Reeves v The Queen

Case [2013] HCA 57


HIGH COURT OF AUSTRALIA

FRENCH CJ,
CRENNAN, BELL, GAGELER AND KEANE JJ

GRAEME STEPHEN REEVES  APPLICANT

AND

THE QUEEN  RESPONDENT

Reeves v The Queen

[2013] HCA 57

18 December 2013

S44/2013

ORDER

1.Special leave to appeal on Grounds 2.1, 2.2 and 2.3 of the Application for Special Leave to Appeal filed on 21 March 2013 granted.

2.Application for special leave to appeal otherwise dismissed.

3.Appeal treated as instituted and heard instanter.

4.Appeal allowed in part.

5.Set aside paragraphs 6, 7, 8 and 9 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 21 February 2013.

6.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for further consideration in accordance with the reasons of the Court.

7.Appeal otherwise dismissed.

On appeal from the Supreme Court of New South Wales

Representation

P J D Hamill SC with S F Beckett for the applicant (instructed by Legal Aid (NSW))

L A Babb SC for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Reeves v The Queen

Criminal law – Malicious infliction of grievous bodily harm with intent – Consent to battery resulting from surgery – Whether "informed consent" was correct test – Whether patient informed in broad terms of nature of procedure – Application of Rogers v Whitaker (1992) 175 CLR 479.

Criminal law – Appeal – Appeal against conviction – Application of proviso – Whether misdirection to jury actually resulted in substantial miscarriage of justice.

Criminal law – Appeal – Prosecution appeal against sentence – Where appellate court failed to consider residual discretion.

Words and phrases – "consent to medical procedure", "proviso", "substantial miscarriage of justice", "residual discretion".

Crimes Act 1900 (NSW), s 33.
Criminal Appeal Act 1912 (NSW), ss 5D, 6(1).

  1. FRENCH CJ, CRENNAN, BELL AND KEANE JJ.   The applicant was convicted following a trial in the District Court of New South Wales (Woods DCJ) of the malicious infliction of grievous bodily harm on CDW, the complainant, with intent to inflict such harm[1].  He was sentenced to a term of two and a half years' imprisonment with a non-parole period of one year for this offence. 

    [1]Crimes Act 1900 (NSW), s 33.

  2. The applicant is a gynaecologist.  The injury inflicted upon CDW was the removal of her external genitals ("vulva") in a surgical procedure described as a "simple vulvectomy" which was carried out at the Pambula Hospital on 8 August 2002.  CDW had been referred to the applicant by her general practitioner for treatment for a lesion identified as vulval intraepithelial neoplasia grade 3 ("VIN 3") on her left labia minora.  This is a pre-cancerous condition which if left untreated can progress to cancer.  Expert evidence established that the appropriate treatment for CDW's condition was the surgical excision of…

Continue reading Reeves v The Queen

Sign in free to access the full text

Details
AGLC
Reeves v The Queen [2013] HCA 57
Case
[2013] HCA 57
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Reeves against his conviction for malicious infliction of grievous bodily harm with intent, and a cross-appeal by the Crown against the sentence imposed. The dispute centred on whether the patient's consent to a surgical procedure, which resulted in the injury, constituted a defence to the criminal charge. The core question was whether the jury had been correctly directed on the nature of consent required in such circumstances.

The legal issues before the High Court were whether the trial judge had erred in directing the jury that "informed consent" was the correct test for determining whether the patient had consented to the battery. This involved considering the application of the principles established in *Rogers v Whitaker* (1992) 175 CLR 479, which deals with the duty of disclosure in medical procedures. Additionally, the Court had to determine whether any misdirection to the jury had resulted in a substantial miscarriage of justice, thereby justifying the application of the proviso to s 6(1) of the *Criminal Appeal Act 1912* (NSW). Finally, the Court was required to consider whether the Court of Criminal Appeal had failed to consider its residual discretion when dealing with the Crown's appeal against sentence.

The High Court held that the trial judge's direction on "informed consent" was not the correct test for the criminal charge. Instead, the relevant question was whether the patient had consented in broad terms to the procedure that was performed. The Court found that the jury had been misdirected on this crucial point. However, the Court also considered whether this misdirection led to a substantial miscarriage of justice. The Court allowed the appeal in part, setting aside certain orders of the Court of Criminal Appeal and remitting the matter for further consideration in accordance with the High Court's reasons. The Court of Criminal Appeal was directed to reconsider the appeal against conviction and sentence, including the application of the proviso and any residual discretion.

Orders

Orders of the court

1. Special leave to appeal on Grounds 2.1, 2.2 and 2.3 of the Application for Special Leave to Appeal filed on 21 March 2013 granted.

2. Application for special leave to appeal otherwise dismissed.

3. Appeal treated as instituted and heard instanter.

4. Appeal allowed in part.

5. Set aside paragraphs 6, 7, 8 and 9 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 21 February 2013.

6. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for further consideration in accordance with the reasons of the Court.

7. Appeal otherwise dismissed.

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

FRENCH CJ, CRENNAN, BELL AND KEANE JJ GAGELER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, CRENNAN, BELL AND KEANE JJ, GAGELER J

Full text does not contain this section.