Patel v The Queen [2012] HCATrans 19 (10 February 2012)

Last Updated: 14 February 2012

[2012] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2011

B e t w e e n -

JAYANT MUKUNDRAY PATEL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 9.32 AM

Copyright in the High Court of Australia

MR L.F. KELLY, SC: May it please the Court, I appear with my learned junior, MR P.F. MYLNE, for the applicant. (instructed by Kerry Smith Douglas Lawyers)

MR R.G. MARTIN, SC: May it please the Court, I appear with my learned friends, MR D.L. MEREDITH and MS S.J. MALECKAS, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Thank you, Mr Kelly.

MR KELLY: Your Honours, the most important special leave question in this case is a short one; was the applicant tried under the wrong provision of the Criminal Code (Qld), namely, section 288? That provision is set out, so your Honours can see it, at paragraph [6] of the Court of Appeal’s reasoning which is at application book page 244. Not only, your Honours, is that a question of real importance, but the answer, in our respectful submission, is straightforward. The applicant was simply not tried under the correct provision. Section 288 had nothing to do with the case of which he was convicted and the applicant therefore did not have a trial according to law.

The jury was misdirected by the learned trial judge as to what law applied. The jury was directed that to convict the applicant they had to find beyond reasonable doubt that there had been a breach of section 288. Could I take your Honours to the application book page 28, line 10, please. You will see that the direction to the jury was in very unequivocal terms on that point. In terms of the Court of Appeal’s reasons, we submit the contention of the applicant – which is recorded correctly at paragraph [14] of the Court of Appeal’s reasons, that is at application book page 246 – is entirely a correct submission and we also submit the conclusion of the Court of Appeal set out at paragraph [53] of the reasons in the third and fourth sentences of paragraph [53] is simply quite wrong.

Your Honours, the applicant was convicted in relation to each of four cases, three of manslaughter, one of unlawful grievous bodily harm, based upon his decision to operate on patients on the basis, as was expressly put to the jury, that he had breached a duty under section 288. It was expressly put to the jury by the learned trial judge that this was not a case where the applicant was on trial for incompetently performing surgery. The surgery he performed was competently done. You will find a reference to that summing-up at application book 22, line 50.

What Dr Patel was convicted of in each of the four cases was the anterior decision prior to the operation of deciding to operate on the basis that the operations were unnecessary or inappropriate. Can I take you please to application book page 23, lines 10 to 50, where that case is squarely and unequivocally put to the jury by the learned trial judge. That was the case that was put to the jury. Your Honours, if I could draw your attention back to section 288 of the Code, which is at paragraph [6] of the Court of Appeal reasons, it is our respectful submission the applicant does not have to go so far as saying that it is a penal provision that is ambiguous or equivocal. It is in fact plain when reading it that it does not comprehend within its terms a decision to operate as distinct from the performance of the operation itself.

FRENCH CJ: What do you say is the scope of the concept of surgical treatment?

MR KELLY: Your Honour, in the context of section 288 we submit that that deals with and comprehends the operating upon a patient and surgical or medical treatment that is a concomitant of such a procedure.

KIEFEL J: Your submissions focus upon the words “doing such act”.

MR KELLY: Yes. With respect, your Honour Justice Kiefel, I was about to move to four reasons why we say section 288 cannot possibly mean what it has been found by the Court of Appeal and the learned trial judge to mean. One is this; the words do not refer to a decision at all, that is the first thing. A plain reading of the provision does not refer to a decision to operate. The second reason is; the section uses the words “and to use reasonable care in doing such act” which your Honour has just referred to. “In doing such act” we say that that does not refer to an anterior decision to operate. The third reason we say is very important, the words “or to do any other lawful act” and we say those words are very important because they create a premise that embarking upon the operation is a lawful act. If they do not mean that, they do not make sense, yet the applicant was convicted on the basis that the decision to embark on the operation was criminal. With respect, neither the learned trial judge nor the Court of Appeal addressed directly this anomaly with their interpretation.

FRENCH CJ: The Crown says that you are mischaracterising their case – I am looking at paragraph 7 of the respondent’s submissions at 318 – with “the performance of the operations at all as the acts”, and then one gets into nice logical questions about decision and implementation of the decision, assuming competence in the actual execution.

