DOWNES -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 116

[2026] WASCA 116 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOWNES -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2026] WASCA 116 CORAM : THOMSON P MITCHELL JA HEARD : 19 AUGUST 2026 DELIVERED : 19 AUGUST 2026 PUBLISHED : 20 AUGUST 2026 FILE NO/S : CACR 149 of 2025 BETWEEN : MATTHEW GREGORY DOWNES Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : BOWDEN DCJ File Number : IND 1527 of 2022 Catchwords: Appeal - Application in appeal - Production of documents - Request for orders compelling affidavits -- 1 of 11 -- [2026] WASCA 116 Page 2 Legislation: Misuse of Drugs Act 1981 (WA) Public Interest Disclosure Act 2003 (WA) Result: Application dismissed Category: B Representation: Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Nil -- 2 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 3 REASONS OF THE COURT: 1 At the conclusion of the hearing of the appellant's application in an appeal for orders for the production of documents and affidavits, we ordered that the application be dismissed. We said that we would publish written reasons for making that order later. These are our reasons for dismissing the application 2 On 19 July 2024, the appellant was convicted of two offences in the District Court of Western Australia. The indictment alleged as follows: (a) between 13 February 2022 and 16 August 2022, at Orelia, the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA); (b) between the same dates and at the same place, the appellant fraudulently diverted to his own use, electrical power derived from an apparatus, the property of Western Power Corporation, contrary to s 390 of the Criminal Code (WA). 3 The appellant pleaded guilty to both offences. In the circumstances described below, he was not sentenced or imprisoned until 17 December 2025. On that date, he was sentenced to a term of immediate imprisonment of 3 years on the first count, and 9 months on the second count. The sentence on the second count was then reduced to 3 months on account of considerations of totality. The sentences were ordered to be served cumulatively. Thus, his total effective sentence was immediate imprisonment for 3 years and 3 months. 4 Mazza JA summarised the circumstances of the alleged offending in a bail application made by the appellant on 23 December 2025. He said:1 The factual background to the offending is as follows. On the afternoon of 14 August 2022, officers from the Department of Fire and Emergency Services attended at an address in Orelia in response to reports of a house fire. Upon their arrival, the officers found an active fire engulfing the roof space of the house. Police were notified of suspicions that the house was being used for the cultivation of cannabis. On 15 August 2022, police officers executed a search warrant at the house. Upon entering the house, the police officers located a 1 Downes v The State of Western Australia [2025] WASCA 194 [7] - [10]. -- 3 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 4 hydroponic cannabis growing operation in the laundry and three bedrooms, which had each been converted for the purpose of cultivation of cannabis. In the room designated as 'bedroom 1', there were 179 plants at various stages of growth. In the room designated as 'bedroom 2', there were 54 plants at various stages of growth. In the room designated as 'bedroom 3', there were 36 plants at various stages of growth. In all, there were 269 plants under cultivation. A subsequent examination revealed that the plants were cannabis sativa. The hydroponic system involved grow lights, transformers, extractor fans, and a carbon air filter. Workers from Western Power attended the scene. They established that the electrical power system to the house had been tampered with to bypass the power meter, without recording any charge for the electricity that was used. 5 In this appeal against his conviction, the appellant challenges a critical matter set out in the summary of facts just quoted. The appellant claims that the State failed to prove that there were 269 plants, which were cannabis sativa, under cultivation. The appellant says that the State unlawfully destroyed plants that were seized from the Orelia house. He says that this deprived him of the opportunity to inspect the plants to show that they were not all cannabis sativa plants. He also says that the destruction of the plants means he has been deprived of the opportunity to check the number of plants which were seized. The course of proceedings 6 The appellant has pleaded guilty to the two offences with which he was charged on three occasions. 7 The first occasion was on 15 September 2022, when he entered a plea of guilty in the Magistrates Court on his second appearance under a fast-track system. Following this plea, six plants were kept as samples and the rest were destroyed by police. 8 The appellant then entered a plea of guilty in the District Court on 2 February 2024, before Wager CJDC. On that occasion the matter was adjourned for sentence, including a trial of the issues. The issue was the number of cannabis plants which were the subject of cultivation. 9 The matter was then listed before Bowden DCJ on 19 July 2024. The appellant again entered pleas of guilty to both charges. The trial of issues was adjourned to 27 February 2025. -- 4 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 5 10 Before the trial of issues commenced, the appellant gave notice that he sought a stay of the trial of issues, because he had been unable to examine all of the seized plants. That is because they had been destroyed. 11 This application (first stay application) was heard and dismissed by Sweeney DCJ (as her Honour then was) on 27 February 2025. Her Honour decided that while the police may not have properly complied with all of the procedural requirements of the Misuse of Drugs Act 1981, and regulations made pursuant to the Misuse of Drugs Act 1981, by not properly completing the forms for the destruction of the plants, her Honour was satisfied that:2 (a) sufficient samples of the cannabis seized, six samples in total with a sample coming from each bag of cannabis, had been taken; (b) the Commissioner's delegate had properly decided it was not reasonably practicable to detain the plant material; and (c) the destruction was in the presence of and overseen by Inspector Cubbage an officer of an appropriate seniority. 