caused the fatal bleeding, the source of the bleeding was never located and expert opinion did not resolve that question. It was said by one expert that a surgeon should be able to find a source of bleeding, but that expert did not suggest that the appellant was wrong to conclude the first procedure given the extent to which the bleeding had reduced. Nor did the evidence suggest that he was criminally negligent because he was unable to stop the bleeding in the second procedure. The prosecution case was that the appellant should not have delayed in undertaking the second procedure and that he should have suspended the surgery he had commenced on another patient and dealt with Mr Kemps' bleeding more promptly.
The Court of Appeal considered that the only revised particulars which contained no allegation of negligent acts in the conduct of a surgical procedure were those relating to Mr Vowles. Even so, it considered, some such allegation was to be found in the particular alleging that the appellant did not have reasonable skills and did not use reasonable care[30]. For the foregoing reasons, the Court of Appeal was incorrect in its conclusion concerning the particulars relating to Messrs Morris, Phillips and Kemps. So far as concerns those relating to Mr Vowles, the allegation was merely a general one, details of which were said to follow. No further particulars relating to surgery were provided.
[30]R v Patel; ex parte A-G (Qld) [2011] QCA 81 at [122].
The revised particulars in respect of each patient contained no allegation that the appellant was criminally negligent in the provision or supervision of post-operative care. The detailed allegations which had originally been made in the case concerning Mr Morris were not repeated.
The prosecution case according to the revised particulars was that none of the procedures was warranted: in the case of Mr Morris, because the bleeding had a cause which the surgery conducted would not address; in the case of Messrs Phillips and Kemps, because their health was too precarious for major surgery such as an oesophagectomy; and in the case of Mr Vowles, because he did not in fact have colon cancer. Thus, in general terms, the evidence necessary to be led by the prosecution concerned the appellant's judgment about the need for, and the risks associated with, the surgical procedures for the particular patient, the facts available to him about those matters, and whether the judgment he made fell so far below the standard of a competent surgeon as to warrant criminal punishment.
Additionally, the prosecution was required to prove that the undertaking of the surgical procedure in each case was a significant or a substantial cause of the death or grievous bodily harm[31] and that this was so despite the existence of other, more direct, causes. It was necessary for the prosecution to attempt to meet the defence of mistake of fact provided by s 24 of the Criminal Code. In the case of Mr Morris, it might be said that the appellant had an honest and reasonable, but mistaken, belief that the bleeding he presented with was from diverticula in the sigmoid colon. And in the case of Mr Vowles, it might be said that the appellant mistakenly believed that the growth was pre-cancerous, given the patient's history of bowel cancer.
[31]Royall v The Queen (1991) 172 CLR 378 at 389, 398, 411-412, 423; [1991] HCA 27; Osland v The Queen (1998) 197 CLR 316 at 324 [15], 366 [147]; [1998] HCA 75.
Relevance of evidence of incompetence in surgery
In accordance with the original particulars concerning Mr Morris' surgery, evidence was led concerning the occurrence of the wound dehiscence and the incorrect positioning of the stoma. Evidence was also given concerning Mr Vowles' stoma as having been incorrectly positioned. In the case concerning Mr Morris, it was said by one expert that the incorrect positioning of the stoma was an error of surgery which could have been fixed when the surgery to correct the wound dehiscence was undertaken and that it was associated with the blockage of the colostomy. Evidence therefore connected the surgery performed by the appellant with the post-operative complications, although neither was the subject of the revised particulars.
The evidence concerning the surgery performed upon Mr Phillips went beyond the particulars and touched upon the appellant's competence as a surgeon in a number of respects. His inability to obtain a central venous line was said by an expert to indicate not only an unsatisfactory situation in which to proceed with surgery, but that he lacked technical competence with respect to a basic procedure. Evidence was given that the oesophagus had been torn in the process of the operation. This was said by one expert to be something that should not have occurred and to suggest that the surgery was handled roughly. Moreover, the removal of the cancerous oesophagus in two parts, rather than intact, was said to be unorthodox and to risk the "spilling" of cancer cells.
This body of evidence was tendered to support a case of general incompetence and that the surgery itself was performed in a manner which was grossly negligent with serious or fatal results. The evidence was not sufficient to support such a conclusion, yet it was clearly prejudicial to the appellant. How can this evidence be said, logically, to be relevant to the earlier formation of a judgment as to whether to operate?
The respondent submits that evidence of the appellant's general incompetence cannot be irrelevant to his negligence in deciding to undertake the surgical procedures. It is not readily apparent why this would be so. A view formed about the appellant's performance as a surgeon on other occasions does not permit a conclusion with respect to the offences alleged. The submission may, however, be better understood by reference to other submissions put, which concerned the insight that the appellant should have had into his own competence, or lack thereof.
It is submitted by the respondent that evidence of the appellant's misleading the patients' families, and of his stating, unprompted, that the complications arising from surgery were not his fault, may be relevant to show that the appellant was conscious of his carelessness. This submission is consistent with the conclusion reached by the Court of Appeal that the way in which the appellant carried out the surgical procedures was relevant to show that he "knew or ought to have known" of his limitations[32]. This was a general allegation which had been made in the revised particulars concerning Mr Morris', Mr Kemps' and Mr Vowles' procedures.
