COURTNEY (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 86

[2026] WASCA 86 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COURTNEY (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 86 CORAM : QUINLAN CJ HALL JA SMITH AUJ HEARD : 7 APRIL 2026 DELIVERED : 19 JUNE 2026 PUBLISHED : 19 JUNE 2026 FILE NO : CACR 15 of 2025 BETWEEN : SUSAN REBECCA COURTNEY (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO : CACR 16 of 2025 BETWEEN : SUSAN REBECCA COURTNEY (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent -- 1 of 79 -- [2026] WASCA 86 Page 2 FILE NO : CACR 17 of 2025 BETWEEN : JOHN STEPHEN COURTNEY (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO : CACR 18 of 2025 BETWEEN : JOHN STEPHEN COURTNEY (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : BLACK DCJ File Number : IND 1106 of 2022 Catchwords: Criminal law – Right of accused to be present at trial – Accused temporarily unfit due to illness – Adjournment application – Trial proceeded in accused's absence – Whether miscarriage of justice Criminal law – Trial judge – Frequent interventions by trial judge – Trial judge intervened in forensic decision as to witnesses to be called – Whether reasonable apprehension of bias – Whether unfair trial and miscarriage of justice -- 2 of 79 -- [2026] WASCA 86 Page 3 Criminal law – Sentencing – Offences against Children and Community Services Act 2004 – First limb of the totality principle Legislation: Children and Community Services Act 2004 (WA), s 101 Criminal Appeals Act 2004 (WA), s 30(4) Criminal Procedure Act 2004 (WA), s 77, s 88, s 140, s 141 Result: CACR 15 of 2025 Appeal allowed Convictions set aside Retrial ordered CACR 16 of 2025 Leave to appeal refused CACR 17 of 2025 Appeal allowed Convictions set aside Retrial ordered CACR 18 of 2025 Leave to appeal refused Category: A Representation: CACR 15 of 2025 Counsel: Appellant : G C R Yin Respondent : R P Arndt Solicitors: Appellant : D G Price & Co Respondent : Director of Public Prosecutions (WA) -- 3 of 79 -- [2026] WASCA 86 Page 4 CACR 16 of 2025 Counsel: Appellant : G C R Yin Respondent : R P Arndt Solicitors: Appellant : D G Price & Co Respondent : Director of Public Prosecutions (WA) CACR 17 of 2025 Counsel: Appellant : T F Percy KC with B J H Kendall Respondent : R P Arndt Solicitors: Appellant : Panetta McGrath Lawyers Respondent : Director of Public Prosecutions (WA) CACR 18 of 2025 Counsel: Appellant : T F Percy KC with B J H Kendall Respondent : R P Arndt Solicitors: Appellant : Panetta McGrath Lawyers Respondent : Director of Public Prosecutions (WA) Cases referred to in decision: AMS v The State of Western Australia [2012] WASCA 37 Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 -- 4 of 79 -- [2026] WASCA 86 Page 5 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 Commissioner of Taxation v Craddock [2006] VSC 408; (2006) 204 FLR 274 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 East Finchley Pty Ltd v Federal Commissioner of Taxation [1989] FCA 720; (1989) 90 ALR 457 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 HCF v The Queen [2023] HCA 35; (2023) 280 CLR 596 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 KHL v The State of Western Australia [2022] WASCA 122 Lars v The Queen (1994) 73 A Crim R 91 Lawrence v The Queen [1933] AC 699 Lewis v The State of Western Australia [No 2] [2008] WASCA 155 MAS v The State of Western Australia [2012] WASCA 36 MDP v The King [2025] HCA 24; (2025) 423 ALR 204 MEN v The State of Western Australia [2020] WASCA 118 Michael v The State of Western Australia [2007] WASCA 100 MRN v The State of Western Australia [2025] WASCA 159 Nwagbo v The Queen [2021] VSCA 93; (2021) 390 FLR 368 PES v The State of Western Australia [2014] WASCA 96 R v Alexandroaia (1995) 81 A Crim R 286 R v Christie [1914] AC 545 R v McFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 Rabey v The Queen [1980] WAR 84 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161 Smith v The State of Western Australia [2024] WASCA 52 The State of Western Australia v TIK [2009] WASCA 122 Thomas v The Queen (No 2) [1960] WAR 129 Young Investment Group Pty Ltd v QBE Insurance (Australia) Ltd [2019] WASC 74 -- 5 of 79 -- [2026] WASCA 86 Page 6 Table of Contents Introduction and overview .......................................................................................................... 7 Case at trial ............................................................................................................................... 10 Indictment ............................................................................................................................. 10 Overview of case at trial ....................................................................................................... 11 State's witnesses.................................................................................................................... 12 Defence witnesses................................................................................................................. 14 Conviction appeals – grounds of appeal ................................................................................... 14 Presence of an accused at trial – legal principles ................................................................. 17 Statutory provisions .......................................................................................................... 17 Interventions by a trial judge and miscarriage of justice – legal principles ......................... 23 Ground 1 of Mrs Courtney's conviction appeal ........................................................................ 27 Ground 1 of Mrs Courtney's conviction appeal – relevant events at trial ............................ 27 Ground 1 of Mrs Courtney's conviction appeal – disposition .............................................. 34 Ground 2 of Mr and Mrs Courtney's conviction appeals ......................................................... 41 Ground 2 – Mr Courtney's evidence ..................................................................................... 41 Ground 2 – Mrs Courtney's evidence ................................................................................... 47 Ground 2 – the decision whether to call Matilda Courtney .................................................. 55 Ground 2 of Mrs Courtney's conviction appeal – consideration .......................................... 62 Ground 2 of Mr Courtney's conviction appeal – consideration ............................................ 69 Ground 2 of Mr and Mrs Courtney's conviction appeals – directions .................................. 71 Ground 2 of Mr and Mrs Courtney's conviction appeals – conclusion ................................ 73 Ground 1 of Mr Courtney's conviction appeal ......................................................................... 74 Ground 3 of Mr and Mrs Courtney's conviction appeals ......................................................... 77 Conclusion ................................................................................................................................ 78 -- 6 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 7 JUDGMENT OF THE COURT: Introduction and overview 1 The right to a fair trial is the 'central prescript of our criminal law'.1 As Sir Isaac Isaacs remarked, more than a century ago, the right to a fair trial is2 so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. 2 Essential to a fair trial is that the judge hearing the matter, whether alone or with a jury, proceeds in accordance with due process, independently, impartially, and fairly. That duty means that, particularly in a case tried before a jury, the judge should be circumspect in his or her interventions in the conduct of the case by the parties and be assiduous in avoiding the appearance that he or she is partial to the State or the accused. Criminal justice must not only be done, but must be seen to be done. 3 The trial judge's duty, in this respect, is not a counsel of perfection. Judges are, after all, human and it is unrealistic to expect 'unfailing wisdom seasoned with serene composure'. Whether the cumulative effect of conduct by a trial judge, by excessive intervention or other irregularities, will constitute a substantial miscarriage of justice will always be a question of fact and degree. It is always necessary to ask whether the trial has been so compromised by the judge's conduct as to no longer justify the characterisation of a 'fair trial'.3 4 Regrettably, this was one of those rare cases in which the conduct of the trial by the trial judge constituted such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice. 5 In October and November 2024, the appellants, Susan Courtney and John Courtney, were tried before a judge and jury on two counts of engaging in conduct in relation to their daughter Matilda (or Tilly), reckless as to whether that conduct may have resulted in her suffering harm as a result of neglect, contrary to s 101(1)(b) of the Children and 1 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56 (Deane J); Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161 [39] - [41] (Gordon J; French CJ, Kiefel, Bell & Gageler JJ agreeing). 2 R v McFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518, 541 (Isaacs J). 3 Nwagbo v The Queen [2021] VSCA 93; (2021) 390 FLR 368 (Nwagbo v The Queen) [36] (Priest, Niall & T Forrest JJA). -- 7 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 8 Community Services Act 2004 (WA).4 On 20 November 2024, Mr and Mrs Courtney were convicted of all charges. Mr Courtney was sentenced to total effective sentences of 6 years and 6 months imprisonment (which included a cumulative sentence of 8 months imprisonment in relation to a charge of uttering a forged record to which he had pleaded guilty). Mrs Courtney was sentenced to 5 years imprisonment. 6 Mr and Mrs Courtney appealed against their convictions. While they appealed on different grounds, common to both appeals was a ground of appeal that there was a 'miscarriage of justice as a result of the conduct of the learned trial judge which resulted in a trial that a fair-minded observer might reasonably apprehend to have been unfair'. That ground, and a related ground relied upon by Mrs Courtney, has been established. The trial was, indeed, unfair. 7 In relation to Mrs Courtney, there were a number of matters that contributed to the unfairness of the trial. In the second week of the trial, Mrs Courtney became very unwell, with vomiting, diarrhoea and high fever and was certified by a doctor as unfit to attend court for two days. Not only did the learned trial judge refuse an adjournment application (which the State did not oppose), her Honour ordered that the trial continue in Mrs Courtney's physical absence. Mrs Courtney was required to remain in another room, where she could see and hear the evidence remotely, but could not be seen by anyone other than the trial judge and could not be heard from within the courtroom. That departure from Mrs Courtney's right to be present in court throughout her trial was not justified by any lawful exception, and, on its own, gave rise to a miscarriage of justice. 8 In addition, in the course of the evidence of both Mr and Mrs Courtney, the learned trial judge repeatedly intervened or interrupted their evidence in a manner that went beyond what could reasonably be regarded as necessary for the proper conduct of the trial. On the contrary, the cumulative effect of the learned trial judge's interventions in the evidence of Mr and Mrs Courtney, which were in stark contrast to any interventions in the evidence of the prosecution witnesses, were such as to cause a fair minded observer to apprehend that her Honour considered Mr and Mrs Courtney to be evasive, uncooperative or unreliable. The cumulative effect of those 4 The names of Mr and Mrs Courtney and Matilda Courtney are pseudonyms. Notwithstanding that she is now an adult, we have for the most part referred to Ms Matilda Courtney in these reasons by her first name, as that was how she was referred to at trial. No disrespect to Ms Courtney is intended by doing so. -- 8 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 9 interventions was such a departure from the due and orderly process of a fair trial as to amount to a miscarriage of justice. 9 Thirdly, again in relation to Mrs Courtney specifically, the learned trial judge intervened in relation to defence counsel's decision whether to call Matilda Courtney (who was an adult at the time) to give evidence at trial. Her Honour raised the prospect of taking a number of steps in relation to which her Honour had no power (such as whether she would allow Matilda to be called and whether she would require Matilda to be the subject of a psychological assessment) and raised the spectre of other adverse consequences for Mr and Mrs Courtney if Matilda was called, including that they would remain in custody during any cross-examination of Matilda and that the decision to call Matilda to give evidence would be taken into account in relation to sentence if Mrs Courtney was convicted. 10 While Matilda ultimately did not give evidence, the learned trial judge's intervention in counsel's forensic decisions in relation to whether to call her as a witness was a further matter contributing to the apprehension that the learned trial judge had taken a view of Mrs Courtney that was inconsistent with the need to remain independent and impartial. This irregularity contributed to the cumulative effects of the other issues we have identified. 11 On 7 April 2026, at the conclusion of the hearing of the appeals, this Court allowed Mr Courtney and Mrs Courtney's appeals against their convictions for the offences under the Children and Community Services Act 2004, set aside those convictions and ordered a retrial. We said that we would deliver reasons for those orders later. 12 In addition to their appeals against conviction, Mr and Mrs Courtney appealed against the total effective sentences imposed by the learned trial judge. As the appeals against conviction were allowed, we would refuse leave to appeal in relation to the appeals against sentence. We have, nevertheless, addressed the merits of the appeal against sentence, in the event that it becomes relevant following the retrial. In that regard, in our view, the total effective sentence imposed on each of Mr and Mrs Courtney did not bear a proper relationship to the overall criminality involved in all of the alleged offending. 13 Our reasons for joining in the orders on 7 April 2026 and our reasons in relation to the sentence appeals are as follows. -- 9 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 10 Case at trial Indictment 14 The indictment in this matter charged Mr and Mrs Courtney as follows: (1) On 3 September 2020 at Floreat, [John Stephen Courtney] uttered a forged record, namely the birth certificate of [Matilda Courtney]. (2) Between on or about 1 April 2019 and 7 April 2021 at Floreat, [John Stephen Courtney], being a person having the care or control of a child, namely [Matilda Courtney], engaged in conduct, namely an omission to ensure that she received adequate nutrition and medical attention, reckless as to whether such conduct may have resulted in her suffering harm as a result of neglect as defined in section 28(1) of the Children and Community Services Act 2004. (3) Between on or about 1 April 2019 and 7 April 2021 at Floreat, [Susan Rebecca Courtney], being a person having the care or control of a child, namely [Matilda Courtney], engaged in conduct, namely an omission to ensure that she received adequate nutrition and medical attention, reckless as to whether such conduct may have resulted in her suffering harm as a result of neglect as defined in section 28(1) of the Children and Community Services Act 2004. (4) Between on or about 1 April 2019 and 7 April 2021 at Floreat, [John Stephen Courtney], being a person having the care or control of a child, namely [Matilda Courtney], engaged in conduct, namely an omission to provide adequate emotional, social and functional development, reckless as to whether such conduct may have resulted in her suffering harm as a result of neglect as defined in section 28(1) of the Children and Community Services Act 2004. (5) Between on or about 1 April 2019 and 7 April 2021 at Floreat, [Susan Rebecca Courtney], being a person having the care or control of a child, namely [Matilda Courtney], engaged in conduct, namely an omission to provide adequate emotional, social and functional development, reckless as to whether such conduct may have resulted in her suffering harm as a result of neglect as defined in section 28(1) of the Children and Community Services Act 2004. 15 On 21 October 2024, on the first day of the trial, Mr Courtney pleaded guilty to count 1, in the presence of the jury panel. -- 10 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 11 Mr Courtney pleaded not guilty to counts 2 and 4 and Mrs Courtney pleaded not guilty to counts 3 and 5. Overview of case at trial 16 For the purposes of this appeal, it is not necessary to set out the State case, or the defence case, in detail. A broad summary will suffice. The following summary is drawn from the summary given by the learned trial judge in her directions to the jury.5 17 It was common ground that on 7 April 2021, Matilda Courtney presented to Perth Children's Hospital (Hospital) in a malnourished state. Matilda was, at that time, just short of her 17th birthday. She was, for her age, grossly underweight, her growth had been stunted and her pubertal development was significantly delayed. Matilda was at risk of severe illness, infection, bone fractures, cardiac arrest, refeeding syndrome, and death. The cause of her malnourishment was inadequate and insufficient food and nutrition. 18 The broad issue for the jury to determine in respect of counts 2 and 3 on the indictment was not whether Matilda was malnourished but, rather, how she came to be in that state. The State's case was that the reason for her state was that Mr and Mrs Courtney, in the years leading up to Matilda's admission to hospital, had failed to ensure that she received adequate nutrition. The State alleged that Mr and Mrs Courtney, together and individually, failed not only to provide her with adequate nutrition, but also to provide her with proper, sufficient and prompt medical care and treatment in relation to her malnourishment. 19 The State did not allege that Mr and Mrs Courtney had intentionally deprived their daughter of nutrition and proper medical care and attention. Rather, the State's case was that they were reckless as to those things. 20 Although Mr and Mrs Courtney conducted separate defences for counts 2 and 3, there were some common themes. They both alleged that Matilda was not necessarily malnourished for the entire period pleaded in the indictment. They contended, in effect, that they saw no reason to be concerned, having regard to what they knew about their daughter's size when she was younger; her genetics; her behaviour, in terms of what she ate and did not eat; and her capacity to perform in 5 Trial ts 3302 - 3305. A similar summary of the case at trial appears in MRN v The State of Western Australia [2025] WASCA 159 [9] - [17] (Mazza JA). -- 11 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 12 high-energy activities, such as ballet. In essence, Mr and Mrs Courtney's case was that they did not think that anything was wrong and that, if anybody told them something was wrong with Matilda, they did not think that the concerns made a lot of sense, or accorded with what they believed to be true. 21 In respect of counts 4 and 5 on the indictment, the State's case was that when Matilda presented to the Hospital on 7 April 2021, she did so with social, emotional, and functional developmental delays. The State's case was that she looked, dressed, and behaved like a child far younger than her almost 17 years and that she was found to have low adaptive function, particularly around self-care skills. Essentially, the State's case was that Matilda demonstrated a lack of understanding and appreciation of how to live in the world as compared to other children of her age. 22 The defence case in respect of counts 4 and 5 was that Matilda was not emotionally, socially, and functionally underdeveloped for her age. They alleged that the State failed to provide or adduce sufficient evidence to show that Matilda was, in fact, underdeveloped in the ways alleged by the State. Further, even if Matilda was underdeveloped, neither Mr Courtney nor Mrs Courtney were aware of this. They denied that they were consciously trying to keep Matilda as 'a little child'. 23 The State's case was that neither Mr Courtney nor Mrs Courtney set out to cause Matilda harm. The State's case was not that they intentionally caused her any kind of harm or intentionally ignored the harm, or intentionally and wilfully acted in the way that they did. The State's case was that they were reckless as to a risk of harm that was obvious and apparent to them. State's witnesses 24 The State called 11 witnesses to give evidence: Ms Tania Shillington, Ms Michelle Doepel, Ms Zivana Manojlovic-Petrovic, Ms Cherie Appleton, Dr Craig Berg, Ms Simone Allen, Dr Alice Johnson, Dr Amy Murdoch, Ms Denise McNab, Detective Sergeant Brock Tucker, and Ms Gemma Warrington. 