NEGASH -v- WA POLICE [2026] WASC 206

[2026] WASC 206 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : NEGASH -v- WA POLICE [2026] WASC 206 CORAM : STRK J HEARD : 4 AUGUST 2025 & 29 MAY 2026, WITH SUPPLEMENTARY SUBMISSIONS FILED ON 8 MAY 2026 DELIVERED : 29 MAY 2026 FILE NO/S : SJA 1090 of 2024 BETWEEN : SOPHIA WOLDEMICHAEL NEGASH Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE MILLINGTON File Number : MI 4450/2024, MI 4449/2024, MI 4448/2024, MI 4447/2024, MI 4446/2024, MI 4445/2024, MI 4444/2024, MI 358/2024, MI 357/2024, MI 356/2024, MI 355/2024, MI 354/2024, MI 353/2024, MI 352/2024, MI 351/2024, MI 350/2024, MI 349/2024, MI 348/2024, MI 347/2024, MI 346/2024, MI 345/2024, MI 344/2024, MI 343/2024, MI 342/2024 -- 1 of 47 -- [2026] WASC 206 Page 2 Catchwords: Criminal law - Appellant convicted in her absence pursuant to the Criminal Procedure Act 2004 (WA) s 55 - Consideration of whether the necessary requirements in order to convict the appellant in her absence were met - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Criminal Procedure Regulations 2005 (WA) Restraining Orders Act 1997 (WA) Sentencing Act 1995 (WA) Result: Extension of time to appeal granted Applications to adduce further evidence granted Leave to appeal granted Appeal allowed Category: B Representation: Counsel: Appellant : In Person Respondent : RA Cook Solicitors: Appellant : In Person Respondent : State Solicitor's Office -- 2 of 47 -- [2026] WASC 206 Page 3 Cases referred to in decision: A v Esposito [2011] WASC 198 A v Staples [2007] WASC 36 AD v The State of Western Australia [No 2] [2007] WASCA 207 AZY v McIntosh [2021] WASC 34 Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Bignell v Hopkins [2022] WASC 208 Briggs v Houlihan [2018] WASC 301 Carden v Dragojevic [2025] WASCA 47 Caseley v Zampogna [2006] WASC 259 Cousins v WA Police [2025] WASC 39 CW v Hounsham [2013] WASC 20 Davidson v Di Gregorio [2012] WASC 505 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 House v The King [1936] HCA 40; (1936) 55 CLR 499 JAD v McRae [2022] WASC 220 Koh v City of Joondalup [2012] WASC 493 Lancaster v The Queen [1989] WAR 83 M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 Reynolds v Nonkovic [2023] WASC 326 Reynolds v WA Police [No 2] [2025] WASC 10 Robertson v The State of Western Australia [2009] WASCA 83 Saad v Baron [2012] WASC 507 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Strahan v Brennan [2014] WASC 190 Tallot v Matier [2012] WASC 290 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wimbridge v The State of Western Australia [2009] WASCA 196 -- 3 of 47 -- [2026] WASC 206 Page 4 Table of Contents Introduction ................................................................................................................................ 5 Proceedings in the Magistrates Court ......................................................................................... 5 The prosecution notices and court attendance ........................................................................ 5 The conviction ........................................................................................................................ 6 The facts of the offending....................................................................................................... 8 The appellant's personal circumstances .................................................................................. 9 The sentence and sentencing remarks .................................................................................. 10 The application made under s 71(2) of the Criminal Procedure Act ................................... 11 Statutory framework and legal principles ................................................................................. 13 The appeal............................................................................................................................. 13 Leave to appeal ..................................................................................................................... 14 Extension of time for appeal ................................................................................................. 14 The appellant's position ............................................................................................................ 15 The respondent's position ......................................................................................................... 17 Grounds 1 and 2.................................................................................................................... 17 Ground 3 ............................................................................................................................... 25 Disposition ................................................................................................................................ 26 Extension of time to appeal .................................................................................................. 26 Application by the appellant to adduce further evidence ..................................................... 27 Application by the respondent to adduce further evidence .................................................. 28 Materials before the Magistrate ............................................................................................ 29 Assessment of the merits of the appeal ................................................................................ 30 Orders ....................................................................................................................................... 43 Sch A - Facts of the offending .................................................................................................. 45 -- 4 of 47 -- [2026] WASC 206 STRK J Page 5 STRK J: Introduction 1 On 24 October 2024 in the Magistrates Court at Midland the appellant was convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA) of 24 counts of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA).1 On the same day she was sentenced to a global fine of $2,000 and was ordered to pay costs in the amount of $272.70. 2 These reasons concern the appellant's application for an extension of time to appeal, application to adduce further evidence, application for leave to appeal, and the appeal as to conviction and sentence. 3 The appellant is unrepresented and was granted leave to amend her grounds of appeal.2 The appeal is pressed on three grounds. First, that that the convictions were entered in the appellant's absence despite reasonable circumstances for non-attendance (ground 1); secondly, that the appellant was denied an opportunity to present relevant evidence, including material indicating the complainant's willingness to withdraw and settle the matter (ground 2); and thirdly, that the learned Magistrate erred in failing to consider the appropriateness of granting a spent conviction order, despite the appellant's previously clean record, the nature of the charges, and the significant impact on her career (ground 3).3 4 After hearing the appeal but before determination, by correspondence the court raised a number of matters with the parties and invited supplementary submissions.4 These reasons also concern the respondent's application to adduce further evidence which was made following receipt of the court's correspondence. Proceedings in the Magistrates Court The prosecution notices and court attendance 5 As against the appellant, a prosecution notice with respect to 17 counts of breaching a family violence restraining order contrary to 1 Charges MI 342 to 358/2024 and MI 4444 to 4450/2024. 2 Order 1 of the orders made on 17 March 2025 (Forrester J), as extended by order 1 of the orders made on 5 May 2025 (Forrester J). 3 Appellant's outline of submissions filed on 26 May 2025, par 2; Amended appeal notice filed on 26 May 2025; ts 33 (4 August 2025). 4 Communication sent to the parties by email on 30 April 2026. -- 5 of 47 -- [2026] WASC 206 STRK J Page 6 s 61(1) of the Restraining Orders Act was issued on 14 December 2023 and was lodged at the Midland Registry of the Magistrates Court on 11 January 2024 (Charges MI 342 to 358/2024).5 6 The record of court proceedings attached to the certified copy of the prosecution notice for the 17 counts reveals that the first court date for the notice was 16 January 2024, and that the matter was listed before the various magistrates on 11 separate occasions (and before Magistrate Millington on eight of those occasions). 7 The record of court proceedings attached to the certified copy of the prosecution notice for the 17 counts further reveals that on 2 July 2024, when the accused was in attendance, Magistrate Millington fixed 24 October 2024 at 9.30 am for trial. 8 As against the appellant, a prosecution notice which recorded 7 counts of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act was issued on 7 May 2024 and was lodged at the Midland Registry of the Magistrates Court on 7 May 2024 (Charges MI 4444 to 4450/2024).6 9 The record of court proceedings attached to the certified copy of the prosecution notice for the 7 counts reveals that the first court date for the notice was 28 May 2024, and that the matter was listed before the various magistrates on five separate occasions (and before Magistrate Millington on three of those occasions). 10 The record of court proceedings attached to the certified copy of the prosecution notice for the 7 counts further reveals that on 2 July 2024 Magistrate Millington fixed 24 October 2024 at 9.30 am for trial, and that the accused was in attendance on 2 July 2024. 11 At 9.30 am on 24 October 2024 the appellant did not attend her trial, which was listed before Magistrate Millington. However, the learned Magistrate did not immediately proceed in the appellant's absence under s 55 of the Criminal Procedure Act. The conviction 12 One hour later, at 10.30 am on 24 October 2024, the matter was called and the appellant was convicted of all 24 counts of breaching a family violence restraining order contrary to s 61(1) of the Restraining 5 As is recorded on the certified copy of the prosecution notice for charges MI 342 to 358/2024. 6 As is recorded on the certified copy of the prosecution notice for charges MI 4444 to 4450/2024. -- 6 of 47 -- [2026] WASC 206 STRK J Page 7 Orders Act. The convictions were entered under s 55 of the Criminal Procedure Act in the appellant's absence. 13 The transcript reveals that before so proceeding the learned Magistrate made enquiries of the judicial support officer as to whether any communication had been received from the appellant, and caused an enquiry to be made of security as to whether the appellant had arrived. That part of the transcript which records the enquiries made and the manner in which the convictions came to be entered is reproduced below:7 ORDERLY: Negash. HIS HONOUR: Right. Has Ms Negash turned up? JSO: No. HIS HONOUR: Have the other parties turned up for the restraining orders? JSO: Yes. HIS HONOUR: Okay. [Madam JSO], have we received anything from Ms Negash? JSO: No. Nothing. HIS HONOUR: Nothing at all. JSO: Nothing at all. HIS HONOUR: Can we just check downstairs before I do – nothing in the last couple of minutes, please, Ms Negash is not here, from both security and - - - JSO: Nothing. HIS HONOUR: Okay. Application, Sergeant. BLOM, MR: Your Honour, on bail - not on bail. HIS HONOUR: On notice. I told Ms Negash, on 9 May, that if she didn't attend – because there were issues going on about her attendance, and I said I would convict her under section 55. BLOM, MR: Your Honour, if that's what she was told, and she's not here today, I'm going to say section 55. She has been given the 7 ts 2 - 3 (24 October 2024). -- 7 of 47 -- [2026] WASC 206 STRK J Page 8 information, and she still hasn't attended or notified the court of her non-attendance. HIS HONOUR: Okay. Thank you. It's a matter of Sophia Negash. This matter has a long history, and I say that because it's connected to two final order hearings that are also listed today. For a long time, these matters have been coming before me, and I've kept them before me because I'm aware of the history and what has been happening, and the fact that the final order hearings could not be done until these criminal matters were dealt with, by way of either a conviction at a trial or acquittal because it's going to have an impact on the final order hearings. Ms Negash, at times, has not attended and there's history on the prosecution notices of – for example, on 9 May 2024, saying give her the opportunity to attend. She has not emailed the court. No attendance on the next occasion, section 55. She then early listed it. We brought it on for a trial allocation date. She attended on 2 July 2024 and she was here. That was before me and explained to her no doubt – at times Ms Negash can become upset and emotional, and I'm fairly sure that she did on that last appearance, but I made it very clear that today was her trial date and she needed to attend. She is not here. It is 10.30. It is because of the length that this trial was probably going to run, it was put on as the only thing in today's court list, to start at 9.30, and she was told that. She is not here. She has not contacted the court. Convictions under section 55 in relation to all 24 charges. The facts of the offending 14 The facts of the offending were read out at by the prosecutor at the sentencing of the appellant on 24 October 2024.8 That part of the transcript is reproduced at sch A to these reasons. 