[32]R v Patel; ex parte A-G (Qld) [2011] QCA 81 at [124].
Such an approach raises questions about just what the appellant should have perceived from the results of particular procedures and just what it is said his limitations were. It is not obvious what the appellant ought to have learned from what was reasonably competent surgery in those cases. Where there were errors, they had not themselves had a significant effect. More likely to be relevant to his judgment in deciding to operate was the fact that some patients with severe co-morbid conditions had suffered serious complications post-surgery.

Logically, what happened to a particular patient during or after surgery cannot have informed the appellant's decision to operate on that patient. The prosecution case did not have this temporal problem. It sought to fix the appellant with actual or imputed knowledge of earlier surgery and apply it to subsequent decisions with respect to other patients. This was the basis upon which the Court of Appeal viewed the evidence as relevant[33]. Indeed, this appears to have been one of the bases upon which the evidence relating to Mr Grave was initially tendered[34].
[33]R v Patel; ex parte A-G (Qld) [2011] QCA 81 at [124].
[34]See R v Patel [2010] QSC 068 at [14], [22]-[23].
Notions of the appellant's supposed consciousness of his lack of skill, in surgery or in his judgment, permeate the respondent's submissions as to the relevance of much of the evidence in question. Yet there is a fundamental objection to the respondent's position. Even if the allegations that the appellant "knew or ought to have known" of his own shortcomings were relevant to the case as originally formulated (a question that need not be decided), they were not relevant to the reformulated case. As these reasons will show, the test of criminal negligence is objective. The central questions presented by the reformulated prosecution case were first, would a competent surgeon have decided to operate and second, was the decision to operate so great a departure from reasonable skill as to be criminally negligent. Showing that the appellant ought to have known he should not operate was irrelevant.
Evidence critical of his surgical technique (in these or in other cases) was wholly irrelevant. As will be shown, evidence critical of his post-operative care of these patients was also irrelevant except to the extent that it bore upon the immediate cause of death of the patient. Before discussing that matter, it is appropriate to mention the Oregon Order, in respect of which questions about the appellant's consciousness assume special importance.
Relevance of the Oregon Order
The prosecution did not address the jury about the use to which the Oregon Order could be put, but the respondent now says that its probative value was higher than that which the trial judge indicated in his directions to the jury. The respondent submits that the Oregon Order was relevant as an admission that the appellant had made surgical errors of the kinds there specified. An obvious difficulty with the submission is that the surgery here was said to have been performed competently enough. The Oregon Order cannot counter direct evidence to this effect. His Honour the trial judge correctly directed the jury that it could not use the appellant's admissions to determine that the appellant was guilty of the offences charged.
The Oregon Order was not sought to be relied upon as propensity evidence[35], as to the appellant forming grossly negligent opinions about whether to undertake surgery upon patients with severe co-morbidities. It is difficult to see how it could have been, not least because the Oregon Order did not specify the facts relating to any previous decisions of this kind. Nevertheless, the potential for the misuse of the contents of the Oregon Order by the jury and the level of prejudice that it might have engendered in the minds of members of the jury is self-evident. The trial judge sought to minimise its potential effects by limiting the use to which it might be put. His Honour directed the jury that the only uses that could be made of it were in considering the weight to be attached to a patient's choice to undergo a procedure and, more importantly, that it might be thought to have caused the appellant to reflect upon his limitations. However, the evidence could not be relevant even for that latter purpose.
[35]Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7.
The test of criminal negligence is objective
Because of the value the law places upon human life, it punishes grossly or criminally negligent conduct which causes death or grievous bodily harm, and it does so regardless of the subjective intentions of the accused or the accused's appreciation of the risk involved in his or her conduct[36].
[36]R v Lavender (2005) 222 CLR 67 at 87-88 [60]; [2005] HCA 37.
The test applied to conduct which is alleged to amount to gross or criminal negligence in the context of the crime of manslaughter, or grievous bodily harm, is an objective one[37]. So too is an objective test applied to manslaughter by unlawful and dangerous act[38] and driving a motor vehicle in a negligently culpable manner[39]. The test does not require that an accused have an appreciation of, or an indifference to, the risk created by the conduct in question. The only criterion necessary is an intention to do the act which inadvertently causes death[40] or grievous bodily harm.
[37]R v Lavender (2005) 222 CLR 67 at 87-88 [60].
[38]Wilson v The Queen (1992) 174 CLR 313 at 324, 341; [1992] HCA 31; R v Lavender (2005) 222 CLR 67 at 82-83 [40].
[39]King v The Queen (2012) 86 ALJR 833 at 843 [31], 857 [92]; 288 ALR 565 at 576, 594; [2012] HCA 24.
[40]R v Lavender (2005) 222 CLR 67 at 83 [40].
The objective standard of conduct set by the law in a case such as the present is that of a reasonably competent surgeon. The question is whether the appellant's conduct, in judging that surgery was necessary or warranted, fell so far below that standard as to amount to gross or criminal negligence and thereby warrant criminal punishment.