25 Ms Shillington and Ms Doepel each ran a separate ballet school, at which Matilda had attended classes at different times. There was a great deal of evidence at trial that Matilda was an avid ballet dancer. Ms Shillington was the co-owner of a ballet school named Dance Classique WA (Dance Classique), where Matilda attended classes -- 12 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 13 from 2017 to 2020. Ms Doepel was the principal of Silhouette Dance Studio (Silhouette). Matilda attended classes at Silhouette from February 2020 to March 2021. 26 Both Ms Shillington and Ms Doepel gave evidence of various observations they made of Matilda, and her physical appearance, and of contact that they had with Mr and Mrs Courtney in relation to Matilda's health. In around July 2020, Ms Doepel reported concerns in relation to Matilda's health to the Department of Communities and Child Protection (Department). 27 Ms Manojlovic-Petrovic and Ms Appleton were child protection workers with the Department. They gave evidence in relation to the investigations and other steps they took in relation to Matilda, following concerns reported to the Department by Ms Doepel in relation to Matilda's health and wellbeing. 28 Dr Berg was a general practitioner, who had treated Mr Courtney in the past. On 27 November 2020, Mr Courtney made an appointment with Dr Berg to discuss Matilda. Dr Berg, however, did not examine Matilda and said that he couldn't do anything without seeing her. Ms Allen, who was a nutritionist, was also contacted by Mr Courtney in late 2020 in relation to Matilda. She gave evidence in relation to the correspondence she had with Mr Courtney and with officers of the Department. She did not see Mr Courtney or Matilda. 29 Dr Murdoch is a general practitioner who saw Matilda, with her parents, on 1 April 2021, at the request of the Department. She saw Matilda again on 6 April 2021. Dr Murdoch gave evidence that Matilda was severely underweight, that she initially ordered blood tests and in the interim contacted the Hospital to arrange an appointment with a specialist paediatrician. On 6 April 2021 she referred Matilda to the Hospital, where she attended the next day. 30 Dr Johnson, Ms McNab and Ms Warrington were all employees of the Hospital. Dr Johnson is a paediatric specialist, who worked in Child Protection at the Hospital. She did not personally treat Matilda or have any contact with Mr and Mrs Courtney. As the Head of Child Protection at the Hospital, however, Dr Johnson was able to give evidence as to the findings and treatment of Matilda at the Hospital following her admission on 7 April 2021. 31 Ms McNab, who is a social worker, had significant interactions with Mr and Mrs Courtney and with Matilda during Matilda's -- 13 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 14 admission to the Hospital. Ms Warrington is an occupational therapist who was also involved in Matilda's care at the Hospital. Defence witnesses 32 Mr Courtney elected to give evidence. He did not call any other witnesses. 33 Mrs Courtney also elected to give evidence. In addition she called Ms Dorothy Best to give evidence. Ms Best was one of the nurses at the Hospital who cared for Matilda during her admission, and who gave evidence in relation to a number of observations that she had made of Mr and Mrs Courtney and Matilda. 34 Counsel for Mrs Courtney also called Matilda to give evidence, although as we have noted above, Matilda did not ultimately give evidence. The circumstances in which the decision was made not to call Matilda are relevant to the grounds of appeal and we will address those circumstances later. Conviction appeals – grounds of appeal 35 Mrs Courtney appealed her convictions on three grounds. The grounds were: Ground One The trial Judge erred by refusing the appellant's application for an adjournment and ruling the trial proceed in her absence pursuant to s88(4) Criminal Procedure Act 2004. Ground Two There was a miscarriage of justice because the conduct of the trial Judge resulted in a trial that a fair-minded observer might reasonably apprehend to be unfair. Particulars 1. The trial Judge ordered the trial to proceed in the appellant's physical absence. 2. The trial Judge repeatedly interrupted the appellant's evidence and made prejudicial comments. 3. The trial Judge interfered with the conduct of the defence case in relation to the decision to call or not call [Matilda Courtney] as a defence witness. -- 14 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 15 4. The individual or cumulative effect of the trial Judge's conduct in respect of particulars 1 - 3 resulted in an unfair trial. Ground Three The learned trial Judge made a wrong decision on a question of law by admitting inadmissible and unfairly prejudicial evidence from the witnesses Tania Shillington, Michelle Doepel, Cherie Appleton and Zivana Manojlovic-Petrovic. Particulars 1. Each witness gave evidence about hearsay matters ostensibly for the non-hearsay purpose of demonstrating its effect on the witness' state of mind. The prejudicial effect of this evidence outweighed its limited probative value when their states of mind was only of limited relevance. 2. Ms Shillington and Ms Doepel gave evidence of their lay medical opinions, emotional reaction and their own subjective conclusions ostensibly to explain their state of mind. The prejudicial effect of this evidence outweighed its limited probative value when their states of mind was only of limited relevance. 3. The individual or cumulative effect of the body of wrongly admitted prejudicial evidence could realistically have affected the reasoning of the jury to the verdicts of guilty. 36 Mr Courtney appealed his convictions on three grounds. They were: Ground One The learned trial Judge erred by refusing counsel's application to discharge the jury after [Matilda Courtney] did not give evidence thereby depriving the appellant of a fair trial or occasioning the risk of a substantial miscarriage of justice. Ground Two There was a miscarriage of justice as a result of the conduct of the learned trial Judge which resulted in a trial that a fair-minded observer might reasonably apprehend to have been unfair. Particulars 1. The trial Judge repeatedly interrupted and made prejudicial comments during the course of the evidence of the appellant. -- 15 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 16 2. The trial Judge repeatedly interrupted and made prejudicial comments during the course of the evidence of the co-accused. Ground Three The learned trial judge made a wrong decision on a question of law by admitting inadmissible and unfairly prejudicial evidence from the witnesses Tania Shillington, Michelle Doepel, Cherie Appleton and Zivana Manojlovic-Petrovic. Particulars 1. Each witness gave evidence about hearsay matters ostensibly for the nonhearsay purpose of demonstrating its effect on the witness' state of mind. The prejudicial effect of this evidence outweighed its limited probative value when their states of mind were only of limited relevance. 2. Ms Shillington and Ms Doepel gave evidence of their lay opinion, emotional reaction and their own subjective conclusions ostensibly to explain their state of mind. The prejudicial effect of this evidence outweighed its limited probative value when their states of mind were only of limited relevance. 3. The individual or cumulative effect of the body of wrongly admitted prejudicial evidence could realistically have affected the reasoning of the jury to the verdicts of guilty. 37 As will be apparent, there is significant overlap between the various grounds of appeal. Both ground 2 of Mrs Courtney's appeal and ground 2 of Mr Courtney's appeal were in the same terms, although their particulars differed (particularly in Mrs Courtney's case, which included two additional matters). It will also be apparent that the first particular to ground 2 in Mrs Courtney's appeal closely relates to ground 1 in Mrs Courtney's appeal, which concerns the learned trial judge's refusal of Mrs Courtney's application for an adjournment and her Honour's decision to proceed in Mrs Courtney's physical absence. 38 These grounds (ground 1 in Mrs Courtney's conviction appeal and ground 2 in each conviction appeal) will be the principal focus of these reasons. It is upon those grounds that the conviction appeals were upheld. 39 Ground 1 in Mr Courtney's appeal and the common ground 3 in each appeal, in relation to which the Court refused leave to appeal, can be dealt with in a more summary fashion. -- 16 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 17 40 Before addressing the facts and circumstances supporting ground 1 in Mrs Courtney's conviction appeal and ground 2 in each conviction appeal and our conclusions in relation to those grounds it is appropriate to identify the legal principles relevant to those grounds. 41 We commence with the principles in relation to the presence of an accused at trial. Presence of an accused at trial – legal principles 42 There is an entrenched rule that an accused person has a forfeitable right to be present in court throughout their trial, to be able to hear and see what is taking place.6 This is a rule that has long been part of the common law.7 As Lord Atkin said in Lawrence v The Queen:8 It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. Statutory provisions 43 The rule that the accused person has a forfeitable right to be present in court throughout their trial has long been reflected in, and subject to, statutory provisions in this State. Those provisions were previously found in the Criminal Code and are now found in the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act). 44 The central provision in this regard is s 88 of the Criminal Procedure Act. Section 88 relevantly provides: 88. Accused's presence, when required (1) In this section, unless the contrary intention appears – proceedings includes proceedings under section 98, at trial, and under the Bail Act 1982, the Evidence Act 1906, the Sentencing Act 1995 or the Young Offenders Act 1994. (2) This section applies whether an accused is being tried alone or with others. 6 Smith v The State of Western Australia [2024] WASCA 52 [212] (Quinlan CJ & Vandongen JA; Mazza JA agreeing); Rabey v The Queen [1980] WAR 84 (Rabey v The Queen), 87 (Burt CJ). 7 Thomas v The Queen (No 2) [1960] WAR 129 (Thomas v The Queen (No 2)), 135 (Jackson SPJ). 8 Lawrence v The Queen [1933] AC 699, 708 (Atkin LJ). -- 17 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 18 (3) Proceedings that relate to an accused must take place in his or her presence unless section 140 or the Sentencing Act 1995 provides otherwise. (4) The court may order proceedings that relate to an accused to proceed in the accused's absence if it is satisfied – (a) that the accused's interests will not be prejudiced by his or her absence; and (b) that to do so will not be contrary to the interests of justice. (5) This section does not prevent a court from allowing an accused to be present before the court by means of a video link or audio link or from taking evidence from an accused by either such means. 45 Consistent with the entrenched common law rule, the requirement in s 88(3) that proceedings that relate to an accused 'take place in his or her presence' must, in our view, be construed as requiring that the proceedings take place in his or her physical presence in the courtroom. In particular, and for the reasons that follow, the attendance of an accused person by video link or audio link does not constitute the accused's 'presence' within the meaning of s 88(3). The use of a video link or audio link in relation to an accused's attendance at trial would need to be justified by some other statutory provision or exception. 46 In this context, the Criminal Procedure Act expressly makes provision for, and regulates, the potential for accused persons to appear before courts by way of video link or audio link. A 'video link' is defined in the Criminal Procedure Act to mean, 'facilities, including closed circuit television, that enable, at the same time, a court at one place to see and hear a person at another place and vice versa'.9 47 In relation to sentencing proceedings, for example, s 14 of the Sentencing Act 1995 (WA) provides that, subject to certain exceptions, a court is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under section 14A. Section 14A, in turn, provides that a court sentencing an offender may direct that the offender appear before it by video link, if the 'direction is in the interests of justice'. 9 Criminal Procedure Act, s 3. There is an equivalent definition in s 3 of 'audio link'. -- 18 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 19 48 In relation to proceedings at trial, as we have said, it is clear that the general rule in s 88(3) applies, which does not include presence by video link or audio link. In other words, a trial in which an accused person is present only by video link or audio link would be a trial that was proceeding 'in the accused's absence' within the meaning of s 88(4). A court could only order that to occur if it was satisfied of the requirements in s 88(4)(a) and (b) (or s 140(1)) of the Criminal Procedure Act. Notably, s 88(4) is conditioned on the court being satisfied both that 'the accused's interests will not be prejudiced by his or her absence' and that 'to do so will not be contrary to the interests of justice'. 49 For completeness, in our view, s 88(5) of the Criminal Procedure Act does not, on its proper construction, provide a general power to order that an accused attend his or her trial by video link or audio link. 50 There are a number of other provisions of the Criminal Procedure Act that support this construction. 51 First, s 77 of the Criminal Procedure Act makes provision for a court to order the use of a video or audio link where an accused person is in custody and is required to appear before a court. Where an accused appears before court by means of video link or audio link pursuant to that section, the accused is, in effect, deemed to be personally present before the court. Section 77(6), in particular, provides: When the accused appears before the court by means of a video link or audio link, the court may, in relation to the charge, exercise any power in this Act and comply with the Bail Act 1982 as if the accused were personally present before it. 52 The use of a deeming provision ('as if') in this way, in our view, reveals a legislative intention that a person appearing by video link or audio link would not otherwise be regarded as being personally present before the court.10 53 More importantly, s 77 of the Criminal Procedure Act expressly provides that the section does not apply 'to the trial of the charge or sentencing proceedings'. The general provision in s 77 for the use of video link or audio link to accused persons in custody, therefore, does not apply in relation to the accused's presence at trial. The court could 10 East Finchley Pty Ltd v Federal Commissioner of Taxation [1989] FCA 720; (1989) 90 ALR 457, 478 (Hill J); Commissioner of Taxation v Craddock [2006] VSC 408; (2006) 204 FLR 274 [34] (Cavanough J); Young Investment Group Pty Ltd v QBE Insurance (Australia) Ltd [2019] WASC 74 [110] - [112] (Quinlan CJ). -- 19 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 20 not 'order' an accused to attend their trial by video link or audio link pursuant to s 77. 54 Further legislative context is provided by s 140 and s 141 of the Criminal Procedure Act. Section 140 provides: 140 Accused may be excluded from proceedings (1) Despite sections 88(4) and 172(1), if an accused conducts himself or herself in a manner that makes it impracticable to continue proceedings in his or her presence, the court may order the accused to be removed and the proceedings to proceed in the accused's absence. (2) This section does not prevent a court from allowing an accused to be present before the court by means of a video link or audio link or from taking evidence from an accused by either such means. 55 Section 140(1) reflects the long-standing principle, in relation to the 'forfeitable' right of an accused to be present in court, that the accused may be excluded as a consequence of their own disruptive behaviour. As Burt CJ observed in Rabey v The Queen, in relation to the accused's right to be present in court throughout his or her trial:11 Of course, if the accused misbehaves himself to such an extent as to render the continuance of the proceedings in his presence impracticable, he may forfeit that right, but, subject to that, his right is unqualified. 56 Finally, s 141 makes further provision in relation to the use of video links or audio links. Section 141 provides: 141 Video and audio links, use of (1) This section applies if an accused is required to appear before a court in relation to a charge for any purpose other than to be sentenced. (2) Subject to section 77, the court may permit the accused to appear before the court by means of a video link or an audio link. (3) When the accused appears before the court by means of a video link or an audio link the court may deal with the charge as if the accused were personally present before it. 11 Rabey v The Queen, 87 (Burt CJ). -- 20 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 21 57 It is notable that s 141 of the Criminal Procedure Act, unlike s 77, provides that the court may 'permit' the accused to appear by video link or audio link, rather than 'order' an appearance by video link or audio link. The distinction is important, as it makes clear that the power in s 141 (being a 'permission') is one that may be granted at the request (and so necessarily with the consent) of the accused. It is not a power to require attendance by video link or audio link contrary to the wishes of the accused. 58 The distinction drawn by Parliament between a power to 'order' appearance by video link or audio link and a power to 'permit' such an appearance is deliberate. Indeed the distinction between a court making an 'order' or granting a 'permission', in this context, is reflected in the legislative history of the provisions replaced by s 88 of the Criminal Procedure Act. 59 In that regard, s 635 of the Criminal Code, the provision in effect immediately prior to the enactment of s 88 of the Criminal Procedure Act, provided:12 635 Accused's presence at proceedings (1) In this section – 'proceedings' includes proceedings under section 611A, at trial, and under the Bail Act 1982, the Evidence Act 1906, the Sentencing Act 1995 or the Young Offenders Act 1994. (2) This section applies whether an accused person is being tried alone or with others. (3) Proceedings that relate to an accused person must take place in his or her presence unless this section or the Sentencing Act 1995 provides otherwise. (4) If an accused person so conducts himself or herself as to render the continuance of proceedings in the person's presence impracticable, the court may order the person to be removed and may direct the proceedings to proceed in the person's absence. (5) If 2 or more accused persons are charged jointly and the court is satisfied that any of them is unable to be present at any proceedings by reason of the person's 12 The Explanatory Memorandum for the Criminal Procedure Bill 2004 (WA) confirms that s 88 of the Criminal Procedure Act was 'based on section 635 and section 647 of the Criminal Code'. -- 21 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 22 illness or infirmity, the court may order that the proceedings may continue in the absence of that person during that part of the proceedings as may be necessary if it is satisfied – (a) the interests of the accused person will not be prejudiced by the proceedings proceeding in his or her absence; and (b) the interests of justice require that the proceedings should proceed in the person's absence. (6) If an accused person is charged alone and the court is satisfied the person is unable to be present at any proceedings by reason of the person's illness or infirmity, the court may permit the person to be absent during that part of the proceedings as may be necessary if it is satisfied – (a) the interests of the accused person will not be prejudiced by the proceedings proceeding in his or her absence; and (b) the interests of justice require that the proceedings should proceed in the person's absence. (7) If an accused person absents himself or herself during proceedings without leave, the court may direct a warrant to be issued to arrest the accused person and bring him or her before the court forthwith. (8) Nothing in this section prevents a court from taking evidence from an accused person by video link or audio link under section 121 of the Evidence Act 1906. 60 As will be apparent from the former ss 635(5) and (6) of the Criminal Code, Parliament drew a clear distinction between circumstances in which a court may 'order' that an accused person be absent and those in which a court may 'permit' that an accused person be absent. That distinction, as we have identified, continues to be made in the Criminal Procedure Act. 61 This legislative context, in our view, informs the proper construction of s 88(5) and s 140(2) of the Criminal Procedure Act. Both provisions provide that the sections do not 'prevent a court from allowing an accused to be present before the court by means of a video link or audio link'. The use of the verb 'allow' is consistent with the -- 22 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 23 contemplation, in s 141, that the court may 'permit' the accused to appear by video link or audio link. That is, it contemplates circumstances in which an accused person attends by video link or audio link following the accused person's request and consent. 