Patel v The Queen

[2012] HCATrans 135

[2012] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B11 of 2012
No B25 of 2011

B e t w e e n -

JAYANT MUKUNDRAY PATEL

Appellant/Applicant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 7 JUNE 2012, AT 10.00 AM

(Continued from 6/6/12)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours, notwithstanding the order in our oral outline, may I go to the issue of particulars first because I apprehend it might make the submissions about the law a little more efficient.  In order to deal with the particulars, could I take your Honours to the course of the trial as quickly as I can?  If your Honours would go please to volume 1, which is one of the pink volumes I think, and to page 70, you will see there set out over the next few pages the course of the trial.

Relevantly, on page 70 at the top the indictment was presented on 24 April 2009, about a year before the trial hearing commenced.  Between the date of the presentation of the indictment and the hearing itself counsel for the appellant, Mr Byrne, whose name you can see at the foot of the left‑hand column of page 70 appearing upon an application, appeared from time to time and others his junior appeared.  But there were, between the date of presentment of the indictment and the date of the trial, 10 appearances involving a variety of applications either by the Crown or by the defence.

Relevantly, at page 72, in the right‑hand column at the foot, one of the applications related to a discussion about what the Crown was going to say in its opening remarks to the jury.  So that explains a little about why the judge said from time to time, but you never asked for the particulars.  He did not mean you never asked for the particulars.  He meant you did not ask for them until the Saturday before the trial.  There was a Saturday sittings.

On page 23, left hand column at the top, 20 March was a Saturday.  I am recorded as there but I have no memory of it, which is odd for a Saturday appearance.  But nothing turns on that except that it is common ground that at that hearing Mr Byrne did ask for particulars to be provided on the first occasion.  Then if your Honours would go to volume 3 please?  At page 511 the Crown began to open its case and ‑ ‑ ‑

HAYNE J:   Just before you go on, Mr Solicitor, have we got some record in the books of the events of 20 March?

MR SOFRONOFF: No, you do not. All you have is a reference by either Mr Byrne or Justice Byrne to the fact that particulars were asked for on that Saturday. I will turn up that reference which is the only matter that is ‑ ‑ ‑

HAYNE J:   So we do not have a transcript of what was sought?

MR SOFRONOFF: No. But what we do know ‑ ‑ ‑

HAYNE J:   Why was a transcript not taken of that hearing?

MR SOFRONOFF:   Excuse me, your Honour, I will see if there was.

HAYNE J:   It is most unsatisfactory if it was not.

MR SOFRONOFF:   We will see if it was, your Honour.  If we go to volume 3, your Honours, between pages 511 and 513 the Crown Prosecutor summarised the case that was going to be made, and your Honours will see at 511, for example, at about line 15 when speaking about the operation he said:

this was simply the wrong thing to do, medically –

and then went on to explain why it was wrong to do the operation.  At the foot of the page at about line 50 in speaking about Mr Phillips, just above line 50:

This is a very major and dangerous operation which should not have been done –

And then Mr Kemps is dealt with between lines 30 and 60 and it is spoken of in terms of doing the operation.  Then he went on at much greater length to deal with the detail of the circumstances which rendered the doing of those operations negligent.  At page 515 you will see at the top of the page at line 10 and at line 50 the Crown Prosecutor referred to the need for him to establish causation which remained an issue until the end of the trial in relation to at least one or two of the patients, and indeed there was cross‑examination which I will not go to about that.

Then from 523 to 546, your Honours need not read it, the case of Mr Morris was dealt with in detail, and as you can imagine it dealt with the medical history of Mr Morris, what brought him to the hospital, what tests were done and what tests were not done, the operation and of course, its sequelae up until his death.  Mr Morris survived for three weeks until he died and, causation being an issue, it was necessary to deal with what happened in respect of Mr Morris from the date of the operation until the date of his death in order to show the continuing causative length between the operation and the death.

In any event, it could not be imagined that the Crown in a case of an operation causing death would lead evidence of the preoperative facts, the operation and then saying nothing to the jury about what happened between the time of the operation and the death.  In any event, no objection was taken to any of that.  It was foreshadowed, it was opened and then evidence was given.  Then if your Honours would go to page 547, your Honours were taken to this and the additional pages recording the discussion between counsel and the judge in the absence of the jury about the particulars.

At the foot of page 547 his Honour raised a point that he said was important, the necessity to demonstrate that whatever negligence was being alleged had to be negligence that was causative of death and foreshadowed that ‑ or rather apprehended that the particulars ought to deal with that.  Then at 547A at about line 20, after some submissions made by the prosecutor, defence counsel said:

My concern is that’s the first time I have heard them particularised.  There is a number of those clearly, even on the opening by my friend, go to causation.

That is to say, he had not yet heard particularised before the things that were said to be negligent which caused death.  At the foot of the page is the reference to the Saturday:

I had made the assumption on Saturday that we could get the particulars in due course.  What’s happened this afternoon causes us some concern that we may need those sooner rather than later –

Now, no application was made for their delivery or for the evidence not to be called until they were given.  There was a program evidently in place for the provision of the particulars in modules.  That is to say, the particulars in respect of Mr Morris before the evidence was called, the particulars in respect of Mr Phillips before that evidence was called.

And the way the case was conducted evidently by agreement was that if a doctor had relevant things to say about each of the patients, that doctor would be led in‑chief and then cross‑examined about Mr Morris, for example, and then his evidence would cease and then the doctor would be recalled at a later stage when the second patient was dealt with and would be led in‑chief again in respect of that patient.  So there were four mini trials in that sense and that is why the particulars were evidently agreed to be delivered in good time before each module commenced.

HAYNE J:   Can I take you to 547A at line 39.  Is that an accurate summary of the way in which the Crown had opened its case?

MR SOFRONOFF:   At line what, your Honour?

HAYNE J:   Line 39:

In addition to that, other things I mentioned which took place post surgery.

MR SOFRONOFF:   Yes, your Honour.

HAYNE J:   So it was one of these things or a combination of them and that is the Crown case?

MR SOFRONOFF:   Yes, that is right.

KIEFEL J:   I think that appears quite clearly from page 545, line 10:

You will be invited to conclude from the evidence that Mr Morris died from either of or a combination of the surgery performed –

MR SOFRONOFF:   Yes, that is right.  Then the second day of the trial began with the opening being concluded.  If your Honours go to page 566 in volume 3 you will see that that is where the opening concludes.  Then the first witness was called.  The evidence of the first witness is not reproduced.  Nothing turns on the evidence of the first few witnesses.  Relevantly, on the second day, from the second day 14 witnesses were called – we can see this from the index volume of the list of witnesses – and cross‑examined.  Then on the third day at page 747, the draft particulars were provided at the foot of page 748.

FRENCH CJ:   Was there ever an explanation of why the Crown was not able to provide particulars before the commencement of the trial?

MR SOFRONOFF:   Your Honour, I think this is correct, and I will be corrected by somebody at my side if I am wrong.  No particulars were sought.  On the Saturday before the Monday that the trial started they were first asked for.  The Crown was preparing to lead evidence in a 40 week trial and nobody suggested that it would have been practicable to produce a set of particulars before the trial opened on Monday and that was not asked for.  If it had been asked for and insisted upon, no doubt orders might have been made to adjourn even the opening until that was done but it was not asked for.

KIEFEL J:   You would have thought that particulars would have been readily able to be produced if you were doing a proper opening.

MR SOFRONOFF:   If you were doing?

KIEFEL J:   If you were doing a proper opening.

MR SOFRONOFF:   Perhaps, your Honour, but ‑ ‑ ‑

HAYNE J:   What else are you going to be opening to the jury?

MR SOFRONOFF:   What else ‑ ‑ ‑

HAYNE J:   Except the case the Crown essayed to prove.

MR SOFRONOFF:   Quite, your Honour.

HAYNE J:   And why is that not the statement that would find reflection in a single page of particulars?

MR SOFRONOFF:   Perhaps it could, your Honour, but the way the case was conducted as a matter of convention between defence counsel and the prosecution was that when particulars were sought defence counsel was content to hear the opening without having the particulars, was content for the evidence of 14 witnesses to be led and cross‑examined upon without having the particulars.  Draft particulars were provided then on the fifth day at page 748, and I think on the same day the set of particulars that were to be operative were then provided on day 6.

The draft was delivered on day 5 and the trial continued with the calling of more evidence up to page 761 when a witness was called, Whitfield, and then the trial resumed on the sixth day at page 773 when the operative particulars superseding the draft were provided; they became exhibit K.  Now, could I take your Honours to those particulars which are in volume 15, at page 6054?  Your Honours will see that they consist of categories.  The first three paragraphs allege the performance of the surgery by the appellant and the global allegation in paragraph 3.  What then follows are categories, four categories of negligence.  The first in paragraphs 4 to 8 particularise that doing the operation:

would be dangerous to the life and health of the patient ‑

and the reasons for that, the pre‑existing conditions, and that the appellant knew or ought to have known those and ought not have performed because –

a surgeon, having reasonable skill and using reasonable care –

would not have done so.  Paragraphs 9 to 12 allege that it was negligent to do the operation because there were other non‑invasive safe treatments available.  Paragraph 13 to 16 allege that it was dangerous to do so because the patient was suffering from multiple conditions which rendered such an operation likely to kill him.  That is repetitive to a degree of paragraphs 4 to 8, but not confusingly so.  Paragraphs 17 to 20 allege that it was “unnecessary” to perform the operation.  That is another way of putting the matters in 9 to 12.

Then paragraphs 21 and 22 allege actual acts during the operation and post‑operative acts ‑ the first set in 21, the second set in 22 – which are then alleged in paragraph 23, along with the doing of the operation in the circumstances of danger and other safe treatments being available allege that the conduct of the appellant caused the death.  Your Honours will see 23(a):

the accused performed the surgical –

treatment and it is that that is said to have caused the death, the performance of the operation, not a decision to operate.  Then if one goes over the page ‑ ‑ ‑

FRENCH CJ:   So these are and/or particulars in support of causation?

MR SOFRONOFF:   Yes.  If your Honours go over the page, the Crown Prosecutor opened and particularised the Crown’s case to exclude section 282, the defence provision, and did so in the terms between paragraphs 25 and 29, and those particulars referred back to earlier facts particularised.  Now, in our respectful submission, it could not be said and, although the judge did say it, it could not fairly be said that those particulars were confusing.  It could be said that they are prolix.  It cannot be said that they are confusing.

KIEFEL J:   Where does the good faith provision come from, Mr Solicitor?

MR SOFRONOFF:   Section 282, your Honour, the operation must be “in good faith”, et cetera.

BELL J:   Let us accept that the particulars were not confusing; they are particulars of a broader case than the case that was ultimately put to the jury.

MR SOFRONOFF:   That is true, your Honour, in respect of this patient, Mr Morris, certainly.  I will come to the other particulars, of course.  I am sorry, your Honour.

BELL J:   All I am taking up with you, Mr Crown, is there has been quite a concentration on the history of the particulars and arguably the neglect of defence to seek particulars in a timely fashion.  Another way of looking at this is the Crown opened a case that ultimately it accepted it could not or would not seek to prove and it led evidence in an endeavour to establish that case that it could not or would not prove.  Is that not the area that ‑ ‑ ‑

MR SOFRONOFF:   Of course, it is an important area, your Honour, yes, and I will come to that.  The area in respect of which the Crown did not persist in alleging negligence was confined, and the evidence in relation to those matters, as we will seek to demonstrate in due course, remained relevant for other purposes.  So that will be the answer to that.  The extent to which the case was abandoned was confined and the evidence in relation to that case remained relevant for other purposes.

While we are at this set of particulars, in respect of Mr Morris, what was abandoned was what was said to be discrete acts of negligence in paragraphs 21 and 22; that was abandoned.  And the references ‑ ‑ ‑

HAYNE J:   Also abandoned was (d), which was the way the case was opened, namely, a “combination” of some or all of it.

MR SOFRONOFF:   Of course, your Honour, that followed.  In addition, the allegations in 25 to 29 relating to section 282 were abandoned, but in respect of those the facts were facts which were particularised in the other particulars and the Oregon order was relevant for other purposes and we will deal with that in due course.  Now, the particulars were delivered, your Honours have now seen them.  If we go then back to volume 3 at page 773, your Honours will see at line 30 defence counsel said he might need some time to consider them.

There is no complaint at that stage about their content or anything else in relation to them.  But there is a matter raised in relation to evidence.  What follows for the next few pages is a complaint about non‑disclosure of evidence that has been led or is going to be led, and that begins from line 40, continues to page 776.  At page 776 just above line 50 Mr Byrne says:

But to answer your Honour’s question directly, our concern is that we do not believe we should be rushed on this.

This is to apprehend the new evidence that he says had not been disclosed to them.  Then 777 at line 20, the judge says:

Well, if . . . he doesn’t want to embark on the cross‑examination –

because of the non‑disclosure well, he will have time.  That discussion continues until 779 when particulars are raised at line 20 and Mr Byrne said he wanted particulars about Phillips before the Phillips evidence was led, understandably, and that is that.  At page 779 your Honours will see that the only deadline set for the particulars – the only need was to have them before the Phillips evidence was led.

Then if your Honours would go then to page 789.  The trial continued on the seventh day, five witnesses were called and were cross‑examined without any complaints being made about the nature of the case or any misunderstanding about it.  Then on day 8 at page 872, Dr Collopy was called and gave evidence over a long period, and I think he was recalled later in respect of other patients.  He was an expert and was called as an expert.

He gave evidence about negligence, about causation, and the way the prosecutor approached it was to take Dr Collopy through the medical records in respect of Mr Morris from beginning to end in dealing with the history of Mr Morris and then everything that happened to him in the hospital, which of course was relevant to both negligence and causation.  And as I said, Mr Morris died three weeks after the operation and that period of three weeks was dealt with in Dr Collopy’s evidence and Dr Collopy described how the records showed the continuing deterioration of Mr Morris in specific details.  None of that was objected to.

BELL J:   Well, it was not objected to because the Crown case was that the neglect post‑operatively was a cause of death.

MR SOFRONOFF:   Your Honour, that is right.  That is one of the – but that is not all, with respect, your Honour.  It was also the Crown case that a substantial cause of the death was the operation.

BELL J:   I understand that.  The matter I am raising with you, Mr Solicitor, is there is limited point, so it seems to me as I understand the issues, in constantly referring to the absence of objection to evidence on a case that arguably made the evidence relevant.  Whereas a case that the operation should not have been performed might have prompted different considerations in terms of whether evidence was to be objected to, one can understand the need to show that the operation performed was in a Royale sense causative of death.  Whether that required the extent of descriptions of conduct of the appellant that fell short of an appropriate standard of care in the weeks after the operation might be another matter.

