R v Patel (No 2)[2012] QSC 420

SUPREME COURT OF QUEENSLAND

[1] FRYBERG J:  The accused, Dr Jayant Patel, has applied for an order that count 9 of the indictment presented against him on 24 April 2009 be permanently stayed.  Alternatively, he seeks an order that the further amended particulars of that count filed by the Crown on 5 December 2012 be struck out.  By count 9 a Crown Prosecutor informs the court:

“that between the first day of April, 2003 and the 15th day of June, 2003 at Bundaberg in the State of Queensland, [the accused] unlawfully killed MERVYN JOHN MORRIS.”

[2] It is important that this application be resolved quickly.  The trial is set to commence on 4 February 2013.  I shall therefore not set out the full history of the matter.  Most of it is recorded in the decision of the High Court on 24 August 2012 setting aside Dr Patel's conviction on this and other counts, and ordering a retrial.[1]  Since that decision the Crown has decided to proceed on count 9 separately from all other counts.  The particulars the subject of this application are the third set delivered by the Crown since that decision.  I have been calendared as the trial judge with responsibility for case managing the matter for trial.  On 27 November Douglas J dismissed an application by the accused for an order that he be retried by a judge sitting without a jury.[2]

[3] A number of grounds for a stay were listed in the application, but several were abandoned at the hearing.  Those which remain are that the trial would constitute an abuse of process in that:

• further prosecution of the case is contrary to the public interest;
• a fair trial is impossible by reason of the volume and nature of pre-trial publicity about the accused;
• the amended particulars have departed from those which were put to the jury and were before the High Court and attempt at least in part to re-enliven those which were abandoned by the Crown part way through the first trial.  In effect the Crown seeks to make a new case;
• the amended particulars fail properly to particularise the charge, in particular, the element of causation.

Public interest

[4] The accused submitted:

(a)Mr Morris was an elderly man with substantial health problems for whom, on medical evidence given in the Crown case at the first trial, no action should have been taken other than life prolonging steps;

(b)no post-mortem examination was performed with the result that the Crown case is speculative;

(c)there is no clear evidence that the death of Mr Morris was foreseeable;

(d)a defence under s 24 of the Criminal Code is plainly open;

(e)having regard to the time which the accused has already spent in custody (about two years and two months) and his likely release on parole after three years and six months had the convictions not been set aside, there is little point or public benefit in continuing the prosecution.

[5] In support of the submission particular reference was made to a passage in the judgment of the majority in the High Court:

“121.The evidence presents some difficulties in concluding, to the requisite standard, that the appellant was guilty of the offences charged.  According to the evidence of one expert, Mr Morris' surgery caused his death only in the sense that without it he would not have suffered the complications from which he died.  There was evidence that the appellant honestly believed that the bleeding with which Mr Morris presented was from diverticula and that multiple diverticula were seen as present by another doctor in attendance when the appellant conducted a colonoscopy on this patient.  Even if the appellant was not reasonable in deciding to operate because of his failure to conduct further investigations, or because there were alternatives to surgery, a conclusion of guilt would require those facts to amount to gross negligence.”

[6] Even assuming that the court has jurisdiction to stay a prosecution on the ground that its continuation is contrary to the public interest (a proposition for which no authority was cited) the matters relied upon are in my judgment insufficient to prove that the public interest would be contravened by a continuation of the prosecution.  The starting point must be that it is in the public interest for provable offences to be prosecuted.[3]  Weaknesses in the prosecution case are best resolved in the course of a prosecution.  Questions of penalty can be resolved if there is a conviction.

[7] This ground fails.

Pre-trial publicity

[8] The evidence disclosed that a brief Google search of the accused's name revealed that he:

(a)has a Wikipedia page dedicated to him, the enquiries, his trials in Australia and other allegations against him in the United States;

(b)features on You Tube a number of times;

(c)has had reported his trial and charges in international media coverage;

(d)is referred to as “Doctor Death” repeatedly in the media;

(e)features in hundreds of articles, interviews and stories.

[9] The accused submitted that the evidence supported Heydon J’s observation in the High Court:

“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.”[4]

He submitted that questioning of the jury under s 47 of the Jury Act 1995 was not an adequate safeguard in these circumstances.

[10] The impact of pre-trial publicity formed the focus of the accused's application for a trial by a judge sitting without a jury.  The evidence before Douglas J was largely the same as that before me, although I have the benefit of additional evidence of further publications.  I do not think the additional evidence adds a great deal to the weight of the submission.  There is no evidence of the number of hits on websites referred to, nor of the number of sales of books about Dr Patel in Brisbane.

