Archive for July, 2010
07.16.10
Posted in Crime and Society, Torts at 7:15 pm by admin
In what circumstances should the negligence of a surgeon be regarded as criminal?
This question was answered on 30 June 2010 after six and a half days of deliberation by the 12 members (six men and six women) of the jury in the Brisbane Supreme Court trial of former Bundaberg Hospital surgeon, Jayant Patel. As the jury’s verdicts of guilty on three manslaughter charges (75 year old Mervyn Morris, 77 year old Gerardus Kemps and 46 year old James Phillips) and guilty on one count of grievous bodily harm (62 year old Ian Vowles) were read out, there were cheers and hugging between former patients and family members who were watching via live video link. Two days later, Justice John Byrne sentenced Dr. Patel to seven years imprisonment, although he is eligible for parole in less than four years. An appeal against the conviction was lodged by Dr. Patel’s lawyers on July 15 2010.
In arriving at their guilty manslaughter verdicts, the jurors had to consider whether or not Dr. Patel had been criminally negligent under the Queensland Criminal Code by breaching his duty to have reasonable skill and use reasonable care when doing acts which may by dangerous to life or health, particularly medical and surgical treatment, or acts in the course of employment. Although it took the jurors almost a week to agree as a whole group, they decided that Dr. Patel had been guilty of ‘recklessness involving grave moral guilt’, which is the standard of criminal negligence required by the Queensland Supreme Court precedent of R v Jackson & Hodgetts [1990] 1 Qd R 456 (see pages 134 and 135 of Chapter 7 (Criminal Offences) in the Crime and Society section of Legal Studies for Queensland, Volume 1, Fifth Edition).
Whistleblower nurse Toni Hoffman said she felt vindicated by the decision. “It’s vindication and it’s relief, but the price that you have to pay is too great and we shouldn’t have to do that,” she said. Ms Hoffman said it is the end of a chapter she can now close, but the verdict is a warning to others. “This is a message to dodgy doctors everywhere,” she said.
During the trial, Patel’s defence counsel claimed Patel had always acted in the best interests of his patients, who had consented to the operations. Prosecutor Ross Martin, however, who characterised Patel as a “bad surgeon motivated by ego and suffering from lack of insight”, urged the jury to return guilty verdicts on all charges. He told the jury the trial was about “judgements” and that Patel’s negligence extended to his poor decisions about when to operate, and his choices about appropriate post-operative care.
In summing up, Justice John Byrne reminded the jury that Mr Martin neatly summarised the crown’s allegations when he said, “Over 19 to 20 months, there had been poor decision-making, misdiagnosis, performing surgery on patients who could not withstand it, performing surgery at the wrong hospital and the removal of healthy organs”.
Timeline:
- April 2003: Dr Jayant Patel begins work as a surgeon at the Bundaberg Hospital
- June 2003: Toni Hoffman raises concerns about Patel’s conduct as a surgeon
- March 2005: Opposition MP Rob Messenger raises concerns in Parliament about Patel’s competence
- April 2005: Patel resigns and is flown back to Portland by Qld. Health
- April 2005: Media scrutiny reveals Patel banned from performing some surgery in USA
- April 2005: Premier Peter Beattie announces inquiry, headed by Tony Morris
- September 2005: Inquiry headed by Geoff Davies begins after Morris inquiry axed over bias
- November 2006: Warrants issued for Patel’s arrest on charges including manslaughter
- July 2008: Patel extradited to Brisbane from the USA
- June 2010: Patel found guilty of three counts of manslaughter and one count of grievous bodily harm; sentenced to seven years jail.
View the ABC News website at http://www.abc.net.au/news/stories/2010/06/29/2940352.htm for a news report entitled ‘Patel guilty on all charges’, which describes the scenes in Brisbane and Bundaberg as the verdicts were handed down by the jury.
Other useful sources contained at this website address are as follows:
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07.15.10
Posted in Rights and Responsibilities at 7:08 pm by admin
World Refugee Day, which is June 20 each year, is promoted by the Office of the United Nations High Commissioner for Refugees (UNHCR) as a way of leading and coordinating international action to protect refugees worldwide. According to the UNHCR, there are 42 million people throughout the world who have been uprooted from their homelands.
The international theme for the 2010 World Refugee Day was ‘Home’, while the Australian theme for Refugee Week (June 20-26) in 2010 was ‘Freedom from Fear’.
The aims of Refugee Week in Australia include the following:
• To educate the Australian public about who refugees are and why they have come to Australia.
• To helping people understand the many challenges faced by refugees coming to Australia.
• To celebrate the contribution refugees make to our community.
• To focus on how the community can provide a safe and welcoming environment for refugees.
• For community groups and individuals to do something positive for refugees, asylum seekers and displaced people within Australia and around the world.
According to Article 1 of the 1951 Convention Relating to the Status of Refugees, a refugee is a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country …’.
An asylum seeker is a person who has left his or her country of origin, has sought refugee status in another country, but has not yet been granted refugee status and is awaiting a decision on his or her application.
