​Volume 2, Issue 7 (Originally Published 3 September 2012)
 
Notorious Bundaberg surgeon Jay Patel has had three convictions of unlawful killing and one of grievous bodily harm overturned by the High Court last week due to what the court found was a miscarriage of justice. Coined 'Doctor Death' by our ever-creative media, it is alleged that negligence on his behalf led to up to 87 deaths and many more post-operative complications. At his trial in the Queensland Supreme Court the prosecution amended their case 43 days in to charges of unlawful killing under section 288 of the Criminal Code; which requires every person performing surgical treatment or any other lawful act that may be dangerous to human life and health to have reasonable care and skill in performing the act, holding any consequences to the life and health of the person operated on resulting from the omission of these duties to be caused by the person who performed the act. The acts alleged included performing an oesophagectomy on an elderly man who died the next day from blood loss from an unidentified source, and removing a large percentage of the bowel of a man on the basis that it appeared to have signs of pre-malignance when the man in fact did not have cancer.
 
Justice Byrne ruled that the prosecution couldn't change their case against Patel, instead finding that section 288 could apply to a decision to perform surgery as well as the act of performing it. He sentenced Patel to seven years jail following a guilty verdict from the jury.
 
Patel has since appealed to the Court of Appeal, who dismissed his plea. He was granted special leave by the High Court on the grounds that section 288 did not in fact apply to the offences he was convicted of.
 
The Court in their judgements, agreed with Justice Byrne on the interpretation of section 288 but found that prejudicial evidence had been used by the prosecution, overwhelming the decision of the jury. Their honours found much of the evidence was discovered during and after the surgical procedures, and was admitted on the presumption that the plaintiff was aware of it before surgery. The jury were further led to understand that moral culpability had a relevance to their finding. Although the trial judge did give the jury directions as to which evidence was admissible, the court found that they were prejudiced to the extent of a miscarriage of justice nonetheless.
 
It is now up to the Queensland Department of Prosecution to decide whether they will charge Patel again. Tony Moynihan, Director of Public Prosecutions, stated that on the evidence it is in the public interest to pursue a new trial. It's possible that the Department will include more deceased and injured individuals in their case. For now, Patel's former lawyer says Patel is planning to release a 'bombshell' book where the 'truth will come out' about the sensational case. 

BRONWEN EWENS
Volume 2, Issue 7 (Originally Published 3 September 2012)
 
Eight uninhabited islands and rocks, whose total area is just seven square kilometres, made international headlines in August when a boatload of activists swam ashore in defiance of the coastguard’s orders. The mini-invasion triggered protests and angry words in China and Japan.
The archipelago, known as the Senkaku islands in Japan and the Diaoyu islands in China, lies northeast of Taiwan, east of the Chinese mainland and southwest of Japan's southern-most prefecture, Okinawa.

Just as importantly, they are close to strategically important shipping lanes, offer rich fishing grounds and are thought to contain oil deposits.  If control of the islands changed, it would create a new sea border between Japan and China.

The islands are currently Japanese territory, as Japan did not include them among the territories and islands to which it renounced its claims in the post-World War II Treaty of San Francisco.

Beijing began asserting its claim to the islands in 1971, two years after a U.N. study showed a potential for oil in the area. It alleges that when Taiwan was returned to it by Japan in the Treaty of San Francisco, the islands - as part of Taiwan - should also have been returned.

The drama throws an unaccustomed spotlight onto the specialised field of maritime disputes. Since 1982, sovereignty over coastal waters has been guided by the United Nations Convention on the Law of the Sea (UNCLOS), also known as the Law of the Sea Treaty. The 162 states parties can claim a ‘territorial sea’ up to 12 nautical miles (22km) from their shoreline, inside which they can set laws but not interfere with international shipping. Of the major powers, only the United States has not signed UNCLOS.

Relevantly for the Sino-Japanese dispute, there is a 200-mile ‘exclusive economic zone’ (EEZ) beyond the ‘territorial seas’, where coastal countries have the sole rights to resources. When two EEZs collide, UNCLOS calls for an equidistant line between the coasts, splitting the shared gulf or strait down the middle. The theory sounds simple, but the practice is complicated: islands, rocks, historic sovereignty and natural resources can bend the line.

Three main courts rule on maritime boundaries—the International Court of Justice (ICJ), the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea. Only the ICJ can enforce its decisions and the parties have to agree to be bound in advance, which Japan refuses to do with regard to the Senkaku / Diaoyu islands.