62 Section 88(5), accordingly, does not provide a general or independent power for the court to 'order' an accused person to attend their trial by way of a video link or audio link without their consent. Such a power would need to be found elsewhere. As we have said, while the court might 'permit' an accused person to be present at their trial by video link or audio link, such an accused would nevertheless be 'absent' from the trial within the meaning of s 88(4) and their absence would need to be justified by either s 88(4) or s 140(1) of the Criminal Procedure Act. 63 We will return to the application of these provisions in the context of ground 1 of Mrs Courtney's conviction appeal. Interventions by a trial judge and miscarriage of justice – legal principles 64 The fundamental task of a trial judge in a criminal trial is to ensure the fair trial of the accused.13 That fundamental obligation requires the trial judge not only to ensure that the trial is conducted fairly and impartially, but that the trial is seen to be so conducted. For this reason, in a case in which it is contended that the trial judge impermissibly intervened or interfered in the presentation of the case, there is a close connection between the assessment of whether the accused has received a fair trial and whether the conduct of the judge gave rise to a reasonable apprehension of bias on the part of the judge. The test in relation to the latter is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.14 65 This close connection was explained, in the context of a jury trial, by Steytler P in Michael v The State of Western Australia:15 In a jury trial the judge is not the ultimate arbiter. 13 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 (RPS v The Queen) [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ). 14 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ). 15 Michael v The State of Western Australia [2007] WASCA 100 (Michael v The State of Western Australia) [56] (Steytler P; McLure & Miller JJA agreeing). -- 23 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 24 However, he or she is frequently called upon to make decisions during the course of the trial in respect of such matters as the admissibility of evidence, the permissible limits of cross-examination and the fair conduct of the proceedings. It is consequently not difficult to envisage a jury trial in which fair-minded people might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of such questions, with a consequential lack of confidence that the accused person had had a fair trial. 66 The degree to which judicial interventions are permissible will vary from the civil jurisdiction to criminal jurisdiction and generally from case to case.16 Particularly in the civil jurisdiction, where the judge is the ultimate fact finder, a more liberal approach to judicial intervention may not only be justified, but necessary. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson v Johnson:17 At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. 67 In any case, of course, a trial judge must maintain proper control over the proceedings and to ensure witnesses' evidence remains fair and relevant.18 That duty may require the trial judge to intervene in the proceedings, including reprimanding a witness or an accused person where their behaviour calls for it.19 In the case of a trial conducted with a jury, however, a judge will ordinarily need to be more circumspect and leave counsel and the jury to perform their respective tasks.20 In some cases a witness may be thought to be being obstructive or evasive, but if this is so it can usually be left to the judgment of the jury and requires no negative commentary from the trial judge. As the Court of Appeal in Victoria observed in Nwagbo v The Queen:21 A judge goes beyond the scope of permissible judicial intervention in questioning witnesses if he or she appears to adopt the role of a party in the proceeding. Leaving evidentiary and procedural rulings to one side, a judge cannot shape the content of the trial or convey to the jury the impression that he or she has taken a side in the dispute. 16 Nwagbo v The Queen [23] (Priest, Niall & T Forrest JJA). 17 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ). 18 Nwagbo v The Queen [31] (Priest, Niall & T Forrest JJA). 19 Michael v The State of Western Australia [64] (Steytler P; McLure & Miller JJA agreeing). 20 Nwagbo v The Queen [23] (Priest, Niall & T Forrest JJA). 21 Nwagbo v The Queen [24] (Priest, Niall & T Forrest JJA). -- 24 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 25 68 Similarly, it is impermissible for a judge's interventions to have the effect of undermining counsel's forensic plan or strategy. Intervening, particularly in a criminal trial by jury, creates an especial risk of producing an unfair trial.22 A judge's interventions should not be such as to create the impression that he or she has identified himself or herself with one of the parties. Nor should a trial judge convey the impression to the jury, whether by interventions or otherwise, that the defence case is 'hollow'.23 69 Whether the cumulative effect of the conduct of a trial judge, by intervention or otherwise, will constitute a miscarriage of justice must be assessed in the context of the trial as a whole and is always a matter of fact and degree.24 In this regard, we gratefully adopt the following summary of principle from Nwagbo v The Queen:25 In R v Mawson, the Court stated that it 'is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice', and that such a departure 'may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done'. Mawson concerned a jury trial involving charges of common assault and false imprisonment, in the course of which the trial judge asked more questions of both the complainant and the accused than both counsel combined, prompting the Court to observe: Such an enumeration of the number of questions asked of the parties concerned in the conduct of the trial is, of course, by no means conclusive, and cannot be conclusive in determining whether there has been an excess of interference, but it does give an idea of the degree or extent of the participation or involvement of the learned presiding judge whilst the evidence of the two principal witnesses at the trial was being adduced. Again, although it is not conclusive by any means, it also appears from the transcript that in two instances while under questioning by the learned judge, the accused man was provoked into asking that he be permitted to express what he was endeavouring to say to the jury. Judges possess the full range of human strengths and weaknesses. In an adversarial system, it may be expected that judges of different temperaments may respond very differently to identical circumstances 22 Nwagbo v The Queen [24] (Priest, Niall & T Forrest JJA). 23 Michael v The State of Western Australia [72] (Steytler P; McLure & Miller JJA agreeing). 24 Michael v The State of Western Australia [77] (Steytler P; McLure & Miller JJA agreeing). 25 Nwagbo v The Queen [35] - [36] (Priest, Niall & T Forrest JJA). (References omitted) -- 25 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 26 and it is unrealistic to expect unfailing wisdom seasoned with serene composure. Judges may sometimes be belligerent and rude. They can on occasions be confrontational and impatient. They may be sarcastic and disdainful. Whether the cumulative effect of such conduct will constitute a substantial miscarriage of justice will always be a question of fact and degree. In Budd v Kambah Tea Tree Plantations Pty Ltd, Heydon JA, in the setting of civil litigation, sanctioned the robust approach to the conduct of a trial adopted by the judge at first instance as a 'modern technique, and a not unacceptable one, particularly in a busy trial court under pressure from crowded lists'. Nettle JA, citing this observation in Anderson, remarked that trial litigation often called for 'plain speaking, directness and sometimes asperity'. In the scheme of things, a trial judge should endeavour to avoid 'truculence and discourtesy', although 'in any hard fought case' it may well arise. The fact that it does is not necessarily determinative of the question whether there has been a substantial miscarriage of justice. It is always necessary to ask whether the trial has been so compromised by the judge's conduct as to no longer justify the characterisation of a 'fair trial'. 70 Where a trial judge's conduct has crossed the line from mere discourtesy or impatience to impermissible intervention or apprehended bias, it is necessary to consider whether any prejudice is capable of repair in his or her summing up, and if so, whether it has been repaired.26 Where there is a real risk that the jury have gained an impression that the trial judge had formed an adverse view of the defence, repairing that impression in the judge's summing up may be difficult. As the Court said in Lars v The Queen:27 In such circumstances, the traditional direction to the jury that they should disregard any expression of opinion by the trial judge would rarely be sufficient to overcome the resultant prejudice. To do so it would need to go far beyond cautioning the jury against accepting the judge's expression of opinion conveyed during the summing up and would need to emphasise to them the need to disregard any conduct of or remark made by the judge in the course of the trial which might be thought to convey that he had a view. 71 We turn then to the application of these principles in the present case. 26 Michael v The State of Western Australia [73] (Steytler P; McLure & Miller JJA agreeing). 27 Lars v The Queen (1994) 73 A Crim R 91, 142 (Wood, Matthews & Badgery-Parker JJ); see also Michael v The State of Western Australia [73] (Steytler P; McLure & Miller JJA agreeing). -- 26 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 27 Ground 1 of Mrs Courtney's conviction appeal 72 We commence with the learned trial judge's refusal of Mrs Courtney's adjournment application and her Honour's decision to proceed with the trial in Mrs Courtney's absence (ground 1 of Mrs Courtney's conviction appeal). Ground 1 of Mrs Courtney's conviction appeal – relevant events at trial 73 On 29 October 2024, on day seven of the trial, counsel for Mrs Courtney advised the learned trial judge that Mrs Courtney was feeling unwell and may need to take breaks at short notice. The learned trial judge emphasised to Mrs Courtney that it was important that she be able to listen to the evidence and if she reached a point where she could not do so, she should advise her lawyer.28 Dr Murdoch was called to give evidence that day. The learned trial judge also provided Mrs Courtney, and required her to wear, a face mask. 74 At the completion of Dr Murdoch's evidence on 29 October 2024 the learned trial judge adjourned the trial for the day because Mrs Courtney was 'sick'.29 75 The following morning, 30 October 2024, Mrs Courtney did not appear. Her counsel advised that she remained unwell and had booked to see a doctor. The learned trial judge advised that 'unless I receive a medical certificate, I'll be arranging to issue an arrest warrant' for Mrs Courtney.30 The trial was adjourned to the following day. 76 The next day, Thursday, 31 October 2024, Mrs Courtney attended court and her counsel confirmed that she had provided a medical certificate to the court the previous day. The medical certificate said that Mrs Courtney was 'acutely unwell with gastrointestinal illness with vomiting, diarrhoea and high fever'. Counsel read the balance of the medical certificate onto the transcript:31 I have recommended symptomatic relief and rest and [Mrs Courtney] will be unfit to attend court proceedings from 30 October to 1 November, inclusive. She'll need to rest and rehydrate over the next 48 hours to expedite her recovery. [Mrs Courtney] is very unwell today and I believe will not be recovered for a few days. She is likely to remain symptomatic with fever, possible confusion, concentration and focus issues and weakness and fatigue, as well as recurrent vomiting. 28 Trial ts 1090 - 1091. 29 Trial ts 1153. 30 Trial ts 1159 - 1160. 31 Trial ts 1172. -- 27 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 28 I do not believe, when she is this unwell, she will be able to understand proceedings to the best of her ability and I think this would disadvantage her situation. I believe she is likely to have food poisoning, but the differential diagnosis is of infective gastroenteritis, which could be – can be contagious through personal contact. As in most cases of food poisoning, she will be on her way to recover[y] in the next few days and I am planning to review her progress on Friday, 1 November. 77 Counsel for Mrs Courtney applied to temporarily adjourn the trial while Mrs Courtney recovered. His submissions were brief:32 In the circumstances, given the witness that we're going to be calling today, Ms McNab, such an important witness will be covering a lot of important information. I have grave concerns that [Mrs Courtney] is going to be able to follow that adequately. Also I'm concerned that, if she does have a contagious illness, that there's concerns in that regard. But, more to the point, she's unwell and not able to sit through today, and possibly tomorrow, but we won't know that until the doctor sees her again. 78 The brevity of counsel's submissions might be explained by the fact that, as it transpired, the prosecutor, Ms Winter, did not oppose the adjournment of the trial for Mrs Courtney to recover. 79 The learned trial judge did not, however, seek submissions from the State as to the application for an adjournment. After confirming with Ms Winter that the evidence to be called that day was the evidence-in-chief of Ms McNab, her Honour immediately proceeded to deliver reasons for refusing Mrs Courtney's adjournment application, although the reasons were briefly interrupted by the fact that Mrs Courtney began to vomit. 80 When her Honour returned, she continued her 'judgment', which included:33 The position in terms of the trial is a judge has an obligation to ensure a number of things, and as I'm sure everyone in this courtroom will appreciate, it's a multifaceted task. This is the third time that this matter has now been listed for trial, and accordingly, there's an overwhelming public interest that this trial is to be able to go through to completion. 32 Trial ts 1172. 33 Trial ts 1175 - 1176. -- 28 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 29 I am very concerned regarding the fact that we have 14 members of the public who were told that the trial was likely to finish this week. Indeed, the due date for the finish of the trial was yesterday. I'm now being told the trial is going to go way over time, maybe as long as a couple of weeks over time, and in those circumstances, the jury are already going to be considerably inconvenienced. Obviously there is fundamental importance that each of the two accuseds get a fair trial, and that ensures that they are able to follow proceedings. When the judge is presented with medical information, it is necessary for the judge to evaluate that in the circumstances of the case, and to consider the particular stage at which the trial is at. If this had been at a time when [Mrs Courtney] was required to give evidence, quite clearly she is incapable of doing so. If this had been made at a time when Mrs Shillington or Ms Doepel, for example, were giving evidence, then quite clearly [Mrs Courtney] is in no fit state to be able to instruct her lawyer. The fact is that the evidence today will be in the form of the evidence-in-chief from one witness. That witness's evidence has been the subject of disclosure for a lengthy period of time, and accordingly, is well known to the accused, and she has already provided instructions to her solicitor and counsel. I say that on the assumption that that has been done given the competent way in which her counsel are running the trial. In those circumstances, there is minimal input that will be needed from the accused. I can, however, see how it may be unfair to the accused if she was sitting in court with the jury watching her as she is visibly unwell and with no opportunity to vomit as and when she needs to. Accordingly, I am – having taken into account the nature of the condition that she has, which is either what is colloquially known as gastro, or food poisoning, and we're not sure which, and in particular, the fact that the doctor's recommendation is she needs to rest and rehydrate, it seems to me that being present at court of itself will not prevent her recovery from the illness. 81 The learned trial judge then continued:34 What I have therefore ruled is as follows. The accused is entitled to be present at the trial but it does not mean she has to be seen at all times by the jury. I have made arrangements with the court staff to have a room available for the accused. Custody are able to accommodate this. This room will be a room where the accused is able to watch all proceedings at all times. She will have a video up, 34 Trial ts 1176. -- 29 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 30 and she will be able to hear and watch the proceedings. No camera will be on her. There will be no sound for her. And if the accused needs to leave while I'm making this ruling, she can do so, if you'd rather vomit just outside the door. That way the accused, to the extent she is ill, will be able to manage the matter. If there is any evidence given by the witness today that is unexpected by Mr Perrella and for which he does not already have instructions, then of course, Mr Perrella can raise that. 82 Her Honour identified a number of other measures she proposed, including that Mrs Courtney's lawyers could have their telephones and computers available to contact her and foreshadowed that there may be other measures that are needed throughout the day. 83 The learned trial judge's reasons included the following:35 I wish to make it abundantly clear the reason for this ruling. I have an obligation to balance all interests, as I have said. I do not wish to in any way let the desire for expediency of this trial overwhelm the need for the accused to have a fair trial. 84 A number of matters may be noted at this point. 85 First, it is clear that Mrs Courtney was acutely unwell. She was vomiting in the courtroom and the learned trial judge accepted that she was 'clearly … in no fit state to be able to instruct her lawyer'. 86 Secondly, her Honour did not refer to, or address, the requirements of s 88 of the Criminal Procedure Act, and in particular whether she was satisfied that 'the accused's interests will not be prejudiced by his or her absence' and that 'to do so will not be contrary to the interests of justice' (s 88(4)). The only prejudice her Honour identified was the prospect that the jury might see Mrs Courtney 'visibly unwell and with no opportunity to vomit as and when she needs to'. 87 In that regard, it is clear that what the learned trial judge proposed was proceeding in Mrs Courtney's 'absence' within the meaning of s 88(4) of the Criminal Procedure Act. The arrangement to place Mrs Courtney in another room was such that what her Honour proposed was that the trial would not take place in Mrs Courtney's 'presence' within the meaning of s 88(3) of the Criminal Procedure Act. 35 Trial ts 1177. -- 30 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 31 88 To be clear, that was not simply because Mrs Courtney would not be physically present in the court. Even if, contrary to the construction we have reached above, s 88(5) could have empowered the learned trial judge to order that Mrs Courtney be present by video link, what was arranged by her Honour was not a video link. As noted above, a 'video link' means 'facilities, including closed circuit television, that enable, at the same time, a court at one place to see and hear a person at another place and vice versa'. The arrangements made by the learned trial judge were that 'no camera will be on [Mrs Courtney]' and 'there will no sound for her'. 89 Thirdly, given that her Honour delivered her reasons immediately after the application for an adjournment was made, the learned trial judge must have made the arrangements with 'the court staff' and 'custody' prior to the commencement of court that day. That is, her Honour had made the arrangements before counsel for Mrs Courtney made the adjournment application. Notwithstanding that those arrangements had been made, her Honour did not raise such potential arrangements with counsel when he did apply for the adjournment. Nor did her Honour seek submissions from either the defence or the State as to whether those arrangements were appropriate. 