R v Patel[2012] QSC 419

SUPREME COURT OF QUEENSLAND

1. Dr Jayant Patel faces a retrial on a charge of the manslaughter of Mervyn John Morris. He was found guilty of that charge as well as of two further counts of manslaughter and one of unlawfully doing grievous bodily harm by a jury on 29 June 2010. Those convictions were upheld by the Court of Appeal but quashed by the High Court of Australia on 24 August 2012 because of the reception of inadmissible and prejudicial evidence at the trial at a stage when the prosecution case was not clearly focussed.^[1] 

2. There has been a significant amount of publicity prejudicial to Dr Patel both before the original trial and since.  It reached its nadir when he was labelled by the media as “Dr Death”, as early as 14 April 2005.  For this and other reasons he seeks an order that he be retried by a judge sitting without a jury. 

Preliminary issues

3. The ability to apply for a “no jury order” is relatively recent. The earlier position was expressed in s 604 of the Criminal Code that an accused person who pleads not guilty is deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury and is entitled to have them tried accordingly.  Section 604 continues to apply. 

4. Sections 614 and 615 were introduced into the Criminal Code in September 2008.^[2]  They provide:^[3]

“614 Application for order

(1)If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury.

(2)The application must be made under section 590AA before the trial begins.

(3) If the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it.

(4) Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

(5)The court may inform itself in any way it considers appropriate in relation to the application.

(6)For subsection (2), the trial begins when the jury panel attends before the court.

615Making a no jury order

(1)The court may make a no jury order if it considers it is in the interests of justice to do so.

(2)However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.

(3)If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.

(4)Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply—

(a)the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

(b)there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

(c)there has been significant pre-trial publicity that may affect jury deliberations.

(5) Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”

5. In R v Kissier^[4] Mullins J, with whom the other members of the Court of Appeal agreed, addressed the issue on whom any onus lay by saying that she favoured the view expressed by Chesterman JA in R v Fardon:^[5]

“… It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.”

6. Mullins J went on to say in R v Kissier,^[6] however, that it was not strictly necessary in that decision “to contribute to the debate on whether there is any starting presumption about the appropriate mode of trial when an application for a no jury order is made”.  But the presence of s 604(1) in the Code supports her Honour’s preference for the view expressed by Chesterman JA as each of those decisions made clear.  It seems to me to justify the view, also, that the applicant for a no jury order must demonstrate why such an order is in the interests of justice.  That having been said, it would be an unfortunate situation if the question of what was in the interests of justice in a case like this depended solely upon who bore the onus of proof.^[7] 

7. Another preliminary issue of some significance in this case is, however, that the application has been made at a time when the identity of the trial judge is known to the parties. In those circumstances, a “no jury order” may be made only if I am satisfied that there are special reasons for making it: s 614(3). 

Background to the making of the application

8. After the High Court’s decision, the matter was mentioned in this Court on 31 August 2012 and Dr Patel’s solicitor indicated then that no applications under s 614 were being contemplated.  At a further mention on 21 September 2012 he indicated that counsel was still to be briefed for the re-trial and that there may be applications depending on what evidence was to be led.  He initially said that no application would be made for a judge only trial and then advised that he could not confirm that until counsel was retained.  The identity of the proposed trial judge was revealed to the parties later that day.  The matter was mentioned before that judge, Fryberg J, on 27 September 2012 and, on 12 October 2012, Mr Fleming QC appeared before his Honour for Dr Patel and indicated that this application would be brought.

9. His explanation to me why the application was made after the identity of the trial judge was known to the parties was that the system moved very quickly in respect of the listing of the re-trial “and perhaps faster than Dr Patel himself was in a position to move”.^[8]  There was nothing in the affidavit filed for Dr Patel to flesh out that explanation.

10. I am happy to accept what Mr Fleming said to me as I am able to inform myself in any way I consider appropriate in relation to the application; see s 614(5).  The effect of the lack of fuller evidence on that issue, however, leaves the issue of whether there are special reasons for making a “no jury order” as one that I shall have to consider principally by reference to the major issues identified by the parties relevant to the discretion I can exercise under s 615(1). 

11. They include, from Dr Patel’s point of view, whether “there has been significant pre-trial publicity that may affect jury deliberations”^[9] and, whether the intricacies or complexity of the medical evidence are such that the decision would be one likely to be unreasonably burdensome to a jury.  From the prosecution’s standpoint the issues include whether “the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence … or dangerousness.”^[10]  That involves a consideration of the issue of the likely complexity of the medical evidence. 

