R v Patel[2009] QSC 166

SUPREME COURT OF QUEENSLAND

1. PETER LYONS J:  On 24 April 2009 an indictment was presented charging Dr Patel with a number of offences.  It included three counts of manslaughter (counts 9, 10 and 11), a count of unlawfully doing grievous bodily harm with an alternative count of the unlawful removal of an organ causing actual bodily harm (counts 12 and 13), and another count of unlawfully doing grievous bodily harm (count 14).  The present application seeks in substance a ruling for separate trials of these counts.

Background

2. The indictment initially included certain counts of fraud, and one count of attempted fraud. On 3 June 2009, Byrne SJA ordered that there be a separate trial on the fraud-related charges.

3. The remaining six counts relate to surgery carried out by Dr Patel in the period from 19 May 2003 to 21 December 2004. Five different patients were involved. In two cases, the surgical procedure was an oesophagectomy. The treatment of the other three patients involved (respectively) a sigmoid colectomy, with a subsequent surgical procedure; a proctocolectomy with ileostomy (an operation involving the removal of the patient’s large bowel), and a subsequent operation to revise the stoma (the stoma is described as a hole created in the abdomen, to which the remaining functional part of the higher gastrointestinal tract was linked); and the removal of the submandibular gland (which was not malignant, and without the removal of a deeper tumour).

4. Not surprisingly, the patients were of different ages, and had different conditions of health prior to these procedures. The causes of death for the patients who died are differently described.

5. All of the procedures on which the six counts are based were carried out by Dr Patel at the Bundaberg Base Hospital.  It will be part of the prosecution case that this hospital was a “Level 1” hospital which did not have the capacity to deal with complicated surgery, or cases where the patient was likely to need lengthy time in the intensive care unit.  It will also be part of the prosecution case that, prior to working at the Bundaberg Base Hospital, Dr Patel had been the subject of investigation by the Board of Medical Examiners for the State of Oregon in the United States, which is the State agency responsible for licensing, regulating and disciplining certain health care providers, including physicians (the Oregon Medical Board), as a result of an adverse report from his then employer.  That resulted in a Stipulated Order, agreed to by Dr Patel, in which Dr Patel acknowledged he had made surgical errors and that his surgical practice had been restricted by his employer to exclude any surgeries involving the pancreas, any resections of the liver, and the construction of ileoanal pouches.  The result of the order was that Dr Patel’s practice was to exclude surgeries involving the pancreas, any resections of the liver, and any constructions of ileoanal pouches; and he was required to obtain a second opinion preoperatively on complicated surgical cases from other surgeons.  Complicated surgical cases were defined in the order to include major surgeries (abdominal-perineal resections, oesophageal surgeries, and gastric surgeries; as well as soft tissue malignancies); high risk patients with severe co-morbidities or with a classification of 4 or 5 in accordance with the American Society of Anaesthesiologists; or post-operative patients with more than two-days stay in the intensive care unit; or more than eight-days stay in the hospital; or the onset of clinical deterioration.

6. The present application seeks a ruling that each of counts 9, 10, 11 and 14 be tried separately; and that there be another separate trial for counts 12 and 13. The written submissions sought to amend the application by providing additional statutory references, and seeking a consequential order. The written submissions on behalf of the prosecution did not challenge the application for leave to amend, and accordingly I propose to grant it.

7. In substance, Dr Patel’s application is based on s 567 of the Criminal Code 1899 (Qld) (Criminal Code) (which prohibits the joinder in an indictment of more than one offence); and s 597A of the Criminal Code (which gives the court the power to order a separate trial of any count or counts on an indictment charging a person with more than one offence).

Prosecution case

8. Some of the submissions advanced on the application make it necessary to refer in a little more detail to the prosecution case on each count. It has been summarised in a document provided to me on behalf of the prosecution. It includes the background matters to which I have referred earlier.

9. Counsel for Dr Patel have identified the factual matters in the summary for which they do not accept that there is a basis in the evidence. In respect of those matters (save for one which is qualified), Counsel for the prosecution have identified the evidence relied upon.

10. The patient on whose treatment count 9 is based was Mr Mervyn Morris. Blood tests taken by his general practitioner had revealed a real possibility that Mr Morris suffered from liver cancer. Mr Morris was then referred to Dr Jayaseker, at the Bundaberg Base Hospital.  Dr Jayaseker ceased working at the Bundaberg Base Hospital shortly after Dr Patel commenced working there.  Dr Jayaseker ordered further blood tests of Mr Morris, and booked him for an urgent colonoscopy and oesophagagastroduodenoscopy.  The blood tests ordered by Dr Jayaseker, as well as a subsequent blood test, indicated signs of liver cancer.

11. Dr Patel conducted the colonoscopy and oesophagagastroduodenoscopy on 9 April 2003. There is evidence that Mr Morris should have been treated conservatively until it was determined whether he was suffering from liver cancer.

12. At this time, Mr Morris had been suffering from rectal bleeding for some months. About three years previously, he had received radiation therapy for prostate cancer. That can result in radiation proctitis, which may be evidenced by rectal bleeding up to three years after the radiation therapy. On 2 May 2003, Dr Patel conducted another colonoscopy, but could not determine the source of the continuing rectal bleeding. Mr Morris returned to the hospital on 20 May 2003, complaining of intermittent bleeding, and on 23 May 2003, Dr Patel performed a resection of the sigmoid colon, oversewing the distal bowel and bringing the proximal end out onto the abdominal wall as a colostomy.

13. There is evidence from Dr Collopy that it was clear from the hospital records that there was no need to operate on Mr Morris on 23 May 2003.

14. Dr Patel had diagnosed the cause of bleeding as diverticular disease. Dr Collopy says that there was insufficient information on which to base this diagnosis. The pathology report subsequent to the operation on 23 May 2003, while it did reveal diverticular disease, did not show any evidence of a site from which the bleeding might have occurred. In fact Mr Morris continued to bleed after the operation.

