Reeves v The Queen [2013] HCA 57

Reeves v The Queen [2013] HCA 57

It was an error to direct the jury in terms of 'informed consent' requiring explanation of major consequences and alternative treatments; for criminal law, it is sufficient that the patient consented to surgery informed in broad terms about its nature. The misdirection did not occasion a substantial miscarriage of justice as the issue at trial was whether the complainant was told the surgery involved removal of the vulva, including labia and clitoris. The appeal against conviction must be dismissed but the sentence appeal allowed as the Court of Criminal Appeal failed to consider the residual discretion.

Parties
Applicant: Graeme Stephen Reeves; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
18 December 2013
Procedural Posture
Criminal Appeal / High Court Special Leave to Appeal and Appeal From Determination of the NSW Court of Criminal Appeal
Outcome
Appeal allowed in part
Legal Topics
Malicious Infliction of Grievous Bodily Harm, Consent to Medical Procedure, Jury Directions, Appeal Against Conviction, Appeal Against Sentence, Application of the Proviso, Residual Discretion
Criminal Law Malicious Infliction of Grievous Bodily Harm Consent to Medical Procedure Jury Directions Appeal Against Conviction Appeal Against Sentence Application of the Proviso Residual Discretion

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Parties

Graeme Stephen Reeves

Applicant

The Queen

Respondent

Procedural Posture

Criminal Appeal / High Court Special Leave to Appeal and Appeal From Determination of the NSW Court of Criminal Appeal

Legal Issues

  1. 1 Whether 'informed consent' was the correct test for lawful cause or excuse in criminal liability for surgery
  2. 2 Whether the misdirection to the jury caused a substantial miscarriage of justice
  3. 3 Whether the Court of Criminal Appeal erred in allowing a prosecution appeal against sentence without considering the residual discretion

Ratio Decidendi

It was an error to direct the jury in terms of 'informed consent' requiring explanation of major consequences and alternative treatments; for criminal law, it is sufficient that the patient consented to surgery informed in broad terms about its nature. The misdirection did not occasion a substantial miscarriage of justice as the issue at trial was whether the complainant was told the surgery involved removal of the vulva, including labia and clitoris. The appeal against conviction must be dismissed but the sentence appeal allowed as the Court of Criminal Appeal failed to consider the residual discretion.

Court Disposition

Appeal allowed in part

Orders

  • Special leave to appeal on Grounds 2.1, 2.2 and 2.3 granted
  • Application for special leave to appeal otherwise dismissed