Archive for Crime and Society
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 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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02.24.10
Posted in Crime and Society, News at 11:02 am by admin
Brisbane’s ‘bikeway rapist’ was convicted of sexual offences including five of (digital) rape of 11 victims and he was sentenced for 25 years imprisonment (non-parole period of 15 years). He appealed to the Court of Appeal to have his sentence reduced. The Court of Appeal accepted the argument by counsel that the sentence was manifestly excessive. The court reasoned that mitigating factors such as having no prior convictions, his guilty plea, his remorse and his co-operation with the police were not properly taken into account by the sentencing judge. His sentence was accordingly reduced to 16 years with a non-parole period of 12.8 years. Many in the community, the government (including the Premier) and opposition, the police, community groups working in the area of sexual violence and several of his victims have expressed disappointment, even anger, with this decision.
The Chief Justice, the Hon Paul de Jersey, who was a member of the Court of Appeal which heard the appeal, gave an interview in which he urged people to read the decision (before attacking it) and rejected the notion that judges were out of touch with the community. He did not comment on the decision itself in keeping with established judicial practice.
Read the decision of the Court of Appeal:
R v Colless [2010] QCA 026 (09/0223) Brisb Chief Justice Holmes JA Muir JA 23/02/2010
http://www.sclqld.org.au/qjudgment/2010/QCA/026
Listen to an Audio file of the Chief Justice.
Download the audio file
http://blogs.abc.net.au/files/de-jersey.mp3
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02.19.10
Posted in Crime and Society, News, Technology, The Legal System at 10:06 am by admin
Kaihana Tahseen Hussain, 20, stood trial for the murder of her mother, Shaheda Yasmeen Hussain, and the attempted murder of her father, Dr Muhammad Nurual Hussain, in the family’s Gold Coast apartment on October 9, 2006. She was 17 at the time.
The case for the prosecution was centered on the father’s evidence that she attacked and stabbed them both. She blindfolded her father, telling him she had a surprise for him, before she stabbed him in the upper abdomen with a knife. She had minutes before stabbed her mother in the stomach who died from blood loss at the scene.
Crown prosecutor Michael Byrne SC told the jury the accused was angry because her parents “restricted her lifestyle” by wanting her to complete school and go on to university, rather than move to Sydney to be close to her 20-year-old lover, Ben Brady. The two talked regularly via MSN Messenger and on-line. On-line chats were read out in court in which Kaihana told Ben Brady that her mum was a ‘religious freak’, that she felt she was ‘born into the wrong family’ and hated ‘the life they are inflicting on me’.
Earlier, whilst the family was living in Adelaide, Kaihana had run away to be with him for some months. Ben Brady gave evidence that she had injuries consistent with her claim that her mother had punched her and tried to strangle her after she caught her talking to him on the phone. Because of these injuries she had taken out an AVO order against her father and mother. After intervention of a family counsellor, the police and family, she returned home. Shortly after that she had a trip with her mother to Bangladesh and the Hussains moved to the Gold Coast to “start afresh”.
She wanted to convert from her family’s Islamic faith to Christianity. This distressed both her parents. Her father said in court that “I told her [if you convert] you will not find me as your father. I was very angry.”
The case for the accused was that there was a violent argument between the three of them in the apartment. The father had had threatened to kill the daughter [in the honour killing tradition] and take his own life if she converted to Christianity. He had a knife and there was evidence from neighbours hearing Kaihana screaming: “Help, help me, They want to kill me”. This was linked in evidence to the practice of ‘honour killings’ which still occur in some parts of Bangladesh and elsewhere. In the melee he stabbed his wife. As Kaihana ran out of the apartment to seek help and safety for herself, he wounded himself in the chest so that his daughter, not him, would be blamed for the injuries/death of the wife. The first words he said to the police when they arrived on the scene is that his daughter did this.
The father was taken to hospital to be treated for his wounds. A nurse at the hospital gave evidence that he said to her that as a Muslim he needed to pray because of what he had done to his wife,
Before he would answer questions, the father wanted assurance from police that anything he told them would not be used against him. Only when he was provided with a document declaring he was not a suspect in the murder of his wife and no charges would be laid against him would be assist the police with their enquires.
DNA evidence showed the knife – the murder weapon – had only the father’s DNA on it.
The Verdict: It took the jury just one hour to reach a verdict of not guilty of any offence. As she left the court precinct some jurors even embraced her.
Issues: As the media has pointed out, there were only two people who were in the apartment when Mrs Hussain was killed. One of them was the murderer. Both have different explanations of the events. One has gone to trial and been acquitted. The other has been told by police that he was given written assurance by the police that he not a suspect and would not be investigated. Hence he could not or tried for any offence. The question is whether this amounts to a legal immunity from prosecution? A spokesperson for Director of Public Prosecutions has said it is not.
This raises the possibility that the father may be now be investigated and possibly charged for the murder. However, he has made statements and given testimony in court on the understanding this would not occur. His right to silence therefore has been compromised and the evidence he gave used against him. Does this matter? Or is getting to the truth of what happened in the apartment that day that lead to the death of Shaheda Hussain more important.
