Patel v The Queen
[2012] HCATrans 134
[2012] HCATrans 134
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 WEDNESDAY, 6 JUNE 2012, AT 10.15 AM
Copyright in the High Court of Australia
MR L.F. KELLY, SC: May it please the Court, I appear with my learned juniors, MR D.M. TURNER and MR P.F. MYLNE, for the appellant. (instructed by Raniga Lawyers)
MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MR P.J. DAVIS, SC, MR D.L. MEREDITH and MR J.R. JONES, for the respondent. (instructed by Director of Public Prosecutions (Qld))
FRENCH CJ: Yes, Mr Kelly.
MR KELLY: Your Honours, would it be of some assistance, before I summarise our case, to hand up a copy of the Criminal Code that applied as at May 2003, which was the relevant version of the Code? I have five copies, if it is appropriate.
FRENCH CJ: As at what date?
MR KELLY: I have five copies of the Criminal Code as it was as at May 2003, which was the relevant date. If it is of assistance to the Court ‑ ‑ ‑
FRENCH CJ: So Reprint No 7 embodies some changes, does it?
MR KELLY: I beg your pardon, your Honours. It is Reprint No 4H.
FRENCH CJ: All right, thank you.
MR KELLY: Could I hand those up, please? Nothing changes in terms of section 288 and 282. Your Honours, may I commence by just summarising the two issues that the appellant raises on this appeal? The first issue relates to section 288, and it is this, it was that the appellant was incorrectly tried under the wrong provisions of the Criminal Code, and in particular, by reference to contravention of the duty in section 288. The appellant was convicted of three charges of manslaughter concerning operations on Mr Morris, which was to remove Mr Morris’ sigmoid colon, Mr Phillips, which involved an oesophagectomy, Mr Kemps, which was also an oesophagectomy, and the appellant was also convicted of unlawful grievous bodily harm in relation to Mr Vowles, and that operation involved the removal of Mr Vowles’ large bowel.
It is our submission that the case put to the jury by the trial judge was that in each case they had to find, in order to convict the appellant, that the decision to operate was criminally negligent, and to use his Honour’s words, that the decision was so thoroughly reprehensible as deserving punishment as a crime. It was made clear to the jury that the case was not one about botched surgery. It was also put to the jury by the trial judge that the only path to conviction was for them to find a contravention of the duty found in section 288 of the Code. It is our submission that the fundamental problem is that section 288 of the Code is irrelevant to the case as brought against the appellant because it does not deal with a decision to operate. It deals with the performance of surgery, for reasons which we will address soon.
This mistake in interpretation of section 288 had three very important consequences for the appellant at trial. The first was that he was denied a proper trial according to law, and the choices he had to make, including the critical choice about whether or not to give evidence under a trial properly conducted, was denied to him. The words of Justice Fullagar in the case of Mraz are relevant. We admit they are not decisive in terms of cases like Weiss, on the proviso, but the words of Justice Fullagar are relevant. That is in (1955) 93 CLR 493 at page 514 and those words were:
every accused person is entitled to a trial in which the relevant law is correctly explained to the jury –
The second consequence, we say, which was critical and adverse to the accused by the application of section 288 was that the defence in section 282, which was available to him, was not put to the jury for consideration and nor was its meaning explained to the jury. They simply were not asked to consider it. In our respectful submission, proof of a contravention of section 288, contrary to the reasoning of the Court of Appeal, is not an equivalence to disproving the offence under section 282.
FRENCH CJ: The pathway through 282, on your submission, would involve 23, the possibility of the defence under 24, and the possibility of defence under 282. Is that how it works?
MR KELLY: Section 282, your Honour, yes.
FRENCH CJ: Yes. So it is homicide, accident, maybe mistaken belief as to certain factual circumstances, and then 282.
MR KELLY: Yes, and I was just moving to section 23 now, if I could. The judge did sum up on the mistake of fact in section 24, so we cannot complain about that, but under section 23, the appellant was denied – if our argument about section 288 is correct and it did not apply, then it followed that an available defence which the jury should have considered, and which the appellant was entitled to have considered, was the defence of accident under section 23(1)(b) of the Code. That defence was not put to the jury, and the jury was not even asked to consider the questions of foreseeability that arise under such a defence.
Those considerations of foreseeability are aptly dealt with by Justice Gibbs in Kaporonovski v The Queen in (1973) 133 CLR 209 at page 231. Your Honours, in light of the above summary, we will develop it. The Crown’s attempt to engage a proviso, which is contained in section 668E(1A) of the Criminal Code, should fail and the conviction should be quashed, and we will refer to this Court’s recent decision in Baiada Poultry in that regard, and in particular, paragraph 31 of that decision.
Your Honour, our learned friends rely on the proviso in the event that the construction of section 288 was wrong. The proviso has been considered numerous times by this Court, most recently in Weiss, Handlen, Cesan and Baiada Poultry, but it is the engagement of the proviso that requires the Crown to establish that no substantial miscarriage of justice has actually occurred, bearing in mind that the Crown must prove the case beyond reasonable doubt, and that speculation by an appellate court about what would have happened under a properly conducted trial is not permissible.
One point that is not in contention between the parties is that the jury was never asked to consider the defences under section 282 or of accident under section 23(1)(b). No one contends to the contrary, and could I take you in that respect to our learned friend’s written outline at paragraph 69? Could I take you to the first sentence of paragraph 69? Our learned friend the Crown submits:
Whether or not s 288 is relied upon, s 282 must be disproved.
We submit that that submission is more or less fatal to the Crown case and its attempt to uphold the convictions. We say that because section 282 cannot be disproved before a jury when the jury were not told about it, and not asked to consider it, and not asked to direct their minds to the elements of it. We submit that at that point, the case is really over.
The second issue we raise on the appeal and which we will take a longer time to canvass because it is a miscarriage of justice point, and we have to go through the way the trial developed, involves this proposition. It involves a proposition that there was a serious miscarriage of justice, so serious that this trial cannot be called a trial properly so‑called.
The second issue is cumulative in the sense that a miscarriage is cumulative. It involves an aggregation of errors, and the essence of the miscarriage, without wanting to depart from the aggregation of errors, was that the learned trial judge permitted the trial to continue from day 6 onwards on the basis of particulars which his Honour considered to be legally incoherent, and particulars which made allegations that involve the myriad of very serious alternatives against the accused, including bad faith on the part of Dr Patel, incompetent surgery, incompetent post‑operative care. We refer to these in our submissions and we will refer to them orally as the original particulars.
The first particulars were delivered in the original form on day 6 in relation to Mr Morris, and then they were sequentially delivered in a form of pro forma template as the evidence on the other cases began to be called. There was one exception to that, which was the case of Mr Kemps where there were extra alternatives added to the particulars. The learned trial judge encouraged the prosecution to narrow its particulars by the time the addresses had to be made to the jury. He did that at an early stage in the trial so as to enable what he called, and I use his words, a pared back case to be put to the jury. In the meantime, much evidence was called which was highly prejudicial to the appellant based on the original particulars.
The final case was a narrow one, and a coherent one. It was confined to the question whether the decision to operate in each case was criminally negligent. By contrast, the original particulars on which the trial had been run, made wide‑ranging allegations of incompetent surgery, bad faith, botched surgery, incompetent post‑operative care, unprofessional callous behaviour, and the evidence called in relation to those particulars implied dishonest behaviour by Dr Patel, which would have been arguably relevant under the allegations of bad faith. These serious issues were deleted from the final particulars, and those final particulars were not delivered until after all of the Crown witnesses had given their evidence on day 43.
When the judge received the narrowed and final particulars provided by the Crown on day 43, he described them correctly as a “vast improvement”, and as the first coherent particulars that had been in place to that time. He also said – and your Honour, we are not using a pejorative epithet for figurative purposes – the words of the trial judge were, on day 43, that the trial until then had been, and I quote, “a mud‑slinging exercise”. The judge used that expression more than once. He used it early in the trial, and he used it on day 43, and it is absolutely inimical to the public confidence in the administration of criminal justice to have a trial of this seriousness conducted where a judge says after the Crown has called all its evidence that what he has seen has been a mud‑slinging exercise.
FRENCH CJ: Mr Kelly, there is a document dated 29 May called a further amended application for special leave to appeal, and under ground (b) there is the heading, particulars of miscarriage of justice. There seems to be one set which deals with section 288, but that is the matter on which you have special leave, and the other section is called, further miscarriage of justice in the narrowing of the particulars on day 43. Can we take it that it is that second set of particulars upon which you are addressing us in relation to the miscarriage of justice issue?
MR KELLY: Yes.
FRENCH CJ: As the referred ground?
MR KELLY: Yes, your Honour. Your Honour the Chief Justice, could I just qualify it by reference to this? We also submit that what we say is the problem of section 288 is a self‑standing problem which is enough to quash the convictions.
FRENCH CJ: Yes, you have special leave on that question.
MR KELLY: Yes, but we would also rely on the miscarriage of justice separately as an independent ground to quash the convictions.
FRENCH CJ: Yes, I understand that. That is the referred ground?
MR KELLY: Yes, thank you. Your Honours, just to continue the summary, we think his Honour’s comments speak for themselves, but it is also relevant to note that the learned trial judge erred, we submit, in refusing the defence’s application to discharge the jury on days 10 and 44 of the trial. These are in circumstances where his Honour’s view about the particulars on day 10 was already that they were admitting a mud‑slinging exercise to occur and was already that they were legally incoherent. We submit that his Honour erred in failing to discharge the jury as he was asked to do.
Basically, we say with respect to the judge, he erred in understanding what the role of particulars are in a criminal trial. As I will develop the argument, his Honour saw the particulars as serving this purpose, enabling him to give a coherent summing‑up to the jury on a narrow basis. He did not give adequate attention, or any attention, to the central role of particulars in a criminal trial, which is to provide a protection to the accused in the conduct of a trial in the course of the evidence, and also to require the prosecution to nail its colours to the mast at an early stage so that both parties, in an adversarial contest, know what the issues are. His Honour completely neglected that aspect of the particulars.
Your Honours, we will also refer to something called the Oregon order, which you may be familiar with. The trial judge, we submit, erred in allowing the evidence of the Oregon order to go to a jury. Each of the trial judge and the Crown in a serious way misinterpreted the effect of that order. All that happened with the Oregon order was that the Crown tendered a document and said, here is the Oregon order. They called no one from Oregon to explain what Dr Patel had done in Oregon.
FRENCH CJ: Now, the judge ruled against you on relevance, but there was no contest otherwise on admissibility, is that right, at ‑ ‑ ‑
MR KELLY: At trial, yes.
FRENCH CJ: It was otherwise admitted by consent?
MR KELLY: Yes. There was an argument about admissibility before trial, your Honour, but you are correct in saying that it was not objected to during the trial. But the Oregon order, it was not just a question of admissibility, it was wrongly put and wrongly interpreted to the jury by both the trial judge and the Crown in a way that was highly prejudicial to the accused, and it was an equivocal order, but it was interpreted by the trial judge and the Crown in an unequivocal manner, and to the effect that he had engaged in acts of gross medical negligence, which are unspecified in Oregon, before coming to Queensland and we will press that point. We say that that loomed large in the trial and was an important part of the trial, and it was mistakenly put to the jury on a misleading basis.
On the miscarriage of justice point the trial judge failed to deal with the admission of highly prejudicial evidence concerning the turning off of a ventilator on a critically ill patient, and the appellant’s behaviour in this episode, which cast him in a light which was inhumane and as someone who was prepared to breach hospital rules in order to prematurely bring about the death of a patient to suit his holidays and to get an operation done in time to suit his convenience.
Now, the defence is criticised on this appeal because the defence failed to object to evidence at the trial. We will deal with that in due course, but that objection loses a lot of force when the defence never had an opportunity to object to the final particulars which the case was based on and which were delivered on day 43, because all the evidence had been called by then. So it is a little bit irrelevant, in our submission, to say, well, what would the defence have done if they had been given proper particulars at the start and given the proper protections of particulars?
We also say it is irrelevant for other reasons, but one of those reasons is a lot of the evidence that went in was arguably relevant to the very wide broad ranging particulars that were provided about bad faith, about knowingly operating on patients, not for their benefit and so forth, about post‑operative neglect. If your Honours consider that the appellant was convicted of a decision to operate or everything that happened before the operation being thorough reprehensible, the jury heard detailed evidence in relation to Mr Morris of about 14 days of the tragic suffering of Mr Morris dying slowly and painfully due to post‑operative neglect, and that had nothing to do, with respect, with the decision to operate.
Just to finish the summary, it is also said against us as a criticism of the defence that no special directions were sought by the trial judge. The fact is by the time it got to the summing‑up stage the trial was off the rails. That is an expression used by Chief Justice Gleeson, in the case of Nudd v The Queen. The trial was off the rails by that stage and it was too late for special directions to be given because so much ‑ just sheer volume of prejudicial evidence was so great it would have been impossible, impractical and unfair to direct a jury to ignore most of the evidence or large parts of the evidence that had gone in.
In fact, his Honour, who said in his own words, “a welter of prejudicial material has been thrown at the jury”. His Honour could not devise a way to craft special directions to tell the jury how not to look at prejudicial evidence, and in fact, what he said was to this effect. The jury had been taking notes. They had been taking really careful notes when relatives of deceased patients had been coming along to give evidence, “if I give the jury directions not to look at prejudicial evidence that would just draw their attention further to the prejudicial evidence and that is an unsatisfactory situation”. So it was not dealt with and it was too late to deal with it, so we do not think there is much validity in that criticism.
Your Honour, could we refer to paragraph 84 of our learned friend’s submissions? Paragraph 84, on the miscarriage of justice point, the Crown attempts to summarise our argument by saying that:
the particulars appear to involve a contention that, by reason of the alteration of particulars in the case, some evidence was admitted which ought not have been admitted.
We submit that is quite a strong understatement of the real nature of the complaint, and we submit that the Crown’s submissions do not really come to grips with the real scope and seriousness of the point, which involves at its heart the dramatic shifting of a prosecution case on day 43 after the Crown evidence had closed which shifting, can I say, worked completely adversely to the accused.
Now, your Honours, that is the summary. The actual chronological order of operations is set out in our chronology, which is at Part IIA. The operations occurred in this order. It was Mr Phillips, Mr Morris, Mr Grave, Mr Kemps and Mr Vowles. Mr Grave was not the subject of any charge, but a lot of evidence was given about Mr Grave’s situation; we submit, that was irrelevant. That order becomes relevant when we come to consider Mr Grave.
Now, can I please move to the first issue on section 288? On the first issue the appellant was convicted of a decision to operate that was thoroughly reprehensible and criminally negligent, and to make that proposition good I need to take you to the summing‑up of the case that was put to the jury by the trial judge. That is found in appeal book 1. Could I please take you to page 142?
FRENCH CJ: 142 was it?
MR KELLY: Page 142, your Honour, line 50. You will see at about line 50 his Honour says:
It is critical to appreciate that this trial is not about botched surgery.
Instead, it is about surgery performed competently enough.
If I could take you to the next page at line 10, his Honour says to the jury:
It is not how the Accused performed surgery that matters in these four cases.
What matters is his judgment in deciding –
Can I emphasise the word “deciding” –
to commend the surgery to a patient and, having obtained patient’s consent, in taking the patient to theatre to perform it.
Could I take you please to page 145 at line 30? I should really take you to the bottom of page 144 because his Honour starts there talking about “the breach of duty” and then the elements of the offence. At about page 145 at line 15 he says:
Let me elaborate on these matters ‑
and he turns to the duty at about line 15. At line 29 his Honour says this:
He must also have reasonable skill and exercise reasonable care in deciding to commend the surgery to his patient –
and we emphasise those words –
and, where the patient consents to the procedure, in deciding to act on the patient’s wishes to proceed to carry out the procedure.
If you could then turn please to page 150 ‑ ‑ ‑
FRENCH CJ: And he is doing this expressly under the reference to section 288, which appears at 144, I think, at line 20?
MR KELLY: Yes, your Honour, I was going – yes. If you could please turn to page 150, your Honours you will see at line 38:
Accordingly, to conclude that the Accused’s decision to perform an operation exposes him to conviction for manslaughter, you must first be satisfied, beyond reasonable doubt, that he did not have –
Then in the next paragraph at line 50:
Importantly, you must also be satisfied beyond reasonable doubt that his decision to perform the surgery in question involved such a great falling short of the standard to have been expected, and showed such serious disregard for the patient’s welfare, that he should be punished as a criminal: in other words –
Can I emphasise this –
that his decision to operate was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment.
If I could take you to page 181 please? This is where his Honour is dealing with the case of Mr Phillips and summing‑up the elements of the offence. You will see at the top of the page at about line 8 he says that you must be satisfied “of these three things” and he says (1), (2) and (3). At No (3) can I take you to the words at about line 42:
in other words, that his decision to operate was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime –
If I could take you to page ‑ ‑ ‑
BELL J: Just before you do that, you will see that point (3) commences with “proceeding to perform the operation”, and I think one sees throughout the summing‑up the combination of the decision to operate and the consequential conduct in proceeding to operate, albeit perfectly competently, but I think it is relevant to note both.
MR KELLY: Yes, your Honour. We would say, your Honour – it might be distracting to say this now ‑ but we would say that the decision to operate without an operation occurring is irrelevant. It is like repudiating a contract and not having it accepted, but what he was convicted of was actually deciding to operate, we would submit, and of course, there had to be an operation because that caused the death. Your Honours, if I could take you to page 218? It is just the same point, although this time it is dealing with Mr Kemps and it is at line 50:
in other words, that his decision to operate was so thoroughly reprehensible –
So my point is the jury is repeatedly hearing this way of describing the offence that they have to decide. If we go to page 235 we come to Mr Vowles, and if you look at line 43 again:
that his decision to operate was so thoroughly reprehensible –
So the jury would have had this very much in their mind as being front and centre of the decision they had to make. And then if I could take you please to appeal book 2, that is where his Honour sums up the prosecution case? And could you please turn to page 301, your Honours, at line 40? So his Honour here has turned from summing‑up to the jury and then he summarises the prosecution case and he summarises the defence case. At line 40 he says as clear as night and day:
The prosecution says that the decision to operate was criminally negligent.
Then at page 302, you will see at line 23 there is a reference to a counter proposition, but the counter proposition is put in this way:
Against that background, the decision to proceed cannot have been criminally negligent.
So there is no doubt that the jury was being asked to consider this case and my client was convicted on that case.
The next point I wanted to move to, if I could, is section 288, and this is this point. It was point to the jury that the only basis upon which Dr Patel could be convicted – and there was no alternative basis – was that he had to have breached the duty imposed by section 288 of the Code. That is set out at – your Honours have a copy of the Code there – but it is also set out at paragraph 22 of our written submissions.
It is our submission that section 288 has nothing to do with a case that involves a decision to operate, and it involves very strained reasoning to say that it did. It is clear that his Honour was clearly relying upon 288 as the only path to a conviction. If you look at volume 1 again of the appeal book at page 143, going on to 144, at the bottom on 143 his Honour says:
Against that background, I turn to the elements of manslaughter.
Any person who unlawfully kills another is guilty of a crime which, relevantly, is called manslaughter.
The reference to killing “unlawfully” requires attention to a specific provision of the Criminal Code: section 288 ‑
and he sets it out. Then he says:
To convict the Accused of manslaughter on the basis of contravention of the duty imposed by this provision –
et cetera. He also then at page 145, at the bottom of the page, says:
Proof of the contravention of the section 288 duty raises issues about the quality of a surgeon’s judgment.
At page 146 his Honour squarely frames the question at line 52:
In considering whether the Accused’s decision to perform an operation breached the duty section 288 imposes, a consideration is that the patient, aware of the nature of the procedure and its risks, was content to proceed.