12 The appellant unsuccessfully sought to appeal this decision to this court. The appeal was dismissed upon the basis that the court did not have jurisdiction to entertain an appeal against what was, in effect, a refusal of a conditional stay.3 13 The appellant then applied to withdraw his plea of guilty. This ultimately came before Petrusa DCJ, who dismissed that application on 25 September 2025. 14 A trial of issues was then listed before Gillan DCJ. This occurred on 10 and 11 November 2025. Her Honour gave judgment on 17 December 2025.4 The decision upon the trial of issues 15 Gillan DCJ's decision in relation to the trial of issues comprehensively considered a variety of legal issues raised by the appellant. These included the argument that the police had improperly 2 See the summary of this decision by Gillan DCJ in her decision on the trial of issues which occurred subsequently: The State of Western Australia v Downes [2025] WADC 96 [87]. 3 Downes v The State of Western Australia [2025] WASCA 50 [22] - [24]. 4 The State of Western Australia v Downes [2025] WADC 96. -- 5 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 6 destroyed the plants which had been seized, leaving him with no ability to have the plant matter properly tested.5 Gillan DCJ considered that this had been dealt with by Sweeney DCJ for the reasons summarised at [11] above. Gillan DCJ also considered that nothing was changed by the disclosure of an IMS Destruction List Report which the appellant claimed raised a doubt as to whether all the plants had been destroyed.6 Nor did Gillan DCJ consider that policy documents or the WA Police Manual made any difference to the conclusion which Sweeney DCJ had reached.7 16 Gillan DCJ was satisfied that: (a) there were 269 plants seized by police officers. Her Honour's conclusion about this was based upon the evidence of police officers who had counted the plants, which was verified by video evidence;8 and (b) the seized plants were cannabis sativa. Her Honour's conclusion about this was based upon the evidence of the approved botanist (Dr Jon Huisman) who examined (but did not count) the plants in the six bags which were seized.9 Gillan DCJ specifically said that her Honour did not rely upon the approved botanist certificates issued by Dr Huisman in accordance with form MD 14 in Schedule 1 of the Misuse of Drugs Regulations 1982 (WA), as to the type of plants he examined. Her Honour said that her findings of fact relied upon the evidence which she had heard.10 Appeal grounds 17 There are six grounds of appeal. These are expressed in a very lengthy fashion. For the purposes of determining the present application, all that is necessary is a short summary of each ground. 18 Ground 1: This ground alleges that the appellant's pleas of guilty were 'factually misinformed', 'induced by fraud or the like', and 'should no longer be recognised as a true admission of guilt'. 5 The State of Western Australia v Downes [84] - [88]. 6 The State of Western Australia v Downes [89] - [95]. 7 The State of Western Australia v Downes [96] - [105]. 8 The State of Western Australia v Downes [107 (12) - (17), (24)]. 9 The State of Western Australia v Downes [107(18) - (23)]. 10 The State of Western Australia v Downes [49], see also [44]. -- 6 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 7 19 Ground 1 is based upon the allegation that a miscarriage of justice occurred when the 'MD 14 Certificates' (approved botanist certificates) provided to the defence at the time of the arraignment plea contained false and misleading statements that implied that the identification of plant material was conducted by microscopic examination, when in fact it was not. 20 Further, it is alleged that the certificates only stated the number of evidence bags, and did not stipulate the quantity of plants. They consequently materially departed from the prescribed form, intended by the legislative scheme. 21 It is claimed that the pleas of guilty were therefore induced on a materially false basis and induced by 'misrepresentation, fraud or the like'. 22 Ground 2: This ground alleges that Sweeney DCJ and Petrusa DCJ erred in law and fact when determining the interlocutory applications heard by them, by relying upon the MD 14 certificates, together with the expert report, when they were unreliable. 23 Ground 3: This ground alleges that Sweeney DCJ erred in law and fact in the first stay application when considering the unfairness caused by the destruction of the evidence and the sufficiency of the samples retained. It is claimed that her Honour did not consider the qualitative aspect of the need to retain plant material for future examination. 24 Ground 4: This ground alleges that Sweeney DCJ erred in law and fact in the first stay application by her Honour's reliance on misleading material provided by the State. It is said that the errors in the decision of her Honour were compounded, by reason of the State filing documents containing misrepresentations, and not disclosing material matters. The appellant says her Honour relied upon an 'unauthentic WA police manual extract', and the final destruction list report was not properly disclosed. The appellant also submits that submissions from the State that the appellant had not filed an MD8B form in compliance, 'were false'. 25 Ground 5: This ground alleges that Petrusa DCJ erred in law and fact in deciding the application by the appellant to withdraw his pleas of guilty, by relying upon unreliable evidence and refusing the examination of key witnesses. -- 7 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 8 26 Ground 6: This ground claims that Petrusa DCJ erred in law by failing to give effect to s 41(1) of the Misuse of Drugs Act 1981 and the statutory safeguards contemplated by Parliament. It is also claimed that her Honour erred in law when construing the word 'may' as merely discretionary. The gravamen of this ground appears to be the contention that a failure to comply with the statutory procedure in the identification and sampling process of botanical exhibits meant that the 'admissibility and weight of the botanical evidence, the operation of the MD 14 certificates and all downstream findings dependent on them' were legally invalid. Observations on appeal grounds 27 None of the appeal grounds relate to the findings of fact made by Gillan DCJ in the trial of issues. 