Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after trial of doing an act, with intent to harm the complainant, as a result of which bodily harm was caused to the complainant - Whether the trial judge made an error of law by admitting hearsay evidence as part of the res gestae - Whether there was a miscarriage of justice as a result of defence counsel allegedly ignoring the appellant's instructions - Whether new evidence established that the appellant was innocent or raised such a doubt that the court was satisfied that the appellant should not have been convicted - Extension of time to appeal refused

Application for leave to adduce additional evidence in the appeal dismissed

Application for an extension of time to appeal dismissed

DPJB v The State of Western Australia [2010] WASCA 12

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

McMahon v The State of Western Australia [2010] WASCA 143

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

R v Birks (1990) 19 NSWLR 677

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

Ratten v The Queen [1972] AC 378

Rinaldi v The State of Western Australia [2007] WASCA 53

Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115

The State of Western Australia v Armstrong [2010] WADC 150

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Wimbridge v The State of Western Australia [2009] WASCA 196

1 BUSS JA: On 14 October 2010, the appellant was convicted, after a trial in the District Court before O'Neal DCJ and a jury, on one count in an indictment.

2 The count alleged that on 13 June 2009, at Armadale, the appellant, with intent to harm the complainant (Christopher Robert Lawrence), did an act as a result of which bodily harm was caused to the complainant, contrary to s 304(2) of the Criminal Code (WA) (the Code).

3 The trial judge imposed a sentence of 20 months' immediate imprisonment. A parole eligibility order was made.

4 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction.

The application for an extension of time to appeal

5 The trial began on 11 October 2010 and ended on 14 October 2010. The trial judge imposed sentence on 9 February 2011. The last date for the appellant to appeal against conviction was 2 March 2011. He did not file his appeal notice until 18 July 2011.

6 The appellant filed an affidavit sworn 14 July 2011 in support of his application for an extension of time. The affidavit reads, relevantly:

1. I am in severe financial hardship.
2. I am in poor health.
3. I am a prisoner.
4. I wish to apply for an extension of time to appeal on these exceptional grounds.

7 The information before the trial judge, when he sentenced the appellant, included a letter dated 18 January 2011 from Dr Edmund Brice, a cardiologist, who described a cardiac condition suffered by the appellant.

8 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

9 It is convenient to consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.

The facts and circumstances of the offending

10 The trial judge, in his sentencing remarks, summarised the facts and circumstances of the offending. My account of these facts and circumstances is taken from his Honour's summary.

11 On 13 June 2009, the complainant, his elderly mother and his 10-year-old son were at the Armadale Plaza Shopping Centre. At about midday they completed their shopping and went to the parking lot underneath the shopping centre where they had parked their motor vehicle.

12 The parking lot is very large. There is a two-lane road that passes through the centre of the parking lot and connects to an adjacent street. There are escalators from the shopping centre to the parking lot. In the parking lot, near the base of the escalators, there is a wide pedestrian crosswalk over the road. The complainant, his mother and his son commenced walking across the crosswalk, together with an elderly couple who were just behind them.

13 While the complainant, his mother and his son were on the crosswalk, the appellant drove his Ford Fairlane motor vehicle along the road and through the crosswalk at speed. The trial judge found that the appellant's vehicle was travelling at about 50 km an hour.

14 The complainant extended his arms to stop the people who were attempting to traverse the crosswalk. As the appellant drove through the crosswalk, the complainant shouted at him. The complainant said, 'Slow down, you bloody moron'. The complainant, his mother and his son, together with the elderly couple, then completed traversing the crosswalk, and commenced locating their vehicles.

15 The complainant arrived at his vehicle. As he was loading his shopping into the back of his vehicle, the complainant heard the elderly man call to him from an adjacent row of cars, 'Look out, mate, he's coming back for you'.

16 The appellant drove towards the point where the complainant was loading his shopping. He applied his brakes very hard, and stopped suddenly. The front of the appellant's vehicle was about 2 m from the rear of the complainant's vehicle, and was perpendicular to it.

17 The appellant said to the complainant, 'No need to be fucking rude in front of my family'. The complainant told the appellant that he had nearly run him down, and that he would call the police. The appellant's partner joined in the conversation. She made this contribution:

Oh, bravo, bravo, call the cops, you fucking arsehole.

18 The complainant responded with, 'I don't know why I'm talking to you, bitch'. During these exchanges, the appellant and his wife were very aggravated, and were cursing and swearing.

19 The trial judge found, in his sentencing remarks, that the complainant was not at any time physically aggressive towards the appellant or his family. By contrast, the appellant, who was physically larger than the complainant (indeed, on his Honour's observation, 'almost half again his body weight' (ts 768)), asked him if he wanted to 'have a go'. When the complainant demonstrated no interest in fighting the appellant, the appellant labelled him a coward.

20 The complainant then said that he was going to take a note of the registration number of the appellant's vehicle. The complainant walked to the front of the appellant's vehicle. The appellant then accelerated suddenly. His engine roared and his tyres screeched.

