Patel v The Queen [2012] HCA 29

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, HEYDON, KIEFEL AND BELL JJ

JAYANT MUKUNDRAY PATEL APPELLANT/APPLICANT

AND

THE QUEEN RESPONDENT

Patel v The Queen [2012] HCA 29 24 August 2012 B11/2012 & B25/2011

ORDER

In matter B11/2012:

Appeal dismissed.

In matter B25/2011:

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter, and allowed.

3. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 21 April 2011 and, in its place, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's convictions for the manslaughter of Mervyn John Morris, James Edward Phillips and Gerardus Wilhelmus Gosewinus Kemps and for unlawfully doing grievous bodily harm to Ian Rodney Vowles be quashed; and

(c) a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

L F Kelly SC with D M Turner and P F Mylne for the appellant/applicant (instructed by Raniga Lawyers)

W Sofronoff QC, Solicitor-General of the State of Queensland and P J Davis SC with D L Meredith and J R Jones for the respondent (instructed by Director of Public Prosecutions (Qld))

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

CATCHWORDS

Patel v The Queen

Criminal law – Manslaughter by criminal negligence – Appellant convicted of manslaughter and unlawfully doing grievous bodily harm – Section 288 of Criminal Code (Q) imposes duty on persons who undertake to administer surgical treatment to have reasonable skill and use reasonable care – Prosecution alleged appellant breached his duty by deciding to operate on certain patients – Whether "surgical treatment" in s 288 encompasses decision to operate.

Criminal law – Miscarriage of justice – Change in prosecution case at late point in trial – Prejudicial evidence admitted – Whether test of criminal negligence is objective – Whether evidence remained relevant on revised case – Significance of tactical decisions by defence counsel.