The Patel trials: further evidence of the need to reform the Griffith Codes

Article

Hemming, Andrew. 2014. "The Patel trials: further evidence of the need to reform the Griffith Codes." Criminal Law Journal. 38 (4), pp. 218-235.
Article Title

The Patel trials: further evidence of the need to reform the Griffith Codes

ERA Journal ID33234
Article CategoryArticle
AuthorsHemming, Andrew
Journal TitleCriminal Law Journal
Journal Citation38 (4), pp. 218-235
Number of Pages18
Year2014
PublisherLawbook Co.
Place of PublicationSydney, Australia
ISSN0314-1160
Abstract

This article argues that the two trials of Dr Jayant Patel for criminal medical negligence under s 288 of the Criminal Code 1899 Act (Qld) highlight the inadequacies of the duty provisions in the Griffith Codes of Queensland and Western Australia. The difficulties with these duty provisions extend beyond causation and go to the heart of the construction of the Griffith Codes. The fundamental problem lies in the wording of s 23 of both the Queensland and
the Western Australia Codes, the principal section dealing with criminal responsibility, which allows a prosecution for criminal negligence under two alternative routes with different standards of proof, and the importation of
common law criminal negligence into the duty provisions in the absence of a specified fault element in the relevant Code sections. It is further contended that other criminal law jurisdictions in Australia, such as the Criminal Code
1995 (Cth), offer a better model for the prosecution of criminal negligence cases that flow from breach of a specified duty. The article has greatly benefited from comments provided to the author by Justice HG Fryberg, who
conducted the second Patel trial.

Keywordscriminal law; medical negligence; duty provisions; Griffith Codes
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
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Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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