BELL J: In that connection, to take you back to application book 23, what the judge told the jury was:

What matters is his judgment in deciding to commend the surgery to a patient and, having obtained patient’s consent, in taking the patient to theatre to perform it.

As I understand the prosecution’s position, it is that your submissions overlook that the direction was bound up with the notion of taking the patient to surgery to perform the operation. So one is not looking at an antecedent decision to operate so much as the fact of operating in circumstances in which the operation was unnecessary or inappropriate.

MR KELLY: Your Honour, we take the point, but we say that it does not have any significance in this case because the applicant could not have been found guilty unless his decision to operate was criminally reprehensible. Of course, it could not be completed if – the offence, without the operation occurring, we accept that, but there has to be – otherwise no one would have died or there would not have been damage done to a patient, but the matter which the trial judge summed-up to the jury was that the decision to operate had to be a thoroughly reprehensible one and that embarking upon the procedure or the taking him to the theatre to perform it is just a carrying out of what is a criminal decision. So, with respect, in a situation where that surgeon has operated competently and is found to have had informed consent, what we are focusing on is that there was an anterior criminal decision to operate which was acted upon, but the case put to the jury was the decision itself was criminal.

BELL J: Where do we get that? You have referred us to his Honour’s reference to “morally reprehensible decision”. Whereabouts do we find that?

MR KELLY: It is in the summing-up, your Honour, pages 30 and 31. The bottom of page 30, line 50:

Importantly, you must also be satisfied beyond reasonable doubt that his decision to perform the surgery in question –

and I emphasise “his decision to perform” –

involved such a great falling short of the standard to have been expected, and showed such serious disregard for the patient’s welfare, that he should be punished as a criminal.

In other words, that his decision to operate was so thoroughly reprehensible involving such grave moral guilt that it should be treated as a crime deserving a punishment. That is what the jury was instructed in those terms and there can be no doubt that that is what the jury would have understood was what they were considering.

FRENCH CJ: It has to be read in the light of what appears in his direction at 24, does it not, when he introduces the jury to section 288 and sets out the four matters which the prosecution has to prove? He is not confining to a decision, as it were, in isolation, is he?

MR KELLY: Your Honour, we submit that the only matter which attracted criminality in this case was the decision to operate coupled with the mechanical exercise of wheeling the patient in and acting upon the decision to operate, but the actual matter which attracted criminality was the decision to operate, and that is evidenced by the fact that the prosecution dropped its case of incompetent surgery at a very late stage of the trial and sought to then narrow it, and did narrow it, to the decision to operate.

BELL J: Plainly there is a difference between performing surgery in an incompetent manner and performing surgery that is unnecessary or inappropriate, but there had to be a causal link between the surgery and the death. That was a necessary element of the offences of manslaughter and a causal link in the case of the fourth patient between the occasioning of the grievous bodily harm and the surgery. So there is some difficulty in divorcing the decision to conduct the procedure from the fact that the procedure was conducted, albeit no issue was maintained that the conduct of it was itself incompetent.

MR KELLY: Yes, your Honour, but, with the greatest respect, that in itself raises a confusing issue about what the jury understood by the direction that the decision to operate had to be reprehensible. Your Honours, I was going to refer you also, on section 288, why it could not mean what the Court of Appeal and the trial judge found it meant by reference to section 282 of the Code which does deal with a decision to operate and does show that Parliament, when it intended to do so, could deal with both the performance of surgery and the decision to operate. That section is set out more conveniently at paragraph [8] of the Court of Appeal’s decision at application book 245.

Now, in our respectful submission, the applicant was entitled to have a trial in which section 282, a unique excusatory or exculpatory provision that would apply to a surgeon in this situation, was put to the jury for consideration and it was not. The jury was not informed about it and was not directed to consider it because of this way that section 288 was read in, we would say, an artificial and constrained letter to include decisions to operate.

FRENCH CJ: Does the Crown have a harder case under 288 than under 282?

