Lewis v The State of Western Australia
[2008] WASCA 94
•30 APRIL 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEWIS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 94
CORAM: MILLER JA
HEARD: 23 APRIL 2008
DELIVERED : 30 APRIL 2008
FILE NO/S: CACR 103 of 2007
BETWEEN: NATHAN FRANCIS LEWIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :INS 295 of 2005
Catchwords:
Criminal law - Leave to appeal - Refusal of trial judge to adjourn - Whether miscarriage of justice
Criminal law - Leave to appeal - Application to rely on new evidence - Whether report of medical practitioner properly addressed at trial
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2), s 40(1)(e)
Criminal Code, s 1
Criminal Procedure Act 2004 (WA), s 132(8)
Result:
Application for leave to appeal dismissed
Application for leave to rely on additional material dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R R Cywicki
Respondent: Mr L M Fox
Solicitors:
Appellant: Malcolm J Ayoub
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Mano v Iriks [1999] WASCA 180
Myers v Myers [1969] WAR 19
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Staley v Lopes [2005] WASCA 75
MILLER JA: The appellant was tried before Yeats DCJ and a jury in the District Court at Perth between 29 and 31 May 2006 on counts of grievous bodily harm, aggravated burglary, and stealing a motor vehicle and driving it recklessly. He was convicted of all counts. He now seeks leave to appeal from his convictions on two grounds. The grounds are stated in the alternative, and relate to a refusal by the trial judge to adjourn the trial following amendment of the indictment to upgrade a count of assault occasioning bodily harm to one of grievous bodily harm.
Application for adjournment
The trial of the appellant began on 29 May 2006. An earlier indictment which contained seven counts was discontinued and a fresh indictment tendered. It was the fresh indictment which contained the three counts upon which the appellant was convicted.
Counsel for the appellant gave early notice that he would be applying for an adjournment by reason of the fact that the appellant had initially been charged with assault occasioning bodily harm, but was now being charged with grievous bodily harm. The trial judge questioned how the appellant would be prejudiced by the change in the indictment, and the following exchange occurred:
YEATS DCJ: Why is he prejudiced with that? I must say, I thought having all of these on one indictment couldn't, in fact, be prejudicial.
AYOUB, MR: Well, that was the initial approach, your Honour, but you will see that it's count 6 which is the one which is now upgraded.
YEATS DCJ: Yes, but that doesn't have anything to do with whether he did it or not.
AYOUB, MR: No, your Honour.
YEATS DCJ: Which is the issue. It has to do only with the effect on Mr Collier Brown. I can't see where a change from a bodily harm to grievous bodily harm is something - I mean it's a matter of medical evidence.
AYOUB, MR: I do understand and that's ‑ ‑ ‑
YEATS DCJ: And the question is who did it and I can't see allowing you to have an adjournment on that basis. I can't see where the interests of justice would allow me to do that.
The trial judge then considered a medical report to Dr Senthi, who was to be called by the prosecution. The doctor expressed the view that he was unable to see how any further medical opinion could be of any assistance to the appellant. There was a further exchange in which the prosecutor made it clear that the doctor's opinion would be limited to the question of injury to health, rather than endangering of life. Counsel for the appellant repeated the application for the adjournment. The full exchange was as follows:
YEATS DCJ: It's a double whammy from the doctor in his opinion that the injuries were of a nature as to endanger life, as well as cause or likely to cause permanent injury to health and there are fractures involved.
AYOUB, MR: Yes, your Honour ‑ ‑ ‑
FOX, MR: If I just may raise as a matter of fairness, I do expect the doctor in his evidence to retract from the endangering life. His opinion is more likely to concentrate on causing permanent injury to health. That's based on my discussions with him last week.
YEATS DCJ: When you fracture someone's eye socket, it's just hard to avoid.
AYOUB MR: Yes, your Honour, I do see that but I think also, your Honour, the law gives us an opportunity to reconsider any new indictment with 21 days and that's something that I really think that I should do with my client, ma'am.
