JDA -v- WA POLICE [2026] WASC 257

[2026] WASC 257 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : JDA -v- WA POLICE [2026] WASC 257 CORAM : WHITBY J HEARD : 17 JUNE 2026 DELIVERED : 24 JUNE 2026 FILE NO/S : SJA 1003 of 2026 BETWEEN : JDA Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE A WADHAM File Number : PE 4167 of 2025 Catchwords: Single judge appeal - Appeal against conviction - Application to set aside verdict of guilty as unreasonable and unsupported - Circumstantial case - Only inference reasonably open on the evidence - Reasons for rejecting accused’s denials under oath - Denial of procedural fairness - Liberato direction - Miscarriage of justice occurred - Conviction set aside and remitted for retrial - -- 1 of 24 -- [2026] WASC 257 Page 2 Turns on own facts Legislation: Criminal Appeals Act 2004 (WA) Criminal Code (WA) Result: Leave to appeal refused on ground 1 Leave to appeal granted on ground 2 Appeal allowed on ground 2 Conviction set aside and charges remitted to the Magistrates Court for hearing according to law Category: B Representation: Counsel: Appellant : G Yin Respondent : R N Paljetak Solicitors: Appellant : Tehan Legal Respondent : State Solicitor for Western Australia Case(s) referred to in decision(s): BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 Browne v Dunn [1893] 6 R 67 Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 Liberato v R [1985] HCA 66; 1985 159 CLR 507 M v The Queen [1994] HCA 63; (1993) 181 CLR 487 MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 ONQ v The State of Western Australia [2026] WASCA 5 -- 2 of 24 -- [2026] WASC 257 Page 3 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smith v The State of Western Australia [2024] WASCA 52 Sturniolo v The State of Western Australia [2023] WASCA 147 WA Police v CFB [2025] WASC 107 Zhou v The Queen [2021] NSWCCA 278 -- 3 of 24 -- [2026] WASC 257 WHITBY J Page 4 WHITBY J: 1 The appellant, JDA, was tried in the Perth Magistrates Court on 5 November 2025 on one count of stealing as a servant, contrary to s 378(6) of the Criminal Code (WA). It was alleged that the appellant stole a left rear seat locking cover from a Mitsubishi Pajero belonging to Mr Anthony Raines, and that the item came into his possession on account of his employment as a serving police officer conducting a forensic examination of the vehicle on 8 October 2024. 2 The appellant pleaded not guilty to the charge and the matter went to trial in the Magistrates Court on 5 November 2025. On 2 December 2025, his Honour Magistrate Wadham found the appellant guilty and imposed a fine of $1,500 and ordered the appellant to pay costs of $4,814.30. A spent conviction was also granted. 3 The appellant appeals to this court, pursuant to pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act), to set aside that conviction on three grounds: (1) the verdict of guilty should be set aside because, having regard to the evidence, the verdict is unreasonable and cannot be supported by the evidence; (2) there was a miscarriage of justice because the learned magistrate used the appellant's hesitation before answer to a question in his visually recorded interview as the sole reason for rejecting his denials under oath; and (3) there was a miscarriage of justice because the learned magistrate failed to give adequate reasons for his decision. 4 For the reasons that follow, I find that: (1) there are no reasonable prospects of success of ground 1 and I refuse leave to appeal on ground 1; (2) the appellant was denied procedural fairness by the learned magistrate's use of the appellant's hesitation before answer to a question in his visually recorded interview as the sole reason for rejecting the appellant's denials under oath; (3) I grant leave to appeal and allow the appeal on ground 2; (4) there is no need to consider ground 3; and -- 4 of 24 -- [2026] WASC 257 WHITBY J Page 5 (5) the conviction be set aside and a retrial be ordered. Legislative regime 5 This is an appeal under the pt 2 of the CA Act. 6 The CA Act, by s 7(1), allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction. A decision to convict an accused of a charge after trial and sentence imposed as a result of conviction are decisions which may be appealed.1 7 Section 8(1) of the CA Act sets out the grounds upon which an appeal under s 7 is made. Those grounds include where there has been an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.2 8 The appellant must obtain leave to appeal.3 If leave to appeal is not granted, the appeal is taken to have been dismissed.4 The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.5 9 Section 30(3) of the CA Act provides that this court must allow an appeal against conviction if, in its opinion: (1) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. This is a question of fact;6 (2) the conviction should be set aside because of a wrong decision on a question of law by the judge; or (3) there was a miscarriage of justice. The trial before the learned magistrate 10 The trial took place before the learned magistrate on 5 November 2025. 1 CA Act s 6(c) and s 6(f). 2 CA Act s 8(1)(a) and s 8(1)(b). 3 CA Act s 9(1). 4 CA Act s 9(3). 