MR SOFRONOFF:   Your Honour, if it was another matter in the sense of being objectionable, then one would have expected that directions would have been sought in relation to it, if not objected to and led in at least by the end of the trial, and it is the end of the trial at which we measure whether there has been a miscarriage or not.

BELL J:   Indeed.  It is just showing us at the point in the trial when defence counsel understood he was meeting a case that the Crown ultimately did not press, it seems to me not all that useful to tell us that defence counsel did not object.

MR SOFRONOFF:   I understand, your Honour, and I accept that it is not germane in the case of Mr Morris for me to say that the evidence in relation to the pleading was not objected to.  I understand that.  We would wish to make the point at the end of the day 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 operation.

To the extent that any of that evidence was inadmissible or where the balance between cogency and prejudice was wrong, it would have been – if it had been sensed that way in the course of the dynamics of the trial, at the end of the case when the summing‑up came to be made one would have expected somebody sensing that to require directions upon it, and we will not see that.

BELL J:   Well, that was because of an application that the jury should be discharged in the circumstances which included evidence that had been led that was prejudicial.

MR SOFRONOFF:   I will come to that, your Honour.  In respect of that application and its refusal, one of the things that the judge said to counsel was that if, in respect of any parts of the evidence, it is said I should make special directions, of course, I will hear that; that was invited.  Expressly – I will come to the passage – expressly counsel said they did not wish to.

Now, therefore, while accepting that an absence of objection to evidence that might be said to be objectionable later, the way the case progressed, is not germane.  Certainly, the conduct of counsel after the new particulars were delivered remains germane and there is silence about it.  Your Honours, I am just going to see if I can cut short some of this.  Yes, if your Honours would go to page 946.  Dr Collopy gave evidence in the way that I have described and at the foot of 946 – I am sorry, in the middle at about line 25 defence counsel had an application.  The jury were excused.

At the foot of the page the application is on two grounds.  The first is about the evidence, and by that he means, if your Honours would go to page 949 it is about non‑disclosure.  At the top of page 949:

A number of opinions were obtained from the witness of which we’ve had no notice and no proof.

He applies for an adjournment at line 20.  This is the Wednesday before Easter.  Just above line 30 he seeks “until Tuesday to commence cross‑examination”.  Below line 10 it is foreshadowed that the judge will not send them away until Tuesday, they are going to resume the next day.  If your Honours would go to volume 4, at page 954 Mr Byrne says there is going to be an application.  If your Honours would look at 955 at the top of the page non‑disclosure is complained about, and then his Honour:

Why does any of it matter?  By the sound of it, when finally the case is pared down it can be left to the jury in a digestible form, the essence of it is going to be that it was criminally negligent to conduct the operation at all.

He makes some further comments and Mr Byrne says:

Yes, and a critical part of that is whether –

certain things happened.  Then if your Honours would go to page 961, on the 10th day – I think this is the Thursday before Easter – the application is made for the jury to be discharged.  Section 60 of the Jury Act provides that if – I am translating it – but provides that:

(1)If a jury can not agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict.

If the judge considers there are proper reasons for discharging, the judge may discharge.  Now, what is sought here is a discharge of the jury, which is articulated, summarised in the first part of what Mr Byrne says, after saying some general things about fairness, in the last sentence:

The defence have no particulars on any of the charges, except in respect to the matter of Morris.

Now, could I ask your Honours to notice that might ground a good application to adjourn the trial until he has particulars in relation to the other patients which, indeed, were promised and acquiesced in being provided before the relevant evidence in each case was called.  It would not, in our submission, and did not in his Honour’s judgement justify a discharge of the jury at that point.  More particularly, when as his Honour accurately said:

How can you complain about that, you didn’t ask for them?

That is to say, you did not ask for them before the Saturday before the trial and then acquiesced in their provision from time to time as the case developed, which one can have different opinions about it, but it was reasonable enough on the defence part to accept that the particulars of each module concerning each patient would be provided at that time.  Equally reasonable to insist upon all of them being provided, but that was not done.  That is why Mr Byrne then answered at line 20:

Well, we – that’s true, but we didn’t expect them to be as convoluted –

Now, he never expressed why they were said to be convoluted, and one might think that his Honour, having expressed some views that you have heard about, about the particulars.  Defence counsel was rightly picking up upon those criticisms and rearticulating them back to the court, but he never expressed any problem and he never descended to any detail about why it could be said that they are convoluted or incomprehensible.

Then that application continues to be argued, and your Honours can see at page 963 the written submissions are handed up.  They have not been reproduced in the book, but we have a copy of them, if your Honours would accept them.  Would your Honours want to see those submissions?

FRENCH CJ:   Yes, I think so.

MR SOFRONOFF:   I hand up seven copies, your Honours.  Now, your Honours will see from the subtitles that we used in this outline that what is complained about is not particulars, but that there has not been disclosure.  On the second page relevant disclosure provisions, the statute.  Then there is a schedule of evidence that was led that they had not seen before.  Then there is a closing submission about the failure to disclose.  The argument about the particulars appears on pages 961 to 962, but his Honour’s responses, in summary are, well, I am hardly going to discharge the jury because you do not have particulars now about Phillips, when you were the one who asked for them on Saturday and acquiesced to their provision from time to time.

An adjournment would have been another matter, of course, but that was not asked for, it was a discharge that was asked for.  Then at page 963 the rest of it goes on to deal with the disclosure problem for a few pages, and of course, there is no complaint made about disclosure.

KIEFEL J:   At the bottom of page 963 defence counsel asks for the case to be managed with a schedule for directions for particulars to be supplied.

MR SOFRONOFF:   That is on the discharge application.  If your Honour looks at that:

the trial should be halted –

that is equivocal, it might be an adjournment he is asking for –

at this stage and that there be put in place a tightly controlled Court managed schedule to achieve and ensure fairness by having orders or directions such that particulars, final particulars could be supplied.  The Crown could, we would respectfully submit, given the way the present matter has progressed, consider their position as to whether all of these charges should proceed together with the complications that that causes and to have put in a disclosable form a full account of the evidence which is sought to be led . . . So that’s what our final submission is.

In the outline which your Honour has we have set out the material.  We’ve set out, hopefully, the relevant provisions –

Now, what he is asking for is not an adjournment until some orders can be made for the provision of particulars, and his Honour did not understand that to be said because there is not a suggestion in the rest of it that that was what was asked for.  What was asked for was for the trial to be aborted because the particulars had not been provided.  A lot was said about the disclosure with which we are not concerned, and if your Honours go to page 1005.

I should say that reading the submissions of the prosecutor, he said nothing about the discharge of the jury on the grounds of non‑provision of particulars.  He spent his time speaking about disclosure and what should be done.  Then his Honour gave reasons at 1005 which in relation to particulars were succinct, but which, in our respectful submission, were all that was required because in truth it could fairly be regarded – and I mean no disrespect to my learned friend, Mr Byrne – it could fairly be regarded that the application for discharge was a tactical one made on the 10th day of the trial, grounded partly upon the non‑provision of particulars, which were sought and provided in accordance with what counsel had asked for.  An application for an adjournment would have been another matter entirely if that had been the subject matter of the application and undoubtedly would have been dealt with, we apprehend, differently.

HEYDON J:   What was the tactical thinking?  That jury is discharged then another jury comes along.

MR SOFRONOFF:   I am sorry, your Honour, I did not hear?

HEYDON J:   What was the tactical thinking underlying this tactically motivated application?

MR SOFRONOFF:   Your Honour, particulars as a matter of fact were not asked for until a few days before the trial.  One gets one set, in respect of Morris, but the judge makes derogatory comments about them and one picks up on that and says, this is entirely unsatisfactory, we do not have any particulars, the trial really cannot go on.

HEYDON J:   Yes, but the trial would, in due course, resume.

MR SOFRONOFF:   Well, a new trial is what he wanted to resume, not this trial.

HEYDON J:   A second trial.

MR SOFRONOFF:   A second trial, yes.

HEYDON J:   What was the tactical advantage in all this, merely more time to prepare the case?

MR SOFRONOFF:   Your Honour, I do not want to be understood to be projecting any of this upon Mr Byrne, except that to the extent that the submission really, in our submission, had no legs.  One might think that the only reason was opportunistic, nothing wrong with that.

HEYDON J:   What was the advantage that was to flow from the opportunism?

MR SOFRONOFF:   The advantage in aborting what is going to be a 40 week trial with dozens of ‑ ‑ ‑

HEYDON J:   A 40 day trial.

MR SOFRONOFF:   A 40 day trial with dozens of witnesses, would be considered by any defence counsel, in my submission, an advantage because one never knows what is going to happen between now and when and if a trial can be run again.  One would think that the Crown would be highly motivated to do it again, but one never knows, and so one runs appeals ‑ I do not mean this appeal ‑ but one runs appeals sometimes on the most unmeritorious legal basis and, having got an order for a retrial, knowing that if there is a retrial there might well be a conviction, one nevertheless does it, not just out of a spirit of enforcing the rule of law ‑ one hopes that as well ‑ but also because one never knows.

HEYDON J:   But retrials take place many years or years later.  Once a jury is discharged usually a new one is assembled in quite a short time, is that not so?

MR SOFRONOFF:   No, not necessarily, your Honour.  Certainly not for a trial that is going to go 40 days.  One would have to get ‑ ‑ ‑

HEYDON J:   This army of witnesses ‑ ‑ ‑

MR SOFRONOFF:   In any event, not years, your Honour, not years.

HEYDON J:   Well, appeals take years.

MR SOFRONOFF:   Sorry, your Honour?

HEYDON J:   Appeals take years and when armies of witnesses have been assembled for a long trial there is every inducement on the prosecution not to let them go away and to commence the second trial as quickly as possible.

MR SOFRONOFF:   Yes, it would be.

HEYDON J:   So I just do not see the tactical advantage to be imputed to Mr Byrne.

MR SOFRONOFF:   Only that, your Honour, when one is – Mr Byrne could have asked for an adjournment for the provision of particulars, even a two week adjournment.  There were lengthy adjournments from time to time during the trial for lots of reasons, but he did not, he asked for a discharge, and he asked for a discharge upon the footing that he had not been provided with particulars, having not made any formal application for them and never having set a deadline in terms of a date, having said ‑ only agreed upon a deadline in respect of the progress of the trial itself.  Consequently, whether the reasons for his application was a genuinely apprehended sense of disadvantage or anything else does not matter because observing what actually happened, in our respectful submission, the judge was right to refuse to accede to the application to discharge the jury.

KIEFEL J:   Mr Solicitor, are you able to shed light on what the tactical advantage was in the defence not requesting particulars until very close to the commencement of the trial?  It seems to have been influential, both to his Honour at page 1005, line 15 and to the Court of Appeal.

MR SOFRONOFF:   I do not know what was in Mr Byrne’s mind, your Honour, you understand I am not ‑ making no reflection ‑ ‑ ‑

KIEFEL J:   I understand that and there is a level of hypothesis here, but I would at least like for you to have the opportunity to say what it might have been.

MR SOFRONOFF:   Certainly.  What happened at the trial shows that advantage.  Particulars were sought on the Saturday before the trial.  The prosecutors have other things to do in a trial like this than start drafting something that commercial lawyers do as a matter of course and criminal lawyers do not often do.  They are then set the task of providing particulars in respect of the four cases.  They do it, and because they have done it rather than in ample time in the quiet of chambers, they do it, as Mr Martin said, on the run.  They are criticised constantly by the judge.  That is an advantage.  The provision of particulars in that State prompts two applications for discharge of the jury because of the way the trial has been conducted.  That is an advantage.  None of those forensic dynamics would have existed if, during the course of the year before the trial started, a request has been made for particulars delivered, argued about if necessary, and the trial had then been conducted.

BELL J:   I confess, I thought that the trial judge considered the tactical advantage to be that if a year before the trial commenced the Crown had been required to identify in writing how it proposed to make its case, it might have focused the Crown’s attention.  There is a tactical advantage, on one view, to the Crown not being focused in its attention, having an opening with a scattergun approach and failing.

MR SOFRONOFF:   That is what I meant your Honour, but doing it then on the run – and points arising like the judge saying – and I think the expression originated with his Honour – how does a decision to operate constitute a breach of duty?  I think we might come to it.  That point comes from him and then it is picked up by defence counsel.  It never came out of the mouth of Mr Martin.

BELL J:   The difficulty is this, is it not?  Let us assume, just for present purposes, that his Honour was right to consider that the defence had not sought particulars for that very tactical reason.  When that tactical judgment bore fruit, it being the case that the Crown had opened too wide, one is left with is the difficulty that the Crown had opened a case that it could not, or would not, prove and led evidence that was not relevant to the case ultimately ‑ ‑ ‑

MR SOFRONOFF:   Your Honour, if this Court concludes that evidence that was led was not relevant, and was prejudicial, and the proviso does not apply, of course, but what your Honour is putting to me, with respect, is a tautology that if that is so, then I am wrong.

BELL J:   All I am taking up with you, Mr Solicitor, is some of this background and considerations of whether or not there were tactical reasons for not seeking particulars may, ultimately, not come to grips with the issue.

MR SOFRONOFF:   Yes, except that the only reason I am going here is that it said in the amended application for special leave that the application for discharge on day 10 should have been allowed, so I need to deal with it.

BELL J:   Yes, I understand.

MR SOFRONOFF:   Now, at day 10 there was not a too wide case, there was only one case, and his Honour dealt with that.  No error of law has been pointed to.  No error of fact has been pointed to.  It is a discretion of a trial judge and, in our respectful submission, leaving aside the respect in which the conduct of defence counsel binds the client – putting that to one side as though it did not matter – the judge had before him an application, not for particulars to be delivered, but for a discharge of the jury, which is an entirely different thing.  He dealt with that, and there was not then, as one might expect, an application for an adjournment so that particulars could be delivered, the trial went on.

Your Honours, the trial, indeed, continued from day 10 with the provision of particulars from time to time until day 39 – your Honours need not go to it – when the evidence of the Crown ended.  The Crown did not close its case formally.  It was said that some documents would need to be provided, but informally the evidence of the Crown had ended.  Then during the course of the last days of evidence his Honour had raised the necessity to deal with points of law concerning 288 and what it meant and whether it applied, and as a consequence on day 40, which is in volume 8, his Honour heard argument about that.