15 In summary, the appellant was bound by family violence restraining order 644 of 2023.9 The order had been served at 10.18 am on 24 July 2023, and order was effective until 23 July 2025. The terms of the order included a prohibition against communicating or attempting to communicate with the person protected by any means whatsoever, including SMS, text messages or any other electronic means. Further, the appellant was not to cause or allow any person to engage in conduct of a type referred to in any of the preceding paragraphs of the order on her behalf.10 8 ts 3 - 6 (24 October 2024). 9 Exhibit B. 10 ts 3 (24 October 2024); Exhibit B, page 1. -- 8 of 47 -- [2026] WASC 206 STRK J Page 9 16 From 29 August 2023 to 2 December 2023 from telephone numbers linked to the appellant, numerous telephone calls and messages were sent to the 'person protected' by the family violence restraining order, either by the appellant or the appellant's family members in breach of the order.11 The appellant's personal circumstances 17 The appellant was 43 years old when sentenced. 18 On 17 August 2023 and 19 October 2023 the appellant was convicted of other offences.12 The prior convictions concerned breaches of the same family violence restraining order as the convictions the subject of this appeal. All of the convictions arose in circumstances where there had been a breakdown in the relationship between the appellant and her former husband, as to which the learned Magistrate noted as follows:13 … this involves a breakdown in a relationship. One of the parties, that is coming in, in a moment – or two of the parties, I should say, one is the ex-husband and one the new wife. There was also an issue with business in the civil court they've had issues to deal with. My understanding is, a lot of these messages, to start with, were regarding that, and also maintenance. So I'm aware of the dynamics between the parties. For example here, when you look at the explanation, 'I wanted my money', 'I wanted my money', 'I made an appointment. You promised you would go and sign it for me'. These types of background information. 'Do you think ignoring the problem', 'What happened to what you promised about', 'I don't hate you'. Unfortunately it's what we see a lot before the court. As I have already said, Ms Negash has been convicted, under section 55, in relation to these matters. Ms Negash has convictions from 19 October 2023, and also 17 August 2023 for breaching restraining orders. She is caught by the repeat offender legislation, so I need to consider and give myself that direction. I've already indicated to the sergeant that I'm well aware of the background of these matters. What is a positive, I would have thought, is that there has been no further offending since December of last year, so just shy of 11 months. And the times that I have had to deal with [the appellant], clearly there are unresolved issues between the breakup of their relationship that has caused this continuous texting. … 11 ts 3 - 6 (24 October 2024); see sch A to these reasons. 12 Exhibit C sets out the material facts for the previous offending. 13 ts 6 - 7 (24 October 2024). -- 9 of 47 -- [2026] WASC 206 STRK J Page 10 The sentence and sentencing remarks 19 The maximum penalty for breaching a family violence restraining order is a fine of $10,000 or imprisonment for 2 years, or both.14 As to the convictions the subject of this appeal, the learned Magistrate sentenced the appellant on all counts to a global fine of $2,000 with costs of $272.70. 20 The learned Magistrate noted that the appellant had been caught by the repeat offender legislation, and as such, his Honour was required to impose a penalty that was or included imprisonment, unless clearly unjust given the circumstances of the offence and the offender; and the person was unlikely to be a threat to the safety of the person protected or the community generally.15 21 The learned Magistrate concluded that imprisonment would be unjust, and determined that a fine was appropriate, recording as follows:16 I've already indicated to the sergeant that I'm well aware of the background of these matters. What is a positive, I would have thought, is that there has been no further offending since December of last year, so just shy of 11 months. And the times that I have had to deal with [the appellant], clearly there are unresolved issues between the breakup of their relationship that has caused this continuous texting. I must impose a penalty that is, or includes imprisonment unless clearly unjust, given the circumstance of the offence and the offender, and the person is unlikely to be a threat to the safety of the person protected or the community generally. I am aware of these messages, the original ones and these ones. I am of the view that Ms Negash is unlikely to be a threat to the safety of the person protected or the community generally. So it's on that basis, in my view, that it would be unjust to impose something that would include a term of imprisonment. In relation to these matters, there's a global fine of $2000. There are court costs $272.70. 22 The learned Magistrate then turned to consider whether to make a serial family violence offender declaration upon the application made by the prosecutor under s 124E of the Sentencing Act 1995 (WA).17 The 14 Restraining Orders Act s 61(1). 15 ts 6, 7 (24 October 2024). 16 ts 7 (24 October 2024). 17 Exhibit C. -- 10 of 47 -- [2026] WASC 206 STRK J Page 11 learned Magistrate considered that it was not appropriate to make such a declaration, recording as follows:18 There is an application for Ms Negash to be declared a serial family violence offender. She does, again, fit within the threshold criteria for that to occur. The authorities, in relation to this, talks about continuing behaviour or repeated behaviour from Ms Negash – from any person who has been the subject to these applications. Look, there is repeated behaviour. August 2023, 11 charges, by the looks of it. And then we get to October 2023, then we have another … seven…. And then today another 24, so it is repeated behaviour. I go back to what I said a couple of minutes ago regarding there has been no further offending for a year. That may be because Ms Negash has been on bail for sometime. It's the context of these types of matters, in my view, that the legislation was not aimed at this type of person. Ms Negash is 43 years of age. In the last year she has found herself before the court because of restraining orders that were taken out and, effectively, caused some barriers for her trying to sort out lives, family relationships but also too financial, in my view. It is not appropriate, in my view, to declare her a serial family violence offender, so that application is dismissed. The application made under s 71(2) of the Criminal Procedure Act 23 Before commencing this appeal the appellant made an application under s 71(2) of the Criminal Procedure Act to set aside the decision made in her absence. Section 71(2) provides as follows: If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused — (a) did not receive notice of the court date on which the conviction occurred; or (b) did not receive such notice in enough time to enable the accused to appear on the court date; or (c) received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason. 24 The application was heard on 27 November 2024 by Magistrate Scutt, and a copy of the transcript of that hearing was filed 18 ts 7 - 8 (24 October 2024). -- 11 of 47 -- [2026] WASC 206 STRK J Page 12 in the appeal. The application was refused for the ex tempore reasons provided by Magistrate Scutt at the conclusion of the hearing, which included the following:19 I'm not satisfied that the application should be granted. I'm not satisfied it should be granted because it's accepted that Ms Negash did receive the notice with respect to this matter which was listed for trial. It was listed for trial on 2 July 2024 and the notice required attendance at 9.30 am in the morning. I've checked the court record. There are no messages or information received. … There is an affidavit before me that accepts she arrived late because of a hospital appointment. Whilst I accept Ms Negash likely had an appointment, she had some documents that weren't formally tendered, there's nothing to suggest that that appointment was made prior to the listing of the trial. There is no evidence to suggest that she did anything to try and move the trial hearing, and it appears that she turned up late with the expectation that because she had been to court before and her matter had not been called on contemporaneously, the notice that she could attend after her appointment, as I've noted, the magistrate was, as I understand it, ready to start the trial at 10.30, and she wasn't here an hour after the notice was issued. So whilst I accept there were reasons for her not to be here they're not reasons to set aside, in my view, the 55 because she misunderstood that she could be late. I've also checked with registry. There was no note or any other message left with the court that she would be late as a result of a medical matter. The prosecutor has confirmed today that it was a matter that was ready to proceed to trial and that, in my view, is a matter that's relevant to the application as well. So there is not, in my view, appropriate reasons for her non-appearance at the required time. In addition to that there is nothing in the affidavit at all that suggests a defence to these charges in terms of consideration of interests of justice. The affidavit speaks of the consequences upon her which is why, and undoubtedly she's so upset, as a result of the conviction. My view is that because she wasn't here for sentence I assume there doesn't appear to have been any consideration of a spent conviction order, but undoubtedly that was because she had already had matters on her record of a similar nature and there was nothing before his Honour to consider that application. If that's something that she now wishes to press, in my view, that would be a matter of appeal to the Supreme Court. The application is dismissed. 19 ts 68 - 70 (27 November 2024). -- 12 of 47 -- [2026] WASC 206 STRK J Page 13 Statutory framework and legal principles The appeal 25 Part 2 of the Criminal Appeals Act 2004 (WA) concerns appeals from courts of summary jurisdiction, and div 2 of that part concerns appeals to a single judge. Section 7(1) (a section within div 2) allows an aggrieved party to appeal to a single judge of the Supreme Court in respect of a decision made by a court of summary jurisdiction. Pursuant to the Criminal Appeals Act s 8(1), such appeal may be made under div 2 on one or more of these grounds: (a) that the court of summary jurisdiction — (i) made an error of law or fact, or of both law and fact; (ii) acted without or in excess of jurisdiction; (iii) imposed a sentence, or set a limiting term, that was inadequate or excessive; (b) that there has been a miscarriage of justice. 