21 The complainant endeavoured to avoid being hit by the appellant's vehicle. He was unsuccessful. The complainant extended his hands to endeavour to protect himself. As he did so, his hands struck a badge or ornament on the bonnet of the appellant's vehicle. As a result, he injured his right hand. Upon the appellant's vehicle colliding with the complainant, the complainant was carried forward 'a few feet'. He then rolled over the bonnet and landed on his hands and feet, in a crouching position, on the right-hand side of the appellant's vehicle. The trial judge found, in his sentencing remarks, that the motion of the appellant's vehicle was 'a sudden sharp acceleration followed by a sharp braking' (ts 768), after he had struck the complainant. The appellant then went forward again, and drove around the corner.

If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -

(a) bodily harm is caused to any person; or

(b) the life, health or safety of any person is or is likely to be endangered,

the person is guilty of a crime and is liable to imprisonment for 20 years.

23 At the material time, s 304(3) of the Code provided:

For the purposes of subsection (2) an intent to harm is an intent to -

(a) unlawfully cause bodily harm to any person;

(b) unlawfully endanger the life, health or safety of, any person;

(c) induce any person to deliver property to another person;

(d) gain a benefit, pecuniary or otherwise, for any person;

(e) cause a detriment, pecuniary or otherwise, to any person;

(f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or

(g) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.

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

25 The count in the indictment on which the appellant was convicted alleged, relevantly, that the appellant, with intent to harm the complainant, 'did an act as a result of which bodily harm was caused to' the complainant.

26 This count comprised five elements. First, identity. That is, whether it was the appellant who committed the alleged offence. Secondly, whether the appellant did 'an act'. The State's case at trial was that the 'act' done by the appellant was to drive his motor vehicle at the complainant and hit him with the vehicle. Thirdly, whether the complainant suffered 'bodily harm'. The State's case was that the complainant did suffer 'bodily harm', being a puncture wound to the palm of his right hand. Fourthly, that the bodily harm resulted from the appellant's act of driving his vehicle at the complainant and hitting him with it. Fifthly, that when the appellant drove his vehicle at the complainant, he did so with an intent to harm the complainant. The State's case was that the appellant had this intent in that at the material time he intended, at the least, to 'unlawfully endanger the ... safety of' the complainant, within s 304(3)(b) of the Code.

27 Identity was not in issue at the trial. The appellant gave sworn evidence in his own defence. There was no doubt that he was the driver of the motor vehicle who was involved in the incident with the complainant at the Armadale Shopping Centre.

28 The complainant said in evidence that during the incident he suffered a puncture injury to the palm of his right hand. He gave this evidence-in-chief as to how the injury occurred:

So what did you do with your hands?---I put my hand down to try and fend the vehicle off, and the vehicle struck me. My right hand struck dead centre on the bonnet, sort of you know, from the front, dead centre. And it actually struck the bonnet badge, snapping the bonnet badge off. It was a raised badge, about - - -

Do you remember what colour it was?---The car was white, the badge was a silver Ford emblem.

All right. So where did your left hand land?---My left hand landed about a body width across, on the front of the vehicle.

On what?---On the very front of the bonnet.

All right. And you'd said you'd snapped this thing off. How do you know that?---Because I saw it go across the bonnet to the passenger side, and it's stupid, it made a very distinctive noise when it ran across the bonnet.

...

... What happened after - sorry, you knocked off the bonnet badge with your right hand?---Yes.

What happened to your right hand after that?---The stalk of the bonnet badge, it's actually a raised badge - where there's a stalk and then the badge comes up in a square shape, and the stalk of the badge, what remained, punctured into my right palm.

All right. Now, what then happened with your body?---Well, what happened was that I crumpled up onto the bonnet. So the car hadn't braked in any way at that point and my knees were collected by the bumper. So I actually rode the front of the vehicle for a few feet and then the brakes were applied and I was knocked off to the side of the vehicle.

Yes. And where did you land?---I still can't believe it to this day, I landed on my feet. But I landed down on my - on my haunches, with my head very close to the side of the car.

Okay. Which side was that?---It was onto the driver's side.

Okay. Now, how tall are you?---I'm six foot one.

So when you got hit, were you in front of the car?---I was directly in front of the vehicle, yes (ts 306 - 307).

29 There was no issue at trial as to whether the injury which the complainant alleged he had suffered constituted 'bodily harm', as defined in s 1(1) of the Code. Plainly, it did.

30 Also, unlawfulness was not in issue. If the appellant drove his vehicle at the complainant with intent to endanger the complainant's safety, it was not suggested that this action was lawful.

31 The real issues at trial were these. First, did the appellant do the act alleged by the State? Secondly, was the alleged injury to the complainant's hand caused by the appellant driving his vehicle at the complainant and the complainant's right hand making contact with the badge or ornament on the bonnet of the appellant's vehicle? Thirdly, did the appellant drive his vehicle at the complainant with intent to endanger the complainant's safety?

