Dr Andrews (Dr A) is a qualified surgeon operating at a hospital on the NSW / Queensland border. A patient Bianca (B) is scheduled to have her tonsils removed by Dr A. On that day, Dr A has been drinking heavily with a friend over lunch. When he returns to the operating theatre for his afternoon shift he misreads the operating list and confuses Bianca with another patient scheduled for heart surgery later in the day (a procedure with a significantly higher risk of death or serious injury than the removal of tonsils). As a result, rather than removing her tonsils, Dr A performs heart surgery. As he is under the influence of alcohol, he makes a number of serious errors in the operation (which was unnecessary in any event) and Bianca dies on the operating table as a result.
A few hours later on the same afternoon at the local pub, David (D) and Vince (V) get into a heated argument over football. D punches V in the head and V falls, hits his head on the pavement and becomes unconscious, bleeding profusely from his head injury. An ambulance is called and V is rushed to hospital, where Dr A is still performing surgery (although he is no longer intoxicated at this time). Dr A operates on V’s head injuries. During the course of the operation Dr A makes a number of significant errors that contribute to V’s subsequent death.
Analyse the criminal liability for the following in both NSW and Qld:
1. Dr A’s potential liability for the death of Bianca (only); and
2. David’s potential liability for the death of Vince.
In each case, analyse the criminal liability:
(i) identifying the specific crime(s) with which Dr A and David could be charged and the likelihood of successful prosecution; and
(ii) commenting on any differences depending on whether the events occurred in NSW or Qld; and
(iii) identifying any further facts that might be required to fully answer the question.