MR KELLY: Yes. That is put against us, your Honour. That is one of the reasons why it is – and paragraph [44] of the Court of Appeal’s reasons also make that point, but we make the point in response; if that is the case, if the Crown had a harder case under 288 under authorities such as Bateman and Callaghan - - -

FRENCH CJ: You say you might have gone into evidence in a difference circumstance?

MR KELLY: Yes. It would have been a differently structured trial and there would have been different imperatives applying to the accused counsel. The accused counsel may well have been minded to call his client to try and make out the excuse in section 282. So the accused never had a chance of dealing with section 288, a very unique provision which does deal with decisions to operate. The Court of Appeal says you cannot draw much from that because it is in a different chapter of the Code dealing with exculpatory decisions, but we say that is precisely what it is there for is these sorts of situations.

BELL J: This submission depends upon a view that liability for manslaughter could be established by proof that the procedure causally caused the death and one would then turn to consideration of whether or not the accused could establish under 288 that he was not criminally responsible. Is that the way it works?

MR KELLY: Yes, your Honour.

BELL J: And against that is it said that there is a line of authority that in order to establish culpability based on criminal negligence under the Code it is necessary to establish the neglect of a duty set out in the chapter containing duties which includes 288? Is that the argument put against you?

MR KELLY: Yes, but there has been no reported case where a decision to operate has been held under 288 to be caught by that provision. Your Honours, could I try and explain this a bit better by dealing with ruling No 3?

FRENCH CJ: Perhaps you could move on to the miscarriage point for the moment and we will hear from Mr Martin in due course on the issue of principle you raise in relation to 288.

MR KELLY: Yes. Your Honours, the miscarriage point is that also that because the law was incorrectly put before the jury there was a miscarriage. We say the proviso cannot apply to a situation where the trial was not one which the accused was entitled to have. We rely upon the recent decision of this Court in Handlen to support our proposition that where the law has been wrongly stated to the jury and a trial according to law has not occurred there has been a miscarriage.

The other point on the miscarriage which we would like to address is that by day 40 of the trial the prosecution dramatically changed its case and I need to explain a little bit about this happened. At a very late stage of the trial, a case of incompetent surgery by the applicant was abandoned by the prosecution and by day 40 the prosecution wished to change its case to a much narrower one. New particulars were delivered on day 43. The judge expressed himself that the previous particulars had lacked legal coherence which means that one infers that the previous particulars were legally incoherent. On day 44 the defence asked for the jury to be discharged because of all the evidence that had been admitted of incompetent surgery. That was rejected. But on day 40 the trial judge delivered ruling No 3. I think your Honours have ruling No 3.

FRENCH CJ: Yes.

MR KELLY: That argument was run by the Crown who was narrowing its case and was now seeking to run a case about the decision to operate being unlawful and the Solicitor-General ran that argument. A page 4 of ruling No 3 you will see that the trial judge sets out what the new case is the prosecution wanted to run. About halfway down the page it says that “the prosecution wants to propound a different case.” That is summarised correctly by the trial judge and we submit, with respect, that mode of proceeding was the correct mode of proceeding and it would have made section 282 directly relevant and relevant for the accused counsel to know about in making a decision whether to call his client or not.

Can I please take your Honour’s attention to page 8 to ruling No 3 at the bottom of the page. As late as day 40, at the bottom of the page, the learned trial judge says:

s 282 deals not only with reasonable skill and care in performing the surgery – as does s 288 – but also with the reasonableness of performing the procedure at all –

which is the decision to operate –

something s 288 does not touch –

He then decided that he would reject the prosecution’s argument that this was the correct way to proceed and that the prosecution, if it was to succeed, had to succeed under section 288. In our respectful submission, the trial miscarried at that point. Two days later, in ruling No 4, the learned trial judge - - -

KIEFEL J: Do I take it from ruling No 3 that it was the defence that contended that section 288 was, if anything, the appropriate provision under which to proceed?

MR KELLY: Yes, your Honour. Then in ruling No 4 two days later, the Crown then also submitted the opposite from what it had submitted in ruling No 3 and said, no, you can continue with the trial on section 288. The learned trial judge accepted that submission, but he did not explain clearly why his views had diverged so widely from what he had held two days before. Once the Court of Appeal decided – the judge had this idea that 282 - - -

FRENCH CJ: Just finish off, thank you.