[11] Douglas J held:

“[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.”

I agree.  This ground also fails.

A new case on retrial

[12] It is not necessary to refer to the particulars in detail in order to deal with this ground.  It is not in dispute that at the first trial the Crown initially particularised the offending conduct as negligent advice and diagnosis leading to the carrying out of the operation, negligence in the performance of the operation and negligence in post-operative care.  The second and third of those categories were abandoned on the 42nd day of the trial and only the first went to the jury.  The result was that much prejudicial and inadmissible evidence was before the jury when it came to consider its verdict.  That was the ground on which the appeal succeeded.

[13] In broad terms the particulars now delivered for the retrial reinstate many but by no means all of the matters originally particularised.  Post-operative care is particularised as negligent conduct, but negligence in the course of carrying out the operation is not alleged.  The result clearly is a case which is significantly different from that which went to the jury in the first trial.  It was not suggested that the High Court had been informed of any intention to change the Crown case if a retrial were ordered.

[14] The accused's submissions on this point were founded on the decision of the High Court in R v Taufahema.[5]  That case was concerned with the factors relevant to a decision by an appellate court about whether to order a new trial or an acquittal.  It is therefore not directly relevant to the question before me.  The submission focused on only one of the factors considered in Taufahema, that “the Crown should not be given an opportunity to make a new case which was not made at the first trial”.[6]  However as the majority observed, “[T]he way the authorities have been decided tends to show that the ‘new case’ test is not easy for accused persons to satisfy.”[7]  Two factors considered relevant there are also apply here:

“[W]hat the prosecution proposes to do at the second trial of the accused is not to advance any factual allegation inconsistent with what the jury or the Court of Criminal Appeal have already found, and not to advance any factual allegation inconsistent with the case advanced at the first trial.”[8]

Moreover a large portion of the evidence which will be relied upon in support of the allegations of negligence in relation to post-operative care will be admissible on the issue of causation in any event.

[15] The accused did not demonstrate that any particular injustice would flow from the course proposed by the prosecution.  There will be no abuse of process.

[16] In my judgment the submission does not warrant a stay of proceedings.

The particulars

[17] A number of the attacks made by the defence on the particulars were founded on the ground that they brought in matters abandoned in the first trial.  I have already decided that there is no substance in this point.[9]

[18] The particulars which have been furnished take their shape from s 288 of the Criminal Code.  That is the same section as was relied upon by the Crown at the first trial:

“19.The respondent [Crown] submits that the prosecution case need not have depended upon a breach of the duty imposed by s 288 for a conviction of manslaughter or grievous bodily harm to be returned and that there is authority for the view that, as an alternative to a case alleging criminal negligence, the prosecution could have simply alleged that the appellant directly or indirectly caused the deaths, relying upon ss 293 and 303 (or s 320 for grievous bodily harm).  If that alternative path to a conviction had been taken, s 23(1) would have applied, as would s 282. …

20.The prosecution case was conducted by reference to s 288.  As will be seen from the discussion concerning the conduct of the trial, it sought at a late point in the trial to run an alternative case, avoiding s 288, but the trial judge did not permit the prosecution to change its course.”[10]

[19] At the outset of the hearing, Mr Davis SC for the Crown outlined the prosecution case as intended to be particularised.  He told the court that he did so because the outline of submissions received from counsel for the accused suggested that what the Crown was trying to say had been misunderstood.  He was right.  His written outline of submissions provided some clarification of the particulars.  His oral explanation further illuminated them.  Discussion during the hearing further helped my understanding of the document.  But that really points up the deficiencies in what has been provided so far.  The defence and the court should not have to cut and paste from different sources in order to understand the Crown case.

[20] A major structural difficulty with the particulars arises from their presentation with various elements associated both conjunctively and disjunctively or with their association not made clear.  The result is an unmanageable number of combinations when one tries to link duties and their content with the appropriate breach and chain of causation.  In addition, the immediate causes of death are identified in para 6, but it is impossible to tell with confidence which of the causal mechanisms in para 7 is related to which immediate cause of death.  Some of the difficulties can be overcome by the application of common sense but others descend into guesswork. 

[21] Similar problems arise in relation to paras 5a and 5b, which seem to contain a mix of particulars relating to breach and to causation.  For example it is unclear whether the Crown alleges that the operation should not have been performed because of all four factors listed under sub-para b operating together, or in a combination of some of them, or because of any one standing alone.