26 Section 14 of the Criminal Appeals Act sets out the options available to the court in deciding the appeal. These include dismissing it or allowing it. Further, s 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.20 27 Section 6 of the Criminal Appeals Act concerns terms used in pt 2 and provides that a decision of a court of summary jurisdiction means (among other things) a refusal to make an order that might be made as a result of a conviction or acquittal.21 As was acknowledged by the respondent, the failure to make a spent conviction order, in circumstances where the Magistrate was empowered to do so, is a refusal to make an order which might have been made as a result of the appellant's conviction for the charge within the meaning of s 6(g) of the Criminal Appeals Act.22 20 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45]. 21 Criminal Appeals Act s 6(g). 22 Respondent's outline of submissions filed on 4 July 2025, par 7, referring by way of example to AZY v McIntosh [2021] WASC 34 [24] - [30]; and JAD v McRae [2022] WASC 220 [20] - [21]. -- 13 of 47 -- [2026] WASC 206 STRK J Page 14 Leave to appeal 28 The leave of this court is required for each ground of appeal in an appeal under div 2.23 The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.24 That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.25 If leave to appeal is refused, the appeal is taken to be dismissed.26 Extension of time for appeal 29 An appeal against a decision cannot be commenced later than 28 days after the date of the decision of the court of summary jurisdictions unless the court orders otherwise.27 If the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time for an appeal against either the conviction or the sentence or both runs from the date of sentencing.28 30 The court will grant an extension of time for appeal if it is in the interests of justice to do so.29 Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.30 31 Exceptional circumstances are not closed. A compelling explanation for the delay in commencing the appeal will generally constitute exceptional circumstances.31 Generally, the court must be satisfied there is some special feature which warrants the extension of time, notwithstanding the lengthy delay.32 23 Criminal Appeals Act s 9(1). 24 Criminal Appeals Act s 9(2). 25 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. 26 Criminal Appeals Act s 9(3). 27 Criminal Appeals Act s 10(3). 28 Criminal Appeals Act s 10(4). 29 Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108], applied in Briggs v Houlihan [2018] WASC 301 [47]. 30 Robertson v The State of Western Australia [2009] WASCA 83 [9]; Lancaster v The Queen [1989] WAR 83, 85; AD v The State of Western Australia [No 2] [2007] WASCA 207 [15]. See also Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [20]. 31 Wimbridge v The State of Western Australia [20]. 32 Wimbridge v The State of Western Australia [48]. -- 14 of 47 -- [2026] WASC 206 STRK J Page 15 The appellant's position 32 In support of the appeal, the appellant filed an outline of submissions which recorded the appellant's grounds of appeal.33 At the hearing of the appeal on 4 August 2025 the appellant chose to largely rely upon her written submissions to convey her position in respect of the appeal.34 33 The appellant's first and second grounds concern the entry of convictions her absence, and why they ought be set aside. As was recorded in the outline of submissions, it is the appellant's position that:35 (a) the convictions were entered in the appellant's absence despite reasonable circumstances for her non-attendance; and (b) the appellant was denied an opportunity to present relevant evidence, including material indicating the complainant's willingness to withdraw and settle the matter. 34 Under the heading 'Background', the appellant recorded as follows:36 The Appellant was convicted on 24 October 2024 in her absence. She had a specialist medical appointment at Hollywood Hospital and believed, based on previous experiences, that she would have sufficient time to attend Court later that morning. She arrived at Court around 10:30am, only to find the matter had already been heard and the conviction entered. Prior to the hearing, the complainant (her ex-husband) contacted her directly and apologised, stating that he would withdraw the complaint and settle the financial matters. The Appellant recorded this conversation and is willing to provide it as evidence. Despite this, the Court proceeded without considering this material or the Appellant's circumstances. 35 As to the previous experience described in the first 'Background' paragraph reproduced above, in the course of the hearing of the appeal, the appellant noted that on the previous occasions (seven times) her 33 Appellant's outline of submissions filed on 26 May 2025. 34 ts 39 - 40, 52 (4 August 2025). 35 Appellant's outline of submissions filed on 26 May 2025, par 2. 36 Appellant's outline of submissions filed on 26 May 2025, par 3. -- 15 of 47 -- [2026] WASC 206 STRK J Page 16 matters were listed for 9.30 am or 10.00 am, but were never called on time.37 36 In the outline of submissions under the heading 'Request for dismissal', the appellant recorded as follows:38 Following the second set of charges, the matter was dismissed after the Court was made aware of the context - including the Appellant's recent back surgery, financial hardship, and foreclosure proceedings on her home. Since that dismissal, the Appellant has not contacted the complainant. The Appellant submits that this demonstrates she is not a threat and has abided by the Court's directions. This strengthens the case for dismissal of the current charge[.] (Appellant's emphasis) 37 As to the third ground of appeal, it is the appellant's position that the learned Magistrate erred in failing to consider the appropriateness of granting a spent conviction order, despite the appellant's previously clean record, the nature of the charges, and the significant impact of the convictions on her career. 38 In the outline of submissions under the hearing 'Alternative Request for Spent Conviction Order', the appellant recorded as follows:39 If the conviction is not dismissed, the Appellant respectfully seeks a spent conviction order on the following grounds: • She has no prior criminal history. • The offence did not involve violence or risk to the public. • The charges arose during an extremely distressing time involving domestic and financial abuse. • She has demonstrated rehabilitation and compliance since. • She works in nursing, health support, and aged care - a profession where police clearance is critical. • She has already lost employment and been denied job opportunities due to this conviction. The Appellant has also received a scholarship to continue her studies and is actively contributing to her community. Without a spent 37 ts 45 (4 August 2025). 38 Appellant's outline of submissions filed on 26 May 2025, par 4. 39 Appellant's outline of submissions filed on 26 May 2025, par 5 (appellant's emphasis removed). -- 16 of 47 -- [2026] WASC 206 STRK J Page 17 conviction, her ability to continue working and supporting vulnerable individuals will be severely limited. 39 In the outline of submissions, the appellant further submitted that 'this appeal should be viewed in the context of personal hardship, domestic abuse, compliance with Court directions, and a long-standing contribution to the healthcare sector'.40 40 As to the respondent's application to adduce further evidence (which is described in more detail below), the appellant opposes the same. The respondent's position 41 On behalf of the respondent, an outline of submissions was filed in advance of the hearing of the appeal which addressed the appellant's grounds of appeal and the applications pressed. Counsel for the respondent also made oral submissions at the hearing of the appeal on 4 August 2025. 42 As is noted above, after the hearing of the appeal the court by correspondence raised a number of matters with the parties and invited supplementary submissions.41 In response to the same the respondent filed an outline of supplementary submissions and an application to adduce further evidence. The respondent was briefly further heard on 29 May 2026. 43 Set out below is an overview of the respondent's position. Grounds 1 and 2 44 It was submitted on behalf of the respondent that the first and second grounds of appeal turn on whether the Magistrate erred in convicting the appellant pursuant to s 55 of the Criminal Procedure Act; that the relevant consideration is whether the Magistrate was sufficiently satisfied of the requisite preconditions before exercising discretion under s 55; that the Court can infer from the transcript that he was so satisfied; and that the appeal should be dismissed as to the first and second grounds as the learned Magistrate did not make an error of law in proceeding under s 55 of the Criminal Procedure Act.42 40 Appellant's outline of submissions filed on 26 May 2025, par 6. 41 Communication sent to the parties by email on 30 April 2026. 42 ts 40 (4 August 2025). -- 17 of 47 -- [2026] WASC 206 STRK J Page 18 45 Counsel for the respondent referred to two decisions concerning s 55 of the Criminal Procedure Act. The earlier of the decisions was that of McGrath J in Bignell v Hopkins [2022] WASC 208, where at [10] his Honour outlined the pre-conditions of s 55 of the Criminal Procedure Act in the following terms: [T]he appellant did not attend court when the charges were called, the prosecutor was present in court, the appellant had not entered a written or oral plea of guilty in relation to the charges and, finally, the learned Magistrate was satisfied that the service of a prosecution notice and an approved notice had occurred. 46 The appellant in Bignell v Hopkins did not contend that the decision of the Magistrate to convict him pursuant to s 55 of the Criminal Procedure Act involved any error,43 and the appeal was determined by reference to other grounds. 47 The more recent of the two decisions was that of Lemonis J in Reynolds v WA Police [No 2] [2025] WASC 10, where his Honour in greater detail considered what is required for a valid decision to convict an accused of a charge pursuant to s 55. His Honour concluded that in order for a decision to be validly made to convict an accused of a charge pursuant to s 55 of the Criminal Procedure Act, a magistrate must first be satisfied:44 (a) that an accused has been served with a prosecution notice containing the charge, and an additional notice notifying the accused of the hearing date and of the fact that the court may deal with the charge in the accused's absence if the accused does not appear; and (b) that the prosecution notice is signed by a person who purports to be a person authorised to do so acting under s 20(3) of the Criminal Procedure Act. 48 His Honour further noted that after being so satisfied, the magistrate must then exercise the discretion to hear and determine the charge in the accused's absence, and then the court must take as proved any allegation in the prosecution notice containing the charge.45 43 Bignell v Hopkins [10]. 44 Reynolds v WA Police [No 2] [97] - [98]; Respondent's outline of submissions filed on 4 July 2025, par 22; ts 41 (4 August 2025). 45 Reynolds v WA Police [No 2] [97] - [98]; Respondent's outline of submissions filed on 4 July 2025, par 23; ts 46 (4 August 2025). -- 18 of 47 -- [2026] WASC 206 STRK J Page 19 49 In Reynolds v WA Police [No 2], Lemonis J found that the requirements of s 55 had not been satisfied, and concluded that the Magistrate had therefore made an error of law in using the procedure under s 55 to convict the appellant of the charge.46 50 At the hearing of this appeal, counsel for the respondent made the following concession:47 It is conceded that this matter is similar to Reynolds, in that the magistrate has not expressly referred to the provisions of section 55 in any detail. And there is also no evidence that the requisite notice has in fact been served. 