5 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA). 6 M v The Queen [1994] HCA 63; (1993) 181 CLR 487, 492 - 493 (Mason CJ, Deane, Dawson and Toohey JJ). -- 5 of 24 -- [2026] WASC 257 WHITBY J Page 6 11 The prosecution called Senior Constable Megan Kelly and Detective Sergeant Dean MacKay to give evidence at the trial. The defence called the appellant to give evidence. 12 At the time of the offence, the appellant was a Senior Constable with the Western Australian Police (WA Police) and was employed as a forensic officer. 13 On 8 October 2024, the appellant and his allocated partner on the forensic team, Senior Constable Kelly, were called to a towing yard in Welshpool to examine a Mitsubishi Pajero, owned by Mr Raines (Examined Pajero), that had been used as a getaway vehicle in a home invasion and evade police incident where five suspects had exited the vehicle.7 The appellant's role in the examination of the Examined Pajero was as forensic photographer. 14 Senior Constable Kelly gave evidence that, when the appellant was taking photographs of the Examined Pajero, the appellant made a comment to her that he could do with a rear tail light for his car as he had had a bingle. Senior Constable Kelly said that she knew the appellant had a similar aged Pajero as there was a small car park at the back of their police station and she could see cars coming and going.8 15 Senior Constable Kelly gave evidence that after she and the appellant had finished the examination of the vehicle and secured the exhibits and while they were packing away their equipment, she observed the appellant return to the Examined Pajero and open and close the rear passenger door of the vehicle, then return to the police vehicle and open the rear driver's-side door.9 Senior Constable Kelly's evidence was that she thought this was unusual as he (the appellant) had none of his equipment in that part of the police car and had no reason to be there.10 16 When Senior Constable Kelly was putting the exhibits seized from the vehicle into the backseat of the police vehicle on the passenger side, she said that she saw 'a small plastic car part on the floor near the first aid kit.'11 When Senior Constable Kelly returned to the office, she took photographs of the item, because she said she 'suspected that they [sic] 7 Exhibit 3, page 5. 8 ts 21 - 22 (05/11/2025). 9 ts 20 (05/11/2025). 10 ts 21 (05/11/2025). 11 ts 21 - 22 (05/11/2025). -- 6 of 24 -- [2026] WASC 257 WHITBY J Page 7 had come from that car that we had been examining, and that it hadn't been there previously'.12 17 The photographs of the item are consistent with a left rear seat locking cover from a Pajero.13 Senior Constable Kelly gave evidence that about an hour after she took the photographs, the plastic car part was no longer in the police vehicle.14 Senior Constable Kelly reported the incident to Blueline, the internal reporting system of the police that can be used to anonymously report misconduct.15 18 Senior Constable Kelly's forensic report was tendered as exhibit 3. The forensic report confirmed that the Examined Pajero was not locked or sealed forensically during the examination and that it contained a large number of items including a hat, beanie, opened bottle and syringes. The forensic photographs taken by the appellant did not capture the location of the locking cover in the Examined Pajero. 19 Detective Sergeant MacKay, an investigating officer with the internal affairs unit of the WA Police, gave evidence in relation to the examination of both the Examined Pajero at the towing yard on 28 November 2024 and the appellant's Pajero on 1 April 2025. The Examined Pajero was held at the towing yard after the forensic examination. Detective Sergeant MacKay gave evidence that investigating officers inspected the Examined Pajero on 28 November 2024 and found it was missing the left rear locking cover. Detective Senior Constable Kelly confirmed that multiple people, including mechanics, yard staff and other police, would have had access to the Examined Pajero in the period between 8 October 2024 and 28 November 2024.16 20 On 1 April 2025, the appellant was interviewed and investigating officers examined the appellant's Pajero and located a left rear seat locking cover fitted to the appellant's Pajero. It is not alleged that the locking cover retrieved from the appellant's Pajero is the locking cover missing from the Examined Pajero. The appellant was arrested and charged with stealing the locking cover from the Examined Pajero. 21 Exhibit 9.2 at the trial was a video taken on 1 April 2025, identified as the 'car park conversation and vehicle search video' 12 ts 23 (05/11/2025). 13 Exhibits 5.1, 5.2 and 5.3. 14 ts 25 (05/11/2025). 15 ts 25 (05/11/2025). 16 ts 34 - 35 (05/11/2025). -- 7 of 24 -- [2026] WASC 257 WHITBY J Page 8 (Appellant's Pajero Search Video). The appellant was under caution during the search. The appellant participated in an interview with the investigating officers on 1 April 2025 which is captured on the Appellant's Pajero Search Video and during which the appellant denied stealing the locking cover. The learned magistrate's findings in relation to the appellant's credibility based on the Appellant's Pajero Search Video form the basis of ground 2 of the appeal. 