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".
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.
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…
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
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
FRENCH CJ, CRENNAN, BELL AND KEANE JJ
GAGELER J
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, BELL AND KEANE JJ,
GAGELER J