32 The State's witnesses comprised the complainant, his mother, his son, Detective First Class Constable Gary Payet-Smith, Dr Lip Teh (a plastic surgeon who treated the complainant) and Detective First Class Constable James McLaren. By consent, a letter from Dr Sarah Hodson (a medical practitioner who compiled a report from the medical notes written about the complainant's treatment at the Armadale Health Service) and a report from Dr Nathan Stewart (a medical practitioner who treated the complainant at the Royal Perth Hospital) were read into evidence (ts 439 - 440).

[The complainant] presented to the emergency department of Armadale Health Service on 13 June 2009 at 1453 hours after an alleged assault. The patient's presented complaints were numbness of ring and little fingers, right hand. The relevant findings on examination were a puncture wound just proximal to web space of fourth and fifth fingers, right hand, palmer aspect (ts 439).

34 As I have mentioned, the incident between the appellant and the complainant occurred at about midday on 13 June 2009. I note that Dr Hodson's letter records that the complainant attended at the emergency department of the Armadale Health Service at 2.53 pm on that date.

35 The complainant admitted in evidence that he had made a claim for compensation in relation to the injury. The claim had not been resolved as at the date of the appellant's trial. Defence counsel argued that the complainant had either lied about or exaggerated the extent of the difficulties he had experienced with his hand. Defence counsel said the jury should have at least a reasonable doubt as to the complainant's credibility.

36 The appellant's witnesses comprised the appellant, his partner, his son (who was with the appellant when the incident occurred) and Dr Hann Nguyen (a surgeon who examined the complainant and provided a medical report as to his disability in connection with the complainant's claim for compensation).

37 The appellant's case at trial was that the act alleged by the State did not happen. Defence counsel submitted that the jury should have at least a reasonable doubt as to whether the appellant did the alleged act and whether the complainant's alleged injury was caused by contact between his hand and the badge or ornament on the appellant's vehicle. The defence case was that there was a verbal altercation in the car park, but that it was almost entirely the complainant, and to some extent his mother, who used provocative language. At all times the complainant was the aggressor. The appellant did not drive his motor vehicle at the complainant or, indeed, in his direction. After the verbal altercation, the appellant drove away. When the appellant commenced driving away, the complainant was at the side of the appellant's vehicle. He was not in front of it. On the appellant's case, there was no contact between the bonnet of the appellant's vehicle and the complainant (in particular, his hand).

38 Plainly, the jury, by its verdict, rejected the evidence of the appellant, his partner and his son in material respects, and was satisfied beyond reasonable doubt as to the truth and reliability of the evidence of the complainant, his mother and his son in material respects.

Admissibility issue determined before trial

39 Before the commencement of the trial, an application relating to the admissibility of evidence was argued before Schoombee DCJ and determined by her. Her Honour published written reasons for decision. See The State of Western Australia v Armstrong [2010] WADC 150.

40 Schoombee DCJ summarised the issues for determination:

The issue for determination is whether the evidence by Master Bryce Lawrence [the complainant's son] that he heard a male person at the zebra crossing say 'I can't believe he just did that' and also heard, what appears to be, the same male person say near their car, 'look out mate, he is coming back for you', is admissible as being part of the res gestae. The same issue is relevant to the evidence by [the complainant] and his mother that the male person said words to that effect when they were about to get into their car.

It is also in issue whether [the complainant's son's] evidence that his father said that he was about to get the registration number of the vehicle is part of the res gestae [7] - [8].

41 Her Honour decided that the evidence in question was admissible as part of the res gestae. Her Honour's process of reasoning towards this conclusion was as follows:

In this case the event in which the male bystander was involved started when [the complainant] and his family were about to step onto [the] zebra crossing and ended when [the complainant] was struck by [the appellant's] car. It appears that only a few minutes passed between [the complainant] and his family crossing the zebra crossing and arriving at their car. Thereafter the events described happened in rapid succession. The male bystander was involved in or at least closely observed the whole event from beginning to end, at least up to the point where the statement was made by him to the effect 'look out mate, he is coming back for you'. This statement and the earlier observation at the zebra crossing that the bystander could not believe what the driver of the vehicle had just done, were statements made while the bystander was involved in those events and not as a later narrative of a prior event.

If I am wrong in finding that [the appellant's] conduct was all part of one event, then there were three events consisting of the first incident at the zebra crossing, the second when [the appellant] drove up at speed and came to a screeching stop behind and to the side of [the complainant's] car, and the third when [the appellant] drove his car at [the complainant] while he was looking at the registration number. If the incident is to be viewed as three separate events, then the earlier statement was contemporaneous with the first event and the later statement with the second event. In each case the statement was made as an instinctive reaction to a startling event where there was no real opportunity for reasoned reflection by the bystander.

Each statement by the bystander was also spontaneous in the sense that it was made when his mind was still dominated by the event. Even the later statement which was to the effect of 'look out mate, he is coming back for you' is a spontaneous remark even though, to some extent, it relates back to the incident at the zebra crossing because the bystander refers to 'he is coming back for you'. This statement is also spontaneous, because the bystander's mind was still occupied by what he had just observed at the zebra crossing. In order to be contemporaneous, the statement does not have to be made at exactly the same time when the event occurred; approximate contemporaneity is sufficient: Ratten v The Queen (391).

