THE STATE OF WESTERN AUSTRALIA -v- DM [2026] WADC 69

[2026] WADC 69 [2026] WADC 69 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- DM [2026] WADC 69 CORAM : HERRON DCJ HEARD : 27 JULY 2026 DELIVERED : 31 JULY 2026 FILE NO/S : IND 710 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND DM Catchwords: State's notice of discontinuance - Section 87 Criminal Procedure Act 2004 (WA) - Discontinuance opposed - Whether court should refuse to consent to the discontinuance - Whether exceptional circumstances pursuant to s 87(5) Criminal Procedure Act 2004 (WA) established on the basis the discontinuance is an abuse of process - Discontinuance consented to Legislation: Criminal Procedure Act 2004 (WA), s 87 -- 1 of 18 -- [2026] WADC 69 [2026] WADC 69 [JM] Page 2 Result: Notice of discontinuance consented to Representation: Counsel: Applicant : Ms M Greenshields Accused : Mr H Thomas-Dubler Solicitors: Applicant : State Director of Public Prosecutions Accused : Frederick Jordan Chambers (NSW) Case(s) referred to in decision(s): Morris v Hall [2022] WASC 400 Moti v The Queen (2011) 245 CLR 456 R v Jell; Ex parte Attorney-General [1990] 1 Qd R 48 R v Lorkin (1995) 15 WAR 499 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 -- 2 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 3 HERRON DCJ: 1 At a directions hearing on 27 July, after hearing submissions from counsel, I consented to the State's notice of discontinuance dated 18 June 2026 and ordered that the hearing to pre-record the evidence of the complainant on 24 August 2026 be vacated and that the trial commencing on 25 August 2026 be similarly vacated. I also discharged the accused. I informed the parties I would later provide written reasons for my decision to accept the notice of discontinuance. These are my reasons for decision. Introduction 2 By indictment dated 18 June 2026, the accused, DM, is charged with three counts of indecent dealing against the complainant when she was under the age of 13. It is alleged the complainant was aged 11 when the offending is alleged to have occurred in 2024, and the accused was aged 44. At the time the offending is alleged to have occurred, the complainant was the accused's stepdaughter. 3 The complainant participated in a child witness interview with a specialist police interviewer on 17 September 2024 during which she made the allegations the subject of the three counts on the indictment. 4 The accused was arrested and charged with the offending on 24 September 2024. 5 By application dated 18 June 2026 the State asks the court to consent to its notice of discontinuance dated 18 June 2026 to each count on the indictment. 6 The accused opposes the acceptance of the notice of discontinuance on the basis it is an abuse of process. 7 The accused has filed written submissions in opposition to the notice of discontinuance being accepted by the court. The State has filed written submissions in support of the notice of discontinuance being consented to by the court. The State has also filed an affidavit of Stacey Laurinda Watts affirmed on 17 July 2026 which sets out the factual chronology and background explaining why the notice of discontinuance has been filed, which factual background I accept and adopt into these reasons. -- 3 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 4 8 Essentially, the reason for the notice of discontinuance is that the child complainant, who is now aged 13, and has been diagnosed with autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD), became distressed when she met with the prosecutor in preparation for her evidence being prerecorded and was unwilling to watch or listen to the child witness interview conducted on 17 September 2024. Chronology 9 After the accused was arrested and charged on 24 September 2024 the Office of the Director of Public Prosecutions (ODPP) took over conduct of the matter in December 2024. 10 On 30 December 2024, the file was allocated to Ms Watts as file manager. 11 On 2 January 2025, Ms Watts emailed the investigating officer with several queries including whether the complainant and her guardians were supportive of the prosecution. 12 On 14 January 2025, the investigating officer advised that she had recently spoken to the complainant and her mother, and they were both supportive of the prosecution. 13 On 26 March 2025, Ms Watts spoke with the complainant's mother by phone, and she confirmed that there had been no indication by the complainant that she would not support the prosecution or be able to give evidence. In subsequent communications, the complainant's mother gave no indication that the complainant was unwilling or unable to continue. 14 The indictment was signed and filed with the court on 14 August 2025. 15 The first trial listing hearing was held on 15 August 2025. 16 The matter was adjourned to a further trial listing hearing on 12 September 2025 due to the defence not having filed a notice of acting. There were then several further adjournments due to the accused obtaining new legal representation and then having requested further disclosure (of the accused's phone download). -- 4 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 5 17 At a trial listing hearing on 7 November 2025, the matter was listed for a pre-recording on 20 March 2026 and a trial on 25 August 2026. 