[22] I turn to matters of detail.

Structure

[23] Paragraphs 1-3 provide particulars of the preconditions for the operation of s 288 of the Criminal Code.  Mr Davis clarified that “condition” in para 3a meant “fitness for the operation”; in other words, the paragraph was to be understood as “the determination of Mr Morris’s fitness for the operation and the diagnosis of the cause of rectal bleeding between 1 April 2003 and 23 May 2003”.  With some further minor tidying up to the definition of “the operation”, those paragraphs seem adequate for their purpose.  The accused made no other criticism of them.

[24] Paragraph 4 is intended to denote the content of the duty which the law imposes on persons who satisfy those preconditions.  As Mr Davis explained (and as is reasonably apparent on the face of the particulars), para 4a relates to para 3a; para 4b relates to paras 3b and 3c; and paras 4c and 4d relate to para 3d.  However when the meaning of “condition” already referred to is borne in mind, it is apparent that para 4a is dealing with two different classes of breaching conduct: ascertaining Mr Morris's fitness for the operation and diagnosing the cause of rectal bleeding.  They need to be separately dealt with.

[25] Paragraph 4a has another deficiency: it is ambiguous.  It is not clear whether it should be read as “perform the procedures and investigations necessary to ascertain Mr Morris’ condition” and “correctly diagnose the cause and site of the rectal bleeding”; or whether “procedures and investigations necessary” governs both the phrase which immediately follows it and “correctly diagnose etc”.  The structure of para 5a, with its division under the headings “Procedures and investigations” and “Correct diagnosis” suggests the former reading, but in the course of oral submissions Mr Davis said that the first five dot points, and perhaps the seventh, related to diagnosis, while only the sixth and seventh constituted breaches relating to ascertaining Mr Morris's condition.

[26] Paragraph 5 particularises the accused’s alleged breaches of duty.  Sub-paragraph a alleges breaches of the duty asserted in para 4a.  It suffers from the ambiguity just referred to.  In addition the accused submitted that it provided insufficient detail.  He submitted first that particulars should be given of when the procedures in the first four dot points of para 5 a i and the consultation in the sixth dot point should have been done.  It is tolerably clear from what was said during the hearing that the Crown case is that these steps should have been taken before recommending or performing the operation.  Clarity would be achieved by saying so in the opening words of sub-para a.  Second the accused submitted that particulars should be provided of what investigations should have been done.  I do not accept that submission.  It is I think clear that the Crown case asserts that the accused should have read all of the medical records at the hospital to the extent that they dealt with the specified aspects of Mr Morris's history.  Third the accused submitted that the Crown should provide particulars of what was the consultation.  I reject that submission.  The required consultation is alleged to be an assessment of Mr Morris's cardiological condition.  Fourth the accused submits that there should be particulars of the investigations of the condition of the liver which ought to have been conducted.  I accept that submission.  The existing particular is very vague and general and there is no indication anywhere in the particulars of what was intended to be investigated or what investigations should have been conducted.  In relation to para 5 a ii the accused sought particulars of how and when it is alleged that there was an incorrect diagnosis.  I do not think the former is a proper request for particulars, but to the extent that it can do so, the Crown should state when it alleges the incorrect diagnosis was made.  In relation to para 5 a iii the accused sought particulars of the details and extent of the radiation proctitis alleged.  As I understand the allegation it is that the accused should have determined whether or not radiation proctitis was present.  The request is, on that basis, irrelevant.

[27] Paragraph 5c relates to post operative care, linking to para 4c.  It alleges that the accused did not ensure the stoma was working correctly and did not relieve a partial bowel obstruction during an operative procedure which carried out on 30 May 2003.  I accept the submission that the Crown should specify when that omission regarding the stoma occurred and what the accused should have done.  I reject the submission that it should specify when the instruction should have been relieved because it has already done so, I accept the submission that the Crown should specify how the obstruction should have been removed.  Of course if a range of options was open, that range may be specified.

[28] Paragraph 5d alleges that the accused failed to ensure Mr Morris's nutrition was sufficient because he did not order parenteral feeding after the operation.  The accused sought particulars of how and when he failed to ensure the nutrition was sufficient.  In my judgment the particulars already supplied adequately do that.