There is no reason why the bystander would have concocted the statements in order to promote his own interests or disadvantage [the appellant]. It appears that the bystander was not known to [the complainant] and his family, nor to [the appellant], and there is accordingly no indication that the bystander might have had a motive or malicious reason to make a statement to the disadvantage of [the appellant].

Counsel for the defence was concerned that he would not be able to cross-examine the bystander as to what his observations were and why he made these statements. However, it is the contemporaneity and spontaneity of the statements which ensure that they can be safely admitted.

The relevance of the statements by the bystander in this case are that they show that a third party was of the opinion that [the appellant] did something bad or outrageous ('I can't believe he just did that'), and that [the appellant] had returned to get at [the complainant] ('Watch out mate, he is coming back for you').

Once a res gestae statement is admitted it may be received in order to establish the truth of its contents and it may also be a statement of opinion. Heydon, op cit, [37150] states the following:

It seems that in certain cases evidence which would infringe both the rule against hearsay and the opinion rule may be received as part of the res gestae although it would be excluded if it consisted of statements made at a time which was at all remote from the events to which they relate. The typical example is provided by the reception of a bystander's statements alleging negligence on the part of one of the driver's involved in a motor accident.

In Wragge v Downard [1938] VicLawRp 71; [1938] ALR 511 a passenger was allowed to say that just prior to a collision he heard the driver of his vehicle say of the defendant driver of the oncoming vehicle: 'you must be mad'. In that case the trial judge gave the jury a direction that this statement only reflected the opinion of the driver of the vehicle and that it was not uncommon for one driver to blame the other even if the first driver had himself done a careless thing.

The evidence by [the complainant's son] that his father, prior to moving to the front of [the appellant's] car, said that he wanted to check the registration number is in my view also admissible, because the statement forms part of the res gestae. The statement by [the complainant] was an instinctive reaction to the altercation between the two men and there was no real opportunity for [the complainant] to have reflected on what he should say or to have concocted a reason for stepping in front of [the appellant's] car. The statement was spontaneous and contemporaneous with the event which was [the appellant] pulling up with screeching tyres and the ensuing altercation.

...

In light of the relevant authorities, I am of the view that the evidence of the statements made by the bystander and the evidence of [the complainant] saying that he was going to get the registration number of [the appellant's] car should be admitted as statements that form part of the res gestae [17] - [26].

42 The appellant relies on three proposed grounds of appeal.

43 Ground 1 alleges that Schoombee DCJ made an error of law 'by allowing hearsay evidence [to be admitted] at the trial'.

44 Ground 2 alleges that there was a miscarriage of justice in that the appellant's legal representative ignored his instructions 'and thereby allowed the prosecution to bolster their case prior to trial'.

45 Ground 3 alleges that 'new evidence that was not available' to the appellant at the time of the trial 'has emerged that will shed different light onto prosecution witness[es]'.

46 In general, a statement made spontaneously by an observer or participant during or immediately after an event which culminates in the charging of a criminal offence is admissible in evidence at the trial as part of the res gestae.

47 In Ratten v The Queen [1972] AC 378, Lord Wilberforce said that 'if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received' (389 - 390).

[H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused (391).

49 This approach was approved by the High Court in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 295 (Mason CJ), 304 (Wilson, Dawson & Toohey JJ) and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 582 - 583 (Brennan J).

50 In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, Gaudron and Kirby JJ made these observations:

The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence. That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it. Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.

The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred [55] - [56].

51 At the trial, evidence was adduced from the complainant, his mother and his son to the effect of the contemplated evidence referred to in the application before Schoombee DCJ. In particular:

Is there anything that happened then?---Yeah. The elderly gentleman called out to me at the top of his voice, and he shouted, 'Hey, mate, he's coming back for you.' (ts 299).

Did [the complainant] say anything?---Yes, he did.

What did he say?---He - the car sped past us then - [the complainant] - and came to a stop at the end of that particular section, and [the complainant] shouted out, 'You bloody moron', he said, 'Slow down, slow down.'

All right. Was there anyone near you in particular that you noticed?---Yes, there was. Though everyone was frightened and screaming and saying, 'What a stupid thing to do. How stupid coming at that speed', you know (ts 365).

(c) The complainant's mother also gave this evidence:

What did you do at your car when you got there?--- ... [the complainant] opened the car, put the shopping in the back and we went to get in and the old gentleman that was with the lady - - -

Yes?---Shouted out, 'Watch out mate, watch out. He's coming after you'. (ts 367)

Did you see what happened after it went past you?---Yes. My dad screamed out or said out, 'Slow down you bloody moron.'

Okay. And did you say anything to the old people when you went back?---Yes, I turned around and said sorry for bumping into them.

Did the - any one - did either of the old people say anything to you?---They said to all of us, 'I can't believe he just did that.'

Do you remember whether it was the man or the woman that said this?---It was the man (ts 405).

And what did you do when you got back to your car, or what did you start to do?---We started to put our shopping in the boot.

