Reeves v The Queen

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.