18 On 18 March 2026, prosecution counsel for the pre-recording met with the complainant at the Child Witness Service for conferencing. The complainant engaged in rapport building conversation but became distressed when the conversation started to concern her evidence. The complainant was unwilling to watch or listen to the child witness interview. 19 The State then sought to adjourn the 20 March 2026 hearing on the basis that the complainant was unable to continue, but could become able before the next hearing. The pre-recording was adjourned to 24 August 2026 (being the day before the already listed trial). 20 Counsel for the State then met with the complainant a further two times for rapport building; with each meeting more than one hour long. 21 On the morning of 17 June 2026, counsel for the State met with the complainant again and attempted to discuss the evidence. The complainant refused. 22 On 18 June 2026 (approximately two months before the next listed pre-recording/trial hearing), the notice of discontinuance was signed and filed The legal principles 23 Relevantly, by s 87 of the Criminal Procedure Act 2004 (WA) (CPA): … (3) At any time after an indictment is lodged with a superior court, the relevant authorised officer may lodge with the court a notice discontinuing the prosecution of the charge, or of some or all of the charges, in the indictment, as the officer decides. (4) A notice under subsection (1) or (3) must be - (a) in writing in a prescribed form; and (b) signed by the relevant authorised officer; and (c) lodged in the prescribed manner. -- 5 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 6 (5) When a notice is lodged under subsection (1) or (3), the court may consent or, in exceptional circumstances, refuse to consent to the discontinuance of the prosecution concerned. (6) If a prosecution of a charge is discontinued, the court must discharge the accused from the charge. (7) The fact that the prosecution of an accused for a charge is discontinued under this section does not prevent the accused from being charged later with the same offence, either in a court of summary jurisdiction or in a superior court. (emphasis added) 24 The issue in relation to the dispute between the State and the accused is whether, pursuant to s 87(5), 'exceptional circumstances' have been established to justify the court refusing to consent to the discontinuance of the prosecution of the charges in the indictment. 25 The accused principally relies upon R v Lorkin,1 which in turn refers to and approves the reasoning in R v Jell; Ex parte Attorney-General.2 26 The facts in Lorkin are that shortly before a trial before a jury was due to start, an application was made on behalf of the Crown to adjourn the trial because of the unavailability of two key witnesses, one of them being the principal witness. The second witness had not been found. Attempts to serve subpoenas on the witnesses had only been made within the week or so before the trial was due to commence. The application for an adjournment was opposed on the ground of injustice to the accused by further delaying proceedings which had already been considerably delayed and because of the Crown's failure to take timely steps to prepare for trial and secure the attendance of its witnesses at the trial. The application was also opposed on the basis of substantial costs which would be incurred by the accused if an adjournment was granted. 27 In refusing the application, the trial judge considered whether injustice would be caused to the Crown if it was deprived of the ability to properly present its case, but determined that because the Crown had not done all that it should have to prepare for trial, including to subpoena its witnesses, the Crown had failed to properly prepare for trial. 1 R v Lorkin (1995) 15 WAR 499 (Lorkin). 2 R v Jell; Ex parte Attorney-General [1990] 1 Qd R 48 cited in Lorkin 517 - 518 (Malcolm CJ). -- 6 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 7 28 The trial judge also considered that injustice would be caused to the accused because of further delay and because the costs of the adjournment, which would be considerable, could not be recovered. 29 Finally, the trial judge took into account that even if the accused was convicted, the likely penalty would be a substantial fine which would probably be less than the costs the accused would incur by costs thrown away by reason of the adjournment if it were granted. 30 The following day the Crown presented a nolle prosequi which the judge refused to accept on the basis it was an abuse of process designed to subvert the refusal of the adjournment application. The matter was then called on for trial and after the Crown presented no evidence, the jury was directed to return a not guilty verdict. 