Did you hear anything?---Yes. I heard the old man shout, 'Mate, he's coming back for ya.'

What happened when you heard that?---My dad told me to get into the car.

Did you do that?---Yes (ts 407).

(f) Further, the complainant's son gave this evidence:

I want to go back then. Do you remember what- what did you hear being said, before the white car came?---The old man, he shouted out, 'Mate, he's coming back for you'. (ts 435)

52 The 'old man' referred to in this evidence was not called as a witness. The statements attributed to him were that he said, 'I can't believe he just did that' (in reference to the appellant allegedly driving through the crosswalk at speed), and, 'he's coming after you' or 'he's coming back for you' (in reference to the appellant allegedly driving towards the complainant in the car park).

53 In my opinion, Schoombee DCJ was correct, generally for the reasons she gave, in deciding that the evidence in question was admissible.

54 In any event, I am satisfied that no miscarriage of justice arose as a result of this evidence being adduced at the trial. As I have mentioned, each of the complainant, his mother and his son gave evidence. They were available for cross-examination and were cross-examined. Also, the statements attributed to the 'old man' were of limited probative value in the context of the whole of the other evidence adduced by the State. There was no doubt that the appellant had driven his vehicle towards the place where the complainant was loading shopping into his vehicle in the car park and that the appellant had driven through the crosswalk. The relevant issues in contest were as to the manner in which he had driven on each occasion. The detailed evidence of the complainant, his mother and his son on the one hand, and the appellant, his partner and his son on the other, bore directly on these issues. The limited probative value of the statements attributed to the 'old man' derived principally from his apparent status as an independent observer of the events.

56 The appellant's written submissions in support of ground 2, read:

Point one

My legal representive [sic] ignored my instructions and misrepresented me in respect [of] how I wanted to defend myself and how I wanted evidence to be used.

He did not call up key witnesses as instructed. He was not competant [sic] at court and he gave evidence to the prosacution [sic] when instruted [sic] not to.

Point two

My legal representive [sic] allowed the prosacutor [sic] to view a video CD of the complanant [sic] going about his dayly [sic] routine. This footage was compiled by an insurance investergator [sic] and clearly shows the complainant Mr Lawrance [sic] is grossly exagerating [sic] the extent of his injurys [sic]. This evidence clearly shows that Mr Lawrance's [sic] statments [sic] might not be reliable or honest.

Point three

Mr Keeley [that is, defence counsel] failed to call up an engineer named Martin Simms as a witness. Mr Simms carryed [sic] out an investigation on my vehicle on behalf of the Insurance Commision [sic]. Mr Simms['] evidence was paramount to this trial as it would have attested that the said vehicle is not capable of smoking up the tyres or comming [sic] to a skidding halt.

The authority of Knownes clealy [sic] sets out that the court may interfear [sic] in order to protect an accussed [sic] from his own council [sic] and from the result of bad management or misconduct of his case at a trial.

I refer to Ratten again

Mr Keeley did not think that Mr Simms' evidance [sic] was relevent [sic] so he refused to call him up. Mr Simms evidance [sic] was vital to my defence and the ommission [sic] of not calling him up can amount to a miscarrage [sic] of justice, as can his refusal of doing so upon direct instruction by myself.

Point four

Mr Keeley performed poorly through out the trial.

His incumbent responceabiltys [sic] in regard to Brown [sic] v Dunn can be seen on pages 485 - 488 of the transcripes [sic] and again on pages 511- 513.

You can clearly see that Mr Keeley blaintly [sic] disregards his responsabilatys [sic] to the piont [sic] where evidance [sic] in chief has to be inserted at reexamation [sic]. This can be seen on pages 524 - 528 in transcripes [sic].

The prosacution [sic] has to even remind him of his responcability [sic]. [At] page 600 of transcripes [sic]. The jury ask a question in relation to the change of lawyer's [sic] and Mr Keeley ansers [sic] with a complete lie.

At page 652 of the transcripts non-compliance of [sic] Brown [sic] v Dunn can be seen again.

Point 5

The act of allowing the prosaction [sic] access to the video survalance [sic] footage resulted in the Lawrance [sic] family amending there [sic] statments [sic] in line with the footage. This bolsterd [sic] the prosaction's [sic] case and the Lawrance [sic] were able to account for there [sic] inconsistencis [sic] and give evidence that they might not been able to exsplain [sic] other wise.

This act by Mr Keeley was in complete disregard to my wishes. My prior lawyer Mr J Scudds told me this importance of keeping this evidance [sic] away from the complainant.

I clearly told Mr Keeley not to show this footage to the prosecution. Surly [sic] this amounts to misconduct again.

57 An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that the conduct of defence counsel caused a miscarriage of justice. It is a heavy burden which is not easily discharged. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).

58 This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] - [27].

See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] - [55] (Martin CJ, Le Miere AJA agreeing).

59 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:

Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

See also TKWJ [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).

60 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] - [17].

See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

61 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).