MR KELLY: Sections 282 and 284, the difference between them was one of consent. Once the Court of Appeal decided the difference between those decisions did not turn on the issue of consent, then the in terrorem examples given by the Court of Appeal in paragraph 40 of their reasons about cases that might not be caught by section 288 no longer have any currency or apply because if the prosecution’s argument in ruling No 3 had been accepted, those cases can be dealt with under that rubric. May it please the Court?

KIEFEL J: Mr Kelly, just before you sit down. Your ground in relation to the late change of direction of prosecution case, is that ground 2(b), just the general miscarriage of justice?

MR KELLY: Yes, your Honour.

KIEFEL J: How would you further particularise it? How would you summarise what your ground really is in relation to that?

MR KELLY: We would say that by that late in the trial so much prejudicial evidence had been heard about incompetent surgery by the applicant that it was no longer safe to allow the trial to continue on the very narrow basis upon which it was put to the jury and it would have been confusing for the jury to dissect evidence about incompetent surgery and incompetent decisions to operate.

FRENCH CJ: At 305 of the application book, I think, is where your draft notice of appeal is set out and that would be a particularisation of what is characterised there as ground 3. I think it reflects 2(b) in the application for special leave, is that right?

MR KELLY: Your Honour the learned Chief Justice, I did not quite understand that last question you asked me, I am sorry.

FRENCH CJ: We are really talking about ground 3 in your draft notice of appeal at 305.

MR KELLY: Yes.

FRENCH CJ: All right. Yes, we will hear from Mr Martin.

MR MARTIN: May it please your Honours, my friend’s argument depends on the proposition that there is a relevant distinction between the decision to operate and the conduct of the operation itself and he draws attention in summing-up two words where the expression “decision” applies. However, it was quite plain what the jury had to find. Can I take your Honours to page 35 of the application book. Theses are the directions in the case of Mr Morris. There are parallels elsewhere:

1. By proceeding to perform the sigmoid colectomy . . .
   
3. His proceeding to perform the operation involved such a great falling short of the standard –
   

and so on.

BELL J: Can I just inquire, Mr Martin, do you see on page 35 in point 1:

By proceeding to perform the sigmoid colectomy, the Accused did not have reasonable skill, or else did not use reasonable care, in administering surgical treatment –

How does that fit with, if one turns to application book 279 in the reasons of the Court of Appeal, one sees at paragraph [139] that the jury were informed, firstly, that:

It is critical to appreciate that this trial is not about botched surgery.

Then the concluding point:

The prosecution contends that the operations were unnecessary or inappropriate.

That, as a summary, does not seem to sit with particular 1 of the elements, as you say, of the case put in respect of the manslaughter of Mr Morris.

MR MARTIN: Your Honours, the answer is that the concept of administering surgical treatment is a wide one and so the reasonable skill or reasonable care, the administering of surgical treatment – and I have attached the material, Royston Cook (1979) 2 A Crim R 151 – broadens the concept to include the failures to do things, decisions and so forth that it is sufficiently wide that it is accurate at page 35 of the application book to say did not use reasonable skill or reasonable care in administering surgical treatment.

BELL J: Just to be clear, the case, as narrowed, was a case that was confined to the conduct of an operation in circumstances in which the operation was unnecessary or the performance of it was inappropriate? That was the sole basis, is that right?

MR MARTIN: Subject to one qualification in respect of Mr Kemps’ case, there was criticism of what I might call intraoperative error, but that does not detract from the generality of your Honour’s proposition, I accept that. The reason the case was so confined, of course – and my friend points to ruling 3 and ruling 4 – is this. His Honour gave preliminary hints through the trial that it might be that a decision to capture – sorry, conducting an operation that was unnecessary or misconceived, if I can use that expression, might not be captured by the criminal law at all. Consequently, the Crown’s particulars were drafted so as to capture all the possibilities that emerged from the evidence, but the intraoperative mistakes that were made were still necessary and relevant in order to prove causation. So that where my friend now says that evidence got in that should not have got in rather misses the point that the evidence went to other issues and the Court of Appeal so found.