YEATS DCJ: I'm not going to allow the adjournment because of the interests of justice that require this court not to waste its time with trials unless there is a good reason and I don't see a good reason.
The trial then began.
Evidence of Dr Anand Senthi
Dr Senthi was a medical practitioner in the Rockingham‑Kwinana emergency department on 19 October 2004, when he treated a patient, James Brown. He was the person named as the complainant in the indictment. Dr Senthi found Mr Brown to have sustained multiple facial and head lacerations, with significant swelling around his left eye, causing closure of the eyelids. Further examination revealed a fracture to the bone surrounding the left eye. It was described as a blow‑out fracture of the left orbit and fracture of the inferior floor of the orbit. There were other injuries, but it is unnecessary to deal with them.
Mr Brown was transferred to Royal Perth Hospital for treatment by maxillofacial surgeons, because he had sustained significant injuries around the eye.
Dr Senthi was asked about a report that he prepared and the opinion expressed in that report. He said:
Okay. I wrote:
The nature of the injuries were consistent to have been inflicted as alleged and the injuries were of such a nature as to endanger life or to cause or would be likely to cause permanent injury to health if there were no medical intervention.
Now, what do you have to say to the first part of that conclusion concerning endangering life or cause to health. Do you still stick with that conclusion?‑‑‑Yes, no, I don't anymore. This is one of the first medical reports I had to write and the specifics of these terms and what they meant, I didn't really full understand at that time and the reason I think I wrote that was because I thought that given the type of injuries sustained, he could have easily had a bleed in his head and that would have endangered his life, as it turned out he didn't and therefore his injuries that he did sustain were not likely to endanger his life.
Perhaps I can just clarify. You said it's the first medical report, by that do you mean the first legal medical report?‑‑‑Yes, the first medical legal report to the court, yes.
How about the second part of that conclusion, 'Likely to cause permanent injury to health if there were no medical intervention'?‑‑‑Yes, that's definitely true.
Why is that?---Well, basically all those injuries around his eye were sufficient to endanger and lose his sight largely because of the pressure and bleeding around his eye from the fractures that was pushing his eye forward and could damage his sight if it wasn't intervened.
So without medical intervention what would be consequence of that?‑‑‑Well, it's likely that he could have lost his sight.
This evidence went to the question whether Mr Brown had suffered 'grievous bodily harm' within the meaning of the definition contained in s 1 of the Criminal Code. That definition is as follows:
The term 'grievous bodily harm' means any bodily injury to such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.
No questions were asked by the appellant's counsel which questioned the doctor's conclusion about the extent of the eye injury sustained by Mr Brown. The questions were limited to the likely cause of the injuries.
Grounds of appeal
The grounds of appeal formulated in the appellant's case are in the following terms:
GROUNDS OF APPEAL
Ground 1
1.Her Honour's discretion miscarried when she refused a defence application to adjourn the trial following a late amendment to the Indictment by the prosecution, such that the Appellant did not receive a fair trial:
Particulars:
a)the Appellant was to stand trial on an Indictment that contained a count of assault occasioning bodily harm;
b)on the morning of the trial the prosecution were permitted to substitute that charge with one of causing grievous bodily harm;
c)a defence application to adjourn the trial so that the defendant could counter the amendment was refused.
Alternatively;
Ground 2
2.Her Honour erred when she relied upon impermissible reasoning to refuse a defence application to adjourn the trial such that the Appellant did not receive a fair trial;
Particulars:
a)the application to adjourn followed a late amendment to the Indictment by the prosecution;
b)s 132 of the Criminal Procedure Act 2004 applied to the circumstances before Her Honour;
b)Contrary to the intent of that section, Her Honour relied upon principles relating primarily to case management in refusing the defence application to adjourn.
The alternative ground of appeal raises s 132 of the Criminal Procedure Act 2004 (WA). Section 132(8) is the relevant subsection. It is in these terms:
(8)If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.
Strictly speaking, the prosecution did not amend the indictment in this case. The original indictment was discontinued and a fresh indictment filed. However, the fresh indictment had the effect of amending the original indictment because it incorporated a different count, being a count of grievous bodily harm in lieu of assault occasioning bodily harm.