31 On appeal the majority of the Full Court (Malcolm CJ and Kennedy J; Murray J dissenting) held the court retains the power to refuse to accept a nolle prosequi to prevent an abuse of process and, in the circumstances of that case, it was held the trial judge was correct to refuse to accept the nolle prosequi.3 32 Malcolm CJ, with whom Kennedy J agreed, said:4 In my opinion, the use of the nolle prosequi in the circumstances of this case could only serve one purpose, namely, to preserve to the Director the option of presenting a fresh indictment in a situation in which, as a result of the failure of his officers to take the necessary steps to secure the attendance of witnesses, the administration of justice demanded that an adjournment be refused and the trial be called on. In such circumstances, while there is no suggestion of any impropriety on the part of the Director or any of his officers, the effect of the nolle prosequi was to secure to the prosecution an opportunity to recommence the prosecution in the circumstances where the court was rightly of the opinion that an adjournment should be refused and a jury empanelled because any further delay in the trial would be unfair and prejudicial to the respondent. The case for the respondent was that the use of the nolle prosequi in such circumstances had the effect of thwarting the attempt of the trial judge to do justice by the refusal of the adjournment on the footing that the trial would be called on. Significantly, one of the specific reasons for the refusal of the adjournment was that the ultimate penalty was likely to be a fine and the costs thrown away by the respondent would be likely to exceed the amount of any fine imposed. 3 Lorkin (519) - (520) (Malcolm CJ), (522) (Kennedy J). 4 Lorkin (515). -- 7 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 8 33 Malcolm CJ further observed:5 If the reasoning and decision in Jell are sound, and they certainly accord with my sense of justice, there is no reason why the same should not apply where the trial has not begun but the date for trial has been fixed in accordance with the regular procedures of the court. When the accused appears for trial on that date, the interests of justice may demand that, if the prosecution does not wish to proceed and there is no valid reason why the accused should remain exposed to prosecution in respect of the alleged conduct, there be a verdict of not guilty by direction. There may of course be valid reasons why a nolle prosequi should be accepted even during trial. A vital witness may be incapacitated or there may be suspected witness tampering causing a vital witness to change his story. Other examples can readily be imagined. Where, however, there are no such reasons and the power to enter a nolle prosequi is used in a manner which would operate oppressively to the accused or would amount to defiance of procedural directions given by the court, there must be a serious question as to whether the court may not protect its process from abuse by declining to accept the nolle prosequi. (emphasis added) 34 Malcolm CJ later held:6 In my view, for the reasons I have indicated and in the light of the conclusion which I have reached in relation to the undoubted correctness of his Honour's decision to refuse the adjournment, I have concluded that the circumstances were sufficiently exceptional to justify the learned trial judge in refusing to accept the nolle prosequi. The only purpose to be served by the acceptance of the nolle prosequi would be to preserve the discretion of the Director to present a fresh indictment. In the circumstances the presentation of a fresh indictment would necessarily be inconsistent with the refusal of the adjournment, could only be calculated to defeat the ends of justice sought to be achieved by that refusal and would constitute an abuse of process. In my view, it is no answer to suggest that the question whether a further prosecution commenced by the presentation of a fresh indictment ought to be stayed as an abuse of process should only be considered, if and when the indictment is presented. The learned trial judge was entitled to protect the integrity of the process before him and take whatever steps he could to prevent the possibility of an injustice. The refusal to accept the tender of the nolle prosequi was such a step. 35 Of course, Lorkin was decided before the CPA was enacted, but in my view s 87(5) reflects the common law position as discussed in Lorkin and similar principles apply. That is, the court can refuse to 5 Lorkin (517) - (518). 6 Lorkin (519). -- 8 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 9 accept a notice of discontinuance in exceptional circumstances such as to prevent an abuse of process. Although in Lorkin the majority of the Full Court held that the purpose of acceptance of the nolle prosequi would be to preserve the discretion of the Director to present a fresh indictment, which in the circumstances of that case where an application for an adjournment of the trial had been refused, would constitute an abuse of process, s 87(7) of the CPA expressly recognises the discontinuance of a prosecution does not prevent the accused from later being charged with the same offences. Therefore, the fact that an acceptance of a notice of discontinuance preserves the State's ability to later charge the accused and recommence the prosecution, is not, by itself, an abuse of process such as to constitute 'exceptional circumstances' for the purposes of s 87(5). 