The nature of the discretion under s 615(1) and s 614(3) of the Code

12. The general discretion that arises from the use of the words “the interests of justice” in s 615(1) was discussed by Martin J in R v Prisk and Harris:^[11]

“[25]The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial.  I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend:  the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”

13. The same decision provides a useful discussion about the question raised by s 614(3), whether there are “special reasons” for making a no jury order.  Martin J said, in that context, having referred to the phrase’s interpretation in a number of other contexts:^[12]

[9]While the phrase was used in different circumstances in the legislation considered in the above cases, there can still be drawn from them a number of principles of general application.  They are:

(a)The expression must always be construed in the light of its context.

(b)The application of the expression is not to be confined by precise limits or rules.

(c)Circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons.

(d)Special reasons are reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular weight. There must be some factor over and above the interests of justice.

(e)But, that does not mean that the case must be extremely unusual, uncommon or exceptional.”

14. Is there a factor here over and above the interests of justice? To answer that question I need to consider, as I have said, the pre-trial publicity complained of and whether the trial will involve a factual issue that requires the application of objective community standards or whether those issues are so complex as to be unreasonably burdensome to a jury.

15. I do not believe that Dr Patel’s delay in deciding whether to seek a no jury order or the speed with which events moved after the High Court decision amounts to special reasons. There was close to a month between the decision and the release of the information about the identity of the trial judge and he had been put on notice through his solicitor, only a week after the High Court’s decision, about the need to consider whether such an application should be brought. Those were routine circumstances in respect of the listing of the retrial.

Pre-trial publicity

16. The focus of the submissions for Dr Patel about the publicity affecting his case was not only on the nature of the publicity but on the fact that, in modern times, publicity persists by being recorded in readily accessible form on the internet.  The publicity itself included numerous references to him as “Dr Death”, particularly in the early stages from 2005 when a Commission of Inquiry was launched into the numbers of deaths at the Bundaberg Base Hospital.  The controversy surrounding his case continued when there was a decision to disqualify the original Commissioners for ostensible bias and a second inquiry which recommended manslaughter charges against Dr Patel. 

17. As the respondent submitted, however, the criticism from the second inquiry was not only directed at him but also at employees of Queensland Health. There was also publicity about whether he had lost the opportunity of a fair trial, including accusations by Dr Patel’s American lawyer that the then Queensland Premier, Mr Peter Beattie, was trying to poison Queensland public opinion about the case including a statement that:^[13]

“This unprecedented and unrelenting assault upon Dr Patel through an all too obliging media before any criminal charges have been laid has destroyed any possibility of there ever being a fair trial.”

18. Similar comments were made locally by Queensland lawyers concerned about Dr Patel’s rights to a fair trial.  There was also publicity about the inadequacy of the material to support a brief to extradite him from the United States of America and the dropping of some of the original charges against him.  The then Police Commissioner also asked the media to show restraint during the extradition process.

19. Once the committal hearing began, the prosecution argued that the publicity was essentially factual reporting of what occurred in the Magistrates Court, the trial and on appeal.  Mr Fleming pointed out, however, that much of that evidence was later ruled inadmissible by the High Court and could still be discovered by relatively simple internet searches.  It includes reporting of trenchant criticism of Dr Patel’s performance as a surgeon by the prosecutor at the trial but also what was said by his defence counsel defending him against allegations of criminal negligence.

20. There are also reports of further severe criticism of his skills as a surgeon sympathetic to the views of nurses who had originally complained about him and of comments by members of victim support groups and former patients after the jury verdicts were delivered. There was publicity concerning other potential charges that Dr Patel faces than those that had already been tried.  Mr Fleming also drew attention to a number of inaccuracies in reports about where he was educated as a doctor and of his performance of the operations in question at the original trial.  He was referred to as an Indian-trained surgeon when his surgical training occurred in America and his performance as a surgeon was criticised in the press when the trial judge had summed up to the jury on the basis that he performed the surgery “competently enough”.^[14]  What had become the real issue by that stage was his judgment in deciding to recommend surgery to the patient. 

21. The label “Dr Death” was applied to him again after the trial as well as a gratuitous and absurd description of him as a “terrorist” by families of his patients in the United States of America where his ability to operate had been restricted in the State of Oregon.  There was sympathy expressed for him in some articles, however, as well as further criticism of the prosecution and of Queensland Health. 

22. One particular matter mentioned by Mr Fleming was a reported comment by the current Health Minister, Mr Springborg, when the question of a retrial was under consideration by the Director of Public Prosecutions, that “justice should be pursued regardless of the cost”.^[15]  That was in a report also referring to a perception that the Director of Public Prosecutions had badly bungled the first trial, which the Director of Public Prosecutions would want to fix, and where Mr Springborg is also reported as having commented that:

“… many exposed to pain and heartache during the long-running trial felt there had been ‘no effective closure’.