62 In the present case, the assertions in the appellant's written submissions about his instructions to defence counsel are not supported by any affidavit evidence. I am not persuaded, on the basis of these unsubstantiated assertions, that there is any reasonably arguable merit in this point.

63 At the trial, defence counsel cross-examined the complainant about his claim for compensation and tendered three DVDs. The DVDs were recorded covertly by insurance investigators who were endeavouring to obtain surveillance footage of the complainant performing activities that were inconsistent with the extent of his alleged symptoms and disability in his right hand. The first DVD was produced in October 2009, the second in October and November 2009, and the third in December 2009 and January 2010. The duration of each DVD was about 10 minutes. The DVDs were played to the jury (ts 346 - 347). Defence counsel then cross-examined the complainant in relation to the images depicted in the DVDs (ts 347 - 349). The complainant gave explanations as to various of the activities he was performing in the DVDs (ts 348 - 349). He was re-examined about the surveillance footage (ts 350 - 353).

64 It appears that defence counsel informed the prosecutor of the existence of the DVDs, and permitted him to view them, before the commencement of the trial. However, the complainant gave evidence in re-examination that although he was told before the trial (evidently by the prosecutor) that DVD images of him would be played at the trial, he had not seen the DVDs before they were played at the trial, and he was not told what the images would depict. The relevant passage from his re-examination reads:

All right. Mr Lawrence, given the end of the footage, I'll ask you questions about that, then I'll come back to the actual incident which is what the trial concerns. Now, have you ever seen that footage before?---No, I haven't. I remember the times that the footage was taken, with the exception of the - the walk.

Were you aware that footage of that nature existed?---On the basis I was aware that there'd been surveillance for some six months on my house, yes. I was - you know, there was a fair guess that there would be.

Were you recently told that footage may be played of that nature?---Yes, I was told last week.

Was - were you told what the footage would show?---No (ts 350).

65 I am satisfied that defence counsel's action in informing the prosecutor of the existence of the DVDs and permitting him to view them before the commencement of the trial did not occasion a miscarriage of justice. There is no reason to doubt the cogency of the evidence adduced by the prosecutor from the complainant that he had not seen the DVDs before they were played at the trial and he was not told what the images would depict.

66 I am not persuaded that there is any reasonably arguable merit in the appellant's point about the provision of the DVDs to the prosecutor before the trial.

67 The materials provided by the appellant to this court include a copy of a letter dated 12 March 2010 from the solicitors acting for the insurance company, in relation to the complainant's claim for compensation, to the appellant.

We have now received a report from Mr Martin Simms in which he has made various observations and concluded that some of the events described by Mr Lawrence are, in his view, improbable. This includes Mr Lawrence's claims about smoking tyres and locked wheels and that if any contact did occur between Mr Lawrence and your vehicle, the severity of the contact has been exaggerated by Mr Lawrence.

Mr Simms also expressed the view that while the badge fitted to the front of your vehicle's bonnet would be capable of causing a blunt penetration type injury to an open palm, he did not expect that the badge would snap off as alleged by Mr Lawrence. He also concluded that Mr Lawrence's claim that the badge snapped off and the remaining stem cut his hand is unlikely to be correct.

At this stage, we have no instructions to provide you a copy of Mr Simms' report to Mr Jeremy Scudds of Porter Scudds however we are prepared to ask the Insurance Commission for instructions to do so provided we receive a letter from Mr Scudds confirming that Mr Simms['] report to us will not be tendered into evidence during the trial of the criminal proceedings against you. The reason for this is that we wish to claim privilege in relation to the report for the purposes of defending Mr Lawrence's claim against you in the District Court proceedings and should the report be relied upon in the criminal proceedings, we are then obliged to provide a copy of it to Mr Lawrence's solicitors. We suggest that Mr Scudds either obtain his own report from Mr Simms or arrange for Mr Simms to give evidence in person on your behalf in the criminal proceedings, if he considers this to be appropriate.

69 The appellant asserts in his written submissions that defence counsel advised him in effect that Mr Simms, an engineer, should not be called as a witness because any evidence he might be able to give would be irrelevant. There is no affidavit evidence on this point. The facts and circumstances on which defence counsel based his decision are unknown.

70 The appellant's written submissions also assert that Mr Simms would have been able to give evidence that the appellant's vehicle was not capable of 'smoking up the tyres or coming [sic] to a skidding halt'.

All right. You said it was coming back at you at speed. Any idea how - what the speed was?---I would have said 50 kilometres plus.

What happened, or what did the car do?---What I did was I closed the rear passenger door and had a look and the car screamed to a stop. It - you know, brakes and I can clearly remember the smell of, you know, burnt rubber.

All right. And where did it stop?---It stopped just short of the - the back of my vehicle (ts 300).

Did you see anything?---Yes, I saw the - him coming down at a fast rate.

What was?---I'm sorry, I couldn't tell you the thing, but his - his - the tyres squealed when he stopped.

You're talking about 'he', who are you talking about?---I'm talking about Mr Armstrong.

All right. And what was he in?---He was in a white car.

Okay. So the car was coming towards you?---The car was coming towards us.

