Patel v The Queen

The High Court of Australia considered appeals by a surgeon, Dr Patel, who had been convicted of manslaughter and unlawfully doing grievous bodily harm. The prosecution alleged that the appellant breached his duty of care under s 288 of the Criminal Code (Qld) by deciding to operate on certain patients, leading to their deaths or serious injury. The central dispute revolved around whether the decision to operate fell within the scope of "surgical treatment" as contemplated by s 288, and whether the trial process had resulted in a miscarriage of justice due to the admission of prejudicial evidence and a late change in the prosecution's case.

The legal issues before the Court included whether the test for criminal negligence is objective, the relevance of evidence on a revised prosecution case, and the significance of tactical decisions made by defence counsel. Crucially, the Court had to determine whether the admission of irrelevant and prejudicial evidence, particularly concerning events surrounding the operations and post-operative care, constituted a substantial miscarriage of justice, thereby precluding the application of the proviso under s 668E(1A) of the Criminal Code. The Court also considered the concept of "fundamental error" in the context of a miscarriage of justice.

The Court reasoned that while the physical act of surgery is necessary for criminal responsibility, the duty of care under s 288 extends to the pre-operative assessment and decision-making process. However, the Court found that a significant amount of evidence admitted at trial was irrelevant to the revised prosecution case and highly prejudicial to the appellant. This evidence, concerning alleged incompetence in surgery and post-operative care, and graphic descriptions of the patients' conditions, was admitted despite efforts by the trial judge to mitigate its impact. The Court concluded that the sheer volume, intensity, and repetitiveness of this inadmissible evidence, particularly when introduced early in the trial, had a profound and illegitimate effect on the jury, rendering the convictions miscarriages of justice due to a failure in the trial process.

In matter B11/2012, the appeal was dismissed. However, in matter B25/2011, special leave to appeal was granted, the appeal was treated as instituted and heard instanter, and allowed. The convictions for manslaughter and unlawfully doing grievous bodily harm were quashed, and a new trial was ordered.