Again, at page 148, his Honour harks back to section 288 at line 5:
To establish that the Accused is guilty of manslaughter, the prosecution must establish, beyond reasonable doubt, that the death resulted from the omission to perform the section 288 duty.
At page 200 he says words to the same effect.
FRENCH CJ: Now, is your textual argument that the decision to undertake surgical or medical treatment is encompassed in the word “undertakes” or precedes it, and that the doing follows.
MR KELLY: Yes, your Honour. Your Honour, I have finished on my point which was that he was convicted under 288, just to take up the Chief Justice’s point, but I address the reasons why we submit that section 288 had nothing to do with the case.
KIEFEL J: Well, could I just ask this question? This is not the position that obtained at trial. There has been something of a shift of position on both sides in relation to which sections were relevant. At the trial judge’s ruling No 3 on 2 June which appears at transcript 2874, the defence said that criminal responsibility depends upon section 288, which is the reverse of the position you take now.
MR KELLY: Your Honour, that is correct, what you said about ruling No 3. I cannot shy away from that, but can I qualify my answer?
KIEFEL J: No, but I think we need to understand the process of the trial.
MR KELLY: Yes.
KIEFEL J: I mean, not just for this point but for the miscarriage point. You cannot really just separate them out and say, here is a question of law and here is the miscarriage point. Speaking for myself, I need to understand how the trial was really conducted and how the focus shifted.
MR KELLY: Yes.Well, could I try and explain it now? Until day 40 the trial had been run by the Senior Crown Prosecutor, Mr Martin, Senior Counsel, and he had run the case under section 288.
KIEFEL J: He had opened on that basis?
MR KELLY: Yes, and the case had been run on the basis of section 288. And, on day 40, my learned friend, the Solicitor‑General, appeared to argue to the court, we submit correctly, that they should not proceed under section 288. It should proceed by the prosecution proving four elements. One was that the operation killed someone. This is dealing with manslaughter. The second element was it was not justified, authorised or excused by law. The third element was that the defence in section 282 had to be negatived and the fourth element was that the defence of accident had to disprove. We submit that our learned friend responsibly and correctly put those submissions. They were rejected by the trial judge. Your Honour is right in submitting to me that the defence said, no, no, this case has to continue on the 288 basis. It had been running for 40 days on that basis, in our respectful submission.
KIEFEL J: But, on the other hand ‑ you might need to come to this and I am probably taking you out of your sequence ‑ but a lot of what you say is that prejudicial material was admitted during these 40 days when you say you understood it to be a section 288 case.
MR KELLY: Yes, but we would submit that the prejudicial material was more governed by the particulars and not whether it was a 288 case or not.
KIEFEL J: All right. Well, I will leave you to come to that later. But, in his Honour’s ruling he seems to think that the reason for the prosecution seeking to shift from section 288 to a case where the unlawful killing effectively had to be defended or justified was a result of some of the evidence suggesting that at least three of the operations were conducted reasonably.
MR KELLY: That is correct.
KIEFEL J: So that part of the particularised case was not going to be laid out by the prosecution.
MR KELLY: That is correct. It had become apparent by that stage that the real case the prosecution could coherently put was about a decision to operate and my learned friend was brought in – I do not use the word “cameo” in any disparaging way – but my learned friend, the Solicitor‑General, came in and made very clear and succinct submissions that a case about a decision to operate did not belong in section 288. Your Honour is quite right that that was opposed by the defence counsel. That was on day 40. On day 41, his Honour delivered ruling No 3. In ruling No 3 – I will take you to it – but in ruling No 3 his Honour actually says that 288 does not include a decision to operate.
The next day, on day 42, he makes ruling No 4. Ruling No 4 concerned this question because it had become acute by this stage. Ruling No 4 was a question, is a decision to operate – it squarely raises is a decision to operate covered by section 288? To be fair to the defence, the defence argued, no, that it was not. So, on the decision to operate point, the defence in ruling No 4 did argue and contend that it was not covered by 288, and in that respect, the defence was in alignment with my learned friend, the Solicitor‑General. I will develop that, your Honour, because it is an oddity in the trial that on day 40 the prosecution sought to change the way it was running the case.
BELL J: The trial judge directed on section 288 and gave directions that are recognisable directions from Bateman and the line of authority that follows on criminal negligence. Do I understand that there is no argument but that the case, whether a botched surgery and the decision to operate as originally opened and the narrower case of decision to operate, was a case concerned with what might be described as criminal negligence?
MR KELLY: If the truth – your Honour, I hope I am answering your Honour’s question. If we say a decision to operate is not covered by 288, but if contrary to that submission, a decision to operate is covered by 288, then Bateman does apply to it.
BELL J: This is what I am just seeking to take with you. As I would understand it, chapter 27 of the Code is directed towards the statutory statement of duties in the context of notions of criminal negligence. And, do I understand it correctly, that this is an area where, in terms of the content of the directions on criminal negligence, the judge was right to have regard to the common law position? Is that how things are done?
MR KELLY: Yes, your Honour is correct. Your Honour, can I just mention that that was – I was just going to say that the High Court approved of that in Callaghan v The Queen.
BELL J: Yes. Now, if we come back to the case that you say should have been run on decision to operate; that is a case that falls outside notions of criminal negligence. This is ‑ ‑ ‑
MR KELLY: No, no, it falls within notions – sorry, I beg your pardon. Your Honour, have you finished your question? Sorry.
BELL J: Well, yes, yes.
MR KELLY: If it was a question of a decision to operate, it should have proceeded. Can I just give you an example? If a surgeon decided, for thoroughly reprehensible means, to amputate a patient’s wrong leg, but did so competently, that would be a decision to operate that you would think would be criminal, but the surgery itself would have been performed competently. Our submission would be 288 has nothing to do with that case.
How you would convict that person – or how you would prosecute that surgeon – would be the way our learned friend, Mr Sofronoff, submitted to the trial judge in ruling No 3. You would say the operation caused harm, or grievous bodily harm. It was not authorised, justified or excused by law. When you go to the defence of accident, the prosecution has to negative the defence of accident ‑ it was not an accident. And, when you go to the defence of section 282, it cannot be reasonable because it was reprehensible.
BELL J: So that notions of negligence on the case presented in that way, on the facts that you posit, is not apt. What then of the case where the decision to operate is – if I may use the expression “negligent” – negligent in the sense that it is one that no reasonable doctor would have recommended, but it is not a decision to operate that is, as it were, outside the – it is not a decision to operate by a person who decides for the sport of it to remove a person’s leg but it is, nonetheless, a gross departure from the standard of care of the doctor, where does that fit on a scheme that you posit?
MR KELLY: Your Honour, with respect, I think it fits in the scheme I just mentioned, which was that that surgeon would be prosecuted for causing the harm to the patient.
BELL J: Yes.
MR KELLY: The second element would be, was it justified, authorised or excused by law? Then the prosecution would have to disprove section 282, and 282 raises the issue of reasonableness, so he or she would not get past that issue of reasonableness in that operation.
BELL J: Would one give a Bateman style direction on such a case?
MR KELLY: That is a very interesting question, your Honour. I do not know the answer to that because no‑one has decided it, but it is put against us by the Court of Appeal that we got an advantage, that the defence got an advantage under section 288 because the Bateman test is so high, it is about gross negligence, and 282 is some kind of lesser standard. That is the way the Court of Appeal approached it.
BELL J: What is wrong with that analysis?
MR KELLY: Well, it might be right, your Honour. We are prepared to accept that and we still think that we should – our argument about it is correct, but it would seem at least open to argument, although this Court has not had to consider it yet, that in that situation when you are considering 282, what the Court should be considering are issues of gross negligence because otherwise there is a different standard that is a bit odd. Your Honour, I hope I have addressed your Honour’s ‑ ‑ ‑
FRENCH CJ: Section 282 is in Chapter 26, which deals with justification and excuse for assaults and violence to the person, so, for example, something which would otherwise be an assault if covered by section 282 is not. So, the question is then whether or not it answers the description in section 23 of:
express provisions of this Code relating to negligent acts and omissions.
It does not do that, does it?
MR KELLY: No. Your Honour, we are content to proceed on the basis the Court of Appeal dealt with 282, which is it is just a standard of reasonableness. We are content to proceed with that, but we do make the point that this Court has not considered whether 282 in this sort of situation would require a standard of grossness to be disproved, if I could put it that way.
BELL J: It is in a part of the Code that is dealing with the justification for assaults and violence generally. In the ordinary course one would think that a surgeon performing an operation with the consent of the patient would not come within the purview of Chapter 26.
MR KELLY: I am not sure I understand your Honour’s question, I am sorry.
BELL J: Well, Chapter 26 is directed to the justification and excuse for what would otherwise be a criminal act of violence. In a case in which a surgeon performs a surgical procedure on a consenting adult patient, not lacking in legal capacity, it seems odd that one would go to 282 on the face of things.
MR KELLY: Your Honour, I would respectfully disagree with that, and I take you back to paragraph 69 of the Crown’s submissions. The Crown says whether you apply 288 or not, the Crown still has to disprove section 282, and you can easily foresee a case where someone could consent to an operation but it could be done in a wholly negligently way, and therefore there would be a need to look at the 282 defence.
HAYNE J: Is there a distinction to be observed between 282 and 288, that 282 directs attention to performing a surgical operation, and 288, at least as to part, directs attention to causing “consequences which result”? The end of 288 is concerned by the words “and the person is held to have caused” to direct attention to the “consequences which result”. Section 282, by contrast, focuses only upon criminal responsibility for performance of the operation.
MR KELLY: Your Honour, I think, with respect, the answer to your Honour’s question is yes, but can I just mention that 282 is not just concerned with performance of the operation, it also covers the decision to operate.
HAYNE J: I understand that is the submission you want to make, yes.
MR KELLY: Allowing for that, I think the answer to your Honour’s question is correct.
FRENCH CJ: A decision to operate does not arise in the context of assault, does it, as a defence to assault or violence to the person, which is what this Chapter is concerned with?
MR KELLY: Except to the extent that an operation on someone is an assault.
FRENCH CJ: Yes. Distinguishing the decision from the act, you cut somebody with a scalpel, that would be an assault unless.
MR KELLY: Yes. Your Honours, I was moving to the question of section 288 and why we submit it has nothing to do with the decision to operate before surgery. We submit that 288, on its plain meaning, is about the performance of surgery and we have several reasons for saying that. First, the plain meaning of section 288, when read plainly, does not refer to a decision to operate. It is not ambiguous, it uses the words “in doing such act”, and it uses the expression also “or to do any other lawful act”. There is nothing in the history of the development of ‑ ‑ ‑
HAYNE J: Just before you go on, what is the reference back? To what words is the section pointing when it speaks of “such act”?
MR KELLY: Your Honour, in this case it is talking about the performance of the surgery.
HAYNE J: I understand that is your submission. Just for the moment focus only on the section. To what words of the section does this have application, amongst other things, to medical treatment? To what words does the expression “such act” point backwards as a matter of construction?
MR KELLY: It is pointing to the words “administer surgical or medical treatment to any other person, or to do any other lawful act”.
HAYNE J: So such act encompasses, does it not, medical treatment and any other lawful act which is, or may be, dangerous et cetera?
MR KELLY: Yes, and that would involve giving medication to people.
BELL J: Or failing to give medication that a person needed to preserve their life?
MR KELLY: Possibly, yes.
HAYNE J: Or advising a patient to stop taking medication that they had previously been taking?
MR KELLY: Yes. Your Honour, but we do say that is an act in the sense that that is an act of providing surgical and medical treatment. There is nothing in the history of the development of the Code which helps us with this question, and your Honours will be familiar, and I will not dwell on them, with the authorities of the High Court in R v Barlow and Brennan v R, which say that historical considerations should not prevail over the plain meaning of the Code.
FRENCH CJ: Do you say that this section would have the same meaning if it simply read, it is the duty of every person who, except in a case of necessity, administers surgical or medical treatment to any other person, or does any other lawful act which is or may be dangerous, et cetera? In other words, deleting the words “undertakes to”?
MR KELLY: Your Honour, I think the word “undertakes” has meaning.
FRENCH CJ: What role do they play?
MR KELLY: They play a positive role, they are implying there is a positive doing; they are consistent with the positive doing of an act.
KIEFEL J: The undertaking might be the basis for the duty that the law imposes.
MR KELLY: Yes.
KIEFEL J: It is not the carrying out of the act, it is obviously to do with being a dangerous act, but it is the undertaking upon which the duty is founded.
MR KELLY: Yes, your Honour. I do not think we can disregard those words as not having meaning. Your Honour, the second point I was going to make was when the Code intends to refer to a decision to operate it is clear that it does so and that is in section 282, which is peculiarly – it is similar, it deals with similar subject matter, and it deals with an issue that would arise for a surgeon and it says this:
A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation on or medical treatment of ‑
That is about performing an operation or providing medical treatment and we have discussed ‑ ‑ ‑
BELL J: I am sorry, which section is that that you were reading?
MR KELLY: Section 282, your Honour.
HAYNE J: Well, I think it is been changed from the print we have got. The print we have got deals only with surgical treatment. Can we be sure that we are working off the right print?
MR KELLY: Yes, your Honour, that is correct. Your Honour, it does not change the argument I am about to make:
A person is not criminally responsible for performing in good faith and with reasonable care and skill, a surgical operation –
upon any person –
for the patient’s benefit.
So, there you have an express reference by the drafters of the Code for the performance of a surgical operation. Then it goes on to refer to a decision to operate, because after we look past the words “or [upon] an unborn child to preserve the mother’s life” it uses these words:
if [the performance of] the operation . . . is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.
So, 282 is dealing with both the performance of the surgery, the doing of the act, and also the anterior decision which is the decision to operate, and we say if the drafters of the Code were able in 282 to deal quite clearly with those two concepts, the absence of that in 288 is telling. The third point we would make, your Honour, and we submit ‑ ‑ ‑
HAYNE J: Sorry, I just have not followed that point. You will need to go back over it, I am sorry. How do you say 282 encompasses the decision? It is that point I have not followed.
MR KELLY: Yes, your Honour. Your Honour, I will try not to repeat myself.
HAYNE J: Well, I am slow, you are not, so you will need to repeat it for me.
MR KELLY: I am worried now, your Honour. Your Honour, the first part of 282 deals with the performance of an operation, because it says “A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation”. That is about performing an operation, that is doing an act and that is what we say 288 deals ‑ ‑ ‑
HAYNE J: That is the manipulation of a surgical instrument basically.
MR KELLY: Correct. Then if we leave out the words that intervene which deal with the preservation of the mother’s life, it goes on to say these words, “if the performance of the operation is reasonable”. Now, that cannot be referring to the skill of the surgeon manipulating the instruments, because that is already been dealt with, that is dealt with in the first line “for performing in good faith and with reasonable care and skill a surgical operation”. So, that is dealt with how skilfully he had done the operation.
When you go to, “if the performance of the operation is reasonable,” that is talking about if the decision to do the operation “is reasonable, having regard to” – and this makes sense – “to the patient’s state at the time and to all circumstances of the case.” Now, those words are particularly apt to commend themselves to a decision to operate; that is, a surgeon looks at a patient, he or she looks at the patient’s state and takes into account relevant circumstances and decides, reasonably, to operate. So, we say 282 deals with both concepts, 288 deals with only one.
BELL J: If your construction is right then under the Code it is difficult to see why one would require to give directions consistently with Bateman and notions of gross criminal negligence in establishing the liability of a doctor for a decision to operate which was not reasonable.
MR KELLY: That could be right, your Honour.
BELL J: It is difficult to see how it is not right if your construction is correct, is it not?
MR KELLY: Yes.
FRENCH CJ: That is to say it is not a provision about criminal negligence.
MR KELLY: Yes. Your Honour, I might just mention, your Honour Justice Bell has referred to Bateman’s Case a number of times. In that case the Chief Justice Lord Hewart did refer to this situation of someone deciding to operate where it was not called for. It is in the Crown’s book of cases. It is a brief passage, but I might take you to it.
So, your Honour, the Court of Criminal Appeal in 1925, the judgment was delivered by Lord Hewart and this, as your Honour Justice Bell has commented, set the benchmark for gross negligence. If I could just take you – if your Honours have the same report I have it should be the 1925 All England Reports and at the bottom of page 48 his Lordship says:
There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare.
One explanation for the way the Code is structured is that it was not considered to be very likely that this sort of case would arise. I know it is not a particularly grabbing explanation but Lord Hewitt was saying these things are likely to be read and, in fact, it is borne out by this case because when his Honour the trial judge asked people to go and research all over the world for cases concerning 288 and the decision to operate, no one could find a decision which dealt with it.
BELL J: The matter that I am taking up with you is that on looking at the Code as a whole, the construction for which you contend has some surprising, it may be correct, but surprising consequences including the liability of a surgeon for manslaughter or an unreasonable but not grossly negligent decision to operate. But you accept that is the consequence?
MR KELLY: Your Honour, what I have said, I think, is that decision has not been decided by this Court. The Court of Appeal decided that is what it meant and in our written submissions in reply, we expressly do raise that that matter is maybe open to interpretation. I take your Honour’s point. It may be something that is open to interpretation at a later day.
KIEFEL J: Mr Kelly, do I take it section 282 would be relevant in the decision‑making context to decisions in relation to the abortion of children and the unborn child provisions to the decision to whether to carry out such a procedure?
MR KELLY: Yes, your Honour.
BELL J: And 288 would be relevant every time a doctor opens up a patient with consent to perform one procedure and sees a cancerous growth or the like and determines the appropriate course is to remove that, not having the patient’s consent to that procedure?
MR KELLY: That is absolutely correct, your Honour.
BELL J: Yes.
MR KELLY: Your Honours, I have dealt with two reasons why we said 288 did not encompass a decision to operate. The third reason was when interpreting 288 we submit neither the trial judge nor the Court of Appeal gave appropriate emphasis to the words “or to do any other lawful act”. We say that those words are very important because on their plain meaning, on their very plain meaning section 288 is premised upon the embarking upon the surgery being lawful and yet here we have a man being convicted of thoroughly reprehensible criminally negligent decision to operate. Section 288 says “or to do any other lawful act”. To give those words their plain meaning, it is hard to see how they fit sensibly with the anterior decision being criminal. Your Honours, fourthly, if there were any ambiguity about this, given it is a penal statute, it should have been resolved in favour of a lenient view ‑ ‑ ‑
KIEFEL J: Mr Kelly, the words “do any other lawful act”, I think, were taken by his Honour the trial judge to refer to the assumption of consent as operating where section 288 applies, that is the patient has given their consent.
MR KELLY: Your Honour, his Honour was wrong about that, with respect. The Court of Appeal correctly rejected that distinction in paragraph 35 of their reasons but section 288 cannot be about just consensual cases as your Honour Justice Bell has dealt with. But if an unconscious patient came into a casualty ward on the Saturday night and a surgeon operated out of necessity, the lawful act – I mean, it cannot be just referring to consent, it is saying the act is lawful. That, on a plain meaning, without straining language, without engaging in semantics, a lawful act cannot be one which is preceded by a thoroughly reprehensible decision to operate.
BELL J: Section 288 is posited on the surgical or medical treatment not being undertaken in a case of necessity. Section 282 in part deals, one might think, with circumstances of necessity in the sense that it relieves from my ability in a case including, as I have indicated, absent consent, that has occurred because of circumstances of necessity. Why, Mr Kelly, is “administering surgical treatment” not a sufficiently broad term to take up the notion of the advice whether or not to undertake the surgery which precedes the giving of the consent?
MR KELLY: Your Honour, we think, in context, administering surgical or medical treatment must be read in the light of the conjunction “or to do any other lawful act” and to “have reasonable skill and to use reasonable care in doing such act” and we also point to the difference between it and 282 which deals specifically with the decision to operate. We refer to the words “lawful act” in 288 and for those reasons we say this cannot really be talking about a decision to operate.
