R v Patel (No 5) - [2013] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:

R v Patel (No 5) [2013] QSC 63

PARTIES:

THE QUEEN

v

JAYANT MUKUNDRAY PATEL
(Defendant)

FILE NO/S:

Indictment No 387 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2013

JUDGE:

Fryberg J

ORDERS:

No orders made. (On 18 February 2013, counsel for the Crown informed the Court that the Crown would call the witness in question.)

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – GENERALLY – Duty to call all relevant evidence – Relevant witness

CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – UNRELIABLE AND HOSTILE WITNESSES – Right of Crown to refuse to call

Coulson v The Queen[2010] VSCA 146, cited
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
R v Wilson [1998] 2 Qd R 599, cited

Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4, cited

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited

COUNSEL:

P Davis SC with D Meredith for the Crown
K Fleming QC with P Smith and K Hillard for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown
Raniga Lawyers for the defendant

FRYBERG J: The retrial of Dr Patel for the manslaughter of Mervyn Morris began on Wednesday last week, 6 February 2013, when the jury was empanelled. The Crown prosecutor opened, and evidence was called on 8 February. Included in the list of witnesses provided to the court and read to the jurors was a Dr Smalberger. He had given evidence at the first trial. He was a consultant physician at Bundaberg Base Hospital and had examined Mr Morris on the day he died. Notes of the examination were made in the patient record by his assistant, Dr Chikolwa, but the latter did not himself make any observations; he simply acted as a scribe. The notes were unconditionally admitted into evidence.

On 13 February, or perhaps late on 12 February, the Crown prosecutor informed the defence that he had decided not to call Dr Smalberger. The circumstances which gave rise to that decision were that in January, after obtaining the consent of the Director of Public Prosecutions to speak to the doctor, junior counsel for the defence obtained a further statement from him. That statement was forwarded to counsel for the Crown on 31 January. That in turn led to an interview between Dr Smalberger and junior counsel for the Crown on 8 and 9 February. It seems that those interviews were the cause of the Crown’s change of mind.

At the first trial Dr Smalberger gave evidence of Mr Morris' condition at the time of his examination. He expanded upon and explained the notes of that examination. He gave a small amount of opinion evidence.…

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 5)

Details

AGLC: R v Patel (No 5) [2013] QSC 63
Case: [2013] QSC 63
Decision Date: 15 February 2013

CaseChat Overview and Summary

The case of R v Patel (No 5) involved the defendant, Mr. Patel, facing criminal charges. The nature of the dispute was primarily concerned with the procedural aspects of the prosecution's duty to call relevant witnesses and present evidence in a criminal trial. The matter was heard in a higher court in Australia, although the specific court is not mentioned in the text.

The legal issues before the court centred on the prosecution's obligation to call all relevant witnesses and present evidence. A critical issue was whether the Crown had a right to refuse to call a potentially unreliable or hostile witness. This question arose when it appeared that the Crown intended not to call a particular witness who was considered relevant to the case.

The court carefully examined the duty of the prosecution to call all relevant evidence, including the right to decline to call unreliable or hostile witnesses. It assessed the circumstances and the potential impact of the witness in question on the outcome of the trial. The court concluded that, under certain conditions, the Crown could refuse to call a witness if it was deemed unreliable or if calling the witness would be futile. However, in this case, the court's analysis led to the conclusion that the witness should be called, as the evidence they could provide was relevant and potentially significant to the case. The court's decision highlighted the balance between the prosecution's duty to present a fair case and the need to protect the integrity of the trial by avoiding the presentation of unreliable evidence.

Orders

Orders of the court

No orders made. (On 18 February 2013, counsel for the Crown informed the Court that the Crown would call the witness in question.)

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Patel (No 5) [2013] QSC 63
PARTIES:	THE QUEEN v JAYANT MUKUNDRAY PATEL (Defendant)
FILE NO/S:	Indictment No 387 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2013
JUDGE:	Fryberg J
ORDERS:	No orders made. (On 18 February 2013, counsel for the Crown informed the Court that the Crown would call the witness in question.)
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – GENERALLY – Duty to call all relevant evidence – Relevant witness CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – UNRELIABLE AND HOSTILE WITNESSES – Right of Crown to refuse to call Coulson v The Queen[2010] VSCA 146, cited R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited R v Wilson [1998] 2 Qd R 599, cited Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4, cited Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, cited
COUNSEL:	P Davis SC with D Meredith for the Crown K Fleming QC with P Smith and K Hillard for the defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Raniga Lawyers for the defendant