There may be cases where the standard to be applied must take account of special knowledge on the part of a person, as relevant to how a person with that knowledge would act[41]. But that is not to use a person's knowledge to determine their guilt. A person's special knowledge may mean that the standard of conduct expected of them is higher. It is necessary to add that the appellant's imputed knowledge of his limitations cannot, logically, be applied to exculpate him for the reason that the objective standard to be applied is a minimum standard, applicable to all persons who profess to have the skills and competence of a surgeon by undertaking to perform surgery.
[41]Ormerod, Smith and Hogan's Criminal Law, 13th ed (2011) at 148 [6.1.2.1].
In Bateman[42], Hewart LCJ said that it was conceivable that a person may be held liable for undertaking a case "which he knew, or should have known, to be beyond his powers". His Lordship should not be taken to suggest as appropriate an enquiry into an accused's state of mind. What his Lordship said is not inconsistent with the application of an objective test. It is not necessary to show that an accused in fact knew that a case was beyond his or her powers. Criminal negligence in the context of manslaughter is to be distinguished from other forms of criminal liability which involve intention or recklessness.
[42](1925) 19 Cr App R 8 at 13.
The respondent did not suggest in argument that the appellant's consciousness was relevant because he appreciated the risks he was taking with respect to the lives and bodily states of the patients, but nevertheless chose to take them. The respondent's argument centred upon what the appellant should have understood about his deficiencies. Had the respondent raised questions of recklessness of the kind just mentioned, it would have been necessary to consider what was said by this Court in Wilson v The Queen[43], as to whether the application of a test of recklessness in the context of criminal negligence might create confusion with the concept of reckless indifference as it applies to murder. This serves to underline subjective intention as being relevant to murder, but not to manslaughter or grievous bodily harm.
[43](1992) 174 CLR 313 at 339-340 per Brennan, Deane and Dawson JJ; see also R v G [2004] 1 AC 1034.
In assessing the appellant's decision to operate by reference to that which would have been reached by a reasonably competent surgeon, it would be relevant to have regard to the facts and matters which would affect the formation of that judgment. Thus, evidence about the facts known about a patient's condition; whether a diagnosis was possible without further investigation; what the correct diagnosis was; whether a need for surgery was thereby indicated; whether there were less invasive procedures to be considered; the risks to the patient from the surgery; and the ability of the patient to withstand surgery are all matters which would be relevant. The prosecution case contained much evidence of this kind.
Evidence about what the appellant perceived about himself, and what insight he had, or should have gleaned, from other surgical experiences, is not relevant to an assessment as to whether he was negligent. He is not to be punished because he failed to learn lessons and obtain insights. He will be punished by the law only if the opinion he formed was, judged objectively by the standard of conduct that the law requires, so careless and so unskilled as to be grossly negligent and if the surgery which followed caused death or grievous bodily harm.
Relevance of the evidence relating to Mr Grave
A similar misapprehension about the relevance of the appellant's subjective understanding of his competence attends the respondent's submission concerning the evidence relating to Mr Grave. Such evidence was initially said to have been relevant because the appellant must have appreciated his lack of competence when he later undertook the same operation, an oesophagectomy, on Mr Kemps. This is not a correct application of the objective test.
In any event, this is not the approach which was ultimately taken by the respondent to the probative value of this evidence at trial. In argument before this Court it was contended that, in the end result, the evidence about the post-operative complications that Mr Grave suffered was relevant only to the issue of where an operation of the kind conducted should have been carried out, which is to say whether it required, for post-operative care, the facilities available at larger intensive care units at metropolitan hospitals. There were differences of view about whether the intensive care unit at Bundaberg Base Hospital was adequate. In any event, it is conceded by the respondent that there was no evidence that, if Mr Grave's surgical procedure had been undertaken in Brisbane, the outcome of the operation would have been different.
Moral culpability as a test
The appellant's alleged lack of competence is also said by the respondent to be relevant to whether the alleged breach of the duty imposed by s 288 was "morally grave". It will be recalled that in Callaghan v The Queen[44] it was explained that the degree of negligence required to prove that a person is guilty of manslaughter is gross or criminal, the offence being contained in a criminal code dealing with crimes involving grave moral guilt. However, this is to explain the rationale for the degree of negligence required to amount to criminal negligence. It does not suggest that moral culpability is itself a test of a person's guilt.
[44](1952) 87 CLR 115 at 121, 124.
It may be inferred that the moral aspect of the appellant's conduct to which the respondent refers, by way of this submission, is the appellant's supposed awareness of his limitations when he decided to undertake the surgery. This is at least consistent with the respondent's other submissions. So understood, the submission suffers from the same problem, explained above, as those submissions concerning the use of an accused's subjective intentions or understanding about the risks being taken.
It has been said that a conviction for manslaughter should reflect the principle that there should be a close correlation between moral culpability and legal responsibility[45]. That correlation, however, should be achieved by the degree of negligence required[46].
[45]Wilson v The Queen (1992) 174 CLR 313 at 334.
[46]R v Lavender (2005) 222 CLR 67 at 108 [128].
Relevance of post-operative care
There was a considerable body of evidence led by the prosecution concerning the problems in Mr Morris' post-operative care which were connected to his death. Detailed evidence was also given of the nature and the extent of the suffering of Mr Morris in the period leading to his death, including his mental anguish.
The immediate cause of Mr Morris' death was the aspiration of vomit into the lungs. It is not evident that the appellant was said to have been responsible for the mis-positioning of the nasogastric tube but there was evidence connecting the stoma to the post-operative blockage of the colostomy which, in turn, was linked with the aspiration. Malnutrition was said to have been a secondary cause of death. There was evidence that a surgeon is responsible for the maintenance of a patient's nourishment post-operatively and that the failure to address this patient's nutritional requirements suggested the level of care fell below that of a competent surgeon.
Evidence of post-operative difficulties was given with respect to the other three patients. The cause of Mr Phillips' death was directly attributable to the failure of dialysis treatment to reduce his potassium levels, which induced heart failure. Evidence was led of his "parlous" condition post-operatively, which deteriorated until his death. Evidence was led concerning the action the appellant should have taken, namely, returning Mr Kemps to theatre in order to identify and stop his bleeding. There were post-operative complications with respect to Mr Vowles' stoma and there was evidence that it needed repositioning by another surgeon. Evidence was given concerning the problems and discomfort associated with this complication.
What was a substantial body of evidence as to the post-operative condition of the four patients was tendered, most clearly in the case of Mr Morris, in order to show that the appellant was criminally responsible for what then occurred. It is now said that, when the prosecution case narrowed, it remained relevant to issues of causation.
It may be accepted that, in respect of the patients who died, the prosecution needed to explain to the jury the sequelae to the surgical procedures and the part they played as causes of death. The direct cause of death in each case was not the surgery and arose post-operatively: the aspiration of matter by Mr Morris; heart failure caused by Mr Phillips' high potassium levels; and uncontrolled bleeding from an unidentified source in the case of Mr Kemps. But the evidence which was called by the prosecution went beyond these purposes and made other, more general criticisms of the appellant's conduct. That evidence was not relevant, whether to proof of causation or at all. Apart from evidence about the appellant's part (if any) in placing and monitoring the feeding tube in Mr Morris and in not taking Mr Kemps back to theatre quickly enough, evidence critical of the appellant's post-operative care was not relevant to whether the decision to operate was a substantial cause of each patient's death.
Relevance of the ventilator incident
At least eight witnesses gave evidence with respect to the ventilator incident.
The evidence included testimony by the instrument nurse who assisted the appellant in Mr Kemps' surgery, who said that she had heard that Mr Kemps' operation might not be proceeding because there were insufficient beds in the intensive care unit. The appellant gave instructions that the patient who was then attached to the ventilator was to be removed from it and the bed made available. The appellant was said to have become angry when he realised those instructions had not been carried out. The reason the appellant's instructions were not followed was that procedures necessary for the removal of life support had not been undertaken. A clinical nurse had obtained further instructions from an anaesthetist, Dr Joiner, that the patient was not to be removed from the ventilator until the proper procedures had been completed. When they were, the head of the anaesthetics department, Dr Carter, turned off the ventilator. Of particular significance in the context of this evidence was the statement alleged to have been made by the appellant to the clinical nurse, to explain the need to act promptly. He was alleged to have told the clinical nurse that he had to perform the operation that morning as he was due to go on leave in a day or two.
This evidence was clearly prejudicial to the appellant. It suggests that he was unprofessional in directing that action be taken without observing proper procedures. The conversation with the nurse is likely to have created a strong, adverse feeling towards him on the part of the jury, as a person who was callously indifferent to the plight of the patient taken off the ventilator and concerned only about his own interests. The prosecution in closing address sought to downplay the incident, and emphasised that no criticism was made of the appellant for having instructed that the ventilator be turned off. By this point, however, it may be thought that the damage had been done.
The Court of Appeal held that this evidence was irrelevant, even on the wider prosecution case articulated in the original particulars[47]. The respondent does not now contend to the contrary, but says that the evidence was innocuous in light of the evidence of Dr Carter, the limited reliance placed on it by the prosecution in closing address, and the trial judge's summing up. The Court of Appeal considered that evidence concerning the ventilator was a relatively small body of evidence led over the course of a long trial and was unlikely to have been prominent in the jury's deliberations with respect to either the charge arising out of Mr Kemps' surgery or the other charges[48]. We respectfully disagree. The evidence is likely to have made a strong impression upon the jury and to have reinforced adverse views about the appellant, professionally and personally, which the prosecution was encouraging the jury to form by the evidence that it led.
[47]R v Patel; ex parte A-G (Qld) [2011] QCA 81 at [136].
[48]R v Patel; ex parte A-G (Qld) [2011] QCA 81 at [137].
Relevance of evidence of conversations with relations
Malnutrition was regarded by an expert witness as a secondary cause of the death of Mr Morris and to have contributed to it to a significant extent. Evidence of non-expert witnesses reinforced this aspect of the case against the appellant. Mr Morris' daughter gave evidence of the concerns that his family had as to whether her father was receiving sufficient nutrients. She relayed these concerns to the appellant and received off-hand responses, accompanied by advice that the nasogastric tube was working. Clearly it was not.
