Lewis v The State of Western Australia [No 2]

[2008] WASCA 155

LEWIS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 155

Reported Decision:	(2008) 37 WAR 483
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 155
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:103/2007	Heard:	3 JULY 2008
Coram:	McLURE JA PULLIN JA BUSS JA	Delivered:	25/07/08
No of pages:	21	Judgment Part:	1 of 1
Result:	Application to review allowed Application dated 27 March 2008 to rely upon additional evidence granted Application dated 23 June 2008 to rely upon additional evidence dismissed Leave to appeal granted Appeal allowed Conviction on count 2 quashed Re-trial on count 2 ordered
Category:	A
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Parties:	NATHAN FRANCIS LEWIS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Procedural fairness Indictment amended one business day before trial to allege assault occasioning grievous bodily harm instead of assault occasioning bodily harm Amended charge more serious Case management in criminal proceedings Trial judge refused to grant the accused an adjournment Refusal to adjourn a denial of procedural fairness and caused a miscarriage of justice
Legislation:	Criminal Appeals Act 2004 (WA), s 30(3), s 30(4) Criminal Code (WA), s 297, s 317(1)
Case References:	Buller v The Queen [2002] WASCA 90 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Gassy v The Queen [2008] HCA 18; (2008) 245 ALR 613 Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 House v The King (1936) 55 CLR 499 Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 Lawless v Turner [2007] WASCA 127 R v Alexandroaia (1995) 81 A Crim R 286 R v Shalala [2007] VSCA 199; (2007) 17 VR 133 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEWIS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 155 CORAM : McLURE JA

PULLIN JA
BUSS JA

HEARD : 3 JULY 2008 DELIVERED : 25 JULY 2008 FILE NO/S : CACR 103 of 2007 BETWEEN : NATHAN FRANCIS LEWIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : YEATS DCJ

File No : IND 295 of 2005

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MILLER JA

Citation : LEWIS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 94

File No : CACR 103 of 2007

Catchwords:

Criminal law - Procedural fairness - Indictment amended one business day before trial to allege assault occasioning grievous bodily harm instead of assault occasioning bodily harm - Amended charge more serious - Case management in criminal proceedings - Trial judge refused to grant the accused an adjournment - Refusal to adjourn a denial of procedural fairness and caused a miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)

Criminal Code (WA), s 297, s 317(1)

Result:

Application to review allowed

Application dated 27 March 2008 to rely upon additional evidence granted
Application dated 23 June 2008 to rely upon additional evidence dismissed
Leave to appeal granted
Appeal allowed
Conviction on count 2 quashed
Re-trial on count 2 ordered

Category: A

(Page 3)

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr R E Cock QC & Mr B B Sertorio

Solicitors:

Appellant : Malcolm J Ayoub
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Buller v The Queen [2002] WASCA 90
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Gassy v The Queen [2008] HCA 18; (2008) 245 ALR 613
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19
House v The King (1936) 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Lawless v Turner [2007] WASCA 127
R v Alexandroaia (1995) 81 A Crim R 286
R v Shalala [2007] VSCA 199; (2007) 17 VR 133
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365


(Page 4)

1 McLURE JA: I agree with Buss JA.

2 PULLIN JA: I agree with Buss JA.

3 BUSS JA: The appellant was charged on an original indictment dated 2 June 2005 which contained seven counts. He pleaded not guilty. His trial before Yeats DCJ and a jury was listed to commence on Monday, 29 May 2006.

4 Count 6 on the original indictment alleged that on 19 October 2004, at Leda, the appellant unlawfully assaulted the complainant and thereby did him bodily harm, in contravention of s 317(1) of the Criminal Code (WA).

5 At the material time, s 317(1) of the Criminal Code provided, relevantly:

Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -

(a) if the offence is committed in circumstances of aggravation, to imprisonment for 7 years; or

(b) in any other case, to imprisonment for 5 years.

By s 1(1) of the Criminal Code, the term 'bodily harm' is defined to mean 'any bodily injury which interferes with health or comfort'.