‘It’s a matter of making sure that justice is done,’ he said.

‘That’s not an expense argument in my mind, it’s about justice being done and if there is a case that can be prosecuted.’

…

‘I think a lot of people are actually asking questions about how the prosecution was run, how it got to this situation of where there seems to be some real concerns raised by the High Court in Australia about miscarriages of justice,’ he said.”

23. I do not read those as comments necessarily urging a conviction but rather stating that justice should be done in the context of a concern about miscarriages of justice.

24. There was also an interview with Dr Patel aired on Channel 7 News after the High Court decision on 28 August 2012 in which he expressed his own views about the process he had been through and his belief that he had always done the best for his patients.

25. The applicant relied also on a passage in the reasons of Heydon J in R v Patel where his Honour said:^[16]

Then there were the problems flowing from adverse publicity.  The prosecution approach to the trial resembled that of a commission of inquiry conducting a very broad survey.  The appellant's conduct had already been the subject of two commissions of inquiry.  There were proceedings to extradite him from the United States of America.  It is difficult to imagine that there could be many speakers of English living in Australia, even parts of Australia outside Queensland, in the years before the trial who had not been exposed to the massively unfavourable publicity that the appellant received during these events.  It was inflammatory, derisive and bitter.  Its effect must have been more intense, and therefore more damaging, in Queensland than elsewhere.  The trial judge warned the jury not to be influenced by it. Counsel referred to it during the trial without contradiction.  In his address to the jury, defence counsel spoke of ‘a frenzied media storm’ against the appellant over a five-year period.  In Queensland, the appellant was seen as a hostis humani generis.^[17]  The appellant’s counsel informed this Court that if the appeal succeeded the appellant would be seeking a stay on that ground.  It may be inferred from the pre-trial publicity that there was great pressure on the prosecution to put the case against the appellant on its widest possible basis.

‘There is an accumulative Cruelty in a number of Men, though none in particular are ill-natured.  The angry Buzz of a Multitude is one of the bloodiest Noises in the World.’

The prosecution called witnesses who loathed the appellant. Some of the nurses appeared to come to the trial determined to tell all, and to tell it colourfully. The risk of prejudice was thus very great. Whether prejudicial evidence should be admitted became a peculiarly sensitive question.”

26. Those comments related not only to the adverse publicity but to the inadmissible evidence led at the first trial. The retrial is likely to be much more focussed in respect of the evidence led and the issues to be considered by the jury. There is also only one charge to be dealt with at the retrial. His Honour’s comments will be significant in Dr Patel’s application to stay the proceedings permanently which, I understand, is to be heard in the near future. 

27. The considerations mentioned by his Honour are also relevant to this application. It might be thought, for example, that the chances of Dr Patel obtaining a fair trial would be enhanced if I were to order a no jury trial in a case like this.  Such a view might stem from the argument that judges are more likely to approach decisions such as these objectively and to be better trained than jurors to decide matters simply on the evidence before them.  The requirement that reasons be given for a judge’s decision would, on that view, also enhance the likelihood that irrational prejudice would not affect the decision.  Those arguments are valid but run contrary in both theory and practice to the reasons why our criminal justice system relies principally on jury decisions.

28. The courts do not lightly assume that jurors will not obey their oaths and determine a case otherwise than according to the evidence.^[18]  The requirement that there be jury unanimity or close to unanimity may also be seen as a balance to the lack of reasons which a judge’s decision would provide.^[19]  I shall return to these issues later. 

Complexity or objective community standards

29. As I have said, from what I was told by the parties it was not thought that this retrial would be nearly as long as the original trial. There is only one death to be considered and the evidence ruled inadmissible in the High Court will not be led. Nonetheless, Mr Fleming submitted that there were several reasons, other than the pre-trial publicity, why the matter should not be dealt with by a jury.  They included:

• that the case concerned s 288 of the Criminal Code which has not been invoked before to convict a medical practitioner for his decision to operate;

• that the degree of negligence required for a criminal conviction is something that would be better adjudicated by a judge alone because lay jurors might not understand the expert evidence dealing with the intricacies, everyday pressures, procedures, and risks involved in the administration of medical and surgical treatment;

• that the community would be served better by a reasoned judgment as to why the accused was guilty, or not guilty, of the alleged offence rather than the uninformed speculation which, he submitted, had attended this matter for years;

• that it was in the interests of justice for other medical practitioners to know exactly where the relevant boundaries lay in order to avoid a situation where there would be a refusal to administer medical or surgical treatment to a patient in borderline cases for fear of the risk of prosecution if risks like comorbidities arose.