22 The locking cover seized from the appellant's Pajero during the search on 1 April 2025 was also tendered as an exhibit at trial (exhibit 10). The prosecution's case was that the item photographed by Senior Constable Kelly was the locking cover taken from the Examined Pajero during the forensic examination. 23 However, it was accepted by Detective Sergeant MacKay during cross-examination that the item photographed by Senior Constable Kelly was not the same locking cover found on the appellant's vehicle during the 1 April 2025 search and tendered as an exhibit at trial - as evidenced by the different markings on the inside of those items.17 The locking cover that was alleged to have been stolen by the appellant was never recovered.18 24 Mr Raines' written statement was tendered by consent.19 On 1 October 2024, Mr Raines lent his Pajero to his friend Benji. Mr Raines' evidence is that, at the time he lent his Pajero to Benji, the rear left seat locking cover was correctly fitted to his car and that he did not give anyone permission to remove it.20 25 The prosecution case was that the only reasonable inference was that the appellant had taken the locking cover from the Examined Pajero, towards the end of the examination, with an intent to steal it and that it was irrelevant that other people had access to the Examined Pajero between 1 October 2024 and 28 November 2024. 26 The appellant gave evidence at trial. The appellant gave evidence that: 17 ts 49 (05/11/2025). 18 ts 49 (05/11/2025). 19 Exhibit 2. 20 Exhibit 2 [10] - [11]. -- 8 of 24 -- [2026] WASC 257 WHITBY J Page 9 (1) he has been in the police force for 30 years and has no criminal record;21 (2) he has not been reprimanded over the course of his career in the police force;22 (3) he did not remember making any comment about the tail light but he accepted he may have because at the time, he did need one;23 (4) during the examination of the Examined Pajero, there were other police officers and staff in the towing yard;24 (5) no photographs were taken of the boot of the Examined Pajero;25 (6) he had no memory of going back to the boot of the Examined Pajero or of putting something in the back seat of the police vehicle;26 (7) he did not remember forgetting anything, but he may have done a final walk around the Examined Pajero while Senior Constable Kelly was in the police vehicle - but he did not have an independent memory of doing this;27 (8) he did not steal the locking cover from the Examined Pajero on 8 October 2024 nor has he ever stolen;28 (9) he owned a Pajero but he did not know what the plastic item was for;29 (10) during the course of the three-hour examination of the Examined Pajero, he was fairly certain he had used the kitchen facilities in the towing yard.30 21 ts 50 (05/11/2025). 22 ts 50 (05/11/2025). 23 ts 57 (05/11/2025). 24 ts 51 (05/11/2025). 25 ts 52 (05/11/2025). 26 ts 54 (05/11/2025). 27 ts 62 (05/11/2025). 28 ts 54 (05/11/2025). 29 ts 54 (05/11/2025). 30 ts 54 - 55 (05/11/2025). -- 9 of 24 -- [2026] WASC 257 WHITBY J Page 10 27 The defence case was that the appellant's denials could not be rejected to the requisite standard, and that even if the appellant's evidence might be true, then he must be acquitted. 28 The defence case was that, even if the appellant's evidence was rejected it must be put to one side, and the prosecution had still not proved the elements of the offence beyond reasonable doubt because: (1) Senior Constable Kelly did not see the appellant handle the item, which given its size was difficult to conceal; (2) multiple people had access to both vehicles; (3) there was no proof that the item photographed was the locking cover from the Examined Pajero; and (4) the item seized from the appellant's Pajero months later was not the locking cover from the Examined Pajero. The decision of the learned magistrate 29 The learned magistrate delivered his decision on 2 December 2025. 30 The learned magistrate gave himself standard directions in relation to the fundamental principles that applied to the trial, including that the accused, even if he chooses to give evidence, does not have to prove anything. 31 The learned magistrate found Senior Constable Kelly to be an honest and reliable witness, who gave her evidence to the best of her recollection. 32 For reasons which will become apparent, the direction his Honour gave himself in accordance with Liberato v R31 was important in the context of this appeal:32 [The appellant] elected to give evidence, and having done so, I can consider his evidence, along with all the other evidence in this trial. The fact that he gave evidence has not changed the burden of proof, and as I said earlier, he does not have to prove anything. The burden of proof remains with the prosecution. If I believe the evidence of [the appellant], obviously, I must acquit him. If I have difficulty in 31 Liberato v R [1985] HCA 66; 1985 159 CLR 507. 