Could I deal with that as succinctly as I can because I will come back to the substance of the law a little later?  At volume 8, it begins at 2776, his Honour had received from the Crown and from defence an outline of submissions.  The outline of submissions of the Crown fell into two parts.  Your Honours will find them at volume 15, 6084.  They were my submissions in relation to how the case might be put directly, without reference to section 288.  Then at page 6098 of volume 15 are the alternative submissions of the Crown in relation to section 288 and why it applied.  Defence submissions have not been reproduced.  Could I hand them up to your Honours?

FRENCH CJ:   Yes.

MR SOFRONOFF:   I hand up seven copies, your Honours.  Your Honours, may I interrupt the flow by responding to your Honour Justice Hayne’s question about the transcript for the 20th?  There is a transcript.  We will make copies and cause it to be handed up.  Relevantly, at page 8 of the transcript, his Honour asked, “Are there particulars?” and Mr Martin for the Crown says, “Your Honour, we have.  It has been indicated to us that the defence are content for me to open the case and provide particulars in the course of that.  So, written particulars have not been sought.”  That is to say, he is content for the particulars to be constituted by the opening.  There might be other passages and I have not read it yet, but we will look at it.  I will hand up copies, your Honours, but I am not in a position to say anything about it at the moment.  We hand up seven copies, your Honours.

Your Honours will see that – I will not deal at all with the written submissions made on behalf of the Crown in respect of 288 of 282.  I will deal with the substantive law in due course.  But only one written submission was handed up by the defence and it is the one I have handed up.  As your Honours can see, after the preliminaries in the first two pages, the submission is made that 288 is the applicable provision, and at paragraph 7 it is submitted that 282 has an application to an allegation of manslaughter by criminal negligence, and some arguments are put about that.  It concludes in paragraph 15, “Accordingly, the Crown must prove its case pursuant to 288”, which is how his Honour, in due course, ruled.

Then, having ruled in that fashion, the final particulars in respect of Mr Morris were handed up, I think all of them in respect of all the patients were handed up at 2926.  Those particulars appear in volume 15 again at 6101.  Could I ask your Honours to look at that?  The Court of Appeal, of course, did perform this analysis.  At 6101 – there are two page particulars now – the first two paragraphs replicate what is in paragraphs 1, 2 and 3 of the original particulars.  Then it said the operation was “unnecessary”.  Then the co‑morbidities, paragraph 4.  Then the lack of necessity because of the actual condition and his state, and then the ultimate paragraph, the conclusion in 6.  So what we see missing are the additional proposed causes and reference to section 282 because of the submission that had been made by Mr Byrne and, I think, accepted by the judge.

Now, in our respectful submission, it is relevant for the Court to consider the effect of the omission of the discrete acts of negligence operatively and post‑operatively and whether that had any relevant effect upon the course of the trial as far as the accused was concerned.  In respect of the rearticulation of the actual case run in other respects, there has been a change because the manner of expression is succinct and efficient but the substance, in our respectful submission, has not altered as the Court of Appeal, in our respectful submission, correctly found, and that is the case with all of the four patients.  So the only issue that arises out of these particulars, in our submission, is whether by the time these particulars came to be delivered and there were those omissions in respect of Mr Morris, whether that vitiated the trial for the reasons now being advocated.

Now, if your Honours then would go to page 2942, that is the point that is then picked up by defence counsel.  Could I invite your Honours to read the first paragraph on page 2942 which summarises what he was going to say?  Now, he expands upon that a little.  At the top of page 2943 in the first passage attributed to him, he says, in the second sentence:

But the difficulty is that the case has now reached a point in week 12 that the Crown is running a case that the surgery per se shouldn’t have been performed.

That, with respect, is not true because the case was always that the surgery ought not have been performed.  In respect of Mr Morris, there were two other matters, but in respect of all of them, the case was always the surgery should not have been performed.  An example, could I give your Honours the reference, it was in the opening, I took you to it, but also at volume 3, page 751 the Crown Prosecutor says, in the course of argument:

Fundamentally, the act, of course, was the performance of the operation ‑

the act spoken of in 288.  So it is at the line just below line 40, and your Honours have seen the particulars.  So, nevertheless, the application was made and the basis for it was that evidence had been led which was now rendered irrelevant.

HAYNE J:   Can we go back to 751, Mr Solicitor?

MR SOFRONOFF:   Yes, your Honour.

HAYNE J:   At the risk of labouring it, what are we to make of what follows, in particular the last block attributed to the trial prosecutor on 751?

MR SOFRONOFF:   I will read it to your Honour.

HAYNE J:   In particular, are we not to understand that at that point the Crown case was that what the accused man had done before surgery, during surgery, after surgery, was the cause of the patient’s death.

MR SOFRONOFF:   Yes.

HAYNE J:   And that what was done before surgery, during surgery and after surgery was all, separately and together, grossly criminally negligent.

MR SOFRONOFF:   That is what the particulars said, yes.

HAYNE J:   The case then becomes a radically different one, does it not, when the particulars are finalised?  Instead of a global agglomeration of conduct from, in effect, first consultation to death, all of which is said to be grossly negligent in various respects, the case becomes, you should not have decided to operate.

MR SOFRONOFF:   Your Honour, the case was always that the operation ought not have taken place in circumstances which rendered the doing of the operation negligent, and the doing of the operation caused death.  In addition, certain acts within the operation caused death.  In addition, certain post‑operative acts caused death.  At the end, the case was the same with the omission of the last two.  Whether that deserves the description “radical”, or “dramatic”, as our learned friend puts it, is a matter of judgment for the Court.  What matters is not whether the shift was radical or dramatic.  What matters is whether, as a consequence, there has been unfairness.  The way the case has been put here, and it is the only case one can deal with, is that the case was unfair because evidence was led in that was irrelevant that was relevant before.  That is the case that is put before your Honours.

HAYNE J:   I have detained you from getting to that point, Mr Solicitor, which we need to grapple with.

MR SOFRONOFF:   Sorry, your Honour?

HAYNE J:   I have detained you from getting to that point, which is the point we have got to grapple with.

MR SOFRONOFF:   Not at all, your Honour, but what I react to, of course, because of sensitivity to it, is any suggestion that it would be valid to consider that the shift was dramatic or radical or anything of that kind, because however one described it, its only significance for the purposes of this appeal is whether evidence was led in that should not have been led in, and the evidence was so prejudicial as to render it unfair and so on.  We can characterise it however we like.  In our submission, it does not matter.

Anyway, all that happened on that day really was that Mr Byrne foreshadowed that he would make the application, but he really argues it from 2951 and following, and you can see the written submissions in volume 15 at page 6112.  Could I say a few things about the submissions that were before his Honour when he decided it?  Paragraph 3:

Evidence has been led based upon very wide particulars which were supplied, piecemeal, throughout the trial.

In our submission, the description “very wide” is irrelevant.  It is unjust, in our submission, but it is also irrelevant.  “Piecemeal” is a reflection of what was agreed to.  Then paragraph 4:

new particulars for each charge were placed –

New particulars were, but they allege the same acts, subject to the omissions that your Honours are aware of.  Then over the page:

These particulars are substantially different from those current during the prosecution case.

Although different, with respect, to the omissions concerning Mr Morris and the omission of section 282, but otherwise they meant the same thing, and then paragraph 5 is the relevant basis for the application.  Paragraph 9 then says there is a lot of prejudice in that.  Now, what was supplied to his Honour appears on the next three pages, which is the schedule of the evidence that was given during the trial which is said by Mr Byrne now to be irrelevant.

If your Honours would look at the copy of appeal Schedules A, B and C that I handed up yesterday you will see, without dwelling on each particular transcript reference that I marked in green as not having been objected to by Mr Byrne, you will see in simple terms in Schedule A, for example, in the second dot point, fourth line, there is a reference to Dr Britten and there is a reference to Dr Smalberger, whose evidence is objected to in the case of Mr Morris, but it was not objected to at the trial because their names do not appear.  The evidence of Whitfield in the fourth last line of the second dot point in Schedule A appears.  Mr Byrne did not object to it.  In short, there are a few passages in Schedules A, B and C, but very few, which were the subject of objection by Mr Byrne, and the rest were not.  In our respectful submission ‑ ‑ ‑

FRENCH CJ:   When you say, were not the subject of objection, you mean in this context, not mentioned in the defence schedule in support of the submission for discharge?

MR SOFRONOFF:   Or in oral submissions.

FRENCH CJ:   Yes.

MR SOFRONOFF:   Or during the trial.  So we are left with this position, that the appeal – or at least the application for leave to appeal – is premised upon an argument that irrelevant evidence which was prejudicial to the accused was led in, but at the time most of the material to deal with it was not objected to.  The judge below dealt with the evidence that was objected to, ruled there was nothing to complain about, and the trial went on.  That is not now reagitated.  It was before the Court of Appeal because when asked in the Court of Appeal, “What is the evidence that you are now objecting to that was led in that should not have been led in given the reduction in the case?”, what was handed up was the schedule that your Honours have in volume 15, and could I give your Honours the reference?  For the reasons of the Court of Appeal, it is volume 2, page 431, paragraph 125.  What is being sought as the grant of special leave is a set of objections to evidence never objected to during the course of the trial in this respect, or ‑ ‑ ‑

BELL J:   Mr Solicitor, I wonder if we could just perhaps go back a moment to day 43?

MR SOFRONOFF:   Day 43, your Honour, yes.

BELL J:   If you go to transcript 2953, one sees exchanges in which, for example at about line 25, defence counsel complains of the evidence led by a number of witnesses relating to the ventilator.

MR SOFRONOFF:   There are – I am sorry, your Honour.

BELL J:   There is another matter, Mr Solicitor, that I wanted to raise with you, and it was this.  On day 43, there is, if you like, a general challenge made by Mr Byrne to the capacity for a fair trial to still be had in light of the narrowing of the case, and broad topics of evidence are referred to as matters that have occasioned prejudice to the accused in light of that change.  There is some consideration about timing and when Mr Byrne would be in a position to make any application that he cares to make.  The Court adjourns at, I think, around midday on that day, and returns at 10 am the next morning when Mr Byrne says that – this is at appeal book 2951:

We have a schedule.  We cannot say it’s exhaustive.

That is the document that you have taken us to.  In the few hours that were available a schedule was put together to put some meat on the allegation that evidence had been led that had occasioned prejudice, but it is substantial topics, really, that one needs to address, and it seems to me you need to address, concerning the relevance of the evidence respecting Mr Grave, the relevance of proving the failure to correctly perform the stoma procedures and so forth, but taking us to the inadequacies of the schedule prepared in the afternoon of the 43rd day of the trial, for my own part, does not assist with the real issue that is raised.

MR SOFRONOFF:   I understand what your Honour is putting to me.  Your Honour, of course we have to deal with the specific evidence and show why it is – rather, Mr Davis is going to do that.

BELL J:   All right.

MR SOFRONOFF:   The reason that I am putting these matters in this ‑ can I call it technical form rather than on the merits ‑ is that your Honour is right.  They turn up on the next day and do say the words that your Honour has put to me.  But it is significant that in putting a lot of references to evidence, the Court is not now invited to look at that evidence and some more that Mr Byrne overlooked because of the time he had, the Court is asked to look at different evidence.  That is in terms of how one runs a trial, and the grounds for an appeal.

What is being put to this Court is not that, yes, what Mr Byrne said was correct, that evidence was inadmissible, and in addition he overlooked this no doubt because of the time constraints.  What is being put to this Court is, that is what Mr Byrne said, but have a look at our schedule, we have got a whole lot of different reasons.  There might be something in those grounds, Mr Davis will take your Honours through that, but it is material for the Court to know that what is being urged on the application for special leave in this respect is not anything that was agitated below, and one cannot say it is ascribable to a lack of time because, of course, one understands that some things, maybe a quarter, maybe a half was missed, but this is a different case.  That is all I am putting, your Honour.  But if in the result evidence not objected to, even by Mr Byrne at this point, was indeed irrelevant and prejudicial, of course the Court would take a view.

BELL J:   My reading, Mr Solicitor, of the exchanges on day 43 and then the application was that some rather broad propositions were put by counsel for the defence respecting prejudice, propositions characterised by evidence that had been led relating to the poor performance of procedures and things of that character.  That, on one view, raises all that body of evidence, even if it was not collected in the schedule which was said to not be complete.  That just seems to me to be helpful to look at the essence of the ‑ ‑ ‑

MR SOFRONOFF:   I understand – sorry, your Honour?

BELL J:   It seems to me to be helpful to look at the essence of the complaint, which was a great deal of material had gone in relating to the broader case.

MR SOFRONOFF:   We will deal with the actual evidence in due course.  Mr Davis will deal with that.  We need to confront it, and we will.  But could I say this in respect of the relevance of the submissions made then and the submissions made now to your Honour’s task?  One can make an overarching submission that the trial is unfair because evidence has been led that is irrelevant and prejudicial, but at some point, if the judge is going to have to come to terms and grapple with it, one has to point to the evidence and say why it is irrelevant and prejudicial.  That was done in broad terms by Mr Byrne in respect of that evidence.  In the Court of Appeal, the same submission was made in respect of that evidence.

Your Honours have not heard in any detail, in our respectful submission, why the evidence now pointed to was irrelevant and prejudicial.  There were some general statements made about the fact that Dr Patel was responsible for the insertion of a nasogastric tube, which originally, it was said, caused death, and now it was not said to cause death, might be prejudicial, but your Honours have not heard argument directed to each of the categories of the evidence to show why those categories of evidence were each irrelevant and prejudicial.

We will do that, but it is material then to know that although it is correct, with respect, to say counsel makes a submission giving some examples but then an overarching submission is ‑ you can see this is unfair because you have heard the trial just as I have, here are some examples, and can I tell you about the ventilator, and Grave, and so on ‑ but at some point the judge has to deal, as Justice Byrne did, with specifics to make the decision, and he is given the general submission, he rejects it on the footing of the schedule he is given, the Court of Appeal dismisses an appeal from that order based on that reasoning, and the application now is made in respect of different evidence.  That is the point I wish to put.

HAYNE J:   Can we deal with it at that level of generality for a moment, Mr Solicitor?  There was evidence led by the Crown at trial, was there not, which was directed to showing that Dr Patel had acted grossly negligently during and after surgery?

MR SOFRONOFF:   Yes, in respect of Mr Morris.

HAYNE J:   How does evidence directed to showing that Dr Patel acted grossly negligently during and after surgery bear at all upon whether he acted grossly negligently in deciding to operate, and then performing?