30. There was little material before me about the nature of the evidence that will be led at the trial in respect of the circumstances surrounding the death of Mr Morris.  The particulars provided by the prosecution include allegations that Dr Patel diagnosed a cause of rectal bleeding in Mr Morris and recommended that a sigmoid colectomy and colostomy be performed.  It is alleged that he failed to use reasonable care and skill in administering surgical and medical treatment to Mr Morris in that, with respect to the diagnosis of the cause of rectal bleeding, he did not properly establish that the bleeding was due to diverticular bleeding and did not find an associated bleeding point.  It is also alleged that while a barium enema test revealed diverticular disease, he ignored the fact that there was no radiological or other evidence of diverticulitis or abscess formation that might explain bleeding, and did not exclude radiation proctitis as the cause of the bleeding for which there was evidence in the patient’s history, and that he ought to have diagnosed radiation proctitis as the cause of the bleeding. 

31. It was also alleged that the bleeding from which Mr Morris was suffering was insufficient to justify the operation performed and had been adequately treated by transfusion, and that he failed to perform further tests such as a colonoscopy, proctoscopy, or sigmoidoscopy to determine the source of the bleeding when there was opportunity to do so, and that he failed to consult a physician to assess the patient’s cardiological status. 

32. His failure to diagnose radiation proctitis as the cause of the bleeding was also particularised as relevant to his recommendation that surgery be performed in circumstances where Mr Morris was 75 years old and suffered from comorbidities that made any major operation dangerous, including a history of heart disease, a liver condition, recent significant weight loss and malnutrition, and hypertension.  In that context it is alleged that he should have investigated whether Mr Morris had liver cancer and ought not to have recommended surgery.

33. The post-operative care of Mr Morris was also criticised in that Dr Patel did not adequately treat a partial bowel obstruction or review and repair a retracted stoma from which he was suffering.  He also failed, according to the particulars, to treat the patient’s malnutrition adequately by not ordering parenteral feeding.

34. Essentially, therefore, the allegations appear to be that Dr Patel recommended an operation when further tests should have occurred to help identify the point of bleeding from which Mr Morris suffered, including an investigation as to whether it was caused by radiation proctitis, and as to whether he had a liver abnormality.  It is further alleged that he should not have recommended the operation having regard to Mr Morris’s age and other health conditions.  Mr Davis SC’s more graphic summary in oral submissions was that that the questions boiled down to whether Dr Patel ought to have conducted the operation without doing proper tests and, if he did not do that, did the operation kill Mr Morris?

35. The evidence led at the first trial in respect of Mr Morris was summarised in the High Court in similar terms.^[20]  There was no application for a no jury order before the original trial on the basis that that evidence presented any particular difficulties for a jury to comprehend.  Prima facie, it does not strike me as evidence that, because of its complexity, was likely to be unreasonably burdensome to a jury. 

36. It is also, in my view, evidence of a factual issue that requires the application of objective community standards on issues of reasonableness, negligence, or dangerousness, to use the language of s 615(5).  That is clearly an area in which the legislature regards it as potentially important for juries to assess such standards rather than individual judges, and provides a significant countervailing consideration to the issues raised by the pre-trial publicity.

37. As to the argument that the case was novel because s 288 had not been previously used to convict a medical practitioner for his decision to operate, and the consideration urged on me that it was appropriate that reasons be provided to assist other medical professionals to know where the boundaries lay, the respondent argued that the proper directions in respect of s 288 were matters of law, the province of the trial judge, whether in directing himself or a jury.  There has also been some consideration of the law related to s 288, both in the Court of Appeal and the High Court now, and it does not seem to me that those legal issues are ones which should preclude the matter being dealt with by a jury. 

38. The applicant’s submissions about the desirability of other medical professionals knowing where the boundaries lay in respect of decisions to operate were criticised by the respondent on the basis that the relevant boundaries are matters of law set by the Criminal Code and judicial decisions interpreting it, not a verdict on the facts of a particular case by a judge alone or with a jury.  Those criticisms seem to me to be valid. 

39. Generally speaking, also, it seems to me that the question whether there has been negligence proved to the criminal standard is one which classically falls within the description of “objective community standards”. The conventional direction given to juries in respect of criminal negligence focuses on the distinction between negligence as a mere matter of compensation between subjects and negligence that shows such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.^[21]  It is an objective standard measured by examining whether the conduct alleged involves a serious departure from reasonable standards of conduct, namely the standard of conduct that a reasonable member of the community would use in the same circumstances.  There has to be a very serious departure from reasonable standards of care.  This is a classical case, therefore, where the considerations involved in s 615(5) need to be taken into account.