BELL J: Is a surgeon giving grossly incompetent advice to undergo an operation to remove the bowel acting unlawfully? The surgeon is giving advice. It is grossly negligent and there may be criminal consequences that attend to it but it just seems to me somewhat strained to contend that it may not be within the terms of 288 because of the requirement for an unlawful act. What is, per se, unlawful about giving negligent advice?
MR KELLY: There is nothing unlawful about giving ‑ ‑ ‑
BELL J: All right, so what is the point that you are making about lawful act?
MR KELLY: Well, this points in my favour, with respect, is that the giving of advice is not an act.
BELL J: Is not an act?
MR KELLY: No. We say it is not an act within the meaning of section 288.
HAYNE J: It cuts a lot of medical treatment out, does it not, if advice is not included in this, what operation – what is the scope you are giving to the phrase “medical treatment”?
MR KELLY: It is not a decision to operate, your Honour. But, your Honour, the other point is, the Code – I mean we have made other points about it but when it says “or any other lawful act” it cannot be referring to a criminal decision to operate.
BELL J: I thought a moment ago, Mr Kelly, you accepted that the giving of negligent advice is not, per se, unlawful?
MR KELLY: Well, it is unlawful once the consequence has been played out and there has been a consequence ‑ ‑ ‑
BELL J: That is a significant difference, is it not?
MR KELLY: Not really, your Honour, with respect. There has to be an operation for it to become unlawful otherwise it is a transient decision. Your Honour, I was moving to the point about ambiguity ‑ ‑ ‑
KIEFEL J: Before you do, could I just ask you to focus upon the notion of the undertaking to give medical treatment or to give surgical treatment. Could it be that if one focuses upon the undertaking it is whatever that follows the undertaking to give medical treatment, which would include advice, or to give surgical treatment which would include advice about the surgery, everything that follows upon the undertaking to the person to treat is encompassed within section 288?
MR KELLY: Yes, your Honour, that is possible, yes. Yes, your Honour.
FRENCH CJ: Just coming back to the place of 282 and 288 in the overall structure of criminal liability and criminal responsibility under the Code, 282 sits along with 223 as a carve‑out, if you like, of criminal responsibility and would cover a case in which the event had not occurred by accident. I mean, you have deliberately undertaken, somebody dies as a result but you are, nevertheless, not criminally responsible by operation of 282 and what 288 does is to impose a criterion – sorry, a criterion for a duty linked to a consequence for breach of that duty which can become part of a criterion for criminal responsibility – a positive criterion for criminal responsibility. It fits into the express provisions of the Code relating to negligent acts and omissions under section 23 but not necessarily only.
MR KELLY: Your Honour, I shall deal finally – my final point about 288 was that there was, we would say, ambiguity at the very least about it, and on the penal statute that ought to have been interpreted in favour of the most lenient construction. The learned trial judge obviously wrestled with the provision and his ultimate decision was surprising, given the many comments he made about the provision during the trial, which shows how difficult it was.
Could I take you to some of those comments he made? At appeal book 3, page 897 - and, your Honour, we acknowledge that these are provisional comments made throughout the trial but they are indicative of - when we are talking about the plain meaning of the Code, first impressions by a very experienced trial judge are worth having some weight put on them. At page 897 in appeal book 3 at line 20, his Honour says:
On one view of section 288, it criminalises, to put it in the context of this case, a negligently performed surgical operation, but might not be thought to say anything that bears upon an allegedly negligent decision to decide to operate . . .
I have been thinking about how things might work out under the Criminal Code if the section were construed in the way naturally suggested by its words –
meaning what he just said above. Then, if we go to appeal book 5 and could I take you to page 1935 at line 1. His Honour says:
Now, this is where you run fair and square into the scope of section 288, because on one view it is restricted in its reach to botched surgery, not surgery which ought not to have been commended to the patient for the patient’s decision.
Then, even after - your Honour, I will put that book away - but even after his Honour had made his ruling No 4 deciding that 288 only did deal with the decision to operate, at appeal book 2, page 324 at line 20, his Honour said ‑ ‑ ‑
KIEFEL J: Give us a moment to get there, Mr Kelly.
MR KELLY: Sorry, your Honour.
HAYNE J: What line?
MR KELLY: Line 20, your Honour. His Honour is referring to his decision that 288 includes a decision to operate and his Honour says:
You know my view about it is that while the interpretation at which I arrive strikes me as preferable, I regard the question as more than open.
This is after his Honour has made his decision and, we would submit that there is, at least, ambiguity about the section which ought to have been interpreted in favour of the accused or in favour of the lenient construction.
HAYNE J: Is this comment at the point where his Honour is considering a stated case or the suggestion of a stated case?
MR KELLY: Yes.
BELL J: This submission is that his Honour ought have applied a principle, by reason of the suggested ambiguity in the provision, favourable to the accused, but the accused had been contending that 288 applied and not the alternative route, which you concede might well impose a lesser burden on the Crown.
MR KELLY: No, your Honour, by this stage – I will just check.
BELL J: I understand, I think you have said that there was an issue taken about whether the decision to operate was within 288, but I suppose really I am more directed to the proposition that if the alternative route was available it was one that, at least arguably, did not require the Crown to establish gross negligence on the part of your client, whereas 288 did. So applying the principle you commend would not the decision have favoured the approach that his Honour ultimately took?
MR KELLY: No, with respect it would have helped us, your Honour, because in ruling No 4, where the defence did say that 288 did not include a decision to operate, his Honour, we say, should have accepted that submission at least because of the ambiguity of the section and that would have meant the jury had to be discharged and there was no case to go to the jury.
BELL J: I understand, yes.
MR KELLY: Your Honours, we should address the concerns of the trial judge and the Court of Appeal that if 288 did not provide the avenue to conviction for a negligent decision to operate that bizarre consequences would follow. There is a strain of reasoning in the Court of Appeal at paragraphs [40] and [41] - that is in appeal book 2, page 409.
The Court of Appeal seems to have been influenced, as was the trial judge, in deciding what the correct meaning of 288 was, was that if 288 did not catch a decision to operate, surgeons who made reprehensible decisions to operate would not be caught at all by the criminal law. Well, that is wrong, with respect, because our learned friend, the Solicitor‑General’s submissions showed that there was a way that they would be caught. That heavily seemed to influence both the trial judge and the Court of Appeal.
But the other point we say about it is if there is a lacuna in the Code it is not for judges to be straining the plain meaning to be covering it. Your Honour Justice Kiefel asked me about ruling No 3 and ruling No 4 before and how it came about. Ruling No 3 was made on day 41 after the Solicitor‑General had argued what the correct path to a conviction was.
Could I take you to ruling No 3? It is at volume 8 of the appeal book at page 2871. What ruling 3 decided - it did not decide the decision to operate was caught by section 288, what it decided was that the Crown was confined to establishing criminality by the sole means of proving a contravention of section 288, and that is found at page 2882.
Now, in argument in ruling No 3, the learned Solicitor‑General, we submit correctly submitted that the proper way for the Crown to establish a conviction for a decision to operate was by establishing the four elements I have already gone through. The judge summarises them in ruling No 3 at page 2873. You will see them - there are four elements there and you will see that two of those elements are defences, one of which is section 23 which is accident. Now, can I take you to - while you have that to appeal book 15 and can I ask you to look at page 6084, your Honours?
BELL J: I am sorry, what was that reference again?
MR KELLY: It is appeal book 15, page 6084. Your Honours, at 6084, that is where our learned friend, Mr Sofronoff’s submissions begin, which led to ruling No 3. Can we take you, please, to paragraph 51 at 6096 and we submit this is a correct submission of the law where our learned friend submitted to the judge:
Consequently, the Crown submits, that in respect of those charges where the accused is alleged to have unlawfully killed a patient by undertaking the surgery, s. 288 is irrelevant.
We submit that was a matter of plain and correct interpretation of the Code. The trial judge got mixed up, with respect, in ruling No 3 with this strange distinction. He thought 282, which was a defence, dealt with non‑consensual cases and he thought that 288 dealt with cases of consent, and the Court of Appeal rejected that. With respect to the learned trial judge, it was not a logical distinction to make because 282 is a defence and 288 is not a defence, it is a duty creating provision.
But, if I could take you to ruling No 3 which is appeal book 8 again, at page 2877, this is of concern because - we say it is correct, but it is really of concern because the next day the judge has reversed his reasoning without any apparent reason why. But at 2877 at line 20 his Honour says this:
First, s.282 deals not only with reasonable skill and care in performing the surgery – as does s.288 – but also with the reasonableness of performing the procedure at all – something s.288 does not touch –
Now, he does add the words “because it assumes consent.” But he is quite clear that it does not touch that topic. By day 42, the next day, the judge had reversed his reasoning in deciding that 288 did cover a decision to operate, but he does not really explain why he has changed his mind.
Ruling No 4 is at page 2912 in the same book. In that ruling his Honour decided that the decision to operate was an act under section 288. I have made the point that if his Honour had not reached that decision then there was nowhere for the Crown case to go because ruling 3 had already held that it was stuck with section 288.
If I could take you to ruling No 4 and look at the following passages at 2913, lines 10 through to 30, it is clear this is harking back to what we have dealt with before. It is clear that his Honour understands the Crown case is about a decision to operate, not incompetent surgery. He says:
The defence argues that s 288 does not extend to misadventures attributable to pre‑surgery incompetence in diagnosis or in commending an inappropriate procedure to the patient.
Emphasising the phrase “ . . . in doing such act”, s 288 is said to be restricted in its reach to surgery done badly –
So, that submission, varies the Crown’s submission that I took you to before for ruling No 3.
HAYNE J: Now, while we are at that page, at line 52 his Honour compresses the argument to the proposition:
There is something odd about the notion that a duty to exercise skill and care “in doing” surgery requires that it not be done.
I would understand that to be a in which you put this aspect of your case. Is that right?
MR KELLY: No, your Honour, we say that 288 deals with doing surgery which is done - in the course of the performance of the surgery there is gross negligence, whether by act or omission. We do not say that 288 deals with a decision not to do surgery.
HAYNE J: No, I understood that. His Honour identifies what he describes as an oddity that would follow if the decision to commend surgery fell within the ambit of 288. Is that right?
MR KELLY: I think so, your Honour, I think that is what his Honour means.
HAYNE J: The oddity being that there is something odd about the notion that:
a duty to exercise to skill and care “in doing” surgery requires that it not be done.
That is a way of articulating the point you seek to make about 288. Is that right?
MR KELLY: Yes, your Honour.
HAYNE J: Yes. Now, is that an articulation of the point that gives sufficient attention to the fact that 288 deals with, perhaps as a composite concept, surgical or medical treatment, that is, is there an elision, an unwarranted elision in identifying the oddity as being the oddity that a duty to exercise skill and care in doing surgery, the act of surgery, requires that it not be done, whereas 288 is directed to the broader notion, the notion of someone who has undertaken to administer surgical or medical treatment?
MR KELLY: Yes, your Honour, we would accept that.
HAYNE J: Yes.
FRENCH CJ: Is your construction that we have the consequence that it is possible within the scope of 288 to do surgery with reasonable skill and reasonable care, which it is grossly negligent to do at all?
MR KELLY: No. No, if the decision to operate is grossly negligent we say that is not covered by section 288.
FRENCH CJ: Well, in other words, it is possible to comply with the duty under section 288, notwithstanding that the decision to operate is grossly negligent?
MR KELLY: Yes, that is our position, your Honour. Your Honour, as we said, if there is a gap in the Code, there is a gap in the Code, but 282, we submit, and I know I have made submissions, we submit it shows the drafters were well aware of the difference between a decision to operate and the performance of an operation. Your Honours, can I move on? At appeal book 8, page 2921, with the greatest respect to the learned trial judge, at the top of the page we say this shows how confused he got with respect to the concepts that he was dealing with. At lines 1 to 10 his Honour says:
Has the Code made surgeons criminally responsible for misadventures where surgery is competently performed but the decision to embark on the operation is reprehensible?
That question is a perfectly valid question. Then his Honour says this, which is quite wrong:
s 282 undoubtedly achieves that for surgery performed without consent.
Well, that cannot be right because 282 is an exculpatory provision. It does not make anyone criminally negligent. It says:
Does s 288 do the same for surgery with consent?
Well, 288 also does not make anyone criminally negligent or - it just shows that, in our respectful submission, his Honour was getting confused with these concepts.
BELL J: I am not so sure of that, Mr Kelly. One would think ordinarily that the consent of a patient to undergoing a surgical procedure would carry the consequence that the procedure was not an assault. Now, plainly surgical procedures are carried out on people, routinely without their consent, in circumstances of exigency and 282 has an obvious role to play in those circumstances.
What is, at least to my mind, less clear are the steps on the case that you say was open, not in criminal negligence respecting the gross breach of the 288 duty, but in relation to an unreasonable advice to undergo a surgical procedure in circumstances where the performance of the procedure was accompanied by consent. I think that is the sort of matter that was troubling his Honour.
MR KELLY: Yes. Maybe I have been a bit unfair in my characterisation of it. But certainly 282 does not create criminal liability. It is there to excuse people. But I take your Honour’s point, with respect. Your Honour, could we go back to our learned friend’s submissions at paragraph 70, please, and you will see at paragraph 70 our learned friend has set out two alternatives; one in the left‑hand column and the right‑hand column. The left‑hand column is where 288 is not relied upon and the right‑hand column is where section 288 is relied upon, which was this trial.
FRENCH CJ: This is within the framework of their proviso argument, is it not, because that starts at 61?
MR KELLY: Yes, your Honour, but it is interesting to note that where they deal with where section 288 is relied upon they say this:
The appellant did an act (the surgery).
Now, that is not the case that was put to the jury. The case that was put to the jury was that the decision to operate was thoroughly criminal. We submit that our learned friends do not want to confront the difficulties of that proposition. It certainly was not put to the jury that the act under 288 was the surgery. All right, the judge did say it was thoroughly reprehensible to decide to operate and then to commend the surgery to the patient and embark upon it. But there is nowhere where the judge says to the jury, “The act you have to consider is thoroughly or grossly negligent under 288 is the surgery”. In fact, he says the opposite he says it is not a case about botched surgery. We submit that our learned friends are avoiding the issue and failing ‑ ‑ ‑
FRENCH CJ: You said somewhere, did you not, that the performance of the surgery was the relevant act, not the negligent performance of the surgery, I thought? You link the surgery, the performance and the decision otherwise it is the sound of one hand clapping, as it were.
MR KELLY: Yes. Your Honour, I am sorry if I did put it clearly enough. We submit that what our learned friends say there is really an attempt to avoid grappling with a difficult issue for them, which is the decision to operate is thoroughly reprehensible. Your Honour, could I mention before I deal with the 288 point – I will try to move a little more quickly on 288 and 282 - but there were two defences the jury was never asked to consider on 288. One of them applied even if 288 was the correct section and that defence is section 282, as your Honours are aware. One defence only applies essentially if we are correct and section 288 is not the correct section to apply and that is because the introductory words to the defence of accident are in section 232(1)(b).
Can I deal with the defence under section 282, please? It was not ever put to the jury that this defence was potentially open to Dr Patel. His Honour’s decision that under ruling No 3 that 288 was now foreclosing the path for the prosecution also carried with it the implication that 282 did not apply to the case. We would submit that 282 remained a viable, or at least, available defence that should have been considered by the jury and it also would have informed or could have informed the critical decision by the accused whether to elect to give evidence himself and try to make good that defence.
In terms of timing the accused was asked to elect to make his decision to give evidence on day 47, well after ruling Nos 3 and 4 were made. If the Solicitor‑General’s submissions on ruling No 3 had been correct and accepted by the judge then the accused would have been faced with a different election in deciding whether to give evidence, knowing that he would be able to call evidence to seek to make out defences under both section 282 and section 23(1)(b), which is the event of accident.
How these decisions might have affected the case puts the court in the realm of speculation and that is not a proper foundation, as the cases say, in which to engage the proviso. It is not engaged in circumstances where the court has to engage upon the record by speculating upon possible reconviction and deciding according to how such speculation comes out.
I will not take your Honours to the case, but can I give you the reference? It is Weiss v The Queen (2005) 224 CLR 300 at paragraph 43. In that part in Weiss the unanimous High Court quoted with approval the majority of Justices Brennan, Dawson and Toohey in Wilde v The Queen (1988) 164 CLR 365 at 373 and that passage said, and I quote:
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.
Above all it is important for a jury to know, we submit, that there are defences available, that conduct is defensible, no matter how strong the prosecution case may appear. It is a large step to say that a trial could ever be proper where a jury is not told about a defence or to ‑ ‑ ‑
BELL J: Mr Kelly, here, rightly or wrongly, the Crown assumed the obligation of proof of gross criminal negligence in the advice to undergo the procedure and the associated performance of the procedure. How do you say there was unfairness in the failure to direct on 282, when the Crown had assumed that obligation and the directions given required the jury to be satisfied of gross criminal negligence?
MR KELLY: Your Honour, can I answer your questions – if you feel I am not answering your questions please let me know, but can I answer with a number of propositions, but I will try and do so succinctly. Your Honour’s question assumes there is a direct mirror image between proof of the contravention of section 288 and disproof of a defence under section 282, that is that one is kind of a proxy for the other and we submit that is not correct. There is not an equivalence between the two provisions. They are worded differently.
BELL J: I am trying to understand how, on the case that was run and the directions that were given to the jury respecting what the Crown had to prove against your client beyond reasonable doubt, the failure of the trial judge to direct in the terms of the 282 defence was productive of any disadvantage to your client.
MR KELLY: Your Honour, 288 and 282 are not identically worded.
BELL J: I understand that, Mr Kelly. It is not to do with a textual consideration of the two provisions. At the moment you have, as I understand it, moved from your argument that the trial was conducted on the wrong footing – I understand that argument – to an argument that another difficulty with this trial was that the trial judge, in the way he directed the jury, failed to leave a defence. Well, to make that proposition good you need to show that the defence should have been left and that requires you to tell us more than that the two provisions are differently worded.
MR KELLY: All right. Your Honour, as I have shown you the Crown submits that in paragraph 69 whether or not section 288 is relied upon, section 282 must be disproved. The orthodox way for that to happen is for a jury to consider the defence and for it to be disproved before a jury. That is the first answer. The second answer is 282 contains words in “all the circumstances of the case” which are not contained in section 288.
HAYNE J: But be it so, if you want to work by reference to the respondent’s submissions how can there be proof of that which appears in the right‑hand column on page 17, paragraph 70 and yet any viability left in the issue described in the left‑hand column?
MR KELLY: Your Honour, my answer to that is the accused did not – he would have had a differently constituted trial in which he would have had the right to elect to call evidence to establish a defence. Your Honour, some of the things that are relevant to all – I mean 288, your Honour, is an objective stand. It deals with the objective behaviour of a surgeon operating. Section 282, when it introduces new words or different words, it does not just talk about the patient’s welfare. It adds the words “and in all the circumstances of the case”. It is capable of taking into account subjective considerations of the accused and considerations that are particularly relevant to his personal situation.
Can I give you some examples of where that might matter in this case? It might matter in terms of the accused’s appreciation of his own skills and ability and his ability to do the operations. It might matter what confidence he took from the medical staff around him who work with him including Dr Carter, with whom he discussed the operation on Mr Phillips and Dr Carter approved the operation and said that the ICU would be able to handle the dialysis of the patient.
It might be relevant to consider the weight the surgeon gave to the patient, Mr Phillips’ strong wishes to undergo the procedure in Bundaberg and not Brisbane; at least for a jury to consider. Dr Keating, who was called by the Crown, the senior medical officer at the hospital, gave evidence that there was pressure on doctors not to transfer patients away from Bundaberg. That evidence is at appeal book 5, page 1685, lines 8 to 37. Could I take you to that, please?