MR SOFRONOFF:   The answer is this.  First, the evidence is not evidence that Dr Patel acted grossly negligently.  The evidence is evidence of acts of Dr Patel.  Evidence of acts of Dr Patel, as were the acts of other people, were relevant for a number of reasons.  One of the reasons originally was to show that, by reference to other evidence, those acts were negligent and were causative of death, but if that evidence was also relevant to showing other things, then it remains in.  There might be an argument about prejudice in relation to that evidence, but the purpose of the evidence is not the evidence.

Your Honour put to me, with respect, evidence was led to show Dr Patel was grossly negligent.  That was not the evidence.  The evidence that was led was that Mr Morris had, for example, a tube inserted.  Something went wrong with the tube, he did not get fed, that contributed to his death.  Had the case continued on the original particulars, the Crown Prosecutor would have said to the jury, and that was grossly negligent.  He did not say that, but the evidence remains relevant to show the progression of Mr Morris’ condition, what happened to him, and what ultimately led to his death, so that it was possible for the Crown to argue at the end of the day that one can ignore all the intervening events of the three weeks, the operation relevantly caused the death.

In our respectful submission, could I say two things about what your Honour has put to me by way of conclusion?  The first is, it would not be right, with respect, to characterise the evidence as evidence that does that, that is the purpose of it, but if it had other purposes the question now is, was it relevant to serve those purposes or not?  You will hear argument in due course about that.

BELL J:   I must say, Mr Solicitor, it was not my impression that the only evidence of poorly performed surgery was with respect to the case of Mr Morris.

MR SOFRONOFF:   No, there was Mr Kemps as well, but that case remained ‑ ‑ ‑

BELL J:   And Mr Phillips, and Mr Grave?

MR SOFRONOFF:   Mr Grave was in a separate category, of course.  The relevance of his evidence was to demonstrate the criminal degree of the negligence by showing that having failed in respect of Mr Grave, the appellant continued to do operations.  I think that is how it is put.  Mr Davis will deal with that.  But in respect of what your Honour put to me, specific acts, certainly with respect to Mr Kemps, I think it was, his was the case where it was alleged and always remained the case that surgery should not have been done, then he started bleeding, he did not find the bleeding, he sent him to the – that always remained the case, so that was never narrowed.

BELL J:   Mr Phillips’ case was opened on the basis that the oesophagus had been inadvertently torn.  The operation became more major as it went wrong, and then in relation to Mr Grave, there was evidence, amongst other things, of a tear or hole in the oesophagus, as with Mr Phillips.

MR SOFRONOFF:   Yes.

BELL J:   What was the relevance of leading evidence about those acts?

MR SOFRONOFF:   Mr Davis is going to deal with that, your Honour.  I do not want to ‑ ‑ ‑

BELL J:   All right.  The matter I am raising with you, whilst we are on the generality of matters, is it does not seem to me to assist to put it that the only evidence of poorly performed surgery was with respect to Mr Morris.

MR SOFRONOFF:   I am sorry.  I do not mean to be trying glibly to avoid the other cases.  They are slightly different, each of them. 

BELL J:   Indeed.

MR SOFRONOFF:   It is convenient to, in analysing the story about the particulars, to concentrate on only one of them, but I understand that in dealing with the evidentiary matters, our learned friends have raised evidence in relation to each of them and they have to be dealt with, and they will.  Could I ask your Honours to go then in volume 8, I think it is, to page 2991? 

HAYNE J:   This is the “no special directions” point at the head of 2991, I think.

MR SOFRONOFF:   Yes, that is the point, your Honours, that the judge having invited defence to consider whether they wanted anything like that it was expressly declined at the top of page 2991.  Then directions were generally discussed between counsel and the judge.  That is in volume 1, your Honours, at page 84.  At the top of page 84 defence counsel had handed up a written summary of his case that he wanted the judge to consider when thinking about what he would say about the defence case.  Then over at page 88 at line 40 there is a discussion about what is to be said about the Oregon order and that discussion appears to end at line 40 and following of page 89.

Discussions then continued and at page 119 the extent to which causation remains an issue becomes the subject of discussion.  You can see just below line 30 Mr Martin says something about causation.  Then his Honour begins to sum up at page 125.  On the point about whether the jury was invited to convict if they found the decision to operate was criminally negligent, could we give your Honours these references to passages in which his Honour made it clear that what was being put for their consideration was whether doing the operation was negligent. 

That appears in volume 8 at the following page, 3181.  I am sorry, your Honours, excuse me I just made an error.  Yes, this is where defence counsel puts his understanding of the case at 3181, just below line 40, “I submit that part of your task is” - do your Honours have that – and then again at page 3211, between lines 20 and 35 and then at 3248 at line 10 and at the foot of the page; at page 3251 at line 50; at 3255, in relation to the bleeding, in the case of Mr Kemps, between lines 20 and 30 and lines 50 and 60, and at page 3283, line 20, in respect of Mr Vowles.

The same emphasis can be seen in passages in the summing‑up, which begins in volume 1 at page 143 between lines 20 and 30.  I will give your Honours some references, but could I say this?  Of course, the question whether the operation – whether administering the surgical treatment was negligent, in this case, depended upon matters concerning the state of the patient and that no competent surgeon would have operated.  It is negligent because it ought not have been done.  Therefore, the decision of the surgeon to do it becomes relevant and it becomes relevant to show that that decision was wrong.  It is inescapable - the relationship between the negligence and doing the operation and the negligent decision is inescapable.

HEYDON J:   I just do not understand that?  Is there not a distinction between negligently deciding to operate on a person who, because of that person’s age and other problems, is not likely to survive the operation and proceeding with an operation which was carefully and properly done, and nonetheless causes death?  You were stressing, I think, the careless decision, if I can put it that way, and the careless technique, the careless ‑ ‑ ‑

MR SOFRONOFF:   No, no I am sorry, your Honour, what I meant to say was that if an operation is said to be negligent to perform and if it is said that the performance was negligent ‑ ‑ ‑

HEYDON J:   But it is not said at the end of the day that that was so, that second limb.  That was the consequence of the amendment of the particulars.

MR SOFRONOFF:   No, your Honour.

HEYDON J:   So the trial judge seems to have understood it.

MR SOFRONOFF:   I am sorry, your Honour, we are at cross‑purposes.  I am not speaking about any discrete act within the operation, which itself is a negligent act or omission, cutting an aorta or failing to suture something.  This case was one where it was alleged that the act which constituted the negligent act, for the purpose of 288, was doing the operation at all.  The answer to the question was it negligent depends upon the state of the patient and what competent surgeons would think about that and whether that operation would be conducted by competent surgeons. 

It, therefore, becomes relevant to examine the reasons why the appellant did the operation and to show that they were not good reasons; they were inadequate reasons.  In a sense, in the course of discussion, certainly at trial and certainly in the judge’s thinking, the term “decision to operate” came to encapsulate all of those matters.  But ultimately what the jury was asked to consider was, having regard to the circumstances in which the operation was done, whether the act of operating was negligent.

I will deal with the substance of the law very shortly, your Honour, section 288, I will go to it, but I wanted to demonstrate that in terms of the words the judge used to direct the jury, it would not be right to look at the instances in which he said, “Do you think the decision to operate was negligent?” and to conclude that what was put as the relevant element of the offence was the decision.

The decision is not an act anyway; it is state of mind.  He does not commit an offence at the moment he makes a decision, it is the act.  What I want to show are the references where his Honour made it clear to the jury that that was so.  Could I deal with that?  I will give your Honours the references as quickly as I can.  Page 143, lines 10 to 25, in the third paragraph:

in taking the patient to theatre to perform it.

Page 143, lines 30 to 50:

The surgery on Mr Vowles is said to have been inappropriate –

Page 148, line 20:

First, you may conclude that death was caused by the Accused if an act of his contributed substantially –

Page 149, line 10:

you are to consider not only whether there is a causal connection between an act of the Accused and the death, but also, if so, whether such a connection is sufficiently substantial to justify –

Page 152, line 8:

If the Accused performed surgery under an honest and reasonable, but mistaken –

That is the defence being put.  Page 154, line 30:

The prosecution case, in a nutshell, is that the operation was unnecessary because Mr Morris was not bleeding from diverticula in the sigmoid colon.

Page 155, really all of it, at line 5:

By proceeding to perform the sigmoid colectomy –

Then the causation is attributed to the operation of the decision:

The operation resulted in – that is, caused – the death –

Line 30:

His proceeding to perform the operation involved such a great falling short –

At the foot of the page is the – leaving aside section 24, what the defence said:

it was not criminally negligent for the Accused to perform a sigmoid colectomy –

So, as we saw from defence counsel’s address, he appreciated that it was the doing of the act constituting the administration of surgical treatment that lay at the heart of the Crown’s case.  Then the same formula that your Honours see in the three numbered paragraphs on page 155 is repeated elsewhere.  At page 181 they are repeated in respect of Mr Phillips’ case.  Then at 182, line 10, in putting the defence case:

And there is no causal link between the surgery and the death of Mr Phillips.

At page 218 the three paragraphs are put again in respect of the case concerning Mr Kemps.  Then at the top of page 219:

The defence case concerning . . . was not criminally negligent for the Accused to performance an oesophagectomy –

in certain circumstances.  Finally, at 223, there is the second case in respect of Mr Kemps, which concerned the failure to staunch the bleeding.  Now, the Court of Appeal dealt with the particulars, which, in our respectful submission, in terms of the particulars themselves, both the first set and the second set, were, with respect, adequate.  The Court of Appeal dealt with them at volume 2 at page 430.

After having analysed the two sets of particulars, at paragraph [116] their Honours refer to the deletion of the section 282 matters.  In respect of Phillips nothing much changes in their Honours’ view.  At paragraph [119] they observed that much of the changes concerned removing duplication and prolixity.  Then their Honours go on to deal with the relevance of the evidence, which I will not go into now because that remains a live question, but the first point is that there is nothing wrong with the particulars, in our submission, as particulars.  Whether it had any consequence because of the evidence is another matter. 

Could I turn then to section 288?  Your Honours, the indictment appears in volume 1 at page 66.  The relevant counts appear at pages 68 and 69.  They are counts 9, 10, 11 and 14, pages 68 and 69, counts 9, 10, 11 and 14.  They charge, in orthodox terms, that the appellant killed the three named persons and did grievous bodily harm to the fourth patient.  I will concentrate on the manslaughter charges because the reasoning applies equally to section 320, doing grievous bodily harm.  Section 291 of the Code is the beginning.  It provides that:

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

“Killing” is defined in section 293 by reference to causation, which is important:

any person who causes the death of another . . . is deemed to have killed that other person.

Section 303 then defines “manslaughter” by excluding murder.  So all one needs to show is that A caused the death, that is to say, killed B, and the killing is not excused.  Consequently, for the purpose of 303, it is necessary in any case for the prosecution to prove that the accused killed a person and, as we have seen, section 293 defines “killing” in terms of causation, therefore the prosecution has to prove that the accused caused the death, directly or indirectly, of the person, and causation therefore is at the heart of criminal responsibility for the offence. 

One way, in any particular case, to show that the accused killed another person is by direct proof that the act of the accused, directly or indirectly, caused the death of the person.  Subject to Chapter 5, which deals with criminal responsibility, sections 23 and 24 and so on, mistake and accident, subject to that, or any other applicable defence, that is sufficient proof of facts that show that A caused the death of B and it is not excused. 

Because causation is at the heart of the offence of killing, unlawful killing, there is another way that the Crown could prove the commission of the offence.  Chapter 27, which contains section 288 contains provisions which are aids to the proof of causation by the imposition of duties.  I will not digress to the historical discussion which your Honours have seen in various places about the significance of omissions to the need to have a law imposing a duty, but Chapter 27 is not a chapter that imposes criminal responsibility upon any person. 

“Criminal responsibility” is an expression that is defined in section 1 as liable to punishment.  Rather it imposes a duty in certain circumstances and provides for the consequences of a person bound by that duty for a failure to perform the duty.  The consequence in each case is that the person who is subject to the duty is deemed, the word used is “held”:

is held to have caused any consequences which result –

from the breach of duty.  So it is a set of provisions that would, as a matter of practicality, aid the Crown in proving that A caused the death of B.  We would make the following observations about these provisions.  The first is, as I have said, that they do not impose criminal liability.  The second, dealing with section 288 is that it imposes a duty upon a person who:

undertakes to administer surgical or medical treatment –

That is to say, the duty is imposed at the point at which the person undertakes to administer surgical or medical treatment.  If the person undertakes to administer the surgical and medical treatment at a time before the treatment is administered, the duty is imposed at that earlier time.  Contrast sections 285, 286 and 289, which impose a duty from the moment that somebody comes in charge of another or takes care of another, undertakes care of another or takes charge of a dangerous thing, in which cases the duty is not imposed at a time when a person decides to do something, or promises to do something, but actually does something.  The duty, then, is one:

to have reasonable skill and to use reasonable care in doing such act –

The word “such” in section 288, in this context, in our submission, means “the previously specified”, that is one of the definitions in the first edition of the Oxford English Dictionary, page 85.  It is in our submission the relevant one - the previously specified, so it reads “in doing the previously specified act”.

Consequently, the section contemplates that the whole of the surgical treatment that is administered may constitute the single act which must be done with skill and care.  Now, such an act might be undertaken carelessly because of the doing or omitting to do of a particular discrete act in the course of administering surgical treatment such as carelessly cutting a blood vessel or carelessly omitting to suture a blood vessel, or carelessly omitting to remove a swab from a body, or, in our submission, the act of administering surgical treatment itself might be undertaken carelessly.

Easy to think of examples - carelessly amputating the wrong leg from a patient who needs the other leg amputated; carelessly amputating the correct leg, but from the wrong patient; or, carelessly amputating a leg that does not need amputation at all; or, failing to amputate a leg that should be amputated on a patient to whom you have undertaken to administer surgical treatment;  or, failing to administer a drug that ought to be administered during the course of surgery; or, administering a drug that ought not be.

Whether the act of surgery is a discrete act or omission which occurs as part of a sequence of acts which constitute the act of administering surgery, or whether it is the act of administering surgery itself as a composite set of acts, makes no difference, in our submission, as a matter of language, and indeed, the text of section 28 strongly suggests that the whole act as a body of human movements or omissions to move to do something may constitute the act.  That is not unfamiliar in the law because, of course, a series of punches and kicks delivered to a person can constitute a single assault; one does not charge separate assaults for each application of force.

In this case, with the exception of Mr Kemps, the Crown alleged that the accused failed to have reasonable skill or to use reasonable care in doing the act of administering surgical treatment.  What rendered the act careless was that it was unjustified by the condition of the patient; it was done when the risk of death was very high, and - in the case of Mr Vowles - it was done when the occasioning of grievous bodily harm was certain.

