Patel v R

French CJ, Hayne, Kiefel and Bell JJ. On 29 June 2010 Jayant Mukundray Patel (‘the appellant“) was convicted by a jury of three counts of manslaughter 1 and one count of unlawfully doing grievous bodily harm 2, after a trial in the Supreme Court of Queensland which lasted 58 days. The appellant was at the relevant times employed as a surgeon at Bundaberg Base Hospital. The charges of manslaughter arose out of surgery conducted by the appellant upon Mervyn John Morris, James Edward Phillips and Gerardus Wilhelmus Gosewinus Kemps and that of grievous bodily harm related to surgery that the appellant conducted upon Ian Rodney Vowles.

Allegations concerning the appellant's competence as a surgeon had been a subject of discussion at inquiries into the public hospital system in Queensland 3 and the subject of much discussion in the media. It was against this background that the prosecution opened its case before the jury. The general tenor of the case was that the appellant was generally incompetent and grossly negligent in: recommending the surgical procedures; the manner in which he carried out each of them; and the post-operative treatment which he supervised. Particulars of the prosecution case concerning the charge arising out of the surgical procedure performed on Mr Morris, which were provided some days into the trial, confirmed that the case ranged over the whole of the appellant's conduct as a surgeon. Particulars of the prosecution case on the other charges were not provided immediately. The defence applied, unsuccessfully, to have the jury discharged without giving a verdict 4, in part because of the absence of those particulars.

On day 4of the trial the prosecution provided a set of revised particulars in each case, which had the effect of narrowing the case against the appellant. With the principal exception of the procedure concerning Mr Kemps, allegations that the appellant was criminally negligent in the conduct of surgery were no longer maintained, nor was it alleged that the deaths or grievous bodily harm were caused by negligent post-operative care. The prosecution case was now focused upon whether the surgical procedure in each case should have been undertaken. Following receipt of the revised particulars, the defence sought on day 44 of the trial, again unsuccessfully, to have the jury discharged on the basis that a great deal of prejudicial, and now largely irrelevant, evidence had been admitted.

The appellant's appeal against conviction was dismissed 5, the Court of Appeal of the Supreme Court of Queensland holding that, in all but one respect, the evidence remained relevant.

The appellant has been granted special leave to appeal on the ground that he has been convicted on a wrong basis. It was part of the prosecution case that the standard of care provided by the appellant in connection with the surgical procedures was so low as to breach the duty imposed by s 288 of the Criminal Code (Q) upon a person who undertakes to administer surgical treatment. It is the appellant's contention that s 288 applies to the conduct of surgery but not to the anterior decision to operate, which decision was the essence of the prosecution case following the filing of its revised particulars. Alternatively it is submitted that the section is ambiguous and ought not to be construed so as to extend its operation.

A further ground in respect of which the appellant seeks special leave to appeal has been referred to a Full Court of this Court. It is that there was a miscarriage of justice in the conduct of his trial. The appellant contends that the trial judge (Byrne SJA) wrongly permitted the trial to proceed on the basis of the original particulars, when they provided so many alternatives as to be incoherent and therefore to prejudice the defence. The appellant submits that the trial judge was wrong to refuse to discharge the jury on day 44 because evidence that was highly prejudicial and now largely irrelevant had been admitted and it was not possible to ameliorate its effects on the jury by directions. Alternatively, this Court can now determine that there has been a miscarriage of justice for those reasons.

The respondent seeks to uphold the decision of the Court of Appeal that almost all of the evidence in question remained relevant and submits that special leave should be refused because no objection was made to much of the evidence in question. By Notice of Contention the respondent contends that if there was a wrong decision on a question of law, by virtue of either the prosecution's reliance on s 288 or the wrongful admission of evidence, the proviso in s 668E(1A) of the Criminal Code6 should be applied to maintain the convictions because there has been no substantial miscarriage of justice. It is submitted by the respondent that the evidence properly admitted proves to the requisite standard that the appellant was guilty of each of the charges.

For the reasons which follow, the appellant's argument respecting s 28should be rejected. There should be a grant of special leave with respect to the ground that there was a miscarriage of justice. The reformulation of the prosecution case rendered irrelevant the evidence it had led to demonstrate that the appellant had done things in the operating theatre and in the post-operative care of the patients that were careless to the point of being criminally negligent. The prosecution case as eventually put to the jury was that no competent surgeon would have recommended to the patients the procedures which the appellant undertook and that to do so was so large a departure from the norm as to be criminally negligent.

A feature of the prosecution case was that the appellant should have appreciated that he lacked skill as a surgeon. As will be explained in these reasons, it was irrelevant whether, as the prosecution alleged, the appellant ought to have known of his shortcomings as a surgeon. The prosecution case as ultimately formulated turned on what the appellant was shown to have known about each patient's state of health: in particular, what he knew about the patient having the disease to which the surgery was directed and what he knew about the patient's state of health. What he knew, or ought to have known, about his own skill was not to the point.

Consideration of the appellant's allegation of miscarriage of justice and the respondent's response to it will require that consideration be given to the course of the trial and the conduct of the prosecution and defence cases.

Under the Criminal Code, a person who causes the death of another is deemed to have killed that other person (s 293). A person who unlawfully kills another in circumstances which do not constitute murder is guilty of manslaughter (s 303). A person who kills another does so unlawfully unless the killing is authorised, justified or excused by law (s 291). In the present case, for convictions on the counts of manslaughter to be returned it was necessary for the prosecution to prove that the appellant caused the death of the three patients, thereby killing them (s 293). For a conviction on the count of grievous bodily harm, it was necessary to prove that the appellant had done grievous bodily harm to another and that the doing of it was unlawful (s 320).

Section 282 is an exculpatory provision which may apply in the case of a surgical procedure. At the relevant time, it provided:

‘A person is not criminally responsible...