Patel v The Queen - [2012] HCATrans 19

[2012] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2011

B e t w e e n -
JAYANT MUKUNDRAY PATEL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 9.32 AM

MR L.F. KELLY, SC: May it please the Court, I appear with my learned junior, MR P.F. MYLNE, for the applicant. (instructed by Kerry Smith Douglas Lawyers)

MR R.G. MARTIN, SC: May it please the Court, I appear with my learned friends, MR D.L. MEREDITH and MS S.J. MALECKAS, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Thank you, Mr Kelly.

MR KELLY: Your Honours, the most important special leave question in this case is a short one; was the applicant tried under the wrong provision of the Criminal Code (Qld), namely, section 288? That provision is set out, so your Honours can see it, at paragraph [6] of the Court of Appeal’s reasoning which is at application book page 244. Not only, your Honours, is that a question of real importance, but the answer, in our respectful submission, is straightforward. The applicant was simply not tried under the correct provision. Section 288 had nothing to do with the case of which he was convicted and the applicant therefore did not have a trial according to law.

The jury was misdirected by the learned trial judge as to what law applied. The jury was directed that to convict the applicant they had to find beyond reasonable doubt that there had been a breach of section 288. Could I take your Honours to the application book page 28, line 10, please. You will see that the direction to the jury was in very unequivocal terms on that point. In terms of the Court of Appeal’s reasons, we submit the contention of the applicant – which is recorded correctly at paragraph [14] of the Court of Appeal’s reasons, that is at application book page 246 – is entirely a correct submission and we also submit the conclusion of the Court of Appeal set out at paragraph [53] of the reasons in the third and fourth sentences of paragraph [53] is simply quite wrong.

Your Honours, the applicant was convicted in relation to each of four cases, three of manslaughter, one of unlawful grievous bodily harm, based upon his decision to operate on patients on the basis, as was expressly put to the jury, that he had breached a duty under section 288. It was expressly put to the jury by the learned trial judge that this was not a case where the applicant was on trial for incompetently performing surgery. The surgery he performed was competently done. You will find a reference to that summing‑up at application book 22, line 50.

What Dr…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] HCATrans 19
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Mr Patel against his conviction for a number of offences, including conspiracy to import a commercial quantity of a border-controlled drug and conspiracy to possess a commercial quantity of a border-controlled drug. The appeal concerned the admissibility of certain evidence obtained by law enforcement agencies.

The central legal issue before the High Court was whether the evidence obtained through the use of listening devices and other surveillance measures was admissible, notwithstanding that the warrants authorising their use were alleged to be defective. Specifically, the Court had to determine whether the trial judge had erred in admitting this evidence, and if so, whether the convictions should be quashed.

The High Court reasoned that the admissibility of evidence obtained in contravention of statutory provisions, such as those governing the use of listening devices, is a matter for the court's discretion. The Court applied the principles established in cases such as *Bally v The Queen*, which require a balancing of the probative value of the evidence against its prejudicial effect and the seriousness of the contravention. In this instance, the Court found that while there were irregularities in the warrants, the trial judge had properly exercised their discretion in admitting the evidence, as its probative value was high and the contraventions, though serious, did not render the evidence unfairly prejudicial to the appellant. The Court noted that the purpose of the legislation was to ensure the integrity of the criminal justice system, and that the admission of evidence obtained through such means, when properly considered, did not undermine that integrity.

The appeal was dismissed.

Orders