Application to adduce evidence
The appellant had made application for leave to rely upon additional material, being the medical report of Dr Ross Jose dated 26 March 2008. The court may admit 'other evidence' pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
It is unnecessary at this point to determine whether or not the report of Dr Jose, dated 26 March 2008, constitutes new or fresh evidence, although probably it would be fresh evidence. It was not evidence which was available and known by the convicted person at the time of his trial: de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [151] ‑ [153] (Pullin JA).
An affidavit of Malcolm John Ayoub, sworn 6 November 2007, indicates that on 24 May 2006, Mr Ayoub was first advised of the intention of the prosecution to upgrade the count of assault occasioning bodily harm to one of grievous bodily harm. A copy of the new indictment was transmitted to Mr Ayoub on 26 May 2006. That was a Friday, and the trial was due to begin on Monday, 29 May 2006. According to the affidavit of Mr Ayoub, the appellant was on remand at Acacia Prison, and it was not possible for Mr Ayoub to take instructions from his client before the trial began.
It appears that it was not until 24 May 2006 that the prosecution sent to Mr Ayoub by facsimile transmission a copy of the report of Dr Senthi, dated 28 January 2005, in which the conclusion is reached that the injuries to Mr Brown were of such a nature as to endanger life or to cause, or be likely to cause, permanent injury to health if there was no medical intervention. No explanation was given as to why the report was not transmitted at an earlier date.
Report of Dr Ross Jose
The report of Dr Jose, dated 26 March 2008, indicates that Dr Jose reviewed the medical records of Mr Brown. He noted that a CT‑scan had revealed fractured nasal bones, a fracture of the left maxillary sinus, and a fracture of the left orbit, all of which were managed conservatively with no surgical intervention required. The report concludes with the following passage:
He remained in hospital for two days under observation and was discharged for review in the Out‑patient Clinic on the 1/11/04. He cancelled one follow‑up appointment and failed to attend two others so presumably he had no ongoing problems. By definition therefore, the charge against his assailant should be assault occasioning bodily harm rather than grievous bodily harm because there is no evidence that his life was endangered or that he had any permanent injury.
The conclusion of Dr Jose does not deal exhaustively with the definition of grievous bodily harm contained within s 1 of the Criminal Code. It focuses only on endangering life, or causing permanent injury to health. It omits reference to the question whether Mr Brown's injuries were of such a nature as to be likely to endanger life, or to cause or be likely to cause permanent injury to health.
Wheeler JA observed this fact when considering the application for leave to appeal. Her Honour adjourned the application to enable counsel for the appellant and the respondent to confer about the adequacy of the report.
The parties did confer, but without success. The Director of Public Prosecutions, by letter dated 18 April 2008, advised the solicitor for the appellant that the report was 'grossly deficient' in terms of its conclusion. The views of the DPP expressed in that letter (which is annexed to an affidavit of Malcolm John Ayoub, sworn 22 April 2008) were in the following terms:
Dr Jose has completely misapplied the relevant definitions of grievous bodily harm and bodily harm such as to render his opinion almost worthless. It is not merely a case, as suggested in your letter of 9 April 2008, of Dr Jose failing to make reference to a lack of medical intervention. The relevant definition of GBH in the Criminal Code has a wider definition than that utilised by Dr Jose.
The test for leave to appeal
For the appellant to be granted leave to appeal, the Court of Appeal must be satisfied that the ground or grounds have a reasonable prospect of success: Criminal Appeals Act 2004 s 27(2). Reasonable grounds of success means a real prospect of success. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the court put it this way:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. [56]
The two grounds of appeal contend that the trial judge erred in refusing the application by the appellant's counsel for an adjournment of the trial.
Adjournment
The grant or refusal of an adjournment is essentially a discretionary matter. In Myers v Myers [1969] WAR 19, Jackson J, at 21, summed up the relevant principles:
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustices to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. These principles are laid down in Maxwell v Keun [1028] 1 KB 645; [1027] All ER Rep 335, and Walker v Walker [1967] 1 All ER 412.