15. Further, Dr Collopy says that the procedure chosen by Dr Patel was not appropriate, as there were no indications for it, and in the event of recovery, a second operation to restore bowel continuity would be required.

16. Further, Dr Collopy says the operation was itself not performed well, and in particular, the creation of the stoma (the link out through the abdominal wall) was “less than optimal”.

17. Wound dehiscence (the splitting of an organ or tissue) subsequently occurred on 30 May 2003, resulting in an operation for the purpose of repair work and a washout. Mr Morris’s condition worsened and he died on 14 June 2003, directly or indirectly as a consequence of the operations to which he had been subjected. Dr Patel is said to have failed to properly monitor Mr Morris’s post-operative condition and in particular abdominal extension and nutrition.

18. Any attempt to identify the conclusions to which a jury might come at a trial, on the basis of the proposed evidence, is subject to a number of qualifications. One is that the evidence-in-chief might vary from what has been identified. The second is that it might be qualified or changed as a result of cross-examination. The third is that medical evidence might be called on behalf of Dr Patel, which the jury might prefer. The fourth is that for other reasons, the evidence might not be accepted. Taken together, these are major qualifications. They are also relevant for the consideration of the proposed evidence in support of the other five counts.

19. Subject to those major qualifications, the proposed evidence in respect of count 9 might be said to show the following:-

1. Dr Patel carried out major surgery on Mr Morris, at a time when there was no need for this surgery;

2. Dr Patel carried out major surgery on Mr Morris, at a time when there was insufficient information on which to base a diagnosis;

3. No decision should have been made to carry out the surgery until it was determined whether Mr Morris was suffering from liver cancer;

4. Dr Patel wrongly diagnosed the cause of Mr Morris’s rectal bleeding;

5. The surgery which Dr Patel carried out was the wrong procedure, there being no indications for it, and because in the event of recovery a second operation to restore bowel continuity would be required;

6. The surgery was not performed well;

7. After the surgery was carried out by Dr Patel, Dr Patel failed properly to monitor Mr Morris’s condition;

8. As a consequence of Dr Patel’s treatment, Mr Morris developed wound dehiscence;

1. As a consequence of Dr Patel’s treatment, Mr Morris died.

20. Count 10 arises out of the death of another patient of Dr Patel, a Mr Phillips. On 19 May 2003, Dr Patel carried out an oesophagectomy on Mr Phillips. This commonly involves an abdominal operation to access the lower end of the oesophagus, followed by an operation called a thoracotomy in which the lung is deliberately deflated to access the upper part of the oesophagus, followed by the removal of the oesophagus. Dr Patel has apparently asserted that his method of performing an oesophagectomy did not involve a thoracotomy.

21. Prior to the operation, Mr Phillips was suffering from poor health. His condition included chronic renal failure, for which he was undergoing regular dialysis. Prior to operating, Dr Patel did not consult the specialist in charge of the renal unit at Bundaberg Base Hospital, who was treating Mr Phillips.  That specialist and other doctors have expressed the opinion that, in view of Mr Phillips’s health, it was negligent for Dr Patel to conduct an oesophagectomy on him.

22. Nor was the treatment called for. Three doctors have expressed the view that although Mr Phillips was suffering from oesophagal cancer, it was not at a stage that required surgery, and there were other safer, non-invasive treatments available.

23. A number of doctors have expressed the view that it was negligent to carry out this procedure at the Bundaberg Hospital, given its Level 1 status.

24. In the course of performing the operation, Dr Patel, while trying to locate a tumour, tore the oesophagus to such an extent that it was necessary to make an incision in the neck to perform an anastomosis (the rejoining of tissues after the excised parts were removed) at this location, rather than lower in the left chest as planned. For this reason, and because of other mistakes made by Dr Patel during the surgery, the oesophagectomy took a long time, with the result that Mr Phillips lost significant body heat, thereby compromising his prospects of recovery.

25. Mr Phillips died on 21 May 2003.

26. In summary, subject to the major qualifications previously mentioned, this evidence can be said to show the following:

1. Dr Patel undertook major surgery on Mr Phillips.  That surgery, an oesophagectomy, was not warranted by Mr Phillips’s oesophageal cancer, there being other, safer treatments available;

2. Mr Phillips was in poor health.  Even if an oesophagectomy were an appropriate means of treatment for his oesophagal cancer, his health was such that he was not an appropriate patient for this form of surgery.  It was negligent for Dr Patel to carry out an oesophagectomy on a person in the condition of Mr Phillips.  Dr Patel’s negligence is aggravated by the fact that he failed to consult the doctor in charge of the renal unit at the Bundaberg Base Hospital, who had been treating Mr Phillips;

3. Again, given the relatively low level of the intensive care unit at the Bundaberg Base Hospital, and the matters identified in relation to the oesophagectomy carried out on Mr Phillips, it was inappropriate to perform such an operation at this hospital;

4. The surgery was poorly performed.  This resulted in it taking a long time, with consequent loss of body heat, which compromised the prospects that Mr Phillips would recover.

27. At this point mention should be made of evidence in relation to another patient which it is proposed to call. The patient is a Mr Graves. Dr Patel carried out an oesophagectomy on Mr Graves shortly after the surgery on Mr Phillips. Mr Graves’ post-operative history was very troubled. Dr Patel undertook a further five operations to rectify problems following the oesophagectomy on Mr Graves. He was then convinced to transfer Mr Graves to the Mater Hospital in Brisbane, where he was treated by Dr Cook, who was in charge of that hospital’s intensive care unit.  Dr Cook was concerned that oesophagectomies were being performed in a hospital with only a level 1 intensive care unit, and he wrote to the Bundaberg Base Hospital.  Some of the issues raised by Dr Cook were then discussed with Dr Patel.

28. Mr Graves was subsequently treated for a long time in the Mater Hospital intensive care unit, before being returned to the Bundaberg Base Hospital.  He died in January 2004.  However, none of the counts relates to Dr Patel’s treatment of Mr Graves, nor does the summary of evidence attribute his death to that treatment.  He died of cancer.

