Jayant Patel submitted an application in the High Court of Australia seeking special leave to appeal a decision of the Queensland Court of Appeal.
Mr Patel was convicted on three counts of manslaughter and one of unlawful grievous bodily harm for deciding to operate on a patient whose health was precarious. The patient suffered bleeding that could not be stopped and later died.
Counsel for Mr Patel argued that he did not have a trial according to law because he had been tried under section 288 of the Criminal Code (Qld), which does not include the decision to operate, and he should have been tried under section 282, which does.
Counsel submitted that the trial was a miscarriage of justice because the law was incorrectly put before the jury, and because the jury had heard much prejudicial evidence regarding the surgery, when the competence of the surgery was no longer an issue.
The Crown argued that the words in section 288 should capture the decision to operate, and the concept of surgery is wide and includes the decision. The Crown also argued that the evidence regarding surgery was necessary and relevant to prove causation.
The Court granted the application for leave to appeal based on the interpretation of the Queensland Criminal Code, requested further particulars regarding the miscarriage of justice and referred the application to an expanded court.