There was evidence from a number of nurses to the effect that the appellant advised Mr Phillips' mother and sister that he was stable and improving, when he was not, and that he became upset when he learned that other medical or nursing staff had advised the family to the contrary. Similar evidence was led concerning conversations with Mr Kemps' wife, and with Mr Grave's wife and daughter.
It is difficult to imagine that evidence of this kind made no impression upon the jury, which was also told in detail of the suffering of the patients and the distress that their condition caused their families. Indeed, the trial judge remarked in the course of the trial that he had observed members of the jury taking notes whilst family members of the deceased patients were giving evidence.
A substantial miscarriage of justice?
There can be no doubt that the evidence referred to above was highly prejudicial to the appellant and that much of it was rendered irrelevant by the narrowing of the prosecution case. Where it was relevant to issues such as causation, some of it may nevertheless have been excluded in the exercise of the trial judge's discretion had the trial been conducted on the narrower basis from the outset. The appellant was denied an opportunity to have much prejudicial evidence excluded.

Inadmissible evidence of incompetent surgery. Evidence of the appellant's conduct after he recommended surgery for Mr Vowles had, however, already been admitted. There was evidence of surgical incompetence: the stoma the appellant created was defective and needed revision. This caused numerous problems: it was "a horrendous time" for Mr Vowles and his family. The revision by the appellant failed. It was undertaken too early. A further revision by another surgeon succeeded.
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.
The "ventilator" evidence. Eight witnesses gave evidence from which the jury could have reached the following conclusions. Before Mr Kemps's operation, it was perceived that a ventilator had to be available to assist Mr Kemps after the operation. A ventilator was being used to keep alive a female patient, Mrs Turton, who was terminally ill and brain-dead because of a cerebral bleed. The appellant, in an upset, angry, heated and petulant manner, demanded that Mrs Turton's ventilator be turned off prematurely. After some controversy between the appellant, an anaesthetist and a resident, the ventilator was turned off. Mrs Turton died. The appellant's motive was to ensure that the ventilator could be available to Mr Kemps so that the appellant could complete the operation on Mr Kemps in time to enable him to go on holidays.
This evidence was irrelevant to the prosecution case as defined in the original particulars. It was irrelevant to the prosecution case as defined in the revised particulars. It was irrelevant to the prosecution case as described by the trial judge to the jury. To none of these cases were haste, neglect of pre‑procedures for surgery or failure to follow brain-death protocols relevant. The Court of Appeal concluded that the evidence was irrelevant. Despite that, in this Court the respondent submitted, both in written submissions and in the documentary summary of its oral address, that the ventilator evidence was relevant. Only in oral argument did it concede that the evidence was irrelevant on the original particulars and on the revised particulars.
The trial judge considered that "potentially devastating prejudice" lay in the evidence. It lay not in the desire to go on holidays, but in the allegation that the appellant "arranged for the premature death of the patient on the ventilator." The trial judge thought this was "pretty nasty stuff before a jury." He also said: "This has a significant potential to have an effect upon the jury that is out of all proportion to its probative value". Some of the jurors may have held the view that there is no moral difference between shutting off a ventilator and murder. Clough expressed this view in "The Latest Decalogue"[114]:
"Thou shalt not kill; but need'st not strive,
Officiously to keep alive".
[114]Poems, 3rd ed (1871) at 142.
The Court of Appeal considered that the ventilator evidence was unlikely to have been prominent in the jury's deliberations. The trial judge's view is preferable. The respondent argued that any prejudicial effect of the evidence was "diffused". That is extremely doubtful. The prosecution's opening address referred to it at some length. Prosecution counsel said that the incident, coupled with the appellant's talk about going on holidays, was an indicator of unseemly haste, and a consequence of that "may well [have been] a lack of preparation done in staging the operation." Prosecution counsel in closing address also referred to the incident. He said:
"[P]rior to the operation there was an elderly lady on the ventilator whose ventilation was turned off, and the significance of that is, you will recall evidence from the nurse Brennan about being shouted at, and evidence of a tantrum that Carter spoke of about that.
What that points to is really a rush to do this. All of that evidence led up to Brennan reporting to us that the [appellant] said that he was going on holidays, and that's essentially why this had to be done, and it was coming up to Christmas-time, as we know.
Now, I emphasise – I emphasise this: there is no criticism of the [appellant] over this issue with respect to turning off the ventilator for that unwell lady. It was her time. But the evidence about it prompts this conversation about the holiday and his urgency to get this done. That might, you might think, be a driver for his haste in doing this, for not consulting, for not getting all that wide array of opinions that we all know about now that are necessary before you undertake this scope of operation."
Defence counsel then addressed on the matter. That part of the transcript goes over two pages. The trial judge referred to what defence counsel said.
The Court of Appeal said that the ventilator evidence had "been made irrelevant by the change in particulars". That is not so. It was always irrelevant. The Court of Appeal said: "Part of that evidence cast the appellant in an unfavourable light." That is inaccurate. All of it was capable of casting him in an unfavourable light. The Court of Appeal then said:
"But although it demonstrated that the appellant acted in relation to the Kemps operation with undue haste and ignored protocols concerning the turning off of ventilators, it would have been plain to the jury that there was no question of the appellant's wanting the ventilator switched off prematurely or misguidedly."