29. The admissibility of this evidence on any of the counts raises its own separate question. It is not obvious that I need to consider that question, because it does not seem to me to affect the ruling I am asked to make. Nevertheless, for the sake of completeness, I shall identify the things which I consider appear from that evidence (which is also subject to the qualifications I have mentioned):-

1. Dr Patel undertook major surgery on a patient at Bundaberg Hospital, which because of its Level 1 status, was not an appropriate place to perform that surgery;

2. Notwithstanding significant post-operative complications requiring five further operations, Dr Patel persisted in treating the patient at the Bundaberg Hospital and was reluctant to have the patient transferred to a hospital more appropriately equipped and better able to care for the patient.

30. Count 11 arises out of the death of Mr Kemps. Mr Kemps, too, had been in very poor health. He had ischemic heart disease, impaired renal function, hyperuricaemia (excess of uric acid in the blood), and left carotid artery bruit (murmur). There was also reason to think that Mr Kemps was suffering from cancer.

31. On 20 December 2004, Dr Patel carried out an oesophagectomy on Mr Kemps. However, it is said that Dr Patel had not carried out adequate primary investigation of the presence of cancerous disease elsewhere in Mr Kemps’ body, necessary to determine the value of the oesophagectomy, which had to be weighed against the risks associated with such an operation. There is medical evidence that in the circumstances, an oesophagectomy was the wrong treatment, and that it was negligent for Dr Patel to carry out this treatment.

32. Further, there is medical evidence that for a person with Mr Kemps’ health, it was inappropriate to undertake an oesophagectomy, and that it was negligent for Dr Patel to do so.

33. Again, there is again medical evidence that it was inappropriate to perform an oesophagectomy at the Bundaberg Base Hospital, because of its level 1 status.

34. At the end of the oesophagectomy, Mr Kemps was suffering from continuing internal bleeding. This was drawn to the attention of Dr Patel by the anaesthetist and others immediately after the completion of the surgery. Dr Patel was scheduled to perform another operation, which was elective surgery. Before Dr Patel commenced the elective surgery, it was again drawn to his attention that Mr Kemps was suffering from continuing internal bleeding. Mr Kemps’ condition was again brought to his attention during the course of the elective surgery. However, Dr Patel did not on any of these occasions act to stop the bleeding.

35. The elective surgery took four hours, and Dr Patel subsequently apologised to the patient for making a mistake in the course of the surgery. This surgery took significantly longer than usual.

36. Approximately five hours after the original surgery on Mr Kemps, Dr Patel again operated on him, to treat the internal bleeding. Dr Patel was unable to find the source of it. There is medical opinion that Dr Patel would have gained invaluable assistance from a specialist general surgeon or a vascular surgeon, but Dr Patel did not seek such assistance. Dr Patel completed the second operation on Mr Kemps, without stopping the internal bleeding. Mr Kemps died on 21 December 2004, as a consequence of loss of blood.

37. There will also be medical evidence that Dr Patel performed either or both operations in a negligent manner, some of that evidence coming from the anaesthetist who worked with Dr Patel in the operations on Mr Kemps.

38. Subject to the major qualifications previously mentioned, the evidence shows the following:

1. Dr Patel carried out major surgery on Mr Kemps;

2. He carried out this surgery without adequate primary investigation into the presence of other cancerous disease elsewhere in Mr Kemps’ body, which was necessary to determine the value of an oesophagectomy, and was accordingly negligent;

3. Regardless of the indications which might support carrying out an oesophagectomy, Mr Kemps’ poor health was such that it was inappropriate to carry out this surgery on him, and it was negligent of Dr Patel to do so;

4. It was inappropriate to perform the oesophagectomy at Bundaberg Base Hospital, given the relatively low level of the intensive care unit;

5. The oesophagectomy was concluded at a time when Mr Kemps continued to suffer from internal bleeding;

6. Mr Kemps’ condition was brought to Dr Patel’s attention at the conclusion of the oesophagectomy, again before Dr Patel’s next scheduled operation, and during that operation.  Dr Patel delayed responding to Mr Kemps’ condition, choosing instead to proceed with elective surgery on another patient.  It was not until approximately five hours after the completion of the oesophagectomy that Dr Patel attempted to treat the internal bleeding;

7. In performing the elective surgery, Dr Patel made a mistake, and that surgery took longer than usual;

8. Dr Patel failed to obtain the assistance of other specialists in dealing with Mr Kemps’ internal bleeding, which assistance would have been invaluable;

1. Dr Patel completed the second operation on Mr Kemps without stopping the internal bleeding;

10. A consequence resulting from Dr Patel’s treatment of Mr Kemps was that Mr Kemps died on 21 December 2004 from loss of blood.

39. Counts 12 and 13 allege that Dr Patel did grievous bodily harm, or in the alternative, bodily harm to Mr Blight.

40. In April and early May 2003, Mr Blight had been complaining of a sore throat and swelling and a lump on the right side of his throat. On 16 May 2003, Dr Patel performed a total thyroidectomy and a limited lymph node dissection. Subsequent tests on removed tissue showed papillary carcinoma of the thyroid, with lymph node metastases. Dr Patel failed to order radioiodine treatment after the operation which would have been routine practice.

41. After this operation, Mr Blight continued to have problems, namely, a sore throat and swelling, and the lump was still present. Mr Blight returned to Bundaberg Base Hospital, where another doctor noted a mobile one centimetre lymph node on the right lower neck.

42. Dr Patel operated on Mr Blight a second time on 17 January 2005. He removed a normal submandibular gland (this gland is a saliva gland, and is located just under the right jaw). Subsequent testing showed no malignancy in the gland, but Dr Patel did not take further action.

43. In April 2005, another doctor saw Mr Blight. There was a tissue mass on the right neck, visible to the naked eye. Needle biopsy and a tru-cut biopsy both returned suspicious results. This mass was not near the site from which the submandibular gland had been removed. Another doctor carried out a number of tests, and subsequently operated on Mr Blight, removing a right para-pharyngeal tumour.