BELL J: Is this a submission that notwithstanding that the case that the conduct of the surgery itself was incompetently performed was abandoned, it was relevant to leave evidence tending to establish that fact in order to establish causation for manslaughter?

MR MARTIN: No, perhaps, your Honour, I have expressed myself badly. What I meant to convey is that so far as the issue of criminal negligence is concerned, the Crown focused on the operation being misconceived or unnecessary. The Crown had to say that was where the negligence arose. However, it was also necessary to demonstrate in the course of the operation and subsequently that the consequences were causally linked, that is a different issue.

KIEFEL J: Well, that are the consequences, but you are – that is the result, but it could not have been an issue, was it, that the patients died, apart from the charge of grievous bodily harm? I mean, the results could not have been an issue?

MR MARTIN: Yes, they were.

KIEFEL J: The evidence went further. The evidence involved what the accused had done negligently in the course of the operation. That is the area for discourse, is it not?

MR MARTIN: It is here, but at the trial it was not. It was hotly contested until the end that there was a causal nexus.

FRENCH CJ: How did the Oregon order fit into the structure of the 288 case?

MR MARTIN: The prosecution said that a particular of negligence was that he knew of his limitations because of the Oregon order with which he had agreed and he did not adhere to the terms of the order, mutatis mutandis applying here, and performed operations that were captured by the Oregon - - -

FRENCH CJ: It did not go to the presence or absence of skill and so forth. It went to his state of mind. I am just wondering how you are putting it within the Code structure.

MR MARTIN: Yes. I am using Mr Morris as an example. This is the way the particular emerged in that. One of the particulars of negligence was the accused was subject to and consented to an order of the Oregon Board of Medical Examiners which required him to obtain a second opinion from a surgeon on such a patient and the accused did not do so. So the articulation of the particulars of that was, as I have just read, put as one of the particulars of negligence in that form.

FRENCH CJ: Well, it appears, does it not, at the bottom of pages 21, the top of page 22:

The terms of the order can only be used by you in the specific ways I now direct, namely:

(1) in considering the weight to be attached to a patient’s choice to undergo a procedure; and

(2) its requirements might be thought to suggest that the Accused had reason to reflect, before commending major surgery to patients, on any pertinent deficiencies there may been in his knowledge and aptitude.

MR MARTIN: Yes. I respectfully submit, that is not substantially different and, I should add, there was no criticism at the trial or in the Court of Appeal of the summing-up.

FRENCH CJ: I am not concerned about that. I am just concerned about how 288 was operating and this gives a little perhaps window into an aspect of its application as the trial judge saw it.

MR MARTIN: Yes.

FRENCH CJ: I suppose the question is here whether we have a question of principle of some importance arising out of the construction of a provision, which I think appears also in the Western Australian Code and the Tasmania Code, is that right?

MR MARTIN: I am not sure about the Tasmania Code. It is in the Western Australian Code.

FRENCH CJ: Yes.

MR MARTIN: Your Honour, the simple point, I suppose, is this. I have set out my response in the outline and I do not want to descend into that in great detail, but if the applicant’s argument is correct, then some cases of medical negligence, intraoperative error, are captured by 288 and subject to the obligation of the Crown to prove criminal negligence and some cases of medical negligence are not. They are to be found in section 282 and not subject to the obligation to prove criminal negligence, and that is a particularly unattractive outcome. If the Crown’s proposition is correct, then they are all captured by 288. No great violence is done to the words of section 288 if one considers “in doing such act” to capture the concept in doing such act at all and, respectfully, that is the clearest and most simple resolution of how this is to be achieved, as his Honour ultimately found at the trial.

FRENCH CJ: That goes to the proposition that the decision of the Court of Appeal was correct.

MR MARTIN: I accept that, your Honour, and I am simply trying to articulate what strange consequences flow. Section 288 is not the source of liability in this case. If 291 and 293 are the source of liability, then that proposition overturns a long body of authority going back to Evgeniou (1964) 37 ALJR 508 and unpacks potentially the issue that all cases of criminal negligence could be subverted by going via 291 and 293 and then simply forcing the defence to make what it could of section 23 without the Crown having to prove criminal negligence. That is why orthodox reasoning would, in my respectful submission, lead to the conclusion that 288 is the source of liability and 282 and had no application to the case simply because once the Crown proved 288, necessarily, 282 was excluded.

