Patel v The Queen [2012] HCA 29: High Court Orders Retrial

The High Court's decision in the case of Patel v The Queen [2012] HCA 29 was handed down on 24 August 2012. The court unanimously upheld the appeal by Patel against his convictions for manslaughter and unlawfully doing grievous bodily harm. The Court found that a miscarriage of justice had occurred in that the prosecution radically changed its case in a way that rendered irrelevant much of the evidence that had been admitted. The High Court has ordered that there be a new trial.

Background

The appellant had been convicted in the Queensland Supreme Court on three counts of manslaughter and one count of unlawfully doing grievous bodily harm under the Criminal Code (Queensland) ss 303 and 320. These were charges arising out of surgery conducted by the Patel on four patients while he was employed as a surgeon at the Bundaberg Base Hospital.

The prosecution alleged that the standard of care provided by Patel to the patients was so low as to breach the duty imposed by the Criminal Code s 288 upon a person who undertakes to administer surgical treatment.

Initially the prosecution had alleged that the appellant had been generally incompetent and grossly negligent in recommending the surgical procedures, in the manner in which he carried out those procedures, and in the post-operative treatment which he supervised. But well into the trial (day 43), the prosecution narrowed its case focusing on whether surgical procedure in each case should have been undertaken.

Appeal to Court of Criminal Appeal

Patel appealed to the Queensland Court of Appeal arguing among other claims that a miscarriage of justice had resulted from the change in the prosecution case. The Court of Appeal dismissed the appeal upholding Patel's conviction.  

Appeal to the High Court

Patel’s special leave appeal to the High Court claimed that Criminal Code s 288 only applied to the conduct of surgery and not to the anterior decision to operate. The Court rejected that contention taking the view that s 288 applied to "surgical… treatment", and encompassed all that was provided in the course of such treatment including  a duty with respect to the formation of a judgment that surgery be undertaken.   In so finding however the court granted special leave to appeal, and allowed the appeal, on the ground that there was a miscarriage of justice in the conduct of the appellant's trial arising from the prosecution radically changing its case, at a late point in the trial, to focus on the appellant's decision to undertake the surgical procedures as opposed to the conduct of the surgery. Much of the evidence about the surgery and post-operative care was prejudicial to the appellant but no longer relevant on the prosecution's revised case. The prejudicial effect on the jury however, was not overcome by directions given by the trial judge about the limited use that could be made of that evidence. The court found a substantial miscarriage of justice occurred.

Result

The Court set aside the order of the Court of Appeal and in its place ordered that there be a new trial.

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