Section 23, the accident provision, is inapplicable, because it is expressed to be subject to the provisions of the Act relating to negligence, and this is one of them.  But, section 282 is relevant.  It was submitted below by defence counsel that it was not.  Legally, in our respectful submission, that was incorrect.  Practically, it was correct, because if the Crown proves a breach of the duty of care under section 288, section 282 is excluded because the Crown would exclude one of the necessary elements of that defence.  So it made no difference. 

A question arose yesterday relating to the duty of care under 282.  Section 282 speaks about the surgery being undertaken with reasonable care and that it has to be reasonable in all the circumstances and so that raises the question, what is the degree of care and what is the degree of departure from what is reasonable that would warrant a conviction?

The answer, in our submission, is to be found in Callaghan’s Case (1952) 87 CLR 115, your Honour, which is No 9 in our list of cases. In that case, your Honours need not be concerned with the substance of the actual issue in that case, but what it concerned was a provision of the Criminal Code (WA), which made driving without reasonable care an offence. Equally, manslaughter might be constituted by the dangerous acts provisions of the Criminal Code.  Manslaughter is punishable by life, driving without reasonable care was punishable by five years. 

The question for the Court directly was whether the reasonable care in each section, leading to such different penalties, was the same.        Their Honours held, although it was anomalous, it was the same, but juries do these things and make their decisions accordingly, so as a matter of law it is the same.  But their Honours were concerned also to determine what was the scope of the duty?  Was it merely the civil standard or was it the criminal standard? 

Now, in the course of deciding that it was the criminal standard, their reasoning, in our respectful submission, would be apposite to your Honour’s decision as to what is the standard of care for 282.  If your Honours would go to page 121 of the reasons you will see that the immediate question is posed in the last paragraph on page 121.  The question is whether:

One is to treat to omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard . . . The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime –

So, is it the civil or is it the criminal?  Their Honours go through the common law history and the answer that they come to is at page 124, and the answer, their Honours say, is that when one finds the expression “reasonable care” or something like that in a criminal statute, the second half of page 124, your Honours, first line:

The conclusion . . . must be regarded from the point of view of the context where it occurs.

Because the context is criminal the duty must be one which can only be breached by a sinking to a standard which is criminally low.

BELL J:   It is also relevant in – the analysis was, when one goes to 23(1), the Code excludes the operation of accident from those provisions dealing with negligent acts and omissions.  That is accepted to import what is sometimes referred to as the criminal standard respecting negligence.

MR SOFRONOFF:   Yes.  Now, it may not matter in any case whether section 282 would be regarded as one of the provisions that section 23 refers to.  It may not matter for this reason.  If the Crown establishes, in a case run under 288, or in a direct act mode of proceeding, excludes the defence under 282, it must thereby have shown at least that the event was foreseeable, which is all you have to do to exclude section 23.  It must show much more than that, that the act was foreseeable and anybody in that position would have foreseen it and it is criminally negligent not to have foreseen it.  So, in any case like that, section 23 would be excluded anyway.

So, in respect of section 282, not that it matters for this case, not that this case depends on it, I should say, in our respectful submission, the duty of care and the term “reasonable”, where that is used in describing the circumstances, must involve circumstances which render the conduct of performing the operation culpable, gross or criminal to a degree that a jury would be satisfied that criminal consequences should ensue.

FRENCH CJ:   So the deemed causal connection does not arise below a certain level of negligence which we call criminal negligence or breach?

MR SOFRONOFF:   That is right, under 288.  If the Crown were proceeding by proving a direct act causing death and 282 was raised, the Crown would have the same burden for a different reason and nevertheless the case would focus upon the criminality of the negligence if it be so. 

Could I say this in respect of how the submissions were made below, not that is matters here, but the submission that I made below was that the case could only be put on a direct footing and that 288 did not apply.  Now, that, I have to say, was wrong because the Crown can proceed under both.  They are not mutually exclusive.  The judge did not let the Crown proceed under the direct provisions, but that did not matter to the accused because in any event, the issue remained criminal negligence or not criminal negligence; whether, under 282, under which it would have arisen, or under 288, under which it did arise.

FRENCH CJ:   Now, this may be an obvious question, Mr Solicitor, but just so I understand the operation of 288, in a case in which somebody fails to use reasonable skill or care, a failure which does not reach the level of criminal negligence, and a person dies as a result of that omission, does the person still cause the death, or how does the person not cause the death for the purposes of 293?

MR SOFRONOFF:   The person would have caused the death but the death would be excused by section 282 or 23 or 24 or there might have been a break in the chain of causation.  Can I give your Honour an example?  A person comes in who needs an operation.  The operation sometimes leads to death.  The surgeon performs the operation and the patient dies.  That is not enough to warrant a charge.  The surgeon did cause the death so it seems, but there could be two answers to it.  The first is 282, the operation was performed in good faith for the benefit of the patient, carefully, and it was reasonable to perform the operation in all the circumstances.  That is all operations every day one would think.  So, although the surgeon caused the death, the definition of “manslaughter” is a killing that is not authorised, justified or excused and it is excused.

FRENCH CJ:   That would even accommodate a level of negligence on the part of the error of judgment as people sometimes call it.

MR SOFRONOFF:   Exactly.  It is not remarkable that surgeons would be conducting surgery free of any risk of criminal liability because of the operation of a defence provision of which they are unaware because each of us applies force to other people throughout the day, we are not worried about assault, because consent, for example, would be available so it is not remarkable that one would have to resort to a provision of the Code to explain why surgeons are not generally responsible for causing deaths.

BELL J:   Well, consent is significant when one considers that ‑ ‑ ‑

MR SOFRONOFF:   It is a significant factor in considering whether it is reasonable in the circumstances.

BELL J:   Well, also, does it not bear on the question of whether the act causing death is authorised, justified or excused by law?

MR SOFRONOFF:   No.  Your Honour, I have to deal with consent, which your Honour raised yesterday, I think.

BELL J:   Yes.

MR SOFRONOFF:   Could I start with this assertion and make it good?  It would not be right to import into the Criminal Code common law notions that surgery is lawful when it is done with consent, because that is fundamental in Code land.  The reason surgery will be lawful will be because 282 applies.  Now, could I turn then to the use of the word “lawful” in 288, which has caused trouble in this case?  It has been assumed by many that the word “lawful” in section 288, because of the adjective “other”, also qualifies the surgery or the medical treatment.  In our submission, that is not right.

What the section does is to impose a duty upon a person who is doing one of two categories of acts.  The first is any lawful dangerous act, and the second is a person who has undertaken to administer surgical or medical treatment.  As to the first category, lawful, dangerous acts, there must be lawful dangerous acts in respect of which a duty is imposed because there is no need for there to be a duty imposed upon people who are doing unlawful dangerous acts.  They will be liable for the consequences unless accident applies. 

So, if I point a rifle at you, I am assaulting you under the terms of our Code, and if I shoot you I am responsible for killing you.  Of course section 289 would apply, but 288 is not concerned with imposing duties upon criminals; it is concerned with people who everyday do dangerous things that are perfectly lawful, and to ensure that that duty imposes an obligation, not only in respect of acts, but omissions as well. 

Surgery and medicine are in a different category because in respect of those, they are inherently dangerous and it is not necessary to speak about lawful or unlawful surgery.  If you undertake to do it under any circumstances then the duty will apply.  It is inapposite to speak about the section only applying to lawful surgery.  There is, in fact, no unlawful surgery or medical treatment apart from 282.  Could I explain that? 

Your Honours will notice that neither 288 nor 282 speak about qualified medical practitioners and that is because everybody from time to time engages upon an act of surgery or administration of medical treatment, and it is not possible – and there is no law in Queensland, nor in England, when the Code was passed, that prevented a person administering surgical or medical treatment.  What there was was a law that prevented a person holding himself or herself as qualified to administer medical or surgical treatment.

So 288 and 282 apply to people generally, not just surgeons, who undertake the inherently dangerous task of doing surgery or medical treatment.  So, in our respectful submission, 288, in speaking of a person who undertakes to administer surgical treatment is not asking the question whether there is consent or no consent, it is asking no such question, it is only asking, “Did you undertake to administer something that can be described as surgical treatment?”  If so, the duty follows.

BELL J:   Could I just take this up with you?  If you go to 291, it talks in terms of killings that are justified or excused.  Well, that is to use language which is familiar and had an understood meaning, but it also refers to acts that are authorised and that is ‑ ‑ ‑

MR SOFRONOFF:   Well, that is the old execution, your Honour, lawful execution is authorised.

BELL J:   Well, one might think that lawful executions came under justification I think, as I recollect it.  The matter I am raising with you is the trial judge considered consent was significant to the understanding of the Code and, for my part, notions of “justified” or “excused” have well‑established meaning in this context; “authorised” might embrace something further.

MR SOFRONOFF:   Your Honour, with respect to his Honour, it was not, we submit, wrong to talk about consent at all here, except insofar as consent might be a fact which makes circumstances reasonable to 282 because of two things.  One is that the word “consent” does not appear in 288 or 282, yet it appears throughout the Code in other places.

BELL J:   Yes.

MR SOFRONOFF:   Rape, assault, other effects and yet it does not appear here.

BELL J:   But if you go to Chapter 27, Chapter 27, to the extent it imposes the duty in 288, for example, assumes quite a degree of background knowledge.

MR SOFRONOFF:   No, your Honour, it assumes that a person has undertaken to administer surgical treatment.  That might be with consent, it might be an unconscious person without consent.  I am not sure ‑ ‑ ‑

BELL J:   The matter I am raising with you, Mr Solicitor, is the directions that were given – which everyone seems to agree were perfectly apt and accord with Callaghan – are directions that import ideas of gross negligence because it is criminal liability of which the Code is speaking, but of course that is absent from the provision.  So I am just raising with you that it is not always sufficient to go to the terms ‑ ‑ ‑

MR SOFRONOFF:   Your Honour, I think your Honour is putting to me that if one reads 288, the term is “reasonable skill” and yet we import into that notions of the degree of negligence ‑ ‑ ‑

BELL J:   That is exactly what I am putting, Mr Solicitor.

MR SOFRONOFF:   Yes, thank you, and that therefore consent might sneak in there for the same reason.

BELL J:   A very experienced trial judge thought consent had some relevance in this area.  That is what I am raising with you.

MR SOFRONOFF:   Your Honour, consent as a matter of fact, may be relevant to the degree of negligence because it is easy to imagine that the presence or absence of consent might bear upon the degree of lack of care.  For example, a risky operation is called for.  There is a high risk of death.  Done with consent – notwithstanding high risk of death – done with consent, it might not be criminally negligent because the patient undertakes the risk and the circumstances warrant it otherwise.  Done without consent, in circumstances in which consent might have been sought might be another matter.  So, in that way, of course, consent might be relevant, but it is not relevant, in our submission, to imply into the text the word “consensual” before the words “surgical and medical”.  That would not, in our submission, be warranted or necessary for the proper operation of 288.  Does that respond to your Honour’s – I do not say it is satisfactory, but does it respond ‑ ‑ ‑

BELL J:   Yes, I take it there is no particular authority on what authorised acts are in 291?

MR SOFRONOFF:   No, your Honour.  Those are our submissions in respect of the matters that I am covering, your Honours.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Davis.

MR DAVIS:   Your Honours, the appellant complains about some very specific pieces of evidence that he says ought not to have been admitted and then there is a very large number of pieces of evidence in some schedules which are attached to the outline.  Can we start with the specific matters which are dealt with in the body of the outline and the first is the ventilator evidence?

The background to this has already been canvassed to some point.  The short point is that the appellant had intended to conduct the operation on Mr Kemps on a particular day.  It was appreciated by the appellant that Mr Kemps would need an intensive care unit bed immediately after the operation and he believed, it seems, that a patient who was in the intensive care unit and was either brain dead, or very close to it, and was on a ventilator, the ventilator ought to have been ‑ ‑ ‑

FRENCH CJ:   I think, Mr Davis, we are pretty familiar with the outline of the evidence.

MR DAVIS:   Yes.  I do need, though, to go to the evidence particularly, and I will do that now.  The first stop in our submission is actually the last evidence that was given on the topic and that is from Dr Carter.  Your Honours will find that in volume 6.

HAYNE J:   Well, can I have a road map?  What are we trying to demonstrate?  What is the proposition?

MR DAVIS:   The proposition in the end, your Honour, is that the Court of Appeal found that the evidence was not relevant to the particulars.  The appellant has said that the jury would be left with the impression that the appellant acted callously, with disregard to human life and that that would have impacted against him.  When one looks actually at the evidence that was given and how it progressed, in our submission, the evidence was almost completely diffused and then one can turn to how the judge dealt with the evidence in the summing‑up and it can be seen from the way the judge dealt with the evidence in the summing‑up that this whole episode is really a storm in a teacup and that is what we wish to develop.

The starting point is Dr Carter – volume 6 – and the evidence in‑chief is at page 2361.  Could we ask your Honours just to note that this evidence, which is the last evidence which was given on this topic, was given on day 33?  If your Honours can pick the matter up at page 2361, about line 50 the analysis starts, then over the page the witness is asked whether he had a conversation with Dr Patel.  That is about line 10.  That conversation did become heated.  About line 20, your Honours will see that it was Dr Carter who said that he would assess “the lady in question”.  Then Dr Carter about line 30 has a conversation with Dr Joiner, it seems.  It then goes on.  He “examined the notes”.  He “took the opportunity to speak to the family” – that is at line 50.  Then towards the bottom of the page:

A decision was made to turn the ventilator off –

At the top of page 2363, the unfortunate lady passed away.  Dr Carter is then cross‑examined at 2366.  At line 10, Dr Patel is “unhappy” that he was still on the ventilator and then a piece of evidence that is a little bit important – line 10:

He told you that the family had wanted that ventilation turned off the night before?‑‑  No, he did not.

But, if your Honours go down further, there is reference in the notes to Dr Patel having told the family – that is about line 35.  Then importantly, at about line 40, it is put to Dr Carter that he did the assessment of the patient and it was his decision to turn off the ventilator.  So the upshot of all that evidence is Dr Carter was the one who was in control of that particular decision.  He consulted with Dr Joiner and the decision was made.