6 Count 6 did not allege circumstances of aggravation. The maximum penalty was therefore imprisonment for 5 years.

The new indictment

7 On Wednesday, 24 May 2006, the Office of the Director of Public Prosecutions sent a letter by facsimile transmission to the appellant's solicitor. The letter stated, relevantly, that a report which the respondent had obtained from Dr Anand Senthi, a medical practitioner, had revealed that the injuries allegedly inflicted by the appellant on the complainant constituted grievous bodily harm rather than merely assault occasioning bodily harm. The letter also stated that the Director intended to file a new indictment, in substitution for the original indictment, pleading count 6 as one of grievous bodily harm instead of assault occasioning bodily harm.

(Page 5)

8 A new indictment, dated 24 May 2006, was filed. However, the new indictment was not served on the appellant until Friday, 26 May 2006.

9 On Monday, 29 May 2006, before the appellant was arraigned, the appellant's counsel informed Judge Yeats that he would be applying for an adjournment of the trial as a result of the prosecutor's intention to present the new indictment.

10 The prosecutor then tendered the new indictment and a notice of discontinuance in respect of the original indictment. The prosecutor informed Judge Yeats:

FOX, MR: Perhaps if I can indicate with respect to the seven charges, that fresh indictment, there is only count 6 that has been altered. It was originally one count assault occasioning bodily harm. The medical report was only provided to the DPP early last week. I instantly disclosed it to my learned friend and upon reviewing it, became clear that with respect to the complainant on that particular count the injuries were much more serious. There is an allegation of grievous bodily harm in regards to the nature of the injury to his eye, as on that basis a fresh indictment was provided (ts 12 - 13).

11 The new indictment contained only three counts. Counts 1 and 3 on the new indictment were identical to counts 5 and 7 on the original indictment. Count 1 alleged aggravated burglary and count 3 alleged the stealing of a motor vehicle which the appellant wilfully drove in a manner that constituted an offence under s 60 of the Road Traffic Act 1974, namely, reckless driving. Count 2 on the new indictment was identical to count 6 on the original indictment with the important exception that count 2 now alleged grievous bodily harm (rather than assault occasioning bodily harm), in contravention of s 297 of the Criminal Code.

12 At the material time, s 297 of the Criminal Code provided, relevantly:

Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.

By s 1(1) of the Criminal Code, the term 'grievous bodily harm' is defined to mean 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.

(Page 6)

The appellant's application for an adjournment

13 On the appellant's application for an adjournment, there was an exchange between Judge Yeats and the appellant's counsel, as follows:

AYOUB, MR: … 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 [the complainant]. 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.

AYOUB, MR: Well, your Honour, I need to have the opportunity to speak to my client about what's contained in the new medical report.

YEATS DCJ: Certainly, and if we are going to only run three charges in this trial and we are to adjourn the first four to another date, then we could commence in a half hour or something. Have the jury come at 11 o'clock. I am loathe now that difficult witnesses have answered their subpoenas not to proceed with these three counts. That's the reaction I have to this trial, Mr Ayoub.

AYOUB, MR: Yes, your Honour, I have concerns that the prosecution are the ones who initially brought the application and put both trials together and that was done in the interests of justice and that was something we conceded to. Now that there's been a change in the indictment and, your Honour, my concern is the significance in the penalty that my client now faces and ultimately it may change the situation where my client may wish to call medical evidence himself against the injuries or the report prepared by the doctor in relation to

YEATS DCJ: Let me just look at the doctors report.

AYOUB, MR: See, your Honour, I feel as though

YEATS DCJ: What is the name of the doctor?

FOX, MR: It's a Doctor Senthi, your Honour.

YEATS DCJ: Do I have a copy of that report?

(Page 7)

FOX, MR: I suspect not, your Honour, if I may hand up the original.

YEATS DCJ: You may sit for a moment (ts 16 - 17).

14 Judge Yeats then read Dr Senthi's report dated 28 January 2005, which was addressed to the Rockingham Police Station. In the report, Dr Senthi said that on 19 October 2004 the complainant was admitted to Rockingham/Kwinana District Hospital emergency department. Dr Senthi examined him. In the report, Dr Senthi described the nature of the complainant's injuries, the treatment he received and the medical investigations which were carried out:

On arrival at ED he was conscious and orientated with a GCS (Glasgow Coma Scale) of 15. He was teary and upset; complaining of pain to his face, head, forearms, hands and mild left lateral rib pain. He claimed to have sustained some of these injuries by blocking blows with his forearms and hands. The patient was in severe pain on presentation.

