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.