R v PATEL, Jayant Mukundray (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:
CA No 169 of 2010 CA No 172 of 2010 SC No 387 of 2009
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence Sentence Appeal by A-G (Qld)
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 April 2011
DELIVERED AT:
Brisbane
HEARING DATES:
2 March 2011; 3 March 2011; and 4 March 2011
JUDGES:
Margaret McMurdo P, Muir and Fraser JJA Judgment of the Court
ORDERS:
1. Appeal against conviction dismissed.
2. Attorney-General’s appeal against sentence dismissed.
3. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – OTHER MATTERS – where the prosecution sought to obtain convictions of manslaughter and grievous bodily harm by excluding the operation of s 282 of the Criminal Code 1899 (Qld) (“Code”) – where the trial judge ruled that s 282 applied only where there had not been an effective consent such that the prosecution was obliged to prove a breach of the duty in s 288 of the Code – where the trial judge accepted that s 288 captures a case where it was wrong to undertake the surgery at all, as well as cases where surgery was done poorly – where the appellant argued that s 288 only applies in relation to incompetence in the course of surgery – whether the trial judge erred in the construction of s 288
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where defence counsel applied for an order on day 10 of a 58 day trial that the jury be discharged for failure on the part of the prosecution to properly particularise its case – where the trial judge dismissed the application – where the appellant submitted that “new medical evidence” was being called by the prosecution during the trial – where defence counsel did not object to such evidence at trial – whether the evidence produced a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the trial judge dismissed the appellant’s application for the jury to be discharged – where the appellant argued that the amendment of particulars at the effective end of the prosecution case denied the appellant a fair trial – whether there was an unfairness in the conduct of the trial – whether the trial judge erred in dismissing the application for discharge of the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the prosecution amended their particulars at trial – where the appellant submitted that the narrowing of…
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
AGLC
R v Patel; ex parte [2011] QCA 81
Case
[2011] QCA 81
Decision Date
CaseChat Overview and Summary
The appellant, Mr. Patel, appealed against his convictions of manslaughter and grievous bodily harm, while the Attorney-General appealed against the sentence. The appellant argued that the trial judge erred in interpreting section 288 of the Criminal Code 1899 (Qld), in admitting certain evidence, and in denying the appellant's applications for the jury to be discharged. The Attorney-General argued that the sentence was manifestly inadequate. The central legal issues in this case revolved around the proper interpretation of section 288 of the Criminal Code, the admission of certain evidence during the trial, the fairness of the trial given the prosecution's amendment of particulars, and the appropriateness of the sentence imposed.
The Court found that the trial judge did not err in interpreting section 288 of the Criminal Code, as it was reasonably open for the trial judge to conclude that the section applied to both cases where surgery should not have been undertaken and cases where surgery was performed poorly. The Court also found that the admission of certain evidence did not result in a miscarriage of justice, as the defence failed to object to such evidence at trial. Furthermore, the Court found that the trial judge did not err in dismissing the appellant's applications for the jury to be discharged, as the amendment of particulars did not result in unfairness to the appellant. Finally, the Court found that the sentence was not manifestly excessive or inadequate.
The Court dismissed the appellant's appeal against conviction and the Attorney-General's appeal against sentence. The Court also refused the appellant's application for leave to appeal against sentence. The trial convictions and sentences were therefore upheld.
Orders
Orders of the court
1. Appeal against conviction dismissed.
2. Attorney-General’s appeal against sentence dismissed.
3. Application for leave to appeal against sentence refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Ground 3 - The evidence relating to the appellant’s treatment of the patient Grave should have been excluded.Ground 5 - The evidence of the appellant’s conduct relating to the securing of a ventilator for the patient Kemps should have been excluded.Ground 7 - The trial judge erred in law in dismissing the appellant’s application for the jury to be discharged on 6 April 2010 (the tenth day of the trial) on the basis that the appellant was being denied a fair trial as a result of new medical evidence being called by the Crown during the trial.Ground 8 - The trial judge erred in law in dismissing the appellant’s application for the jury to be discharged on 8 June 2010, at the effective end of the prosecution case, on the basis that the change in the prosecution particulars at that stage denied the appellant a fair trial.Ground 9 – A miscarriage of justice was produced by the amendment of the particulars of the prosecution case at the effective end of the prosecution case, which resulted in a volume of evidence in the trial being rendered irrelevant. As grounds 3, 5, 7, 8 and 9 are interlinked, it is convenient to deal with them together insofar as they are discrete grounds of appeal. The further arguments advanced by counsel for the appellant in respect of these grounds may be summarised as follows. The thrust of the appellant’s case was that the change in “direction to an entirely new case after [the prosecution’s] case had closed” necessarily resulted in unfairness. The change was identified as abandoning the case that the surgery was performed negligently, and adopting a new case based on a negligent decision to perform surgery. Much of the evidence which had been led related to proof of the prosecution’s negligent performance case. Consequently, when that case was abandoned, a large body of evidence became irrelevant. Much of that evidence was graphic, inflammatory and highly prejudicial to the accused. No direction by the trial judge served, or could have served, to remove that prejudice. Another consequence of that body of evidence having been admitted was that the defence was deprived of the possibility of having the evidence excluded by means of Christie applications[48] as the trial progressed. The defence’s difficulties were compounded by the lack of “clarity or definition” in the particulars provided in the course of the trial.[48]R v Christie [1914] AC 545. Applications for prosecution evidence to be excluded in criminal trials on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant. The evidence irrelevant to the new case was listed in a schedule to an outline of submissions provided by defence counsel to the trial judge in support of an application for the discharge of the jury on day 44 of the trial. Reference was made to the trial judge’s criticism of the old particulars on day 44 and to his reference to defence counsel’s failure to object to the admission of evidence and the inadequacy of the particulars.[49][49]Transcript – Day 44, pp 7-8.