The following injuries were noted and documented. The patient sustained multiple facial and head lacerations; significant swelling around his left eye causing closure of the eyelids; swelling of the bulbar and palpebral conjunctiva of his left eye; diplopia to the right and proptosis; a blowout fracture of his left orbit with a fracture of the inferior floor of the orbit; significant tenderness of forearms, wrists and hands including a fracture of the left 4th proximal phalanx; laceration to left elbow of moderate depth and left lower rib bruising.

The patient was initially treated with analgesia and pressure was applied to his bleeding wounds. Once comfortable, repair of his multiple lacerations was performed by two Doctors simultaneously. X-Rays of his chest and upper limbs were obtained as well as a CT scan of his head and orbits which revealed some of the above injuries.

[The complainant] was transferred to Royal Perth Hospital (RPH) for review by the Maxillo/Facial Surgeons.

The nature of the injuries were consistent with having been inflicted as alleged. The injuries were of such a nature as to endanger life or to cause, or be likely to cause permanent injury to health if there were no medical intervention.

15 After reading Dr Senthi's report, Judge Yeats continued her exchange with the appellant's counsel and the prosecutor, as follows:

YEATS DCJ: Now, Mr Ayoub, I cannot see from reading this how any further medical opinion could be of any assistance to you.

AYOUB, MR: Yes, your Honour.

(Page 8)

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 (ts 18).

16 The appellant was then arraigned on the counts in the new indictment.

17 The trial ran for three days, from 29 May 2006 to 31 May 2006. The appellant was convicted of all counts.

The sentencing disposition

18 On count 1, being the charge of aggravated burglary, Judge Yeats imposed a sentence of 6 years' immediate imprisonment. On count 2, being the charge of unlawfully doing grievous bodily harm to the complainant, her Honour imposed a sentence of 3 years 4 months' immediate imprisonment. On count 3, being the charge of stealing a motor vehicle and driving it recklessly, her Honour imposed a sentence of 3 years 4 months' immediate imprisonment.

19 Judge Yeats ordered the sentences to be served concurrently with each other, but cumulatively upon other sentences then being served by the appellant.

20 Judge Yeats then reduced the net effective head sentence of 6 years' immediate imprisonment by 8 months for the purpose of giving credit for 4 months which the appellant had spent in custody in relation to the offences in question. In the result, the net effective head sentence

(Page 9)

ultimately imposed was 5 years 4 months. A parole eligibility order was made.

The evidence of Dr Senthi

21 Dr Senthi gave sworn evidence at the trial. He referred in evidence to his report dated 28 January 2005.

22 Dr Senthi's evidence-in-chief was, relevantly, as follows:

(a) The complainant was transferred to Royal Perth Hospital. He needed to be seen by a maxillo/facial surgeon promptly because of the significant injuries around his eye (ts 135).

(b) He no longer adhered to the opinion expressed in the last sentence of his report, namely:


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 be likely to cause permanent injury to health if there were no medical intervention (ts 136).

(c) Dr Senthi elaborated on his change of opinion:

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 fully 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 the consequence of that?---Well, it's likely that he could have lost his sight (ts 136).

(Page 10)

23 The appellant's counsel did not cross-examine Dr Senthi as to the extent of the injuries to the complainant's eye. His questions were confined to the likely cause of the injuries.

The appellant's applications for leave to appeal and to rely upon additional evidence

24 By an appeal notice dated 28 August 2007, the appellant applied for leave to appeal against conviction.

25 The appellant's proposed grounds of appeal, as set out in the appellant's case, are these:

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;

(Page 11)

c) Contrary to the intent of that section, Her Honour relied upon principles relating primarily to case management in refusing the defence application to adjourn.

26 On 27 March 2008, the appellant filed an application for leave to rely upon additional evidence, being a report dated 26 March 2008 of Dr Ross Jose, a medical practitioner.

27 Dr Jose's report reads:

I have been asked to review the medical records of [the complainant] for the Supreme Court of Western Australia Court of Appeal and give an opinion on whether his injuries constituted assault occasioning bodily harm or grievous bodily harm. [The complainant] was a 47 year old man who was found lying on the grass outside his home at 02.30 hours on the 19.10.04 with head and facial lacerations. He was taken by ambulance to Rockingham and Kwinana District Hospital where a CT scan of his head showed a fracture of his left orbit but the images provided by the scan were of poor quality so he was transferred to Royal Perth Hospital for review at the Maxillo Facial Unit. Because he was concussed, he was admitted for neurological observation and he had a CT scan of his face. This scan revealed fractured nasal bones, a fracture of his left maxillary sinus and a fracture of his left orbit. All of these were managed conservatively with no surgical intervention required except for the suturing of lacerations at Rockingham and Kwinana District Hospital.