36 The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and is a 'heavy one'.7 There is no legal or evidential burden on the prosecution to prove that the discontinuance would not be an abuse.8 If the court is not satisfied that the discontinuance would be an abuse of process, the court must consent to the discontinuance and dismiss the charge.9 37 Although the categories of abuse of process remain open, abuses of process usually fall into one of three categories: 1. The court's powers are invoked for an illegitimate purpose. 2. The use of the court's procedures is unjustifiably oppressive to one of the parties. 3. The use of the court's procedures would bring the administration of justice into disrepute.10 38 There are two aspects to an abuse of process: (a) that of vexation, oppression and unfairness to the other party; and (b) the fact that the administration of justice may be brought into disrepute.11 7 Williams v Spautz (1992) 174 CLR 509, 529. 8 Morris v Hall [2022] WASC 400 [48] (Archer J). 9 Morris v Hall [47]. Although Morris v Hall was concerned with the power of a Magistrates Court, pursuant to s 25(2) CPA to refuse to consent to the discontinuance of the prosecution if satisfied the 'discontinuance would be an abuse of process' rather than being satisfied there were 'exceptional circumstances' referred to in s 87(5) CPA similar considerations apply. 10 Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J) (Rogers). -- 9 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 10 39 In Walton v Gardiner12 at 395 Mason CJ, Deane and Dawson JJ said: As was pointed out in Jago (49), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. 40 Decided cases do not determine the boundaries of abuse of process.13 41 In Moti v The Queen, French CJ, Gummow, Hayne, Crennan and Kiefel JJ, citing the joint judgment of the majority in Williams v Spautz at (519) - (520) said at [57]: … two fundamental policy considerations affect abuse of process in criminal proceedings. First, 'the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike'. Second, 'unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.'. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements. Defence submissions 42 In this case the accused submits the notice of discontinuance seeks to subvert the ordinary processes of the court by seeking to unilaterally grant itself an adjournment for an indefinite period where it is 'highly unlikely' the court would grant an adjournment. It is submitted, accepting the notice of discontinuance 'would have the effect of eroding public confidence in the court's processes'. 43 I reject that submission. First, I do not accept that had the State applied for an adjournment it was 'highly unlikely' the court would grant an adjournment. Given Dr Watts' opinion it is my view, 11 Rogers (256) (Mason CJ). 12Walton v Gardiner (1993) 177 CLR 378. 13 Moti v The Queen (2011) 245 CLR 456 [60]. -- 10 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 11 depending upon the length of an adjournment sought and any further evidence as to whether the child complainant might in due course be prepared to talk about the allegations in the indictment, an adjournment would have been granted. 44 Nor do I accept the filing of the notice of discontinuance is improper because it seeks to subvert the ordinary processes of the court. By s 87(5) of the CPA the State is both empowered and entitled to file a notice of discontinuance and the court must consent to the discontinuance unless it is satisfied exceptional circumstances exist. 45 The submission also ignores s 87(7) of the CPA which expressly recognises that notwithstanding the filing of a notice of discontinuance the State is not prevented from later charging the accused with the same offence. In my view, by the plain words of s 87(7), the State is permitted to later charge the accused with the same charge or charges notwithstanding the State has discontinued a prosecution because it has formed the view that on the basis of the evidence which then existed there were no reasonable prospects of conviction. There is nothing improper by the State proceeding in such a manner. To refuse to accept the notice of discontinuance which would have the effect of preventing the State from later charging the accused with the same offences if the complainant was later able and willing to discuss and give evidence about the circumstances of the serious allegations she makes in the child witness interview would, in my view, undermine public confidence in the administration of justice.14 46 It is further submitted the proceedings have been running for a period of almost two years and that the State has had a significant period of time in which to engage with the complainant and ensure that she is willing to participate. The accused emphasises that since March 2026 nothing has changed concerning the complainant's willingness to discuss the circumstances of the offending with the prosecutor. 47 The accused also submits a reason for refusing an adjournment application is that the accused has been subject to bail for a considerable period and has been put to the expense of legal representation. 