32 ts 5 (02/12/2025). -- 10 of 24 -- [2026] WASC 257 WHITBY J Page 11 accepting his evidence but I think that he might be telling the truth, then I must acquit him. If I don't believe the evidence of [the appellant], then I can put that testimony to one side. If I were to reject all of the defence's evidence, I could still not convict [the appellant] on that basis. I would still have to go back to the prosecution evidence and decide whether, upon that evidence, I am satisfied of all the elements beyond reasonable doubt. If, after having full consideration of the evidence, I am unable to say where the truth lies or unable to say that he was telling the truth, then, of course, the verdict must also be not guilty. 33 In respect of the appellant's credibility, the learned magistrate made the following remarks about the appellant's demeanour in the Appellant's Pajero Search Video:33 What [the appellant] says in that interview is part of the evidence, and I must consider it in deciding whether or not the prosecution has proved the charges beyond a reasonable doubt. What [the appellant] said in that video was not made under oath, and it is not tested by cross-examination. I'm not obliged to give the same weight to what an accused has said to the police as I would in sworn evidence. However, I made this observation: that at the two-minute-10 mark of the vehicle search video, [the appellant] is asked by Detective Sergeant MacKay if there are any stolen or unlawfully obtained items in his vehicle, referring to [the appellant's] vehicle. [The appellant] doesn't respond immediately. He stares at his vehicle and appears to ponder the question. At two minutes 24 seconds, which is a full 14 seconds later, he responds, 'No', shifts his weight, continues to ponder and stare at his vehicle, and then at two minutes 34 seconds, a further 10 seconds later, he again says, 'No'. Upon first viewing this footage during the trial, this stood out to me. I've now viewed the video several times, and I still have trouble reconciling [the appellant's] response to this simple question as against his denial that he has ever stolen. That significant hesitation in answering the question, to which one would think there should only be one very easy and quick answer, has caused me to question [the appellant's] credibility. 34 The learned magistrate then went on to find that the key facts forming the prosecution's circumstantial case against the appellant were:34 33 ts 6 (02/12/2025). 34 ts 7 (02/12/2025). -- 11 of 24 -- [2026] WASC 257 WHITBY J Page 12 (1) the appellant is, and was at the time of the alleged offence, a Pajero owner. During the search of the Pajero in the towing yard, the appellant made a comment to Senior Constable Kelly to the effect that he could use a new taillight for his Pajero as it had been in a 'bingle'; (2) Senior Constable Kelly observed the appellant return to the Pajero and open the rear-swinging door before returning to the police vehicle, briefly opening and then closing the rear driver's side door of the police vehicle - she had a direct line of sight to the Examined Pajero. She accepted that she never saw the appellant handle the plastic item; (3) shortly after the appellant had closed the rear driver's side door of the police vehicle, Senior Constable Kelly observed a small plastic car part in the rear of the police vehicle. This was not an exhibit that had been collected. She took three photographs of the item. This item is a rear seat locking cover that is used in Pajeros; (4) Senior Constable Kelly accepted that she and the appellant were at the towing yard for approximately three hours and that the toilet and kitchen facilities were about a minute's walk away and so, if they did use those facilities, the Examined Pajero would have been out of their sight. She accepted that there were other people at the towing yard that day; (5) after returning to the police station, Senior Constable Kelly returned to their police vehicle approximately one hour later to find the small plastic car part gone. She accepted that there were other people wandering around the area the police car was before she discovered the item missing; (6) Mr Raines confirmed the rear locking covers of the Examined Pajero were in place when he loaned the Examined Pajero to his friend on 1 October 2024; and (7) when Detective Sergeant MacKay examined the Examined Pajero in the towing yard on 28 November 2024, the left rear locking cover was missing from the Examined Pajero. 35 The learned magistrate was satisfied of each of those facts and found that in combination they formed a strong circumstantial case -- 12 of 24 -- [2026] WASC 257 WHITBY J Page 13 against the appellant. The learned magistrate made the following finding:35 I have given careful consideration as to whether there are any other reasonable inferences open on the facts that I can draw, namely, whether some other person, other than [the appellant], has at any point removed the rear left locking cover from Mr Raines' vehicle or that someone other than [the appellant] placed a rear left locking cover in the rear of the police vehicle at some point. Neither of those inferences is reasonably open on the evidence, in my view. It is fanciful and not supported in any evidence, the suggestion that some other person removed the locking cover from Mr Raines' vehicle and placed the locking cover in the rear of the police. The only reasonable conclusion I can draw from the overwhelming circumstantial evidence is that [the appellant] removed the left rear locking cover from Mr Raines' vehicle on 8 October 2024. He placed it in the rear police vehicle and relocated it somewhere else before Senior Constable Kelly returned to the police station an hour after they returned to the police station. I am satisfied beyond a reasonable doubt that [the appellant] has committed the offence as charged. 