90 Following the learned trial judge's ruling, Mr Perrella raised a number of logistical difficulties with the arrangements made by her Honour, including the technical difficulty of communicating with Mrs Courtney and the fact that she was potentially infectious. After that discussion, the learned trial judge turned to the State prosecutor, Ms Winter, who made the State's position clear:36 WINTER, MS: Your Honour, I appreciate your Honour's made a ruling but perhaps I'll just state for the court record that given the way in which [Mrs Courtney] is presenting today the State does have grave concerns about continuing to proceed in terms of ensuring that she has a fair trial. BLACK DCJ: Exactly. WINTER, MS: And I certainly – I appreciate your Honour's made the ruling. The State wouldn't be opposing the application to adjourn for those reasons because at this point the fairness of the trial for the [Courtneys] really has to be paramount. 91 Her Honour responded to the effect that 'we may reach a point where we then need to adjourn' and invited Mr Perrella to make further 36 Trial ts 1181 - 1182. -- 31 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 32 applications if they reached a point where Mrs Courtney was too ill for the matter to proceed. 92 The trial then continued with Mrs Courtney in another room. The learned trial judge advised counsel that she could see Mrs Courtney on a monitor at all times. No one else could see or hear Mrs Courtney. 93 Ms McNab was called to give evidence and commenced her evidence-in-chief. Later in the morning, Mr Perrella went to see Mrs Courtney during a break and reported that she had vomited several times and had a number of other symptoms and was not able to follow what was happening. He again applied for an adjournment.37 The prosecutor submitted that the State's primary concern was to ensure a fair trial and if Mrs Courtney was not fit then the court should not be sitting.38 94 The learned trial judge adjourned the trial until the following morning. 95 The following morning, Friday, 1 November 2024, Mrs Courtney was still unwell and counsel advised that she had a telehealth appointment for 11.45am. Consistent with the ruling made by the learned trial judge the day before, Mrs Courtney again went to another room (although it was closer to the courtroom than on the previous day). 96 Prior to the jury returning, her Honour again advised counsel that she could see Mrs Courtney and would advise Mr Perrella if she noticed anything. It is apparent that Mrs Courtney still could not be heard in the courtroom. Her Honour advised her to 'just move your arms like that to get my attention if you want Mr Perrella to come and see you'.39 97 During the morning break, the learned trial judge said that she could see Mrs Courtney and advised that she 'is much better than yesterday … but she is clearly not well'. Her Honour then advised that she had considered the criteria in the Criminal Law (Mental Impairment) Act 2023 (WA) and that, according to those criteria Mrs Courtney was not 'unfit to stand trial', 'even if, as I understand it from the information given to me, she is sleepy, she is still unwell, she may not be taking notes at the same level as she would normally do'. 37 Trial ts 1206. 38 Trial ts 1208 - 1209. 39 Trial ts 1231. -- 32 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 33 Her Honour nevertheless said to Mr Perrella 'I hope it's understood that the efficiency of the trial will never override the right to a fair trial, and I encourage you to make any application, notwithstanding the observations I've made'.40 98 After a short adjournment, during which Mr Perrella sought further instructions, he made a further adjournment application. The following exchange occurred:41 PERRELLA, MR: The – yes. I'm just going to put up the email. Sorry, your Honour. These are the observations that were reported back to me. That [Mrs Courtney] had actually had to run down to – left the room to go to the toilet to vomit. That the security have almost - - - BLACK DCJ: Yes. PERRELLA, MR: - - - run out of vomit bags for her. BLACK DCJ: Yes. That occurred on one occasion and my usher went and got new vomit bags. So there's now more than enough in the room. PERRELLA, MR: She's simply not following. She's had her eyes closed and not following the evidence and so – and she's reportedly looked dazed and had little idea of what was going on with the evidence or where the evidence was at. So clearly – my submission is that [Mrs Courtney] is not able to follow the evidence. 99 The learned trial judge did not seek submissions from the State and immediately proceeded to give reasons for refusing the adjournment application. Her Honour said that:42 if the accused was required to or her lawyer was required to go into cross-examination today, it seems to me that she cannot sufficiently follow the trial or, at least more importantly, cannot sufficiently instruct her lawyer to enable her to have her lawyer cross-examine or to give evidence. 100 Nevertheless, her Honour continued:43 Having regard to the state of proceedings and the matter that I must balance this matter along with all other matters, and that the doctor's recommendation recommends no more than rest and time to recuperate, it seems to me that the privacy that I have afforded her, being the room in which she's in, the dignity that she has in there, the fact that her 40 Trial ts 1253 - 1254. 41 Trial ts 1260 - 1261. 42 Trial ts 1261. 43 Trial ts 1261. -- 33 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 34 physical state does appear to me to be considerably better than it was yesterday at a point in time when I did make the decision that her illness was too severe to be able to continue the trial, at this stage I consider that the trial can fairly proceed. 101 The learned trial judge was particularly persuaded by the fact that Ms McNab was still in evidence-in-chief and that 'the defence will have the weekend'. Her Honour said that she would 'continue to monitor the accused and, of course, expect I would be updated if there's any change'.44 102 The trial, accordingly, continued in Mrs Courtney's absence. When the jury retired at lunchtime, the learned trial judge observed that Mrs Courtney was 'extremely tired' and 'very sleepy'.45 When court resumed 45 minutes later, her Honour advised counsel that '[Mrs Courtney's] just got her head on the desk for the moment'.46 Later, at approximately 2.40 pm, her Honour observed that Mrs Courtney was 'actually writing some notes at the moment' and 'appears to be going all right'.47 103 Ms McNab's evidence-in-chief continued until 4.21 pm that day, and the trial was adjourned for the week at 4.29 pm. 104 The following Monday, 4 November 2024, Mrs Courtney had recovered from her illness and the trial continued with her present in the courtroom. 105 We turn to the significance of this course of events for the disposition of Mrs Courtney's conviction appeal. Ground 1 of Mrs Courtney's conviction appeal – disposition 106 Ground 1 of Mrs Courtney's conviction appeal has two limbs, namely that the learned trial judge erred, first, in refusing Mrs Courtney's application for an adjournment, and secondly, in proceeding with the trial in her absence. 107 For the reasons that follow, in our view, both decisions were in error and, together, gave rise to a miscarriage of justice. 44 Trial ts 1262. 45 Trial ts 1293 - 1294. 46 Trial ts 1296. 47 Trial ts 1316 - 1317. -- 34 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 35 108 In relation to the decision whether to adjourn the trial to enable Mrs Courtney to recover from her illness, we recognise that the decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is seldom that an appellate court will review such a decision.48 It is necessary for the appellant in such a case to demonstrate a House v The King49 error. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, however, it is under a duty to review the order made.50 109 While recognising this need for restraint, it is relevant in the present case that the application for an adjournment on 31 October 2024 (and the subsequent application made the following day) were not applications to discharge the jury and adjourn the entire proceedings. No doubt, if that were the case, very weighty considerations as to the public interest in the resolution of the charges and the impact on witnesses would have been engaged. In the present case, however, the application was sought to adjourn the trial for one, and possibly two, days while Mrs Courtney recovered. Such an adjournment, while no doubt productive of some delay in the completion date of the trial, was not such as to require the relisting and deferral of the entire trial. 110 The considerations in favour of a short adjournment in those circumstances were strong. Mrs Courtney was clearly unwell. She was, as the learned trial judge said 'in no fit state to instruct her lawyer'. While, her Honour qualified that observation as applying to the time at which Ms Shillington and Ms Doepel were giving evidence, there was no basis to conclude that the next proposed witness, Ms McNab, fell into some different category. Counsel had submitted that Ms McNab was 'an important witness … covering a lot of information'.51 111 In this context the learned trial judge appears to have assumed that the fact that Ms McNab's evidence had been the subject of disclosure meant that Mrs Courtney would not need to provide any instructions in relation to matters arising in Ms McNab's evidence. There was, in our view, no basis upon which to make such an assumption and, as Ms McNab's evidence progressed, the assumption proved to be unwarranted. While Ms McNab did give much of her evidence by 48 Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 (Wilson J). 49 House v The King [1936] HCA 40; (1936) 55 CLR 499. 50 R v Alexandroaia (1995) 81 A Crim R 286, 290 (Hunt CJ at CL, Grove & Dunford JJ); Lewis v The State of Western Australia [No 2] [2008] WASCA 155 [40] (Buss JA; McLure & Pullin JJA agreeing). 51 Trial ts 1172. -- 35 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 36 reference to the records of the Hospital, her evidence also included significant personal observations of both Matilda and Mrs Courtney. She gave evidence, for example, that Matilda's clothing was 'inconsistent' with the typical clothing of a 16 year old child and proffered the opinion that it was consistent with 'six through to 12, six through to 10'.52 Even more significantly, Ms McNab gave a detailed account of her observations of the 'dynamics' of the relationship between Matilda and her parents. That evidence included describing Mrs Courtney and Matilda's relationship as 'enmeshed' and that 'they were one person, almost'.53 That was significant evidence adverse to Mrs Courtney. She was entitled to be present for it, and to instruct her lawyers in relation to it. As it was, that evidence was given very shortly after the learned trial judge refused the second adjournment application (on 1 November 2024) in which counsel submitted that Mrs Courtney was not 'able to follow the evidence'. 112 Against this prejudice, there was only one matter identified by the learned trial judge that was in favour of refusing Mrs Courtney's application for an adjournment: what her Honour described as the 'overwhelming public interest that this trial is to be able to go through to completion'. As we have already noted, however, the application for an adjournment was not an application to discharge the jury and adjourn the entire trial. There was no reasonable basis to conclude that the temporary adjournment for Mrs Courtney to recover was likely to imperil the completion of the trial. At the time of the application there were three remaining prosecution witnesses to be called and, while the trial was taking longer than estimated, there was nothing to indicate that those witnesses could not be called after a one or two day adjournment. 113 The principal impact of such an adjournment, therefore, was the inconvenience to the members of the jury by the extension of their service beyond the original trial estimate. Of course, any inconvenience to jurors is regrettable but, as every trial judge is aware, it is often unavoidable. Criminal trials regularly run overtime, sometimes considerably so, and experience shows that, however frustrating that may be, jurors generally respond to such delays with equanimity and a commitment to their civic duty. As it was, in the present case, the learned trial judge had empanelled 14 jurors and none had been, nor had sought to be, discharged. 52 Trial ts 1246 - 1247. 53 Trial ts 1266. -- 36 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 37 114 In any event, the potential inconvenience to the jurors could not outweigh the need for Mrs Courtney to be in a fit state to be able to follow the proceedings and to be able to instruct her counsel. To continue with the trial in circumstances in which she was not able to do so was inconsistent with Mrs Courtney's right to a fair trial. We recognise that the learned trial judge made repeated reference to the fundamental importance of a fair trial, and emphasised that her Honour did 'not wish to in any way let the desire for expediency of this trial overwhelm the need for the accused to have a fair trial'. The obligation to ensure a fair trial is, however, a matter of substance; it is not achieved simply by the recitation, even repeated recitation, of its importance. In the same way, the learned trial judge's invitations to defence counsel to renew the application to adjourn if Mrs Courtney was 'too ill for the matter to proceed' did not assist, particularly when, having encouraged a further application on 1 November 2024, it was again refused (without calling on the State).54 115 In all of the circumstances, the learned trial judge erred in the proper exercise of her discretion in refusing the adjournment application. 116 That error was compounded by the learned trial judge's decision to proceed with the trial in Mrs Courtney's absence. 117 The State's primary submission in relation to this aspect of ground 1 of Mrs Courtney's conviction appeal was that the proceedings were, in fact, conducted in her presence while she was in a remote room as she was 'present before the court by means of a video link' (within the meaning of s 88(5) of the Criminal Procedure Act).55 That submission must be rejected on two bases. First, as we have concluded above, the requirement in s 88(3) that proceedings that relate to an accused 'take place in his or her presence' must, in our view, be construed as requiring that the proceedings take place in his or her physical presence in the courtroom (unless some statutory exception applies). Secondly, the arrangement put in place by the learned trial judge did not, in any event, constitute a video link within the meaning of the Criminal Procedure Act. While Mrs Courtney could see and hear the courtroom (although it is not apparent whether she could see the jury, or her counsel, as opposed to the witness), no one in the court could hear her and (other than the learned trial judge) no one in the court could see her. The trial, accordingly, proceeded in Mrs Courtney's 54 See [97] - [101] above. 55 Respondent's Submissions [37] - [38]. -- 37 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 38 absence, within the meaning of s 88(4), on both 31 October 2024 and 1 November 2024. 118 The State submitted, in the alternative, that if the proceedings conducted in the remote room were not in Mrs Courtney's presence, the learned trial judge was empowered to order the trial proceed in that manner by s 88(4) the Criminal Procedure Act, the criteria of which were satisfied.56 119 Part of the difficulty with that contention is that her Honour did not refer to, or address, the requirements of s 88 of the Criminal Procedure Act. If, by ordering that the trial proceed in Mrs Courtney's absence, the learned trial judge was purporting to rely upon the power in s 88(4), her Honour did not say so. 120 In any event, in all of the circumstances, it was not open to the learned trial judge to be satisfied as to the requirements of s 88(4) of the Criminal Procedure Act. 121 The first requirement on s 88(4) is that the court is satisfied that 'the accused will not be prejudiced by his or her absence'. In that regard, the only prejudice her Honour identified was the prospect that the jury might observe Mrs Courtney 'visibly unwell and with no opportunity to vomit as and when she needs to'. While it is difficult to see how the jury observing Mrs Courtney visibly unwell would engender prejudice, as opposed to sympathy, that potential prejudice was not prejudice caused by Mrs Courtney's absence, but by her presence. That observation does not address the more fundamental question as to whether Mrs Courtney's ability to participate meaningfully in her trial would be prejudiced by her physical absence from the courtroom. 122 The right of an accused to be present at their trial is not merely a formal entitlement to occupy a seat in the dock. It is a right to participate in the case, including by observing the witnesses give evidence, observing the tribunal of fact – be it a judge or jury – and to communicate instructions to counsel as the evidence unfolds. In the present case, Mrs Courtney was not only prejudiced by the impact of her illness, which could and did, impair her capacity to follow the evidence, but that prejudice was compounded by the fact that she did not have a ready means of access to her counsel. As events transpired she was not in electronic communication with counsel throughout the two days in question. Needless to say, the capacity for Mrs Courtney to 56 Respondent's Submissions [45]. -- 38 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 39 'just move your arms like that to get [the trial judge's] attention if [she wanted] Mr Perrella to come and see [her]' was a poor substitute for her right to be present in court and communicate directly with her counsel.57 123 The arrangements also impaired the ability of counsel to observe the wellbeing of Mrs Courtney. The invitation by the learned trial judge to make a further application for an adjournment if Mrs Courtney became too ill to continue was impractical in circumstances where counsel could not see or hear his client. The fact that the trial judge could see Mrs Courtney was no substitute and, in any event, depended on her Honour not being distracted from the screen by her duty to follow the evidence and respond to matters in the court room. Counsel's ability to safeguard the interests of his client was significantly hindered. 124 We have already addressed the fact that there was no reasonable basis to assume that Ms McNab's evidence was such that Mrs Courtney would not need to provide any instructions in relation to matters arising from her evidence. The prejudice to Mrs Courtney by her absence from court was not ameliorated by the proposed nature of Ms McNab's evidence. 125 In those circumstances it was not open for the learned trial judge to be satisfied that Mrs Courtney's interests would not be prejudiced by her absence within the meaning of s 88(4)(a) of the Criminal Procedure Act. 126 Turning to the second requirement – whether proceeding in Mrs Courtney's absence would be contrary to the interests of justice – the position is, if anything, clearer. The interests of justice are not served by the continuation of a criminal trial in circumstances where the accused is unable to follow proceedings or give adequate instructions to counsel. While not determinative, it is significant, in that context, that the prosecutor in the present case made clear that the State shared the concern that proceeding in those circumstances would be contrary to the interests of justice. In confirming that the State did not oppose the adjournment, Ms Winter correctly took the position that 'the fairness of the trial for the [Courtneys] really has to be paramount'. 127 For these reasons, we are satisfied that ground 1 of Mrs Courtney's conviction appeal is established. The learned trial judge erred in refusing the adjournment application and in ordering that the trial 57 Trial ts 1231. -- 39 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 40 continue in Mrs Courtney's absence on 31 October and 1 November 2024. While there may be cases in which the absence of an accused from a trial, without lawful justification, for a very short time might not amount to a material irregularity sufficient to give rise to a miscarriage of justice,58 that is not this case. The significant departure in this case from the fundamental right of Mrs Courtney to be present throughout her trial, was a material departure from the requirements of a fair trial and amounted to a failure to observe the requirements of the criminal process in a fundamental respect.59 For that reason there is no scope for the application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). 128 Ground 1 of Mrs Courtney's conviction appeal is made out. 129 As we have noted above, the circumstances supporting ground 1 in Mrs Courtney's conviction appeal are also relied upon in relation to ground 2 in that appeal. 130 Before leaving Ground 1 of Mrs Courtney's conviction, we shall deal with one further matter relevant to that ground, which was an application to adduce additional evidence by Mrs Courtney. In that regard, Mrs Courtney swore an affidavit on 5 January 2026 deposing to her physical condition during 31 October 2024 and 1 November 2024 and the impact that her illness had on her capacity to follow the proceedings. 