PENFOLD -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 172

[2026] WASC 172 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PENFOLD -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 172 CORAM : FORRESTER J HEARD : ON THE PAPERS DELIVERED : 4 MAY 2026 FILE NO/S : SJA 1023 of 2026 BETWEEN : JAMES COYLE PENFOLD Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE DINEEN File Number : EX 84/2025 & EX 85/2025 Catchwords: Criminal law - Single judge appeal - Application for leave to appeal against decision - Whether grant of leave for witness to appear via video link constitutes a decision -- 1 of 6 -- [2026] WASC 172 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Rules 2005 (WA) Result: Leave to appeal refused Application dismissed Category: B Representation: Counsel: Appellant : No appearance Respondent : No appearance Solicitors: Appellant : No appearance Respondent : No appearance Case(s) referred to in decision(s): JS v The State of Western Australia [2014] WASCA 177 -- 2 of 6 -- [2026] WASC 172 FORRESTER J Page 3 FORRESTER J: Introduction 1 The appellant in this case lodged an appeal notice on 2 April 2026, applying for leave to appeal against the court's decision: To approve an application for witness CLAYS to appear via video link from a non-preferred video link facility. 2 The grounds of appeal are framed in the following terms: 1. That the trial judge erred in fact that the applicant's chosen non-preferred 'Coral Bay Nursing Post' video link facility meets minimum bandwidth requirements with respect to PDG 3.5(b). 2. Allegation that the video link applicant failed to meet requirements of 3.2.6 & 3.5(b) of the Practice Directions - General, in relation to the proper process, for applications, for the use of non-preferred video link facilities, with respect to an alleged failure by the applicant to produce written confirmation whether, or how, the Coral Bay Nursing Post meets minimum bandwidth requirements for video link conferences - PDG 3.2.6 & 3.5(b). 3 In this case, I have determined it is appropriate to make a decision on the basis of the documents lodged and without requiring a hearing of the appeal, pursuant to r 60(1)(c) of the Criminal Procedure Rules 2005 (WA) (CPR). This constitutes a 'provisional decision' which must be dealt with in accordance with r 63 of the CPR. 4 In my view, for the reasons which follow, the appeal is not competent and leave to appeal must be refused and the appeal dismissed. Disposition 5 In JS v The State of Western Australia,1 McLure P said: An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derive solely from the governing legislation, in this case the Criminal Appeals Act 2004 (WA) (the CAA). The CAA covers the field in relation to appeals from statutory offences [4]. (citations omitted) 1 JS v The State of Western Australia [2014] WASCA 177. -- 3 of 6 -- [2026] WASC 172 FORRESTER J Page 4 6 The statutory basis on which the appellant purported to commence this appeal is pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (CAA). The CAA relevantly provides: 6. Terms used In this Part, unless the contrary intention appears - decision, of a court of summary jurisdiction, means any of the following - (a) a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3); (b) a decision ordering a permanent stay of a prosecution; (c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial; (d) a decision to acquit an accused of a charge; (e) a decision to acquit an accused of a charge on account of mental impairment; (ea) a decision under the Criminal Law (Mental Impairment) Act 2023 section 29 that an accused is fit, or unfit, to stand trial; (eb) an order under the Criminal Law (Mental Impairment) Act 2023 section 37(2)(a) discharging an accused from a charge or a refusal to make such an order; (ec) a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c); (ed) an order under the Criminal Law (Mental Impairment) Act 2023 Part 5 or a refusal to make such an order; (ee) the setting of a limiting term under the Criminal Law (Mental Impairment) Act 2023 section 50(2); (f) a sentence imposed, or order made, as a result of a conviction or acquittal; (g) a refusal to make an order that might be made as a result of a conviction or acquittal; (h) a decision as to costs; (i) a decision made under the Criminal Investigation Act 2006 section 151; -- 4 of 6 -- [2026] WASC 172 FORRESTER J Page 5 Supreme Court means the Supreme Court constituted by a single judge sitting in its General Division. 7. Right of appeal (1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. … (4) Except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction. 7 In the section of the appeal notice lodged by the appellant, he has described the 'decision' appealed against as: To approve an application for witness CLAYS to appear via video link from a non-preferred video link facility. 8 Such a decision on the part of the learned Magistrate does not constitute a 'decision' within the meaning of s 6 of the CAA. 9 The Grounds of Appeal do not alter the position. They verify that the decision of the learned magistrate, which the appellant seeks to appeal, is not a 'decision' within the meaning of s 6 of the CAA. 10 Further, and in any event, it appears that, by his references to 'the Practice Directions - General' and 'PDG', the appellant means the Practice Directions - General issued by the District Court of Western Australia. Those Practice Directions expressly provide that they apply to all civil and criminal proceedings in the District Court. They have no application in the Magistrates Court. 11 There is no other apparent basis on which the appellant can appeal the order of the learned Magistrate that a witness give evidence by video link. 12 The appeal is not competent. Leave to appeal must be refused and the appeal dismissed. 13 Pursuant to r 63 of the CPR, this provisional decision must be served on the parties. Unless a Form 25 is lodged within five working days of service, the decision will become final. -- 5 of 6 -- [2026] WASC 172 FORRESTER J Page 6 Addendum 14 No Form 25 was lodged by either party within five working days of service of the provisional decision. Accordingly, the decision is now final and I will make orders accordingly. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CA Associate to the Hon Justice Forrester 4 MAY 2026 -- 6 of 6 --