He remained in hospital for two days under observation and was discharged for review in the Out-patient Clinic on 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.

28 Miller JA heard the appellant's application for leave to appeal and his application for leave to rely upon additional evidence. His Honour said in relation to these applications:

At trial, the appellant's counsel cross-examined [the complainant] 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 [the complainant]. The defence was that whatever eye injuries [the complainant] 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 [the complainant] had suffered grievous bodily harm

(Page 12)

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 [the complainant] 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 [the complainant'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 [the complainant] 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 [25] - [30].

29 Miller JA dealt with the appellant's proposed grounds of appeal on the basis that those grounds contended only that Judge Yeats's discretion to refuse an adjournment was an error or occasioned a miscarriage in that there was a late amendment to the indictment and, as a result, the appellant did not receive a fair trial [32]. His Honour expressed the opinion that:

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 [33].

30 Miller JA held that an adjournment of the trial would not have assisted the appellant. His Honour said:

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

(Page 13)

the issue of the likelihood of permanent injury to the health of [the complainant] had he not had surgical intervention [34].

31 Miller JA dismissed the application to rely upon additional evidence in that Dr Jose's report failed to advance the appellant's case [37] and he dismissed the application for leave to appeal in that none of the proposed grounds of appeal had any real prospect of success [35].

Application to review Miller JA's decision

32 By application dated 7 May 2008, the appellant applied to review Miller JA's decision.

33 An application to review is not a hearing de novo. It is an appeal by way of re-hearing, and it is necessary for the appellant to satisfy this court that his Honour made an error in refusing the appellant's applications. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21]; Lawless v Turner [2007] WASCA 127 [4].

34 By the Criminal Appeals Act 2004 (WA), leave is required to appeal against either conviction or sentence from, relevantly, the District Court to the Court of Appeal (s 27(1)). See Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25]. The statutory test is, relevantly, that the leave of the Court of Appeal is required for each ground of appeal and, after an appeal is commenced, this court must not give leave on a ground unless it is satisfied the ground has 'a reasonable prospect of succeeding'.

35 Plainly, whether or not a ground of appeal has 'a reasonable prospect of succeeding' involves a question of judgment; in particular, the application of the relevant principles of law to the material facts.

36 A remarkable feature of the appellant's application to review is that it merely asserts, as the ground of review, that Miller JA erred when he dismissed the application to rely upon additional evidence and the application for leave to appeal. The respondent did not, however, object to or seek to strike out the defectively formulated ground.

Application to adduce new evidence on the hearing of the application to review

37 By application dated 23 June 2008, the appellant sought leave to adduce new evidence on the hearing of the application to review.

(Page 14)

38 The proposed new evidence comprises a further report dated 13 June 2008 from Dr Jose. That report states, relevantly:

In your letter of the 10th June 2008 you requested clarification of the injuries sustained by [the complainant] who was assaulted by Mr Lewis in October 2004. The medical records from Royal Perth Hospital showed that [the complainant] was admitted for neurological observation because he was concussed and he had a repeat CT Scan of his face whilst an in-patient because the CT Scan at Rockingham Hospital was inconclusive. There was no medical intervention necessary at Royal Perth Hospital and he was discharged after two days. Therefore, by definition 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, or that without any medical intervention his injuries were likely to have caused permanent injury to health because in fact, there was no medical intervention, purely an assessment of his injuries. So therefore I do not agree with Dr Senthi because there is no evidence that there was pressure and bleeding around his eye from the fractures and at any rate, no medical treatment was required.

The merits of the application to review

39 Before this court, the respondent conceded that Judge Yeats erred in refusing to grant the appellant an adjournment. In my opinion, the concession was properly made.