51 Despite this concession, the respondent maintained that this matter is distinguishable on its facts from those considered by Lemonis J in Reynolds v WA Police [No 2] as:48 (a) it is implicit from the reasons provided by the Magistrate in this matter that he was satisfied that the requisite pre-conditions had been met before proceeding under s 55; and (b) the Magistrate in this matter provided reasons explaining why it was appropriate to proceed to hear and determine the charges under s 55 (that is, his Honour articulated the grounds for the exercise of the discretion). 52 While the respondent acknowledges that the Magistrate did not explicitly state that he was satisfied that: (a) the appellant had been served with a prosecution notice and an approved notice; and (b) the prosecution notice was signed by a person who purported to be a person authorised to do so acting under s 20(3) of the Criminal Procedure Act, 46 Reynolds v WA Police [No 2] [100], [114]; Respondent's outline of submissions filed on 4 July 2025, par 24. 47 ts 42 (4 August 2025). 48 Respondent's outline of submissions filed on 4 July 2025, pars 25, 29. -- 19 of 47 -- [2026] WASC 206 STRK J Page 20 the respondent submits that it was clear that his Honour was so satisfied from the following factors:49 (a) the Magistrate was very familiar with the matter and the parties, having presided over eight previous hearings;50 (b) at the hearing on 24 October the Magistrate stated 'I told Ms Negash, on 9 May, that if she didn't attend – because there were issues going on about her attendance, and I said I would convict her under section 55';51 (c) the Magistrate had listed the matter for trial on 2 July 2024, while the appellant was present; (d) at the 24 October hearing the Magistrate turned his mind to this, observed that the Appellant was 'on notice' and noted, '[s]he attended on 2 July 2024 and she was here. That was before me and explained to her no doubt – at time Ms Negash can become upset and emotional, and I'm fairly sure that she did on that last appearance, but I made it very clear that today was her trial date and she needed to attend';52 and (e) at the hearing on 24 October 2024 the Magistrate had regard to the prosecution notices and raised no issues with those notices, with the Magistrate referring to the 'history on the prosecution notices' and giving examples from that history.53 53 The respondent says that as was the case in Reynolds v WA Police [No 2], this appeal turns on the first requirement (that the service requirements had been met),54 and when the Magistrate's reasons are read as a whole, they reveal that the Magistrate was satisfied that the service requirements had been met, and was satisfied with the validity of the prosecution notices.55 It was submitted that the ‘transcript is evidence of a magistrate doing his due diligence before proceeding to exercise his discretion under section 55’, and on this basis alone this matter could be distinguished from the circumstances which informed the decision in Reynolds v WA Police [No 2].56 The respondent says that therefore, the learned Magistrate's discretion to hear and determine the charges in the appellant's absence in this case had been enlivened. 49 Respondent's outline of submissions filed on 4 July 2025, par 26; ts 42 - 44 (4 August 2025). 50 Prosecution notices for charges MI 342 to 358/2024 and MI 4444 to 4450/2024. 51 ts 2 (24 October 2024). 52 ts 3 (24 October 2024). 53 ts 3 (24 October 2024). 54 ts 41 (4 August 2025). 55 Respondent's outline of submissions filed on 4 July 2025, par 27, referring to Strahan v Brennan [2014] WASC 190 [90] - [91]. 56 ts 42 (4 August 2025). -- 20 of 47 -- [2026] WASC 206 STRK J Page 21 54 Further, the respondent notes that in this case, the learned Magistrate provided reasons explaining why it was appropriate to proceed and hear and determine the charge under s 55, which reasons included:57 (a) the appellant was not in attendance, having confirmed with the Judicial Support Officer and security that she was not in court, or 'downstairs'; (b) the appellant had not otherwise attempted to contact the court to explain her non-attendance; (c) the Magistrate was familiar with the matter and the appellant's past history of non-attendance; (d) the Magistrate was aware that there were two final order hearings that had also been listed for determination, and that these final order hearings could not be resolved until the charges had been dealt with; (e) the appellant had been told that the trial was the only matter listed in the court's list and that it was to start at 9.30am; and (f) the appellant had been given one hour to attend, the matter having been listed for 9.30am, and with the matter being dealt with at 10.30am. 55 As to the requirement that the court must take as proved any allegation in the prosecution notice containing the charge, the respondent says that this was satisfied by the Magistrate's finding of '[c]onvictions under section 55 in relation to all 24 charges'.58 56 It is the respondent's position that in these circumstances, it cannot be said that the Magistrate made an error of law in proceeding under s 55, and therefore the first and second grounds of appeal ought be dismissed.59 Supplementary submissions Service of the approved notice 57 As is recorded above, there had been a concession made on behalf of the respondent in the appeal that there was no evidence that the 57 Respondent's outline of submissions filed on 4 July 2025, par 30, referring to ts 2 - 3 (24 October 2024). 58 Respondent's outline of submissions filed on 4 July 2025, par 32, referring to ts 3 (24 October 2024). 59 Respondent's outline of submissions filed on 4 July 2025, par 33. -- 21 of 47 -- [2026] WASC 206 STRK J Page 22 requisite notice for the purpose of s 55(2) of the Criminal Procedure Act had in fact been served on the appellant.60 58 After hearing the parties on 4 August 2025, the court by correspondence raised a number of matters with the parties and invited supplementary submissions.61 They were as follows:62 Is it accepted that there is no evidence before this Court that a notice that met the requirement of s 55(2) was in fact served on the appellant under pt 3 of the Criminal Procedure Act 2004 (WA) (Question 1)? Can the inference pressed on behalf of the respondents (that the Magistrate was satisfied that the service requirements under s 55(2) had been met) be drawn in the absence of such evidence (Question 2)? 59 In response to the first question, the concession that had been made was sought to be withdrawn and corrected in the supplementary submissions filed on behalf of the respondent. 60 In the supplementary submissions counsel for the respondent noted that a copy of the transcript of the hearing of the appellant's application under s 71(2) of the Criminal Procedure Act on 27 November 2024 to set aside the decision made in her absence had been filed in the appeal; and that that transcript records that at the hearing on 27 November 2024 Magistrate Scutt had satisfied herself that there had been service of an approved notice that had been issued for the trial hearing on 24 October 2024.63 61 Further, by the application filed on 8 May 2026, the respondent applied for (among other things) an order that the affidavit of Adrian Robert Jones affirmed on 8 May 2026 be admitted as evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act. 62 Mr Jones is employed by the State Solicitor's Office as a managing law clerk for the Appeals Team. Among other things, he deposed to having had various communications with the Midland Magistrates Court in the course of seeking to obtain copies of documents that form part of that court's record. 63 Among other things he deposed to the request made for a copy of the notice of adjournment for the hearing listed on 24 October 2024 for 60 ts 42 (4 August 2025), reproduced at [50] above. 61 Communication sent to the parties by email on 30 April 2026. 62 As recorded in the respondent's supplementary outline of submissions filed on 8 May 2026, par 1. 63 ts 68 (27 November 2024), reproduced in these reasons at [24]. -- 22 of 47 -- [2026] WASC 206 STRK J Page 23 charges MI 342 to 358/2024 and MI 4444 to 4450/2024, and to having received in response to that request a copy of the notice of a Restraining Order Final Order Hearing (RO 644/2023).64 64 Also attached to Mr Jones' affidavit was a request made to the Midland Magistrates Court on 1 May 2026 seeking confirmation as to whether the following documents were before Magistrate Millington on 24 October 2024, and if so, a copy of them:65 (a) a notice of adjournment for charges MI 342 to 358/2024 issued on 2 July 2024; and (b) a notice of adjournment for charges MI 4444 to 4450/2024 issued on 2 July 2024. 65 Mr Jones deposed that on 5 May 2026 he received from the Midland Magistrates Court a court file copy of a 'notice to the accused of an adjournment' dated 2 July 2024 for all relevant charges, and he attached a copy of the same to his affidavit.66 Among other things, the notice records as follows: 66 The notice also included a service certificate completed by a court officer on 2 July 2024 which recorded that the appellant had been served with a copy of the notice by the court officer handing a copy of to her personally on 2 July 2024. 67 It was the respondent's position that there was therefore evidence of proper service of an approved notice on the Magistrates Court file on 24 October 2024, and by operation of s 39(1) of the Criminal Appeals Act, this court must take that notice into account when deciding this appeal. 64 Affidavit of AR Jones affirmed on 8 May 2026, ARJ1, ARJ2. 65 Affidavit of AR Jones affirmed on 8 May 2026, ARJ3. 66 Affidavit of AR Jones affirmed on 8 May 2026, pars 9 - 10, ARJ4. -- 23 of 47 -- [2026] WASC 206 STRK J Page 24 Service of the prosecution notices 68 The respondent also dealt with service of the prosecution notices in the supplementary submissions that were filed. In summary, the respondent recorded that they did not understand the appellant to take issue with service of the prosecution notices in this appeal. However, if the appellant did take issue, then by the application filed on 8 May 2026 the respondent intended to seek leave to adduce further evidence. That is, they would move for an order that the affidavits of Joshua Pelleymounter affirmed on 7 May 2026, Joshua Thomson affirmed on 7 May 2026, and Lesley Evelyn Boyd affirmed on 8 May 2026 be admitted as evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act. 69 Mr Pelleymounter is employed by the Western Australia Police Force as a police officer. Mr Pelleymounter deposed to the circumstances in which the prosecution notice for charges MI 342 to 358/2024 were served on the appellant by post on 14 December 2023. 70 Mr Thomson is employed by the Western Australia Police Force as a police officer. Mr Thomson deposed to the circumstances in which the prosecution notice for charges MI 4444 to 4450/2024 were served on the appellant by post on 7 May 2024. 71 Ms Boyd is employed by the Western Australia Police Force as a system manager. Ms Boyd among other things attached to her affidavit screenshots of electronically held records of service for charges MI 342 to 358/2024 and MI 4444 to 4450/2024. 