Your Honours, on page 1685, lines 8 to 37, Dr Keating, who was the senior medical officer at Bundaberg Hospital, gives evidence of various degrees of pressure being brought to bear to have operations done at Bundaberg. At line 10 was there:
local pressure being applied?--There certainly was.
What sort of local pressure?-- Local pressure from patients who lived in the local area such that there was an ongoing stream of letters, complaints about waiting for various forms of appointments . . . There was also regular communications from local MPs or local Members of Parliament . . .
And why would there be complaints made from those sources as a result of moving patients?-- There is a strong belief as regards – strong belief that there should have been as much care as possible provided within the Bundaberg Hospital in the Bundaberg region.
Okay. And would this be a fair way of putting it: that local Members of Parliament would request – and that’s probably a neutral term so far as politicians are concerned – request that care be done as closely as possible to home and for as many operations as possible to be done as close as possible to the home of the patient?-- Yes.
On the next page at line 13 “Dr Patel’s involvement” he says – this is Dr Keating:
but in general terms there was a definite and large improvement of throughput of patients on both the waiting lists and the surgical – the theatre lists?-- Yes, there was.
And he discussed those things with you?-- Yes, he did.
And, again, quite properly he had been encouraged to put that sort of effort in?-- He was.
Is it fair to say he had a very good work ethic?-- Yes, he did. He had a very strong work ethic.
Can you expand on what you mean by that?—
He goes on to expand by talking about his ability and willingness to work after hours with students and so forth. The point about that is that under 282 if the jury had been asked to look at it and look at the words “in all the circumstances of the case” a reasonable jury might have thought that this surgeon was exposed to some pressure to put a throughput of – to reduce the waiting lists and to keep people in Bundaberg and it is not that fanciful that a jury might consider that that provided some basis for considering the defence.
FRENCH CJ: But, the exclusion of criminal responsibility in 282 depends upon performance with reasonable care and skill. Now, putting aside the decision performance dichotomy in the construction of 288, if the Crown establishes beyond reasonable doubt that the person has failed to have reasonable skill and use reasonable care in conducting a surgical operation, is there any room in that context for the operation of 282?
MR KELLY: No, but this was not a case ‑ ‑ ‑
FRENCH CJ: No, no, no. Then we go to the constructional question, but you accept that proof of a breach of duty giving rise to a person being held to have caused the consequence under 288 can exclude the operation of 282.
MR KELLY: Yes.
FRENCH CJ: As a matter of logic.
MR KELLY: Yes, but this was not a case of what surgery.
FRENCH CJ: No, no, I appreciate that.
MR KELLY: Sorry.
FRENCH CJ: Then we get into the constructional area.
MR KELLY: Sorry, yes. The other thing that we say is a concern about 288 is your Honour Justice Bell has rightly pointed out the emphasis on Bateman and the gross negligence under 288. It is put against us by the Crown, and it was also in the Court of Appeal, paragraph 44 of the Court of Appeal’s reasons, that because there was such a high standard of gross negligence required to establish a breach of section 288, that automatically excluded any ability for section 282 to operate.
Our point about that, we submit, is an important one. The significance of the high onus under section 288 means that if we were correct and 288 did not apply, then the accused had a differently constituted choice about whether to give evidence or not. So, logic is, if you are an accused and you are facing a case under 288 and it is a gross negligence case of a high standard, you may be more inclined to elect not to give evidence because you might think, I will put the Crown to proof. But, if on the other hand, the case is conducted the way the Solicitor‑General advocated, and as your Honour Justice Bell says, there is a lower standard of negligence, there may be more of an impetus on you to give evidence and explain your conduct. So, we say, how that would have worked out is speculating, but the accused had a different choice to make.
Your Honours, we move to the defence of accident. If we are correct about section 288 not being the relevant provision, then section 23(1)(b) should have been put to the jury. Our learned friends concede that in their submissions at paragraph 17 in the left‑hand column, at footnote 107. As, I think, your Honour Justice Hayne pointed out and the Chief Justice said, it was not relevant if 288 applied, but it was relevant if 288 was not the correct section.
A good reason why the defence of accident was important in this case was because of what was reasonably foreseeable. The submission is put very well by the Solicitor‑General below at trial at appeal book 15 – if I could take you there at page 6096. At 6096, you will see that we say our learned friend, Mr Sofronoff, put very well at paragraph 50 what the defence of accident might mean in this case. He says:
It is easy to contemplate a case where the Crown might negative a defence under s.282 but where s.23 would excuse from criminal responsibility. A patient might be a bad prospect for an operation because of a serious condition in an organ. It may be predictable that the organ would fail during the operation and that this would result in death. Section 282 would be negatived because the Crown would have shown that the operation was not reasonable having regard to the patient’s state. In fact, the organ does not fail but the patient dies because of an unexpected heart attack; unexpected in the sense that although that can happen, and does happen, from time to time, no reasonable doctor would have considered the risk of heart attack to have been present or to have rendered the operation unreasonable to be performed. Section 282 would have been negatived but the doctor would have to be acquitted of manslaughter by reason of the operation of s.23(1)(b).
BELL J: Well, one understands the Solicitor‑General’s submission in the context of explaining a view about how the Code operates, but in the context of the issues raised in this trial, what do you say was the defence?
MR KELLY: Can I move straight to that now, your Honour?
BELL J: Yes.
MR KELLY: You mean the defence of accident?
BELL J: Yes.
MR KELLY: Yes, certainly.
BELL J: How did it arise on the evidence? The judge was not there to give a lecture on the Criminal Code (Qld) to the jury.
MR KELLY: No. Well, the judge never directed the jury to consider foreseeability at all, which is relevant to accident. To answer your Honour’s question, if I could just take the case of Mr Phillips and Mr Kemps, to use two examples.
BELL J: Yes.
MR KELLY: Mr Phillips was an end‑stage renal patient who needed thrice‑weekly dialysis in order to keep toxins such as potassium at viable levels. That is at appeal book 1, pages 182 to 183. Before operating on Mr Phillips, Dr Patel discussed the operation with Dr Carter. His Honour’s summing‑up at appeal book 1 at pages 186 to 187 is accurate. The effect of it is that Dr Carter, who was experienced in the intensive care unit as an anaesthetist, had assisted with oesophagectomies and knew about the risks of Mr Phillips and his need for dialysis and was quite content for Mr Phillips to undergo the operation and, can I stress this, content that the intensive care unit at Bundaberg could cope with Mr Phillips’ situation.
Dr Carter knew that Mr Phillips would need dialysis post‑operatively and did not see this as a difficulty and he accepted that the renal unit at Bundaberg was very highly regarded. Two other doctors, Dr Kennedy and Dr Younis, also assessed Mr Phillips as fit to undergo the surgery. Dr Patel did not keep this a secret from anyone. He told the most senior person at the hospital, Dr Keating, about his proposal to perform the oesophagectomy upon Mr Phillips and although Dr Miach who was in charge of the renal unit, claimed he had not been consulted, the renal unit obviously knew because they had to prepare the dialysis.
So, the judge summed up that the surgery was conducted competently by Dr Patel. Dr Carter, the anaesthetist and head of the ICU, had assessed Mr Phillips as fit for surgery. Dr Jamieson, the incredibly well‑credentialed expert who was called on as part of the case – he gave this evidence – that this opinion from Dr Carter “would give a surgeon confidence to proceed” with the operation. That is at appeal book 1, page 198, line 12.
Dr Carter’s evidence was that the absence of effective dialysis led to the rise in potassium that caused death. Can I take you to appeal book 1, at page 201? This is in the judge’s summing‑up. So, the judge sums up to the jury in line 1:
Dr Carter’s opinion is that absence of effective dialysis led to the rise in potassium that caused the death.
So that was a possible means of death that the jury had to consider. Then it was also summed up at page 199, line 55, the reason Mr Phillips died was due to “potassium overload”. Then if you go over to 201, line 10, it is referred to as “potassium poisoning”. So the dialysis did not work. At page 200, line 1, you will see his Honour sums up to the jury:
The dialysis regime post‑operatively had not removed enough potassium.
Can I just emphasise the next line:
The Renal Unit – not the Accused – was responsible for dialysis.
So with respect, your Honours, the jury if they had had 23 before them, had a real issue to consider, assuming Mr Phillips had died of potassium poisoning. The issue to consider was would a reasonable person in Dr Patel’s position not have foreseen this – that he would die due to a failure of dialysis. Dr Patel was not personally responsible for dialysis. Now, it might not have won but it was something that the jury ought to have heard and ought to have had before them.
Now, I said I would go to Mr Kemps – your Honours, if it suits your Honours’ convenience – if I can just deal with Mr Kemps’ case, just to give an example. Assuming again he was not a fit person to be operated on, the question is was the way he died reasonably foreseeable? Dr Zia, an anaesthetist, assessed him as fit for surgery and that he could not tolerate an oesophagectomy. That is at appeal book 1, page 217 - sorry, I might have misspoken. Dr Zia assessed that he could tolerate an oesophagectomy. That is at page 217. Dr Berens, an anaesthetist, also made that assessment. That is at appeal book 1, page 217.
Mr Kemps was not going to survive his oesophageal cancer.
Dr Smalberger, a physician, said:
There were no easy options: only bad ones –
You will pick that up at page 219. That is at line 25. Then at line 43, Dr Smalberger, who is a physician, considered:
the surgical option valid for Mr Kemps.
Dr Allsop, at page 221, the judge summing up to the jury again, said in the last line of the page:
Left untreated, Mr Kemps may have lived only for a few months –
Now, at page 137 in volume 1 – but we have to go back a number of pages – still dealing with Mr Kemps. Sorry, I have made a mistake there. Your Honours, it is page 222 at the top of the page, line 1.
Although the source remains unknown, the oesophagectomy caused the fatal bleeding.
Then we go on to page 224. His Honour says at line 25 – this is important:
The prosecution does not contend that [Dr Patel] is criminally responsible for the death because Mr Kemps was bleeding after the oesophagectomy –
because:
Surgical bleeding. . . does not, of itself, establish incompetence.
Then if you go over the next paragraph – sorry, go below that:
Nor is it suggested that the Accused is criminally responsible for the death just because he did not stop the bleeding when, eventually, he did revert to Mr Kemps.
Could I take you then to page 223, the previous page. The expert at the top of the page line 1, Professor Jamieson said:
Only “very infrequently” would an oesophagectomy patient bleed to death.
Dr Allsop –
who was another expert:
said that the bleeding to death from an oesophagectomy is exceptionally rare.
So the question, we submit, which should have gone to the jury under 23(1)(b) was, was it reasonably foreseeable to Dr Patel in deciding to perform an oesophagectomy on Mr Kemps, one which he performed competently, that the patient would bleed to death in circumstances where expert witnesses said it was an extremely rare event that would happen and where the prosecution did not say it was his fault that he was bleeding. We see this as very relevant to a defence of accident.
We can go on – there are other examples on Mr Morris, but Mr Morris died in a terribly graphic situation from aspirating vomit and faecal matter from a tube into his lungs. That was part of the cause of his death. The question is when Dr Patel decided to remove a sigmoid colon on Mr Morris, should he have foreseen that a nasogastric tube post‑operatively would be misplaced in this gentleman’s oesophagus instead of his stomach and that would cause aspiration of these fluids? We say that that would have raised a defence of accident.
Your Honours, we are aware that in Weiss this Court very clearly eschews the use of epithets for describing what the proviso establishes, but we say, on this case, on 288 and the 282 point and on the fact that two defences were not put to the jury, this is a long way from a case that can be saved by the proviso. We understand that there is not one size fits all but we do rely upon Baiada Poultry in paragraph 31 of that judgment.
I will move to the second part of the case, if I may. Your Honours, the second issue in the appeal is whether there was a miscarriage of justice. In answer to your Honour the Chief Justice we have made the point that we say these submissions on miscarriage stand independently of the submissions on 288. There is an aggregation of errors here and, unfortunately, there is a little bit of tedium while I have to go through the course of the trial.
We also point to the fact that if you look at the notice of contention which the Crown relies on in appeal book 2, page 466, we say that notice of contention is limited. It does not seek to engage the proviso in relation to unfairness and miscarriage that occurred with the narrowing of the case on day 43 by the provision of the new particulars which meant that the accused was deprived, fundamentally, of an opportunity to have a trial ‑ ‑ ‑
FRENCH CJ: The Crown’s notice of contention as I understand it is supported by reference to the submissions you took us to earlier in their – I am sorry, the respondent’s submissions at pages 17 and 18 and so forth.
MR KELLY: Yes. Our point is simply this, your Honour, that it does not really grapple with the problem about the particulars being narrowed.
KIEFEL J: You are saying that if you establish a miscarriage in the way that you put forward, the proviso cannot possibly operate?
MR KELLY: Correct, your Honour. Your Honour, we would say this is such an extreme example of a trial going wrong to have particulars develop in this way that a proviso could not possibly say it was fair because it would just involve this Court in speculating about so many different things, what might have happened. Your Honour, when the judge was handed those new particulars on day 43, if I could take you to appeal book 8, he said they were “a vast improvement”. They are his Honour’s words. That is at appeal book 8, page 2927, line 10.
KIEFEL J: Do you not need to show us the first set of particulars and to show how the case was conducted? The case was conducted under the basis of particulars setting up various alternative cases for the prosecution, was it not?
MR KELLY: I beg your pardon, your Honour?
KIEFEL J: The case was conducted by the prosecution on the basis of several alternatives which went beyond the decision to operate and included negligence within operation, post‑surgery and other allegations. As I understand it, those particulars were provided in relation to each of the four persons at points when they were about – the case with respect to them was about to be opened, so it is something which developed. But there must have been, is it from the time of the first particulars that, you say, that the prosecution set the scene of a general allegations – allegations which went beyond section 288 and encompassed negligence within surgery and post‑surgery?
MR KELLY: Yes, and bad faith. I will take you to them now. Your Honour, the first particulars – your Honour is quite correct in what you said. The cases were developed sequentially, so Mr Morris’ case went first, then Mr Phillips, then Mr Kemps, then Mr Vowles. So the particulars, the original particulars for Mr Vowles were handed up on day 6 and I can take you to those now.
KIEFEL J: To Mr Morris?
MR KELLY: To Mr Morris, sorry.
KIEFEL J: Was there some assumption or some discussion that the outline of the prosecution’s case, which was given at the time of the first particulars, would be the case to be presented in all of the others?
MR KELLY: Essentially, yes, but there is a criticism that is made of the defence which is unfair which is that they did not ask for particulars. I will deal with that. But on day 1 after the prosecution’s opening, the defence says we would like particulars sooner rather than later. Then on day 5, it is made very, very clear by the defence that they want particulars.
KIEFEL J: You are going to track us through this history?
MR KELLY: Yes, but I think your Honour asked me to show the original ‑ ‑ ‑
KIEFEL J: Yes.
MR KELLY: Your Honour you can find the original particulars for Mr Morris at appeal book 15, page 6054. Your Honours will see these are the ones that came in on day 6 and they number 29 paragraphs but there are multiple subparagraphs in them.
KIEFEL J: These particulars were provided at the request of the defence or because the trial judge required that they be given or how did that come about?
MR KELLY: On day 1 the defence said we seek particulars sooner rather than later. That is the end of day 1 and on day 5 it is made patently clear by the defence – so I will take you to it.
HAYNE J: Where do we find this?
MR KELLY: Could I take you to day 5 - appeal book 3, page 749. This argument develops between the judge and the defence.
HAYNE J: Again, you follow such order as you see fit but we are diving into the middle. We have had an opening at this point in the trial. We have apparently had on day 1 some complaint about particulars, now we are at day 3. Now, you are familiar with the material.
MR KELLY: Well, I will take you to day 1, your Honour.
HAYNE J: You follow such course as you think best to your case.
MR KELLY: Yes, well, I will take you to day 1, your Honour. Does your Honours’ appeal book on day 1, does it go to page 547 and then are there extra pages inserted which, say 547A?
FRENCH CJ: Yes.
MR KELLY: If you could go to 547A at line 20. So this is after the opening has begun, the jury has retired for the day, line 20.
KIEFEL J: Sorry, which page are you on?
MR KELLY: It should be 547A.
KIEFEL J: Yes, thank you.
MR KELLY: So, Mr Byrne is counsel for the defence, he is Queens Counsel. He says this, line 20:
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.
HIS HONOUR: It sounds like there are a number of complaints directed against your client’s conduct before the surgery, during it and after it. Many. And presumably it is going to be suggested that each in isolation, or perhaps some particular combination is causally related to the death.
That is, in itself, we would say, reasonably concerned that the judge is saying that. Mr Byrne says:
We look forward to that.
Mr Martin makes a comment. Your Honour, Mr Martin is the prosecutor:
Your Honour, that’s quite likely –
He is agreeing with what the judge has said:
in the sense that there are a number of complaints about things that happened prior to the surgery leading to a primary complaint which is the conduct of the surgery itself. So those things are potentially causally connected in that they led to the surgery taking place at all.
In addition to that, other things I mentioned which took place post surgery. So it may well be that the jury are left with making the decision on the basis that it was one of these things or a combination of them, and that’s the Crown case.
HIS HONOUR: I have a feeling that before the addresses begin, some refinement will be necessary. In any event, we shall see how things progress. Is there anything else for the moment?
MR BYRNE: Can I just flag this – and I don’t do it in any sense of in terrorem – we’d all – at least 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 with a view to cross‑examining ‑ ‑ ‑
HIS HONOUR: I could see that you might.
Going on to the next page ‑ ‑ ‑
HEYDON J: It says “cross‑examining experts”. What about ordinary witnesses?
MR KELLY: I am sorry, your Honour, my transcript does not say that. It says “cross‑examining”.
HEYDON J: It says:
cross‑examining ‑ ‑ ‑
HIS HONOUR: I could see that you might.
MR BYRNE: ‑ ‑ ‑ experts.
MR KELLY: I beg your pardon. Sorry, your Honour.
HEYDON J: But my point is you need to know, do you not, conventionally, the particulars before you begin to cross‑examine anyone?
MR KELLY: Yes, your Honour.
BELL J: Well, you need to know the particulars before the evidence in‑chief is led because otherwise you do not know what to object to.
MR KELLY: Your Honour, that is correct. This is our point. I cannot cavil with it. But it goes on at next page, your Honours - I am not sure what it is numbered in your book but at line 1 his Honour says:
Especially as there appear to be so many complaints, and thinking about the cross‑examination you might need to engage in might well suggest the importance of carefully considered particulars now, certainly a careful analysis of the many complaints and their relationship to the death will be eventually required, but I am rather sympathetic to your position that as things have emerged today, it might prove especially challenging to be required to cross‑examine someone who talks about whether a particular act or omission was negligent, or whether a particular act or omission alone or in combination of one or more of the others caused the death.
MR BYRNE: That was my impression as well, your Honour.
FRENCH CJ: Did his Honour at any time make an order under section 573 of the Code?
MR KELLY: No.
FRENCH CJ: Was any application made for such an order?
MR KELLY: No, but I will come to day 5, your Honour - his Honour says:
You mightn’t get much more, by the sound of it, than that the Crown contends – let us say – I haven’t counted them up – that there were 12 complaints about inadequate investigation, misdiagnosis, poorly performed surgery, failure to appreciate nutritional requirements, and the like. I suspect that there are at least 10 in the way in which it has been opened in connection with Mr Morris.
MR BYRNE: Yes.
HIS HONOUR: You may be told that it was 1 in each case that caused the death, or you might be told that it is 1 with, let us say, 2 and 6, or 3 with 7 and 9, and you will certainly be told, presumably, that it is all of them together, by the sound of it.
Going over the page, Mr Martin says:
That’s likely, I have to say, your Honour.
KIEFEL J: Just going back to the opening, because this followed upon the opening, did it not?
MR KELLY: Yes, it is part way through the opening, your Honour.
