Miscarriages of Justice

The case of Dr Jayant Patel

A miscarriage of justice is usually associated with a person who is wrongly convicted of a crime, such as in the cases of Andrew Mallard, Kelvin Condren, and others. But a miscarriage of justice can also arise from a failure of the legal process. Although this type of miscarriage of justice is not common, it happened in the case of 62 year old Dr Jayant Patel. Dr Patel, a surgeon at the Bundaberg Hospital in Queensland, was convicted in 2010 in the Supreme Court in Brisbane of the manslaughter of three of his patients and the grievous bodily harm of a fourth patient who survived surgery.

At his trial, which ended on 29 June 2010, Dr Patel was convicted of incompetent surgery and sentenced to seven years in prison. Michael Byrne SC appeared for Patel and Judge John Byrne presided at the trial.

At the beginning of the trial, the prosecution set out to prove (beyond a reasonable doubt) that the surgery done by Dr Patel on these particular patients was incompetent. But as the trial proceeded, the prosecution gradually realized that they might be unable to prove their case, since the evidence revealed that Dr Patel’s surgical skills were adequate. To avoid losing their case, the prosecution radically changed their approach. At the forty-third day of a fifty eight day trial, the prosecution abandoned their efforts to prove that Patel’s surgery was incompetent, and then proceeded to argue that Patel should have advised his patients before the operations commenced, that surgery was not appropriate for them, and it should not be attempted.

From a legal point of view, this meant that the prosecution was now arguing under a different section of the Crimes Act. Dr Patel’s defence team strongly objected to this new approach by the prosecution and there was heated argument in court. Justice Byrne heard the arguments put by both sides but allowed the trial to proceed under this new section of the Act.

At the end of the trial, the jury convicted Dr Patel and he served some time in Wolston Correctional Centre, before he was granted an appeal. However, the Queensland Court of Appeal found nothing wrong with the court procedure at his trial and upheld the judgment against him.

Dr Patel’s legal team then appealed to the High Court on the grounds that Judge Byrne’s directions to the jury were not sufficient to overcome the prejudice to the jury which resulted from the evidence presented during the first forty-three days of the trial. The High Court unanimously found that Patel’s trial was tainted because the jury was exposed to highly prejudicial evidence during the first forty-three days of the trial. In August 2012, the High Court ruled that Judge Byrne should not have allowed the trial to continue under a different section of the Act after the forty-third day. The High Court ruled that Justice Byrne should instead have aborted the trial. Dr Patel’s appeal was unanimously upheld by the High Court and he was released from Wolston Correctional Centre in August 2012. A surety of $20,000 was imposed and Patel was required to report to the police three times a week.

The matter was then referred back to the Director of Public Prosecutions. The Director ruled that Dr Patel should face a new trial but that all four of the cases should be dealt with separately. The first of the new trials could begin in Brisbane as early as 12 November 2012.

Essentially then, the miscarriage of justice to Dr Patel resulted from two mistakes in the legal process. The first mistake occurred when the Director of Public Prosecutions failed to prepare a good enough case to ensure a conviction against Dr Patel on the grounds of incompetent surgery. The second mistake was procedural: Justice Byrne should not have allowed the trial to proceed after the forty-third day when the prosecution began to argue under a different section of the Act. Justice Byrne should have aborted the trial at that point.

Go back...