Myers v Myers was decided almost 40 years ago, but the general principle expressed by Jackson J remains true. Modern case management techniques have some bearing on the question whether there will be an injustice to either party, but, in my opinion, they are of limited import (cfMano v Iriks [1999] WASCA 180 [15] (McKechnie J); Staley v Lopes [2005] WASCA 75 [14] (Johnson J).
The present case
At trial, the appellant's counsel cross‑examined Mr Brown on the basis that he had been hit by the appellant, but only twice. One hit was to the ribs, the other was to the elbow. The appellant gave no evidence at trial, but the essence of his defence is to be gleaned from the cross‑examination of Mr Brown. The defence was that whatever eye injuries Mr Brown had suffered, they were not caused by the appellant.
The trial judge appreciated that the appellant's defence was limited in this way, because when she refused the adjournment, she made the observation that whether or not Mr Brown had suffered grievous bodily harm had nothing to do with the question whether the appellant was the cause of his injuries.
Nevertheless, it would have been open to the appellant to have denied the commission of the offence alleged against him and, at the same time, contest the issue whether Mr Brown had suffered grievous bodily harm. Whatever wisdom there may have been in that tactic, it was one which was open to the defence. The decision of the trial judge refusing an adjournment effectively foreclosed that option.
Generally speaking, for the defence to be served with a fresh indictment on the Friday before a Monday trial, and with an indictment in which an upgraded charge was contained, would create a serious injustice to the defence and justify an adjournment: Myers v Myers 21 (Jackson J).
However, in the present case, the solicitors for the appellant have now sought and obtained alternative medical opinion on the question of the extent of Mr Brown's injuries. The report of Dr Jose expresses the view that the appellant should have been charged with assault occasioning bodily harm and not grievous bodily harm 'because there is no evidence that his life was endangered or that he had any permanent injury'.
This opinion does not provide any new evidence which would suggest that the medical evidence at trial was erroneous. Dr Senthi's evidence was that the eye injury sustained by Mr Brown was likely to have caused permanent injury to his health had there been no medical intervention. The definition of grievous bodily harm includes not only bodily injury which endangers life, or causes permanent injury to health, but bodily injury which is likely to endanger life, or to be likely to cause permanent injury to health. The report of Dr Jose is silent on this issue.
Conclusion
The appellant is required to establish that the grounds of appeal have a rational and logical prospect of succeeding. That is, they have a real prospect of success: Samuels v The State of Western Australia [56].
The present grounds of appeal contend only that the trial judge's discretion to refuse an adjournment miscarried and/or was in error because (a) there was a late change to the indictment; and (b) the appellant did not in consequence receive a fair trial.
The whole basis of the appellant's grounds of appeal centres upon the report of Dr Jose. It is that report which the appellant seeks to adduce in evidence at the hearing of the appeal.
However, it seems to me that an adjournment of the trial would not have assisted the appellant. The medical opinion that he could have obtained (and which he did eventually obtain) did not go to an important aspect of the definition of grievous bodily harm contained within the Criminal Code. It was silent on the issue of the likelihood of permanent injury to the health of Mr Brown had he not had surgical intervention.
In these circumstances, I do not consider that the grounds of appeal have any real prospect of success. I would therefore dismiss the application for leave to appeal.
I would dismiss the application for leave to rely upon material contained within the affidavit of Malcolm Ayoub at the hearing of the appeal. The material to which reference is made in the application dated 6 November 2007 relates primarily to the events that occurred on Friday, 26 May 2006 and the consequential change in the indictment. To the extent that the material also relates to the report of Dr Senthi, no point was taken at trial that Dr Senthi's report contained any matter of surprise, and, indeed, the oral evidence of Dr Senthi about the consequences of Mr Brown's injury was not challenged in cross‑examination.
I would dismiss the application to rely upon additional material in the form of the report of Dr Ross Jose, dated 26 March 2008, as that report fails to advance any case for the appellant.
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