44. There is medical evidence that the removal of the submandibular gland, and the failure to detect the other tumour, were the result of a misdiagnosis by Dr Patel.

45. Subject to the major qualifications previously mentioned, the evidence in relation to this count could be said to show the following:

1. Dr Patel carried out surgery on Mr Blight and in doing so, he unnecessarily removed a normal organ;

2. In performing the surgery, he failed to remove a tumour.  The tumour was relatively obvious;

3. Dr Patel’s work was the result of a misdiagnosis.

46. Count 14 alleges that Dr Patel did grievous bodily harm to another patient, Mr Vowles. The essence of the allegation is that Dr Patel unnecessarily carried out a total bowel removal.

47. On 11 November 2003, Dr Patel carried out a colonoscopy on Mr Vowles at the Bundaberg Base Hospital.  Subsequently, Dr Patel told Mr Vowles that he had found a cancerous tumour in his bowel, which he would remove.  Dr Patel operated on Mr Vowles for this purpose on 8 December 2003, and subsequently told Mr Vowles that the operation was successful.

48. On 14 December 2003, Dr Patel performed another colonoscopy on Mr Vowles. He subsequently told Mr Vowles that he had found a benign growth on the wall of the bowel, but because Dr Patel could not see what was on the other side of the growth, there might be a cancer present, and that Dr Patel intended to carry out a total bowel removal. There is medical evidence that, during the colonoscopy procedure, Dr Patel could have removed the growth. Instead, he took small samples. The samples were analysed, but there was no positive finding of malignancy.

49. On 4 October 2004, Dr Patel operated on Mr Vowles, removing his bowel. The operation had the obvious, significant consequences for Mr Vowles’ health and amenity of life.

50. The bowel was sent for pathology tests, but there was no sign of cancer or malignancy.

51. As part of the operation carried out on 4 October 2004, it was necessary to connect the functional part of the higher gastrointestinal tract to the wall of the abdomen by means of a stoma. The operation was performed poorly. Subsequently, Mr Vowles had trouble with the stoma, and on 25 October 2004, Dr Patel again operated on Mr Vowles, for revision of the stoma.

52. There is medical evidence that the removal of the bowel on 4 October 2004 was unnecessary and severely affected the health of Mr Vowles. Removal of the growth on the wall of the bowel by a biopsy would have been more appropriate and more effective. Both operations carried out by Dr Patel were performed poorly, and the decision to attempt to correct the stoma so soon after the first operation was unwise.

53. Subject to the major qualifications previously mentioned, the evidence can be said to show the following:

1. Dr Patel carried out major surgery on Mr Vowles, the surgery being a total bowel removal, when there was no justification for the surgery;

2. There was an alternative and appropriate method for removing the growth from the wall of the bowel;

3. Dr Patel performed the bowel removal poorly;

4. Dr Patel performed the second operation prematurely and poorly;

5. The bowel removal operation had significant adverse consequences for Mr Vowles.

54. In respect of the surgery the subject of each of these counts, the prosecution alleges that it is surgery of the kind for which restrictions were imposed by the stipulated order of the Oregon Medical Board.

55. Before turning to the submissions of the parties on the application, it is useful to say something about statutory provisions which are relevant to the offences alleged in the six counts.

Statutory provisions relevant to offences

56. Three of the counts charged Dr Patel with manslaughter. The offence is created by s 300 of the Criminal Code.  Pursuant to that section, any person who unlawfully kills another is guilty of a crime, which, depending on the circumstances of the case, may be manslaughter.  Under s 303 of the Criminal Code, a person who unlawfully kills another under such circumstances as not to constitute murder, is guilty of manslaughter.  Under s 291, it is unlawful to kill any person unless such killing is authorised or justified or excused by law.  Under s 293, subject to other provisions which do not appear to be relevant, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that person.

57. Two of the counts (counts 12 and 14) allege that Dr Patel unlawfully did grievous bodily harm to two of his patients. The offence is created by s 320. It is unnecessary to make specific reference to the definition of grievous bodily harm in s 1 of the Criminal Code.  The term “unlawfully” in s 320 has been held to require no more than proof that the doing of the grievous bodily harm was contrary to law and not excused.^[1]

58. The offence of unlawfully doing an act which actually causes bodily harm is supported by s 328 of the Criminal Code.  That section provides that any person who unlawfully does any act, or omits to do any act which it is that person’s duty to do, by which act or omission bodily harm is actually caused to any person, is guilty of a misdemeanour.  Again, it is unnecessary to refer to the definition of bodily harm in s 1 of the Criminal Code.

59. In view of the circumstances in which the offences are alleged to have been committed, it is useful to note s 288 of the Criminal Code, which is in the following terms:

“288 Duty of persons doing dangerous acts

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.”

60. Reference should also be made to s 282, which provides that a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for that person’s benefit, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

61. At the hearing, submissions were made with reference to s 288, but not with reference to s 282. I subsequently invited Counsel to indicate whether they wished to make submissions about s 282 which differed from their submissions about s 288, and was told that they did not.

62. The prosecution accepts that the negligence necessary to establish a criminal charge is greater than that required in a civil case, and that the test to be satisfied is set out in R v Bateman.^[2]

Improper joinder?

63. The first statutory provision on which the application is based is s 567, which includes the following:

“567 Joinder of charges

(1)Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

(2)Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

64. It is submitted on behalf of Counsel for Dr Patel that the tests set out in s 567(2) are not satisfied.

65. In support of that submission, it is submitted that for all the offences of manslaughter, it is incumbent upon the prosecution to prove that Dr Patel caused the death of the three patients. However, the cause of death in each of the three cases is differently identified.