48 I reject the accused's submissions. In my view the submissions fail to acknowledge the different factual circumstances which were relevant in Lorkin which distinguish that case from the factual 14 Walton v Gardiner cited at [39] above. -- 11 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 12 circumstances which are present here. In particular, the accused's submissions, fail to have regard to and acknowledge the seriousness of the allegations the State makes and the vulnerabilities of the child complainant, both by reason of her young age and by reason of her neurodiversity diagnosis, that is her diagnosis of ASD and ADHD. 49 In Lorkin, the court was critical of the prosecution for its failure to properly prepare for the trial and subpoena its own witnesses. Essentially the court found the reason for the adjournment application was because of the fault of the prosecution in not properly preparing and that fault should not be visited upon the accused, particularly when there had already been delays. 50 Further, and importantly, the alleged offending in that case was much less serious than the offending in this case which reflected a likely penalty of a fine rather than a term of imprisonment if the accused had been convicted after trial. That is to be contrasted with the circumstances here, where if convicted, the likely sentence will be a term of imprisonment. 51 Further in Lorkin there were delays with the prosecution and the matter proceeding to trial. There are no such delays in this matter. Indeed, the matter has proceeded relatively quickly and efficiently. 52 In Lorkin it was held the filing of a nolle prosequi sought to subvert the earlier decision of the court to refuse the adjournment application. There has been no application for adjournment in this case. In my view it is quite proper for the State to file a notice of discontinuance rather than making an application to adjourn the trial in circumstances where there is uncertainty as to whether, and if so when, the complainant might be willing to engage with the prosector and be ready to give evidence about the allegations on the indictment. Rather, it would be an abuse of process to seek to have the prosecution adjourned for an indefinite and perhaps an extended period, rather than discontinuing the proceedings and later determining, if the complainant was then willing or able to discuss the allegations, on the basis of the evidence that existed at that time, whether a fresh indictment would be presented. To proceed in that way is specifically permitted and anticipated by s 87(7) and is not an abuse of process such as to constitute exceptional circumstances for the purposes of s 87(5). 53 Although there is no medical or other evidence in this case suggesting the complainant is too traumatised to talk about her allegations with the prosecutor and give evidence about the allegations, -- 12 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 13 the effect of the accused's submission is that if a child complainant making such allegations was too traumatised to give evidence about them, the proceedings should be dismissed and the State be prevented from being able to prosecute the accused. Such an outcome, in my view, would be an affront to the administration of justice. Psychological evidence 54 The prosecution brief contains a report of Dr Watts, an adjunct associate professor in clinical psychology, dated 9 September 2025. The report was requested by the Office of the Director of Public Prosecutions. The complainant attended Dr Watts's rooms on 8 September 2025 with their mother. 55 Dr Watts noted that the complainant was currently dealing with gender identity issues and at the time of his assessment was identifying as male but was not adversely affected by being called by either their female or male names and pronouns. 56 Dr Watts had been provided with a psychological report dated 13 November 2024 by Amherst Psychology, but that report is not included in the prosecution brief. 57 Dr Watts noted that the complainant was diagnosed as meeting the criteria of ASD and as also having features consistent with ADHD. 58 From his testing of the complainant, Dr Watts concluded the complainant functions around the borderline range of intellectual ability with some skills being in the low-average range of ability, which is consistent with the complainant having some neurocognitive impairment against a background of weak intellectual functioning. However, the complainant did not have an intellectual disability. 59 The complainant showed highly elevated scores on total distress, depression, anxiety and stress such that emotionally they will be quite aroused and there may be some emotional repercussions after giving evidence. Noting the complainant had indicated they had previously been suicidal, Dr Watts considered there could be a risk of suicide. 60 Dr Watts further noted the complainant displayed social skills and communication difficulties as well as attention difficulties, all of which were consistent with autism. 