72 The respondent's position is that: (a) from this additional evidence it is clear that the appellant was served with the relevant prosecution notices by post to her last known residential address; (b) pursuant to the Criminal Procedure Act a prosecution notice has been validly served when it is posted by the prosecutor to the address where the accused was last known to reside, work or conduct a business; and -- 24 of 47 -- [2026] WASC 206 STRK J Page 25 (c) as the prosecution notices were served by post by the relevant prosecutors to the appellant's last known address, they have been validly served.67 73 The respondent also explained the regulatory basis upon which service information was recorded and available to the Magistrates Court and this court via the Electronic Court Management System; and that pursuant to reg 13B of the Criminal Procedure Regulations 2005 (WA), the Supreme Court may refer to the service information incorporated electronically in the service certificate to satisfy itself as to service.68 The inference pressed 74 The respondent's position is that there is evidence before this court as to service of the approved notice and the prosecution notices, and that it is open for this court to infer that the Magistrate was satisfied that the service requirements under s 55(2) had been met.69 Ground 2 75 As to the second ground, counsel for the respondent further submitted that it is not relevant to consider what evidence the appellant would have led at trial, because the Magistrate's exercise of his discretion under s 55 was either within power or it was not. If the procedure in s 55 had not been properly invoked, there would be a miscarriage of justice, and therefore, it would not be relevant to consider whether there would otherwise have been a miscarriage of justice by reference to what evidence would have been led at trial for the purposes of s 14(2) of the Criminal Appeals Act.70 Further, given the reasons for the appellant's absence were not raised when the learned Magistrate exercised his discretion to proceed under s 55, they are not matters relevant to determining whether the learned Magistrate fell into error.71 Ground 3 76 In the outline of submissions filed on behalf of the respondent, the applicable legal principles with respect to the making of a spent 67 Respondent's supplementary outline of submissions filed on 8 May 2026, pars 17 - 20. 68 Respondent's supplementary outline of submissions filed on 8 May 2026, pars 21 - 28. 69 Respondent's supplementary outline of submissions filed on 8 May 2026, pars 29 - 33. 70 ts 44 (4 August 2025), referring to Reynolds v WA Police [No 2] [115]. 71 ts 45 (4 August 2025). -- 25 of 47 -- [2026] WASC 206 STRK J Page 26 conviction order and the pre-conditions for grant were conveniently outlined.72 77 As was recorded on behalf of the respondent, if the court was satisfied that the discretion to make a spent conviction order was enlivened, it would be necessary to determine whether the failure to make a spent conviction order had occasioned a miscarriage of justice. Further, in deciding whether the failure to make a spent conviction order had occasioned a miscarriage of justice, the court would be required to assess the merits of the application afresh.73 78 On behalf of the respondent it is acknowledged that in this case, the factors relevant to whether a spent conviction order should be granted are finely balanced. As to the appropriate disposition on the third ground of appeal, the respondent neither consents to nor opposes the making of a spent conviction order in all of the circumstances of this case.74 Disposition Extension of time to appeal 79 The appellant was convicted and sentenced on 24 October 2024; the time to commence this appeal expired on 21 November 2024; and the appeal was commenced out of time on 13 December 2024. In the circumstances, the appellant requires an extension of time to appeal. 80 In an affidavit sworn on 13 December 2024 and filed in the appeal, the appellant deposed to the circumstances surrounding the delay in the lodgement of the appeal. The appellant deposed that: On 20 November 2024, [I lodged] an appeal in the Midland Court[.] The hearing for that appeal was held on the 27 November 2024[.] I was waiting for the outcome of the Midland court matter before proceeding with my appeal to the supreme court as I believe the result [of] that hearing would significantly influence or inform my case. The delay in filling [sic] my appeal was not intentional. It was due to my genuine attempt to ensure all relevant matters were resolved before approaching the supreme court. 72 Respondent's outline of submissions filed on 4 July 2025, pars 34 - 37 (Legal principles), pars 38 - 43 (The preconditions for the grant of a spent conviction order). 73 Respondent's outline of submissions filed on 4 July 2025, pars 44 - 45, citing JAD v McRae [71]. 74 Respondent's outline of submissions filed on 4 July 2025, par 50; ts 47 (4 August 2025). -- 26 of 47 -- [2026] WASC 206 STRK J Page 27 81 The respondent filed in the appeal a copy of the transcript of the Magistrates Court hearing on 27 November 2024. In the circumstances deposed to by the appellant, the respondent does not oppose the grant of an extension of time.75 82 After considering the appellant's affidavit sworn on 13 December 2024 and the transcript of the hearing on 27 November 2024, I accept that the appellant had made an application under s 71 of the Criminal Procedure Act to set aside the decision made in her absence. While that application was in the end dismissed, the appellant had sought to pursue a review pursuant to a process in a lower court expressly provided for in the Criminal Procedure Act. Further, the appellant then acted relatively promptly after the determination of the s 71 application to commence this appeal. 83 In determining whether to extend time, the question for the court is whether it is in the interests of justice to grant the appellant the requested extension of time in which to appeal.76 In the circumstances deposed to by the appellant, I am so satisfied. Application by the appellant to adduce further evidence 84 The appellant filed an application to adduce further evidence pursuant to s 63 of the Criminal Appeals Act. The evidence the appellant sought to adduce was that contained in her affidavit affirmed on 26 May 2025. 85 The court is required to decide the appeal on the evidence and material that was before the lower court.77 The Criminal Appeals Act does not contain a s 63 (the section cited by the appellant). However, s 40(1)(e) of the Criminal Appeals Act gives the court the discretion to admit any other evidence for the purposes of dealing with an appeal. Further, the power to admit further evidence is not expressly limited or confined by the terms of s 40(1)(e). 75 Respondent's outline of submissions filed on 4 July 2025, par 15; ts 34 - 35 (4 August 2025). 76 Criminal Appeals Act 2004 (WA) s 10(3); Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14]. 77 Criminal Appeals Act, s 39(1). -- 27 of 47 -- [2026] WASC 206 STRK J Page 28 86 As was observed by Pritchard J in M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 at [21]:78 There have been a number of cases in this court in which, on appeals of the kind involved here, the court has been prepared to correct a miscarriage of justice, even though that miscarriage is established only by matters which were not before the magistrate. 87 In considering the application, I was also cognisant that in the context of determining whether the failure to make a spent conviction order amounted to a miscarriage of justice, an appellate court may have regard to new information, gathered for the purposes of the appeal, showing the appellant's good character and the likely consequences of a conviction.79 88 In this case, the respondent does not oppose the appellant's application to adduce further evidence,80 noting that the evidence sought to be adduced did not appear to have been before the learned Magistrate at sentencing and included matters relevant to the discretion to order a spent conviction, particularly as to the personal antecedences and the qualifications of the appellant.81 89 At the hearing of the appeal on 4 August 2026, I informed the parties that I was satisfied that the court's discretion should be exercised to permit the further evidence contained within the appellant's affidavit affirmed on 26 May 2025 to be admitted and considered in the appeal. The appeal hearing proceeded on that basis.82 Application by the respondent to adduce further evidence 90 As is noted above, after the hearing of the appeal the court by correspondence raised a number of matters with the parties and invited supplementary submissions.83 In response to the same the respondent filed an outline of supplementary submissions and an application to adduce as further evidence the affidavits of Mr Jones affirmed on 8 May 2026, Mr Pelleymounter affirmed on 7 May 2026, Mr Thomson affirmed on 7 May 2026, and Ms Boyd affirmed on 8 May 2026. 78 M v Seidner [21], where Pritchard J in turn cited by way of example Davidson v Di Gregorio [2012] WASC 505 [11]; CW v Hounsham [2013] WASC 20; A v Esposito [2011] WASC 198 [10] - [11]. 79 Respondent's outline of submissions filed on 4 July 2025, par 18, citing M v Seidner [28] where Pritchard J in turn cited Caseley v Zampogna [2006] WASC 259 [19]; A v Staples [2007] WASC 36 [17]. 80 Respondent's outline of submissions filed on 4 July 2025, par 20; ts 35 - 36 (4 August 2025). 81 Respondent's outline of submissions filed on 4 July 2025, pars 19 - 20. 82 Exhibit A; ts 37 (4 August 2025). 83 Communication sent to the parties by email on 30 April 2026. -- 28 of 47 -- [2026] WASC 206 STRK J Page 29 91 The application was supported by the affidavit of Rossana Carmen Panetta affirmed on 8 May 2026, to which Ms Panetta attached the four affidavits described above, marked RCP1 to RCP4. 92 The application to adduce additional evidence is opposed by the appellant. I understand it is opposed on the basis of delay. 93 As to the affidavit of Mr Jones, it was noted on behalf of the respondent that an appeal court may ascertain what evidence and material was before the lower court in any way it considers sufficient;84 (as was established by the affidavit of Mr Jones) there was evidence of proper service of an approved notice on the Magistrates Court file on 24 October 2024; and by operation of s 39(1) of the Criminal Appeals Act this Court must take that notice into account when deciding this appeal. Further, as to the affidavits of Mr Pelleymounter, Mr Thomson and Ms Boyd, the respondent noted that from this evidence it is clear that the appellant was served with the relevant prosecution notices, and the service information was recorded on the Electronic Court Management System (ECMS) file accessible to the Magistrates Court and the Supreme Court.85 94 I am satisfied that the court's discretion should be exercised to permit the further evidence attached to the affidavit of Ms Panetta to be admitted and considered in the appeal. In this case it is preferable that the service records relied upon by the respondent and accessible to this court be before the court by affidavit and served on the appellant. Materials before the Magistrate 95 As is noted above, this court is required to decide the appeal on the evidence and material that was before the lower court.86 At the hearing of the appeal, I raised whether two additional documents ought be before this court, as they appeared to be documents that were before the learned Magistrate. They were the family violence restraining order RO 644 of 2023 dated 20 July 2023 (in which the appellant was named as the person bound by the order and the appellant's former husband was named as the applicant and protected person); and the serial family violence offender application (made pursuant to s 124E of the Sentencing Act in which the appellant was named as the accused). 84 Criminal Appeals Act s 39(2); Respondent's outline of supplementary submissions filed on 8 May 2026, par 13. 85 Respondent's outline of supplementary submissions filed on 8 May 2026, pars 14 - 28. 