66. Counsel for the prosecution rely on a series of authorities relating to the proper joinder of offences in a single indictment. The first is R v Kray.^[3]  There it was said in respect of a statutory provision substantially the same as s 567(2):^[4]

“On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them.  Such nexus is certainly established if the offences are so connected that evidence of one would be admissible in the trial of the other, but it is clear that the rule is not restricted to such cases.”^[5]

67. Subsequently, it was said:

“It is not desirable, in the view of this court, that rule 3 (the equivalent of s 567(2)) should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the Judge’s discretion to sever the indictment.^[6]  All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.”

68. These passages were adopted in Ludlow v Metropolitan Police Commissioner^[7] by Lord Pearson.  His Lordship noted that the view that the English rule equivalent to s 567(2) should not be given an unduly restricted meaning, derived support from authority.^[8]  He then went on to say:^[9]

“At any rate, in my opinion, the manifest intention of the Act (which introduced rule 3) is that charges which either are founded on the same facts or relate to a series of offences of the same or similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the Judge has a discretionary power to direct separate trials under section 5(3).”

69. His Lordship had previously stated that the proper conclusion to be drawn from earlier authorities was that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.^[10]

70. These authorities were applied in Queensland in R v Collins, ex parte Attorney-General.^[11]  With reference to s 567(2), McPherson JA and Lee J said:^[12]

“It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law.  Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s 597A.  If nothing else, consistency in decision making would dictate that the one tribunal resolves such questions, little being gained from a fragmented approach … Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters which can be joined without prejudice to the accused ought generally to be.”^[13]

71. Their Honours had earlier said that in defining in broad terms what connection is sufficient to come within s 567(2), an examination of the cases demonstrates that an appropriately liberal reading is to be given to the text of that section, consistent with its underlying policy.^[14]

72. In R v Cranston,^[15] it had been held that it was not sufficient that the offences “be of similar character”, but there should also be some nexus between them.^[16]  The application of s 567(2) called for the administration of a test “in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present.”^[17]  Caution was counselled in concluding that multiple counts truly involve a series of the same or similar character.^[18]  In addition, a liberal exercise of the discretion to sever was recommended in doubtful cases.^[19]  It is to be noted that Collins was decided subsequent to Cranston, and that the conclusion in support of an “appropriately liberal reading” of s 567(2) followed very shortly a reference to Cranston.^[20]

73. It was submitted by Mr Callaghan SC and Mr Pincus who appeared at the hearing for Dr Patel that if evidence tendered in proof of one offence is not admissible in proof of another, then the two offences do not form a series for the purposes of s 567(2).  They rely for that submission on a statement in R v MAP.^[21]  Mr RG Martin SC and Mr Meredith who appear for the prosecution submit that the passage referred to from MAP does not state the current law in Queensland.

74. MAP was an appeal against conviction on one of two counts of rape, the appellant having been acquitted on the other count.  The first ground of appeal considered by the court was that separate trials should have been ordered in relation to the two counts.  In dealing with that ground, Keane JA (with whose judgment the other members of the Court agreed) considered together s 567 and s 597A of the Criminal Code.  Having referred to those sections, his Honour continued:^[22]

“If the evidence of each complainant was admissible on the charge relating to the incident alleged by the other complainant, then the offences charged against the appellant would form a series for the purposes of s 567 of the Criminal Code.  If that evidence were not admissible, then there would not be a series of offences, and, furthermore, the appellant would have been unduly prejudiced in his defence within the meaning of s 597A of the Criminal Code.”

75. As I read his Honour’s judgment, it seems to me that his Honour upheld this ground, on the basis that evidence of each offence lacked the strong degree of probative force necessary to justify its reception as proof of the other offence; and there were significant dissimilarities between the circumstances in which each offence was alleged to have been committed.^[23]  The conclusion that the first ground of appeal should be upheld did not distinguish between the two propositions advanced in paragraph [37] of his Honour’s reasons, namely, the offences did not form a series for the purposes of s 567; and the appellant would have been unduly prejudiced in his defence within the meaning s 597A.

76. Counsel for the prosecution relied on a subsequent decision of the Court of Appeal, R v Navarolli.^[24]  In that appeal, the second ground of appeal was that the joinder of the counts in the indictment gave rise to a miscarriage of justice.^[25]  The other members of the Court agreed with the reasons of Chesterman JA on this ground.^[26]  The Court was obviously conscious of its earlier decision in MAP, though it was referred to on a different topic.^[27]

77. In Navarolli, Chesterman JA quoted the following passage from the High Court’s decision in Phillips v The Queen:^[28]

“It was not in controversy that if the evidence of each complainant were admissible on the charges relating to incidents narrated by other complainants, it would be a ‘nexus or connection’ between the charges sufficient to make them a series within the meaning of s 567; and if the evidence were not admissible, there would not be a series, and unacceptable prejudice would not arise …”.

78. The similarity between this passage and paragraph [37] from the judgment in MAP is apparent.  Chesterman JA continued:

“From this case the appellant reasons that the only basis for a joinder of charges on the one indictment is that the evidence relevant to each charge be admissible as evidence supporting the others.^[29]

This is not what the section says.  It provides for three bases for joinder: charges founded on the same facts; charges which form part of a series of offences of the same or similar character; charges which constitute a series of offences committed in the prosecution of a single purpose.”^[30]

79. His Honour then adopted the passage from Kray which includes the statement that it is not necessary that evidence proving an offence also be admissible on other offences to permit their joinder as charges of a similar character.  His Honour also cited the passages from Collins referred to previously, and concluded that the ground of appeal was not made out.

80. Were the matter free from authority, I would have read s 567(2) as requiring a determination whether the offences which are included in a single indictment were of a similar character, and whether they formed part of a series (assuming that to be an added requirement: as a matter of language, it seems to me that similarity in character could be the quality which determines the existence of a series). The provisions of s 567(2) do not provide any obvious basis for holding either that charges are not of a similar character, or that they do not form part of a series, simply because evidence in support of one charge is not admissible in support of another charge. Protection from the potential prejudicial effect from hearing evidence which is admissible on one charge but not on another seems to me more appropriately dealt with under s 597A. In view of the tension between the decision in MAP and the decision in Navarolli, that is the approach I propose to take.  However, in case that approach is wrong, I propose to consider the application of the statement previously quoted from MAP, on the basis it identifies the test for the existence of a series of offences of a similar character for the purposes of s 567(2).