40 The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply to a trial judge's decision to grant or refuse an adjournment of a criminal trial. The correctness of the trial judge's decision can only be challenged by demonstrating error in the decision-making process in the manner explained in House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt and McTiernan JJ). Also see R v Alexandroaia (1995) 81 A Crim R 286, where Hunt CJ at CL, Grove and Dunford JJ said:

Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge (Conroy v Conroy (1917) 17 SR (NSW) 680 at 682). An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion (Conroy at 684; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (1964) 82 WN (Pt 1) (NSW) 125 at 127). There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to

(Page 15)

the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion (House (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 532-534; Rodgers v Rodgers (1964) 114 CLR 608 at 619 - 620). An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts (O'Donoghue (1988) 34 A Crim R 397 at 401). If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made (Maxwell v Keun [1928] 1 KB 645 at 653; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd at 127; Bloch v Bloch (1981) 55 ALJR 701 at 703; Walker v Walker [1967] 1 WLR 327 at 330; [1967] 1 All ER 412 at 413) (290).

41 In the present case, Judge Yeats refused the adjournment for these reasons:

the interests of justice … require this court not to waste its time with trials unless there is a good reason and I don't see a good reason (ts 18).

Her Honour had referred earlier, in the course of debate with counsel, to the respondent having subpoenaed 'difficult witnesses'. No doubt, her Honour was concerned that an adjournment may occasion inconvenience to those witnesses and that it may be difficult to re-list the trial promptly on dates suitable to them.

42 In The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Dawson, Gaudron and McHugh JJ observed, in the context of civil proceedings, that case management is not, of itself, a basis upon which to refuse an adjournment if the refusal would cause injustice to the applicant. Their Honours said:

Sali v SPC Ltd ((1993) 67 ALJR 841) was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim (154).

Those observations in relation to case management apply with at least equal force to an application for the adjournment of a criminal trial. See

(Page 16)

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [136] (Kirby J); Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 [151] (Kirby J); R v Shalala [2007] VSCA 199; (2007) 17 VR 133 [29] (Vincent and Redlich JJA and Habersberger AJA).

43 In Buller v The Queen [2002] WASCA 90, the appellant appealed against her conviction for wilful murder. At a preliminary hearing, a police officer gave evidence that the deceased was killed by a shot from a rifle that was fired at a short distance. At the trial, the Crown sought to lead evidence from a forensic scientist, Dr Cadden, to support an opinion not previously expressed in his post-mortem report concerning the closeness of the rifle to the deceased when it was discharged. When the Crown sought to adduce that evidence, counsel for the appellant applied for, but was refused, an adjournment. The Court of Criminal Appeal allowed the appeal, quashed the conviction and ordered a retrial. The court found that Dr Cadden's evidence regarding the distance from which the shot was fired was of great significance because of the defence of accident raised by the appellant, and the appellant's evidence that when she realised the deceased was dead, she had tried to re-cock the weapon to kill herself, but the weapon had jammed. The court held that the appellant should have been given time to investigate the matter. The issue whether there was an alternative explanation consistent with the appellant's account of what happened was critical to the defence. Malcolm CJ said:

The refusal of the adjournment was a departure from the requirements of a properly conducted trial. While I would have preferred the appellant to have put before this Court such evidence as reasonable diligence may have obtained in relation to the issue, the denial of the opportunity to make reasonable enquiries was a departure from the requirements of a properly conducted trial. It cannot be said in this case that the jury appropriately instructed and having the benefit of all the available evidence would inevitably have convicted the appellant [8].

Also see the comments of Wallwork J (with whom Templeman J agreed) [58], [61]. Further, see Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 [83] - [89] (Hasluck J).

44 In the present case, Miller JA rightly appreciated, with respect, that where the defence is served, on the business day immediately preceding the commencement date of a criminal trial, with a new or amended indictment which alleges a more serious charge, the defence will, ordinarily, suffer prejudice if an adjournment is not granted. Each case will, of course, turn on its own facts and circumstances.

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45 The decision of Judge Yeats to refuse an adjournment effectively precluded the appellant from obtaining expert medical advice to assist in the cross-examination of Dr Senthi; in particular, advice as to whether the injuries allegedly inflicted by the appellant on the complainant constituted grievous bodily harm, as defined in s 1(1) of the Criminal Code. Also, her Honour's decision precluded the appellant from obtaining and considering whether to call expert opinion evidence on that issue as part of his case.

46 Judge Yeats should have granted an adjournment. Her Honour's failure to adjourn the trial involved a significant denial of procedural fairness, and caused a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act.