Your Honours, can I move to what is said about the miscarriage of justice point. Much of that depends on that 282 and 288 cases are – sorry, that the case propounded by the applicant is correct. My friend uses epithets such as the case changed dramatically and so forth. With respect, that is not correct. It was simply more focused so that there was greater reason summing-up. There was not a multiplication of alternative possibilities and so on.

KIEFEL J: But you say that the relevance of the need for the evidence to remain and the explanation for its relevance is that that is the evidence of what took place in the course of surgery is in relation to causation, that is it. That is the issue, is it?

MR MARTIN: It is said that material became irrelevant once the case became focused on the conduct of the surgery at all. That is not so and my - - -

KIEFEL J: Once it became narrowed to the entry upon the surgery which may incorporate a decision or whatever, but the evidence in question here, about which the defence object, is the evidence about the surgery itself and the manner in which the surgery was performed.

MR MARTIN: Your Honour, the answer to that is, as I have tried to articulate, that there were other issues in the case being litigated. This was not a case - - -

KIEFEL J: I am just trying to understand what you say was the basis for that evidence and I had understood you to say earlier that it went to the issue of causation. What other issue did it go to if not causation?

MR MARTIN: Of course the question of grossness of negligence and the issue of the extent to which he did, indeed, have the relevant skill.

BELL J: This is taken up somewhat, I think, at application book 261 paragraph [58] in the reasons of the Court of Appeal where it is said that:

Although the trial judge rightly acknowledged the change in direction of the prosecution case from negligent performance of the surgery to a negligent decision to perform surgery, he appeared to be of the view that the prosecution was entitled “to rely upon every little thing that . . . happened . . . in whatever circumstances, on the basis that it tends logically to prove that he knew that he was not up to performing these procedures and persisted with them nonetheless –

Now, just on the face of that without understanding more about the issues and the evidence, that does seem to be a shift back to some criticism of the conduct of the procedures as distinct from the procedures being unnecessary or inappropriate.

MR MARTIN: Yes, your Honour. My response to that is that the particulars, as discussed, were focused on what the Crown said was wrong. It did not mean that the Crown said that intraoperative error was irrelevant and that is simply one articulation of that proposition. There were other reasons.

KIEFEL J: You are saying that this evidence was relevant to prove that, in fact, he had limitations upon his ability?

MR MARTIN: In addition, of course, that each time he performed such a major operation, each new time he performed it, he had knowledge of what had gone wrong on in the previous ones. So that as time went by his criminality became, as it were, more gross because he knew of the failures earlier.

KIEFEL J: In relation to the narrowed case involving whether or not he ought to have entered upon surgery at all, you say that at issue was knowledge of his own limitations?

MR MARTIN: Yes, because that is relevant to the question of the grossness of negligence. Your Honours, can I clarify a point that my friend made which talks about a change in the case as though the Crown had only ever run the case on the basis of intraoperative error and then radically changed it to operation at all. The Crown had covered all of those things in its particulars and so the change of the case was simply a contractual rather than a shift from A to B. It started off as an A plus B and became A. My friend points in ruling No 3 at the bottom of page 8 to a proposition that his Honour, speaking ex tempore, spoke of, then it says it is unexplained why he changed his view from “something 288 does not touch, probably because it assumes consent.” Of course, the answer to the change is that after this he had the benefit of argument that 288 did apply.

BELL J: It may not help you too much, Mr Martin, that such an experienced judge as the trial judge expressed the reservations he did about the correct construction of section 288.

MR MARTIN: Your Honours, at the point at which he said that, at the bottom of page 8, he did not have the benefit of Royston Cook’s Case and that, with respect, was a significant feature in his change of reasons. Those are our submissions.

FRENCH CJ: Just bear with us for moment. Mr Kelly, can we just hear from you in relation to the – coming back for a moment – miscarriage of

justice ground, ground 3 at page 305. Can you try and encapsulate – I appreciate it is not necessarily a fine-tuned drafting – but encapsulate the points that you make under that heading, if you were required to provide particulars?