...

All right. And you've said he's come to a stop. How did he come to a stop?---Very noisily (ts 367 - 368).

So what did you see?---I saw the white Ford approach at high speed once again.

Yes. And what did it do?---It slammed - it slammed on the brakes very hard and was roughly about - say about 10 foot away - no, about five foot away from our car (ts 407).

74 I am not persuaded, on the basis of the statements made in the letter dated 12 March 2010 from the solicitors acting for the insurance company and the assertions in the appellant's written submissions, that it is reasonably arguable that defence counsel's decision not to call Mr Simms gave rise to a miscarriage of justice at the trial.

75 It appears from the letter that Mr Simms was of the view that it was 'improbable' that the appellant's motor vehicle had 'smoking tyres' and 'locked wheels' in the car park. The evidentiary foundation for this view is not explained either in the letter or in any of the other materials before this court. For example, it is unknown whether Mr Simms formed this view as a result of a personal inspection of the appellant's vehicle and, if so, when it was undertaken and whether the condition of his vehicle was materially different at the time of inspection compared to its condition at the time of the incident with the complainant.

76 Also, the reference in the letter to 'smoking tyres' and 'locked wheels' does not correspond with the evidence that was given at the trial. The complainant said that the appellant's vehicle 'screamed to a stop', his mother said that the tyres 'squealed' when the appellant stopped and that the appellant stopped '[v]ery noisily', and the complainant's son said that the appellant 'slammed on the brakes very hard'. This evidence does not necessarily equate with 'locked wheels'. The complainant said he clearly remembered the smell of 'burnt rubber', but neither his mother nor his son gave evidence to that effect. The smell of 'burnt rubber' does not necessarily equate with 'smoking tyres'.

77 In any event, the evidentiary differences between the appellant, his partner and his son on the one hand, and the complainant, his mother and his son on the other, in relation to the critical issues of fact, were stark. The jury had the advantage of seeing and hearing them give evidence and forming a view as to their credibility. As I have mentioned, the jury, by its verdict, rejected the evidence of the appellant, his partner and his son in material respects, and was satisfied beyond reasonable doubt as to the truth and reliability of the evidence of the complainant, his mother and his son in material respects. I am satisfied that, to the extent it is revealed by the materials before this court, any view that Mr Simms may have been able to offer would not have affected the outcome of the trial.

78 I have perused the transcript of the trial. I am satisfied that defence counsel's conduct did not cause a miscarriage of justice. His forensic performance was adequate. There is no significant possibility that any deficiencies in his performance (including any failure to comply with the rule in Browne v Dunn (1893) 6 R 67) occasioned an unfair trial or affected the outcome. I am not persuaded that there is any reasonably arguable merit in this point.

80 The materials provided by the appellant to this court include:

(a) a copy of a report dated 20 October 2010 from Dr David Rosen, a consultant neurologist, to the solicitors acting for the insurance company in relation to the complainant's claim for compensation; and

(b) a copy of a letter dated 27 January 2010 from the complainant to the insurance company.

81 On 22 September 2011, the appellant made application for leave to adduce the report and the letter as additional evidence in the appeal.

Thank you for your correspondence dated 21 September 2010 (x 2). My apologies for the delay in responding however I was on leave for a period of time. I have now given this matter my earliest attention. I note this request is in reference to my report dated 14 September 2010.

The following file material was made available to me: Your referral dated 21 September 2010; Surveillance Reports dated 16 October 2010, 19 November 2009 and 11 January 2010 from Australia Wide Investigations - surveillance DVDs (1) labelled October 2009 - 10 minutes, (2) labelled October/November 2009, Lawrence 465006-A9 - 6 minutes, (3) labelled December 2009/January 2010 Lawrence 465006-A9 - 17 minutes; Report prepared by Mr Han H Nguyen RediMed Total Injury Management, 4 March 2010 (I presume in your correspondence, item 3 of the enclosures which refers to report of 'Dr Lip Teh dated 4 March' commenting on the surveillance was in error and that you are referring to Mr Han Nguyen's report which I viewed.

After viewing the DVDs, to assist interpretation of this report, I extracted key still images from the DVD and attached them under the heading Appendix A to this supplementary report. Each still image is time and date stamped with captions describing key features of the videos.

For the purpose of this supplementary report I reviewed all the above listed additional material made available to me and reviewed my report dated 14 September 2010.

...

1. Do you consider that there are any, and if so, what inconsistencies between the claimant's presentation in the surveillance and his presentations at your rooms on 13 September 2010?

There are several inconsistencies between Mr Lawrence's presentation and the surveillance and his presentation to me on 13 September 2010. Mr Lawrence told me that the pain is exacerbated by activities such as writing and using a mouse and sometimes is exacerbated by activities such as walking. At no time during the video sequences, whilst walking, did I observe Mr Lawrence to exhibit any pain behaviour. Except for one or two examples which I have highlighted, none of Mr Lawrence's activities depicted on the surveillance DVDs appeared to cause pain or lead to significant avoidance or disability. Activities depicted in the video and shown in the extracts stills in Appendix A do not appear to be those of an individual in such pain as he is unable to use a mouse or write properly ...

