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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Patel v The Queen

Details

AGLC: Patel v The Queen [2012] HCATrans 134
Case: [2012] HCATrans 134
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Mr Patel against his conviction for the offence of obtaining financial advantage by deception. The central dispute concerned the admissibility of certain evidence obtained by police during their investigation.

The primary legal issue before the High Court was whether the evidence, which included a confession made by Mr Patel, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been admitted into evidence by the trial judge. This involved an examination of the circumstances surrounding the confession and the application of the exclusionary rule under s 138 of the *Evidence Act 1995* (Cth).

The High Court held that the confession was obtained in contravention of the *Crimes Act 1914* (Cth) because Mr Patel was not cautioned in accordance with the requirements of that Act. However, the Court ultimately determined that the admission of the confession, despite the contravention, was not an error that warranted setting aside the conviction. The majority reasoned that the probative value of the evidence was high and that the impropriety in obtaining it was not so serious as to outweigh that value, applying the balancing exercise required by s 138(3) of the *Evidence Act 1995* (Cth). The appeal was therefore dismissed.

Orders