KIEFEL J: The opening for the prosecution at page 513 refers to sections 288 and 282. They are read out to the jury without identifying them by number. Then there are various references by the prosecution to points, but I think at page 545, at least, at about line 11, by way of example, it is said:
You will be invited to conclude from the evidence that Mr Morris died from either of or a combination of the surgery performed by the accused and the post surgical care . . . He was the wrong doctor to do this operation.
And at line 40:
He could, in short, have been treated much more conservatively –
At line 50:
He got the wrong postoperative care.
So it is in that background that it is obvious that section 288 is relied upon, but with these various different allegations. That is the context in which his Honour and counsel are speaking.
MR KELLY: Yes, start this debate, and it does not get resolved at the end of day 1, except in an unsatisfactory sense that it has been raised, and it has not been resolved. I was going to take your Honours to day 5 ‑ ‑ ‑
HAYNE J: Just before you depart from this, I need to understand the way in which it develops. At 547C, line 43 or thereabouts, his Honour says:
It can’t be left to the jury on the basis that there’s a litany of things that went wrong and then leave it to the jury to pick and choose which of them might matter to a case of unlawful killing.
The prosecutor answers –
Well, that’s a consequence not of the Crown’s choosing, but of what he did.
Are we to understand that this case was opened to the jury on the basis that criticism was made of the accused man’s conduct at every stage from the decision to operate, through the surgery, to post‑operative care?
MR KELLY: Absolutely. There is no doubt about that. If I could take you to day 5, it gets more acute ‑ ‑ ‑
HAYNE J: Is your complaint that that was not a proper basis on which to conduct the case? Do you say that the case could not properly go forward on the footing that this man departed from the relevant standard at each of those identified stages in numerous ways?
MR KELLY: It could have happened if coherent particulars had been delivered, perhaps. I am speculating, your Honour, but that did not happen, and what our complaint is, the case was narrowed so that all the prejudicial evidence about post‑operative treatment and bad conduct became irrelevant, but the jury had heard it all, and they were never directed to ignore it in the summing‑up. Your Honour, on day 5 – this is appeal book 3 at page 749, about line 15, the judge ‑ I do not mean to cut you off from reading lines one to 10, but what is relevant is at line 15, or 14. He says:
So I would not wish to see the prosecution rushed in supplying them –
that is, particulars, which is odd on day 5 of the trial –
since to date there has been, it seems, no particular pressure from your side, Mr Byrne, to extract them, but I could see why you would say that you would need them in final form before you can cross‑examine experts who are going to testify to causal connections.
MR BYRNE: Indeed, we placed that on the record on Monday of this week.
He is referring to day 1 of the exchange ‑ ‑ ‑
KIEFEL J: May I just interrupt you here? There were pretrial hearings as well. This matter was managed before trial. Was there no discussion pre-trial of particulars that were required? It was obvious that the ‑ ‑ ‑
MR KELLY: There was no requirement that particulars be provided.
KIEFEL J: The defence did not request them in a case of this nature?
MR KELLY: No. Mr Byrne, QC makes comments that he was expecting particulars to be provided sooner than he had received them, but there was nothing definitely in place. There were no orders in place, let me put it that way.
BELL J: One consideration that I think the trial judge ultimately had regard to, as did the Court of Appeal, was that there can be forensic reasons for not requesting particulars. Ultimately, that may not affect the substance of the point that you make, Mr Kelly, but at some point it does need to be addressed; that is, the obvious forensic advantage of an opponent who has not considered exactly what his case is.
MR KELLY: Your Honour, can I say two things about that? Mr Byrne, QC says ‑ his Honour accuses him of making a tactical decision in his reasons on day 10 when the application for discharge ‑ his Honour says, you made a tactical decision. Mr Byrne says he did not, but apart from anything else, what if he did? What if the prosecution case was so overreaching and overzealous that it was a mismatch of many different allegations and there was a tactical decision taken, let us let them go, and at the end of day, we can say to the jury, you can ignore this little piece of the case because the rest of it is so overreaching. That forensic advantage was stripped from the defence by what happened on day 43, because on day 43 what happened was a coherent set of particulars was delivered which allowed a sensible summing‑up to the jury to be given. If there was a forensic advantage, the defence lost it unfairly, and I am not saying that they deliberately engaged in this conduct.
HAYNE J: But that proposition seems to be ‑ and I need to know whether it is ‑ that the judge of his own motion should have insisted on particulars at some point, either day 1, day 5 or day 10. Is that your proposition?
MR KELLY: Yes, it is.
HAYNE J: What exactly is the proposition, that the judge should have insisted particulars before opening, course of opening, or any of the above, as it were?
MR KELLY: By day 5 – I still have not got to it – but by day 5, when it is clear that the defence is insisting on particulars of everything, his Honour should have stopped the trial and said we will stop it until particulars are provided.
BELL J: Did Mr Byrne ask his Honour to do that?
MR KELLY: No, he asked on day 10 that the trial be stopped. On day 10 he asked for the jury to be discharged because things had gone ‑ ‑ ‑
BELL J: Before day 10, what obligation was there on the trial judge to stop the trial in response to the failure to provide particulars when Mr Byrne did not make the request?
MR KELLY: We submit the trial judge was having the ultimate control over the fairness of the process order and – sorry, nine, that they were incoherent, having a view they were incoherent, the particulars, having a view that by that stage it was a mud‑slinging exercise, the trial judge ought to have stopped the trial and said, I will not lead this trial proceed until it is put on the rails properly.
FRENCH CJ: The judge has a power, you say, under section 573 of his own motion to order the delivery of particulars?
MR KELLY: Yes, and he has an inherent power under the inherent powers of the court, your Honour. Could I just go to day 5, please? At volume 3, page 750, his Honour at line 25 says:
Now, these particulars do not seem to me to provide any logical connection, at least with respect to omissions, between the alleged omission and the death.
I need to explain something to your Honours. The Morris particulars were delivered on day 6, but there was a draft of them delivered on day 5, so this is what his Honour is referring to.
HEYDON J: It is referred to on page 748, line 48.
MR KELLY: Thank you, your Honour.
FRENCH CJ: The draft is what appears at 6051, is it, in volume 15?
MR KELLY: Yes, I believe so, your Honour. His Honour then goes at line 40 ‑ he answers a proposition from the prosecutor and he says:
HIS HONOUR: I know, I know, but these particulars don’t arise above saying, “We would like to characterise these acts and omissions as negligent, and, incidentally, the patient died.”
MR MARTIN: And that’s a consequence of, rather, what I thought my friend was ‑ ‑ ‑
MR BYRNE: With respect, that was – particulars are particulars that the Crown have to nail to the mast.
The defence counsel is correct in making that submission, with respect. He goes on to say ‑
It is not for us to tell them how to particularise. But if they are particularising, then they are the matters we have to meet. If those matters don’t make out a case, then so be it, but there is no misunderstanding, or shouldn’t have been; we requested particulars of the case against our client.
Going over the page, his Honour says at line three:
You are talking about different things. You haven’t been pressed before recent times –
he is saying this to the prosecutor –
to supply the particulars, and I understand that. And, by the sound of it, you have been left to work out for yourselves what particulars are being sought, and you have proceeded upon the basis that these are sufficient to address the concern which prompted the request.
Your Honours, can I just interpolate, it is just an odd concept that the prosecution has to rely upon the defence to tell them what particulars to give about their case. His Honour goes on to say:
But now you are discovering that Mr Byrne wants more. He wants to know, by the sound of it – he wants to have particulars of each of the matters which the Crown has to prove to establish criminal responsibility, I gather. Is that right?
MR BYRNE: That’s so, your Honour.
On day 5, there is just no doubt that particulars have been requested. Your Honour Justice Kiefel, would you like me to go to the original Morris particulars that you asked me about before?
KIEFEL J: No, I take it you are now taking us through chronologically. Speaking for myself, that is the easiest way to understand what took place.
MR KELLY: I will come to them, your Honour. So, your Honour, if we go to day 7, which is appeal book 3, page 868, line 18, his Honour says:
So far it looks to me – I have not counted the number of alternate cases plead, but it would be at least a dozen, wouldn’t it?
HAYNE J: Sorry, where are you? What page?
BELL J: Page 868.
MR KELLY: Your Honour, it is volume 3, page 868, line 18.
HAYNE J: Thank you.
MR KELLY: They say there is at least a dozen cases. This is about Mr Morris, with three cases still to go.
KIEFEL J: His Honour is referring to the particulars at page 6054, is that right?
MR KELLY: Yes. Now, if I move to days nine and 10 because what happens on days 43 and 44, which is the culmination of a catastrophe, in a sense, there is a striking symmetry to what occurred on days nine and 10. On day 10 the defence also unsuccessfully sought to have the jury discharged and the judge had already formed the view that a mud‑slinging exercise was on foot. So, could I take you to appeal book 4, page 956, please, at lines 1 to 25?
HEYDON J: What was that page again?
MR KELLY: It is 956, your Honour.
HEYDON J: Thank you.
MR KELLY: At lines 1 to 25 his Honour says:
Yes, all right. What else? I grant you that it is hard for you in a case where, as you put it a little figuratively, every piece of mud that can be thrown is. And you may be right. My optimism that it will be pared back by the time it goes to the jury to a digestible case capable of rational assessment may prove to be unduly optimistic. You might still be confronted [by] a welter of additional or alternative allegations.
Now, this is extraordinary, with respect, your Honours, because his Honour is conscious that there are a welter of alternative allegations and he is contemplating the case continuing and being pared back after all the evidence is heard by the time of addresses. Mr Byrne, QC says:
But that is how it currently stands.
HIS HONOUR: And it looks as though the prosecution wishes to conduct the case on the basis that in respect of those acts or omissions which are said to have caused the death, whether they bear the character of such a substantial departure that they should be characterised as criminal negligence, can be informed by whether other mistakes were made, which at the moment seems to me to be an unlikely proposition, but Mr Martin has said that’s to be advanced.
So, yes, you do have a lot to confront and at the end of the day, assessing it is, I accept, challenging from your point of view, because of the multiplicity of allegations and variety of alternative cases with which you must deal.
That is just with Mr Morris’ case.
So the defence then makes an application for discharge of the jury on day 10, and that is at 961. At this stage, the only particulars that have been delivered are in relation to Mr Morris. So, Mr Byrne at line 1 says:
Your Honour, we bring an application pursuant to section 60 of the Jury Act for an order that the jury be discharged without giving a verdict. The basis of that application in general terms are these. Our system, of course, is one which prides itself on fairness. This trial, itself, is a high profile trial which brings into focus the fairness of the system. We’ve had seven days of evidence, albeit we’re in Week 3 of the trial from today. The defence have no particulars on any of the charges, except in respect to the matter of Morris.
HIS HONOUR: How can you complain about that, you didn’t ask for them?
Well, that is not correct or fair, because they were asked for on day 5, and in a more muted way on day 1. Mr Byrne seems to get confused here and says:
Well, we – that’s true, but we didn’t expect them to be as convoluted, if I may respectfully say so, as what they appear to be achieving in the case of Morris. We were told – or we heard on Friday, or Thursday, I should say that, indeed, in respect to Morris it’s probable that those particulars will themselves change.
HIS HONOUR: In the sense that they are likely to be narrowed. So that by the time the addresses begin, the prosecution will have a more confined and digestible case to put to the jury, reducing the number of alternatives tiffs.
FRENCH CJ: Well, that might be a convenient moment, Mr Kelly. Adjourn until 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Kelly.
MR KELLY: Thank you, your Honour. Your Honour, I was dealing before lunch with day 9 and leading up to the application for the discharge of the jury on day 10. Could I take you to appeal book 4, page 956, lines 1 to 25. I may have done this before ‑ ‑ ‑
HEYDON J: I think you had read them.
MR KELLY: Yes, sorry, I beg your pardon. The point I would make out of that, your Honour, is that the idea that every bit of mud, or whatever it is called, that has been thrown is well and truly alive by day 9 and at line 20, the judge incorrectly says to counsel, “You did not ask for the particulars” which we respectfully submit was incorrect. Your Honours, then on page 955, going back six pages, an exchange occurs leading up to this between counsel for the defence and the learned trial judge, and his Honour’s comments are at 955, lines 12 to 20. His Honour says this:
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.
So this is a recurring theme with his Honour, that things can be pared down. He also seems to have it clearly in his mind on day 9 that the ultimate case will be what was in the revised particulars. He then goes on to say at lines 42 to 50 –
I am rather optimistic, as I say, that it will be reduced to a form that is manageable in a jury trial. Anyhow, you want to say it is of some significance. Well, it might be – I know you face an array of alternative allegations of negligence.
Defence counsel says, at lines 50 to 55 –
And we are. If the matter were particularised as simply as your Honour puts it –
That is the final particulars, I am interpolating there –
then it may be different, but what we had presented to the jury yesterday was what your Honour foreshadowed a day or so earlier, namely a lot of mud, to use that expression, was thrown.
His Honour then says this at appeal book 4, line 55 or 58 –
That’s correct.
It is, with respect, concerning that his Honour agreed with this proposition in an unequivocal way, and dismissed it as he did without dealing with it. He then dismisses later the application for discharge as being of very little apparent significance, and does not take any steps to stop what is a process that is clearly going awry. When the discharge application is brought, the judge says, as I have noted, incorrectly, “How can you complain about the lack of particulars when you did not ask for them?” That is at volume 4, page 961, line 18. That neglects what happened on day 5.
BELL J: Mr Kelly, you keep putting this, but Mr Byrne did acknowledge the correctness of the proposition. I think if it is understood in context, his Honour is making a point about the absence of a more timely request, as might have been expected.
MR KELLY: Yes. It is just that we are coming up – sorry, your Honour, I do not mean to argue with you about that, please understand, but we are coming up to the actual application for discharge on day 10. That is why I am taking you through this bit of history. It will not take much longer.
BELL J: I understand why we are going through the history. It is why we should not accept Mr Byrne’s acceptance of the correctness of the proposition put to him by his Honour that I am taking up with you, that is all.
MR KELLY: With respect, Mr Byrne did not accept unequivocally his Honour’s characterisation of events. He did dispute that he had not asked for the particulars, so that is not – anyway, I will move on. Just to take up that point, there then ensues an argument in which the defence counsel does actually take up the judge’s claim that he has not asked for particulars. That is at page 961 at lines 50 to 60. His Honour says:
But why would this jury be discharged because you don’t have particulars? If you’re content to conduct the case for at least months on the basis that you make a considered decision not to ask for particulars, thereby avoiding pressing the prosecution to think through its case, how does it become a basis for discharging the jury?
MR BYRNE: It becomes a two pronged application. One is that your Honour may recall we did seek particulars prior to the commencement of the trial proper in respect to the matters.
HIS HONOUR: Did you?
Mr Byrne goes on, on the next page, to say –
We understood – our recollection is we did that on the Saturday sittings that was conducted –
Then there is a debate that goes on. I will not read it through because you have seen it before, at page 962 at lines 10 to 30, where this unresolved issue between defence counsel and judge continues about whether particulars have been asked for or not, which we say is ultimately irrelevant when his Honour found the existing particulars to be unintelligible and not subject to serve the basis of a proper trial. An exchange occurs at page 962 at line 15, where Mr Byrne, QC says:
We don’t have final particulars in respect to the current charge that we understand.
HIS HONOUR: In respect to Morris?
MR BYRNE: Yes.
HIS HONOUR: Yes, you do. You have all of the alternatives they might ever wish to present, I gather, it’s just that by the time the addresses begin they will abandon some of the alternatives, that’s the expectation.
MR BYRNE: Yes, so we have to conduct the case based on what may or may not be particulars at the end of the day.
HIS HONOUR: That’s right.
We submit that was unfortunately a failure by the learned trial judge to address a serious problem, and an orthodox response would have been, “That is unacceptable” or “You are incorrect” or “Something must be done about this”, but to say, “That is right, that is what you have to do” is not really an acceptable thing to say when someone is representing an accused on a manslaughter charge, or several manslaughter charges. Then if you go to appeal book 4 at page 962 at line 30, after his Honour says, “That’s right”, Mr Byrne says:
And that means, as we’ve seen from the current witness, that there are numerous allegations.
HIS HONOUR: That’s right.
Then defence counsel goes on immediately thereafter to refer to problems that ensue from that. He talks about that at lines 35 onwards, but at line 45, he makes a relevant point, with respect. The defence counsel says –
So the second aspect of our application –
This is the discharge application –
is that apart from having to seemingly meet, cross‑examine and put propositions based on matters which may or may not be particulars at the end of the Crown case, we have had evidence led in respect to a number of matters which is acutely, we would say, prejudicial, which is the subject of what we would describe as ad hoc expert opinion –
The debate goes on, and on 963 at line 50, counsel for the defence proposes what he says is a solution to the problem. That is at line 50. Before we take your Honours to that, could we just say this by way of at the end of the day, what our submission is, and that is that the trial should be halted at this stage and that there should be put in place a tightly controlled court‑managed schedule to achieve and ensure fairness by having orders or directions such that final particulars could be supplied.
Your Honour Justice Bell said to me I would have to deal at some stage with the tactical advantage which defence counsel might have been seeking to extract from not having particulars. Can we just bear in mind that that submission is made when there are only particulars in relation to Mr Morris, and there are three sets still to come, and the defence counsel is saying to the judge, “Stop the trial”.
BELL J: I think the point that the judge was making was this was a trial that had been managed in advance of the jury being empanelled and the Crown opening its case. In a case of this character, one might have expected the request for particulars to have been made at an earlier stage, since one would expect a number of relevant decisions for defence counsel to have in mind would have been influenced by the supply of the particulars. When senior counsel appears for a person charged with several counts of manslaughter, one might think he has a reason for not doing it. That, I think, is what his Honour was raising.
MR KELLY: Your Honour, that may be a fair – sorry, I do not mean to sound unfair to his Honour, but that may be quite fairly what he was thinking. But all I am saying is, if it is said that the defence was trying to accrue some tactical advantage, they certainly were not by this stage. They were trying to stop the trial and say, “Let us start again and do it properly”. I think that puts paid to that submission, or point. It goes on from there ‑ ‑ ‑
HAYNE J: Just before you do go on from there, do we need to know what is in exhibit M for identification, which is the outline of submissions produced in support of the application, because exhibit M is not, I think, reproduced in the appeal papers.
MR KELLY: Could I have one of my juniors look at that ‑ ‑ ‑
HAYNE J: It is the index page 22.
MR KELLY: Your Honour Justice Hayne, could I have one of my juniors look at that?
HAYNE J: Yes, of course.
MR KELLY: Thank you.
BELL J: Was this the list of items of prejudice said to have been engendered by Dr Collopy’s evidence?
MR KELLY: Yes. There were 23 of them and, your Honour, I think Mr Byrne puts paid to most of them and says most of them could have been dealt with by recalling the witness and having a conference with him. I do not think that really needs to be seen, with respect, because there are two aspects to the application to discharge the jury, but one is about particulars. I will check that overnight – I will have that checked. Could I take your Honours please to appeal book 4, page 985 at line 10. This is on day 10 before the discharge application. His Honour says:
Pretty much every complaint that can possibly be made is being made.
Then at appeal book 986, the next page, line 20, his Honour says:
I confess, at the moment I am a little overwhelmed by the volume of complaints.
We would submit that one would only consider what a jury of lay people would have been experiencing at that stage by the volume of complaints. At appeal book 991, lines 20 to 30, the judge makes an important comment. He says at about line 19:
I know I sent this particulars hare running on the Saturday before the trial started and partly because it seemed to me from the way the argument was proceeding that there was a chance that there were not particulars that govern the case. It didn’t seem very likely because in the absence of detailed particulars, in a case like this, it is difficult to decide if you’re on the defence side what evidence you must gather to meet the prosecution case. Anyhow, this is where we are, we’re two weeks into the trial and the particulars still strike me as likely to continue to prove troublesome.