61 Initially, the complainant was reluctant to be assessed having had an argument with her mother about coming to the appointment. Dr Watts noted that for young people with autism, new experiences are -- 13 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 14 anxiety provoking. However, Dr Watts was able to talk to the complainant about topics to which she could relate and while talking to the complainant he arranged for them to make doodle drawings on paper, which he said was a useful way of helping to discharge emotion. He recommended that when the complainant is examined in court they have the option of being able to draw while talking, noting that the complainant would not make eye contact and by allowing them to draw would manage their anxiety. 62 Dr Watts, referring to the complainant's attention span, said that they tend to focus on particular topics and it can be hard to shift their attention, but also at times the complainant can switch off to what they are being asked. Therefore, Dr Watts recommended that breaks are given as soon as the complainant's attention diminishes. 63 Dr Watts concluded the complainant's concept of time is problematic and caution would be needed in the way in which the complainant was questioned about timelines. It is important that questions are put to the complainant in a simple fashion. 64 Dr Watts also noted it is possible the complainant might describe in a matter-of-fact way, things which are emotionally distressing, but might also react inappropriately such as by giggling when talking about serious matters. 65 Although Dr Watts concluded the complainant has the capacity to give evidence about what they said had occurred to them, there were a number of features, because of the complainant's neurocognitive profile and autism diagnosis, which would make giving evidence difficult for them. 66 The matters discussed by Dr Watts are consistent with and reinforce the reason for the difficulties the prosecutor experienced in engaging with the complainant and getting her to talk about the allegations on the indictment. 67 In my view, upon a proper statutory construction of s 87(5) of the CPA, a notice of discontinuance lodged pursuant to s 87 will normally be consented to by the court, including in circumstances where there is a very real prospect a prosecution may later be recommenced. Indeed, the court does not have the power to refuse to consent to a discontinuance unless the court is satisfied that the discontinuance would be an abuse of process, that is, there are exceptional -- 14 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 15 circumstances. Therefore, the ability to later recommence a prosecution does not, by itself, constitute 'exceptional circumstances', empowering the court to refuse to consent to the discontinuance of the indictment. Analysis 68 In my view, unlike in Lorkin, there have not been undue delays in proceeding with the prosecution and the State has not failed to take reasonable steps to obtain essential evidence and arrange for the main witness, the complainant, to be available to give evidence at the trial. In my view the State has taken all reasonable steps to prepare the child complainant to give evidence. In circumstances where the complainant is presently aged 13 years, is neurodivergent, and probably traumatised by having to give evidence about the matters alleged in the indictment, involving her then stepfather, in an unfamiliar environment and to be questioned by strangers, it is unsurprising she is unable or unwilling to currently speak about these matters. 69 As Malcom CJ in Lorkin15 observed, a valid reason for a nolle prosequi being accepted is if a vital witness may be incapacitated. In his oral submissions defence counsel submitted the child complainant was uncooperative as opposed to being incapacitated. I reject that submission. Based upon Dr Watts' opinion regarding the neurocognitive impairment experienced by the complainant together with the associated features, and the recommendations of Dr Watts as to how the complainant might be best assisted to give evidence, I am satisfied she is currently incapacitated to give evidence about the allegations in the indictment. 70 Nor do I accept defence counsel's submission that the State has been dilatory in preparing for trial and should have engaged with the child complainant much sooner than occurred. In my view the State engaged with the complainant in a timely manner relative to when the matter was first listed for the complainant's evidence to be pre-recorded on 20 March 2026 and then again when the pre-recording was adjourned to the 24 August 2026. Normally, a prosecutor would meet with the child complainant at a time close to when the pre-recording is to take place. When a prosecutor meets a complainant, the prosecutor normally watches the child witness interview with the complainant and then at the pre-recording confirms with the complainant that they have recently viewed the child witness interview and asks them to confirm 15 Lorkin cited at [33] above. -- 15 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 16 whether the contents of the child witness interview are correct and, if not, what matters need to be corrected or clarified. There would be little point in meeting with the child complainant and showing them a child witness interview many months before the complainant's evidence is due to be pre-recorded because it is likely to create difficulties with memory. A child's evidence is likely, in my view, to be more reliable if the child views the child witness interview at a time proximate to when the child's evidence is pre-recorded. 