MR KELLY: Your Honour, can I do it this way. In a trial that by this stage had gone for 40 days, much prejudicial evidence had been led about the alleged incompetence of the applicant in performing surgery, a case which was abandoned by the prosecution and based upon such particulars at that time that the judged described as being not coherent, we would - - -

FRENCH CJ: Well, is that raising the question of refusal to discharge the jury?

MR KELLY: Yes, your Honour. Can I answer your question in another way as well. If the charge had been at the start of the trial that this is about a decision to operate and taking the patient to the operating theatre, it may well have been that the defence would have admitted that there was causation that the patients had died from the operations and a lot of debate then would have centred in the trial upon what evidence about incompetent surgery could possibly be relevant to the jury.

The other thing, could I please raise with you, your Honour has asked me how would we expand miscarriage of justice. Our learned friends seeks to downplay the change in the case that occurred, but it was a dramatic change in ruling No 3 because the prosecution decided to abandon any reliance on section 288 and seek to go by another means which it obviously recognised was correct and the judge refused that. So it was obviously an important change in the case. My learned friend has also mentioned there was an intraoperative error with Mr Kemps.

Can I just deal with how, if we had to particularise miscarriage of justice, we would do so and I will do it briefly with Mr Kemps. Dr Patel performed an esophagectomy on Mr Kemps because he had a cancerous growth, and that is at appeal book 91, line 10. He recommended that operation only after a long discussion about the merits of surgery versus palliative chemotherapy, and that is in the application book at 94, lines 30 to 40. Two anaesthetists concurred with the appellant’s decision that Mr Kemps was fit for the surgery. The first case put to the jury by the judge was that the esophagectomy should not have been performed at all, and that is at application book 99. That was consistent with the case you have heard about.

The complaint was made that Mr Kemps’ health was too precarious for that operation to occur, but it gets much more confusing than that because a second case was put to the jury and that case was that when Mr Kemps had bleeding not caused by incompetent surgery, that Dr Patel delayed too long in looking for the source of the bleeding. In fact, he did look for the source of the bleeding with two other doctors. He could not find it after three hours of looking and unfortunately he had to stop the operation and Mr Kemps died.

Now, one interpretation of the verdict of manslaughter in relation to Mr Kemps is that Dr Patel failed to operate soon enough on the second procedure to stop the bleeding when no one was able to establish what the cause of the bleeding was and it was accepted that bleeding had not occurred by incompetent surgery. You will find that at application book 99. The second case is outlined by the trial judge at application book 102 to 103. So if we had to give further particulars about a miscarriage of justice, we would say that was thoroughly confusing and inconsistent with the idea that the applicant was convicted of operating upon Mr Kemps when he was not fit to withstand the operation. There were three doctors who looked at the patient, all three accepted that he was fit. No one said he was not. May it please the Court.

FRENCH CJ: Yes, thank you. This application incidentally required an extension of time and that is not opposed, I gather, Mr Martin?

MR MARTIN: No, it is not.

FRENCH CJ: Yes, all right. So the time is extended. The Court proposes to make a grant of special leave in relation to ground 2 in the draft notice of appeal. The application for special leave in relation to ground 3 will be referred to an expanded court. It will be necessary, Mr Kelly, for you to particularise that ground in such a way as to support an application for the grant of special leave in relation to it. Now, in terms of estimate of time - - -

MR KELLY: Your Honour, if the appeal is to be limited to the ground you have indicated, it would be less than a day and if it includes ground 3, it would be between one - - -

FRENCH CJ: Well, you would bring ground 3 up at the same time, but the question would be whether you had formulated it in such a way as to warrant the grant of special leave. So you have to assume that you are arguing ground 3 as on an appeal unless the Court decided to refuse special leave.

MR KELLY: I beg your pardon. The appeal could go from one to two days, your Honour, with respect.

FRENCH CJ: Yes. Mr Martin?

MR MARTIN: I would accept that it could go up to two days, your Honour, with the addition of ground 3.

FRENCH CJ: Well, that will be the orders. There is a standard instruction as to timeframes for filing of submissions which you should have available to you. Thank you. The Court will adjourn now to reconstitute.

AT 10.21 AM THE MATTER WAS CONCLUDED