Indian surgeon, dubbed 'Dr Death', to be retried in Australia

Sydney: An Australian court on Friday quashed an Indian-born surgeon's manslaughter convictions over the deaths of three patients, saying there had been a miscarriage of justice in his trial.

Jayant Patel, dubbed "Dr. Death" by the Australian media, was jailed for seven years in July 2010 after a jury found him guilty of criminal negligence resulting in the deaths of three patients and permanent injury to a fourth.

But the High Court on Friday dismissed the convictions and ordered a retrial, saying prosecutors radically changed their case on the 43rd day of the 58-day trial in a way which rendered much of the evidence irrelevant.
"The prejudicial effect on the jury was not overcome by the directions given by the trial judge," the High Court said.

"A substantial miscarriage of justice occurred."

Patel was convicted in Queensland's Supreme Court of three counts of manslaughter and one of unlawfully doing grievous bodily harm over surgeries he conducted at the Bundaberg Base Hospital between 2003 and 2004.

At the time, prosecutors successfully argued the operations were either unnecessary or inappropriate.

But the High Court said the prosecution initially alleged Patel had been "generally incompetent and grossly negligent in recommending the surgical procedures, in the manner in which he carried out those procedures, and in the post-operative treatment which he supervised".

"But on day 43 of the trial, the prosecution narrowed its case to focus on whether the surgical procedure in each case should have been undertaken."

Patel initially lost his appeal against his conviction and sentence but the High Court granted him special leave to appeal.

The court said on Friday that during the trial, the prosecution provided much evidence criticising Patel's surgical skills and post-operative care "to establish its original case that.... (he) had been grossly negligent in all aspects of his treatment of the patients".

"As the trial progressed it became apparent, and it was not seriously disputed, that the evidence showed that the surgery had in fact been performed competently enough," it said.

The court said prosecutors then radically changed their case to focus on Patel's decision to do the surgical procedures in the first place, but by then much of the evidence the jury had heard was prejudicial and irrelevant.