High Court orders Patel retrial after 'miscarriage of justice'

Updated

Former Queensland surgeon Jayant Patel is set to be released from jail after winning a High Court challenge against his convictions for manslaughter and grievous bodily harm.

The High Court today ruled Patel be re-tried, saying he had been the victim of a "substantial miscarriage of justice" and had carried out surgery on patients, who later died, "competently enough".

Patel reportedly became highly emotional when he learned he had won the appeal.

A subsequent bail application lodged this afternoon in the Supreme Court in Brisbane was not opposed, but it is not clear if he will be released today or on Monday.

Patel was sentenced to seven years in jail in 2010 for the manslaughter of three of his patients, and for causing grievous bodily harm to another.

The deaths all occurred between 2003 and 2005 when Patel worked at the Bundaberg Hospital.

After a failed attempt in the Queensland Court of Appeal, Patel's lawyers asked the High Court to quash his convictions and either acquit him or order a new trial.

Today the High Court found a miscarriage of justice had occurred because the prosecution "radically changed its case in a way that rendered irrelevant much of the evidence that had been admitted".

A substantial miscarriage of justice occurred. High Court statement issued today

"The prosecution alleged that the standard of care provided by the appellant to the patients was so low as to breach the duty imposed by [section] 288 of the Criminal Code upon a person who undertakes to administer surgical treatment," the court said in a statement.

"Initially the prosecution alleged that the appellant had been generally incompetent and grossly negligent in recommending the surgical procedures, in the manner in which he carried out those procedures, and in the post-operative treatment which he supervised.

"But on day 43 of the trial, the prosecution narrowed its case to focus on whether the surgical procedure in each case should have been undertaken."

The High Court ruled that "as the trial progressed it became apparent, and it was not seriously disputed, that the evidence showed that the surgery had in fact been performed competently enough".

"Much of the evidence about the surgery and post-operative care was prejudicial to the appellant but no longer relevant on the prosecution's revised case.

"The prejudicial effect on the jury was not overcome by the directions given by the trial judge about the limited use that could be made of that evidence.

"A substantial miscarriage of justice occurred. The court set aside the order of the Court of Appeal and in its place ordered that there be a new trial."

Bail conditions

The Crown had argued that it only had to prove Patel had caused the deaths and the injury and that there was no problem with the conduct of the case.

A spokesperson for Queensland's Director of Public Prosecutions said the office would carefully consider the High Court's judgment before making any decision concerning the retrial of Patel.

"As the matter is still before the court, it is inappropriate for the director to make any further comment at this point in time," the spokesperson said.

Patel is in custody in the Wolston prison, west of Brisbane.

He will be released on bail conditions originally set in July 2008. They include a $20,000 surety and that he report to police three times a week.

Patel's lawyer Arun Raniga says he does not know whether prosecutors will ask for a new trial, but he is ready to defend Patel a second time.

"It's traumatic and it's unfortunate that we have to go through it again, but that's the justice system," he said.

"The High Court gave its verdict and we start again."

Grief and anguish

Former patients of Patel broke down in tears upon hearing the news that the appeal has been upheld.

Bundaberg Patient support group president Beryl Crosby said the legal process had already run for years and patients did not want to go through another trial.

"What happens from here affects these people all over again," she said.

What happens from here affects these people all over again. Patient support group president Beryl Crosby

"All those months, all those people, all that anguish, all that grief I can't imagine. This is the worst scenario."

One of the overturned manslaughter convictions relates to the death of Gerry Kemps.

His widow Judy Kemps says she does not know if she can prepare herself up for another trial.

"If I can do that again for the next one? I really don't know, I don't," she said.

Mrs Kemps says the situation is putting a lot of strain on the families affected.

Nurse Toni Hoffman, who first raised issues related to the Patel case, said she was disappointed by the news.

"I don't know that I am particularly surprised," she said.

"It was a landmark case. It was very difficult for the prosecution and I think they tried their best.

"I'm still in shock at the moment."

Topics: courts-and-trials, law-crime-and-justice, crime, bundaberg-4670, qld

First posted