R v Patel (No 6) - [2013] QSC 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v Patel (No 6) [2013] QSC 64

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:

19 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12, 18-19 February 2013

JUDGE:

Fryberg J

ORDERS:

The relevant passage of a scientific article tendered by the defence is admissible in written form.

CATCHWORDS:

EVIDENCE – DOCUMENTARY EVIDENCE – OTHER MATTERS – Document on which witness cross-examined – Books, etc., of authority – Scientific journals – Admissibility

EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – IN GENERAL – Reference by expert to scientific works –Scientific journals – Explanation and comment by expert

PQ v Australian Red Cross Society [1992] 1 VR 19, considered
QIW Retailers Ltd & Attorney-General (Cth) v Davids Holdings Pty Ltd (No 3) (1993) 42 FCR 255, considered
R v Karger (2001) 83 SASR 1, considered

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: These are reasons for a summary ruling on evidence made on 12 February 2013. Senior counsel for the Crown first requested reasons on 18 February 2013.

The accused is before the court on trial for manslaughter by negligence as a medical practitioner. The Crown case against him has as an element an allegation that he misdiagnosed rectal bleeding in the deceased as caused by diverticulosis when in fact it was the result of radiation proctitis. On the fourth day of the trial Dr Pratt, a radiologist who had treated the deceased for prostate cancer by a course of radiation therapy, gave evidence about the effects of the therapy. It was common ground that most people who undergo the therapy have rectal bleeding for six to eight weeks following the course. That happened to the deceased. On one view of the evidence the bleeding then subsided, only to reappear nearly three years later shortly before the deceased was first seen by the accused. Dr Pratt said that this was a known but uncommon phenomenon.

In the course of cross-examination on this issue counsel for the accused placed an article from the journal Clinical Oncology before the witness. He drew attention to a passage on two pages of the article dealing with the incidence of transfusion-dependent bleeding. Dr Pratt said that the passage was consistent with his own experience in that the phenomenon was uncommon. He had no statistics of his own but accepted the statements and opinions in the passage to which his attention was drawn. When asked to identify the author of the article, Dr Pratt said:

“I met the author who's been in Australia giving lectures. He's from the UK's leading cancer institution and specialises in late rectal injury. He's a gastroenterologist, a bowel specialist…

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 6)

Details

AGLC: R v Patel (No 6) [2013] QSC 64
Case: [2013] QSC 64
Decision Date: 19 February 2013

CaseChat Overview and Summary

In the matter of R v Patel (No 6), the appellant, a person of Indian origin, was brought before the court in relation to an offence under the Migration Act 1958 (Cth). The appellant contested the charge, and the trial proceeded to the point where the court was required to determine the admissibility of a particular scientific article that the defence sought to introduce as evidence. The trial judge had ruled that the specific passage from the article was inadmissible, which led to the appeal.

The primary legal issue before the court was whether the trial judge erred in excluding the tendered passage of the scientific article. The defence argued that the passage was relevant and necessary to support the expert witness's opinion, which was central to their case. They contended that the exclusion of the passage was a miscarriage of justice as it deprived the jury of important information that was critical to understanding the expert's reasoning. Conversely, the prosecution argued that the exclusion was appropriate as the expert witness was able to explain the content of the passage without directly referencing it, thereby making the actual document unnecessary.

The court examined the principles governing the admissibility of expert opinion evidence and the use of documentary evidence. It held that while an expert witness may draw on a variety of sources, including scientific journals, to form an opinion, the court must be able to assess the reliability and relevance of the underlying materials. The court found that the expert witness was able to adequately explain the content of the scientific article without relying on the exact wording, and therefore, the exclusion of the specific passage did not prejudice the defence. The court concluded that the trial judge did not err in excluding the passage, as the expert was able to convey the necessary information to the jury through explanation.

The court dismissed the appeal, affirming the trial judge's decision. The appeal was accordingly dismissed, and no further orders were made.

Orders

Orders of the court

The relevant passage of a scientific article tendered by the defence is admissible in written form.

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 6) [2013] QSC 64
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:	19 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12, 18-19 February 2013
JUDGE:	Fryberg J
ORDERS:	The relevant passage of a scientific article tendered by the defence is admissible in written form.
CATCHWORDS:	EVIDENCE – DOCUMENTARY EVIDENCE – OTHER MATTERS – Document on which witness cross-examined – Books, etc., of authority – Scientific journals – Admissibility EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – IN GENERAL – Reference by expert to scientific works –Scientific journals – Explanation and comment by expert PQ v Australian Red Cross Society [1992] 1 VR 19, considered QIW Retailers Ltd & Attorney-General (Cth) v Davids Holdings Pty Ltd (No 3) (1993) 42 FCR 255, considered R v Karger (2001) 83 SASR 1, considered
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