81. The offences alleged in the six counts in the indictment are all based on allegations of negligent treatment by Dr Patel in his capacity as a medical practitioner. They all occurred at Bundaberg Base Hospital.  Three relate to unlawfully causing the death of patients.  The other three relate to unlawfully causing injury to patients in varying degrees.  All, therefore, involve causing harm to a person, though the degree of harm varies.  The proof of each depends upon the proof of criminal negligence.  A significant feature is the capacity in which Dr Patel was employed at the time of each offence.  In my view, there is considerable similarity in the legal character of the offences, and in the category of the offences,^[31] although the offences are by no means identical.  They extend over a significant period of time, but in my view, that does not mean that the test in s 567(2) is not satisfied.

82. Mr Callaghan SC indicated that I could assume, for the purposes of this application, that the Stipulated Order of the Oregon Medical Board was relevant to all offences. It, too, contributes support to the conclusion that the test in s 567(2) is satisfied.

83. Further support also comes from a consideration of s 288. In each case, Dr Patel was administering surgical or medical treatment to another person. Accordingly, in each case, he had a duty both to have reasonable skill and to use reasonable care in administering surgical treatment; and he is to be held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty. Counsel for Dr Patel have submitted that causation is in issue. A likely method of proving causation is found s 288. As I read the section, it identifies a duty which relates both to the method in which surgical treatment is carried out (the duty to use reasonable care) and to the surgeon’s capacity (a duty to have reasonable skill). The level of Dr Patel’s skill seems to me to be likely to be a common factor in all cases. There is little reason to think that, in Dr Patel’s case, it changed in the period to which the counts relate.

84. The potential loss of protection for Dr Patel provided by s 282 turns on somewhat similar questions, and again suggests a common factor.

85. In summary, I consider that the offences are similar in character at least because they relate to medical negligence in the performance of surgery with adverse consequences for the patients; and that there is a nexus between them by reason of the fact that Dr Patel performed the surgery at Bundaberg Hospital in the course of his employment there, and that each case will raise a question about his level of skill. There may be other ways in which the similar character of the offences, and the nexus between them, could be identified. As noted in Cranston, the language in which the tests have been formulated (and which does not correspond exactly with the language in the section itself) is imprecise.^[32]

86. If I were to regard the passage previously quoted from MAP as stating the test for joinder as authorised by s 567(2), the conclusion would not be different.  It will be recalled that the passage expressed the view that two offences were not a series for this provision unless the evidence admissible to prove one offence was also admissible to prove the other.

87. Mr Callaghan SC and Mr Pincus submitted that the test whether, in determining the accused’s guilt on one offence, evidence establishing other offences could be admitted, was that stated in Pfennig v The Queen.^[33]  Under that test, propensity and similar fact evidence are admissible, notwithstanding the potential for prejudice from such evidence, if the only reasonable explanation of the facts proven is the guilt of the accused (or put another way, it is not admissible if there is a reasonable view of the evidence consistent with the innocence of the accused).^[34]  Such evidence is a form of circumstantial evidence.^[35]

88. Pfennig was the subject of further consideration by the High Court in Phillips v The Queen.^[36]  Passages from Pfennig were cited which identified the high threshold for the admissibility of similar fact evidence,^[37] generally relating to the probative strength and the nature of the support that it offered for the prosecution case.  It was pointed out that references in Pfennig to propensity evidence being a form of circumstantial evidence must be understood against the background of what was said in a number of cases.  The test of the admissibility of circumstantial evidence in criminal cases which those cases applied was that there be no reasonable view of the evidence consistent with the innocence of the accused.^[38]

89. In Phillips two other matters of some importance were noted.  One is that, in determining admissibility, it must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case may be accepted by the jury.^[39]  The other is that the similar fact evidence must be weighed in the context of the prosecution case as a whole.  Pfennig does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he is charged before such evidence is admissible.^[40]

90. This is not a case which raises a question of the identity of the perpetrator of a crime, the commission of which is not really in issue. In such cases, evidence of the commission of other offences may be admissible to establish a “signature”, implicating the person accused in the commission of a charged offence, which sometimes, depending on the nature of the act, might be proven by showing that the accused had done similar acts in the past.^[41]  Rather, a major issue is likely to be the quality of Dr Patel’s actions, that is, were they criminally negligent?  Another significant issue is likely to be whether his actions caused the consequences alleged in each of the counts.

91. In a case where a person’s competence or professional skill is in issue, direct evidence of that matter can be given.^[42]  However, evidence of other conduct of the accused may be admitted for that purpose.  An example is to be found in Akerele v R.^[43]  In Akerele, the accused had been convicted of manslaughter arising from the death of a person.  The Privy Council upheld the admission of evidence that the accused had injected the same mixture into the person whose death gave rise to the charge, as he had injected into a number of other persons who died.  The evidence was admissible to prove that the death was not the result of the idiosyncratic condition of the deceased, but was the consequence of injecting the mixture.^[44]

92. In my view, to determine whether the evidence proffered in support of one count is admissible on the others, it is necessary to identify the issues to which that evidence might be relevant. It seems to me that that evidence is potentially relevant to the question whether Dr Patel had reasonable skill, referred to in s 288 of the Criminal Code; to the question whether Dr Patel used reasonable care in his treatment of each patient, for the purposes of s 288; to the question whether Dr Patel’s treatment departed significantly from the appropriate standard of care, so as to constitute criminal negligence (if that be a separate question from the question of care under s 288); and to questions of skill and care raised by s 282 of the Criminal Code.