47 By s 30(3) of the Criminal Appeals Act, the Court of Appeal must allow the appeal if in its opinion there was a miscarriage of justice, unless the respondent satisfies the court that, in the circumstances, the 'proviso' in s 30(4) should be applied. Section 30(4) provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

48 Before this court, the respondent argued that the proposed evidence in Dr Jose's report dated 26 March 2008 was irrelevant because it failed to address the proper issue, namely, whether the complainant's injuries, in the absence of medical treatment, were of such a nature as to be likely to cause permanent injury to his health. The evidence of Dr Senthi at trial therefore remained uncontradicted. It followed that the refusal of the application for an adjournment did not cause a substantial miscarriage of justice.

49 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an

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exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen (1977) 137 CLR 517 at 524-525 per Barwick CJ; Storey (1978) 140 CLR 364 at 367 per Barwick CJ; Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631-633 [121]-[123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].

Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given [41]. They added, however, that one negative proposition may safely be offered:

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].

Also see Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] - [96].

50 In Weiss, the High Court found it unnecessary to consider whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso [46]. See, for example, Wilde v The Queen (1988) 164 CLR 365, 373.

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51 More recently, in Gassy v The Queen [2008] HCA 18; (2008) 245 ALR 613, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:

Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen((1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ; [1988] HCA 6)about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wildeis a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].

52 In my opinion, an examination of Dr Jose's report dated 26 March 2008 reveals three matters of importance. First, the CT-scan of the complainant's head at Rockingham and Kwinana District Hospital showed a fracture of his left orbit, but the images provided by the scan were of poor quality and, as a result, he was transferred to Royal Perth Hospital for review at the Maxillo Facial Unit. Secondly, the complainant's injuries were managed conservatively, without any surgical intervention, and he failed to attend follow-up appointments after his discharge from hospital. Thirdly, the complainant did not, in fact, suffer a permanent injury. These matters were likely to have been of some assistance to trial counsel for the appellant in his cross-examination of Dr Senthi. Counsel may have been able to undermine Dr Senthi's evidence that the complainant's injuries were likely to cause permanent injury to his health if there were no medical intervention, in that:
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(a) Dr Senthi appears to have based his opinion, in part, on the CT-scan undertaken at Rockingham and Kwinana District Hospital, but the images provided by that scan were of poor quality;

(b) the conservative management of the complainant's injuries, the absence of any surgical intervention, and the complainant's failure to attend follow-up appointments after his discharge from hospital were relevant to the jury's assessment of whether the injuries were of such a nature as to be likely to cause permanent injury to health if there were no medical intervention; and

(c) the complainant did not, in fact, suffer any permanent injury, and the absence of any permanent injury bears upon the jury's assessment of whether his injuries were of such a nature to be likely to cause permanent injury to health if there were no medical intervention.

53 In my respectful opinion, Miller JA did not take into account any of the three matters of importance which my examination of Dr Jose's report dated 26 March 2008 reveals. The appellant's ground of review has been made out, and I would allow the application to review his Honour's decision to dismiss the application to rely upon additional evidence and the application for leave to appeal.

54 After reviewing the trial record and taking into account the aspects of Dr Jose's report dated 26 March 2008 which I have mentioned, I am not satisfied that no substantial miscarriage of justice has occurred, within s 30(4) of the Criminal Appeals Act, as a result of the significant denial of procedural fairness occasioned by Judge Yeats' refusal of the adjournment.

55 It is unnecessary, in the circumstances, to consider whether Dr Jose's further report dated 13 June 2008 is admissible or should, in the exercise of the court's discretion, be admitted. I would therefore dismiss the appellant's application dated 23 June 2008 in relation to that further report.

56 Also, it is unnecessary, in the circumstances, to consider whether:

(a) the refusal of the adjournment amounted to such a serious breach of the presuppositions of a criminal trial as to deny the application of the 'proviso'; or

(b) the respondent would have persuaded the court that there was no substantial miscarriage of justice if the appellant had not sought to

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adduce any expert medical evidence in the application for leave to appeal.

The parties did not raise or deal with these points in submissions.

57 I would grant leave to appeal and leave to rely upon Dr Jose's report dated 26 March 2008, allow the appeal, quash the appellant's conviction in respect of count 2 on the new indictment, and order a re-trial on that count. The convictions on counts 1 and 3, and the sentences imposed in respect of them, should not be disturbed.