36 The learned magistrate entered a judgment of conviction against the appellant and imposed a fine of $1,500 and made a spent conviction order. The appellant was also ordered to pay costs of $4,814.30. Ground 1 37 The appellant submits the verdict of guilty was unsupported by the evidence for the following reasons: (1) there was no evidence of the actual taking of the locking cover, because Senior Constable Kelly did not observe the appellant taking or handling the item; (2) there was no evidence that the locking cover photographed by Senior Constable Kelly was the locking cover from the Examined Pajero, or even that it was a locking cover for a Pajero at all; (3) there is no direct evidence of the removal of the locking cover from the Examined Pajero between 1 October 2024 and 28 November 2024, leaving open the possibility it could have 35 ts 7 - 8 (02/12/2025). -- 13 of 24 -- [2026] WASC 257 WHITBY J Page 14 been removed by criminals before 8 October 2024 or by someone else before 28 November 2024; and (4) the appellant gave sworn testimony denying the offence, and according to the High Court's reasoning in Liberato if an accused's evidence denying offending might reasonably be true, he must be acquitted. 38 The legal principles applicable to appealing a verdict as unreasonable or unsupported by the evidence were summarised by the Court of Appeal in Sturniolo v The State of Western Australia.36 I adopt those principles without repeating them. They are equally applicable to a verdict of guilty entered after trial before a magistrate.37 The most relevant to this appeal are: (1) the appeal court must undertake its own assessment of the sufficiency and quality of the evidence and determine whether, as a matter of law and upon the whole of the evidence, there was evidence to support the verdict; (2) the appeal court must pay full regard to the consideration that the learned magistrate was entrusted with the primary responsibility of determining guilt or innocence and had the advantage of seeing and hearing the witnesses; and (3) the appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. 39 The process for determining whether a conviction is unreasonable or cannot be supported by the evidence is a two-step process, and requires the appeal court to ask:38 (1) whether, on examination of the record, the court has a reasonable doubt as to the appellant's guilt, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence; and (2) if so, whether, after paying full regard to the advantages enjoyed by the learned magistrate, the learned magistrate should have shared that doubt. 36 Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech and Hall JJA). 37 WA Police v CFB [2025] WASC 107 [55] (McGrath J). 38 ONQ v The State of Western Australia [2026] WASCA 5 (Hall, Archer JJA and David AJA). -- 14 of 24 -- [2026] WASC 257 WHITBY J Page 15 40 Where the evidence was circumstantial, as it was in this case, that evidence must not be considered on a piecemeal basis, but rather it must be evaluated in its entirety.39 41 The following observation was made by the High Court in R v Baden-Clay40 in determining whether, in a circumstantial case, a reasonable inference consistent with innocence was open: For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence'. Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence'. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (references and footnotes omitted) 42 Setting aside a tribunal of fact's verdict of guilty is a serious step.41 The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.42 43 The nature and extent of the appellate court's task, in a particular case, will be informed by:43 (1) the elements of the offence; (2) the accused's defence; (3) the issues in contest at the trial; (4) the manner in which the trial was conducted; (5) the way in which the case was ultimately left to the tribunal of fact; (6) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of 39 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46], [48] (Gummow, Hayne & Crennan JJ). 40 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47]. 41 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [65]. 42 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ); BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ); Sandy v The State of Western Australia [2024] WASCA 109 (Buss P, Mazza and Hall JJA) (Sandy) [75]. 43 Sandy [76]. -- 15 of 24 -- [2026] WASC 257 WHITBY J Page 16 fact on which he or she has relied) or a jury (which does not give reasons); and (7) he particulars of the ground of appeal. 