For more information relating to the legal rights of refugees and the moral and legal responsibilities of countries, including Australia, to provide them with a new, safe homeland, click on the following links:
• United Nations High Commissioner for Refugees (www.unhcr.org)
• Refugee Council of Australia (www.refugeecouncil.org.au)
• Amnesty International Australia (www.amnesty.org.au)
• Human Rights Watch (www.hrw.org)
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Posted in Crime and Society, Rights and Responsibilities at 7:07 pm by admin
Brisbane’s Caxton Legal Centre Inc. has recently published a booklet, called ‘Police Powers: Your Rights’, which is a clear and logical practical guide to your rights when dealing with the police. Collaborating with the Queensland Council for Civil Liberties, the Caxton Legal Centre has produced a resource that will, on a day-to-day basis, make the public aware of the powers conferred upon police officers and the limits of those powers.
Caxton Legal Centre may be contacted by telephone on 07 3254 1811 or fax on 07 3254 1356 or by email at caxton@caxton.org.au to request copies of the booklet. Alternatively, the booklet may be downloaded from the website at www.caxton.org.au
Contents of this new up-to-date resource include the following:
• Where do I look for information or legal advice?
• What if I’m under 17?
• Your first contact with police: questions and directions
• Getting arrested
• Police searches
• Going to the police station or watch-house
• Legal proceedings
• Offences and penalties
• Complaints and referrals
• Checklist: dealing with police – first contact, interviews, arrest and physical interactions with police, court process, referral points (including contact details for the Queensland Council for Civil Liberties, Legal Aid Qld, Crime and Misconduct Commission and Aboriginal and Torres Strait Islander Legal Service.
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Posted in Crime and Society at 7:05 pm by admin
In June 2010, Susan Falls, 42, was found not guilty of murder by a Supreme Court jury after it had deliberated for just 90 minutes, despite having intentionally killed her husband, Rodney Falls, by drugging him and then shooting him twice in the head in their Caloundra family home in 2006. Three men were found not guilty of helping Ms Falls dispose of her husband’s body.
Mrs Falls admitted to shooting Mr Falls but claimed she acted in self defence after years of abuse, fearing he would harm her or her children. Ms Falls’ Supreme Court trial heard expert testimony that the breaking point came when her husband threatened to kill one of their children.
Under Section 272 of the Queensland Criminal Code, people are only able to use an amount of force that is ‘reasonably necessary’ to defend themselves. If, in defending yourself, you use more force than is reasonably necessary, you cannot rely on ‘self defence’ as an excuse for your response. (see pages 174 and 175 of Legal Studies for Queensland, Volume 1, Fifth Edition in Chapter 8 (Excuses and Defences)).
As reported at www.adelaidenow.com.au/news/national/, Lawyer Debbie Kilroy, founder of women prisoner support group Sisters Inside, said the verdicts should not encourage the public to take the law into their own hands. “This does not mean ‘open season’,” Ms Kilroy said. “I think (the Falls verdict) is a message to all battered women and victims of serious domestic violence that there is justice in the legal system,” she said. “Even though a life has been lost, it says to us that violence is still occurring against women at a horrendous level.”
Ms Falls’ two-week trial heard evidence she drugged Rodney Falls by putting sleeping tablets in his favourite meal of curried prawns before shooting him in the right temple at point-blank range with a silenced 0.22 calibre pistol. After cowering in the kitchen for about two hours she fired a second shot into his throat. Ms Falls’ legal team used the “battered woman defence” to argue their client should be acquitted of murder and manslaughter. “Battered woman syndrome” is a condition that renders the victim unable to take independent action to escape the abuse or seek assistance.
Related Coverage
Why I killed my husband – wife reveals Perth Now, 29 Jun 2010
What made Susan kill husband? Courier Mail, 4 Jun 2010
Curried prawn murder accused not guilty Adelaide Now, 3 Jun 2010
Susan Falls not guilty of murder Courier Mail, 3 Jun 2010
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Posted in The Legal System at 7:04 pm by admin
On 24 June 2010, Australia’s first female Prime Minister, Julia Gillard, was sworn in by Australia’s first female Governor-General, former Queensland Governor, Quentin Bryce. Julia Gillard was not elected to this position directly by the Australian people but, rather, together with other Government Ministers and backseaters in the Australian Labor Party, forced Kevin Rudd to resign due to poor opinion polls.
In 2007, as the Leader of the Australian Labor Party, Kevin Rudd was elected as Prime Minister by a majority of the Australian people, defeating John Howard’s Liberal-National Coalition parties. Is it truly democratic for a political party’s elected representatives in the parliament to replace the elected Prime Minister with another party member or should Prime Ministers be decided only by the vote of the people in an election? This question is particularly significant in the light of the presidential style of election campaigns that occur in modern Australian politics where the leaders of the major opposing political parties essentially ask Australians to decide which of the two high profile candidates they would like to have as the next Prime Minister or Premier.
Another important question, which will soon be answered by the Australian people, is: Will girl power be enough for Julia Gillard to remain as Prime Minister beyond 2010 when people power flexes its muscle and the Australian voters have their say at the ballot box in the looming Federal Election? This was something that Queensland’s first female Premier, Anna Bligh, managed to do when she won an election in 2009 after having been voted unopposed by her Labor Party colleagues as the successor to Peter Beattie when he retired as Premier.
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