John Byrne (judge)
Encyclopedia
Justice John Byrne is the Senior Judge Administrator of the Supreme Court of Queensland
. Having been a judge of that court since 1989, he is one of the court’s most experienced judges.
between May 2009 and February 2010, including against solicitors and barristers acting against those he was suing, an Anti-Discrimination Tribunal member named Peter Roney and even the Chief Justice
of Queensland Paul de Jersey
.
After considering all the proceedings Mr Conde had brought, Justice Byrne made the following conclusions about the Mr Conde’s litigations:
As a result of those conclusions, his Honour granted leave to the applicants to proceed, stayed Conde’s six separate proceedings against the applicants, prohibited Conde from starting any fresh proceedings without the leave of the Supreme Court and ordered that Conde pay the applicant’s costs on an indemnity basis.
Conde later sought to appeal against Justice Byrne’s orders, and also sought to re-commence the proceedings that his Honour had stayed. The Queensland Court of Appeal dismissed all of his appeals, as well as the proceedings that Justice Byrne had stayed. Subsequent appeals by Conde to the High Court of Australia
proved unsuccessful.
and one charge of grevious bodily harm being brought against former Bundaberg Surgeon Dr Jayant Patel
.
The reason the prosecution sought to amend their case was that for three out of the four charges, the prosecution’s case was that Patel’s criminality lay in his decision to perform the operations he did, since it could not be proven that the operations themselves had been performed incompetently.
The legal controversies concerned the meaning and legal effect of sections 288 and 282 of the Criminal Code. Section 288 provided that:
It is duty of every person who ... undertakes to administer surgical ... treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty
Meanwhile, section 282 provided a possible defence for the accused:
A person is not criminally responsible for performing... with reasonable care and skill, a surgical operation... for the patient's benefit ... if performing the operation ... is reasonable, having regard to the patient's state at the time and to all the circumstances of the case
Counsel for the accused Michael Byrne QC submitted that the accused was not criminally responsible for the outcomes of surgery performed with the patient’s consent, except pursuant to s 288. It was also submitted for the defence that s288 was confined to the act of performing surgery itself, and that no criminal liability could arise from a decision to perform a proposed surgery . If those submissions had been accepted, three of the four charges against Patel would have been doomed to failure.
Justice Byrne held that the prosecution may not advance their new case because the fact that the surgery was consented to made it lawful, subject to s288. His Honour also held that section 282 was confined to cases where a surgeon did not have the consent of the person whose benefit the surgery was being performed (for example, where a patient is unconscious and unable to consent before surgery), and did not apply because the accused had obtained the consent of his patients. However, his Honour also found that s288 could extend to the decision to perform a surgery (followed by the performing of the surgery) rather than being confined to the act of performing surgery itself.
As a result, the trial was allowed to proceed on its original legal footing, resulting in Patel being found guilty of three charges of unlawful killing and one of grievous bodily harm.
when he practiced in that jurisdiction, and that whilst that order had no legal effect in Australia
, it should have made Patel aware that his professional judgment was considered questionable. The fact that Patel had carried on regardless in Queensland was an aggravating factor.
However, his Honour also found many mitigating factors, including the fact that this was Patel’s first conviction, that prison would be particularly difficult given his age, notoriety and his family living oversees, and that he had already served time in prison whilst cooperating with his extradition to Queensland.
As a result, his Honour imposed seven year sentences for each of the manslaughter charges, and three years for the grievous bodily harm charge. Since the sentences are concurrent, it was in effect a seven year sentence, less the time Patel had already spent in custody.
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
. Having been a judge of that court since 1989, he is one of the court’s most experienced judges.
Pre-judicial Career
Justice Byrne commenced his legal career as an Articled Clerk for Morris Fletcher and Cross before Admitted as a Barrister of the Supreme Court of Queensland in 1972. He was appointed Queen's Counsel ten years later in 1982. He also became a Member of the Supreme Court Library Committee, Supreme Court Rules Committee and the University of Queensland Law Faculty Board. He also served in the Army Reserve, in the Infantry Corps, from 1966 to 1985.Judicial career
Justice Byrne has been involved in many notable cases during his long judicial career.Gilfoyle & Ors v Conde
In this notorious case, Julie Gilfoyle, Burchill & Horsey Lawyers, Mylton Burns and McInnes Wilson Lawyers brought an application under the Vexatious Proceedings Act 2005 against the respondent Milton Arnoldo Conde, who had commenced more than two dozen proceedings in Queensland CourtsLaw Courts, Brisbane
The Law Courts Complex is located in George Street and Adelaide Street, Brisbane, Queensland, Australia.The Law Courts Complex contains both the Queensland Supreme Court and the District Court...
between May 2009 and February 2010, including against solicitors and barristers acting against those he was suing, an Anti-Discrimination Tribunal member named Peter Roney and even the Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
of Queensland Paul de Jersey
Paul de Jersey
Paul de Jersey, AC, QC was appointed Chief Justice on 17 February 1998 of the Supreme Court of Queensland, which is the highest ranking court in the Australian State of Queensland.-Education:...