44 The appellant contends that the prosecution did not discharge its burden of proving that there were inferences consistent with innocence open on the evidence. The appellant submits that in the absence of evidence from Senior Constable Kelly that she saw the appellant handle the locking cover, reasonable inferences consistent with his innocence could not be excluded. However, this takes only one piece of circumstantial evidence into consideration. This ignores the fact that, in a circumstantial case, while one piece of evidence in isolation may give rise to a reasonable inference consistent with innocence, the evidence considered as a whole may exclude any other such reasonable inference. That is the case here. 45 In my opinion it was well open to the learned magistrate to conclude beyond reasonable doubt that it was the appellant who stole the locking cover from the Examined Pajero based on the following evidence considered as a whole: (1) Mr Raines' unchallenged evidence that, when he lent the Examined Pajero to his friend on 1 October 2024, the locking covers were in place; (2) Senior Constable Kelly's evidence, which the learned magistrate found to be honest and reliable, that: (a) she observed the appellant return to the Examined Pajero after the examination was completed, open the rear door, close the rear door, return to the police vehicle, open the rear driver's side door and close the rear driver's side door; (b) she thought this was unusual because the appellant's equipment was stored in the boot of the police vehicle, not in the back seat; (c) the appellant's movement between the Examined Pajero and the police car only took a few seconds as the cars were only about five metres apart; -- 16 of 24 -- [2026] WASC 257 WHITBY J Page 17 (d) the appellant gave her no explanation for returning to the Examined Pajero; (e) she saw a small plastic car part in the passenger side back seat area of the police vehicle near the first aid kit when she was putting the exhibits away on the other side of the back seat; (f) she took a photograph of the plastic item when she and the appellant returned to the police station because she suspected that it had come from the car they had been examining and it had not been there previously; (g) the photographs she took were of the same item she had seen earlier in the back seat of the car near the first aid kit; (h) she went back an hour later to the police vehicle at the police station and the plastic item was gone; (3) and, Detective Sergeant MacKay's unchallenged evidence that, when he examined the Examined Pajero on 28 November 2025, the left rear locking cover was missing. 46 The photograph of the plastic item taken by Senior Constable Kelly is inconsistent with being anything other than a locking cover from a Pajero. The plastic item shown in exhibit 5.3 is identical to the locking cover seized from the appellant's Pajero (exhibit 10), save for some markings on the inside. 47 Further, the evidence of Senior Constable Kelly that the small plastic part 'hadn't been there previously' is clearly, in the context in which she gave that evidence, a reference to immediately before the examination of the Examined Pajero. 48 In my view, the evidence supports a finding by the learned magistrate that the only person who had the opportunity to take the locking cover from the Examined Pajero, place it into the police vehicle at the towing yard, and then remove it from the police vehicle at the police station, was the appellant. 49 It was therefore open to the learned magistrate to exclude any other inference consistent with innocence as mere conjecture. In my opinion, it was open to the learned magistrate to be satisfied beyond -- 17 of 24 -- [2026] WASC 257 WHITBY J Page 18 reasonable doubt of the appellant's guilt. There is no significant possibility that an innocent person has been wrongly convicted. 50 I find that the allegation that the verdict of guilty was unreasonable or unsupported by the evidence has not been made out. I therefore refuse leave to appeal on ground 1. Ground 2 51 By ground 2, the appellant submits that the learned magistrate erred in using the appellant's 14-second pause before answering the question of whether there were any stolen or unlawfully obtained items in his vehicle during the Appellant's Pajero Search Video as the sole or primary reason for rejecting the appellant's evidence. 52 There are three particulars relied upon by the appellant in ground 2. I turn to consider each of the particulars. 53 By particular A, the appellant submits that the learned magistrate's adverse finding was 'based on an erroneous factual presence' - that being that the evidence at trial was that he denied stealing any item, while the question he was asked by police was whether there were any items in his car that were stolen or unlawfully obtained. 