131 In our view, Mrs Courtney's affidavit simply confirms, in more detail and more vividly, that which is already apparent from the record of the trial; namely that Mrs Courtney was not fit to proceed on 31 October 2024 and 1 November 2024 and that, in any event, for the trial to have proceeded in her absence amounted to a failure to observe the requirements of the criminal process in a fundamental respect. In those circumstance, the interests of justice did not require that Mrs Courtney's affidavit of 5 January 2026 be admitted as additional evidence on the appeal. 132 We turn to ground 2 of both Mr Courtney and Mrs Courtney's conviction appeals. 58 As occurred, for example, in Thomas v The Queen (No 2), 134 - 135 (Jackson SPJ). 59 MDP v The King [2025] HCA 24; (2025) 423 ALR 204 [3] (Gageler CJ). -- 40 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 41 Ground 2 of Mr and Mrs Courtney's conviction appeals 133 In addition to the learned trial judge's decision to proceed in Mrs Courtney's absence, the overlapping particulars in ground 2 of each of Mr and Mrs Courtney's conviction appeals include three further features of the trial process: the trial judge's interventions in Mr Courtney's evidence, the trial judge's interventions in Mrs Courtney's evidence and the trial judge's interventions in relation to the decision of defence counsel as to whether to call Matilda Courtney. 134 We will address each of those matters in turn. Ground 2 – Mr Courtney's evidence 135 Mr Courtney was called to give evidence on 6 November 2024, on day 13 of the trial. His evidence-in-chief was completed on the afternoon of 7 November 2024. Cross-examination of Mr Courtney by counsel for Mrs Courtney was relatively brief (approximately 30 minutes). The prosecutor also commenced her cross-examination of Mr Courtney in the afternoon of 7 November 2024 (for approximately 90 minutes). That cross-examination continued for most of the next two days (8 November 2024 and 11 November 2024), and was completed at approximately 4.30 pm on 11 November 2024. Mr Courtney's re-examination was again relatively brief (approximately 30 minutes on 11 and 12 November 2024). 136 At the commencement of his evidence-in-chief, Mr Courtney's evidence was generally given without significant disruption. While the learned trial judge at times sought clarification of Mr Courtney's evidence in a way that might be described as overly fastidious as to his manner of speech (ensuring that he was not referring to matters reported to him60 and did not use the plural 'we' when answering questions),61 her Honour's interventions, at that point, could not be described as excessive. 137 As Mr Courtney's evidence continued, however, the learned trial judge's interjections became more frequent. In particular, her Honour began to tell Mr Courtney that he was not answering the questions asked of him. The first such example, which was in examination-in-chief, was as follows:62 60 See e.g. trial ts 1779 - 1780, 1790, 1797. 61 See trial ts 1794, 1831. 62 Trial ts 1838. -- 41 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 42 And at the time when – when that conversation took place, had you told – had you made [Ms Shillington] aware that [Matilda] was doing jazz at Classique?---Yes. She was aware of that. Yes. So the - - - BLACK DCJ: No, that wasn't the - - - PAXMAN, MR: - - - question was - - - BLACK DCJ: - - - question. The question was whether you had told her?---At that meeting? No. Whether you - - - PAXMAN, MR: Previously. BLACK DCJ: - - - had told her. Is that right?---I had previously. Yes. 138 While this interjection was relatively innocuous on its own, it may be noted that Mr Courtney's answer to the question was not non-responsive; his answer was to the effect that he had made Ms Shillington aware of the fact that Matilda was attending classes at Classique. In any event, it was not the kind of answer that would immediately be expected to invite judicial intervention. 139 After this, the learned trial judge's interjections became more frequent and more precipitous. This became particularly evident in the cross-examination of Mr Courtney by the prosecutor. In that regard, on appeal Mr Courtney identified 171 interventions by her Honour in Mr Courtney's cross-examination and re-examination. While the State's submissions pointed out that 11 of the interventions were not in Mr Courtney's evidence, it accepted that there were 160 interventions in his evidence at that time, the overwhelming majority of which (at least 100) were directions to Mr Courtney to answer the questions asked. 140 The interjections were also more precipitous in the sense that the learned trial judge regularly interjected at the commencement of Mr Courtney's answers before the sense of the answer was apparent. The interjections most commonly began with the words 'No' or 'No, no'.63 By way of example:64 There's no way of knowing, for example, how much help [Matilda] might have received from you and [Mrs Courtney] in completing her 63 See e.g. trial ts 2001, 2002, 2088, 2110, 2115, 2123, 2127, 2136, 2145 ('No, no, no, no'), 2152, 2178, 2179, 2218, 2228, 2234, 2251, 2256, 2257, 2270, 2284, 2302, 2303, 2358. 64 Trial ts 1991. -- 42 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 43 assignments that you might give them as examples?---Well, that's why the student themselves - - - BLACK DCJ: No - - -?--- - - - participates in it. Sorry. You do need to answer the question?---Okay. You can then explain it, but - - -?---Okay. Sorry. - - - I have told you this a few times now - - -?---Yes. - - - so I want you to listen to me. When a lawyer asks you the question, you need to answer their question. You can't just answer a different question?---Okay. Is that clear?---Yes. Yes. Okay?---Yes. Just try again. 141 Almost immediately after this exchange, the following interjection occurred:65 Would you agree, [Mr Courtney], that if you wanted to, you could inflate or lie about [Matilda's] academic achievements?---Potentially, someone could lie on that if they wanted to. BLACK DCJ: No, you were asked whether you could if you wanted to, so answer that question, [Mr Courtney]?---No. No. Not really, cos I have to show evidence to prove it. 142 As will be apparent, the State prosecutor did not seek or invite the learned trial judge's interventions in Mr Courtney's evidence. Indeed, as counsel for the State accepted at the hearing of the appeal, there is nothing to suggest that the prosecutor, Ms Winter, was having any difficulty with Mr Courtney as a witness, or any difficulty in obtaining answers from him.66 143 On a number of the occasions upon which the learned trial judge intervened at the beginning of Mr Courtney's answer it is apparent from the transcript that Mr Courtney was endeavouring to give context to his answer. He was, for example, cross-examined in relation to Matilda's enrolment at a particular dance studio in 2015, in which he said on 65 Trial ts 1992. 66 Appeal ts 125 - 126. -- 43 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 44 a number of occasions that he did not recall the process of the enrolment. He was asked:67 You'd agree that it would have to be you or [Mrs Courtney] though?--- Not necessarily. I believe she did a trial there, then they had to invoice - - - Sorry, when you say, 'Not necessarily', who else could have possibly enrolled [Matilda] at a dance studio when she was 11 years old, if it wasn't you or [Susan]?---By [Tilly], after the - yeah, after the trial. So [Tilly's] enrolled herself at the dance studio at the age of 11, is that what you're suggesting?---That's right. 144 It is clear that the 'trial' referred to by Mr Courtney was a dance 'trial' at the studio. The learned trial judge's interjection in the next question, however, appears not to recognise that this is what Mr Courtney was referring to, when her Honour cut off his answer:68 And the dance studio doesn't seem to have any difficulty with the fact that an 11-year-old is enrolling themselves, and they don't need any parental consent or check with the parents at all about any details, is that what you're suggesting?---When youse attend the trial - - - BLACK DCJ: No, no, that's not the question. You're not asked about the trial, you're asked - - -?---Sorry. - - - about the enrolment process, and Ms Winter's just clarifying with you - - -?---Mm. - - - are you saying that you believed that it was possible for an 11-year- old to enrol themselves – enrol, not attend a trial – enrol themselves in a dance school?---Yes. 145 It will be apparent that her Honour's reframing of the question accentuated the incredulity implied in the question. 146 The most significant interjections by the learned trial judge in Mr Courtney's evidence related to his state of mind concerning Matilda's physical condition, a central issue in the proof of the element of 'recklessness'. In that respect her Honour expressed dissatisfaction with the form of Mr Courtney's answers, notwithstanding that they were responsive to the questions, or readily capable of being pursued by the prosecutor.69 Those interjections include expressions of 67 Trial ts 2036. 68 Trial ts 2036. 69 See e.g. trial ts 2064, 2067. -- 44 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 45 impatience such as 'That's not the question. I'll get Ms Winter to ask it, and she will keep asking it all day today until you answer it'70 and 'just – this is – this is taking a lot longer than it needs to', 'it's just a yes, or no', 'so just say yes, and we move on';71 'we need to try and get though your evidence;72 'Why don't you try answering the question you've been asked'.73 Her Honour also chastised Mr Courtney during the course of interjections: 'please don't be rude',74 'please don't interrupt me'.75 147 An important part of the cross-examination concerned Mr Courtney's own perception of Matilda's weight in relation to which the learned trial judge became involved. For example:76 So in – sitting here today, you now accept that in 2020, she was severely underweight?---She was underweight, yes. BLACK DCJ: No, no, no. WINTER, MS: Just underweight. BLACK DCJ: Again, you – you have to answer the question. You're not being asked underweight. Ms Winter's been very clear?---Okay. She's asking you, severely underweight?---Severely. I wouldn't say severely, no. 148 Later, when asked about whether he agreed that Matilda was at risk of harm at the time of a conversation with Dr Murdoch, Mr Courtney responded that all he could say was that she needed to get tests done. Her Honour interjected:77 BLACK DCJ: No, no. Just to be clear, this is an important area, so you must answer these questions accurately - - -?---Yep. - - - and it's important that you think about your answers. You're being asked about risk of harm. And I want you to listen to what's being put to you, and you need to answer each question honestly and accurately. So - - -?---Okay. - - - just go again, please - - -?---Yep. 70 Trial ts 2089. 71 Trial ts 2126. 72 Trial ts 2322. 73 Trial ts 2424. 74 Trial ts 2223. 75 Trial ts 2332. 76 Trial ts 2118. 77 Trial ts 2302 - 2303. -- 45 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 46 - - - Ms Winter. WINTER, MS: You understood that Dr Murdoch had concerns, correct?---Yes. You understood that she thought [Matilda] might be at risk of harm?--- Yes. She was dangerously underweight. Yes. BLACK DCJ: No, no, no. You need to just be careful. Do you – did you understand that Dr Murdoch thought [Matilda] was at risk of harm?---She didn't use those words, so I can't - - - No, no. You're not being asked that?---Okay. Did you understand that Dr Murdoch thought that [Matilda] was at risk of harm?---Potentially. That's – need to test to make sure. Yep. 149 Another notable feature of a number of the learned trial judge's interjections was her Honour's insistence that Mr Courtney give single unqualified answers, often to questions that involved some nuance. For example: BLACK DCJ: Sorry. Just – just listen to the question, though. You have to either say yes or no to that question.78 BLACK DCJ: No, no. Don't refer back?---Sorry. Just answer whether you agree or disagree with - - -?---I – I disagree. - - - what's being put?---Yeah.79 BLACK DCJ: No, you – you can just say 'yes' or 'no' to the propositions - - -?---No. - - - where you can hear, just so we can move on. We've been through most of this.80 150 These interjections are notable as they were in contrast to the approach the learned trial judge took to prosecution witnesses, who were generally permitted to provide contextual answers to the questions asked of them. Indeed, when counsel for Mrs Courtney requested that the first State witness, Ms Shillington, confine her answers to whether 78 Trial ts 2153. 79 Trial ts 2157. 80 Trial ts 2164 - 2165. -- 46 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 47 she agreed or disagreed with the questions, the learned trial judge countermanded that request:81 PERRELLA, MR: Thank you, your Honour. Ms Shillington, I'm going to put some propositions to you, and I'm just going to ask you if you agree or disagree. I'm not going to ask you to explain why you agree or why you disagree. Okay? So, firstly, [Matilda] had the nickname [Tilly]. You're aware that people would call her [Tilly]?---Yes. I'm going to refer to [Matilda] as [Tilly] in my questions to you. Okay? [Tilly] enjoyed dancing at your studio?---She did. BLACK DCJ: And sorry, I'm just going to make this - - - ?---Agree, agree. No, no. No, no?---Oh. I'm going to make this clear, you have no obligation to only say the words 'agree' or 'disagree'. You can answer the question in any way you see fit, as long as you answer the question you've been asked. All right? But you're – you're not restricted in how you must answer a question. I don't think that's what Mr Perrella meant by it. He just meant, don't go off topic, don't just answer the question. All right? 151 We will return to the impact of the learned trial judge's interjections later. Ground 2 – Mrs Courtney's evidence 152 Mrs Courtney was called to give evidence on 12 November 2024, on day 17 of the trial. Her evidence-in-chief and cross-examination by counsel for Mr Courtney was completed that day. The prosecutor cross-examined Mrs Courtney for all of 13 November 2024 and into the afternoon of 14 November 2024. Mrs Courtney's re-examination was brief (approximately 20 minutes) and her evidence was completed at approximately 3.00 pm on 14 November 2024. 153 As with Mr Courtney's evidence, Mrs Courtney's evidence-in- chief was generally given without significant disruption. Evidently, Mrs Courtney was softly spoken and there were a number of occasions upon which she was asked to raise her voice. Those interjections were 81 Trial ts 492 - 493. -- 47 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 48 entirely appropriate, although regrettably in that context, at one point, the learned trial judge said of Mrs Courtney that 'she just mutters'.82 154 More significantly, however, as Mrs Courtney's evidence progressed the learned trial judge began to interject in relation to the manner in which Mrs Courtney was answering the questions. The first such injection was particularly strident, given the circumstances. Mrs Courtney was being asked questions about a conversation with Ms Shillington:83 What did you say for her?---I felt sorry for her. BLACK DCJ: No, you weren't asked that. You were asked what you said to her?---Cos – so she - - - PERRELLA, MR: So when she's – when she's asking you to have [Tilly] do these - - -?---Yep. To stay with – so what is it exactly she said to you? Did she ask you to stay with Dance Classique or to do the Zoom classes? I'm a bit unsure about what - - -?---Both. - - - you're saying?---Both. Okay?---Yep. And what did you say?---Well, I hadn't – I wasn't going to - - - Let's not - - - BLACK DCJ: Sorry - - -?---No, sorry. PERRELLA, MR: - - - worry about why. BLACK DCJ: Sorry?---Okay. Yep. I just want to explain something - - -?---Yep. - - - before we go further?---Okay. There are rules of evidence - - -?---Yep. - - - which prevent you just expressing your opinions - - -?---Okay. - - - all the time, all right?---Yep. 82 Trial ts 2497. 83 Trial ts 2501 - 2502. -- 48 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 49 And your lawyer is very well aware of it, which is why he's crafted his questions very carefully in how he asks of you because he's seeking admissible evidence?---Yep. You need to listen to his question and answer his - - -?---Okay. - - - question rather than something that you want to say instead, all right?---Okay. So I'm going to ask you and in fact direct you - - -?---Yep. - - - you must answer your lawyer's question, because otherwise, if you say things that are inadmissible, this whole trial could come to an end as a consequence of that alone. That's why your lawyer is carefully asking the questions and it's why you must carefully listen and answer them?--- Okay. Is that clear?---Yep. Yep. 155 A number of observations may be made in relation to this exchange. While Mrs Courtney's answers may have required some redirection by her counsel (as Mr Perrella attempted to do), they did not require the kind of strident admonition given by the learned trial judge. 156 In that regard, while Mrs Courtney's answer began by reference to her own thoughts regarding Ms Shillington, that answer was highly unlikely to introduce clearly objectionable and inadmissible evidence. This is particularly so given that the central issue at trial concerned Mr and Mrs Courtney's state of mind (i.e. whether they were reckless as to the risk of harm to Matilda). For that reason a significant part of their examination and cross-examination was concerned with what Mr and Mrs Courtney were 'thinking'.84 Indeed, one of the learned trial judge's later interjections was precisely to that effect:85 WINTER, MS: Okay. But what do you think that she had said - - -?--- I – I don't know. - - - that would cause the Department to become involved with your family and take your daughter into care?---I don't know. BLACK DCJ: No, sorry. [Mrs Courtney], you're not being asked whether you know what she had said. You are being asked about what you were thinking at the time that she had said or might have said. That's what you're being asked about, not what you knew. What you 84 See e.g. trial ts 2497, 2532 - 2533, 2534, 2542, 2625, 2627, 2634, 2668, 2678, 2679, 2711, 2834, 2857, 2913. 85 Trial ts 2589 - 2590. -- 49 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 50 were thinking. So just see if you can answer the question, understanding that is the question. 157 Accordingly, while it is true that there may be occasions during a trial in which a trial judge may legitimately be sensitive, or 'on guard', to the possibility that a particular witness might inadvertently give inadmissible and prejudicial evidence, the evidence of Mrs Courtney was not one of those occasions. In those circumstances, for the learned trial judge to have said to Mrs Courtney, in the above exchange, that 'if you say things that are inadmissible, this whole trial could come to an end as a consequence of that alone' was both unwarranted and served to undermine Mrs Courtney before the jury.86 The suggestion that Mrs Courtney was, by her evidence, in danger of derailing the trial was repeated later when her Honour said to Mrs Courtney, in the presence of the jury, that she had to 'make sure that evidence isn't given inadvertently by a witness that would cause this trial to fall apart'.87 No other witness in the trial was the subject of such a suggestion. 158 As in the case of Mr Courtney, most of the learned trial judge's interruptions or interjections during Mrs Courtney's evidence arose in the course of cross-examination by the prosecutor. Mrs Courtney's submissions identified a total of 153 interruptions over the course of her evidence, 89 of which were in the course of that cross-examination. While the State took issue with whether all of the instances identified by Mrs Courtney were properly characterised as interruptions, there is no doubt that the large majority of them were. While it is not possible to address all of those interruptions, their general tenor may be summarised as follows. 159 A number of the interruptions of Mrs Courtney were premised on the basis that Mrs Courtney was not answering the question and needed to be directed to do so,88 including in pejorative terms ('You need to learn to finish the question before you';89 'Your job is to answer questions').90 As in the case of Mr Courtney, the State prosecutor did not seek or invite the learned trial judge's intervention in Mrs Courtney's evidence. Ms Winter had no apparent difficulty in controlling Mrs Courtney as a witness. 86 See [154] above. 87 Trial ts 2758. 88 See e.g. trial ts 2512, 2515 - 2516, 2520, 2573, 2589, 2601, 2603, 2779, 2809. 89 Trial ts 2512. 90 Trial ts 2653. -- 50 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 51 160 On a number of occasions, the learned trial judge's statements to Mrs Courtney, in the presence of the jury, carried the clear implication that Mrs Courtney was being deliberately obstructive in her evidence. For example:91 No, you - - -?--- - - - in fact - - - - - - yourself, hadn't told her about [Matilda] doing jazz?