.
After considering all the proceedings Mr Conde had brought, Justice Byrne made the following conclusions about the Mr Conde’s litigations:
- they allege that lawyers who have acted for his opponents maliciously prosecuted him and abused court process;
- they do not state facts that could arguably sustain the conclusory imputations of bad faith and other improper motive advanced;
- they are centred on ordinary steps in litigation taken by lawyers apparently acting properly for clients: such as defending a case, applying to a court for orders, and enforcing a costs order by bankruptcy proceedings;
- they involve extravagant, unparticularised claims for compensation for a broad range of grievances, personal injury and economic loss;
- have no reasonable prospect of success, on the face of the proceedings or on the evidence; and
- do not conform with the Uniform Civil Procedure Rules governing pleadings.
As a result of those conclusions, his Honour granted leave to the applicants to proceed, stayed Conde’s six separate proceedings against the applicants, prohibited Conde from starting any fresh proceedings without the leave of the Supreme Court and ordered that Conde pay the applicant’s costs on an indemnity basis.
Conde later sought to appeal against Justice Byrne’s orders, and also sought to re-commence the proceedings that his Honour had stayed. The Queensland Court of Appeal dismissed all of his appeals, as well as the proceedings that Justice Byrne had stayed. Subsequent appeals by Conde to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
proved unsuccessful.
The Queen v Patel
This 2010 high profile criminal trial involved three charges of manslaughterManslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
and one charge of grevious bodily harm being brought against former Bundaberg Surgeon Dr Jayant Patel
Jayant Patel
Jayant Mukundray Patel , referred to as Doctor Death is a surgeon who is at the centre of a 2005 scandal in which he was accused of gross incompetence while working at Bundaberg Base Hospital in Queensland, Australia...
.
Legal controversy
The case became legally controversial after the prosecution sought to amend the basis upon Dr Patel was charged, and heated legal argument with the defence ensuing. In short, the prosecution wanted to change its case to one of unlawful killing based on the surgery having caused the death of the patient in a way not justified or excused by law.The reason the prosecution sought to amend their case was that for three out of the four charges, the prosecution’s case was that Patel’s criminality lay in his decision to perform the operations he did, since it could not be proven that the operations themselves had been performed incompetently.
The legal controversies concerned the meaning and legal effect of sections 288 and 282 of the Criminal Code. Section 288 provided that:
It is duty of every person who ... undertakes to administer surgical ... treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty
Meanwhile, section 282 provided a possible defence for the accused:
A person is not criminally responsible for performing... with reasonable care and skill, a surgical operation... for the patient's benefit ... if performing the operation ... is reasonable, having regard to the patient's state at the time and to all the circumstances of the case
Counsel for the accused Michael Byrne QC submitted that the accused was not criminally responsible for the outcomes of surgery performed with the patient’s consent, except pursuant to s 288. It was also submitted for the defence that s288 was confined to the act of performing surgery itself, and that no criminal liability could arise from a decision to perform a proposed surgery . If those submissions had been accepted, three of the four charges against Patel would have been doomed to failure.
Justice Byrne held that the prosecution may not advance their new case because the fact that the surgery was consented to made it lawful, subject to s288. His Honour also held that section 282 was confined to cases where a surgeon did not have the consent of the person whose benefit the surgery was being performed (for example, where a patient is unconscious and unable to consent before surgery), and did not apply because the accused had obtained the consent of his patients. However, his Honour also found that s288 could extend to the decision to perform a surgery (followed by the performing of the surgery) rather than being confined to the act of performing surgery itself.
As a result, the trial was allowed to proceed on its original legal footing, resulting in Patel being found guilty of three charges of unlawful killing and one of grievous bodily harm.
Patel's sentence
In sentencing, Justice Byrne noted the fact that Patel had consented to an order of the Board of Medical Examiners of the State of OregonOregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
when he practiced in that jurisdiction, and that whilst that order had no legal effect in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, it should have made Patel aware that his professional judgment was considered questionable. The fact that Patel had carried on regardless in Queensland was an aggravating factor.
However, his Honour also found many mitigating factors, including the fact that this was Patel’s first conviction, that prison would be particularly difficult given his age, notoriety and his family living oversees, and that he had already served time in prison whilst cooperating with his extradition to Queensland.
As a result, his Honour imposed seven year sentences for each of the manslaughter charges, and three years for the grievous bodily harm charge. Since the sentences are concurrent, it was in effect a seven year sentence, less the time Patel had already spent in custody.