This fine distinction may have been plain to some jurors. It may not have been plain to others. The Court of Appeal then said: "The evidence in relation to the ventilator was a relatively small body of evidence led in a 58 day trial in which evidence was led over approximately 39 days." The evidence came from eight witnesses. It was given more than halfway through the trial on four days, spread over a five-day period. The Court of Appeal said: "That piece of evidence was thus unlikely to have had prominence in the jury's deliberations, either in respect of the count concerning Mr Kemps or the other counts." It certainly should not have had prominence – for it had no relevance whatever – on the other counts. Even if the evidence can be characterised, as the Court of Appeal did, as "short", deference should be paid to the view of the trial judge that it was "pretty nasty". That was the assessment of a lawyer with very great experience of criminal trials by jury. He was uniquely placed to assess prejudice in relation to this particular jury. The evidence showed graphically, on one view of it, that the appellant was prepared to ignore and break hospital rules that were in place for good reasons and that he was prepared to show a callous disregard for human life by prematurely ending it in order to fit in with his holiday plans. The evidence was objected to in a pre-trial hearing conducted by a judge other than the trial judge at a time before any particulars were supplied. That judge said:
"[The appellant's] actions in relation to securing the provision of a ventilator are quite proximate in time to his surgery on Mr Kemps. They provide some evidence of a motivation on [the appellant's] part, unrelated to a concern about the most appropriate treatment for either patient. They also provide some context for the evidence relating to his failure to undertake proper preparation for the surgery."
That was said in response to a submission that the appellant failed to undertake the "necessary staging", or was guilty of "inadequate surgical workup" before commencing surgery. The supply of the original particulars made it clear that the evidence was irrelevant. But by then it would have been very difficult to persuade the trial judge to reverse the other judge's earlier ruling that the evidence was admissible. The evidence continued to be totally irrelevant once the original particulars were revised so as to centre on the appellant's decision to operate on Mr Kemps. It was totally irrelevant to the decision to operate. Even if it had been relevant, its prejudicial effect was grossly disproportionate to its probative value.
Conclusion. Some of the evidence relating to Mr Kemps was inadmissible even before the original particulars were supplied. Some became inadmissible after the revised particulars were supplied. Some became inadmissible after the trial judge's summing up.
The Court of Appeal observed, correctly, that the defence had not applied for the ventilator evidence to be excluded on discretionary grounds, and had not applied for any particular direction to be given about it. It is now necessary to give reasons why those failures should not debar the appellant's arguments from succeeding in relation to both the ventilator evidence and the enormous quantities of other evidence which either was inadmissible from the start or which became inadmissible after the prosecution case changed.
The failure to object and the failure to ask for directions
A lot of the evidence which the appellant now argues is inadmissible was not objected to when it was tendered. No application to exclude it was made after the particulars changed. No application for any jury direction about it was made. The respondent attempted to make much of this.
Failure to object. There is no doubt that a complaint on appeal that evidence not objected to at trial is inadmissible is ordinarily one that is very hard to make good. The appellant's success in this appeal, despite a failure to object, should not be taken as an auspicious precedent, capable of fructifying into widespread future use. But the circumstances of the appellant's trial were not ordinary.
Some of the prosecution evidence was never admissible. A lot of the evidence – not all, but a lot – which the appellant now complains about was admissible on the original particulars, unsatisfactory though the trial judge kept saying that they were. Other parts of the evidence fell outside them. While others might have objected to evidence inadmissible even on the original particulars, the decisions of defence counsel not to do so are understandable. The jury could have been angered by repeated objection, or provoked into thinking that defence counsel was attempting to conceal something very damning.
The trial judge had repeatedly said that the original particulars were incoherent, had permitted the deployment of every possible complaint about the appellant and had led to mud slinging. But he declined either to discharge the jury or to grant an adjournment for the particulars to be regularised. It is therefore very likely that the trial judge would have been unreceptive to complaints that evidence fell outside the particulars (putting aside some evidence which, even if within the particulars, might have been excludable on discretionary grounds). Any objection to evidence of incompetent surgery or post-operative care would inevitably have failed. If the particulars had been narrow it would have been much easier to object on grounds of relevance and discretionary exclusion. The original particulars were so wide as to preclude a great many of the objections which later became available. Much of the evidence admissible under the original particulars ceased to be admissible when the particulars were revised. Even more of it ceased to be admissible when the trial judge, without protest from the prosecution, narrowed the case further in his summing up. Once the discharge application on the forty-fourth day failed, there was no point in defence counsel trying to have the objectionable evidence rejected at that late hour. It had had its impact – the thirty-nine days of mud throwing to which the trial judge had often referred. That impact was inexpungible. Defence counsel's failures to object therefore lack determinative significance.