Discussion

40. The position of the jury as a robust institution capable of providing a just decision in our legal system was discussed extensively by McLellan CJ in R v Belghar.^[22]  His Honour’s conclusions went on^[23] to refer to the confirmation by the High Court that the common law accepts that the jury provided with appropriate directions is capable of providing a just decision in the following passage from the recent decision in Dupas v The Queen:^[24]

25“Nettle JA based his decision upon the footing that to grant an indefinite stay ‘would be to recognise that the media has the capacity to render an accused unable to be tried’ and this would deny the ‘social imperative’ that an accused be brought to trial.

26There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:

‘Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.’

In his reasons for dismissing the stay application, which are extracted in part and described above, Cummins J used similar terms with respect to the conduct of jury trials in Victoria.

27 Earlier, in Gammage v The Queen Windeyer J expressed the governing principle in terms which acknowledged that the jury room might not be a place of undeviating intellectual and logical rigour (a point made by Callinan J in Gilbert v The Queen) by saying:

‘A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted.’

28Conclusions of this kind are not examples of the ‘ordinary’ questions of fact which regularly arise for determination. The assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of ‘constitutional fact’, in the sense of that term explained by Heydon J in Thomas v Mowbray.

29Whilst the criminal justice system assumes the efficacy of juries, that ‘does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’ In Glennon, Mason CJ and Toohey J recognised that ‘[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.’ What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.”

41. That was a discussion based on cases relating to stay applications but it was adopted in R v Belghar in the same context as here, whether a no jury order should be made. 

42. There has clearly been significant adverse publicity in this case – the labelling of the defendant repeatedly as “Dr Death” and the publishing of other criticisms of his capacity as a surgeon, his character, and conduct.  There has also been countervailing publicity attacking Queensland Health and, in one case, describing Dr Patel as “a scapegoat for everything that is wrong in Queensland Health”.^[25]  The prosecuting authorities have also not escaped criticism. 

43. The publicity, at least since the successful appeal in the High Court, has been more even-handed on the evidence before me. But, as Mr Fleming submitted, the earlier publicity remains accessible to internet searchers.  It must not be forgotten, however, that jurors are instructed not to conduct such searches and can be relied on, in the experience of the courts, to deliberate conscientiously based on the evidence received in court and to ignore what they may have learned out of court.  It may also be relevant that no application was made before the first trial for a no jury order. 

44. Much worse publicity was held not sufficient to justify a stay in R v Ferguson; Ex parte Attorney-General (Qld),^[26] or a no jury order in R v Fardon.^[27]  In R v Ferguson, the Court also referred to the power to challenge for cause under s 47 of the Jury Act 1995 (Qld) where there has been prejudicial pre-trial publicity.^[28]  While it appears such applications have been rare, it is another provision aimed at protecting an accused person’s right to a fair trial, available for use. 

45. Where, as here, the legislature has particularly singled out as a reason why a court may refuse to make a no jury order the fact that the trial will involve a factual issue that requires the application of objective community standards on issues of reasonableness, negligence, and dangerousness, that consideration becomes important. The nature of the evidence likely to be led does not strike me as likely to be so complex as to be unduly burdensome for a jury.

46. The law recognises that juries are capable of handling issues of prejudice arising from the pre-trial publicity that has occurred here. While I recognise the severity of the criticism of Dr Patel in the pre-trial publicity, and that it may affect jury deliberations, I am not persuaded that a properly directed jury will have difficulty in ignoring it in favour of the evidence that is led before it.  In other words, I believe that a fair trial can proceed before a jury in spite of the publicity. 

47. In the circumstances, I should exercise my discretion to refuse the application. The risk of prejudice that may exist from the publicity is likely to be able to be contained and is offset to a significant extent by the interest in deciding the criminal negligence issue by reference to objective community standards considered by a jury.

48. Nor, for the sake of completeness, does it seem to me that special reasons have been shown for making a no jury order now that the identity of the trial judge is known. The balance between the opposing considerations affecting whether there should be an order is such that, in my view, the case for the making of an order was not particularly strong. There being no other special reasons able to be relied on the order should not be made. Although the issue whether special reasons had been shown was argued by the prosecution as a threshold point it seems to me that, in this case, it was more readily dealt with as one aspect of the discretions I had to exercise under both s 614(3) and s 615(1) as the same facts were relevant to both subsections.

Order

49. Accordingly, the application for a no jury order is dismissed.