86 Criminal Appeals Act, s 39(1). -- 29 of 47 -- [2026] WASC 206 STRK J Page 30 96 The respondent took no issue with the documents being before this court. While the appellant did not oppose the documents being before this court, she did complain that she did not understand why she had been the subject of the serial family violence offender application.87 97 As they were documents before the learned Magistrate, it was appropriate that they were before this Court for the purposes of the appeal.88 Assessment of the merits of the appeal Grounds 1 and 2 98 The appellant was convicted in her absence pursuant to s 55 of the Criminal Procedure Act. As is record above, as to the first ground, it is the appellant's position that the conviction was entered in the appellant's absence despite reasonable circumstances for non-attendance. As to the second ground, it is the appellant's position that the learned Magistrate's choice to proceed to convict the appellant in her absence had the effect of denying the appellant the opportunity to present relevant evidence. From these grounds it is possible to discern the contention on the part of the appellant that she should not have been convicted pursuant to s 55 of the Criminal Procedure Act. 99 It was the respondent's position that the first two grounds of appeal turn on whether the Magistrate erred in convicting the appellant pursuant to s 55 of the Criminal Procedure Act, and the appeal on those grounds should be dismissed as the learned Magistrate did not make an error of law in proceeding under that section. 100 As both grounds concerned the consequences of the appellant being convicted in her absence pursuant to s 55 of the Criminal Procedure Act, it is convenient to address them together. It is also convenient to first summarise the procedure in s 55 and the findings made by Lemonis J in Reynolds v WA Police [No 2] (which decision the respondent says can be distinguished on its facts). The procedure in s 55 of the Criminal Procedure Act 101 Part 3 of the Criminal Procedure Act concerns prosecutions in courts of summary jurisdiction. Division 5 of that part applies if an accused is charged in a court of summary jurisdiction with a simple 87 ts 37, 38 (4 August 2025). 88 Exhibit B and Exhibit C. -- 30 of 47 -- [2026] WASC 206 STRK J Page 31 offence.89 Among other things, div 5 of pt 3 prescribes the procedure to be applied in various scenarios, including if there is no appearance by an accused charged in a court of summary jurisdiction with a simple offence, in circumstances where there has been no plea of guilty. 102 To this end, s 55 of the Criminal Procedure Act (which applies to prosecutions in the Magistrates Court of simple offences) provides as follows: (1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea. (2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may — (a) adjourn the charge; or (b) hear and determine the charge in the accused's absence. [(3) deleted] (4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court — (a) must presume, in the absence of evidence to the contrary — (i) that the prosecution notice was signed by a person who was acting under section 20(3); and (ii) that the person had the authority to sign the prosecution notice; and (b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. 89 Criminal Procedure Act s 48. -- 31 of 47 -- [2026] WASC 206 STRK J Page 32 (5) If under subsection (4) the court convicts the accused — (a) the prosecutor must state aloud to the court the material facts of the charge; and (b) section 129(4) applies; and (c) in the absence of evidence to the contrary, the court must take as proved any facts so stated. 103 Section 18 of the Criminal Procedure Act defines the term 'court date' for a charge in a prosecution notice as: (a) the first court date for the notice; or (b) if the charge has been adjourned to a new court date, the new court date; or (c) any other date set by a court as a date when it will deal with the charge. 104 As is noted above, counsel for the respondent drew the court's attention to the decision of Lemonis J in Reynolds v WA Police [No 2], in particular to his Honour's findings as to what is required for a valid decision to convict an accused of a charge pursuant to s 55. I did not understand the respondent to suggest that there was any error in his Honour's reasoning in Reynolds v WA Police [No 2]. Rather, it was submitted on behalf of the respondent that the facts before this court on appeal were distinguishable from those considered by his Honour.90 105 As was recorded by Lemonis J in Reynolds v WA Police [No 2], if the conditions in s 55(1) are met, s 55(2) and s 55(4) mandate that the following steps occur in order for the charge to be heard and determined in the accused's absence without evidence being called:91 (1) The court must be satisfied that the accused has been served with the notices specified in s 55(2). That is, the prosecution notice containing the charge and an additional notice notifying the accused of the hearing date and of the fact that the court may deal with the charge in the accused's absence if the accused does not appear. (2) The court exercises the discretion to hear and determine the charge in the accused's absence. 90 Respondent's outline of submissions filed on 4 July 2025, pars 25, 29. 91 Reynolds v WA Police [No 2] [97], citing Saad v Baron [2012] WASC 507 [58]. -- 32 of 47 -- [2026] WASC 206 STRK J Page 33 (3) The court determines that the prosecution notice is signed by a person who purports to be a person authorised to do so acting under s 20(3) of the [Criminal Procedure Act]. (4) The court must then presume, in the absence of evidence to the contrary, that the prosecution notice was validly issued. (5) The court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. This is not mandatory. Rather, 'the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence'. 106 As was further observed and explained by Lemonis J:92 In summary, the court must be satisfied of the matters set out at (1) and (3) above and must exercise the discretions set out at (2) and (5). Section 55 facilitates a quick and efficient hearing in the accused's absence. However, that does not mean there is no hearing at all. This is made clear by the language of s 55(2), which empowers the court to hear and determine the charge in the accused's absence. To be clear, I am not suggesting that the court needs to give detailed reasons setting out the basis upon which it decides to hear and determine the charge in the accused's absence without evidence being called. I expect that in most cases the court's decision can be explained in a few sentences that briefly address the requisite steps. The question here is whether the approach taken by the learned magistrate was too perfunctory, such that his Honour did not act in accordance with s 55. 107 In Reynolds v WA Police [No 2], a Magistrate had listed two pending matters for trial on 26 April 2022 in the appellant's presence. When the appellant's matter was first called on 26 April 2022, which was a few minutes before 10.00 am, the appellant was not present. The learned Magistrate waited until 10.00 am and then the court orderly went outside the courtroom to check whether the appellant was present. Having done so, the orderly reported there was no appearance. 108 The learned Magistrate then proceeded to enter a conviction under s 55 but did not give reasons for proceeding under s 55.93 The respondent maintained that it could be inferred that the Magistrate was satisfied that service had been effected as required by s 55(2), pointing to the following matters said to support that inference.94 92 Reynolds v WA Police [No 2] [98] - [99]. 93 Reynolds v WA Police [No 2] [88]. 94 Reynolds v WA Police [No 2] [90], [102] (footnote omitted). -- 33 of 47 -- [2026] WASC 206 STRK J Page 34 (1) As a matter of procedure, an accused will be served with the prosecution notice containing the charge prior to a matter being listed for trial. (2) The learned magistrate was not the resident magistrate in Albany and had attended the Magistrates Court at Albany to hear the matter. (3) From the transcript, the learned magistrate was aware the appellant was on bail and that the appellant had signed his bail undertaking as an executor. It therefore can be inferred that his Honour had paperwork before him, including paperwork concerning court dates. (4) The learned magistrate had turned his mind to the consequences of the appellant not appearing and was aware that it was not open to convict the appellant of charge AL 2150/2021 in his absence, as that charge was a breach of bail charge. (5) The learned magistrate was satisfied that he could proceed under s 55. 109 Lemonis J did not accept that such an inference was open in the circumstances, recording as follows:95 The starting point is that the learned magistrate and the prosecutor did not describe the provisions of s 55 in any detail. Rather, s 55 was only discussed in a general sense. The learned magistrate did not indicate that he was satisfied the appellant had been served as required by s 55(2) and did not make any enquiry in that regard. The appellant was aware of the hearing date of 26 April 2022 from having been present when that date was set on 18 November 2021. However, s 55(2) required that the learned magistrate be satisfied the appellant was served with notice specifying the hearing date of 26 April 2022 and advising that the court may deal with the charge in the appellant's absence on that date if he did not appear. It can be inferred from what the learned magistrate said that his Honour had reviewed the appellant's bail paperwork, however that does not lead to an inference that his Honour had also seen documents which satisfied the requirements of s 55(2). The matter of bail, and of service of the requisite notice, are distinct matters. Further, the respondent accepts that there is no evidence before me that shows that the requisite notice was served. 95 Reynolds v WA Police [No 2] [109] - [112] (footnote omitted). -- 34 of 47 -- [2026] WASC 206 STRK J Page 35 Accordingly, I am not satisfied that the learned magistrate found, either expressly or implicitly, that the requisite service requirements had been met. 110 A further submission was made on behalf of the respondent that the presumption of regularity supported the proposition that the learned Magistrate had made the requisite decisions under s 55.96 As was recorded by Lemonis J at [105], his Honour did not consider that presumption could extend to whether the learned Magistrate made the requisite findings, and exercised the requisite discretion, to allow the Magistrate to proceed to convict the appellant in reliance upon s 55(4). 111 His Honour also found that the learned Magistrate did not give any reasons explaining why it was appropriate to proceed to hear and determine the charge under s 55 within a few minutes after the matter was called. As to the exercise of discretion to proceed, his Honour observed as follows:97 In the absence of reasons, an assessment of whether it was open to the learned magistrate to exercise that discretion has to be assessed on the material that is before me. There may be many reasons a person is not present when their matter is called. Given the appellant had appeared previously in respect of the charge, and given that a charge of breaching a family violence restraining order is not a minor charge, I do not think it was open to assume that the appellant did not intend to contest the charge. Having regard to those matters, on the material before me, in my view it was not open to the learned magistrate to be satisfied it was appropriate to hear and determine the charge in the appellant's absence at the point in time his Honour did so. Accordingly, even if the learned magistrate had found that service had been effected as required by s 55(2), in my view it was not open to the learned magistrate to exercise the discretion to proceed under s 55. 112 As to the proper approach to the question, Lemonis J observed that:98 Whether or not the learned magistrate made the requisite findings, and exercised the requisite discretions, must be viewed against what was said as reflected by the transcript, and what can be inferred from what was said. That analysis does not commence with a presumption that s 55 was regularly applied. 113 In all of the circumstances, Lemonis J concluded that he was not satisfied that the learned Magistrate found, either expressly or 96 Reynolds v WA Police [No 2] [103]. 97 Reynolds v WA Police [No 2] [113]. 