54 In the learned magistrate's reasons, his Honour states that he 'still [has] trouble reconciling [the appellant's] response to this simple question against his denial that he has ever stolen' (emphasis added).44 55 In my view, the premise of the question asked by the police interview differs substantially from the appellant's denial at trial that he had ever 'stolen'. The appellant was asked whether there were any stolen or unlawfully obtained items in his vehicle. Contrary to the learned magistrate's reasons, this was not a 'simple question' as to whether the appellant had stolen anything. The two limbs of the police question involved different considerations. These considerations would have been apparent to the appellant given he was a serving police officer of 30 years. In my opinion, the learned magistrate's adverse credibility finding was based upon an erroneous factual finding made by the learned magistrate. Particular A of ground 2 is made out. 56 By particular B, the appellant submits that the learned magistrate misused the 'post offence pause' as either consciousness of guilt or circumstantially relevant to guilt. 44 ts 6 (02/12/2025). -- 18 of 24 -- [2026] WASC 257 WHITBY J Page 19 57 The learned magistrate expressly stated that the 'pause' caused him 'to question [the appellant's] credibility'.45 Therefore, I do not accept that the learned magistrate used the post offence conduct of the appellant in pausing before he answered the police question as relevant to the guilt of the appellant. Particular B of ground 2 is not made out. 58 By particular C, the appellant submits that he was denied procedural fairness because his demeanour in the interview did not form part of the prosecution case nor was this put to him in cross- examination at trial.46 At trial under oath, the appellant denied stealing the item. The appellant submits his denial of stealing did not suffer from any flaw or inherent improbability, and there was nothing put to the appellant he could not adequately explain.47 59 The learned magistrate only articulated one reason for rejecting the appellant's evidence that he did not steal - that being the pause before answering the police question whether there were any items in his vehicle that were stolen or had been unlawfully obtained. Given this, there is no other conclusion I can reach other than it must have been the sole reason for doing so. 60 The respondent submits that it was open to the learned magistrate to take into the account the 'pause' given that the appellant's counsel invited his Honour to view the Appellant's Pajero Search Video in support of bolstering the appellant's credibility. However, that submission misstates what in fact it was that counsel for the appellant submitted to the learned magistrate. Counsel for the appellant submitted that the appellant was open and frank during the search of his vehicle and that the appellant was bemused when he was asked about the locking cover.48 61 If the pause itself was going to be relied upon to discredit the appellant, it should have been put to the appellant so that he had the opportunity to explain why he paused before answering.49 The common law rule in Browne v Dunn provides that, as a matter of fairness, witnesses must have the opportunity to explain if the opposing party intends later to discredit them. In MWJ v R50 the High Court confirmed that Browne v Dunn applied to criminal proceedings in Australia. 45 ts 6 (02/12/2025). 46 Appellant's submissions dated 10 February 2026 [53]; Browne v Dunn [1893] 6 R 67 (Browne v Dunn) 47 Appellant's submissions dated 10 February 2026 [47]. 48 ts 76 (05/11/2025) 49 Browne v Dunn. 50 MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436. -- 19 of 24 -- [2026] WASC 257 WHITBY J Page 20 A breach of the rule will generally occur where the cross-examining party seeks to tender contradictory evidence in its own case without having first raised the matter in cross-examination. A corollary of the rule, as recognised in MWJ, is that the fact finder should generally abstain from making adverse findings about a witness if there has not been compliance with the rule.51 In my view, observance of the rule is of paramount importance where an accused is not cross-examined on a matter which causes the fact finder to doubt his credibility. In the appellant's case, the rule in Browne v Dunn was breached in relation to the sole matter on which the learned magistrate found the appellant not to be credible witness. 62 It follows there was a denial of procedural fairness afforded to the appellant occasioned by the failure to give him an opportunity to explain why he paused before answering the police question. 63 In summary, in relation to ground 2, I find that particulars A and C are made out. That is not however determinative of whether ground 2 succeeds. The issue remains whether either of those errors meant that there was a miscarriage of justice. 64 As to what errors or irregularities amount to a miscarriage of justice, in Zhou v The Queen52 Beech-Jones CJ at CL (as his Honour then was) said: If … a failure to explain or expand on the written directions is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial. However, even if it not so characterised, then at the very least it was an 'irregularity' in the conduct of the trial. To constitute a miscarriage of justice…such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury’s verdict or realistically [could] have affected the verdict of guilt' or had the capacity for practical injustice' or was 'capable of affecting the result of the trial'. (citations omitted) 65 In my view, the learned magistrate's failure to afford procedural fairness, that is ground 2 particular C, was clearly prejudicial in the 51 MWJ [39]. 