Right to silence was a “hot topic” in Legal Studies for Queensland Vol 1 Chapter 9 pp199-202.
It is also worth considering whether the police should give any such assurances to individuals when investigating a murder?
In addition, the media has reported that some evidence was not presented to the jury, including the fact Kaihana visited a website “how to kill your parents?”. This was on the ground that it would be too prejudicial.
Double jeopardy prevents Kaihana being tried again for the events that occurred on that day unless there is new and compelling evidence. For details on the amendments to the Criminal Code on double jeopardy – see •Chapter 68 Exceptions to double jeopardy rules
•s 678B –Court may order retrial for murder—fresh and compelling evidence or
•678C –Court may order retrial for 25 year offence—tainted acquittal.
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02.14.10
Posted in Crime and Society, International Law, The Legal System at 6:56 pm by admin
Seven months after being arrested Stern Hu, an Australian business man with Rio Tinto, one of Australia’s largest mining companies, has been officially charged with criminal offences. He was born in China but became an Australian citizen in 1994.
On July 5, 2009 along with three other Chinese colleagues of Rio Tinto he was detained ( in prison) by the Chinese government for suspected bribery and espionage. All four now have been charged with bribery and stealing commercial secrets. Chinese law provides for a maximum penalty of seven years’ jail and a fine for stealing commercial secrets, and more than five years’ jail for bribery.
Australian consular officials have been allowed to visit him once a month, meeting Hu for up to an hour, albeit in the presence of Chinese officials. Under Chinese law he cannot see his wife, children or family. Months had passed before he received any legal advice.
The case highlights the very different legal system that operates in China, which is a socialist, inquisitorial system. No system is perfect and there are strengths and weaknesses in both approaches.
In chapter 9 of Legal Studies for Queensland the procedure of going to trial in Queensland is set out. This is very similar to what occurs in other common law countries. However, the system in the People’s Republic of China, as in some other civil law and socialist systems, is quite different. Some of these are listed below.
§ A person does not have to be brought before the court and charged ‘as soon as is reasonably practicable’ which in Queensland is usually within a 24 hour period. As in the Hu case, the pre-trial period without charge can be lengthy.
§ There is no presumption that a person will be given bail whilst awaiting trial. It is rarely granted.
§ There is a legal duty on defendants to answer questions.
§ Legal counsel is not mandatory but usually will be provided.
§ There are no jury trials. A panel of three judges oversees both the trial and the prior investigation by police and prosecutors. The lengthy supervised pre-trial period is to weed out weak cases.
§ This results in a very high conviction rate – around 98% of criminal cases that come to trial end in a guilty verdict.
§ As there are no juries the rules of evidence are different from Australia and confessional evidence is very important.
§ A defendant has only one opportunity to appeal a conviction or sentence ie limited right of review by a higher tribunal.
§ The state procurators, victims and their lawyers are also given the same right of one appeal even if the panel of judges has acquitted the accused.
§ China has retained the death penalty for a range of criminal offences, including economic, political, and environmental crimes as well as drug and offences against the person. The People’s Supreme Court reviews all death penalty cases before execution is carried out.
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Posted in Crime and Society, News at 5:04 pm by admin
Background:
In October 2003 Tina, and her new husband Gabe Watson, both from the American state of Alabama were on the 12th day of their honeymoon in Australia. Both were diving on the Great Barrier Reef when she died. Gabe Watson was an experienced diver and a certified rescue diver. His wife, a novice diver, experienced difficulty with her breathing apparatus on that day she died. He testified that his wife got caught in a current and panicked. He said he went to help but she tried to rip his mask off, and that he was unable to bring her to the surface. She sank to the bottom of the ocean. Video footage and photographs taken by other divers on the trip show her holding out her arms for him to help her. Gabe Watson argued that instead of going to her aid thought it better to return to the surface to get assistance from others. Another diver went to the ocean floor and brought up her body but she could not be resuscitated.
After an inquest and investigation in 2007, the Queensland coroner determined there was enough evidence to charge Watson with murder. This was because there were inconsistencies in his story – a total of 16 – and because of eyewitness evidence that he held his wife in a bear hug for a short period before she sank in an uncontrolled manner. Thus it was possible that Gabe Watson cut off her air supply from her oxygen cylinder during that time, bear-hugged her until she suffocated, then turned it back on the oxygen before he let go of her. This allowed him to surface whilst she sunk to the bottom of ocean. He argued he panicked.
Before the honeymoon, Gabe Watson asked Tina to increase her group life insurance to the maximum and name him as the sole beneficiary for her work insurance policy. This was seen as a possible motive for killing his wife, and he did contact the insurance company shortly after her death. He re-married.