---Sinead must have passed it on and - - - BLACK DCJ: No, no. [Mrs Courtney] - - -?--- - - - I - I - - - [Mrs Courtney], the question was much simpler?---Okay. You were being asked whether you told her. You weren't being asked something else, so please listen - - -?---Okay. - - - to the question. Right. Go again WINTER, MS: So you, yourself, had never told her about [Matilda] doing any classes at Silhouette Dance Studio?---No, I told Sinead, but she knew because - - - BLACK DCJ: No, no. Don't answer something you haven't been - - -?- --Okay. - - - asked, [Mrs Courtney]?---Okay. I direct you to - - -?---Okay. - - - only answer the questions you are asked. This is not an opportunity to make speeches, is that clear?---Yes. 161 It will be apparent from this exchange that the suggestion that Mrs Courtney was 'mak[ing] speeches', was quite unwarranted. 162 The most extended series of interjections in Mrs Courtney's evidence came in the course of the prosecutor's cross-examination of Mrs Courtney in relation to the critical issue of Mrs Courtney's appreciation of Matilda's physical condition and her responsibility for Matilda's nutrition. 163 As part of that cross-examination, the prosecutor was putting to Mrs Courtney that it was ultimately a parent's responsibility to ensure 91 Trial ts 2784. -- 51 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 52 that their child ate enough. That cross-examination included the following exchange:92 [Mrs Courtney]. I'm not saying you shouldn't respect her decisions. Of course you should, as a parent. But the ultimate responsibility, I'm suggesting, as to whether – as to what she eats and how much she eats should not rely on a twelve-year-old?---You can't actually force somebody to eat – you know, more. 164 At this point, the learned trial judge took over the questioning:93 BLACK DCJ: [Mrs Courtney], just so we're clear, you – you can disagree with what the prosecutor's said. But the actual question – what the prosecutor is saying is that it's the – not the role of a 12-year-old to make a unilateral choice as to how much she eats. Do you agree with that, or do you disagree? Do you say that a 12-year-old should – is completely responsible for determining how much they eat? That's the question you're being asked?---I think – yes. She – she was responsible for determining how much she eat, because she's the one that had to eat it. So – so you – just so we're clear, because I don't want there to be any confusion – you're saying that – that the child – a child of 12 will themselves – should themselves completely decide how much food they eat, and the parent has no role in that?---The parent can't control the child to make them eat more. I'd say - - - Do you understand the question?---Not really. 165 Her Honour's pointed reformulation of the prosecutor's question – reformulated twice, with increasing emphasis – and Mrs Courtney's answer, in the context of the cross-examination as a whole, carried with it a tone of incredulity. 166 When the prosecutor resumed her questions, the learned trial judge again interjected just as Mrs Courtney had begun to answer the question:94 And therefore, you can't just leave it to your child to make the decisions themselves about what they ate and how much they ate?---I tried to always - - - BLACK DCJ: No, no. Don't – don't tell us what you did. Just – you're being asked a question about – it's – just listen to the question and answer that question. 92 Trial ts 2630. 93 Trial ts 2630. 94 Trial ts 2631. -- 52 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 53 167 Shortly thereafter the following exchange occurred:95 WINTER, MS: But what I'm suggesting to you, [Mrs Courtney], is that as a parent you have an obligation not just to give your child what they want, but what they need?---Well, how do you quantify the need? Well, what they - - - BLACK DCJ: But do you agree with that as a proposition or disagree? ---Yes, I – yeah. Sorry, do you agree or disagree?---Sorry - - - Just ask – put the proposition again. And I want you to – just so there's no confusion, Ms Winter, I think it might be helpful – put the proposition and then say to the witness, 'Do you agree with this or do you disagree?' 168 As noted at [150] above, the form of cross-examination suggested (or directed) by the learned trial judge in relation to Mrs Courtney was contrary to the approach that her Honour took to prosecution witnesses. 169 Shortly after the following exchanges occurred:96 [Mrs Courtney], do you accept now, sitting here today, that [Matilda] did not, in fact, have a great diet?---No. Do you accept that it wasn't a sufficient diet?---I – I don't know. BLACK DCJ: Sorry, what was the answer?---I don't know. WINTER, MS: Do you accept now that [Matilda] was, in fact, severely underweight, and that she was that way for many years?---She was underweight. Yes. BLACK DCJ: No, no. Do you accept she was severely underweight or not?---Yes. WINTER, MS: Do you accept that, for years, her growth was stunted? ---No, cos she was growing. Do you accept that the reason for being severely underweight and the reason for her stature was due to inadequate nutrition?---She was only a few centimetres shorter than me. BLACK DCJ: No, no. That - - -?---I wouldn't consider that stunted. - - - you – no, you – that's not the answer?---Okay. 95 Trial ts 2633. 96 Trial ts 2634 - 2635. -- 53 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 54 You – you're - - -?---Sorry. You're – can I just - - -?---Yeah. - - - say this, please, [Mrs Courtney]? You do have an English degree. I'm comfortable that you do understand English. Therefore, when the prosecutor puts a question to you, you need to answer that question. Or if you don't understand it, you can tell the prosecutor you don't understand it. But I will not allow you to answer a different question. All right? THE WITNESS: Okay. BLACK DCJ: All right. And I don't want to have to tell you off because it's not fair on you and not fair on your lawyer if I do so. But I need you to answer the question. So, put it again please, Ms Winter. WINTER, MS: Thank you, your Honour. [Mrs Courtney], do you accept now that the reason that [Matilda] was severely underweight for years, and the reason for her physical stature, was due to inadequate nutrition?---I didn't know she was severely underweight - - - BLACK DCJ: Do you accept now that that was the reason, yes or no? - --Sorry. Ask it again? WINTER, MS: So, sitting here today, do you accept that the reason that [Matilda] was severely underweight for many years, and the reason her physical stature was the way that it was, was due to inadequate nutrition? You can agree or disagree?---I disagree. BLACK DCJ: I can't hear you?---I disagree. You disagree. Okay. 170 This exchange brings together a number of the features of the learned trial judge's interjections in Mrs Courtney's evidence. 171 First, the interjections were not requested or invited by the prosecutor. 172 Secondly, her Honour insisted on 'yes or no' answers, in circumstances in which Mrs Courtney had sought to qualify her answer in some way. It will be apparent that an interjection by a trial judge, that commences with 'No, no' and then insists on a particular answer, is likely to have an adverse impact both on the witness and on the jury's impression of the judge's attitude to the witness. -- 54 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 55 173 Thirdly, the learned trial judge's sardonic (even sarcastic) reference to Mrs Courtney having an English degree can only have conveyed to the jury that Mrs Courtney was being evasive in her answers and was deserving of criticism. Even in circumstances in which it is necessary to admonish a witness for not answering a question, it is never appropriate for a trial judge to resort to sarcasm.97 174 Finally, in this particular instance, Mrs Courtney was interrupted and chastised for not answering a question which had imbedded within the question a premise that Mrs Courtney did not accept. It was clear, for example, that Mrs Courtney did not accept that Matilda's growth was stunted. The next question that she was asked, however, had embedded within it the premise that Matilda's growth was stunted ('the reason for her stature'). Mrs Courtney's response, not unexpectedly, was to again deny the premise embedded in the question ('She was only a few centimetres shorter than me'). Properly understood, therefore, Mrs Courtney was attempting to address the question. In those circumstances, not only was the learned trial judge's correction of Mrs Courtney conveyed otherwise than in impartial terms, the correction was misplaced and unwarranted. 175 Again, we will return to the impact of the learned trial judge's interjections later. Ground 2 – the decision whether to call Matilda Courtney 176 Finally, in the context of ground 2 of Mrs Courtney's conviction appeal, it is necessary to address the approach taken by the learned trial judge as to whether Matilda Courtney would, or should, be called to give evidence. 177 As noted above, at the time of trial Matilda was an adult. She was 20 years of age and attending university. There was no evidence to suggest that she was not competent to give evidence. 178 On 30 October 2024, the learned trial judge first raised the question as to whether Matilda would be called to give evidence. It is to be recalled that, on that day, Mrs Courtney was not present due to her illness. In the absence of Mrs Courtney, the learned trial judge raised with Mrs Courtney's counsel the prospect that he might call Matilda to 97 See also at trial ts 2758: '[Mrs Courtney], that's a really good example of you not answering the question'. -- 55 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 56 give evidence. Her Honour said that she had 'serious concerns' about that and:98 So I encourage you that, if it is the intention of either of you to call [Matilda], to raise it with me, because there are real issues whether I'll allow it. And, if so, how I'll allow it. And I have been working my way through the provisions, just in case. 179 The learned trial judge did not identify any legal basis upon which she would not 'allow' the defence to call Matilda as a witness. 180 The issue was next raised by her Honour on 6 November 2024, in the absence of the jury, while Mr Courtney was in the course of his evidence-in-chief. In light of the fact that the trial had run over its estimated time her Honour said:99 I would be very grateful for each of the two defence counsel to give me as much information as they believe they are able to give, of course recognising both have a right not to divulge any particular information at that time. So I make it clear, I am not forcing either of you to tell me anything. 181 Curiously, while the learned trial judge's recognised that the accused were not obliged to divulge information, her Honour almost immediately said:100 I am going to make a programming direction and that is as follows. In the event that the defence intends to call [Matilda Courtney], then I'm going to set a time by which I must be informed of that. Having taken some time to peruse the Evidence Act, it is my view that there needs to be a grounds rule hearing if [Matilda] is to be called, and there may need to be some psychological and psychiatric assessments done before she is to be called. When is it you would like to inform me of that matter? I'm going to set you a day by which you must tell me. 182 Her Honour later said:101 Having regard to the allegations made against your clients and having regard to the question of coercive control that arises if those allegations are true – and appreciate these are untested allegations – at the moment – I'll hear from the State in due course. 98 Trial ts 1166 - 1167. 99 Trial ts 1811. 100 Trial ts 1812. 101 Trial ts 1814 - 1815. -- 56 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 57 But I take the view that [Matilda] will need to be independently assessed to determine whether she is, in fact, capable of giving evidence and what special measures, if anything, ought to be given to assist in that process. In other words, whether I should make her a special witness, whether she should give evidence from a room where she should have a support person. Having regard to the allegations against your clients, I'm not satisfied that your clients can make that decision on her behalf, and despite the fact that she is technically an adult, on the basis of the evidence that I've heard so far, there is reason for the court to have concerns as to whether she has the capacity of an adult. So I raise all of that now. I suggest you confer with the State, when it's appropriate for you two to do so. What I'm going to do is list this matter for a grounds rule hearing on Friday afternoon. We'll list it at something like 4 o'clock, so we'll do it later in the day. And we'll deal with those issues then in terms of what orders I ought make about that. I will have my staff, in the meantime, make some inquiries as to what availability there may be for an assessment to be made of [Matilda]. 183 The matter was next raised by the learned trial judge on 8 November 2024. Her Honour set out, at some length, her preliminary views as the prospect of Matilda giving evidence. Her Honour characterised the issue was 'the capacity of the alleged abuser of a child being permitted to call that child, who is now an adult'.102 In that context, her Honour stated that she had sent an email to the parties raising a number of questions. Not being on the transcript, those questions were not recorded, although their tenor may be discerned from counsel's responses, which included whether Matilda should be assessed before giving evidence and whether the accused's bail could be revoked during her evidence. 184 The prosecutor, Ms Winter, submitted that there was no power for the learned trial judge to order that Matilda be the subject of an assessment. The learned trial judge responded that the 'question is whether I make it conditional on [Matilda] giving evidence that she agree to be assessed as a special witness'. Ms Winter replied that, 'I'm not sure if your Honour has the power to do that either', later saying:103 The reality is, [Matilda] is an adult now; she wasn't then. And we simply don't know what her position is, in terms of whether she fits the criteria as a special witness. 102 Trial ts 2184. 103 Trial ts 2188 - 2190. -- 57 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 58 185 Ms Winter agreed that her Honour had the power to declare a witness a special witness, but continued with the following exchange:104 WINTER, MS: I agree that your Honour has that power. But again, I think the foundation of being able to exercise that power is up to date, current information that - - - BLACK DCJ: Yes. But what if I don't get give[n] any and the defence simply say, 'Well, we just want to call her, and her mother's spoken to her and she's happy to give evidence'? Are you saying I should just accept that on face value? WINTER, MS: I think in the absence of contemporary evidence to the contrary, we have no choice. 186 Later, in exchanges with Mr Perrella, the learned trial judge said:105 I'm not going to make a decision till Monday morning, let me be clear. You will all appreciate I'm very, very troubled by this, extremely so, and I'm trying to make it work, but I am very – until the trial started, I would never have expected her to have been called, so it's taken me by surprise. I'm shocked that it's happened, but it's happened and I need to deal with this in a way that is proper, and so that's what I'm trying to do, but I don't have easy answers. 187 As to whether Mrs Courtney might consent to Matilda giving evidence from another room, Mr Perrella advised her Honour that he had met with Matilda several times and that Matilda had made it very clear that she wished to give evidence in open court. He said:106 I've readdressed that with her recently. She's adamant she wants to give evidence in open court. She wants the jury to see her face to face and she wants to be heard. 188 When Mr Perrella confirmed that Matilda's view accorded with his client's instructions, the learned trial judge raised the spectre that calling Matilda would be an aggravating factor for the purposes of sentence. The following exchange occurred:107 BLACK DCJ: … If [Matilda] is called, it is because your client has instructed you to call her - - - PERRELLA, MR: No, sorry, your Honour. 104 Trial ts 2191. 105 Trial ts 2194. 106 Trial ts 2203. 107 Trial ts 2203 - 2204. -- 58 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 59 BLACK DCJ: - - - and to get her to give evidence. … BLACK DCJ: That your client has instructed you to call her daughter and to give evidence to assist your client in her defence at this trial - - - PERRELLA, MR: Correct. BLACK DCJ: - - - and that would be a matter that I would obviously take into account in assessing all matters relevant to sentence at that time. 189 Mr Perrella also addressed the issue as to whether bail could be revoked. He submitted that a bail condition could be put in place that Mr and Mrs Courtney were not to have contact, or be at home together, with Matilda while she was giving evidence.108 In relation to that issue, the prosecutor submitted that she was 'not asking for their bail to be revoked, but … asking that consideration to be – is given in terms of imposing conditions'.109 190 Following submissions, the learned trial judge gave the following ruling:110 Having regard to the submissions that have been made by each counsel and despite, can I be blunt, my extreme and considerable misgivings about allowing the alleged victim of serious abuse by her parents to be called into open court to give evidence on behalf of one of her two alleged abusers, I nonetheless consider that in the circumstances, I don't have a basis upon which I can compel her to give evidence in any way other than like any other witness. I say that bluntly with enormous misgivings and I would request that both defence counsel speak to their clients to see whether they will agree to [Matilda] being given – giving evidence from a closed room, but if they're not willing to, then I don't think in the end I can do much about that unless [Matilda] requests it, given she's a 20-year-old girl. I have thought very carefully and listened to each of the three lawyers, as I say, I respect all of your views in relation to bail. I will not make a final decision yet, but I will say this. It is my present view and I'm willing to wait and see what happens when she is called, if she's called; my present view is that I will remand both of the accused in custody while [Matilda] is under cross-examination. So that is, once both lawyers have finished asking 108 Trial ts 2206. 109 Trial ts 2208. 110 Trial ts 2208 - 2209. -- 59 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 60 her questions – I say, 'Cross-examination,' meaning by the prosecutor, not by Mr Paxman. So if the court adjourns overnight at a time when [Matilda] remains under cross-examination, then both Mr and Mrs [Courtney] should assume that they will spend that night in custody and their bail will be revoked for that night or nights, depending how long it takes. I am open to reconsidering it, if having viewed the evidence of [Matilda], things change, but it is best that people are prepared for the worst case or likely scenario. So I am trying to give advance notice that both accused should prepare themselves for going into custody once [Matilda] is under cross-examination in the event that we have to adjourn overnight. So that is my ruling at this stage. 191 At approximately 3.00 pm on 14 November 2024, after Mrs Courtney had completed her evidence, Mr Perrella called Matilda Courtney to give evidence:111 PERRELLA, MR: Yes. I call [Matilda Courtney]. BLACK DCJ: All right. Now, can I ask, Ms Winter, are there any matters you need to raise with me in the absence of the witness – I mean in the absence of the jury? I apologise. WINTER, MS: No, your Honour. BLACK DCJ: And are there any difficulties with the witness taking the oath as far as you're aware? WINTER, MS: Not that I'm aware of, your Honour. BLACK DCJ: Not that you're aware of? All right. Mr Perrella, is there any reason why the witness cannot take the oath? PERRELLA, MR: That's her preference, the oath. BLACK DCJ: And can I confirm that the witness's preference is to give evidence in open court? PERRELLA, MR: Yes, it is. BLACK DCJ: And that an opportunity's been given for her to give evidence outside of - - - 111 Trial ts 2915. -- 60 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 61 PERRELLA, MR: It has. BLACK DCJ: - - - open court? PERRELLA, MR: Yes. BLACK DCJ: And do you have any difficulty with me explaining to her that at any point in time, she can ask to (inaudible) room if she wishes to? PERRELLA, MR: Yes. But if there's any discussion like that, perhaps that could be done in the absence of the jury. 192 The above exchange occurred in the presence of the jury. The learned trial judge went on to tell the jury that:112 [Matilda] was obviously a child at the time of these relevant matters. As I understand it, she is now an adult. Accordingly, the – there is an opportunity where a witness was a child at the time – any witness who's been a child for me to consider whether they should give evidence out of court. 193 The jury retired a short time later. 194 Shortly after reconvening, in the absence of the jury, the learned trial judge said the following:113 I've asked my usher to provide me by this email. It says as follows – and I'm not going to read all it, but my usher has advised me that when he went to get [Matilda] she was in a room with a support person. [Matilda] was crying a lot. She said she was a ball of nerves. She said there was some sort of prayer or words of encouragement or some – okay, but this is the observation that she appeared to be extremely nervous. She was overheard by my usher saying, 'I can't do this. I'm so weak. I look like a child'. The support person responded by saying, 'You look beautiful, you can do this, you're strong.' I am concerned, based on the information that I have so far, that [Matilda] may not volunteering to give evidence, and given that she hasn't been subpoenaed I am concerned that she doesn't potentially grasp the fact that she has a choice in giving evidence. To that end, if she is to be called, I am going to advise her that she has a right to independent legal advice. It seems to me there are three options in that respect. One is that a Legal Aid lawyer may be able to be made available to her. Secondly, Law Access may be able to provide legal 112 Trial ts 2916. 113 Trial ts 2918. -- 61 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 62 advice her. Or thirdly, I can call on the Western Australian Bar to see if there is a barrister who is prepared to give her some advice. 195 After further exchanges, Mr Perrella took the opportunity to take further instructions. When he returned, Mr Perrella said:114 Thank you for that opportunity. The situation is that [Matilda's] not in a position to make a decision to give evidence, and in the circumstances, I do not propose to call her. 196 When the jury returned at approximately 4.00 pm, Mr Perrella said:115 Yes, your Honour. I'm instructed not to call [Matilda Courtney] as a witness, so I will not be calling her as a witness. Ground 2 of Mrs Courtney's conviction appeal – consideration 197 We commence with ground 2 of Mrs Courtney's conviction appeal. As noted above, Mrs Courtney contends that the combined effect of the learned trial judge's decision to proceed in Mrs Courtney's absence, her Honour's interruptions in the course of Mrs Courtney's evidence and her interference in the conduct of the defence case in relation to the decision as to whether to call Matilda Courtney as a witness were such as to have resulted in an unfair trial. 198 As the principles discussed earlier make clear, that is a question of fact and degree, and must be determined by reference to the record of the trial as a whole, and not by a piecemeal consideration of particular decisions or interventions by the trial judge. 199 We regret to say that, taken together, the matters identified by Mrs Courtney, lead us to the unavoidable conclusion that the conduct of Mrs Courtney's trial constituted such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice. 200 While we will address each of those matters in turn, we emphasise that none of them can be considered in isolation. Rather, it is the cumulative effect of the learned trial judge's conduct, seen in the context of the trial as a whole, that leads to the conclusion that Mrs Courtney's trial was unfair. 201 We have already addressed, in the context of ground 1 of Mrs Courtney's conviction appeal, the substantive unfairness of the 114 Trial ts 2922. 115 Trial ts 2930. -- 62 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 63 learned trial judge's decision to proceed with the trial in Mrs Courtney's absence on 31 October and 1 November 2024, at a time when Mrs Courtney was not fit to proceed. In addition to that substantive departure from the requirements of a fair trial, the circumstances in which those decisions were made were also such as to cause a fair- minded lay observer to reasonably apprehend that her Honour might not have brought an impartial and unprejudiced mind to the issues that were relevant to the conduct of the trial at that point. 202 This can be seen most clearly in the fact that the learned trial judge appeared to have predetermined to remove Mrs Courtney from the courtroom without reference to the parties. As noted above, her Honour had made arrangements with 'court staff' and 'security' for Mrs Courtney to be placed in another room before counsel for Mrs Courtney had even made an adjournment application. Having done so, her Honour did not raise such an arrangement with either counsel before making her 'ruling'. Indeed, her Honour did not seek the State's submissions in relation to whether there should have been an adjournment, which the State did not oppose. Each of those circumstances, combined, support the inference that the arrangements (which were not authorised by the Criminal Procedure Act in any event) were a fait accompli. 203 Clearly, the prosecutor recognised the likely adverse effect on the fairness of the trial from what was proposed by her Honour. It is no small thing for a prosecutor to submit following a ruling, as Ms Winter did, that the State had 'grave concerns about continuing to proceed in terms of ensuring that [Mrs Courtney] has a fair trial'. And yet, the learned trial judge's response ('exactly') was something of a non sequitur. Her Honour had, after all, just decided to proceed, and to do so in Mrs Courtney's absence. Notwithstanding the learned trial judge's observation that she 'did not wish to in any way let the desire for expediency of this trial overwhelm the need for the accused to have a fair trial', a fair-minded lay observer might reasonably apprehend that this is precisely what occurred. 204 This appearance would have been reinforced the following day when the learned trial judge made an almost identical observation ('the efficiency of the trial will never override the right to a fair trial') and encouraged Mr Perrella to make another application. When Mr Perrella did make another application, during which her Honour said that she had observed Mrs Courtney run out of the remote room as she had run out of vomit bags, Mr Perrella submitted that Mrs Courtney 'looked -- 63 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 64 dazed and had little idea of what was going on'. Despite this the learned trial judge again rejected the application, without seeking submissions from the State. In the circumstances, her Honour having encouraged the application, it is, in our respectful view, difficult to see what more Mrs Courtney or her counsel could have done to impress upon her Honour the obvious need for an adjournment. 205 These interactions, of course, occurred in the absence of the jury. To that extent, the interactions could not directly affect the jury's determination of the factual issues in the trial. Nevertheless, they remain relevant to the assessment as to whether Mrs Courtney had a fair trial. 206 The learned trial judge's interventions in Mrs Courtney's evidence, and in particular in her cross-examination, however, did occur in the presence of the jury. The significance of those interventions is therefore to be assessed, not only by reference to the apprehension of a fair-minded observer, but by their potential impact upon the jury. 207 While some interventions in a witness' evidence may be inevitable, the sheer number of interventions in Mr and Mrs Courtney's evidence, particularly when compared to any interventions in the evidence of the prosecution witnesses, could not have gone unnoticed by the jury. It would, in our view, have been obvious to a fair-minded observer that the approach taken by the learned trial judge to Mr and Mrs Courtney's evidence differed from that taken to the other witnesses. 208 The preponderance of her Honour's many interventions in Mrs Courtney's evidence were during cross-examination by the State (89 out of a total of 153 interventions), almost all of which were critical of Mrs Courtney, or assisted the State prosecutor. Those critical interjections concerned crucial issues in the trial. Given that Ms Winter evidently neither required, nor asked for, such assistance, in our view, the interventions as a whole were such as to create the impression that the learned trial judge had identified herself with the prosecution. 209 Of all of her Honour's interventions in that cross-examination, in our assessment, only a very few of them could arguably be said to have assisted Mrs Courtney (one of which was to allow her to finish a question,116 and the other asked Ms Winter to reframe a question).117 116 Trial ts 2839. 117 Trial ts 2889. -- 64 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 65 Even accepting that a small number of interventions could be characterised as neutral or favourable to Mrs Courtney, those interventions were in stark contrast to the interventions in which the learned trial judge emphasised the prosecution case118 or implied that Mrs Courtney was being deliberately obstructive or evasive.119 Those interventions, moreover, were not in our view justified or warranted by the circumstances. 210 Not only, in our view, were her Honour's interventions in Mrs Courtney's evidence such as to suggest to the jury that Mrs Courtney was not to be believed in relation to critical issues in the trial, they would also inevitably have affected Mrs Courtney herself, and her ability to properly answer the questions. For example, as summarised above,120 one of the most prejudicial interjections by the learned trial judge occurred when Mrs Courtney was legitimately attempting to deny the premise embedded in a question. Clearly, a witness who is pointedly admonished, in the presence of the jury, for a legitimate response to such a question is more likely to be cowed when faced with further questions that may call for a more nuanced answer than 'yes' or 'no'. In those circumstances, the witness' answers may not accurately represent their actual evidence. Paradoxically, her Honour recognised this in relation to prosecution witnesses,121 but took a different approach to Mr and Mrs Courtney. 211 Finally, the learned trial judge's repeated interventions in the defence decision whether to call Matilda to give evidence, in our view, were an additional matter that would have led a fair-minded lay observer to reasonably apprehend that her Honour might not have brought an impartial and unprejudiced mind to the issues in the trial as a whole. 212 The learned trial judge appeared to regard the prospect that Matilda Courtney might give evidence in the trial as an exceptional or unusual circumstance. No doubt the prospect that Matilda might give evidence would be a matter to be approached with some sensitivity and it was appropriate for the trial judge to enquire as to the best manner in which that might occur, if any party were likely to call her as a witness. The reason for that, of course, is that it was in relation to Matilda that the allegations of neglect against Mr and Mrs Courtney were made. 118 See [164] - [165] above. 119 See [160] - [161], [173] above. 120 See [169] - [174] above. 121 See [150] above. -- 65 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 66 213 Nevertheless, it should be clear that the prospect that a child the subject of alleged neglect might give evidence in relation to such an allegation is not exceptional or unusual at all. It is commonplace for adults to give evidence in court in relation to abuse, including serious sexual abuse, suffered by them when they were children. Indeed, it is commonplace for children to give such evidence when they are still children. That includes cases, such as the present case, where there are allegations under the Children and Community Services Act 2004.122 214 Of course, in most such cases, the adult or child giving evidence is called as a witness for the prosecution. That is because it is a basic obligation of the prosecution to 'call all available material witnesses unless there is some good reason not to do so'. In that context, the fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.123 In such a case, of course, the accused is entitled to cross-examine the adult or child in relation to the allegations of abuse or neglect. It is then the responsibility of the trial judge to ensure that such cross-examination is fair and not unduly annoying, harassing, intimidating, offensive or oppressive.124 215 In the ordinary course, therefore, it would have been expected that the prosecution would have called Matilda Courtney to give evidence in this case, and for her to be cross-examined by counsel for Mr and Mrs Courtney. Alternatively, as often occurs in other cases, the State could have simply called Matilda so as to make her available for cross-examination. Neither of those things occurred in the present case, however, for reasons that are not revealed in the transcript of the trial (in saying this, we intend no criticism of the prosecutor, Ms Winter, who the record reveals was scrupulously fair in her conduct of the State case). 216 Nevertheless, the fact remains that the only way in which Matilda Courtney's evidence (which would undoubtedly have been highly relevant) could be placed before the jury was for her to be called by either Mr Courtney or Mrs Courtney. That decision itself would have carried significant forensic risks; counsel for the accused calling her to give evidence would have been confined to asking Matilda non-leading 122 See e.g. The State of Western Australia v TIK [2009] WASCA 122; MAS v The State of Western Australia [2012] WASCA 36; AMS v The State of Western Australia [2012] WASCA 37; PES v The State of Western Australia [2014] WASCA 96; MEN v The State of Western Australia [2020] WASCA 118; KHL v The State of Western Australia [2022] WASCA 122. 123 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [11] (Gaudron & Hayne JJ). 124 Evidence Act 1906 (WA), s 26. -- 66 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 67 questions and she would have been exposed to cross-examination by the prosecutor, who would have been free to elicit evidence (if that were the case) that Matilda was reluctant to give evidence or giving evidence tailored to suit her parents' case. 217 All of which is to make clear that the decision whether to call Matilda Courtney to give evidence was one that required careful and considered reflection, taking into account a wide range of legal and ethical considerations. The important point to make, however, is that that decision was one for counsel, and counsel alone, to make (having appropriate regard to the client's instructions and wishes).125 It was not a decision that could, or should, be made by the trial judge, nor was it a decision in relation to which the trial judge should seek to exercise any influence. 218 In the present case, in the events that occurred, in our assessment, the approach taken by the learned trial judge to the decision of whether to call Matilda Courtney crossed the line from legitimate concern for the manner in which a potential witness might give her evidence into illegitimate interference in counsel's forensic plan or strategy. 219 In that regard, the course of those interventions, from the initial suggestion that 'there are real issues whether I'll allow it', were such as to give a fair-minded observer a reasonable apprehension that the learned trial judge was seeking to influence both Mrs Courtney, and her counsel, in such a way that they would not call Matilda Courtney to give evidence. Her Honour raised a number of obstacles, or disincentives, to that occurring, in circumstances in which it was a matter for counsel, in consultation with Mrs Courtney, as to the forensic decisions that should be made concerning the witnesses to be called in her defence. 220 As in the case of Mrs Courtney's application for an adjournment a week earlier, on 8 November 2024, the prosecutor, quite properly, sought to persuade the learned trial judge that her Honour had no power to make orders in relation to counsel's decision as to whether to call Matilda Courtney. In exchanges with Mrs Courtney's counsel, her Honour expressed personal views as to counsel's forensic decisions that were expressed in highly emotive terms: 'I'm very, very troubled by this, extremely so' and 'I'm shocked'.126 That language can only have 125 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA), r 17.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA), r 42. 126 Trial ts 2194. -- 67 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 68 conveyed to a fair-minded observer, and to the accused, that her Honour had a strong preference that Matilda Courtney not be called to give evidence. 221 That preference was reinforced by two most unfortunate suggestions that occurred in the exchanges that followed. First, her Honour expressly indicated that, if Matilda was called to give evidence, it would 'obviously' be taken into account in relation to sentence if Mrs Courtney were convicted. Secondly, notwithstanding that Ms Winter had submitted to the contrary, her Honour said that 'both accused should prepare themselves for going into custody once [Matilda] is under cross-examination'. Given that her Honour gave no reason why the issue of bail could not be addressed by appropriate conditions (as suggested by all of the parties), those suggestions by the learned trial judge can only have been received by Mrs Courtney (and her counsel) as a strong discouragement of Matilda Courtney being called to give evidence. 222 Even when Matilda Courtney was ultimately called to give evidence, in light of the exchanges that had occurred in the absence of the jury, the learned trial judge's questions of Ms Winter suggested that her Honour maintained the preference that Matilda not give evidence.127 When Ms Winter, in effect, held her ground in the presence of the jury, the matter was taken up again with Mr Perrella. Again, a fair-minded lay observer might reasonably apprehend that her Honour was endeavouring to influence the decision whether to call Matilda to give evidence. 223 The final exchanges with the learned trial judge, after her usher had been to see Matilda Courtney, with the benefit of hindsight, also had a number of unfortunate features. By that stage, her Honour was necessarily proceeding on the basis of a report from her usher as to Matilda's condition, which tended to confirm her Honour's pre-existing view that there was something untoward about Matilda giving evidence. That view, in turn, led her Honour to advise the parties that she was going to offer Matilda independent legal advice when she was called (presumably in the presence of the jury). That prospect, itself, gave rise to additional forensic, or strategic, obstacle to the decision whether to call Matilda (in addition to the prospect of Mrs Courtney 'going into custody' once Matilda was in evidence and the aggravating effect of that decision on any ultimate sentence). 127 See [191] above. -- 68 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 69 224 In saying this, we do not doubt the sincerity of the report given by the learned trial judge's usher, as it was communicated in open court. The difficulty, however, was that, at that critical stage of the trial, it was all that the parties had to go on. As it happens, Matilda Courtney swore an affidavit for the purposes of Mr Courtney's appeal against conviction, which put a different complexion on the events that afternoon and of her willingness to give evidence (which we will address later). Be that as it may, it was necessary for counsel, and Mrs Courtney, to reconsider the decision to call Matilda Courtney in challenging circumstances. Given the time of day of the events in question, again, with the benefit of hindsight, it may have been preferable to defer that decision to the following morning. The decision was nevertheless taken not to call Matilda to give evidence and the jury were so advised. 225 Having regard to all of the exchanges that occurred, a fair-minded lay observer might reasonably apprehend that the cumulative effect of the views expressed by the learned trial judge in relation to the decision whether to call Matilda Courtney to give evidence, were intended to, and in fact did, influence the final decision not to call Matilda to give evidence. In all of the circumstances, in our view, the learned trial judge's interventions in relation to that issue had the effect of interfering with counsel's forensic strategy and decisions. 226 Each of these matters, taken together – her Honour's proceeding with the trial while Mrs Courtney was unfit, her interventions in Mrs Courtney's evidence and her interference with counsel's decision whether to call Matilda Courtney – lead us to conclude that the conduct of the trial, as a whole, was such as to no longer justify the characterisation of a 'fair trial' (and was thereby a miscarriage of justice). 227 Before addressing, whether this unfairness could have been remedied by the learned trial judge's directions to the jury, we will address ground 2 of Mr Courtney's conviction appeal. Ground 2 of Mr Courtney's conviction appeal – consideration 228 By ground 2 of his conviction appeal, Mr Courtney also contends that the learned trial judge's interventions resulted in an unfair trial. Mr Courtney relied upon the cumulative effect of her Honour's intervention in both his own evidence and in that of Mrs Courtney. -- 69 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 70 229 We have already set out our conclusions in relation to her Honour's interventions in Mrs Courtney's evidence, including that the interventions as a whole were such as to create the impression that the learned trial judge had identified herself with the prosecution. We accept that, given the nature of the issues in the case and the common themes in Mr and Mrs Courtney's defences, that an apprehension of bias in relation to one of the accused was likely to have an adverse effect on the other accused. This is particularly the case in relation to those interjections that emphasised substantive aspects of the prosecution case.128 In all of the circumstances, therefore, in our view, her Honour's interventions in Mrs Courtney's evidence contributed to the prejudice to Mr Courtney. 230 In relation to the interventions in Mr Courtney's evidence, specifically, the learned trial judge's interventions were similar in effect to those in relation to Mrs Courtney's evidence. Indeed, in terms of the sheer number of interventions (at least 160 in cross-examination and re-examination), the interventions in Mr Courtney's evidence were more frequent. While an enumeration of the number of interventions is, of course, not conclusive, the number of interventions in Mr Courtney's evidence reflected a sustained pattern of conduct that was not evident in any prosecution witness. 231 As to the content of those interjections, in our assessment, taken as a whole, they clearly conveyed the impression that the learned trial judge was impatient with Mr Courtney and was focussed on simply completing his evidence. Her Honour's almost percussive repetition of 'No', in response to Mr Courtney's answers, was apt to give the appearance that her Honour was dissatisfied with the form of Mr Courtney's answers and that he was being obstructive in his evidence. The cumulative effect of those interjections was such as to unfairly undermine Mr Courtney's credibility before the jury. 232 In all of the circumstances, while the interventions in relation to Mr Courtney did not include some of the more prejudicial exchanges that occurred in relation to Mrs Courtney (particularly concerning the decision whether Matilda Courtney should be called to give evidence), we are satisfied that, taken with the prejudicial impact upon him of the interventions in Mrs Courtney's evidence, her Honour interventions were such that the trial, as a whole, was unfair (and thereby involved a miscarriage of justice). 128 See e.g. at [164] - [165] above. -- 70 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 71 Ground 2 of Mr and Mrs Courtney's conviction appeals – directions 233 It remains to consider, in relation to ground 2 of each of Mr and Mrs Courtney's conviction appeals, whether the prejudice to Mr and Mrs Courtney caused by the learned trial judge's conduct of the trial was capable of repair in her Honour's summing up, and if so, whether it was repaired. 234 It is apparent that earlier in the trial the learned trial judge recognised that her interventions in the evidence, particularly of Mrs Courtney, were having a negative impact on the defence case.129 During the course of Mrs Courtney's evidence, for example, her Honour said:130 I don't wish you to interpret anything I say or do, even if I sound a bit cranky, which let's face it, I'm human, like all of you, and sometimes I get tired, and sometimes I get frustrated. That should not in any way impact your view of the credibility of each witness that you hear. You should not take my interjections as being anything other than me trying to keep this trial on track. I don't have a view about the case. I can't have a view about the case because it's not my job. 235 Unfortunately, even that observation followed shortly after her Honour had said to Mrs Courtney that she had to 'make sure that evidence isn't given inadvertently by a witness that would cause this trial to fall apart', a suggestion not made to any other witness.131 In context, her Honour's observations were capable of exacerbating, rather than mitigating, the extent to which Mrs Courtney (and by extension Mr Courtney) were singled out for causing her Honour to be 'cranky' or 'frustrated'. 236 In her Honour's directions to the jury, the learned trial judge gave the following 'corrective' direction:132 I've told you a few times about this, but I'm just going to remind you again. We all know this trial started off for about seven, eight days, and we all know that it went way overtime. We all know that people are not perfect, including judges. And at times, I got grumpy and frustrated and wanted to bang lawyers' heads together and wanted to squeeze witnesses to make them answer things the way I wanted to answer, and quickly. 129 Trial ts 2638. 130 Trial ts 2757. 131 See [157] above. 132 Trial ts 3353 - 3354. -- 71 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 72 And you may have got the impression that I am a little impatient. I think it would be fair to say I am. Therefore, from time to time, I intervened in this trial in all sorts of ways to try and keep it on track and keep it going. I emphasise to you that you should not in any way, shape or form take any of that as being an indication as to my personal views of the witnesses, their credibility, of which cases you should prefer or not prefer. I'd like to think I was equally grumpy to all of them and equally nice to all of them, but the reality – that was at least my intention. So just put to one side any impression you formed about all of those interactions, which are a very normal [part] of a long trial which has gone overtime. To be honest, for what it's worth, I had your interests at heart and my (indistinct). 237 This direction, in our respectful view, could not, and did not, repair the prejudice that had been caused to Mr and Mrs Courtney by the interventions we have dealt with above. 238 First, it failed to recognise that the extent to which her Honour had 'wanted to squeeze witnesses to make them answer things the way I wanted to answer, and quickly' was reflected only in the way in which her Honour treated Mr and Mrs Courtney. It was not true of the prosecution witnesses. 239 Secondly, and relatedly, it was not correct to say, as her Honour sought to convey, that 'she was equally grumpy to all of them and equally nice to all of them'. In terms of the interactions with witnesses, it is clear that those interactions, as a whole, favoured the prosecution witnesses and were to the detriment of Mr and Mrs Courtney. 240 Finally, her Honour's interactions were not 'very normal' for a trial which has gone overtime. On the contrary, the interactions were, in our respectful view, far from normal or usual, even in a trial that has run overtime. The learned trial judge's conduct of the trial as a whole, and her impatience with Mr and Mrs Courtney in particular, could not be justified, or explained, by the frustrations that sometimes attend the management of a difficult trial. To characterise them as 'very normal' served to minimise the significant difficulty that any jury would have had in 'putting to one side' those interactions. 241 In those circumstances, her Honour's directions to the jury could not have cured the prejudice arising from the interventions we have dealt with. In any event, as stated at the outset, criminal justice must not only be done, but must be seen to be done. Where, as in the present case, the conduct of the trial as a whole was such as to lead a -- 72 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 73 fair-minded lay observer to reasonably apprehend that the trial had been unfair, it is unrealistic to suppose that such an apprehension could be dispelled by a direction that it was not intended. In our view, and consistent with the authorities referred to at [70] above, it is unlikely that, by the end of the trial any direction would have been capable of remedying that prejudice. Ground 2 of Mr and Mrs Courtney's conviction appeals – conclusion 242 For the above reasons, we are satisfied that ground 2 of each of Mr and Mrs Courtney's conviction appeals have been established. 243 Nor, in the present case, is there any basis to apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) on the basis that 'no substantial miscarriage of justice has occurred'. 244 As Gageler CJ, Gleeson and Jagot JJ said in HCF v The Queen in relation to a case of reasonable apprehension of bias on the part of a juror or jury:133 If the irregularity gives rise to such a reasonable apprehension, then there has been a 'failure to observe the requirements of the criminal process in a fundamental respect', in that 'the integrity of the trial process' has been undermined. In such event, regardless of any potential effect on the trial, there has been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso. (footnotes omitted) 245 This reasoning applies directly to the irregularities in the present case. The conduct of both Mr and Mrs Courtney's trials involved a failure to observe the requirements of the criminal process in a fundamental respect. As we observed at the commencement of these reasons, the right to a fair trial is the central prescript of our criminal law. Where a trial does not meet that description, as in the present case, there is no room for the Court of Appeal to embark on an assessment as to whether it could be independently satisfied as to the guilt of the accused. 246 In any event, it would be impossible for this Court to make such an assessment, given the centrality of the state of mind of Mr and Mrs Courtney to the proof of the charges, in relation to which the assessment of the credibility and reliability of their evidence was 133 HCF v The Queen [2023] HCA 35; (2023) 280 CLR 596 [7] (Gageler CJ, Gleeson & Jagot JJ; see also [83] Edelman & Steward JJ); Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 [9] (Gageler CJ, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ). -- 73 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 74 crucial. Not having seen and heard the witnesses, this Court would be in no position to make such an assessment in the present case. 247 For these reasons, Mr Courtney and Mrs Courtney's appeals against their convictions for the offences under the Children and Community Services Act 2004 were allowed, their convictions set aside and a retrial ordered. 248 Before leaving the conviction appeals, however, it is necessary to briefly address the remaining grounds of appeal in those appeals. Ground 1 of Mr Courtney's conviction appeal 249 By ground 1 of his conviction appeal Mr Courtney contended that the learned trial Judge erred by refusing counsel's application to discharge the jury after Matilda Courtney failed to give evidence. 250 This ground of appeal relates to an application made by both Mr and Mrs Courtney to discharge the jury following the decision by Mrs Courtney not to call Matilda Courtney to give evidence. Mrs Courtney applied to discharge the jury on the basis that, she having conducted the defence case on the basis that Matilda would be called, the jury might now speculate as to why she had not been called. It is not necessary to address Mrs Courtney's application, or her Honour's ruling in relation to it (which was extremely critical of Mrs Courtney), as it formed no part of Mrs Courtney's conviction appeal. 251 Counsel for Mr Courtney, however, joined in the application to discharge the jury on the basis that Mr Courtney was also prejudiced by what had occurred the previous day. 252 The learned trial judge also rejected Mr Courtney's application to discharge the jury. Her Honour said:134 [I]t seems that any possible prejudice for [Mr Courtney] is almost non-existent, but it was plain to the jury that it was not [Mr Courtney] calling his daughter, it was [Mrs Courtney]. To the extent that I need to direct the jury further on this issue, I will. 253 In support of ground 1, Mr Courtney submitted that the learned trial judge's failure to discharge the jury constituted an error, on the 134 Trial ts 2947. -- 74 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 75 basis that he had conducted his defence on the basis that Mrs Courtney would call Matilda to give evidence. He submitted:135 [Matilda] was the only witness who could give direct evidence to rebut the State's case. The appellant's counsel was in possession of a signed proof of evidence of [Matilda] and, it is clear from the trial transcript, in our submission, that he based his trial strategy on this. 254 In response to the State's submissions on the appeal, as to whether Matilda was voluntarily prepared to give evidence and whether counsel for Mr Courtney in fact had a signed proof of evidence from Matilda, Mr Courtney sought leave to adduce additional evidence in his conviction appeal, in the form of an affidavit sworn by Matilda Courtney on 20 February 2026. 255 In that affidavit Matilda deposed to the circumstances in which she provided a proof of evidence, a copy of which is annexed to the affidavit. She deposed that she wanted to give evidence in her parent's trial and that she was 'not in any way coerced, and I did not feel pressured to give evidence or write the proof of evidence'. 256 In relation to the events of 14 November 2024, Matilda deposed that she did have a 'panic-attack' that afternoon, but that it was not due to pressure to give evidence. Matilda deposed that although her identity had been suppressed, media reporting had effectively identified her and caused her 'profound anxiety'.136 257 Matilda deposed that '[b]y the morning of 14 November, I was already anxious, each day leading up to that day there were more photos and other identifiable information published about me and my parents'.137 In that context it is apparent from the transcript that, commencing on the second day of the trial, the learned trial judge had released to media outlets a number of photographs of Matilda Courtney that had been tendered as exhibits.138 258 Matilda deposed that, at the point that she was called to give evidence she lost control over her anxiety and wanted more time to compose herself, during which time she spoke to Mr Perrella. She continued:139 135 Appellant's Submissions in CACR 17 of 2025 [28] (WAB 13). 136 Affidavit of Matilda Courtney sworn 20 February 2026 [23]. 137 Affidavit of Matilda Courtney sworn 20 February 2026 [26]. 138 Trial ts 445 - 447, 1512. 139 Affidavit of Matilda Courtney sworn 20 February 2026 [37]. -- 75 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 76 It wasn't long before I had composed myself again and [a family friend] and I made our way to the seat outside of the court room. We had been sitting there for some time before Jade, who was [Mr Perrella's] assistant lawyer, came out of the court room and asked me what I was doing there and I wasn't required to give evidence anymore. 259 In light of Matilda Courtney's affidavit, we are satisfied, for the purposes of the appeal, that she was prepared to give evidence at the trial. 260 Nevertheless, we are not satisfied that Matilda's willingness to give evidence demonstrates an error on the part of the learned trial judge in refusing the application to discharge the jury. In particular, it is clear that the basis for the application made to her Honour was not that Mr Courtney was deprived of the benefit of Matilda's evidence. Rather, the application was based on the alleged prejudice to Mr and Mrs Courtney from the risk that the jury would speculate as to why Matilda had initially been called to give, but had ultimately not given, evidence. The learned trial judge concluded that a direction to the jury could adequately guard against that prejudice. Ground 1 of Mr Courtney's conviction appeal did not challenge that conclusion. 261 As to the submission in support of ground 1 of Mr Courtney's conviction appeal – namely that he was, in effect, deprived of the benefit of Matilda's evidence – in our view, no error on the part of the learned trial judge has been demonstrated. 262 First, as we have said, the application to the learned trial judge was not based on the fact that Mr Courtney had been deprived of the benefit of Matilda's evidence, but upon the prejudice of her having been called without ultimately giving evidence. 263 Secondly, as counsel for Mr Courtney readily accepted at the hearing of the appeal, Mr Courtney was not captive to the decisions made by Mrs Courtney in the trial and could have applied to reopen his own case and call Matilda Courtney himself.140 As the evidence from Matilda Courtney adduced on the appeal revealed, she remained ready and willing to give evidence in the trial, notwithstanding the belated decision of Mrs Courtney not to call her. In those circumstances, in the absence of an application by Mr Courtney to reopen his case and call Matilda to give evidence, it is not open to conclude that Mr Courtney suffered any miscarriage of justice by her failure to give evidence. 140 Appeal ts 103. -- 76 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 77 264 For these reasons, leave to appeal on ground 1 of Mr Courtney's conviction appeal was refused. Ground 3 of Mr and Mrs Courtney's conviction appeals 265 Ground 3 of each of Mr and Mrs Courtney's conviction appeals are to the same effect. Those grounds allege that the learned trial judge made a wrong decision on a question of law by admitting inadmissible and unfairly prejudicial evidence from the witnesses Ms Shillington, Ms Doepel, Ms Appleton and Ms Manojlovic-Petrovic. 266 Essentially, ground 3 of each of the conviction appeals relates to evidence given by a number of the lay witnesses as to things that had been said to them about Matilda, or evidence they gave in relation to their concerns as to Matilda's health. In that regard, both Mr and Mrs Courtney submitted that the witnesses gave emotive evidence as to the views they formed in relation to Matilda, including that they were 'horrified'141 at her appearance and that she was 'basically skin and bone'.142 267 There is something to be said for the prejudicial effect of some of the evidence given by the prosecution witnesses, particularly in relation to statements made to the witnesses by third parties. Ms Doepel, for example, gave evidence as to the opinion expressed to her by an unnamed 'top cardiologist in Perth' in relation to Matilda's condition.143 Evidence such as that, which could not be effectively tested, had the real capacity to cause undue prejudice to Mr and Mrs Courtney. 268 The difficulty with ground 3 of Mr and Mrs Courtney's conviction appeals is that it was made clear to the jury that all of the evidence from those lay witnesses as to the things that had been said to them, or evidence they gave in relation to their concerns as to Matilda's health, were expressly lead not for the truth of those matters, but for the purpose of either explaining why the witness had acted in a particular way or, where those matters were communicated to Mr Courtney or Mrs Courtney, because those matters were relevant to Mr Courtney and Mrs Courtney's states of mind.144 269 To that extent, the evidence of the lay witnesses the subject of ground 3 of the conviction appeals was strictly admissible, although the 141 Trial ts 621. 142 Trial ts 621. 143 Trial ts 617 - 618. 144 See e.g. trial ts 3350 - 3351. -- 77 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 78 use to which it could be put was limited. That being the case, the only basis upon which that evidence might have been excluded would have been in the exercise of the court's discretion to exclude the evidence on the basis that its prejudicial effect outweighed its probative value; that is pursuant to the Christie discretion.145 270 At the hearing of the appeal, counsel for both Mr and Mrs Courtney accepted that the learned trial judge was not asked to make a ruling that the evidence that was otherwise admissible for non-hearsay purposes, should be excluded because its prejudicial effect outweighed its probative value. As counsel for Mrs Courtney accepted, 'that argument was never taken in that way and it really should have been'.146 271 In those circumstances, the learned trial judge not having been asked to make, and not having made, a ruling in the exercise of the Christie discretion, her Honour did not, relevantly, make a decision on a question of law. In those circumstances, given that the evidence was admissible (albeit that it may have been prejudicial), it cannot be said that the learned trial judge made a wrong decision on a question of law. 272 For these reasons, leave to appeal on ground 3 of Mr and Mrs Courtney's conviction appeals was refused. (Paragraphs [273] to [331] have been redacted.) Conclusion 332 Orders were made in relation to Mr and Mrs Courtney's conviction appeals on 7 April 2026. We would make the following orders in relation to the sentence appeals. 333 In Mrs Courtney's sentence appeal (CACR 16 of 2025), leave to appeal is refused on grounds 1, 2 and 3. 334 In Mr Courtney's sentence appeal (CACR 18 of 2025), leave to appeal is refused on the sole ground of appeal. 145 R v Christie [1914] AC 545. 146 Appeal ts 109 - 110. -- 78 of 79 -- [2026] WASCA 86 JUDGMENT OF THE COURT Page 79 I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia. JN Principal Associate to the Honourable Chief Justice Quinlan 18 JUNE 2026 -- 79 of 79 --