High Court of Australia

Patel v The Queen [2012] HCA 29

247 CLR 531; 86 ALJR 954; 290 ALR 189

24 Aug 2012

Case Number: B11/2012 B25/2011


French CJ, Hayne, Heydon, Kiefel, Bell JJ


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.

Criminal law – Appeal – Application of "proviso" – Irrelevant and prejudicial evidence admitted – Whether no substantial miscarriage of justice actually occurred – Consideration of Wilde v The Queen (1988) 164 CLR 365 and concept of fundamental error.

Words and phrases – "fundamental error", "miscarriage of justice", "moral culpability", "no substantial miscarriage of justice has actually occurred", "proviso", "surgical treatment".

Criminal Code (Q) – ss 282, 288-289, 303, 320, 668E(1)-(1A).

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