52 Zhou v The Queen [2021] NSWCCA 278 [22] cited with approval in HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2] (Gageler CJ, Gleeson and Jagot JJ) -- 20 of 24 -- [2026] WASC 257 WHITBY J Page 21 sense that there was a real chance that it could have affected the verdict of guilt and was capable of affecting the result of the trial. 66 If the appellant had been given an opportunity to explain why he paused before answering the question as to whether there were any stolen or unlawfully obtained goods in his car, the answer may have affected the learned magistrate's assessment of his credibility. That is because it was the pause before that answer that was the sole reason given by the learned magistrate for finding that the appellant was not a credible witness. 67 It follows that if the explanation may have affected the assessment of the appellant's credibility, then it may have caused the learned magistrate to either accept the appellant's denial of stealing the locking cover from the Examined Pajero, or to believe that the denial might be true, in which case the learned magistrate was bound to acquit the appellant. 68 The consequence is that the learned magistrate's failure to afford procedural fairness to the appellant resulted in a miscarriage of justice. The miscarriage of justice was compounded by the learned magistrate's erroneous reasoning that the appellant's pause was in response to a 'simple question' could not be reconciled with his denial that he had ever stolen anything. 69 The respondent seeks to invoke the proviso in s 30(4) of the CA Act. Therefore, it is necessary to consider whether notwithstanding my conclusion that there was a miscarriage of justice, the appeal should nevertheless be dismissed because no substantial miscarriage of justice has occurred. 70 In a case that does not involve a fundamental defect, the proviso cannot be applied unless the appellate court is persuaded that the evidence, properly admitted at trial, proved, beyond reasonable doubt, the appellant's guilt of the offence.53 As I have outlined in my reasons for refusing leave to appeal on ground 1, the evidence was capable of proving beyond reasonable doubt that the appellant was guilty of the offence. However, given it was a circumstantial case, if the learned magistrate had accepted the appellant was an honest and reliable witness, or even if the learned magistrate thought the appellant's evidence might have been true, the appellant would have been 53 OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31] (Bell, Keane, Nettle & Gordon JJ). -- 21 of 24 -- [2026] WASC 257 WHITBY J Page 22 acquitted. I have not had the benefit of seeing and hearing the appellant give evidence and so I am not able to adequately assess his credibility and to ultimately determine whether there was no reasonable possibility that the appellant's denials are true or might be true. 71 It follows that I am not persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence. As a consequence, I am satisfied that a substantial miscarriage of justice occurred in this case. 72 I grant leave to appeal and allow the appeal on the basis of ground 2 particulars A and C. Ground 3 73 Given I have allowed the appeal on ground 2, it is not necessary to consider ground 3. A retrial? 74 If I have concluded under s 30(3)(a) of the CA Act that the verdict of guilty should be set aside because it is unreasonable or cannot be supported by the evidence, a judgment of acquittal would follow. I have, in this case, however, refused ground 1. 75 It is the case however that the power of an appeal court to grant a new trial is a discretionary one. In Gibson v The State of Western Australia, the Court of Appeal said54: Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'. (citations omitted) 54 Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [206]. -- 22 of 24 -- [2026] WASC 257 WHITBY J Page 23 76 Where an appeal against conviction is allowed on the basis that a denial of procedural fairness occasioned a miscarriage of justice, a retrial will usually be ordered. This is even more so where a ground of appeal in which it is asserted that the conviction was unreasonable or cannot be supported having regard to the evidence has been refused,55 as is the case here. The appellant has not pointed to any circumstances that might render it unjust for him to stand trial again. 77 Therefore, it is appropriate that a retrial is ordered. I order that the appellant's conviction be set aside and the charge be remitted to the Magistrates Court for hearing according to law. 78 Accordingly, I make the following orders: 1. Leave to appeal is refused on ground 1. 2. Leave to appeal is granted on ground 2. 3. The appeal is allowed on ground 2. 4. The conviction recorded against the appellant is set aside. 5. The charge against the appellant be tried again by the Magistrates Court constituted by a different magistrate. 6. The respondent pay the appellant's costs of the appeal, to be taxed if not agreed. 55 Smith v The State of Western Australia [2024] WASCA 52 [250]. -- 23 of 24 -- [2026] WASC 257 WHITBY J Page 24 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 24 JUNE 2026 -- 24 of 24 --