(8) If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.

12 Strictly speaking, the prosecution did not amend the indictment in this case. The original indictment was discontinued and a fresh indictment filed. However, the fresh indictment had the effect of amending the original indictment because it incorporated a different count, being a count of grievous bodily harm in lieu of assault occasioning bodily harm.

13 The appellant had made application for leave to rely upon additional material, being the medical report of Dr Ross Jose dated 26 March 2008. The court may admit 'other evidence' pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

14 It is unnecessary at this point to determine whether or not the report of Dr Jose, dated 26 March 2008, constitutes new or fresh evidence, although probably it would be fresh evidence. It was not evidence which was available and known by the convicted person at the time of his trial: de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [151] - [153] (Pullin JA).

15 An affidavit of Malcolm John Ayoub, sworn 6 November 2007, indicates that on 24 May 2006, Mr Ayoub was first advised of the intention of the prosecution to upgrade the count of assault occasioning bodily harm to one of grievous bodily harm. A copy of the new indictment was transmitted to Mr Ayoub on 26 May 2006. That was a Friday, and the trial was due to begin on Monday, 29 May 2006. According to the affidavit of Mr Ayoub, the appellant was on remand at Acacia Prison, and it was not possible for Mr Ayoub to take instructions from his client before the trial began.

16 It appears that it was not until 24 May 2006 that the prosecution sent to Mr Ayoub by facsimile transmission a copy of the report of Dr Senthi, dated 28 January 2005, in which the conclusion is reached that the injuries to Mr Brown were of such a nature as to endanger life or to cause, or be likely to cause, permanent injury to health if there was no medical intervention. No explanation was given as to why the report was not transmitted at an earlier date.

17 The report of Dr Jose, dated 26 March 2008, indicates that Dr Jose reviewed the medical records of Mr Brown. He noted that a CT-scan had revealed fractured nasal bones, a fracture of the left maxillary sinus, and a fracture of the left orbit, all of which were managed conservatively with no surgical intervention required. The report concludes with the following passage:

He remained in hospital for two days under observation and was discharged for review in the Out-patient Clinic on the 1/11/04. He cancelled one follow-up appointment and failed to attend two others so presumably he had no ongoing problems. By definition therefore, the charge against his assailant should be assault occasioning bodily harm rather than grievous bodily harm because there is no evidence that his life was endangered or that he had any permanent injury.

18 The conclusion of Dr Jose does not deal exhaustively with the definition of grievous bodily harm contained within s 1 of the Criminal Code. It focuses only on endangering life, or causing permanent injury to health. It omits reference to the question whether Mr Brown's injuries were of such a nature as to be likely to endanger life, or to cause or be likely to cause permanent injury to health.

19 Wheeler JA observed this fact when considering the application for leave to appeal. Her Honour adjourned the application to enable counsel for the appellant and the respondent to confer about the adequacy of the report.

20 The parties did confer, but without success. The Director of Public Prosecutions, by letter dated 18 April 2008, advised the solicitor for the appellant that the report was 'grossly deficient' in terms of its conclusion. The views of the DPP expressed in that letter (which is annexed to an affidavit of Malcolm John Ayoub, sworn 22 April 2008) were in the following terms:

Dr Jose has completely misapplied the relevant definitions of grievous bodily harm and bodily harm such as to render his opinion almost worthless. It is not merely a case, as suggested in your letter of 9 April 2008, of Dr Jose failing to make reference to a lack of medical intervention. The relevant definition of GBH in the Criminal Code has a wider definition than that utilised by Dr Jose.

21 For the appellant to be granted leave to appeal, the Court of Appeal must be satisfied that the ground or grounds have a reasonable prospect of success: Criminal Appeals Act 2004 s 27(2). Reasonable grounds of success means a real prospect of success. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the court put it this way:

The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. [56]

22 The two grounds of appeal contend that the trial judge erred in refusing the application by the appellant's counsel for an adjournment of the trial.