[29] Paragraph 6 of the particulars has the heading “Consequence” which, I take it, is an echo of the same word in s 288.  It raises the issue of causation, which was debated at some length at the hearing.  That issue should be discussed in its statutory context.  That context was summarised by the High Court:

“11.Under the Criminal Code, a person who causes the death of another is deemed to have killed that other person (s 293). A person who unlawfully kills another in circumstances which do not constitute murder is guilty of manslaughter (s 303). A person who kills another does so unlawfully unless the killing is authorised, justified or excused by law (s 291).  In the present case, for convictions on the counts of manslaughter to be returned it was necessary for the prosecution to prove that the appellant caused the death of the three patients, thereby killing them (s 293).”[11]

[30] When the preconditions for its operation are satisfied, s 288 does two things: it imposes specified duties on a person and it deems that person to have caused any consequences that result to anyone's life or health by reason of a breach of duty.  This deemed causation satisfies the requirement of causation in s 293.  Instead of an examination of causation under that section, the relevant issue (insofar as it relates to causation) is whether an alleged injury to life or health is a consequence which results from a breach of duty.

[31] Paragraph 6 of the particulars is:

“CONSEQUENCE

6.Mr Morris died on 14 June 2003 after the operation, bowel obstruction and reoperation from cardio respiratory failure, hypoalbuminaemia and fluid overload, malnutrition and septicaemia.”[12]

[32] Thus, the paragraph identifies death as a consequence relied on by the Crown and when that consequence occurred by reference to certain events, and further identifies four causes of death.  For the Crown to succeed it must demonstrate that at least one of those causes of death resulted from a breach of duty by the accused.

The problem with para 5a

[33] Before the hearing I thought that, as this paragraph of the particulars stands, it went at least some distance toward doing so.  For example it alleges breach of duty by failing to do investigations necessary to ascertain Mr Morris's condition (ie fitness for the operation) in failing to consult a physician to assess his cardiological condition.  Paragraph 5 b iv alleges that his condition was such that because of his age and, among other things, hypertension and a history of heart disease, Mr Morris had a high chance of dying as a result of the operation.  Paragraph 6 alleged that he died from, among other things, cardio respiratory failure.  If one implied an assertion that a physician would have identified and reported matters which would have enabled steps to be taken which would have avoided cardiorespiratory failure, one could find that the failure to consult a physician caused the failure.

[34] That is not how the Crown intends the particulars to be understood, nor is it how the Crown intends to run the case:

“HIS HONOUR:  All right.  Now, I am interested in 6 particularly because it's the linkage, if you like, between the death and the earlier parts.  I follow he died from cardiorespiratory failure.  I can see how that would link back to paragraph 5A(1), the penultimate dot point and in other words that he should have consulted a physician to assess the cardiological condition.

MR DAVIS:  Can I tell your Honour that's not quite the way to look at it?

HIS HONOUR:  That's how I read it.

MR DAVIS:  Yes, I know.  I'm sorry, your Honour.  He died we say as a result of the operation.  So the operation was conducted.  He died as a result of that and/or as a result of not getting proper postoperative care.

HIS HONOUR:  Yes.

MR DAVIS:  Now, when your Honour looks at the diagnosis and the recommendation for the operation, those factors - those factors go to why there ought not to have been an operation.

HIS HONOUR:  But insofar as the comorbidities are concerned, if he died from one of the comorbidities, which is what you are alleging here, then it would seem to all tie up.

MR DAVIS:  Well, that strengthens the case.

HIS HONOUR:  Yes.

MR DAVIS:  But that doesn't mean that we would have to link a comorbidity to the death because the way the case works is you look at all these things.”

[35] Mr Davis explained the main thrust of the Crown case:

HIS HONOUR:  Right.  So it seems therefore to follow that unless you can link the negligence in a way which you can say but for the negligence he wouldn't have died, yes, you can and that's what you are propounding now.  That is why I said I think you are doing the but for bit, but you have then got to go further and say it was a significant and substantial cause.

MR DAVIS:  But your Honour is, with respect, looking at the wrong act because what-----

HIS HONOUR:  Well, I have got - you have got to be able to say that about any of the conduct that you rely upon as the negligent conduct.  I don't mean you have got to be able to say that about any one piece of conduct taken in isolation. You may be able to group things and say, well, one of these things by itself would not cause death but take these five together and they will.

MR DAVIS:  Can I put it to your Honour in this way - submit it to your Honour in this way: say, for instance, there was only one premorbidity and that was cardiovascular disease so that was the only premorbidity but there were all sorts of other reasons why the operation ought not to have occurred, so the site of bleeding hadn't been identified.  So the Crown case in that circumstance would have been he ought not have operated because it was an unnecessary operation and the person had a heart attack.  There's then an operation.  The operation is in breach of duty.  Why?  Because we have proved that for those two reasons there ought not to have been an operation.  He then dies of a brain aneurism on the table.  Putting aside questions of mistake and chapter 5, we have proved the case.”