1. Is the level of activity evident on the surveillance film, consistent with the level of activity that the claimant reported he was capable of performing?

No. The level of activity evident on the surveillance film is well above the level of activity Mr Lawrence reported he was capable of performing.

1. Does the surveillance film cause you to alter (and, if so, in what way) your opinion in relation to his diagnosis, prognosis, employment restrictions and permanent disability?

Yes, the surveillance film does alter my opinion in several respects. It is not possible from a surveillance film to reach any conclusion with regard to the diagnosis and therefore Mr Lawrence may well have sustained some injury to his ulnar nerve as a result of the penetrating injury to the palm and may also have neuropathic pain. However, my opinion with regard to prognosis, employment restrictions and permanent disability is significantly altered as a result of the surveillance film.

1. Do you have any comments, and if so, what comments, to make in relation to the genuineness or veracity of the claimant's complaints when he presented to you on 13 September 2010 in light of the contents of the surveillance films?

At the time of my assessment of Mr Lawrence on 13 September 2010, I had no reason to believe that he was exaggerating his symptoms. In fact I stated in answer to question 6.

'I do not think that Mr Lawrence is exaggerating his symptoms'.

During my assessment of Mr Lawrence he did not display any obviously abnormal pain behaviour, the history was quite consistent with the diagnosis of chronic neuropathic pain as a result of injury to a branch of the ulnar nerve in the palm and delivered in a credible manner.

In light of the surveillance video film (and the EMG results) I now think it is more likely that Mr Lawrence is exaggerating his symptoms to convey the impression that pain and disability are more severe than is the case (at least as seen during the period of observation and video). Although patients frequently complain of symptoms which fluctuate in severity (and when informed of this I will take such fluctuations into consideration when making an assessment of capacity) in my opinion these surveillance images are probably representative of and reflect Mr Lawrence's true level of functioning and when given the opportunity to describe his symptoms and level of functioning to me he presumably chose to exaggerate the former and understate the latter which makes me highly suspicious of his motives.

83 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

84 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

85 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

86 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a jury, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).

87 In the present case, as I have mentioned, the trial began on 11 October 2010 and the appellant was convicted on 14 October 2010. Dr Rosen's report is dated 20 October 2010.

88 Although Dr Rosen's report was not prepared until after the trial (apparently as a result of his having been on leave), the DVDs were produced in October 2009, October and November 2009, and December 2009 and January 2010. The DVDs were in the possession of the appellant or defence counsel before the trial. It was open to the appellant or defence counsel to have obtained a report from another medical practitioner, before the trial, as to whether the surveillance footage depicted the complainant performing activities that were inconsistent with the extent of his alleged symptoms and disability in his right hand. The appellant or defence counsel could, by the exercise of reasonable diligence, have obtained from another medical practitioner, before the trial, evidence to the effect of the evidence embodied in Dr Rosen's report. Accordingly, the substance of the evidence in Dr Rosen's report is to be characterised as new as distinct from fresh evidence.

89 The views expressed by Dr Rosen, if accepted, may well reflect adversely on the creditworthiness of the complainant in relation to his injured hand unless the evidentiary foundation for those views is eroded or explained away by the complainant. But how the complainant would respond to Dr Rosen's views is unknown.

90 However, the DVDs were shown to the jury at the trial and the complainant was cross-examined and re-examined in relation to the images they depicted. Defence counsel submitted to the jury that the complainant had either lied about or exaggerated the extent of the difficulties he had experienced with his hand and, as a result, the jury should have at least a reasonable doubt as to his credibility. The jury was well-placed to decide whether the surveillance footage made a material

impact on the complainant's trustworthiness as a witness. By its verdict, the jury accepted the complainant as a witness of the truth in relation to the elements of the offence.

91 It is unnecessary to reproduce or summarise the letter dated 27 January 2010 from the complainant to the insurance company. It is sufficient to note that in my opinion the letter does not show that the complainant is 'clealy [sic] lying' to the insurance company, as alleged by the appellant. Also, in my opinion, the appellant or defence counsel could, by the exercise of reasonable diligence, have obtained a copy of the letter before the trial. The letter is therefore new as distinct from fresh evidence.

92 Dr Rosen's report and the letter dated 27 January 2010 do not establish that the appellant is innocent. Also, they do not raise such a doubt that I am satisfied that the appellant should not have been convicted.

94 None of the proposed grounds of appeal has a reasonable prospect of success.

95 Also, the significant delay in filing the appeal notice (more than four months) has not been satisfactorily explained. The appellant has merely asserted, in his affidavit, that he is in severe financial hardship and poor health, and he is a prisoner. These bald statements do not, either individually or collectively, explain the significant delay or justify an exercise of this court's discretion to extend time.

96 The application for an extension of time to appeal should be dismissed.

97 Also, I would dismiss the application for leave to adduce additional evidence in that neither Dr Rosen's report nor the letter dated 27 January 2010 materially advances the appellant's case.