98 Reynolds v WA Police [No 2] [108]. -- 35 of 47 -- [2026] WASC 206 STRK J Page 36 implicitly, that the requisite service requirements had been met; and further, as to the exercise of discretion, his Honour concluded that it was not open to the learned Magistrate to be satisfied it was appropriate to hear and determine the charge in the appellant's absence at the point in time his Honour did so. His Honour concluded that the learned Magistrate made an error of law in using the procedure in s 55 to convict the appellant of charge. 99 Was the procedure in s 55 of the Criminal Procedure Act properly invoked in this case? 114 The appellant had been charged with 24 counts of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act. The offence of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act (being the only type of offence for which the appellant was charged as recorded in prosecution notices MI 342 to 358/2024 and MI 4444 to 4450/2024), is a simple offence. Were the conditions in s 55(1) met? 115 As is noted above, s 55(1) provides that s 55 applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea. 116 The hearing on 24 October 2024 was a 'court date' within the meaning of s 18(c) of the Criminal Procedure Act. 117 In this case, on a court date for the pending charges (24 October 2024), the prosecutor appeared and the accused did not and the accused had not pleaded guilty to the charges, whether orally or by means of a written plea. In the circumstances, the conditions in s 55(1) were met. Were the conditions in s 55(2) met? 118 As is noted above, s 55(2) provides that if on the court date the court is satisfied that the accused has been served under pt 3 of the Criminal Procedure Act with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may adjourn the charge; or hear and determine the charge in the 99 Reynolds v WA Police [No 2] [112], [113]. -- 36 of 47 -- [2026] WASC 206 STRK J Page 37 accused's absence. That is, the court was required to first be satisfied that the accused had been served with the notices specified in s 55(2) before deciding to hear and determine the charge in the accused's absence. 119 The relevant question for the purposes of s 55(2) was whether or not the learned Magistrate on the court date made the requisite finding - that is, on the court date was the Magistrate satisfied that the appellant had been served under pt 3 with the prosecution notice containing the charge and the approved notice. As was observed by Lemonis J, that question must be viewed against what was said by the learned Magistrate as reflected by the transcript, and what can be inferred from what was said.100 120 As to the proper approach to be taken to the reasons for decision given by magistrates, the respondent referred to the often cited observations made by Martin CJ in Strahan v Brennan:101 [90] Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time. [91] Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] - [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing). 121 I am cognisant of the same. That said, I also accept (as was noted by Lemonis J) that this did not mean that the learned Magistrate's 100 Reynolds v WA Police [No 2] [108]. 101 Respondent's outline of submissions filed on 4 July 2025, par 27. -- 37 of 47 -- [2026] WASC 206 STRK J Page 38 remarks can be interpreted to include material matters that were overlooked.102 122 At the hearing on 24 October 2024, the prosecutor did not address for the benefit of the Magistrate that the accused had been served with the prosecution notices. In the course of explaining that he would proceed under s 55, the Magistrate expressly referred to the prosecution notices and the history of the appellant's various attendances before the Court (and various failures to attend) as were recorded on the prosecution notices.103 However, the learned Magistrate did not indicate that he was satisfied the appellant had been served with the prosecution notices as required by s 55(2) and did not make any enquiry in that regard. 123 As to service of an approved notice, the assistance provided by to the Magistrate by the prosecutor was limited to the following:104 HIS HONOUR: On notice. I told Ms Negash, on 9 May, that if she didn't attend – because there were issues going on about her attendance, and I said I would convict her under section 55. BLOM, MR: Your Honour, if that's what she was told, and she's not here today, I'm going to say section 55. She has been given the information, and she still hasn't attended or notified the court of her non-attendance. 124 When the prosecutor said 'She has been given the information', it is unclear whether the prosecutor was referring to the verbal instruction that had been given by the Magistrate on 9 May 2024 (which had been recounted moments earlier) or to an approved notice. 125 As is accepted by the respondent, the learned Magistrate did not record in the transcript in clear terms that he had satisfied himself as to whether there had been service under pt 3 of the prosecution notices and the approved notice. Therefore, it is necessary it consider whether it can be inferred from what was said on the court date that the learned Magistrate turned his mind to and was satisfied that the appellant had been served under pt 3 with the prosecution notices containing the charges and an approved notice. 102 Reynolds v WA Police [No 2] [43]. 103 ts 3 (24 October 2024). 104 ts 2 (24 October 2024). -- 38 of 47 -- [2026] WASC 206 STRK J Page 39 126 The respondent relies on the factors reproduced in these reasons at [52], as developed in oral submissions.105 While I have given careful consideration to the same, I conclude that it cannot be inferred from what was said that the Magistrate turned his mind to the service of the prosecution notices and the approved notice, and on 24 October 2024 made the requisite findings - that is, on the court date the Magistrate was satisfied that the appellant had been served under pt 3 with the prosecution notices and the approved notices. 127 As to the factors relied upon by the respondent, I accept the following. (a) The Magistrate was very familiar with the matter and the parties, having presided over eight previous hearings.106 (b) At the hearing on 24 October 2024 the Magistrate stated 'I told [the appellant], on 9 May, that if she didn't attend - because there were issues going on about her attendance, and I said I would convict her under section 55'.107 (c) The Magistrate had listed the matter for trial on 2 July 2024, while the appellant was present (consistent with the circumstances in Reynolds v WA Police [No 2]). (d) At the 24 October 2024 hearing the Magistrate turned his mind to this, observed that the Appellant was 'on notice' and noted, '[s]he attended on 2 July 2024 and she was here. That was before me and explained to her no doubt – at time [the appellant] can become upset and emotional, and I'm fairly sure that she did on that last appearance, but I made it very clear that today was her trial date and she needed to attend.'108 (e) At the hearing on 24 October 2024 the Magistrate had regard to the prosecution notices and raised no issues with those notices, with the Magistrate referring to the 'history on the prosecution notices' and giving examples from that history.109 105 ts 42 - 44 (4 August 2025). 106 Prosecution notices for charges MI 342 to 358/2024 and MI 4444 to 4450/2024. 107 ts 2 (24 October 2024). 108 ts 3 (24 October 2024). 109 ts 3 (24 October 2024). -- 39 of 47 -- [2026] WASC 206 STRK J Page 40 128 As was the case in Reynolds v WA Police [No 2], in this case the learned Magistrate and the prosecutor did not describe the provisions of s 55 in any detail. Rather, s 55 was only discussed in a general sense. 129 As was the case in Reynolds v WA Police [No 2], it can be inferred in this case that the Magistrate would have had access to and was familiar with the court record. His Honour also plainly had before him and had regard to the prosecution notices. However that does not lead to an inference that his Honour had also seen documents which satisfied the service requirements of s 55(2). 130 As was the case in Reynolds v WA Police [No 2], in this case the appellant was aware of the hearing date from having been present when that date was set. 131 This case differs to that of Reynolds v WA Police [No 2] in that there is evidence before this court that the appellant was in fact served with the prosecution notices and the approved notice. However, that fact does not lead to an inference that his Honour had on the court date seen documents which satisfied the service requirements of s 55(2). 132 I also accept that this case differs to that of Reynolds v WA Police [No 2] in that the transcript makes plain that the Magistrate turned his mind to whether the appellant was on notice of the hearing. His Honour recorded that he had informed the appellant of the hearing and of the consequences of a failure on her part to attend. However, while sufficient for the purposes of s 75(4)(b) of the Criminal Procedure Act, such verbal instruction is not sufficient service for the purposes of s 55(2), and the fact that he gave verbal instruction does not lead to an inference that his Honour had on the court date seen documents which satisfied the service requirements of s 55(2). 133 In the end, I was not satisfied that it could be inferred from what was said during the course of the hearing on 24 October 2024 that the Magistrate turned his mind on 24 October 2024 to the prosecution notices and the approved notice, and made the requisite finding - that is, on the court date the Magistrate was satisfied that the appellant had been served under pt 3 with the prosecution notices and the approved notice notifying her of the date and that the court may deal with the charges in her absence if she did not appear on that date. 134 In the circumstances, the conditions in s 55(2) were not met. -- 40 of 47 -- [2026] WASC 206 STRK J Page 41 135 I too expect that in most cases the court's decision to proceed under s 55 can be explained in a few sentences that briefly address the requisite steps.110 In this case, the learned Magistrate was not assisted by the prosecutor as to service. In this case, while the Magistrate's reasons were more extensive than those which the court considered in Reynolds v WA Police [No 2], the Magistrate did not expressly address the mandated steps and it cannot be inferred from what was said that he made the requisite findings. Therefore, his Honour did not act in accordance with s 55. 136 Having so found, for completeness I note that these reasons should not be taken as finding that the appellant's non-attendance at the time fixed for trial was for some good reason and therefore justified in the circumstances. It was not. Discretion exercised for reasons given 137 In this case, the learned Magistrate exercised the discretion to hear and determine the charges in the accused's absence and gave reasons for proceeding to convict the appellant pursuant to s 55. 138 As was outlined on behalf of the respondent, the learned Magistrate explained why he reached his conclusion to convict under s 55. Those reasons as recorded in the transcript (reproduced at [13] above), included those matters summarised by counsel for the respondent, reproduced at [55] above.111 139 The learned Magistrate plainly exercised discretion to proceed under s 55 and recorded his reasons for doing so. The learned Magistrate's reasons and decision to exercise his discretion were recorded and were not unreasonable or plainly unjust.112 Was the condition of s 55(4) met? 140 Section 20(3) of the Criminal Procedure Act relevantly provides that a prosecution for an offence may be commenced by (among others) a police officer acting in the course of his or her duties. By s 23(2)(d), a prosecution notice must be signed by the person who is commencing the prosecution. 141 Section 55(4) relevantly provides that if under subsection (2) the court decides to hear and determine the charge in the accused's absence 110 Reynolds v WA Police [No 2] [99]. 