His Honour was foreshadowing that they would be trouble, and again, there are only the Morris particulars to speak of at this stage. On the same page, 991, at line 35, his Honour says about the Morris particulars:
They are in many respects so broadly expressed and indefinite.
Then at appeal book 991 to 992, could I ask you to look at 991, about line 52. Mr Byrne says:
Before we leave that point, can we tie it back to what our original submission was and, again, we don’t seek to attribute blame, we may have to shoulder blame, but the appropriate fair course, in our submission, is for at this stage rather than at a later time down the track where we’re going to have these particulars still in this form blowing up at that stage, what should have been done and what can now be done is for your Honour to give appropriate directions to manage this matter so that everyone in the courtroom on a resumed trial can know precisely what is being alleged, what is not being alleged, what evidence, therefore, is relevant and irrelevant to the allegations being made would make for – not to put it too strongly – a proper criminal trial where the interests of the community and the accused are properly dealt with. Otherwise, we continue to have a situation where we’re all seemingly have to deal with these things on the run.
His Honour’s response to that is a little bit indirect. He says:
That’s right, they are being dealt with on the run but there’s a reason for that. But, as I’ve said, I don’t wish to enter upon the blame game –
et cetera. Then at line 20, Mr Byrne says:
Again, I should place on the record that there was no tactical decision explicitly or implicitly in respect to somehow not reading that entry in the records as providing a specific particular as to a specific omission that could have been done which is now said to be a cause of death.
So he is eschewing any idea that he has been behaving tactically in not seeking particulars. Then the ultimate decision is resolved adversely to the defence at page 1005 ‑ ‑ ‑
KIEFEL J: What do you say to what his Honour said at page 992, line 40, that it is not possible for him to infer that a considered decision to go to trial was made on a mistaken basis “without insisting on particulars”?
MR KELLY: Well, your Honour, I think the answer to that is defence counsel said there was no tactical decision but let us assume it was a mistaken decision not to insist on particulars earlier. There is a stage reached in the trial now where they are clearly being sought and applications being made for the trial to be stopped because of particulars unsatisfactory and a lot of prejudicial evidence is going in. We would say that although the adversary system is critically important to our system, the paramount duty is to have a fair trial. That was lost sight of, with respect, in this debate.
KIEFEL J: In any event, I think Mr Byrne goes on to answer his Honour.
MR KELLY: Yes, he says:
We did seek particulars prior to the start of the trial.
KIEFEL J: Where were you taking us to from there?
MR KELLY: I am sorry, your Honour. I was taking you to the decision on the application to discharge the jury. That is at volume 4, pages 1005 to 1008. His Honour delivered three pages of ex tempore reasons in which he dismissed that application. The first ground was about the particulars and the second ground was about the evidence of Dr Collopy. If I can take you to page 1005, his Honour deals with the particulars in one paragraph between lines 10 and 20 and his reasons are this:
This is an application to discharge the jury. Two grounds were advanced. The first was an absence of particulars. In a case such as the present, particulars are highly desirable. However, until a very late stage they were not sought. In these circumstances it is unnecessary to say anything more about the consequences of that no doubt considered tactical decision.
BELL J: It is difficult to see how in a trial where there were allegations respecting five surgical procedures said to have been negligently conducted, decisions to conduct them at all being negligent and so forth, that in the preparation for a case of that character one would not have turned one’s mind to the question of particulars just to work out what areas one would seek to have covered by one’s own expert.
The matter I am raising with you is the trial judge is confronted two weeks into the trial with an application, one strand of which is we have to pull up stumps now because I do not have particulars, in circumstances where one would have expected that a request would have been made well in advance of the Crown Prosecutor opening, and what conclusion was his Honour to draw?
MR KELLY: Well, your Honour, there are several things that I would say about that. The first is there were particulars on the Morris case, so when his Honour says there is an absence of particulars there were particulars in Morris and his Honour found them incoherent and unintelligible. So whatever mistakes the defence might have made in being slow to ask for particulars, to allow particulars to stay on foot that meant this prejudicial trial would continue was not a correct decision.
In relation to the other three cases where no particulars have yet been delivered, what would be the prejudice in stopping the trial for two days and saying look, this cannot go on, we need to adjourn and I want coherent particulars of the other three cases. I mean, it might be the defence made a mistake, but is the accused to be punished for the next 43 days because his counsel may have been somehow equivocal or not pressed hard enough ‑ ‑ ‑
KIEFEL J: But the nature of the case and the experience of counsel for the defence suggests, as his Honour said, a considered decision about these matters and that in turn suggests that there might have been some assumption about how the case was to be conducted. I mean was it the particulars that threw this out? That is what is not clear to us. What was the assumption upon which the defence was proceeding?
MR KELLY: It was from the end of the opening on day 1 the counsel complains that they have heard things in the opening they had not expected to hear and request particulars. Particulars are then requested on day 5 and the judge confirms, yes, I understand you are seeking particulars of everything that is criminally negligent. Particulars are delivered on day 6 and then on day 10 there is an application for discharge. I mean, it is not perfect but it – once a judge forms a view that there is a mudslinging exercise going on, a lot of prejudicial evidence is being put in against the accused, then there really has to be a stop to it, something has to happen.
FRENCH CJ: Was it incidentally necessary to seek discharge? Would an adjournment under 573 have been sufficient? You mentioned adjournment a moment ago ‑ ‑ ‑
MR KELLY: Yes, I think by that stage it was too late, your Honour, because with the Morris case so much prejudicial evidence had gone in already that it might have been very difficult to then have a sensible trial on the other three charges because much prejudicial evidence had gone in. I do need to emphasise too, without being critical of the trial judge, that when it is said against the defence this could be a tactical decision not to have sought particulars, the problem is the judge is clear that the particulars in his view are incoherent and they are unintelligible. So there was no particular purpose in persisting with a criminal trial on incoherent particulars, and that cannot be fair to the accused or to public confidence in the trial.
On day 12 after the discharge application, I move to appeal book 4 page 1106, the original particulars from Mr Phillips who was the second charge are handed up and at line there:
MARKED “O” FOR IDENTIFICATION
at line 50 and at line 51 the trial judge exclaims “Oh, dear”. Then on day 20 which is in appeal book 5 at page 1628, line 1 - the judge is dealing with various issues on page 1627, but he makes the comment at the top of 1628 - and I do not say this with criticism to him, your Honours, I say that it is a genuine statement by the judge of his state of mind that:
I am completely befuddled ‑ ‑ ‑
that is, by the prosecution case. Then on day 21 the judge says something quite important about the future of the trial at appeal book 5 ‑ ‑ ‑
KIEFEL J: Just going back to day 20 on page 1628, what is the context of this? Has his Honour been given some further particulars? How many particulars are in now? What is the context of the statement at line 1?
MR KELLY: Well, your Honour, it is about the Phillips particulars. As you see on 1627 at line 8 – you probably have to go to the previous page, your Honour – line 30 on 1626. His Honour complains:
there’s been no objection to these questions about a document from 1994 that nobody that matters had ever seen at the time –
Then his Honour says at line 40:
What possible relevance can inquiries about the capacity of the ICU at Bundaberg have to this case? Is it part of the Crown case that Phillips was killed by incompetence in the ICU?
MR MEREDITH: No, your Honour, it is just that ‑ ‑ ‑
HIS HONOUR: What is its relevance?
It goes on and on the next page his Honour at the bottom of the page says:
‑ ‑ ‑ government prescriptions that nobody saw concerning capacity of this unit. The prosecution case, if I have understood it ‑ ‑ ‑
MR MEREDITH: Yes.
HIS HONOUR: ‑ ‑ ‑ in connection with Phillips –
I am reading from page 1627 –
is essentially this: the man should not have been subjected to the oesophagectomies; is that right?
That is the final case, it is put in the final particulars.
MR MEREDITH: Yes.
HIS HONOUR: He should have been left to die a natural death.
MR MEREDITH: Yes . . .
MR MEREDITH: Yes, but once you start the operation, as Dr Miach said and Dr Carter said, he died of the potassium, the hyperkalaemia.
HIS HONOUR: Yes.
MR MEREDITH: And that was foreseeable ‑ ‑ ‑
KIEFEL J: I think we can read quite quickly actually, Mr Kelly. Perhaps you could tell us – you could summarise what the context is.
MR KELLY: Well, your Honour, I think it is to do with the Phillips particulars and with bringing it within the scope of section 288 and his Honour says the debate is not particular clear, that his Honour says “I am completely befuddled”. I am sorry about that, your Honour.
FRENCH CJ: Can I just go back for a moment to the Morris particulars. You are relying upon his Honour’s statement about their incoherence but that is a sort of second order statement. Why are they incoherent?
MR KELLY: Your Honour, they have so many alternatives and they have ‑ ‑ ‑
FRENCH CJ: Well, do the alternatives not stand logically together, or what is the problem?
MR KELLY: As his Honour puts it, there are too many alternatives and there are alternatives upon alternatives.
FRENCH CJ: That may be very undesirable. I am just not sure why it makes a statement of particulars incoherent. That would suggest some sort of logical inconsistency within it that cannot be resolved.
MR KELLY: No, I do not ‑ ‑ ‑
FRENCH CJ: I just think your case should really – I am not suggesting his Honour’s statements are irrelevant, but it seems to me our primary focus is upon the things that were being placed before him rather than his second order comments on them.
MR KELLY: Yes. Your Honour, I will come to the Morris particulars but when you do see them in a sense they do make sense in that you can read the allegations and understand what they mean.
FRENCH CJ: Yes.
MR KELLY: They are just very broad ranging.
FRENCH CJ: That is the complaint, is it?
MR KELLY: Yes.
FRENCH CJ: The complaint really is the change.
MR KELLY: Yes.
FRENCH CJ: From a broader to a narrower, that is the essence of your complaint about particulars and the way the trial was conducted.
MR KELLY: Yes.
FRENCH CJ: I am just not sure that it helps us to get too distracted by comments or asides in the course of debate about these things. They may not go to the core of the conduct of which you complain.
MR KELLY: Yes. I think though, your Honour, his Honour does say that there are so many alternatives in the particulars that he could not sensibly leave them to the jury. I think that is one of his complaints.
BELL J: But is this not in this context, that it is open to the prosecution if it wants to, to lead a case that an individual was grossly criminally negligent in each of 100 ways? An experienced trial judge might think that that was not perhaps a sensible way to put the case and one sees, in some of the passages that you have taken us to, the judge endeavouring to focus attention on the case that is to be run. But some of your submissions seem to assume that the judge might come in over the top and effectively cut down the prosecution case of his own motion. That might be a controversial proposition.
MR KELLY: Yes. My submissions do go that far though, your Honour, because his Honour says, it is in the transcript, as I have taken you to, that a man is standing charged with very serious charges and his character is being put on trial, he is being alleged to have acted with bad faith when there is no particular evidence of this ‑ ‑ ‑
BELL J: Well, that goes to the heart of your argument which is that the case changed and that a lot of prejudicial material had gone in. Yes, I understand that.
MR KELLY: All right. Could I go to day 21? It is appeal book 5, page 1638, lines 36 to 43. I will not read it out to your Honours, but it is his Honour foreshadowing, on day 21, what really happens on day 44 and he says that he is:
very troubled by the idea that you can prove a case against this surgeon by finding every little criticism that can be mustered and saying, “Things could have been done differently.”
One of his Honour’s problems was there was no causative link between a lot of the complaints and anything that happened, it was just evidence of bad surgery or bad post‑operative care, and his concern was, what does this have to do with the death of the patient. On day 22 at appeal book 5, page 1646 his Honour says at line 55:
How much more complicated can the case be made?
I will not read it to you, but if you look at the discussion starting at line 10 you will see his Honour says to the prosecuting counsellor at line 21:
Surgery can’t be that challenging a profession.
FRENCH CJ: Well, these are rhetorical statements which are not getting us to the core of your case, are they?
MR KELLY: Well, they are dealing with the fact that the judge is concerned ‑ ‑ ‑
FRENCH CJ: I mean, what you really have to deal with is the kind of analysis that the Court of Appeal undertook in relation to the changing of particulars and the consequences that that had, I would have thought.
MR KELLY: Yes, your Honour. I will move on, your Honour. I will go to the original Morris particulars if can, at appeal book 15, page 6054. To answer your Honour the Chief Justice’s question, the Court of Appeal’s view seems to have been that everything that went in on the original particulars could go in on the narrow particulars and we submit that simply cannot be correct. At paragraph 6 of these particulars you will see is in fact about the ultimate case, which is a decision to operate. I will not read through these particulars but could I draw your Honours’ attention to paragraph 15, where things get more serious? It is alleged, in paragraph 15, that:
The accused, notwithstanding that he knew of the matter alleged in 13 –
that that relates to the dangers to life of the patient, that he carried out a surgical procedure. So that is a serious allegation.
BELL J: But is that not about the decision to perform the surgery in the circumstances?
MR KELLY: Yes, but it is actually alleging knowledge that he knew of the matter.
HAYNE J: Yes, that is to be read with 15 or 16. Either he knew and went ahead regardless, or if he did not know he should have known. That is 16, is it not?
MR KELLY: Yes.
KIEFEL J: I think perhaps you wanted to refer to paragraphs 21 and 22, which talks about performance and then post‑operative care.
MR KELLY: Yes, your Honour. Also paragraph 19:
The accused, notwithstanding that he knew of the matter alleged in 17 above, performed the surgical procedure.
So he knew that it was dangerous – if you look at 17:
It was dangerous to the life and health of the patient to perform the surgical procedure –
He went ahead and did so knowing the tests had not been done. Paragraph 22 has the post‑operative allegations in it. Going on at paragraph 23(d), it said that:
the death of the patient was caused by the conduct of the accused in . . .
(d) a combination of all or any of the matters in (a) to (c) above.
If you look at (a) to (c) there are a myriad of possibilities. Paragraph 26 makes a very serious allegation that:
The accused did not perform the surgical procedure upon the patient in good faith –
Paragraph 27 makes an equally very serious allegation that:
The surgical procedure was not for the patient’s benefit ‑ ‑ ‑
FRENCH CJ: That is going to 282?
MR KELLY: Yes, your Honour. If I could take you to the revised particulars for Mr Morris, they are at appeal book 15, page 6100. You can see they occupy two pages and they are discrete and coherent, as the judge described them. There are no allegations of incompetent surgery at all. There is no allegation of incompetent post‑operative care, no allegations of a lack of good faith, no allegation to the effect that Dr Patel knew he was harming patients. The essence of the complaint is in paragraph 3, which is that:
The surgical procedure was negligent because it was unnecessary.
So the case dramatically changed. The other particulars followed a similar pattern, except with Mr Kemps, which are more complicated. Could I just draw your attention with that, just so you know where they are? The original Mr Kemps particulars are at appeal book 15, page 6072, and they are more complicated than the Morris particulars. The revised Kemps particulars are at appeal book 15, page 6107. Your Honours, when Mr Vowles’ particulars were handed up - if I could take you to appeal book 7.
FRENCH CJ: Now, the revised Kemps particulars pertained to allegations relating to post‑operative care?
MR KELLY: Yes, there were two cases put in relation to Mr Kemps by the trial judge. One was that he should not have operated on him, the second was that he delayed too much in going back to stop the bleeding. Your Honours, at appeal book 7, page 2762, line 45, his Honour, when the Vowles particulars - these are the original Vowles particulars - are handed up, his Honour says to the prosecution – and this is day 39 - this is about line 48:
I’ve assumed that the Vowles’ particulars, for example, aren’t seriously intended, that they’re just another pro forma document?
So, as late as day 39 his Honour is saying, “I do not think these are seriously intended”. Your Honours, just to deal with the Chief Justice’s point, I need to deal with how much evidence went in on the original particulars. I will just give some examples.
FRENCH CJ: I am not precluding you from doing that, but we have a fairly comprehensive account of that in the schedules to your submissions, do we not?
MR KELLY: Quite right. Your Honour, could I just very briefly then try and give some examples, and I will be very brief? Evidence was given about a period of 24 days over which Mr Morris suffered. I have already mentioned about his aspiration of vomit into his lungs. There was evidence of a mis‑positioning of a nasogastric tube, for which Dr Patel was alleged to be responsible, and that happened post‑operatively. There was also evidence that Dr Patel inadequately created a stoma, which is the outlet from the bowel to the outside world when you cut out the sigmoid colon.
Dr Collopy, an expert witness, gave evidence that post‑operatively Dr Patel failed to pick up the obstruction of the colostomy and this expert, Dr Collopy, diagnosed a partial bowel construction as one of the contributing causes of death. That is appeal book 3, page 938. Another cause of death was the malnourishment of Mr Morris, and the evidence was given that Dr Patel was responsible for his malnourishment and there was graphic evidence about the pain and suffering suffered by Mr Morris. I will not go further on that.
Your Honour, if we move through to day 44, the court rejected the application on day 44 to discharge the jury. We submit that that application to discharge was really an inevitable consequence of what had happened so far in the trial and which had in fact been foreshadowed by the trial judge, or at least foreseen as possible. On day 42, if I could take you to appeal book 8, at page 2892, his Honour says:
It sounds as though the Crown is very anxious to over‑egg the pudding and to throw – well, we have been over this before - every little piece of mud in the hope that some will stick. We will now need to see whether what they propose to say could in logic be regarded by a rational jury as probative of anything.
On day 43 the judge makes another comment which is relevant at ‑ ‑ ‑
FRENCH CJ: Now, what page are you taking us to?
MR KELLY: Page 2940. At about line 30 his Honour engages in a discussion with Mr Byrne, QC, and his Honour says, at line 30:
What evidence is admissible or –
So forth. I will not read it. But he does say this, this is about line 38:
this is affected by the particulars in two ways, one good and one not so good: good in the sense that it is now possible to see what the issues in the case are –
So this is when the revised particulars have come in -
not so good in the sense that there is now a now a lot of evidence that’s in that doesn’t matter to the case that’s to go to the jury.
MR BYRNE: Yes.
FRENCH CJ: Now, at this stage, the revised particulars are in respect of each of the offences, or each of the charges?
MR KELLY: Yes. His Honour’s comments are made in that context. His Honour says at line 50:
so, recently, and I could imagine that there are other issues that may be raised by the particulars. Because we’ll now have a lot of material in, for example – a lot of it – about malnutrition and scout nurses who were inexperienced.
MR BYRNE: Weeks of it.
HIS HONOUR: That has nothing to do with the case that is to go to the jury -
which really contradicts the Court of Appeal’s approach to this case that all of the evidence that went in was somehow relevant to a narrower case.
FRENCH CJ: Now, what is the point of this exchange? What is the context of this exchange?
MR KELLY: This is after revised particulars have gone in.
FRENCH CJ: Yes.
MR KELLY: His Honour makes the point, well there is going to be a lot of irrelevant material in now and I am making a point that the Court of Appeal says everything that went in is somehow relevant to the narrow case. His Honour was not agreeing with that.
KIEFEL J: You still have to deal with what the Court of Appeal said, though.
MR KELLY: Yes, we submit that based upon the difference between the Morris particulars that I showed you, the original ones, your Honour, and the revised ones, one could not possibly say that the evidence was relevant to both cases.
KIEFEL J: You are going to expand on that, are you?
MR KELLY: Well, evidence of, for example, the case was – and if I can expand on it now – that there was a criminally negligent decision to operate on Mr Morris.
KIEFEL J: We understand the case that was presented and how the particulars narrowed. But you have to deal with how the Court of Appeal said that the evidence was relevant, even on the narrower ground.
MR KELLY: They deal with it very cursorily and the Court of Appeal ‑ ‑ ‑
FRENCH CJ: That may be so. You still have to deal with their reasoning.
MR KELLY: Yes. It is really at appeal book 2, page 433 and it is paragraphs [133] and [134]. The Court of Appeal reasons that “these grounds are based on” – these are about the inadmissibility of evidence that went in and the Court of Appeal reasons:
these grounds are based on the false premise that the prosecution case changed from one concerned entirely with proving that the appellant had performed the actual surgery negligently –
That was not correct. That was never correct –
to one concerned only with proving that the appellant should not have operated.