[36] The Crown proposition was put even more starkly shortly after that exchange:

“HIS HONOUR:  Let's try and strip it down and simplify it. Suppose we also leave out of account the comorbidities. … He negligently carries out the operation.  He negligently carries out the operation because he has misdiagnosed it.  The bleeding was someplace else. … The operation is carried out but the patient dies. Nothing to do with the misdiagnosis that the patient dies, it's just that something happens, he gets the aneurism you spoke of and dies.  … On your argument, it's still a case fit to go to the jury.

MR DAVIS:  Yes, because … the operation has caused the death.  So I'd have to prove that the operation should not have occurred but once I get to that point, it's just purely a jury question as to whether there's been a breach - well, jury questions as to whether there's been a breach of duty.

HIS HONOUR:  All right.

MR DAVIS:  Is the breach of duty doing the operation, answer, yes.  Did the death occur, answer, yes.  Did it occur as a result - as a consequence of a breach of duty, answer, yes.  That's it.  Now, there might be arguments about section 24.  There might be all sorts of other arguments but that basic chain of causation is all the Crown needs to prove.”

[37] Two points arise out of that submission.  The first, as the defence submitted, is that nowhere in the particulars does the Crown allege that the performance of the operation was caused by the conduct particularised in para 5a.  Even if the Crown submission were correct, it would still be necessary to particularise how the operation resulted from that conduct.  The second is the wider question of whether what the Crown must prove goes beyond what is inserted in the last passage quoted.  Because of the importance of that wider question I gave the parties leave to file written submissions after the hearing.  As will appear, on considering the matter I have not found it necessary to deal with the wider question, at least at this stage.

[38] After referring to the decision of the High Court, the Crown submitted that in the present circumstances, s 288 operated as follows:

“a.The accused has undertaken to administer surgical and medical treatment to Mr Morris;

b.He therefore is obliged to ‘have reasonable skill and to use reasonable care' in doing 'such act’;

c.The 'act' must refer to the ‘surgical and medical treatment’ administered;

d.The ‘surgical and medical treatment’ here includes the recommendation to operate and the operation;

e.Given the condition of the patient, the recommendation to operate and doing the operation was a breach of the duty ‘to have reasonable skill and to use reasonable care’;

f.Therefore, the accused is held to have caused the consequences of the failure to observe or perform the duty;

g.So, if because of the poor condition of the patient (eg cardiac difficulties) an operation ought not to have been conducted and the conduct of the operation causes the death, it is irrelevant that the cause of death may have been something other than the condition of the patient;

h.… .”

[39] Paragraphs a to d are uncontroversial.  Nor can there be any challenge to paras e and f, as far as they go.  They reflect the submission which was made orally:

“MR DAVIS:  So the Crown case here in the simplified way in which your Honour and I are having this debate is that the act is the operation, so the act is doing the operation.  So the question then is whether or not if the person dies as a result of caused by the operation then he's liable for the breach of that duty and the breach of the duty is the doing of the operation.

HIS HONOUR:  If the death is a consequence of the operation.

MR DAVIS:  What your Honour is doing, with respect, is your Honour is trying to link up not a consequence of the operation but a consequence of the misdiagnosis.

HIS HONOUR:  If the death is a consequence of the failure to perform the duty, and the duty is in this case to do a number of things which would have led him not to operate.

MR DAVIS:  Not to operate.

HIS HONOUR:  Yes.

MR DAVIS:  So the breach of duty is operating.

HIS HONOUR:  Yes, that's right, so you have got to the point then where you have shown that but for the breach of duty, the consequence wouldn't have happened.

MR DAVIS:  Yes, but I've gone further than that because I've proved - on this assumption I've proved that the breach of duty, namely doing the operation, caused the death and I would not have to - I would not have to then go back and say, 'And I have also got to prove that he in fact died from something which was one of the comorbidities'.  I don't have to do that, with respect.

HIS HONOUR:  You have got to show that the things that caused the death were related to his negligence.

MR DAVIS:  But where your Honour and I are differing is the things he should have done or things he should not have done which caused the death is the operation.  So once you have got the operation causing the death, if the Crown can prove it was negligent to do the operation, that's it.”