93. Section 288 of the Criminal Code uses the expressions, “to have reasonable skill” and “to use reasonable care”.  The section uses the word “skill” as a reference to a personal quality.  It requires the person whose conduct is in question both to have reasonable skill, and to use reasonable care, in administering treatment to another person.  The term “skill” is apt to refer to a personal quality which a person may possess, whether or not he uses it.^[45]  The exercise of care for an operation requiring skill may call for the use of that skill; but the exercise of care may also be necessary for carrying out unskilled tasks.^[46]  In my view it would be erroneous to treat the reference to skill in s 288 as simply descriptive of the quality of the treatment provided, rather than a reference to a requirement for a personal quality, closely akin to professional competence.  That view is, I consider, supported by the fact that in s 288, skill is something that the person is required “to have”; by the additional reference of a control relating to the manner in which the treatment is carried out, namely, “to use reasonable care” in providing the treatment; and because it seems likely to have been the intent of the legislature that before a person undertakes the administration of surgical or medical treatment to another person, that person should have an appropriate level of professional competence or skill for the provision of the treatment.  The exception from the operation of s 288 of a person who acts in a case of necessity seems to me to fit comfortably with that view.

94. It seems to me that s 288 will be relevant to each of the charges. I have been told that causation is in issue. Section 288 will be relevant on that ground. Further, it is difficult to think that it is not relevant in identifying matters which must be considered in determining whether Dr Patel is criminally responsible in respect of the treatment he provided (either because he did not have reasonable skill; or because he did not use reasonable care, to be determined in accordance with the test in Bateman, in providing the treatment).

95. Even without s 288, it seems to me that skill as a personal quality akin to competence would be relevant. If a person undertook surgery (except in a case of necessity) which was of a kind for which the person did not possess the appropriate skill, that, in my view, would be relevant to the question whether that person was criminally negligent.

96. For those reasons, it seems to me that evidence relevant to the determination of Dr Patel’s level of skill is admissible in support of each of the offences. It seems to me to follow that evidence relating to the commission of each offence will be relevant to the establishment of the level of Dr Patel’s skill.

97. Given that the evidence is directed to establishing the absence of skill, it may be somewhat different from evidence of disposition or tendency, which often forms the basis on which evidence of other conduct of an accused is proffered, to establish identity, or the performance of a particular act. It may therefore be questionable whether the test in Pfennig applies.  Nevertheless, I shall examine the evidence, having regard to that test.

98. I have previously summarised the effect of the evidence to be advanced by the prosecution. It might be said that one or two errors in the provision of treatment may not demonstrate that a doctor lacks skill.

99. Here, over a period of about 19 or 20 months, the evidence taken as a whole would (subject to the qualifications I have mentioned) show a series of departures from reasonable standards, namely:

1. poor decision-making about carrying out complex and risky surgery;
2. making such decisions without sufficient information;
3. misdiagnoses on significant matters;
4. carrying out surgery on persons who, because of their poor health, were not appropriate patients for the surgery chosen;
5. carrying out surgery at a hospital which could not provide an appropriate level of support;
6. the wrong choices of procedure;
7. poor performance of procedures;
8. failures to attend to the condition of the patient after treatment;
9. the removal of healthy organs (and in one case, the failure to identify a nearby and relatively obvious, apparently malignant growth).

100. All of this is to be seen in the context of surgery which potentially had, and did in fact have, serious and, on a number of occasions, catastrophic consequences for the patient.

101. It seems to me that the evidence is relevant to the question whether Dr Patel had the skill required to provide the treatment which he provided to each of the five patients. I have previously pointed out a number of qualifications relating to the acceptance of the evidence which I have discussed. On my understanding of the test I am required to apply, I am to ignore those qualifications. On that basis, it seems to me that the only reasonable conclusion is that Dr Patel, from April 2003 until early 2005, lacked the level of skill required to perform the surgery the subject of the six counts. Accordingly, it seems to me that, in respect of each charge, the evidence in support of the others is admissible.

102. If the question were to be considered by reference to the quality of Dr Patel’s treatment, as distinct from the level of skill he was shown to possess, it is necessary to consider, in respect of each count, the cogency of the evidence led in support of the other counts. It is no doubt relevant to note that the charges relate to a relatively small number of patients. I was told that, in this period, Dr Patel performed of the order of 1,200 to 1,400 operations.

103. On the other hand, on the prosecution case, each of these matters involves a serious departure from the standard of care expected of a surgeon.

104. In R v Spencer,^[47] it was held that on an indictment for manslaughter against a medical practitioner, it was necessary to show gross negligence.  In R v Macleod,^[48] it was held that a mere error of judgment was not sufficient to establish the level of criminal negligence required for a conviction of manslaughter.  In Akerele, the defendant, a medical practitioner had been charged with manslaughter.  He had made up a preparation which he injected into 36 children by way of inoculation.  Five of the children died.  He was convicted on a charge of manslaughter of one of the children.  The opinion of the Privy Council included the following:

“Their Lordships cannot accept the view that criminal negligence has been proved merely because a number of persons have been made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care has not been exercised. They do not think that, merely because too strong a mixture was once dispensed and a number of persons were made gravely ill, a criminal degree of negligence was proved.”^[49]

105. It is inherent in this passage that evidence of conduct on other occasions may be relevant to determining whether a defendant has been criminally negligent on a particular occasion. An error on one occasion may well have a different quality from a series of errors on a number of occasions. In my view, in determining whether Dr Patel exercised reasonable care on any of the occasions which give rise to the charges, it will be relevant to consider the fact that on other occasions, he has seriously departed from the standards of care expected of a surgeon, with significant consequences. In my view, it is easier to reach a rational conclusion that, on any of the occasions which give rise to these charges, Dr Patel was criminally negligent, by reference to his failures on the other occasions. It becomes less likely that any one occasion was the result of a mere slip or failure of the kind which might occur to anyone. In my view, in respect of each occasion referred to in the six counts, the evidence of his treatment on the other occasions is relevant.