Failure to seek special directions. The prejudicial effect of evidence, which may once have been admissible but which had ceased to be after the particulars had narrowed, was so extensive that it could not be cured. There was no point in seeking special jury directions. Those directions could only remind the jurors of what some might have forgotten. It would have been self-defeating to ask the jurors to bring the prejudicial evidence to their minds, and, having got it clearly fixed there, then to ask them to put it back out of their minds. To refer to each piece of inadmissible evidence and say that it was inadmissible would have taken a very long time. To redact the transcript would, as the trial judge said, have been a time-consuming exercise. It would not have addressed the fact that many jurors had been taking notes. It would have called for a complex dissection of the lengthy expert evidence into what remained admissible and what did not. Special directions and redactions of the transcript would have intensified the problems they were directed to solve. It was probably beyond human power to remove from the jury's purview all the irrelevant, or relevant but prejudicial, evidence that had been admitted against the appellant. The trial judge appears to have embarked on a praiseworthy attempt to solve the problem by simplifying the prosecution case as being even narrower than his initial view of the revised particulars. That technique revealed how the prosecution might have run the case if it had employed more economy and discrimination. But, in its own way, the trial judge's technique increased the extent to which masses of evidence became inadmissible.
The appellant correctly submitted that a further problem arose from the trial judge's directions. In giving a conventional direction that the jury was bound by his Honour's directions on the law only, the trial judge said: "You are to determine the facts of the case based on the evidence that has been placed before you." That could have left the jurors with the impression that they were at liberty to use any part of the evidence which had been placed before them for any purpose they thought fit. That evidence included the "welter of prejudicial material" to which the trial judge had referred[115]. That comment did little to reduce the potential for a miscarriage of justice. The trial was long. Much of the evidence was technical. Much of it concerned operative technique, post‑operative treatment, the sufferings of the patients, and the distress of their families. Much of the evidence was also, in the light of both the revised particulars and the trial judge's summing up, irrelevant. The most comprehensible and moving parts of this irrelevant evidence concerned the sufferings of the appellant's patients and the distress of their families. The sheer volume and power of this evidence would have weighed on the lay jurors. The trial judge observed them taking notes about it[116]. While the jurors may have understood the trial judge's summation of the ultimate case as being largely about a decision to operate only, it is very difficult to think that they would not be fortified in reaching a guilty verdict by the "welter" of other prejudicial evidence heard. The jury had not been present when the trial judge repeatedly expressed to counsel his confusion about the prosecution case. The jurors had no reason to think that they were required to do anything other than pay close attention to the detail of the prejudicial evidence.
[115]See above at [187].
[116]See above at [192].
The respondent's stance in the appeal
The respondent contended that all the evidence which the appellant said was inadmissible because of the change in particulars was still admissible.

Evidence of decline. One argument of the respondent was that "the voluminous evidence given about the state of each patient between the operation and the time of death ... demonstrated the progression of health from operation by way of a steady decline to ultimate death". But the argument did not explain why that made the evidence admissible.
Causation. A second argument was that much of the evidence went to causation[117]. The argument was that all the post-operative care evidence was necessary to exclude as causes of death any matters not connected with the decision to operate. There are difficulties in this argument.
[117]See above at [219].
One is that it cannot assist in relation to Mr Vowles, who did not die.
There is another, and wider, difficulty. Before the revised particulars were supplied, the prosecution case was that the death of Mr Morris was caused by incompetent advice that there be surgery, or incompetent surgery, or incompetent post-operative care, or any of those factors in combination. In the cases of Mr Phillips and Mr Kemps, the prosecution alleged that the deaths were caused by incompetent advice to undergo surgery, or incompetent surgery, or both. The only allegation of causation in the revised particulars was framed thus in the particulars supplied in relation to Mr Morris: "the patient died as a consequence of the surgical procedure because the [appellant] did not have reasonable skills and did not use reasonable care the details of which are set out below." There follow allegations that the decision to operate was wrong. The same formulation was used for Mr Phillips. It was also used for Mr Kemps, but failure to stop his bleeding was alleged as a cause of death as well. The revised particulars revealed a considerable about-face in tactics. The prosecution was saying in the case of Mr Morris that: "It was only the decision to operate which caused death, and we have excluded the other two as possibilities." In the case of Mr Phillips, the prosecution was saying that death was caused by incompetent advice to undergo surgery, and that it had excluded incompetent surgery. Only in the case of Mr Kemps did the prosecution maintain both advice to undergo surgery and the surgery itself as causes of death.
The prosecution was thus reversing its case in relation to Mr Morris and Mr Phillips. Before the revised particulars, incompetent surgery and post‑operative care were alleged as causes of Mr Morris's death. After that time they were not. Before the revised particulars, incompetent surgery was alleged to be a cause of Mr Phillips's death. After that time it was not. This is an extreme version of the problem that Lord Bingham of Cornhill CJ referred to in R v Carr[118]:
"[A]ny defendant (not least a defendant accused of murder) is entitled to know whether the Crown relied on a kick or a punch or both … [W]e think it unfortunate, the prosecution having apparently nailed its colours to one version of events in opening, namely that the deceased was felled by a karate kick, that the prosecution sought, and the judge permitted, departure from that position in the course of the case, at any rate without making sure that the defendant was in no way prejudiced."