[40] The fallacy in the submission is that recommending and performing the operation are not the only acts put forward by the Crown for the purposes of s 288.  The acts relied upon include everything in para 5a of the particulars.  Each of those acts is alleged to fall within the words “such act” in the section.  It follows that the Crown must prove that death was a consequence which resulted from those acts, either individually (as the particulars presently stand by reason of the words “any one or all” in para 5 a i) or in such combinations as the Crown might allege.  In my judgment that requires the Crown to allege in particulars and details of one, and possibly two, aspects of causation. 

[41] In cases under ch 27 of the Criminal Code, the first aspect (at least in cases not bedevilled by problems of multiple causes for which the accused is not responsible) is factual causation: “but for” the act, would the victim have died?  Applied to the present case, and bearing in mind the prosecution’s disclaimer referred to above,[13] that means it is necessary for the Crown to allege and prove that had the omissions alleged in para 5a not occurred, the accused (or, more probably, a reasonable surgeon in his position)[14] would not have recommended or performed the operation.  Absent that allegation, the case is not fit to go to the jury.[15]

[42] The particulars furnished by the Crown identified no consequence of the breaches in para 5a save the death of Mr Morris, which is alleged in general terms in para 7.  On the face of the particulars it is not possible to see how that consequence flows from an omission such as a failure to perform a further colonoscopy.  One supposes that a further colonoscopy might or might not have revealed the absence of diverticulitis; but then what?  Even if (as seems more probable) the first five dot points are read as intended to be a sequential set of steps which collectively would have revealed that the bleeding was due to radiation proctitis and not diverticulitis, so what?  Doubtless in that situation it would be negligent to remove the colon as the accused is alleged to have done; but he is not alleged to have died from the lack of a colon, nor from the presence of untreated radiation proctitis.

[43] The particulars already allege that Mr Morris's death was caused by the recommendation and performance of the operation.  If they were amended further to allege that had the tests and investigations been performed, the accused either would not have performed any major operation, or acting reasonably ought not to have done so, what then?  The answer must depend upon whether that allegation is cumulative with those in paras 5 b iii and 5 b iv.  If it is, it is probably unobjectionable in principle (although one wonders whether what the Crown really wants to allege is that the tests and investigations would have revealed that Mr Morris's condition was not of such gravity as to outweigh the factors set out in those two sub-paragraphs).  If however it were intended to stand alone, a serious question of what has been variously called in the civil law of negligence legal causation, proximity, or remoteness (to state a few names) would arise. 

[44] That is the second aspect of causation to which I referred above.  What is written in Fleming’s Law of Torts applies equally here: “Because the consequences of an act theoretically stretch into infinity, some limitation must be placed upon legal responsibility.”[16]  That applies equally in criminal law.  The point has received relatively little attention in this context, no doubt because most criminality results from positive acts rather than negligent omissions.  Because I suspect that the Crown does not intend to allege on a stand-alone basis that the omission of investigations and procedures caused the death, there is no immediate need further to examine this aspect.

The problem with para 5b

[45] Problems arise in relation to paras 5 b i and 5 b ii, but they may disappear if consequentially amended when appropriate amendments are made in relation to para 5 a.

Conclusion

[46] It will be apparent from what I have already written about the particulars that in my view they are, in their present form, incomplete and embarrassing.  There are further deficiencies, but I see no point in canvassing them at length.  The urgent need is for this judgment to be delivered so that work may start on revising the particulars.  Nevertheless I will mention the need for the immediate causes of death in para 6 to be related by some logical path to specific breaches of duty, via the performance of the operation if that is what is alleged.  It is not the function of the trial judge to write the prosecution's particulars for it; I say no more. 

[47] Particulars are supposed to inform an opponent and the trial judge of the detail which party relies on,[17] and to confine that party to the case particularised.  The deficiencies in these particulars mean they do not achieve that objective.  There is a clear need for the prosecution to identify precisely what its case is, to work out which of its allegations stand alone (if any) and which act in conjunction; and then to determine the consequences of each combination separately.  From what I have seen and been told this is not an impossible task in the present case.

Orders

[48] I have considered whether, given that the particulars are the third attempt by the Crown to comply with its obligations, their deficiencies are such as to warrant a permanent stay of proceedings.  That step is not presently warranted.  The deficiencies are curable and sufficient time remains for them to be cured, even taking account of the Christmas break.  The interests of justice require that the Crown be given the opportunity to remedy the deficiencies.

[49] I propose the following orders:

1.Application for a stay of proceedings dismissed.

2.Order that the particulars of charge filed on 5 December 2012 be struck out.

3.Order that the Crown file and serve on the accused proper particulars of the charge on or before 11 January 2013.