23 The grant or refusal of an adjournment is essentially a discretionary matter. In Myers v Myers [1969] WAR 19, Jackson J, at 21, summed up the relevant principles:

To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustices to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. These principles are laid down in Maxwell v Keun [1028] 1 KB 645; [1027] All ER Rep 335, and Walker v Walker [1967] 1 All ER 412.

24 Myers v Myers was decided almost 40 years ago, but the general principle expressed by Jackson J remains true. Modern case management techniques have some bearing on the question whether there will be an injustice to either party, but, in my opinion, they are of limited import (cf Mano v Iriks [1999] WASCA 180 [15] (McKechnie J); Staley v Lopes [2005] WASCA 75 [14] (Johnson J).

25 At trial, the appellant's counsel cross-examined Mr Brown on the basis that he had been hit by the appellant, but only twice. One hit was to the ribs, the other was to the elbow. The appellant gave no evidence at trial, but the essence of his defence is to be gleaned from the cross-examination of Mr Brown. The defence was that whatever eye injuries Mr Brown had suffered, they were not caused by the appellant.

26 The trial judge appreciated that the appellant's defence was limited in this way, because when she refused the adjournment, she made the observation that whether or not Mr Brown had suffered grievous bodily harm had nothing to do with the question whether the appellant was the cause of his injuries.

27 Nevertheless, it would have been open to the appellant to have denied the commission of the offence alleged against him and, at the same time, contest the issue whether Mr Brown had suffered grievous bodily harm. Whatever wisdom there may have been in that tactic, it was one which was open to the defence. The decision of the trial judge refusing an adjournment effectively foreclosed that option.

28 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).

29 However, in the present case, the solicitors for the appellant have now sought and obtained alternative medical opinion on the question of the extent of Mr Brown's injuries. The report of Dr Jose expresses the view that the appellant should have been charged with assault occasioning bodily harm and not grievous bodily harm 'because there is no evidence that his life was endangered or that he had any permanent injury'.

30 This opinion does not provide any new evidence which would suggest that the medical evidence at trial was erroneous. Dr Senthi's evidence was that the eye injury sustained by Mr Brown was likely to have caused permanent injury to his health had there been no medical intervention. The definition of grievous bodily harm includes not only bodily injury which endangers life, or causes permanent injury to health, but bodily injury which is likely to endanger life, or to be likely to cause permanent injury to health. The report of Dr Jose is silent on this issue.

31 The appellant is required to establish that the grounds of appeal have a rational and logical prospect of succeeding. That is, they have a real prospect of success: Samuels v The State of Western Australia [56].

32 The present grounds of appeal contend only that the trial judge's discretion to refuse an adjournment miscarried and/or was in error because (a) there was a late change to the indictment; and (b) the appellant did not in consequence receive a fair trial.

33 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.

34 However, it seems to me that an adjournment of the trial would not have assisted the appellant. The medical opinion that he could have obtained (and which he did eventually obtain) did not go to an important aspect of the definition of grievous bodily harm contained within the Criminal Code. It was silent on the issue of the likelihood of permanent injury to the health of Mr Brown had he not had surgical intervention.

35 In these circumstances, I do not consider that the grounds of appeal have any real prospect of success. I would therefore dismiss the application for leave to appeal.

36 I would dismiss the application for leave to rely upon material contained within the affidavit of Malcolm Ayoub at the hearing of the appeal. The material to which reference is made in the application dated 6 November 2007 relates primarily to the events that occurred on Friday, 26 May 2006 and the consequential change in the indictment. To the extent that the material also relates to the report of Dr Senthi, no point was taken at trial that Dr Senthi's report contained any matter of surprise, and, indeed, the oral evidence of Dr Senthi about the consequences of Mr Brown's injury was not challenged in cross-examination.

37 I would dismiss the application to rely upon additional material in the form of the report of Dr Ross Jose, dated 26 March 2008, as that report fails to advance any case for the appellant.