R v Patel (No 2) - [2012] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION:

R v Patel (No 2) [2012] QSC 420

PARTIES:

THE QUEEN

v

JAYANT MUKUNDRAY PATEL
(Defendant)

FILE NO/S:

Indictment No 387 of 2009

DIVISION:

Trial Division

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2012

JUDGE:

Fryberg J

ORDERS:

1.   Application for a stay of proceedings dismissed.

2.   Order that the particulars of charge filed on 5 December 2012 be struck out.

3.   Order that the Crown file and serve on the accused proper particulars of the charge on or before 11 January 2013.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS, OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – where the applicant faces a retrial on a charge of manslaughter – application for an order that a count on the indictment be permanently stayed or alternatively that the further amended particulars of that count be struck out – whether further prosecution of the case is contrary to public interest – whether a fair trial is impossible because of the degree of adverse pre-trial publicity – whether the Crown seeks to make a new case on the retrial – whether the amended particulars fail to particularise the charge

Criminal Code 1899 (Qld), s 288

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, cited
Bolitho v. City and Hackney Health Authority[1997] UKHL 46; [1998] AC 232, cited
King v The Queen[1986] HCA 59; (1986) 161 CLR 423, cited
Kirk v Industrial Court of New South Wales[2010] HCA 1; (2009) 239 CLR 531, cited
Patel v The Queen[2012] HCA 29, cited
R v Patel [2012] QSC 419, followed

The Queen v Taufahema[2007] HCA 11; (2007) 81 ALJR 800, cited

Fleming’s Law of Torts 10^th ed (2011), ch 9 “Damage” (ed Beazley JA)

COUNSEL:

K C Fleming QC with P E Smith for the applicant
P J Davis SC with D Meredith for the respondent

SOLICITORS:

Raniga Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent

FRYBERG J: The accused, Dr Jayant Patel, has applied for an order that count 9 of the indictment presented against him on 24 April 2009 be permanently stayed. Alternatively, he seeks an order that the further amended particulars of that count filed by the Crown on 5 December 2012 be struck out. By count 9 a Crown Prosecutor informs the court:

“that between the first day of April, 2003 and the 15th day of June, 2003 at Bundaberg in the State of Queensland, [the accused] unlawfully killed MERVYN JOHN MORRIS.”

It is important that this application be resolved quickly. The trial is set to commence on 4 February 2013. I shall therefore not set out the full history of the matter. Most of it is recorded in the decision of the High Court on 24 August 2012 setting aside Dr Patel's…

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 R v Patel (No 2)

Details

AGLC: R v Patel (No 2) [2012] QSC 420
Case: [2012] QSC 420
Decision Date: 20 December 2012

CaseChat Overview and Summary

In the case of R v Patel (No 2), the applicant faced a retrial on a charge of manslaughter. The dispute centred around an application to the court for an order that a count on the indictment be permanently stayed or, in the alternative, that the further amended particulars of that count be struck out. The applicant argued that a further prosecution was contrary to the public interest, citing the degree of adverse pre-trial publicity as making a fair trial impossible. Additionally, the applicant contended that the Crown intended to make a new case on the retrial and that the amended particulars failed to particularise the charge.

The court was required to determine several legal issues, including whether the further prosecution of the case was contrary to the public interest, whether a fair trial was impossible due to pre-trial publicity, and whether the Crown intended to make a new case on the retrial. The court also needed to assess whether the amended particulars of the charge adequately particularised the offence.

The court dismissed the application for a stay of proceedings, finding that there was no basis to conclude that a fair trial was impossible. It was held that the applicant had not demonstrated that the Crown intended to make a new case on the retrial, nor that the amended particulars failed to particularise the charge. The court ordered that the particulars of the charge filed on 5 December 2012 be struck out and directed the Crown to file and serve on the accused proper particulars of the charge on or before 11 January 2013. The court did not find that the further prosecution of the case was contrary to the public interest, and therefore, the application for a stay of proceedings was dismissed.

Orders

Orders of the court

1. Application for a stay of proceedings dismissed.

2. Order that the particulars of charge filed on 5 December 2012 be struck out.

3. Order that the Crown file and serve on the accused proper particulars of the charge on or before 11 January 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Patel (No 2) [2012] QSC 420
PARTIES:	THE QUEEN v JAYANT MUKUNDRAY PATEL (Defendant)
FILE NO/S:	Indictment No 387 of 2009
DIVISION:	Trial Division
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	20 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 December 2012
JUDGE:	Fryberg J
ORDERS:	1. Application for a stay of proceedings dismissed. 2. Order that the particulars of charge filed on 5 December 2012 be struck out. 3. Order that the Crown file and serve on the accused proper particulars of the charge on or before 11 January 2013.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS, OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – where the applicant faces a retrial on a charge of manslaughter – application for an order that a count on the indictment be permanently stayed or alternatively that the further amended particulars of that count be struck out – whether further prosecution of the case is contrary to public interest – whether a fair trial is impossible because of the degree of adverse pre-trial publicity – whether the Crown seeks to make a new case on the retrial – whether the amended particulars fail to particularise the charge Criminal Code 1899 (Qld), s 288 Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, cited Bolitho v. City and Hackney Health Authority[1997] UKHL 46; [1998] AC 232, cited King v The Queen[1986] HCA 59; (1986) 161 CLR 423, cited Kirk v Industrial Court of New South Wales[2010] HCA 1; (2009) 239 CLR 531, cited Patel v The Queen[2012] HCA 29, cited R v Patel [2012] QSC 419, followed The Queen v Taufahema[2007] HCA 11; (2007) 81 ALJR 800, cited Fleming’s Law of Torts 10^th ed (2011), ch 9 “Damage” (ed Beazley JA)
COUNSEL:	K C Fleming QC with P E Smith for the applicant P J Davis SC with D Meredith for the respondent
SOLICITORS:	Raniga Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent