DAWKINS -v- WA POLICE [2026] WASC 195

[2026] WASC 195 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DAWKINS -v- WA POLICE [2026] WASC 195 CORAM : FORRESTER J HEARD : ON THE PAPERS DELIVERED : 5 JUNE 2026 FILE NO/S : SJA 1032 of 2026 BETWEEN : BENJAMIN LETTS DAWKINS Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE HALL & MAGISTRATE WATT File Number : BUN 6427/2025, BUN 6258/2025, BUN 6259/2025 Catchwords: Criminal law - Single judge appeal - Application for leave to appeal against decision - Whether a refusal to consider a permanent stay of prosecution is a 'decision' within the meaning of s 6 of the Criminal Appeals Act 2004 (WA) -- 1 of 7 -- [2026] WASC 195 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Rules 2005 (WA) Result: Leave to appeal refused Application dismissed Category: B Representation: Counsel: Appellant : No appearance Respondent : No appearance Solicitors: Appellant : In Person Respondent : State Solicitor's Office Case(s) referred to in decision(s): JS v The State of Western Australia [2014] WASCA 177 -- 2 of 7 -- [2026] WASC 195 FORRESTER J Page 3 FORRESTER J: Introduction 1 The appellant in this case lodged an appeal notice on 11 May 2026, applying for leave to appeal against the court's decision, which was articulated as: Refusal to even consider a permanent stay of prosecution. 2 The ground of appeal is framed in the following terms: 1. The Magistrates refused to hear the matter and gave no adequate reasons for not hearing the matter. 3 In this case, I have determined it is appropriate to make a decision on the basis of the documents lodged and without requiring a hearing of the appeal, pursuant to r 60(1)(c) of the Criminal Procedure Rules 2005 (WA) (CPR). This constitutes a 'provisional decision' which must be dealt with in accordance with r 63 of the CPR. 4 In my view, for the reasons which follow, the appeal is not competent and leave to appeal must be refused and the appeal dismissed. Disposition 5 In JS v The State of Western Australia,1 McLure P said at [4]: An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derive solely from the governing legislation, in this case the Criminal Appeals Act 2004 (WA) (the CAA). The CAA covers the field in relation to appeals from statutory offences. (citations omitted) 6 The statutory basis on which the appellant purported to commence this appeal is pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (CAA). The CAA relevantly provides: 6. Terms used In this Part, unless the contrary intention appears — decision, of a court of summary jurisdiction, means any of the following — 1 JS v The State of Western Australia [2014] WASCA 177. -- 3 of 7 -- [2026] WASC 195 FORRESTER J Page 4 (a) a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3); (b) a decision ordering a permanent stay of a prosecution; (c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial; (d) a decision to acquit an accused of a charge; (e) a decision to acquit an accused of a charge on account of mental impairment; (ea) a decision under the Criminal Law (Mental Impairment) Act 2023 section 29 that an accused is fit, or unfit, to stand trial; (eb) an order under the Criminal Law (Mental Impairment) Act 2023 section 37(2)(a) discharging an accused from a charge or a refusal to make such an order; (ec) a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c); (ed) an order under the Criminal Law (Mental Impairment) Act 2023 Part 5 or a refusal to make such an order; (ee) the setting of a limiting term under the Criminal Law (Mental Impairment) Act 2023 section 50(2); (f) a sentence imposed, or order made, as a result of a conviction or acquittal; (g) a refusal to make an order that might be made as a result of a conviction or acquittal; (h) a decision as to costs; (i) a decision made under the Criminal Investigation Act 2006 section 151; Supreme Court means the Supreme Court constituted by a single judge sitting in its General Division. 7. Right of appeal (1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. … -- 4 of 7 -- [2026] WASC 195 FORRESTER J Page 5 (4) Except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction. 7 As indicated above, in the section of the appeal notice lodged by the appellant, he has described the 'decision' appealed against as: Refusal to even consider a permanent stay of prosecution. 8 In the body of the appeal notice, it records that there were in fact two Magistrates whose 'decisions' the appellant seeks to appeal, being the decision of Magistrate Hall on 30 March 2026, and the decision of Magistrate Watt on 4 May 2026. 9 Neither of the decisions of the learned Magistrates constitutes a 'decision' within the meaning of s 6 of the CAA. 10 A refusal to order a permanent stay of prosecution, or a refusal to consider making such an order, is not the same as a decision to order a permanent stay of prosecution, such as to bring the decision within s 6(b) of the CAA. It is only a decision to order a permanent stay which can fall within s 6(b). 11 The sole ground of appeal does not alter the position. The ground alleges that the learned Magistrates refused to hear the matter, and gave inadequate reasons for the refusal. This does not bring the matter within any of the matters which constitute a 'decision' pursuant to s 6 of the CAA. 12 Neither of the decisions of the learned Magistrates which the appellant seeks to appeal constitute a 'decision' within the meaning of s 6 of the CAA. 13 The appellant has lodged an affidavit in support of an application for an extension of time in which to appeal. In that affidavit, the appellant deposed: 1. On 30/3/26 the presiding Magistrate refused to consider my application for a permanent stay/abuse of process. I was very surprised that he refused to look at the false charges which cannot possibly succeed (eg. I am charged for emails that only went to my wife's lawyer. The Magistrate refused to discuss this and dismissed my form 6 application. 2. In early April 2026 I had a detailed look at the disclosure and realised that there was no statement from the victim alleging 'intimidation' with 'actual intimidation' being an essential element of the offence of stalking in this case. -- 5 of 7 -- [2026] WASC 195 FORRESTER J Page 6 3. On 7/4/26 at the trial allocation date I mentioned to the presiding magistrate that the there was no statement alleging 'intimidation' and the Magistrate said words to the effect of 'well if you put in a form 6 then that charge will be discontinued'. Rather than appealing the --- dismissal I felt I was encouraged to put in another form 6 which I did. 4. The second form 6 was then heard on 4/5/26 however rather than consider it the presiding magistrate adjourned it to the trail [sic] date in October. This was unacceptable because by this stage I had added to my form 6 and objection to other evidence such as the incident report that falsely states that I have threatened to harm/kill my family and the victim. It is essential that false and fabricated evidence such as this is excluded well before the trial, it is highly prejudicial and inflammatory, refusing to exclude this evidence present a real problem for me. Not to mention that charges for sending emails to my wifes [sic] lawyer only is a very dangerous injustice, I continue to email my wifes [sic] lawyer through the family court proceedings and face jail as a schedule 2 offender if the police again misinterpret that as a breach. 5. I was confident in submitting the second form 6 but the fact that it was adjourned means I am now a week late in appealing the first form 6, 1 think it is in the interests of justice that I be allowed to appeal the first form 6 as well as the second one. This affidavit is in support of my appeal being accepted out of time for the first form 6. 14 It is apparent from the affidavit that the appellant seeks to appeal the determinations of the learned Magistrates not to entertain the appellant's application for the prosecution to be stayed on the basis that he contends the prosecution cannot succeed, and that some evidence in the case is false. 15 Neither the ground of appeal nor the affidavit discloses that there has yet been a 'decision' in the relevant proceedings within the meaning of s 6 of the CAA. 16 The appeal is not competent. Accordingly, leave to appeal must be refused and the appeal dismissed. 17 Pursuant to r 63 of the CPR, this provisional decision must be served on the parties. Unless a Form 25 is lodged within five working days of service, this decision will become final. -- 6 of 7 -- [2026] WASC 195 FORRESTER J Page 7 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CA Associate to the Hon Justice Forrester 5 JUNE 2026 -- 7 of 7 --