Although Watson faced a murder trial in 2009, Queensland prosecutors did a plea deal which accepted a guilty plea from Watson to the lesser charge of manslaughter. [That means there was no trial – he pleaded guilty to the lesser charge and then was sentenced]. The court in sentencing him accepted that as an experienced rescue diver, he had breached his duty to his wife Tina but that there was no intention to kill or to do her any grievous bodily harm. Gabe Watson was sentenced to four-and-a-half years’ jail in June, to be suspended after 12 months. [See Legal Studies for Queensland Vol 1 10.5 pp 228-229] Many were concerned that he would serve only a year in prison. The leniency of the sentence for the unlawful killing of his wife was appealed by the Attorney–General of Queensland and was increased to 18 months. [Re criminal appeals see Legal Studies for Queensland Vol 1 9.9 p208] He is due for release this year.
Gabe Watson will have served his time in prison and that should be the end of the matter. He is not an Australian citizen and would not have a valid visa beyond his prison term. Hence, it is likely he will be transferred to an immigration detention centre until he can be put on a plane to either America or another country that will offer him a ‘safe haven’.
The family and friends of Tina Watson in her home state of Alabama remain unhappy with the outcome. They argue that only a jury trial for murder could determine his guilt or innocence. Her father said: “He should have gone to trial for murder before a jury. Had that happened I am confident that the judicial process in Australia would have worked.” [See Legal Studies for Queensland Vol 1 9.5 pp 190 –196 on the pros and cons of jury trials]
Currently
The Attorney-general’s department in Alabama commenced its own investigation into the death building a case against Watson that the death of his first wife, Tina, on the Great Barrier Reef was pre-mediated. They say they have evidence that he plotted and planned Tina’s murder. They want him on release from prison here to be extradited to Alabama to stand trial for first degree murder – despite the Queensland conviction for manslaughter. Alabama authorities have requested Watson’s case file from Queensland police in a bid to try him for murder and have indicated they will seek the death penalty. They have criticised the Queensland government for not providing necessary information. Their Attorney-General said: “If an Australian’s loved one was (killed) in Alabama, we’d be co-operating so fast their heads would spin.”
Death Penalty:
Australia does not have the death penalty for any offences. Alabama has the death penalty as a sentencing option for first degree (pre-mediated) murder. Extradition is a federal, not State, matter. Under Australian federal laws, the Extradition Act (Cth) 1988 prevents a minister from surrendering a person to be prosecuted for an offence that carries the death penalty. Hence, the only circumstances where Watson is likely to be sent back to the US is if there is an undertaking that the death penalty won’t be imposed or, if it is imposed, it will not be carried out.
See s22 (c) Extradition Act (Cth) 1988.
Is this double jeopardy?
Under the Queensland Criminal Code murder and manslaughter are alternative verdicts. Hence in Australia Watson cannot be tried a second time for a crime for which he had already been in jeopardy and punished as this double jeopardy. [On double jeopardy see Legal Studies for Queensland Vol 1 9.9 pp 208-212] However, Alabama lawyers argue that there is no “international standard” on double jeopardy, and that it is would not be prosecuting someone twice for the same offence, especially as Watson didn’t plead guilty to murder and was never tried for that offence before a jury.
Section 7 of the Extradition Act (Cth) 1988 states that there is an objection to extradition where: the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
The case of Gabe Watson remains one to watch.
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01.14.10
Posted in Crime and Society, Law in a Changing Society at 6:19 pm by admin
The suspension of tasers (after the death of a tasered man in June 2009) has ended and police will now be able to resume using them to settle violent and difficult confrontations. Trials of cameras being attached to tasers (taser-cams) have commenced as a way of monitoring use of these stun-guns by police.
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Posted in Crime and Society at 6:02 pm by admin
The coroner investigating Michael Jackson death (at age 50) has ruled that it was a homicide. Death was caused by acute intoxication of the powerful anaesthetic drug propofol along with other sedatives. There were no illegal drugs found in his system. His doctor is being charged with manslaughter arising from gross negligence in the treatment and care of his patient Michael Jackson.
What is required for a manslaughter convicted is covered in legal Studies for Queensland Vol 1, Ch 7:131 – 137. Note the case study on Jayant Patel -p 136 and the practical application -p137. For the difference between civil and criminal negligence see; p322 -325.
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12.08.09
Posted in Crime and Society, News, The Legal System at 10:26 am by admin
In responding to the recommendations of Moynihan Report a bill was submitted to Queensland’s parliament on 24th November with the expressed aim of modernising Queensland’s civil and criminal justice system. The existing law is set out in Legal Studies for Queensland Chapter 9 – Going to Trial – pp180 216. However, if this bill becomes law, there will be some changes as part of the modernisation process.
Proposed changes include:
§ extending the general criminal jurisdiction of the District Court for indictable offences from a maximum penalty of 14 years’ imprisonment or less, to those with a maximum of 20 years or less
§ abolishing committal hearings,
§ abolishing defendant’s elections for summary trial,
§ requiring a range of indictable offences to be tried summarily, including, stealing, receiving stolen property, fraud, forgery, wilful damage, certain burglaries, dangerous driving and escaping from lawful custody.
§ changes to bail
§ extending the time limits for prosecution of a simple offence.
For more information see:
Media Release by the Attorney-General, Mr Cameron Dick.
http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=67572
Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2009
http://www.parliament.qld.gov.au/view/legislativeAssembly/tableOffice/documents/TabledPapers/2009/5309T1476.pdf
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