71 When the child participated in the child witness interview, on 17 September 2024, she was aged 11. She would have been aged 13 when she was due to give evidence in March and August 2026. Had the State met with and shown the complainant the child witness interview during late 2025, after the indictment was filed, as the accused seems to suggest, well before her evidence was due to be pre-recorded, it is unlikely her memory of what she said in the child witness interview would have been as reliable as it would have been had she viewed the child witness interview shortly prior to her evidence being pre-recorded. 72 Further, although I have not viewed the child witness interview, I accept the State's submission it determined to bring the charges against the accused based on the complainant's child witness interview and in the expectation that once a date to pre-record the evidence of the complainant had been set the prosecutor would meet with the complainant shortly before that date to watch the child witness interview with the complainant and to prepare her for the pre-recording. 73 Further, unlike in Lorkin, the notice of discontinuance has been filed well before the commencement of the trial and, importantly, is not in response to the court's refusal of an application for an adjournment. There is no basis to characterise the State's conduct as improper or negligent. 74 The difficulties experienced by the State in having the child complainant engage with the prosecutor, while perhaps not happening frequently, is not uncommon. In my experience, occasionally child complainants, particularly young complainants coming from troubled or traumatic backgrounds and unfamiliar with court and criminal proceedings, are reluctant to give evidence or answer questions. Sometimes, in such circumstances, the State files a notice of discontinuance, which is normally unopposed and consented to by the court. Whether the State later reinstitutes a prosecution obviously -- 16 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 17 depends upon the ability and willingness of a child complainant to give evidence. This is not an unusual situation. There is nothing in the circumstances presented to the court which establishes an abuse of process or unusual unfairness or prejudice to the accused because of the way in which the prosecution has been conducted. That is, the defence has not established there is an abuse of process and therefore there are 'exceptional circumstances' for refusing to consent to the discontinuance of the indictment. 75 If the State later recommences the prosecution, the accused will retain all available remedies, including the ability to make an application alleging abuse of process arising from any further delay or prejudice. If such an application was made it would be assessed on its merits at the time and having regard to the considerations referred to in Walton v Gardiner.16 The fact that the accused may be left in a state of uncertainty as to whether he may later be again prosecuted in respect of the allegations does not establish an abuse of process or 'exceptional circumstances' within the meaning of s 87(5). 76 Further, the effect of the accused's opposition to the notice of discontinuance being consented to is to require the State to proceed to trial in circumstances where the State has formed the view that there is no reasonable prospect that the complainant will give evidence at the prerecording hearing or trial on 24 August 2026 and that because she is the sole witness to the alleged offending and her evidence is indispensable to proof of the charges, there is no reasonable prospect of conviction, would amount to an unnecessary and wasteful use of court resources and would itself constitute an abuse of process. Conclusion 77 In summary, I find the accused has not established exceptional circumstances for refusing to accept the State's notice of discontinuance. Accordingly, I formally consent to the discontinuance of the indictment. I also order that the pre-recording and trial dates be vacated. 78 The accused is otherwise discharged in relation to this matter and is no longer subject to bail. 16 Walton v Gardiner cited at [39] above. -- 17 of 18 -- [2026] WADC 69 HERRON DCJ [2026] WADC 69 [JM] Page 18 Further observation 79 In my view, there should have been a ground rules hearing conducted in this matter, particularly when regard is had to the matters discussed by Dr Watts. If the State does later again charge the accused with the same offences, before the matter proceeds to a pre-recording I recommend consideration be given to holding a ground rules hearing before a date for a pre-recording is allocated. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DM Associate to Judge 30 JULY 2026 -- 18 of 18 --