A few days previously, on day 29, the first witness on this topic gave evidence.  Her evidence is at 2112 and it is Nurse Tapiolas.  This is all in volume 6.  She is an intensive care nurse.  She was aware of the ventilated patient – that is at about lines 30 to 40 – and so the unfortunate lady is “Mrs Turton”.  Then at the bottom of 2112, she remembers a conversation between Dr Patel and Dr Carter ‑ ‑ ‑

FRENCH CJ:   Mr Davis, it strikes me as a little odd that this matter is dealt with in about three paragraphs in the substantive written submissions and I think one paragraph in the outline of oral submissions.  It is unusual to have, as it were, a more detailed exploration.  The whole point of the written submissions is to get the detail in and then you can speak to it, but at the moment you seem to be descending into far more detail than your written submissions have foreshadowed.

MR DAVIS:   We are doing that because we rather pricked our ears yesterday when it was said that this evidence showed Dr Patel in the light of disregarding human life whereas when one actually goes through the material it does not do that – it just simply does not do that at all.  There are some conversations between the various nurses with Dr Patel.  It is obvious that he believed that this woman’s ventilator was going to be turned off and that is really as far as it goes.

BELL J:   Can I just direct your attention to the opening at appeal book 562 where an account of this evidence is given and it is said that:

Patel said words to the effect that he had to do the operation that day as he was due to go on holidays in a few days.  His manner – the accused’s manner was angry as he walked off to the theatre.

MR DAVIS:   Yes.

BELL J:   The case has opened on the basis that, contrary to protocols, Dr Patel had wanted the ventilator turned off in connection with his desire to go on holidays.  I think that is the sort of prejudice that was the subject of complaint, both by counsel at trial and here.

MR DAVIS:   That specific evidence about him wanting to go on holidays comes from Nurse Brennan.

BELL J:   Yes.

MR DAVIS:   Your Honour will find that evidence at – his evidence commences at 2344.

FRENCH CJ:   Can I just say that the detail of the evidence complained of is set out in the appellant’s submissions in Schedule A under heading “C.  Mr Kemps” in the last dot point.

MR DAVIS:   Yes.  It specifically – well, what they say in the outline is that it is Nurse Brennan’s evidence which is the most significant, so they say, but I will just give references to the other pieces of evidence, perhaps, and not address it otherwise orally - Nurse Stumer’s evidence is at 2131, Ms Zwolak 2179, Doherty 2211, Mr Gaddes is at 2221, Nurse Brennan is at 2344, Boisen is at 2355.

What occurred was that between day 29 and about 32, this evidence was heard, including the evidence of Dr Carter, which we submit rather disarms any prejudice in relation to this.  Then nothing is heard of it again until the addresses of counsel and that appears in volume 8 at page 3092.  I will take the Court to that, if I might, please.  It can be seen there at about line 18, the reference there to the evidence which has been heard, particularly from Dr Carter and it is just put on the basis that it demonstrates a rush to do the operation on Mr Kemps.  Then there is the paragraph at lines 30 to 40 which is a clear concession by the Crown Prosecutor that ‑ ‑ ‑

HAYNE J:   What is the point being made at 35 and following?  To what issue in the trial did the question of haste go - either the trial as originally opened or the trial as ultimately framed?

MR DAVIS:   In the end, your Honour, the Court of Appeal found that this evidence was not relevant. 

HAYNE J:   Are you seeking to say it was?

MR DAVIS:   No, your Honour.  What we are seeking to do is to show that if it was not relevant, which seems to be accepted, its significance generally or adverse impact upon the trial was very low because of the way the evidence unfolded, because of the way the Crown Prosecutor dealt with it, because of the way the defence counsel dealt with it and because of the way the judge dealt with it.

HAYNE J:   But you do not seek to say that the evidence was relevant either to the case as originally framed or the case as ultimately framed?

MR DAVIS:   We have not contended that.

HAYNE J:   Yes.

FRENCH CJ:   What about paragraph 16 of your oral outline?

MR DAVIS:   I know what paragraph – I am having difficulty finding it. 

HAYNE J:   It is the one that says it was probative of certain allegations.  Where are we up to?

MR DAVIS:   That is an error because – and it is my error.  I was looking at the wrong set of particulars.  We do not contend contrary to what the Court of Appeal said about the ventilator evidence, but what we say is the evidence was completely diffused during the course of the trial or any prejudicial effect of it and it therefore did not cause or contribute to the case miscarrying.

Defence counsel deals with the topic at volume 8, page 3277.  I will not go through that in any detail.  It starts at about line 25 and it goes over to page 3278.  The only point of it is that he deals with it on this basis of a rush and that is all that it shows.  The trial judge then deals with it at page 2666.  I will not take the Court to that. 

The second piece of evidence, specific piece of evidence is the Oregon order.  The Oregon order itself is at volume 15, page 6042.  Your Honours have seen this before obviously.  Can I just give your Honours the reference to the trial judge’s ruling on the admissibility of this.  I will not take the Court to it, but it is in volume 1.  It is at page 57.  The order effectively just went in by consent.  As your Honours have heard, there was no evidence actually led about it.

FRENCH CJ:   Once relevance had been ruled on.

MR DAVIS:   Relevance was ruled upon.  There was then no evidence called to prove it, so to speak.  It just went in by consent.  It went in at volume 8, page 2995, and I will take the Court to that because there is something else which occurs on that page relevant.  At 2995 in volume 8 at the bottom, there is a reference to the tender of some documents concerning some handwriting admissions.  Over the page the Oregon orders are admitted into evidence.  Then there is an admission offered by the defence at about line 15.  The effect of that admission is that from the end of 2000, which is when the Oregon order was entered into, or was made, the appellant’s medical practice had been restricted such – he did not in fact conduct certain operations, including the types of operations that are the subject of the trial.

Now, it is said that the Oregon order is either not admissible or it has been overstated by the Crown in final addresses, and that is at page 3142 of the volume that your Honours already have open.  Your Honours will see at page 3142 about line 40 there is first mention of the matter and then at the top of page 3143 there is a reference to “gross repeated acts of negligence”, et cetera.

Can we say two things about that?  Firstly, that was not picked up by defence counsel at all.  He did not address on that.  He chose not to.  He did not seek any special direction from the trial judge about that and, of course, it is unlikely, in our submission, that the jury would have been misled by anything that the Crown Prosecutor said at that point, because the only evidence they had on this topic was, in fact, the Oregon order and the Oregon order was before them.

BELL J:   Just before you move from the Oregon order, it should also be noted that at transcript 2902, the trial judge read to counsel his draft summing‑up respecting the Oregon order and to the extent that it is suggested that that contained the error, again that was not the subject of complaint.

MR DAVIS:   Yes. 

BELL J:   All right.

MR DAVIS:   Yes, the summing‑up on the topic is at pages 140 and 142 so I should actually take the Court to that.  It is in volume 1.  The objection which is taken to this by the appellant is that the trial judge said that the Oregon order gave the appellant the opportunity to reflect upon his skills, perhaps, before then proceeding with the operations.  It is said against us that there is no evidence that he did not reflect.  That seems to be the point.  Of course, in our submission, if he did reflect he could not have had very deep reflection because he conducted these operations in circumstances where experts in the field, including the sorts of people that he ought to have consulted under the Oregon order, have said that he ought not to have.

The Court of Appeal dealt with the Oregon order at paragraph [152], which is in volume 2, at page 436.  The examination by the Court of Appeal commences at paragraph [152] and then at [155] the Court of Appeal expresses its view as to the relevance of the order being – it being proof or goes toward proof that the appellant did not have reasonable skills.  So it can be seen that the Court of Appeal’s opinion about the Oregon order is somewhat different to the trial judge’s in the sense that the Court of Appeal seems to have left open a broader use for the Oregon order than that limited use that the trial judge directed the jury they could adopt.  But going back to the Oregon order itself which is in volume 15 ‑ ‑ ‑

KIEFEL J:   On what basis did his Honour rule it to be relevant, on the basis that his Honour later refers to this allowing for reflection?

MR DAVIS:   His Honour just left it on the basis of it should have given him some insight, some reflection.  The Oregon order itself though, in our submission, is much more probative of proof of the Crown case than either the trial judge or the Court of Appeal, in our submission, actually held.  It is a straight admission, in our submission.  If one looks at page 6043, about line 20, there is an “extensive peer review of 79” patients.  Then at 6044, line 15, he has “made surgical errors”.  He then admits or stipulates that he has engaged in the conduct described in paragraph 2 which is:

gross or repeated acts of negligence in the practice of medicine –

which must surely deal with or concern the types of surgeries which are at attachment A which is 6046. 

BELL J:   But the evidence here was that those types of surgeries were performed competently.  The issue was with the advice to undertake the surgery and the fact of the surgery, not with the competence with which it was conducted.  So how does this tell us anything useful to that case?

MR DAVIS:   Because the order refers to seeking pre‑operative advice.

BELL J:   Yes, but that is not the matter that you were taking up.  The admission is somewhat opaque from the order – it would seem to relate, amongst other things, you would say in 2.3, to the fact that he had made surgical errors, but this is not – the matter I am raising with you, Mr Davis, is I am not sure that it takes you further than the trial judge saw its limited significance to be. 

MR DAVIS:   In our submission, what the order does is to say that before he undertakes these surgeries, he is to seek advice.

KIEFEL J:   What it does not say is whether he is to seek advice as to whether he should undertake it, or whether it is to be undertaken at all.  It is ambiguous in that sense.

MR DAVIS:   Correct.  It is ambiguous to that point. 

FRENCH CJ:   It was not used by the prosecution at trial for anything more, ultimately, than the proposition that this is evidence going to his knowledge of his limitations?

MR DAVIS:   Yes.  We are probably trying to make more of it than we need to.

FRENCH CJ:  Well, you are trying to make more of it than was made of it at trial, I think, are you not?

MR DAVIS:   There is an objection made that it ought not to have been left to the jury because it was irrelevant.  That was basically the allegation.  Not only is it relevant as determined by the trial judge, not only is it relevant on the wider basis as determined by the Court of Appeal, but it may very well be relevant on a much broader basis as well.  It is just simply an admission.  But we will not take that any further.

The evidence concerning Mr Grave – there were two pre‑trial applications which mentioned Mr Grave.  I will just give your Honours the page reference as well, rather than going to them.  It is paragraph 27 on page 21 of volume 1 and then at page 25, paragraphs 14 and 15 – that is in volume 1.  I probably should go to that.  I said 25, but I think I have that wrong - bear with me.  It is in the second application of Justice Lyons.  Yes, I am sorry - it is at page 45, not 25. 

The point taken in relation to Mr Grave was just simply that that operation would have fixed a knowledge upon Dr Patel of the lack of wisdom in conducting those types of operations in Bundaberg.  Again, the Crown address was limited to that.  It is at volume 8, page 3081.  I will not take the Court to it.

BELL J:   In the case that was ultimately presented, what was the relevance of the fact that the surgery was conducted at Bundaberg?

MR DAVIS:   Dr Jamieson, for instance, says that there were insufficient facilities at Bundaberg to conduct that type of operation.  So it goes to the question of whether or not the operation ought to have been conducted there.  Now, in relation to Mr Grave, for instance, what happened was the operation was done and then there was a necessity, ultimately, to have him transferred.

BELL J:   Yes.

FRENCH CJ:   But paragraph [14] characterises the prosecution case as using that evidence to show that the accused:

knew or should have known that major surgery of the kind performed on Mr Grave was beyond his competence –

not as to where it was performed.

MR DAVIS:   Ultimately, the case was not left on that basis, though.  The relevance of Mr Grave’s evidence was more restricted than that as it was ultimately left.

KIEFEL J:   I am just trying to summarise the ruling on its relevance.  It was admitted as propensity evidence.

MR DAVIS:   Certainly, under the ruling it was. 

KIEFEL J:   Yes.

MR DAVIS:   There is no propensity evidence direction, though.  So although it was ruled admissible by a judge on a 590AA application pre‑trial to be admissible on that basis – that was not the basis, it seems, upon which it was ultimately left.

HEYDON J:   The propensity in question was a propensity to conduct surgery with an unsatisfactory technique.  That was irrelevant by the time of the summing‑up.  So that, that is a nexus between Mr Grave and the issue has been broken because the issue has gone.

MR DAVIS:   It was more that Mr Grave’s operation went horribly wrong.

HEYDON J:   That is not a Pfennig support.

MR DAVIS:   No, your Honour.

HEYDON J:   That is the first support that Justice Lyons deals with in his paragraph [14].

MR DAVIS:   Yes, yes.  Your Honours, the Court decided a case in, I think, 1989 called Harriman.  The point in Harriman was that propensity evidence - propensity principles need not be necessarily resorted to where there is some specific fact in the trial to which evidence is probative.  This was not probative of general propensity.  It was probative of his knowledge, that he ought not conduct a case on that basis.  The summing‑up on the issue is at 204.  The Court has been taken to this before.

HAYNE J:   Well, before we get to the summing‑up, counsel for the trial prosecutor goes to the jury, does he not, at 3081 – on the footing that the Grave evidence shows that Dr Patel:

did not have the skill to make appropriate judgments or to handle issues that arose in a major operation.

When you examine the successive pages through which Mr Grave’s case is considered, the thrust of the argument was Patel handled Grave’s case incompetently.  Do you accept that?

MR DAVIS:   Yes.

HAYNE J:   Well, what was the relevance of his incompetence – if that be a correct assessment – in the case of Grave, to whether or not surgery should have been conducted on the patients in question on the indictment?

MR DAVIS:   Well, at 205, the way it was put to the jury as being relevant, was on a very narrow basis: 

Recovery was stormy, which demonstrates the complexity of the –

operations and the post‑operative complications are said by the prosecution to reveal lessons the accused should have learned, that Bundaberg was not the place for such an operation.  But that was the basis upon which it was left.  There was no objection to that.  Now, Grave’s evidence is certainly summarised by the trial judge up to that point.  But that was the basis upon which it was left.  There was no application to withdraw Grave’s evidence from the jury.  That could have been done – the particulars arguments - that battle was long ago.  It was simply left on that basis without objection. 

BELL J:   When you say it was left without objection, I did rather think that in the application made on day 44 to discharge the jury by reason of prejudice, the admission of the material about Mr Grave was one of the complaints.  Is that right?

MR DAVIS:   Yes, that was but that, in my respectful submission, is a slightly different issue.  Once the evidence actually goes in, and it was in, there was then no complaint about the way in which that evidence was led.

BELL J:   But it had gone in when the case was a broader case.

MR DAVIS:   That is the particulars argument.

BELL J:   It is not the particulars argument.  Let us ignore particulars.  Let us say it is how the case was opened and that case as opened, once it became clear it was not to be pressed, that prompted counsel to make the discharge application and to complain of prejudice, including the evidence of Mr Grave.