106. I also think that that evidence is cogent. In my view, serious departures from the standards expected of a surgeon on a number of other occasions points strongly to the fact that on any particular occasion referred to, Dr Patel was criminally negligent. Applying the test in Pfennig in light of the evidence of all of the occasions, it is difficult to categorise his conduct as being other than criminally negligent on any of them.

107. This might be demonstrated by an example. The counts relating to the treatment of Mr Blight might seem to have the least in common with the treatment which is the subject of the other counts. However, a person knowing that on other occasions Dr Patel has carried out major surgery without sufficient information, on the basis of a wrong diagnosis, with disastrous consequences, and indeed on one other occasion unnecessarily removed an organ, would more easily come to a conclusion that Dr Patel’s treatment of Mr Blight resulted from criminal negligence, rather than simply an unfortunate mistake. In light of the other evidence, it is difficult to identify some other reasonable explanation. Conversely, although the consequences of Mr Blight’s treatment may not be as serious as in the other cases, it is confirmatory of the lack of skill and care shown in the other cases; and taken with the other evidence in support of each of the other charges, there would be no reasonable hypothesis consistent with innocence.

108. Accordingly, I am of the view that joinder in this case is authorised by s 567(2) of the Criminal Code.

Application for separate trial under s 597A

109. This section confers on the Court a discretionary power to order separate trials. Considerations relevant to the exercise of this discretion have been considered in a number of cases. One of those cases is Sutton v The Queen.^[50]

110. It may be noted first that Sutton is a case about whether separate trials should have been ordered, and not about the question whether joinder occurred in breach of s 567(2).  Thus Brennan J expressly recorded that the eight counts on which the applicant in that case was tried were properly joined in the one indictment.^[51]  However, in respect of such a case, and with reference to the discretion to order separate trials, his Honour said:^[52]

“When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences.  Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice.  Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not.  Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.”  (emphasis added).

111. It seems to me that the application of what was said by his Honour requires a determination whether evidence in support of one charge is admissible in proof of guilt of another offence charged in the same indictment; and if not, a consideration of what steps are necessary to protect the accused against the risk of impermissible prejudice. It will be necessary to consider specifically whether a direction will be sufficient for this purpose; or whether it is necessary to order separate trials.

112. Presumably because of the significance of the question of the admissibility of evidence in support of one count as proof of guilt on another, his Honour considered in some detail questions of admissibility. He expressed the view that evidence of the commission of one offence is prima facie inadmissible as proof of the commission of another offence.^[53]  His Honour then cited a passage from the judgment from Lord Simon of Glaisdale in Director of Public Prosecutions v Kilbourne^[54] which included a passage from the opinion of Lord Herschell LC in Makin v Attorney-General for New South Wales^[55] as follows:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.  On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury…”

113. Lord Simon explained the reason for the exclusion in the first sentence quoted from Makin as being “not because (the evidence) is irrelevant, but because its logically probative significance is considered to be grossly outweighed by its prejudice to the accused, so that a fair trial is endangered if it is admitted…”

114. Brennan J then went on to say:^[56]

“The true approach focuses not so much upon the relevance of the evidence as upon the inherent tendency of evidence of other criminal offences unfairly to prejudice an accused person … Before the trial judge is at liberty to admit similar fact evidence he must be satisfied that the probative force of the evidence clearly transcend its merely prejudicial effect.  It is the probative force (or cogency) of the evidence in comparison with the impermissible prejudice that it may produce which determines admissibility…”

115. He further said:^[57]

“The cogency of similar fact evidence is assessed with reference to its connection with a fact in issue or to a fact in the chain of proof of a fact in issue.  The requirement of cogency to prove such a fact is not satisfied by the capacity of the evidence to engender mere prejudice: it must go clearly beyond that to be admissible.”

116. His Honour observed that while the question of probative force as against inadmissible prejudice is a question of law, not discretion, it is also a question of degree.^[58]

117. The first of the passages from the judgment of Brennan J in Sutton which is quoted above was adopted by Gibbs CJ in De Jesus v The Queen.^[59]  After citing the passage, his Honour continued:^[60]

“This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it.  Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.”

118. In De Jesus, Brennan J relied on the view which he had expressed in Sutton.^[61]  His view (and that of Gibbs CJ) in Sutton was also adopted by Dawson J in De Jesus.^[62]

119. It will be apparent that, if the approach of Brennan J in Sutton is to be adopted, it is necessary to look carefully at the extent to which evidence of other offences is probative of a fact in the chain of proof of a fact in issue, rather than impermissibly prejudicial to the accused.

120. I have, by and large, considered this mater in determining that joinder of the charges was proper. In case it is necessary to do so, I shall consider whether Dr Patel would be subject to “impermissible prejudice”.

121. It seems to me that, to the extent that evidence proves a fact which may be proven to establish guilt, the evidence does not result in “impermissible prejudice”. Impermissible prejudice arises when there is a serious risk that evidence will be used to convict the person, not because it demonstrates a fact which is part of the chain of proof in establishing that the accused person committed the offence, but because it engenders some antipathy or other feeling or disposition adverse to the accused, resulting in a conviction; or because the nature of the evidence may lead a jury to attribute a significance to it which is not supported by its probative value. If my earlier conclusion is correct that, in respect of each charge, the evidence in support of the other charges is relevant and cogent, then it does not seem to me that there is a significant risk of impermissible prejudice.

122. Accordingly, I do not think that this is a case where an order should be made under s 597A for separate trials of the six counts in the indictment.

123. In the course of argument, I suggested to Mr Callaghan SC that it would be appropriate to deal with the application on the basis that the trial would be a trial by a judge alone; and if it was so determined, and a point was reached where it was certain, or at least highly likely, that there would be a trial with a jury, the application could be renewed. However, after further consideration, I have dealt with the matter in a way which did not depend upon whether Dr Patel would be tried by a judge alone, or by a judge and jury.

Conclusion

124. I rule that on the three counts of manslaughter, a count of doing grievous bodily harm, and a count of doing grievous bodily harm or alternatively bodily harm, separate trials are not required, and the counts may be heard together.