That was correct, but the false premise is actually one that the Court of Appeal has committed. At [134]:
There was, in fact, little difference in the evidence admissible in each of the prosecution cases under the different sets of particulars.
FRENCH CJ: This all follows their Honours’ comparison of the superseded particulars with the final particulars in the previous four or five pages.
MR KELLY: Yes, but, your Honour, there is nothing that comes out of the Court of Appeal reasons which explains why, for example, if you look at Mr Morris, why a decision to operate – we can understand why a decision to operate on him was thoroughly reprehensible because of his health and the decision was say, unnecessary, but it is completely impossible to understand why evidence of inadequate post‑operative care of Mr Morris and the mis‑positioning of a nasogastric tube, and all the things that happened to him afterwards is somehow probative of a decision being thorough reprehensible, unless they were foreseeable. Then that raises issues of foreseeability, which were never put to the jury.
KIEFEL J: The prosecution, I think, on the application for discharge suggested that they are relevant to causation.
MR KELLY: Well, your Honour, in a sense say all of these sequelae went to causation, but you should have had the ability to make an objection to evidence that went well beyond causation and was more prejudicial than probative. When I say that can I say that the experts gave evidence that the operation should not have been performed and the patients died as a result of the operation. Well, that was enough on causation. We did not need to hear about the 24 days of Mr Morris suffering in hospital and people criticising Dr Patel’s behaviour to establish causation. It was just graphic and prejudicial so it would have been ‑ ‑ ‑
HAYNE J: Well, can we explore that a little further by reference to the particulars, the original draft particulars as they appear at 6054 and following in volume 15? Can I draw your attention especially to page 6058, paragraph 23? Paragraph 23 is an allegation of causation. Death was caused by (a), (b) or (c) or some combination; performance of the procedure, manner of performance of the procedure, “post‑operative care”. So at an early stage of the prosecution case it was that this man died. His death was caused by any of, or a combination of, the fact of the surgery, the manner of its performance or what happened after surgery. By contrast, when you go to the final particulars at 6101, 6102 there is, I think, no allegation of causation, beyond what is encompassed by paragraph 2, “died as a consequence of”.
MR KELLY: Sorry, your Honour, what was the page number you mentioned?
HAYNE J: Page 6101 is the revised particulars or the final particulars, in respect of Morris, is it not?
MR KELLY: Yes.
HAYNE J: There is, I think, no allegation of causation there, beyond what is encompassed in paragraph 2.
MR KELLY: That is correct.
HAYNE J: Was it an available course for the prosecution at this trial to begin the trial on a footing that said, “Look, whether you look at the fact of the procedure, the manner of its performance or what was done to this man post‑operatively, it was the accused whose conduct caused his death.” Was that a course of proceeding that was open to it on the indictment as made?
MR KELLY: With respect, no. Sorry, the indictment just alleged manslaughter, a charge of manslaughter against him, but there had to be a connection between his gross incompetence and the death. I mean there had to be causes of the death. So what we had was a lot of evidence of incompetence and a lot of evidence of various causes of death, and not a connection between them.
HAYNE J: Was it a course open to the prosecution at this trial to frame its case on the footing that it had to exclude, beyond reasonable doubt, the possibility of supervening cause constituted, for example, by deficient post‑operative care?
MR KELLY: That is correct, your Honour, but if the revised particulars had been given earlier when they should have been, as we say, we submit, one of our complaints is that the accused may have admitted causation and relied on defences.
HAYNE J: But the accused man was not required to and not in the least required to give any indication of his answer, beyond the general joinder of the issue constituted by his plea, was there?
MR KELLY: That is correct, but he could still have admitted causation.
HAYNE J: Sure, but is a possible point of view that having regard to the way in which the evidence had been led and, most importantly, having regard to the way in which the accused man had, through his counsel, cross‑examined the witnesses, that the possibility of supervening cause had dropped away, leaving the Crown in a position where it could, at that stage of the trial, after evidence had closed, say to the jury, “It is only a question about the decision to operate”?
MR KELLY: Well, the answer is yes, but it was, we say, too late because so much prejudicial evidence had gone in. We say that in establishing causation there is no need to blacken the character of someone by welters of prejudicial evidence, which is what the judge saw the trial as becoming. I mean, the problem with the narrowing of the particulars was that by the time they were a vast improvement, they were coherent, but the problem was all the mud, so to speak, had been slung before the jury by that stage.
Your Honours, could I deal with the reasons on day 44. His Honour dismissed the application for discharge and that is at volume 8 at 2977. It starts at line 10 and goes on to the next page. So on day 44 the defence applies to discharge the jury, based upon new particulars and the learned trial judge delivers an ex tempore judgment and he makes a point on page 2977 at line 14 - and I take the Chief Justice’s point about legal coherence and so forth - but he does actually say in his reasons:
In some instances, many. More to the point, all particulars largely lacked legal coherence.
So that was part of his reasoning process. He says:
In contrast to the old, the new are sensible enough. The new particulars have provoked an application to discharge the jury. The primary ground in support of the application is that much of the evidence that has been adduced in the trial is not admissible on the case propounded by the new particulars. It is unfortunate, to say the least of it, that thoughtful particulars emerged only yesterday –
I will not keep reading. Just so you know to be fair, at line 40 his Honour does justify why some of that evidence might be relevant. It is not really clear what he means by that, with respect, because when the accused operated on Mr Morris he had not yet operated on Mr Phillips and Mr Kemps and Mr Vowles. For example, when he operated on Mr Kemps he had operated on Mr Morris, but it was unforeseeable, so the experts said, that there would be post‑operative bleeding that could not be stopped. So it is not clear why these cases are relevant to each other, in the way his Honour says. His Honour then deals with prejudice at page 2978, where he quotes from The New Wigmore. He sets out three propositions. He says at line 25:
These kinds of risks might be thought to arise here. But the fact of the matter is that the evidence which is now said to be inadmissible in the light of the particulars was, with very limited exception, not objected to.
The problem with that is various, but one of the problems is it neglects the fact that if you had had proper particulars you would have had the opportunity to object on the basis of proper particulars and the judge was conceding in his reasons they were not proper. Your Honours, we rely on the decision of Johnson v Miller of this Court and, in particular, the passage from Justice Evatt. Johnson v Miller (1937) 59 CLR 467 at 497 and that has been quoted with approval in other judgments of the Court. But his Honour did say:
The court possesses an inherent authority to require that the particulars of a charge shall be furnished . . . It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him . . . It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance –
Then the words of this Court in Wilde v The Queen (1988) 164 CLR 365 at 372, the majority judgment, Justices Brennan, Dawson and Toohey, are apposite. Their Honours said:
the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental.
We would submit that in such a case it does not matter where the strength of the prosecution case is and we rely on the fact that the proviso will not be engaged, just because a prosecution case is strong, if the process is seen to have fundamentally miscarried.
Can I just give your Honours a reference to Nudd v The Queen (2006) 80 ALJR 614 at pages 617, 618 paragraphs [6] and [7] - that is a judgment of the Chief Justice. We also rely upon the judgment of this Court in Weiss at paragraph 43. But the Chief Justice in Nudd made this point and I quote from paragraph [6]:
there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant.
We say this applies here because it is speculation as to what would have happened if the particulars had been delivered properly or proper particulars had been delivered and the accused had had his rights to make the decisions in relation to them.
FRENCH CJ: I might be revisiting Justice Hayne’s questions to you here, but let us assume that right from the outset the case as particularised was confined to breach of duty, the purposes of 288, constituted by the decision to perform and the performance, as distinct from the way in which the surgery was performed, putting aside the arguments about construction. In relation to the question of causation, the Crown would have to prove that the decision to perform the surgery and the performance of the surgery irrespective of how it was performed, caused death. Is that right?
MR KELLY: Yes.
FRENCH CJ: Now, is it an approach open to the Crown in those circumstances to put before the jury all the evidence relevant to the causation of death, all the factors that might have played a part, such as post‑operative bleeding, and still argue “We have put before you what happened to this person, we say that stemmed from and was caused by the decision to perform this surgery”?
MR KELLY: Yes.
FRENCH CJ: That would be a fair approach by the prosecution, would it not?
MR KELLY: Yes, if causation is an issue then the Crown is entitled to prove causation, I accept that. But there is a limit to ‑ ‑ ‑
FRENCH CJ: I mean, there is a certain artificiality about, as it were, separating out the – imagining some sort of counterfactual in which nothing else went wrong and the surgery was performed.
MR KELLY: Yes, and your Honour, with respect, although I am agreeing with you there is a limit – I have to qualify it because there is a limit to how far the Crown would go. You would be entitled to object to evidence if it was more prejudicial than probative and also, the accused may have decided under those narrow particulars to give evidence and he may have decided to admit causation and attempt to raise a defence under section 282 or section 23, so he comes back to what we originally said, he may have had a differently constituted trial.
Your Honours, could I take you to a passage which I would like you to actually go to - a decision called R v Carr (2000) 2 Cr App R 149 at 157. It is in our list of material at No 7. It was a case far less complicated than the present case. It involved the changing by the prosecution of a case concerning a karate kick that killed someone to a punch that killed someone. At page 157 the Lord Chief Justice says this ‑ ‑ ‑
HEYDON J: The letter D?
MR KELLY: Letter B, yes your Honour. It is relevant in our judgment. Could I ask your Honours to read that passage down to the end of letter E. Then, your Honours, could I take you to the case of S v The Queen (1989) 168 CLR 266 which is No 10 on our list. Can I take you to page 274, the judgment of Justice Dawson, about point 6 on the page, where he says:
In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial –
and just to finish that point off, could I take you to the case he refers to which is Radley (1974) 58 Cr App R 394 at 403 and that is No 9 on our list of authorities. It was the criminal division of the Court of Appeal. Lord Chief Justice Widgery at page 403 - it is a passage about point 3 on the page:
On the other hand this Court shares the view expressed in some of the earlier cases that amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.” I take that to be the most modern statement on the principle and one on which we should act.
Your Honours, I am conscious of time, could I move to a new topic which is the topic of the Oregon order. Your Honours, the Oregon order loomed large in the opening and closing addresses of the Crown and in the evidence. The trial judge gave a specific direction about what use it could be put to at appeal book 1 at pages 140 to 142. His Honour starts with the Oregon order on 140 at about line 18 and then at the bottom of 141 his Honour directs the jury:
The terms of the order can only be used by you in the specific ways I now direct –
and if you go over to 142 you get two bases on which it can be used:
(1) in considering the weight to be attached to a patient’s choice to undergo a procedure; and
(2) its requirements might be thought to suggest that the Accused had reason to reflect, before commending major surgery to patients, on any pertinent deficiencies there may have been in his knowledge and aptitude.
One of the important problems with the use of the Oregon order is that it was misinterpreted by the Crown and it a misinterpreted version of it was put to the jury. Evidence which is incorrectly described, in our respectful submission ‑ ‑ ‑
FRENCH CJ: This was the conjunction versus the disjunction?
MR KELLY: Yes. It had an important effect, though, your Honour, in the context of the case and it is not possible to speculate, with respect, what the jury would have made of the evidence if it had not been admitted, in particular, had not been admitted with a misleading and incorrect interpretation on it, excluding the more benign and open interpretation. No evidence was called by the Crown from anyone at Oregon to explain what Dr Patel had done. Indeed, the order was a consent order…..which Dr Patel gave up the right to a contested hearing against himself and settled the matters.
You can find the order at appeal book 15 at page 6044. Your Honours, can I tell you there is an amendment to it at 6049 which is not material but the gist of the order is at 6043 to 6047. On its terms the board proposed to take disciplinary action against Dr Patel based upon alleged, not proven, acts and I draw your attention to page 6043, paragraph 2 at about line 30 and the matter was settled - that is at page 6044, paragraph 3. So, it is a consent order.
Dr Patel stipulated that he had engaged in conduct described in paragraph 2 violating a rule of unprofessional conduct. When we go to paragraph 2, back on 6043, the conduct he admitted to was:
gross or repeated acts of negligence in the practice of medicine.
We obviously emphasise the conjunction “or”. It does not say merely “gross acts” or “gross repeated acts”. It is therefore equivocal and could mean repeated acts of minor negligence. It also has a problem in that it recites Dr Patel admitted to having made “surgical errors”. No evidence was led as to what surgical errors he had made but it is clearly possible to interpret them as the performance of surgery. Since the case was not about botched surgery, surgical errors would have been irrelevant to this case. The judge has summed it up incorrectly, with respect, the learned judge, at appeal book 1, page 142, line 30, where his Honour says this:
the Accused admits to having been grossly negligent in surgery in Oregon –
BELL J: But that is in the context of his Honour saying it would be quite wrong to use it for that purpose.
MR KELLY: No, your Honour, with respect, that is in the context of his Honour summarising what the order says.
BELL J: I am sorry. I may be misreading. His Honour starts at about line 19:
The order contains acknowledgments by the Accused of having performed operations in Oregon that involved gross or repeated acts of negligence on his part.
Then he says:
The limited purpose to which you may put the Oregon order means that it would be quite wrong to suppose that as –
I understand:
that as the Accused admits to having been grossly negligent –
I am sorry, I understand.
MR KELLY: Yes, thank you, your Honour.
BELL J: Yes.
MR KELLY: So that was quite incorrect. We believe that possibly the judge was led into error by the Crown’s repeated misstatement of this order and misuse of it in the final address. If you could go please to appeal book 8 at 3066, lines 40 to 50. In the final address to the Crown, it is put to the jury almost as if Dr Patel had a hidden, sinister secret. It is said to the jury at line 40:
But Dr Patel knew one more fact that the others – that’s Keating and Carter and so forth – didn’t know. He knew about the order made in Oregon. Because of his history of gross negligence it was in the public interest that he not perform these operations without a second opinion.
That was wrong and misleading and unfair to the accused. If the Crown wanted to prove that Dr Patel had engaged in a history of gross negligence, it had an obligation to do so and this implied – in the context of the case – that he had a history of criminal behaviour in Oregon because with the Bateman test, and the idea of gross negligence, the idea that he has committed acts of gross criminal negligence in Oregon was as much as saying he has done criminal things over there.
BELL J: Well, that might be putting it high. One does not know what are said to be the outcomes or what the provisions there are.
MR KELLY: That is true, your Honour. But, that makes it probably - with respect, we would say that makes it worse. Your Honours, the misuse of the order was repeated by the Crown in its closing address at appeal book 8, page 3143 at lines 1 to 10. The prosecutor says this at line 1:
you can understand more clearly the sense in which the word “stipulated” is being used. “The licensee understands he has a right to contested hearing”, and so forth . . . this conduct violated those sections. And those sections, I don’t think there is any dispute, refer to gross repeated acts of negligence, and so on.
So that was also quite incorrect. The conjunction “or” was left out. That inaccuracy distinctly favoured the Crown and the Oregon order was not of any incidental or minor significance to the Crown case. It was very material. In the opening, its significance was described as proving why Dr Patel was the wrong surgeon to do the operations in question and I can take you to appeal book 3, page 564, lines 25 to 40. So at 25 in the opening it said:
Now, throughout this I have been at pains all this time to tell you he was the wrong surgeon but I haven’t told you why yet. Just why that is is something I’m coming to now. He was trained as a surgeon in the United States. Prior to coming to Queensland in 2003 he was in Oregon. His career hit something of a hurdle in Oregon. This is an order of the Board of Medical Examiner ‑ ‑ ‑
HAYNE J: Well, I think we can read it, Mr Kelly. What is the point being made? I had understood from your summary of your argument this morning that your point about the Oregon order was a point about admissibility of the evidence. Have I misunderstood that?
MR KELLY: No, that is correct, your Honour, sorry.
HAYNE J: What are we getting out of the opening then that bears upon whether the evidence was admissible?
MR KELLY: We are getting a misstatement to the jury and prejudice. The subsequent use of the order by the Crown, in light of the opening, was highly prejudicial.
KIEFEL J: Was the order tendered in evidence? The order was tendered in evidence?
MR KELLY: Yes, it was, your Honour.
KIEFEL J: Without objection?
MR KELLY: Yes.
FRENCH CJ: There was a debate about relevance, was there not?
KIEFEL J: Was any direction sought before the – redirection sought before the jury in relation to ‑ ‑ ‑
MR KELLY: No. There was a pre-trial hearing about the Oregon order where its admissibility was objected to and that defence was unsuccessful. It was decided it was relevant ‑ ‑ ‑
KIEFEL J: I see.
MR KELLY: ‑ ‑ ‑ and the defence did not renew its application. The other point is – his Honour said there were two reasons you could use the order. One was to deal with the consent and the other was the ability ‑ ‑ ‑
HAYNE J: Was this a complaint about misdirection concerning the Oregon order?
MR KELLY: Yes.
HAYNE J: All right. That is the first I have heard of it, I think. What is the complaint?
MR KELLY: When his Honour says to the jury that there are pertinent deficiencies that Dr Patel ought to have reflected on, no one can know what those pertinent deficiencies are because no one has proved them. We have said this in our submissions – your Honour, it is not possible the prosecution could prove beyond reasonable doubt that Dr Patel had not reflected upon the Oregon order. I mean, he had consented to it which is some insight into the fact that he had reflected on it. It is also relevant in the evidence – could you please look at appeal book 4.
FRENCH CJ: Now, this is all within the framework of paragraph (xiv) of your particulars of the miscarriage ground in your further amended application for special leave.
MR KELLY: Could I just take those up please, your Honour?
FRENCH CJ: No basis for the admission of the Oregon order before the jury, even marginal relevance highly prejudicial, misinterpreted by the Crown and the trial judge – it reads a bit like a submission rather than a ground.
MR KELLY: Yes. Your Honour, the order was elsewhere misused in the evidence by the Crown at appeal book 4, page 1436, at lines 35 to -42. Dr Carter, who was the head anaesthetist at the hospital, was being asked questions by the prosecutor. At line 35, he is asked the question:
If at the time you knew that he’d –
That is Dr Patel:
been found to have committed repeated acts of – sorry, gross and repeated acts of negligence, and as a result of that he’d been told in Oregon not to perform oesophagectomies without a second opinion . . . would you have gone ahead?
No.
So, the jury heard, at least, that he had been guilty of gross and repeated acts of negligence. Your Honours, can I move to the next topic which is the ventilator evidence? A particular category of evidence that we complain about was the admission of what we call the “ventilator evidence”. The Court of Appeal decided correctly that it was irrelevant – it decided that, effectively, it only occupied a small space in the trial, so its prejudicial effect would not have been great – or would have been minor. We submit those reasons are very unconvincing because the nature of the evidence was so graphic and important.
HEYDON J: While we are on the ventilator evidence, in your written submissions you give a reference to where the Crown referred to it in its closing address. I think that might be a wrong reference. Could you get one of your juniors to find out whether it is the wrong reference? If it is, what ‑ ‑ ‑
MR KELLY: Yes, your Honour.
HEYDON J: It is footnote 41 on your page 18.
MR KELLY: Thank you, your Honour. In the course of the trial, eight witnesses gave evidence relating to – at one stage or another – the ventilator evidence. So it was hardly insignificant in terms of the number of witnesses the Crown called. On this appeal, the Crown submits the Court of Appeal was incorrect in treating the evidence as irrelevant and you will pick that up in the Crown submissions.
The very prejudicial effect of this evidence can be gleaned by looking at the evidence of Nurse Brennan. If your Honours look at appeal book 6, please, at pages 2346 to 2347. The passage on page 2346 starts about line 10 and it goes on to 2347 at line 20 – if I could ask your Honours, please, to read that evidence? Your Honours, we submit that that evidence, on any view, taken at its least pejorative status, shows that Dr Patel was prepared to ignore hospital rules that are in place for good reasons and show a callous disregard for the value of human life and to direct that the rules be broken and to, thereby, prematurely end a human being’s life in order to fit in with his holiday schedules. It defies, we submit, rational explanation that a jury would not have been very deeply affected by that evidence.