111 Respondent's outline of submissions filed on 4 July 2025, par 30, citing ts 2 - 3 (24 October 2024). 112 House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 -- 41 of 47 -- [2026] WASC 206 STRK J Page 42 and the prosecution notice is signed by a person who in the notice purports to be a person acting under s 20(3), the court: (a) must presume, in the absence of evidence to the contrary — (i) that the prosecution notice was signed by a person who was acting under section 20(3); and (ii) that the person had the authority to sign the prosecution notice; and (b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. 142 That is, before the Magistrate may take as proved any allegation in the prosecution notice containing the charge that was served on the accused, the prosecution notice must be signed by a person who purports to be a person authorised to do so acting under s 20(3) of the Criminal Procedure Act. 143 A certified copy of the prosecution notices were filed in the appeal. The prosecution notice for charges MI 342 to 358/2024 records Constable Joshua Pelleymounter to be the person who issued the notice on 14 December 2023. The prosecution notice for charges MI 4444 to 4450/2024 records Constable Joshua Thomson to be the person who issued the notice on 7 May 2024. Accordingly, the prosecution notices must be taken to be signed by the police officers.113 144 I accept the respondent's submission that at the hearing on 24 October 2024 the Magistrate had regard to the prosecution notices and raised no issues with those notices, with the Magistrate referring to the 'history on the prosecution notices' and giving examples from that history.114 145 In the circumstances, the condition of s 55(4) that the prosecution notice must be signed by a person who purports to be a person authorised to do so acting under s 20(3) of the Criminal Procedure Act was satisfied. 113 Carden v Dragojevic [2025] WASCA 47 [53] - [58]; Cousins v WA Police [2025] WASC 39 [30] - [31]. 114 ts 3 (24 October 2024). -- 42 of 47 -- [2026] WASC 206 STRK J Page 43 Conclusion 146 The effect of proceeding under s 55 was stated as follows in Koh v City of Joondalup [2012] WASC 493 at [31]:115 First, it empowers the court to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. ... Secondly, it denies the accused the opportunity to contest the prosecution evidence, lead contrary evidence and make submissions on the evidence. 147 In this case the Magistrate took as proved the allegations in the prosecution notices. However, for the reasons set out above, I was not satisfied that the learned Magistrate found, either expressly or by inference, that the requisite service requirements had been met, and therefore the learned Magistrate made an error of law in proceeding under s 55 of the Criminal Procedure Act to convict the appellant. 148 Where the procedure in s 55 has not been properly invoked, there is a miscarriage of justice and there is no scope for the application of s 14(2) of the Criminal Appeals Act.116 149 The success of the appeal does not affect whether the charges can be successfully proved beyond reasonable doubt. The appropriate consequential orders are therefore to set aside the judgment of conviction and order that the charges be referred for hearing to the Magistrates Court. Ground 3 150 Having so found, it was not necessary to consider whether the discretion to make a spent conviction order was enlivened, and whether the failure to make a spent conviction order had occasioned a miscarriage of justice. Orders 151 In conclusion, for these reasons: 1. the appellant's application for extension of time is granted; 2. the appellant's application to adduce further evidence is granted; 115 Citing Tallot v Matier [2012] WASC 290 [12] - [13]. 116 Reynolds v WA Police [No 2] [115]; Reynolds v Nonkovic [2023] WASC 326 [27]; ts 44 (4 August 2025). -- 43 of 47 -- [2026] WASC 206 STRK J Page 44 3. the respondent's application to adduce further evidence is granted; 4. leave to appeal is granted in respect of charges MI 342 to 358/2024 and MI 4444 to 4450/2024; 5. the appeal is allowed; 6. the appellant's conviction and sentences in respect of charges MI 342 to 358/2024 and MI 4444 to 4450/2024 imposed on 24 October 2024 are set aside; 7. the order as to costs in the amount of $272.70 is set aside; and 8. the matter is remitted to the Magistrates Court, differently constituted, to be heard and determined according to law. -- 44 of 47 -- [2026] WASC 206 STRK J Page 45 Sch A - Facts of the offending The accused in this matter is bound by family violence restraining order 644 of 2023. The order was served at 10.18 am on Monday, 24 July 2023. This order is effective until 23 July 2025. One of the conditions in this order is not to communicate or attempt to communicate with the person protected by any means whatsoever, including SMS, or text messages or any other electronic means. A second condition of the order is not to cause or allow any person to engage in conduct of a type referred to in any of the preceding paragraphs of this order on her behalf – or your behalf, as it says in the order. Tuesday, 29 August 2023, victim received two text messages from a phone linked to the accused. The times of these messages were 7.34 pm. The victim also received 19 calls from a no caller ID and has answered two of them, recognising her voice in both. Message one attached as an audio recording and then two, it was: Hi, this is Mel. My sister, she don't contact you. We tried calling you but you blocked all of us. Stop ruining her life. Thank you. On Monday, 2 October 2023, the accused was arrested and participated in a formal record of interview. Made nil admissions, your Honour. And we'll try and shorten this down. Charge 343, Wednesday, 30 August '23, the victim received four calls from a no-caller ID. Upon further investigation, determined that one of these calls were made from a number linked to the accused, at 6.52. And then on Friday, 1 September 2023, the victim received one call from no-caller ID. Upon further investigation, it was determined that this call was made from a number linked to the accused at 2.25 pm. In regard to charge 345, Saturday, 2September 2023, victim received two calls from a no-caller ID. Upon further investigation, it was determined that these calls were made from a number linked to the accused at 10.03 am and 5.21 pm. Charge number 346, Sunday, 3 September 2023, victim received two calls from a no-ID caller number. Upon further investigation, was determined that both these calls were made from a number linked to the accused at 1.53 pm and 3.59. Charge number 347, Monday, 4 September 2023. Victim received 12 calls from a no-caller ID. Victim answered five of the calls and recognised the accused's voice in each one of them. Upon further investigation, it was determined that one of the calls was made from a number linked to the accused at 9.14 am. Wednesday, 6 September 2023, victim received one call. The victim answered this call and recognised the accused's voice. Upon further investigation, the call was made from a number linked to the accused at 4.56. -- 45 of 47 -- [2026] WASC 206 STRK J Page 46 Charge number 349, Friday, 8 September 2023, victim received one call. Victim answered the call and recognised the accused's voice. Upon further investigation, it was determined that this call was made from a number linked to the accused at 8 am. 350, Saturday, 9 September '23, victim received one call. Upon further investigation, it was determined the call was made by a number linked to the accused at 3.20 pm. Charge number 351, Sunday, 10 September '23, victim received a call. Further investigation, it was determined that this call was made from a number linked to the accused at 10.32. 352, Wednesday, 13 September '23, victim received one call, no-caller ID, victim answered call and recognised the accused's voice. The accused said 'Happy anniversary'. Upon further investigation, it was determined that this call was made from a number linked to the accused at 6.53 am. Charge number 353, Thursday, 14 September '23, victim received one call from a no-caller ID. Upon further investigation, determined the call was made from a number linked to the accused at 7.21 pm. Charge number 354, Friday, 15 September 2023, victim received three calls. Further investigation, it was determined that these calls were made from a number linked to the accused at 6.52, 6.53 and 7.34 pm. Charge 355, Saturday, 16 September 2023, the victim received 25 calls from a number with no-caller ID. Upon further investigation, it was determined that these 18 calls were made from a number linked to the accused at the following times, 4.13 am, 10.25 am, 10.52 am, 11.19 am, 11.23 am, 5.43 pm, 6.30 pm, 6.31 pm, 6.32 pm, 6.33 pm, 6.34 pm, 6.36 pm, 6.41 pm, 6.52 pm, 6.55 pm, 6.57 pm, 7.17 pm and 7.51 pm. Charge number 356, Sunday, 17 September 2023, victim received eight calls from a no-caller ID. Further investigation determined nine calls were made from a number linked to the accused, to the victim, following times, 6.52 am, 6.53 am, 11.18 am, 1.20 pm, 6.18 pm, 6.42 pm, 6.52 pm, 7.09 pm and 7.35 pm. Charge 357, Monday, 18 September, victim received eight calls. Victim answered five of the calls and recognised the accused's voice in each of them. Upon further investigation, it was determined five of the calls were made from a number linked to the accused at following times, 11.16 am, 11.32 am, 11.33 am, 11.34 am and 11.35 am. Charge 358, Saturday, 23 September 2023, victim received one call. Victim answered the call, recognised the accused's voice. Further investigation determined the call was from a number linked to the accused at 5.17 pm. In regard to charge 4444 of '24, I would say same protected person, same conditions. Sunday, 12 November 2023, the accused called the victim off a private number at 5.01 pm, 5.28 pm. Telco call log showed that the calls originated from a number, **** *** 797, which is registered to the accused. -- 46 of 47 -- [2026] WASC 206 STRK J Page 47 4445, Saturday, 18 November 2023, the accused called the victim, off a private number, a total of four times between 11.34 and 11.56. The victim rejected the calls each time. Call log showed that it originated from **** *** 797, which is registered to be accused. Charge number 4446, Monday, 20 November 2023, the accused called the victim off a private number at 7.06 am. Victim rejected the call. Telco call log showed the calls originated from **** *** 797, registered to the accused. Charge number 4447, Wednesday, 29 November 2023, the accused called the victim off a private number three times between 6.54 and 7.59 pm. On each time, the victim answered, heard the accused talk and then hung up. Telco call logs show originated from **** *** 797, which is registered to the accused. Thursday 30th, charge number 4448 of 2023, the accused called the victim off a private number, total of 11 times between 6.14 am and 10.23 pm. Five calls were rejected by the victim, four calls were answered by the victim and, upon hearing the accused speak, were hung up. Two of the calls were recorded by another phone, and the accused can be heard conversing with the victim. Telco call logs showed the calls originated from **** *** 797, registered to the accused. And then 4449, Friday, 1 December 2023, accused called the victim of a private number total of six times between 6.17 am and 6.23 pm. Three of those calls the accused spoke with the victim on the phone, and the other three calls were rejected. Telco call logs show these calls originated from **** *** 797, which is registered to the accused. Thankfully, the last one, Saturday, 2 December 2023, the accused called the victim off a private number a total of 20 times. Most of the calls were rejected by the victim, however there are seven occasions the victim answered and heard the accused on the line. Call logs from Telco show that these originated from **** *** 797, which is registered to the accused. Thank you, your Honour. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CR Associate to the Honourable Justice Strk 29 MAY 2026 -- 47 of 47 --