MR DAVIS:   That is so.

BELL J:   Yes.

MR DAVIS:   My point is a slightly different one to that.  Obviously counsel was bound by the orders that were made by the trial judge on day 44.  He is bound by that.  The summing‑up is then handed to him in draft and there is no objection to the summing‑up in relation to Grave which ultimately appears at page 205.

BELL J:   Well, counsel had, I think, been offered the opportunity to propose directions to cure the prejudice that his application suggested was not able to be cured.

MR DAVIS:   That is so.

BELL J:   He adopted an approach, as I would understand it, that telling the jury “Remember all this prejudicial evidence, now put it out of your mind”, is not always forensically a particularly sensible approach.

MR DAVIS:   Of course.  But the point still remains that in relation to Grave it was left on that narrow basis without prejudicial ‑ ‑ ‑

HAYNE J:   Well, you say “narrow basis”.  If we look at 205 at line 40, is that a judicial endorsement of the arguments advanced by trial counsel for the prosecution, that is:

The post‑operative complications are said by the prosecution to reveal lessons the Accused should have learned -

What lessons?  Go to counsel’s address?  Counsel’s address:  this man was incompetent in conducting surgery and post‑operative treatment.

MR DAVIS:   Well, if your Honour reads a little further, there is the reference to the:

breathing was supported by positive air pressure –

at the bottom of page 205.  If your Honour goes across the page:

Mr Grave was returned to theatre . . . 

The Accused repaired the wound. 

Mr Grave continued to experience respiratory distress –

and ultimately he was transferred to intensive care and then ultimately was sent to Brisbane, page 207.  Then if your Honour reads a little further at page 208, there is a reference at line 25 to Professor Jamieson’s evidence:

Professor Jamieson said that Mr Grave’s complications were recognised occurrences following –

such an operation. 

BELL J:   Was there evidence that the outcome of this operation would have been different had it been undertaken at Brisbane?

MR DAVIS:   I think the short answer to that is no, but there was some evidence that there would have been an intensive care unit with more facilities.  I think that is as far as it went.  But what we say about Grave, what we submit about Grave is that when one reads the direction which was given at 205 with the subsequent comments made by the trial judge, the upshot of it all is that it is in fact limited to a criticism of conducting the operation where it was in fact conducted.  Is that a convenient time, your Honour?

FRENCH CJ:   Mr Davis, can you give us a rough estimate of how much longer you expect to be?

MR DAVIS:   Probably about 40 minutes, your Honour. 

FRENCH CJ:   We will adjourn then until 2 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ:   Yes, Mr Davis.

MR DAVIS:   Thank you, your Honour.  Can we turn then, please, to the more general objections that are made at Schedule A and following of the outline of the appellant.  Can we make some initial submissions before we go to any of that evidence?  Firstly, causation was an issue in the trial until very late in the case in relation to Morris, and was an issue for the jury in Phillips.  In Phillips, it was not abandoned at all, and there was not any specific abandonment in the other cases.

At volume 8, could the Court go to that please, page 3328, this is how causation was eventually abandoned.  There is an exchange – excuse me, I am sorry, I have the wrong page.  It is 3325, and the exchange probably starts a little earlier than that at 3323.  Basically, what occurs at 3323 through to 3324 is that the judge misunderstands the fact that the defence counsel seems to have abandoned causation.  What is pointed out is the contents of the document, which is in volume 15, page 6143.  This was a document that was handed up to the trial judge by defence counsel, setting out effectively a summary of the defence case, so that could then be left to the jury.  At 6143, line 10:

Causation is a large issue concerning Mr Phillips –

and then earlier on, in relation to Mr Morris, it was an issue there as well.  That is at page 6138, about line 25:

The surgery did not cause the death of Mr Morris.

It was not so much an issue in Mr Vowles, because the act which was the grievous bodily harm was the removal of a part of his body, and that of course was deliberately done in the course of the surgery.  So right up until addresses, it seems that causation was a live issue.  That, in our submission, has an impact upon this issue about the admissibility of the evidence. 

Because causation was a live issue, the Crown had to prove that there was a causal connection between the operations and the death, or the grievous bodily harm, as the case may be, and therefore had to exclude any intervening causes.  That is why the Crown carefully tracked through, by way of a number of witnesses, all events between the operation through to the ultimate conclusion which, in some cases, was death.

HEYDON J:   Presumably from day 1 to day 44, the Crown was trying to prove that post‑operative events caused the death.  That was one element of the case.  From day 44 onwards, you are saying that the Crown was trying to prove that post‑operative events did not cause the death.  What caused the death was the decision that there be an operation and ‑ ‑ ‑

MR DAVIS:   No, your Honour.  From at least day 44, what was relied upon was the act of surgery to then cause the death.  If anything was conceded, what it was was that nothing in that intervening period caused the death.  What became relevant then, or what was always relevant and perhaps now a different focus, is the events between the operation itself, the time of the operation and then the death, still were relevant to causation, but it was a question more of not breaking the causal link, rather than pointing to a specific post‑operative act which caused the death or contributed to the death.

The importance of that then is this that some of the post‑operative care, and some of the post‑operative action that was taken, was taken by the appellant and was criticised.  But that is just part of the proof of the causal connection between the operation and the death.

KIEFEL J:   That might be so in a technical sense, but is it important that the jury understood this both at the time that the evidence was given and by what was said obviously in directions and summing‑up, but I do not think one can exclude the question of how the jury would have first formed an impression about the evidence when it was tendered.

MR DAVIS:   Your Honour, there was an opening, and the evidence was led, but by the time the summing‑up arrived, the directions in relation to that were very clear and ‑ ‑ ‑

KIEFEL J:   They would have to undo perhaps a misapprehension that the jury would have had, about what the evidence was going to.

MR DAVIS:   They would have, in our submission.  The jury were very clearly told that this was a case of surgery that ought not to have been undertaken rather than surgery that was undertaken and botched.  Your Honours, that does raise questions then of applications for redirections, because if one gets to the point where the evidence is admissible, albeit that the defence counsel has made application to exclude the evidence, we are still at a point at the summing‑up where the trial judge was attempting to make clear to the jury, and we submit that his Honour did, that what was in issue was a causal connection between the operation and the death.

If the defence were in a position where they had some concerns that the jury may not have understood that some evidence was being led to exclude – or the impact of it was to exclude any intervening cause, then they could have sought redirections about that.  In our submission, it is no answer to say well they made their objections, they lost and then from that point in time they effectively packed up shop.  They could have, if they had specific concerns about this, they could have sought directions.

HAYNE J:   Did the evidence adduced by the prosecution include evidence critical of Dr Patel’s post‑operative care?

MR DAVIS:   Yes.

HAYNE J:   Whether by reference to a particular example or, more generally, what was the jury to make of the evidence critical of his post‑operative care in considering whether the surgery should have been conducted, or in considering any question of causation.  You may do it by reference to an example or examples, or at a level of abstraction.  I leave that to you.

MR DAVIS:   Your Honour, there are really two answers to that.  Firstly, if it was admissible to leave the evidence to exclude an intervening cause, if I can perhaps use that term, then the evidence is admissible and it is by the by that it may have been critical of Dr Patel. 

HAYNE J:   Except the criticism that was made of Dr Patel and the post‑operative care was advanced at a time when the thesis being put to the jury was “This man’s conduct before theatre, in theatre, after theatre, together combined to cause the death of the deceased”. 

MR DAVIS:   Yes, however, the first issue was whether the evidence was admissible on the ‑ ‑ ‑

HAYNE J:   I understand that.

MR DAVIS:   On the case eventually left.  We submit that it was.  The next issue then is what prejudice was suffered, if any, by Dr Patel in having the case develop in that way?  Well, we submit that the case was left very clearly to the jury with clear directions and there is no application for redirection.  So once the evidence is admissible, it then really, in our submission, becomes a question for directions and there was no complaint about it. 

Now, your Honours, the other matter which raises the relevance of the evidence is this.  It seems to be assumed by our opponents that if the complaint is embarking upon the surgery then the consequences of the surgery are irrelevant, and that cannot be right.  If the case is X should not have happened, or X should not have been done, then the aftermath of doing that act must be relevant to the jury’s assessment of whether the act ought to have been done in the first place.  His Honour was alive to that because there was a specific direction given at page 137, and your Honours will find that in volume 1.  At the bottom of page 137 his Honour commences:

You know the outcomes of surgical procedures.

If you follow over you will see that what his Honour there is doing is warning the jury about reasoning with the benefit of hindsight.  So, of course the evidence of what happened as a consequence of Dr Patel’s actions, we submit, is relevant.  Also, of course, this is a series of operations, so as one falls to a disastrous conclusion he then surely have appreciated that he should not have done the next one and the next one.  In that way, in our submission, it becomes all relevant. 

Now, your Honours, I was not going to go to all the examples in the schedules, but if I can just touch on a couple in Schedule A of the appellant’s outline.  The first dot point and the third one are the same; cover the same thing.  I will come back to that in a minute.  The second one:

Morris’ health over some weeks post‑operatively –

et cetera, deteriorated.  Well, that is directly relevant to two issues, we say.  Firstly, it is directly relevant to causation.  To put it bluntly, it is the unfortunate Mr Morris dying, which is the causal result – or the result from the operation.  Secondly, it was open to the Crown to show how Mr Morris was suffering because that inferentially went to show the inappropriateness of the operation.  If we then go to the third dot point:

Evidence concerning Mr Morris’ aspirating vomit and faecal matter into his lungs –

as the appellant there concedes in the second line “a causal factor of his death”.  The “inadequate creation of a stoma”, again that is all post‑operative, all leads ultimately to the death.  It might very well be that there is some criticism of Dr Patel but it is a fact.  If directions were needed to protect him, then they could have been asked for. 

HEYDON J:   You read these remarks, I think, as being admissions on behalf of the appellant.  I think, rather, they are summaries of the case against the appellant with evidentiary references.  They are not.

MR DAVIS:   They are.

HEYDON J:   Very well.

MR DAVIS:   So, in our submission, if the case, in fact, narrowed, the real issue was whether the evidence became inadmissible and, in our submission, it did not.  It was all admissible.  The question then was how it ought to be handled and in relation to that was a question of directions.  There was no complaint, at all.

BELL J:   There was a complaint, Mr Davis.  The complaint was that the trial had gone off the rails such that directions could not cure it.  That is the essence of the application that was made on day 44.  When one looks just at the broad topics to which counsel referred in the course of that application, it was a complaint, amongst other things, that there was evidence going, I think, counsel put it to Dr Patel’s character, that is the evidence that had been led about him allegedly telling lies to members of the families of the various people who were the subject of investigation, reference over the Mr Kemp’s matter to him being tight lipped, the Grave’s evidence, the ventilator evidence, the evidence of the torn oesophagus, the evidence of his inability to perform a stoma, not just in relation to Mr Morris but also in the other case and the problem with the difficulty in inserting the intravenous line.  Now, in a sense, it is not an answer to say, well, that prejudice could have been addressed by directions.  One comes back to – much of this went in because of the way the Crown opened.

MR DAVIS:   Well, much of it went in after the Crown opened in a particular way.  The issue, though, in our submission, is whether it was admissible, in the case that actually went to the jury.

BELL J:   Indeed.  All right, now how in the case that went to the jury was it relevant to lead evidence about telling lies to the patients’ families.

MR DAVIS:   It is an admission by conduct.

BELL J:   Of what?

MR DAVIS:   It is an acknowledgement by Dr Patel that he ought not to have done the operation.

BELL J:   An operation that was done, in fact, competently.

MR DAVIS:   No, incompetently, we say, because it should never have been done.

BELL J:   I see, yes, all right.

MR DAVIS:   Now, just perhaps continuing, your Honour, with that.  The issue then would be this.  There has been evidence then of some conduct that is capable of being regarded as an admission by conduct.  Defence counsel then really has a choice.  Defence counsel can either say, “Okay, that is in, I will just deal with it and I will leave it.  I do not want to draw attention to it”, or defence counsel could say, it is necessary to seek directions and get an Edwards direction for instance.

So, the decision is then made whether or not to have the trial judge advise the jury that there is only a limited basis upon which that could be used.  Now, I do not mean to harp but they did not do any of those things and, consequently, it is just a question of admissibility.  We have made submissions about the admissibility of the evidence in the outline so I will move on. 

There is a complaint in – it is paragraph K on page 18 of the appellant’s outline about the way in which the case concerning Mr Kemps was left.  The submission is that what occurred was that the trial judge told the jury that this was a case, not about botched surgery, but about the decision to perform surgery and then, later in relation to Mr Kemps, of course, there was this second basis of liability which was advanced. 

I will not waste time going to all that but can I just give some references, please, and then make the submission that, in the end, the jury well knew that there were two bases being left as against Mr Kemps.  The initial part of the summing‑up is at pages 142 and 143.  That is the statement about it not being about botched surgery.  Page 218 is the summing‑up on the first basis concerning Mr Kemps, namely, the decision to perform the surgery.  Pages 218 and 219 refers to the – again in the summing‑up – defence case. 

At 223 the judge advises that there is a second alternate case in relation to Mr Kemps, similarly at 224.  Before all that occurred there was a discussion, an exchange between counsel and that is at 3222 which is in volume 8 through to page 3225.  The defence addressed the topic at 3274.

If we could then turn to the last matter which is the proviso and at paragraph 70 of our outline – and we address the proviso in relation to this issue about whether section 288 was available.  The proviso arises in this context if, of course, it was not.  At paragraph 70 we set out two columns and attempt to compare the elements which ought to have been left to the jury if section 288 was relied upon and if 288 was not relied upon. 

Now, all that is self‑explanatory, in our respectful submission, apart from one issue and that is in relation to section 23.  Section 23 was not left but, in our submission, section 23 was simply never open in this case.  We have to take the Court initially to volume 10, please, page 4007 and this is a consent form.  There are others that I will take your Honours to in a moment.  This is a consent form for bowel surgery and your Honours will see there is a category at paragraph:

D. GENERAL RISKS OF A PROCEDURE

When one looks through at sub‑paragraph (d):

Death is possible due to the procedure.

Now, that was Mr Morris’ form that he signed.  Mr Kemps signed one – volume 16, page 2627; Mr Phillips – I will not take the Court to these, they are all the same.  Mr Phillips volume 12, 4869 and then in volume 15, page 137 is Vowles.  The defence case was always these people have accepted the risk.  It was explained to them, they have accepted the risk, they consented and that was one of the issues that the defence relied upon in

order to show that the operation was reasonable and that it was not, in 288 terms, a breach of duty. 