If this had any relevance to his decision to operate – and it had none – this is the operation on Mr Kemps – its prejudicial effect was acute and pernicious and the court should not have expected a jury of lay people to be indifferent to it. But the judge summed up the case on Kemps on the basis that this decision could not possibly be relevant because - it is not suggested that Mr Kemps died because the operation was performed hastily or because the ventilator was turned off on a patient improperly. It was actually Dr Carter who made the decision to turn off the patient’s ventilator which then permitted the operation on Mr Kemps to proceed and no one suggested Dr Carter did not follow proper protocols. So all it did was collaterally damage Dr Patel’s reputation. We submit that on this basis the ventilator evidence was very irrelevant.
When the Crown Prosecutor confirmed – it was raised by the defence counsel and then it was brought to the attention of the trial judge that this evidence had gone in at appeal book 8, page 2954 and his Honour’s natural reaction at line 21 – is we would say a very reasonable, balanced reaction. He says:
Well, that’s pretty nasty stuff before a jury.
He had not realised that it had gone into evidence but it had. He then says at 2954 at line 26:
The idea that the jury should be left to think that the accused set about hastening the death of a patient so that he didn’t have to postpone his holiday is material likely to be accorded by a jury undue significance. Well, just tell me, what was the issue to which the turning off of the ventilator ever related?
But he understood its prejudicial effect. It is correct. Your Honours are going say there were some special directions sought about it by the defence. There was not, and, as I have answered, it was not objected to. But it was highly prejudicial. Your Honours, can I deal with two complaints made against us ‑ ‑ ‑
KIEFEL J: Was it also a matter dealt with in the pre-trial procedures?
MR KELLY: Yes.
KIEFEL J: Is that what Mr Byrne is referring to at line 35, a ruling in the pre-trial procedure?
MR KELLY: Which page, your Honour?
KIEFEL J: At 2954.
MR KELLY: Yes, he is referring to Justice Peter Lyons’s pre-trial ruling, your Honour. Your Honour, the defence is criticised for two substantial matters. One is failing to object to a lot of evidence and another one is not seeking special directions to the jury. Can I just deal with those in that order? With the failure to object to evidence, the first point is it is a bit, with respect, meaningless to say the defence did not object on the basis of ambulatory particulars, when it was known that the particulars were going to change as the trial judge had indicated and the final particulars were very different and a vast improvement on the particulars on which the trial was run.
The second point is the defence never had the chance to object on the final case. It never had a chance to object to issues about post‑operative care and about incompetent surgery, of which there are many examples. Thirdly, a lot of the Crown evidence, I think this deals with your Honour the Chief Justice’s point. When we talk about legal coherence and so forth we can understand a lot of the original particulars as alleging very serious things against Dr Patel. A lot of the evidence that went in against Dr Patel was about the fact that he had a bad character and that he had a dysfunctional attitude in the hospital; that he screamed at nurses.
During the operation on Mr Kemps it was said that he told doctors to remain tight lipped about what happened. The doctors did not corroborate that, but the nurses gave that evidence about him. So there was a lot of evidence that was potentially relevant on the character or the lack of good faith issues on the broader particulars that were not relevant later.
We would submit that, with respect, the Crown cannot have it both ways. If the judge on day 44, as he ruled, found that the particulars were incoherent and allowed for a mudslinging exercise, then how would the judge – I ask this rhetorically – have decided questions of admissibility on particulars that he found to be incoherent and lacking sense, and unintelligible, as he called them?
Further, on day 10 the defence did ask for the trial to be stopped and proper particulars to be provided. That application was refused. Given the fact that it was refused, it is a little hard to blame the defence for failing to admit to the evidence going on the many alternative cases being run against them.
KIEFEL J: Did his Honour refer to the ventilator evidence in his summing‑up?
MR KELLY: His Honour?
KIEFEL J: Yes.
MR KELLY: No. Your Honour, with the special directions to the jury, it is said against the appellant no special directions were sought. There is a short answer to that, with respect. The learned trial judge by day 44 and following did not really have the opportunity to make special directions which could have cured the problem that had arisen. His own view was that drawing attention of jurors to such evidence would highlight its prejudicial effect. So he preferred not to deal with prejudicial evidence because he said if I do so it will just make it more prejudicial.
Against that I just ask your Honours to view that in the proper context. It would have been an extraordinarily difficult job for the trial judge after that length of trial to direct the jury to ignore what were now voluminous and irrelevant passages of evidence. The process would have been more fraught because with expert witnesses he would have had to dissect parts of the expert evidence from other parts. So some experts gave – Dr Jamieson, for example, who said that an oesophagectomy should not have been performed.
He also gave evidence that splitting an oesophagus during the course of the operation contravened the principles of cancer surgery because you could spill cancer cells. The judge would have had to say ignore that bit of Dr Jamieson, you can look at this bit of Dr Jamieson. It would have been too hard. The judge’s summing‑up had a further problem which exacerbated this and it is at appeal book 1, page 126. When I say “problem”, it is not a problem I criticise the trial judge for. What the trial judge said at page 126 was entirely orthodox. It just has a very difficult and problematic effect in the context of the trial that has gone off the rails. At line 20 he tells the jury:
You are to determine the facts of the case based on the evidence that has been placed before you . . .
You will then apply the law, as I shall explain it to you . . .
I may comment on the evidence if I think it will assist you in considering the facts.
While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence.
You should ignore any comment I make on the facts unless it coincides with your own independent view.
You are the sole judges of the facts.
That is orthodox but in a case where we have had what the judge calls a “welter of prejudicial material” that is saying to the jury you have free reign to go and look at what has happened in the trial and consider what evidence you think, even if I have not referred to it and even if you disagree with me.
Your Honours, the Crown submits that what we have put in our schedules to our written submissions, all of that evidence was admissible. We submit that cannot be right. If you could go to our written submissions at schedule A, dot point 3. If you could read that evidence at dot point 3, we submit that has nothing to do with relevance of the decision to operate on Mr Morris and no one ever asked the jury to consider whether the mis‑positioning of that tube – the nasogastric tube – after the operation was foreseeable or should have been foreseen by Dr Patel when he made his decision.
If you go to page 2 of schedule A and look at dot point 2 – I am sorry, page 2 of Schedule A under “Mr Phillips” dot point 1 there is an allegation about the inability of Dr Patel to obtain a central venous access during an operation. Dr Allsop, an expert, gave evidence that this was indicative of “surgical incompetence” and that this was a “bread and butter” issue for a surgeon. That is at appeal book 7, page 2417, lines 8 to 18.
Given that Mr Phillips died of potassium poisoning, no one said that that had any effect upon his death. If you go to Mr Phillips dot point 7, you will see that evidence was given by Dr Allsop and Dr Jamieson who were expert witnesses. They said “It was not competent” by Dr Patel “that the oesophagus was torn”. That was not relevant to the decision to operate. If you go to schedule A, page 3 at dot point 3 – sorry, dot point – if you look at the third dot point from the bottom of the page:
Evidence was given by Nurse Hoffman –
I am looking at page 3 –
that Dr Patel was angry at Nurse Hoffman for telling the truth about Mr Phillips’ declining condition to Mr Phillips’ family.
Then the next dot point is:
Evidence was given by Nurse Hoffman that Dr Patel conducted himself in a dysfunctional way in the Intensive Care Unit -.
None of this has any relevance to anything.
HEYDON J: The Crown says it is some form of admission in the nature of a lie or flight or distraction of evidence. I am not aligning myself with the submission but that is what they say about why it is relevant.
MR KELLY: It is hard to see how it would be, your Honour, because the evidence was that Dr Patel went to see the relatives later and told them that he had not been able to stop the bleeding and the patient died soon after this. It is very hard to see how it was a cover up. There was evidence from Nurse Cooper. If you look at page 4 of schedule A, the first dot point said:
Dr Patel screamed at nurses because they had told the truth about Mr Phillips’ declining condition to Mr Phillips’ mother and embarrassed Dr Patel -
That is irrelevant. If you look at page 4, schedule A, in relation to Mr Kemps, dot point 5, Nurse Zwolak gave evidence that:
in relation to Dr Patel’s second operation on Mr Kemps . . . “we scooped up kidney basin after kidney basin [of blood] out of the patient”.
That was just graphic and prejudicial. Then the next dot point is Nurse Evans gave evidence:
that Dr Patel had a very uncaring look about him when she confronted him about the death of Mr Kemps -
If I go back up two dot points so it is under Mr Kemps fourth dot point:
Graphic evidence was given by an operating theatre nurse that, during the operation, there were blood clots all over the floor, and footprints of blood through the operating theatre ‑ ‑ ‑
BELL J: The alternative case, with respect, to Mr Kemps, that was to do with delaying in bringing Mr Kemps back for surgery?
MR KELLY: Yes, your Honour.
BELL J: Was there any suggested relevance to the extent of the bleeding at the time?
MR KELLY: No, it was that there was evidence relating to the delay in bringing him back to operate on him, but Dr Allsop specifically said that that evidence about the amount of blood was irrelevant, he said. But, I mean, the idea that you have a nurse giving evidence about people walking through footprints of blood in an operating theatre is completely likely to leave a jury feeling queasy, uneasy and concerned.
Your Honour, the other thing is the judge noted that when relatives were giving evidence, and there was no real reason for the relatives to be called on the narrow case, but you know that when relatives were giving evidence of their relatives’ situation in hospital, you notice that the jury were taking careful notes, and that is appeal book 8, 2953, line 10. Your Honour, this is in fairness, it is a credit to his Honour that he made this comment, but this is at day 44, the day of the discharge application. But he does record quite faithfully, he said – sorry, line 10 ‑ ‑ ‑
KIEFEL J: Sorry, which page is this?
MR KELLY: It is page 2953, your Honour. He says:
That’s true. In a jury trial it is a concerning feature. And perhaps I should record that I did happen to notice that many members of the jury made notes of evidence of family members.
MR BYRNE: Indeed.
Then his Honour says, with intellectual honesty, with respect:
Frequently about matters that might have seemed to lawyers to have little or no relevance to the case but which might be thought to engage the emotions rather than the reasoning faculties.
Now, your Honour, we say that the – finally, your Honours, as part of my submissions, I just would like to briefly deal with the case of Mr Grave and the case of Mr Kemps. There were two cases put by the judge in relation to Mr Kemps. He said they were not alternatives. He said the jury could convict on either. We do not know which one they convicted on. Can I just concentrate on the first one and show you how unsatisfactory it is in terms of the way this trial developed.
It goes like this. The evidence was Mr Kemp should not have been operated upon because it was unnecessary and he was too frail. Now, if I could take you to appeal book 1, page 219, Dr Smalberger, who was a physician employed at Bundaberg Hospital said that Mr Kemps was not going to survive his oesophageal cancer. The same page on 219, Dr Smalberger considered “the surgical option valid for Mr Kemps”. That is about line 42.
HEYDON J: He said he considered it valid, not invalid.
MR KELLY: Did I say “invalid”, your Honour?
HEYDON J: Well, I heard you were saying that. I might have been mishearing.
MR KELLY: At page 220 Dr Allsop gave evidence that his Honour summarises correctly at line 50 that an oesophagectomy was an appropriate treatment for Mr Kemps. Sorry, that is line 1. Then Professor Jamieson’s thought at line 38 that Mr Kemps was:
as a candidate for an oesophagectomy, “very much on the brink of . . . whether you would operate on him or not”.
Professor Jamieson has said, and he adheres to those views that:
An oesophagectomy was an appropriate treatment for Mr Kemps -
Then if I go to the next page at 221, at line 10:
Professor Jamieson, however, said that those views related to surgery performed in Brisbane.
Can I just pause there? Nothing suggests that Mr Kemps died because of anything that happened in Bundaberg as distinct from Brisbane. If we could go to 224, I have already shown you this, your Honours, line 25:
The prosecution does not contend that the Accused is criminally responsible for the death because Mr Kemps was bleeding after the oesophagectomy.
Understandably so. Surgical bleeding at an oesophagectomy does not, of itself, establish incompetence.
Nor is it suggested that the Accused is criminally responsible for the death just because he did not stop the bleeding when, eventually, he did revert to Mr Kemps.
So, no one said Mr Kemps had to be transferred to Brisbane to save his life. But the evidence about Mr Grave, which was about an oesophagectomy, could only have been relevant to really Mr Kemps, and the evidence about Mr Grave was about a very stormy, long, post‑operative, complicated situation which started in Bundaberg which involved an argument between Dr Patel and other doctors about whether he should be transferred to Brisbane and then Mr Grave’s eventual transfer to Brisbane. He died some time later but not because of the surgery.
The point is, Mr Grave’s evidence had nothing to do with Mr Kemps’ dying or was causally related to it. So the evidence of Mr Grave, we would submit, is just propensity evidence, which put Dr Patel in a bad light as a surgeon in a post‑operative way, that is, in the way post‑operatively that he was treated and in the way that Dr Patel resisted, so it is said, the opinions of other doctors that Mr Grave should have been transferred earlier to Brisbane.
BELL J: The first way the prosecution put its case was that it may have been reasonable to conduct the procedure on Mr Kemps because it had a sort of palliative value, but not reasonable to conduct it at the Bundaberg Hospital. Is that right?
MR KELLY: Yes, that is right.
BELL J: But you say nothing suggested that there was a causal link between the conduct of the procedure, Mr Kemps’ death and the fact that it was done at the Bundaberg Hospital. Is that the point?
MR KELLY: That is correct.
BELL J: The other patient, whose name I forget, who ‑ ‑ ‑
MR KELLY: Mr Grave.
BELL J: No, no, no, there is another patient who was the subject of account who underwent such a procedure.
MR KELLY: Mr Phillips?
BELL J: Yes. Was the evidence concerning Mr Grave said to be relevant to Mr Phillips?
MR KELLY: No, Mr Grave’s operation concerned after Mr Phillips.
BELL J: I see. Yes, I understand.
MR KELLY: Your Honours, those are my submissions.
FRENCH CJ: Sorry, just before you sit down, what direction were the jury given about the use they could make of the evidence relating to Mr Grave? There is an account of that evidence starting at, I think, 204, in appeal book 1 and that goes on for some pages, in fact right through to the top of 210 or the bottom of 209.
MR KELLY: Yes, your Honour, all that evidence relates to the stormy and difficult post‑operative ‑ ‑ ‑
FRENCH CJ: Yes, but what was the jury told was the way in which they should approach the use of the evidence relating to Mr Grave?
MR KELLY: They were not getting any particular – your Honour, could I reflect on that? I believe the situation was that the evidence was ‑ ‑ ‑
FRENCH CJ: Was it not said to be relevant, meaning, in submissions at least, to the accused’s knowledge, or the knowledge he ought to have had of his own limitations in relation to this kind of surgery, having regard to the challenges it presented?
MR KELLY: Your Honour, I think the best answer I can give you is at page 205, which is at lines 39 ‑ ‑ ‑
FRENCH CJ: I see, yes. At line 40?
MR KELLY: Yes.
FRENCH CJ: All right.
MR KELLY: Thank you.
FRENCH CJ: Thank you. Yes, Mr Solicitor.
MR SOFRONOFF: Your Honours, in our submission, there are four large questions in this appeal. The first is whether the trial judge correctly instructed the jury as to the substantive law. The second is, how we understand the case against us, whether inadmissible evidence was admitted by reason of one of two things or both things, by reason of the progress of particulars which rendered evidence admissible when admitted, inadmissible later, and alternatively by reason that such evidence should have been excluded at any time as irrelevant or prejudicial, lacking sufficient cogency and being prejudicial. The second issue is the question of inadmissibility of evidence. The third question is whether if the answer to either of those questions is in the affirmative, whether there has been a miscarriage of justice.
I will deal with the question of the applicable law and the question of the progress of the particulars and the significance of that progress. My learned friend, Mr Davis, will deal with the admissibility of the evidence, and the proviso. Before embarking upon the substance of my submissions, could I make these seven assertions as a platform, which we apprehend would underlie our submissions?
The first proposition is that from first to last, two main factual issues engaged the parties and they were, firstly, whether the appellant was negligent in performing the operations, and secondly, whether the operations, and therefore the negligence, caused the death or grievous bodily harm as the case may be.
The second proposition is that from the very beginning until shortly before counsel’s address to the jury, causation was in issue in all cases. Later, that position was watered down a little bit by defence counsel. But at the time that the evidence was opened at the beginning of the trial, and when it was given, and when the particulars were given, causation was in issue in all cases.
Thirdly, the legal basis to support the two major issues that are identified to section 288 was the basis which had been advocated by the events, and by the prosecution. Fourthly, evidence that the appellant was negligent in doing the operations and that his negligence caused death and grievous bodily harm was overwhelming, and no contrary evidence was called or elicited.
Fifthly, with three exceptions which I will identify, no evidence was objected to when it was led. The exceptions are the evidence relating to Mr Grave, the evidence relating to the ventilator and the evidence relating to the Oregon certificate, which were each the subject of pre-trial applications in which the relevant judge hearing the application ruled that the evidence was admissible.
Sixthly, with very few exceptions, the evidence now pointed to as objectionable – when I say now, I mean in this appeal before this Court – was not ever objected to at the trial or in the Court of Appeal, that is to say, the evidence that was the subject of controversy at the trial is not the evidence that is now identified as evidence that should have been either not admitted or which formed the basis for the application to discharge the jury.
What we have done in an endeavour to make that part of our submissions more efficiently conveyed is to look at the schedule which counsel below handed up to the judge on the occasion that he applied for the jury to be discharged, in which schedule he identified the evidence which he contended had been let in but which now he said was inadmissible, or rather, irrelevant and prejudicial because of the new particulars.
We have looked at that and we have compared it to the evidence objected to in Schedules A, B and C of our opponent’s written submissions, and we have highlighted in green the references to evidence which cannot be found in the evidence which was the subject of controversy at that stage - would it be convenient if I handed up a copy of Schedules A, B and C with the green highlighting? How many should I hand up, your Honours? I have got ample, but just in terms of the record – of course, five, but should I hand up any more?
FRENCH CJ: Perhaps you can make it seven.
MR SOFRONOFF: Seven, your Honour. I will come to that in due course, your Honours, but our analysis shows that very little evidence now complained about was complained about at any point below. The evidence we have highlighted is complained about now, but was not complained about below. That which we have not highlighted – sorry, your Honour?
HEYDON J: Green means?
MR SOFRONOFF: Green means not objected to below at any stage.
BELL J: Can I just take you to page 2, about the middle of page 2, highlighted in green are the words, “Dr Patel caused considerable”, and that is where the green highlighting ends.
MR SOFRONOFF: I am sorry, the whole line should be, of course.
BELL J: The whole line, is it?
MR SOFRONOFF: The whole line, yes.
HAYNE J: When you say “not objected to below at any stage”, you are saying, not objected to at trial, not the subject of separate submission in the Court of Appeal, are you?
MR SOFRONOFF: Yes, because in the Court of Appeal, what the appellant did when asked by the Court to identify the objectionable evidence was to hand up the schedule relied upon at trial. The final proposition which I would wish to assert is that no complaints were made about any directions to the jury as part of the summing‑up, and indeed, the learned trial judge provided both sides with the draft. There was discussion about it. The summing‑up as delivered was delivered with the assent of both counsel, and no complaint was made.
FRENCH CJ: Mr Sofronoff, that might be, with that overview, a convenient moment.
MR SOFRONOFF: Thank you, your Honours.
FRENCH CJ: We will adjourn until 10 o’clock tomorrow morning.
AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 JUNE 2012
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Expert Evidence
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Procedural Fairness
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