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

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