The Court of Appeal held that section 282 was, in this case, subsumed by 288.  I will just give the Court a reference to that.  That is in the judgments, volume 2.  It is paragraph 94, page 410.  We submit, with the greatest respect that that was correctly found.  So the only issue is section 23 and 23 just was not available.  It just was never the case that the defence were alleging that these consequences were not, at least, reasonably foreseeable and, indeed, the consent forms show that they were foreseen. 

The only other matter we wish to raise is this.  There was a submission made yesterday, and it is in the appellant’s outline as well, that the accused was deprived of making the decision whether to give evidence or not under a properly constituted trial.  Now, as a matter of logic, in our respectful submission, that is an odd submission because if the Bateman test applies to section 288 when it does not apply to section 282, one wonders why an accused person would be more likely to give evidence where the onus or the burden of proof was less.

But, in any event, there is another answer to it and that is this that there is no evidence as to what he would do.  There is no affidavit sworn by him saying what his advice was at any particular time.  There is no affidavit sworn by his lawyers.  The appropriate place to do that, of course, with the greatest respect, is not in this Court, but it would have been in the Court of Appeal, it being a court of general criminal appeal.  That was never attempted so the argument, or the submission, becomes a very hollow one, in our submission.  Thank you, your Honours, they are our submissions.

FRENCH CJ:   Thank you, Mr Davis.  Yes, Mr Kelly.

MR KELLY:   Thank you, your Honours.  Your Honours, may I please deal with two housekeeping matters to do with the record to start off with?  Can we point out at appeal book 1, page 466 at paragraph 2 that the notice of contention of the Crown is incorrect, paragraph 2. 

BELL J:   Could you speak up, Mr Kelly. 

MR KELLY:   Sorry, your Honour.  Your Honour, I was just making a point that at appeal book 1, page 466, paragraph 2, we understood the appeal was – sorry, it is appeal book 2, page 466.  There is a notice of contention that the Crown was relying upon and in paragraph 2 it is contended that the ventilator evidence was properly admitted.  From what our learned friend, Mr Davis, said this morning, that is no longer contended.  The other point is yesterday Justice Heydon pointed out an error in page 18 of our written submissions in‑chief at footnote 41.  That reference in the footnote should read correctly “Appeal book 8, page 3092, lines 15 to 40”. 

Your Honours, could I then move in reply to the section 288 point which was discussed by the Solicitor‑General this morning?  My learned friend submitted that in reading section 288 the word “lawful” where it occurs in the phrase “or to do any other lawful act” is to be read as only referring to that particular act and not to the words that precede it and in particular I quote “undertakes to administer surgical or medical treatment”.  Mr Sofronoff made that submission this morning. 

We submit that that construction has to be wrong, with respect, and interferes with what our learned friend described as the coherence of the section, that is, the parties all agree and the Court agrees, it seems, that the words “administer surgical or medical treatment” must be an act of the kind referred to in the section.  So it would, in my respectful submission, require a very convoluted reading to interpret the words “other lawful” as not referring to the other kind of act referred to in that section. 

We also submit following on from what my learned friend said this morning the words “undertakes to administer surgical or medical treatment” do not comfortably sit with a decision to operate that comes before anything is administered or done in a physical sense to a patient in terms of operating or carrying out treatment.  You will recall my learned friend referred to the time at which something happens.  We say you cannot sensibly talk about administering something until you have made the decision. 

Your Honours, on section 288, before I leave it, the Solicitor‑General dealt with the topic of a decision to operate and ultimately we submit that the way the case was put to the jury obviously has to count, and when the jury were addressed on what Justice Bell has referred to as the “Bateman standard of gross negligence” they were uniformly addressed by the judge in terms of this, that what had to be thoroughly reprehensible and involve grave moral guilt was the decision to operate, and that was repeatedly addressed to them.  If I can give you the examples, if I may - appeal book 1, page 151, line 1; appeal book 1, page 155, line 38 and appeal book 1, page 181, line 42.

Your Honours, yesterday I gave an answer to the Chief Justice concerning where – I was asked where the Court of Appeal had erred in their decision about admitting evidence and I referred your Honours to paragraphs [133] and [134].  That is in appeal book 2 at pages 430.  Overnight I would just like to correct something.  The discussion by the Court of Appeal really begins at paragraph [116] and goes through to paragraphs [133] to [134].  So if I could take you to page 430, please.

What I submitted yesterday related to paragraph [133] and it was this.  Sorry, it is paragraph [133] of the Court of Appeal decision which is at page 433.  I submitted that their Honours, with respect, erred in suggesting there was a false premise entertained by the defence.  The false premise was that the defence did not entertain that the Crown case changed from one entirely concerned with proving that the appellant had operated negligently to one only concerned with what the appellant should not have – that the appellant should not have operated.  I made the submission yesterday this was not a premise entertained by the defence, and that must be clear because of the opening of the Crown.  That has to be clear. 

It also has to be clear from the particulars you have seen, the original particulars delivered in relation to Mr Morris and subsequent particulars, and it also has to be the case from the submissions that the defence delivered on day 44 seeking a discharge of the jury.  But that error, with respect, was also repeated by the Court of Appeal by their Honours in paragraph [121] where again they use this expression about there being only effectively two cases:  a case involving a grossly negligent decision to operate and a case of there being grossly negligent performance of surgery, and the Court of Appeal do not deal with the other cases open on the wider particulars. 

Your Honours, yesterday my learned friend, Mr Sofronoff, made a point obviously that – and it has been made in large terms today that objections were not made at trial and we have to face up to that as a defence.  But this does beg the question in the case and it is our submission that if the narrow particulars of day 43 had been delivered when they ought to have been early in the trial, the accused would have had different choices to make and would have been able to make informed decisions about what to object to and what to do in terms of giving evidence. 

The point made by Mr Sofronoff was also that further directions were not sought.  This is in relation to summing‑up to the jury.  But can I just bring to your Honours’ attention there was a real and genuine concern by the trial judge that special directions that dealt with prejudicial evidence apart from other matters such as the Oregon order, which he did not consider prejudicial, may not be possible.  His Honour said this at page 8 of the appeal book, if I can take you there please, at 2942.  Page 2942, line 25, his Honour deals with the problem he is facing where he says:

Well, if you’ve got any suggestions, I would be pleased to hear it, because as I’ve been reflecting on it, I have not myself been able to devise a satisfactory way of dealing with it.  For example, further redacting the transcript to take out the portions that are inadmissible would be a time-consuming exercise.  In any event, it would not address the fact that many jurors have been making notes.

Your Honours, in the course of the judgment his Honour also made a correct statement, with respect, at appeal book 8 at page 2951, lines 47 to 50.  If I can take you to 2951, at about line 49 his Honour says this:

Well, whether it has or it hasn’t, what it might have done is to have – if the particulars had been supplied at an early stage, have prompted him to seek its exclusion on discretionary grounds even if it were strictly admissible.  It is, at least, unfortunate that it took two and a half months for a coherent, sensible set of particulars to emerge and, as I’m aware, a number of interlocutory rulings have been made on the assumption that the Crown case had something to do with botched surgery.

So his Honour was aware of this potential for prejudice.  When he came to though deal at the same volume, his Honour dealt at 2955 on day 44 with the defence’s position, he says at the bottom of the page at 55, we say unfairly to the defence, with respect:

Well, they were.

MR SOFRONOFF:   Your Honours, I hesitate to interrupt my learned friend in reply, particularly in a criminal case, but it is a little difficult for us in that our learned friend is referring not to matters of law in the sense of what his Honour said in his ruling, but matters that his Honour said along the way which may or may not bear upon the true position at the end of the debate.  If it had been relevant to do so, then we would have had an opportunity to answer these things and to put them into context, but to raise ‑ ‑ ‑

HEYDON J:   The material on page 2951, I think - I am open to correction on this - was referred to in the appellant’s written submissions. 

MR SOFRONOFF:   In?

HEYDON J:   In 2951 in the appellant’s submissions.

MR SOFRONOFF:   Certainly, your Honour.

HEYDON J:   The current one he is referring to I do not think.

MR SOFRONOFF:   The point I am making is that insofar as the case was argued against us openly in the exchange of written documents and yesterday we have dealt with everything we want to deal with – and we do not complain if our learned friend wants to point to the rulings and say something arises from them, but if my learned friend is going to point to

matters that arose during argument, it may be that some of those matters raised by the judge were answered by Mr Martin and accepted by Mr Martin.  I am not saying they were.  We would have to look at it.  But, it is a little late for us now to deal with it. 

MR KELLY:   Your Honour, I will leave the point, if it please the Court.  I am indebted to my learned friend.  Your Honour, one thing I can say is when Mr Sofronoff, my learned friend, took you through the case this morning in his run through what had happened, he did neglect to take you to quite a critical passage, if I may take you to that.  I take you there in the sense that it is important to give you a true picture of what happened.  You were taken to the Crown opening.  One passage you were not taken to was at appeal book 3, page 545. 

KIEFEL J:   If it is the passage at line 15, I think Mr Sofronoff’s attention was directed to it.

MR KELLY:   It is lines 40 to 60, your Honour.

FRENCH CJ:   Well, I already have that marked on mine.  So somebody has taken us to it.

HEYDON J:   You referred us to line 40 and to line 50.

MR KELLY:   Thank you, your Honour.  Your Honour, the other point I would make while I have volume 3 with me, is that in relation to the evidence of Dr Collopy, it has been referred to the fact that causation remained an issue and so forth.  At volume 3, at appeal book 937 – if I could take you to the bottom of the page at about line 59 – Dr Collopy, who was an extremely well‑credentialed expert, gave evidence that:

this elderly man –

Mr Morris, had died.  He gave it in the terms, appearing at lines 59 through to line 8 and then the prosecutor says:

All right? 

Then Dr Collopy says:

So that’s a general statement as to why this man has died.

This may be considered by the Court as the sort of evidence that might, if causation remained an issue, be acceptable and might surpass a…..objection, that is, it does not seek to say anything pejorative about Dr Patel.  It explains why he died.  It does so in unemotional terms and that is, it is possible even though causation remained an issue, to conduct a trial where blame and so forth is not attributed.

The point is made against us if causation was an issue - this was made most recently by my learned friend, Mr Davis.  But, our point is in response, if the final case had been run earlier, a number of alternatives could have occurred that did not occur.  One was that causation might have been admitted, as I said yesterday.  The other is causation can still be relevant while still allowing…..applications to be made. 

Another point I would make, with respect, is that there is no direction in the summing‑up by the trial judge to the jurors to ignore the evidence of incompetent surgery, or post‑operative care, engaged in by Dr Patel.  But there was evidence from Dr Collopy that Dr Patel caused the death, in part, of Mr Morris by malnutrition and that Dr Patel was responsible for that.  You will pick that up at appeal book 3 - I have lost the page numbers momentarily, your Honours.  If your Honours could bear with me - I am sorry it is quite an important passage so I would like to find it.  Your Honours, it is page 940 of appeal book 3.  Could I ask you to read from lines 38 to 50.  The question put to the witness, Dr Collopy was:

To what extent did this issue of malnutrition contribute to his death, if any?‑‑  I think that towards the end there it contributed to a significant extent –

I will not read what follows there but it is important for your Honours to read the answer at line 49, where Dr Collopy says the surgeon is responsible for the malnutrition.  We say this was highly prejudicial evidence which it would have been impossible for the jury to segregate from other issues that Dr Collopy, who was a respectable witness, gave evidence about.  Ultimately, could I take you to page 943?

KIEFEL J:   I am sorry, what was that, Mr Kelly?

MR KELLY:   Page 943, your Honour, in appeal book 3.  At line 30 the questions asked by the prosecutor:

How far below the standard of a competent surgeon was this?‑‑  I would say it was well below.

Right.  And what parts would you emphasise were well below –

Now, we here get a litany of reasons of why the standard was below and they include, for example, undertaking the operation, which we understand is the decision to operate.  But if you go to line 47 you will see this quite important evidence he gives:

Then the fifth issue, which allows me to say it was well below an acceptable standard, was the failure in the postoperative management of the stoma, and the failure to address his nutritional requirements.

That went, or went in, on the wider case.  Your Honours, finally in reply could I just ask you to look at two cases?  One is Libke, which is in our bundle. It is at No 5.

FRENCH CJ:  It is (2007) 230 CLR 559.

MR KELLY:   That is correct, your Honour.  Your Honour, I would ask you to please have reference to the following passages.  At pages 576 to 577, in the joint judgment of Justices Kirby and Callinan, paragraphs 34 to 35 ‑ ‑ ‑

FRENCH CJ:   What is the proposition?

MR KELLY:   The proposition that ultimately it is the trial judge who has the transcendent duty to make sure that the trial conducted is fair.  You will pick that up at page 577, paragraph 35.  To be fair their Honours talk about the obligations of counsel to do the right things.  But in paragraph 35 in the last two sentences they say:

But it is also the duty of the trial judge to make appropriate interventions if questions of those kinds, capable of jeopardising a fair trial, are asked.  The duty of the trial judge is the highest duty of all.  It is a transcendent duty to ensure a fair trial.

HAYNE J:   That is a dissenting opinion, was it not?

MR KELLY:   Yes, your Honour.

HAYNE J:   It might be useful to mention that fact when you are citing it to us.

MR KELLY:   Except, your Honour, that your Honour also made a comment to a similar effect which I was about to take you to, if I may.  Justice Hayne, page 587, at paragraph 72, said, in the last two lines of paragraph 72:

But it is for the judge to “hold the balance between the contenting parties”.  It is for the judge to ensure that the trial is conducted fairly.

Your Honour Justice Heydon – I beg your pardon, your Honour Justice Hayne, Justice Heydon agreed with your reasons as did the Chief Justice in that case.

BELL J:   Mr Kelly, these propositions, if I may say so, are somewhat trite and in a case where it might be thought the one person exhibiting trenchant efforts to ensure fairness to your client was the trial judge, I just wonder about the necessity to take us to those very well‑worn passages.

MR KELLY:   Thank you, your Honour.  Your Honour, could I take you to one other case?  It is Weiss v R, your Honours are obviously familiar with it. It is at (2005) 224 CLR 300, and the passage I would refer to, without reading it out to your Honours, which we rely upon is at paragraph 43. They are our submissions.

FRENCH CJ:   Yes.  Thank you, Mr Kelly.  The Court will reserve its decision. 

The Court will now adjourn to reconstitute in due course for special leaves later on this afternoon.

AT 2.52 PM THE MATTER WAS ADJOURNED