The revision of the particulars was equal in significance to amending the indictment. In R v Johal, the English Court of Appeal said[119]:
"amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby."
And in S v The Queen[120], Dawson J said that amendments to the indictment "may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that [they] cannot be made during the course of a trial".
[118][2000] 2 Cr App R 149 at 156-157 per Lord Bingham of Cornhill CJ (Scott Baker and Curtis JJ concurring).
[119][1973] QB 475 at 481 per Karminski LJ, Ashworth and Hinchcliffe JJ, approved in R v Radley (1973) 58 Cr App R 394 at 403.
[120](1989) 168 CLR 266 at 274.
In any event, it is not possible to sustain the continued admissibility of the evidence to which the appellant now objects by recourse to causation. The respondent submitted in this Court that "everything that happened to Mr Morris from the time of the operation until the end bore upon proof of causation in respect of [the decision to advise] the operation." That submission must be rejected. There was expert evidence about causation. The jury could, on that evidence, form a view as to whether causation was or was not made out. The mass of evidence about Mr Morris's sufferings was not necessary to prove the prosecution case on causation.
Moral gravity. A third argument of the respondent is that evidence of the appellant's incompetence went to showing that his alleged breaches of duty were morally grave. But the respondent did not explain how conduct of the appellant, not alleged to be itself a breach of the duties imposed by civil and criminal law to provide competent surgery and competent post-operative care, can establish that an earlier breach of duty in relation to advice about having an operation at all was morally grave.
Consciousness of guilt. A fourth argument is that some of the appellant's conduct after the surgery reveals a consciousness on his part that he had been negligent, and was admissible to prove criminal negligence and the gravity of that negligence. This matter was not debated in detail, whether at trial, in the Court of Appeal, or in this Court. Potentially difficult issues arise in relation to the admissibility of this type of evidence. Those who contend that it is admissible often have to descend to some degree of detail in justifying admissibility. This was not done here. In those circumstances, little will be said about the matter, particularly in view of the fact that a new trial is to be ordered. If that new trial takes place, admissibility may have to be debated in detail. To some degree at least, the incidents referred to appear to reflect no more than the reaction of a busy professional, under severe stress and prone to irritation, understandably troubled at the unfortunate consequences for his patients of their medical treatment. Incidents of that character may well be irrelevant, or excludable on discretionary grounds, or incapable of satisfying the tests for receiving evidence of admissions by conduct.
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.
The respondent's proviso arguments rested on the assumption that all the evidence had been "properly admitted at trial". That is because they were directed to whether the proviso applied in the event that the appellant's construction of s 288 prevailed. That construction has not prevailed. The respondent's arguments were not directed to whether the proviso applied where much of the evidence had not been "properly admitted at trial". It is not surprising that the respondent did not present proviso arguments directed to that state of affairs. It would be very difficult to do so in the particular circumstances of this case. That is because the flaws in the revised particulars make it almost impossible to read the record of the trial putting to one side the inadmissible evidence. The revised particulars do not readily permit definitive decisions about the admissibility or inadmissibility of many pieces of evidence. It is relatively easy to consider whether to apply the proviso where there is one or a small number of technical errors of procedure, evidentiary reception or misdirection. It is extremely difficult to do so where, as here, the prosecution tactics have created great prejudice and the now proffered criterion of evidentiary admissibility is in numerous respects unworkable. This is a case in which, to use the words of Gleeson CJ, the "departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case." That is because "the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant."[127] For those reasons, even taking the most charitable view of the respondent's position, it is not possible to say that no substantial miscarriage of justice has actually occurred. The truth is that the appellant was the victim of very substantial miscarriages of justice.
[127]Nudd v The Queen (2006) 80 ALJR 614 at 618 [6]; 225 ALR 161 at 163.
Omitted matters
The appellant presented arguments in relation to the admissibility of what the parties called "the Oregon order". In view of his success on other issues, it is not necessary to deal with them. Nor is it necessary to deal with questions about whether miscarriages of justice flowed from the trial judge's decisions to dismiss the first jury discharge application and to refuse the appellant's request for an adjournment with a view to the supply of proper particulars.
The appeal raises two very difficult questions, which were not articulated or debated by the parties. One is: to what extent can and should judges in a criminal trial by jury intervene of their own motion to reject evidence to which a party fails to object[128]? The other question is: when should judges in a criminal trial by jury compel the prosecution to provide particulars even though the defence has not pressed for them? One source of the difficulty in relation to each of these questions is that some think it undesirable to interfere with the autonomy of trial counsel in conducting trials as they see fit. These questions need not be answered in this appeal.
[128]The issue has been discussed in statutory contexts in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 287 [149]; Dhanhoa v The Queen (2003) 217 CLR 1 at 8-9 [18]-[22]; [2003] HCA 40; R v Kaddour (2005) 156 A Crim R 11 at 26 [62] and Gonzales v The Queen (2007) 178 A Crim R 232 at 243-244 [24]-[26].
Order
The appeal must be allowed, the orders of the Court of Appeal set aside, the convictions quashed and a new trial ordered. Whether, in all the circumstances, a new trial should in fact take place is a matter for the prosecuting authorities.