East Asia is the locus of many island disputes, driven in large part by an emboldened China.  Indeed, as The Economist points out, more than half the world’s sea borders remain undrawn. But rather than invasions, protests or wars, the ambiguities usually result in ‘highly paid lawyers debating old maps, analysing treaties and thrashing out deals’.
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Bronwen Ewens

​AUNT MYRTLE
Volume 2, Issue 7 (Originally Published 3 September 2012)
 
De Minimis would like to emphasise the importance of remaining calm and happy throughout the clerkship application period. Do not take any rejections personally.
 
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Dear Agony Aunts
All of my friends seem to be just sifting through interview offers while I get nothing. I want to be happy for them, and I am, but I desperately want to stop them asking me if I got any, because it feels like it’s rubbing it in. How do I get them to stop asking without sounding rude or unsupportive of their offers?
 
Still Waiting for a Clerkship
 

Dear Still Waiting
 
If what you need is your friends to stop asking, then just explain to them that you’re feeling especially worried, and would they mind if you just let them know if and when you’re successful?
 
Just as your friends aren’t being rude by asking, you’re not being rude by asking them to stop. At any rate, even if you are, being in law school, they’re probably so stressed by something (assessments, applications, workload, self-absorption) that they won’t even notice. More likely though, they’ll be happy so long as you don’t stop them joining in the celebrations when you get one.
 

De Minimis has received many letters about clerkship angst over the past few weeks and would like to take the chance to remind you that the only validation you need for your intellect is your own. Further, you are GREAT and SMART so please smile about this and enjoy the warmer weather that has hit us!

 

BRONWEN EWENS
Volume 2, Issue 7 (Originally Published 3 September 2012)
 
Two weeks ago, De Minimis reported on the High Court’s plain packaging decision – the most recent legal defeat for tobacco companies, whose legal travails began in the US as long ago as the 1950s, when American litigants first started suing cigarette companies in regard to their tobacco-related health problems. The lawsuits multiplied and in 1998 the Tobacco Master Settlement Agreement (MSA) was reached between the Attorneys-General of 46 states and four major cigarette makers. Under the MSA, the states settled their Medicaid lawsuits against the tobacco industry for recovery of their tobacco-related health-care costs, and also exempted the companies from private tort liability regarding harm caused by tobacco use.
 
Since then, a number of American tort lawyers have been on the lookout for another industry to target that has the potential of providing the multi-million dollar payouts forked over by Big Tobacco. According to The New York Times, a number of lawyers are planning to hit the jackpot by taking on ‘Big Food’. Just as smokers with lung cancer went after tobacco companies, people suffering from obesity and diabetes, whose numbers increase every day, want redress from the suppliers of the products that caused their disorders.  State governments are also becoming alarmed at the escalating costs of caring for people with food-related disorders and diseases and are putting pressure on food companies.
Currently, more than a dozen lawyers who took on the tobacco companies have filed 25 cases against industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America.
 
The lawsuits, filed over the last four months, assert that food makers are misleading consumers and violating federal regulations by wrongly labelling products and ingredients. While there has been a barrage of litigation against the industry in recent years, the tobacco lawyers are moving particularly aggressively. They are asking a federal court in California to halt ConAgra’s sales of Pam cooking spray, Swiss Miss cocoa products and some Hunt’s canned tomatoes.
 
But it might not be as simple as pointing to inaccurate or bamboozling food packaging labels. A federal judge in California in 2009 appeared to credit American consumers with a certain level of discernment and attentiveness when he threw out a case against PepsiCo which accused the company of false advertising because Cap’n Crunch’s Crunch Berries cereal does not contain real berries. He ruled that ‘a reasonable consumer would not be deceived into believing that the product in the instant case contained a fruit that does not exist’.
 
Yet the food-labelling lawsuits in California are not going away. (Since California laws are famously plaintiff-friendly, those inclined to forum-shop often opt for its courts.) 
One suit is against Chobani, a yoghurt maker, for listing ‘evaporated cane juice’, rather than ‘sugar’, as an ingredient in its pomegranate-flavoured yogurt. The Food and Drug Administration has repeatedly warned companies not to use the term because it is ‘false and misleading’, according to the suit.
 
If it succeeds, the damages will flow, since they will be based on the money generated by product sales.  Chobani’s revenues are expected to total $1.5 billion this year and the lawsuit cites 18 flavours of yogurt, more than half its line.
 
Earlier this year, Ferrero, the maker of Nutella, was sued in a class action suit in California after a misleading promotion led consumers to believe that the famously addictive spread carried nutritional and health benefits.  (So much for the ‘reasonable consumer’.)  Ferrero settled for three million dollars – nice for lawyers and litigants, but peanuts (hazelnuts?) for a conglomerate with annual revenue of several billions. 
 
Bronwen Ewens


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