28 Grounds 3 and 4 are concerned with the first stay application, decided by Sweeney DCJ. The grounds are expressed in terms which allege errors of fact and law by Sweeney DCJ. However, as was noted by this court in the appellant's previous appeal, the decision not to stay the case is not directly subject to appeal.11 To fall within the permissible grounds under s 30(3) of the Criminal Appeals Act 2004 (WA), these grounds must be read as contending that the conviction should be set aside upon the basis that the ruling on the stay application gave rise to a miscarriage of justice. This also applies to ground 2, in so far as it is concerned with Sweeney DCJ's initial ruling. 29 Ground 6 is concerned only with a question of statutory construction. 30 In effect, the remaining grounds (ie ground 1, the part of ground 2 concerned with Petrusa DCJ's ruling and ground 5) concern the decision of Petrusa DCJ not to allow the appellant to withdraw his guilty pleas. However, the appellant has never suggested that there were no cannabis sativa plants. The critical question is how many were being cultivated. Application 31 Against this background, the appellant has bought the present application to obtain various categories of document or orders which he says are necessary in order for him to conduct his appeal. The documents or orders sought by the appellant are described in 11 Downes v The State of Western Australia [2025] WASCA 50 [22] - [24]. -- 8 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 9 Category C to Category K of the application dated 11 March 2026, which was filed on 30 March 2026. 32 Category C: The appellant seeks an order for the State to produce the original unredacted Police Destruction List Report. The reason for seeking this document is apparently that it was the 'foundation for filing the first stay application'.12 33 There is no dispute that not all the proper procedures and processes were followed in destroying the plants which were seized. Further, as explained, the question of whether the stay application was properly dismissed is not something which arises on this appeal. 34 In the absence of any explanation of the relevance of this document to matters in issue in the appeal, we would not order production of it. 35 Category D: the appellant seeks an order for the Justice of the Peace who witnessed the destruction of the plant material, and who signed the Destruction List Report, to provide an affidavit. 36 The reason why the appellant seeks this document is 'so that the Court can make an informed decision on the destruction status of the botanical evidence in this matter, and determine if this was done as purported in compliance with' the applicable statutory scheme.13 37 However, there is no dispute that not all the proper procedures and processes were followed in storing the plants which were seized. As this is accepted, there is no reason why an affidavit is required. 38 Category E: The appellant seeks an order for the State to prove the authenticity and provenance of 'Annexure D', which is an extract from the 2017 WA Police Manual. The appellant says that this order is required 'for the Court to determine with all available evidence Grounds 3, 4 and 5 of the appeal'.14 39 This order should not be made to the same reasons as given in respect of category D. 12 Appellant's submissions in support of application dated 11 March 2026 (3 August 2026) [10]. 13 Appellant's submissions in support of application dated 11 March 2026 (3 August 2026) [18] - [19]. 14 Appellant's submissions in support of application dated 11 March 2026 (3 August 2026) [25]. -- 9 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 10 40 Category F: The appellant requests for Detective Sgt Wesley Smith from the WA Police to provide evidence describing the provenance and history of 'Annexure D'. 41 This order should not be made for the same reasons as given in respect of category D. 42 Category G: The appellant requests for the State prosecutor (Ms Lauren Hodson) to provide evidence describing her knowledge of 'Annexure D'. 43 Again, this order should not be made for the same reasons as given in respect of category D. 44 Category H: The appellant requests for the WA Police to disclose the 'Red Flag' that has been applied to the appellant's police record. The appellant says that this order 'will allow the Court to consider and determine the whistle-blower protection under paragraph Chapter I of this application.'15 45 The appeal has nothing to do with whistle-blower protection, and this order should not be made. 46 Category I: The appellant seeks an order for whistle-blower protection under the Public Interest Disclosure Act 2003 (WA). The appellant claims that this appeal 'highlights public interest deficiencies within the government department Kensington Herbarium, integrity issues within WA Police, along with potential misconduct within the prosecution department'.16 47 Any application of this nature should be made in a separate application to a single judge of the General Division of this court under s 15A of the Public Interest Disclosure Act 2003, and not within a criminal appeal. 48 In any event, the evidence before this court does not establish that a person has taken or intends to take detrimental action against the appellant in reprisal for a disclosure of public interest information under the Public Interest Disclosure Act 2003. Consequently, the criteria for activating the jurisdiction of the court to grant an interim injunction is not satisfied in the present case. No order of the type sought should be made. 15 Appellant's submissions in support of application dated 11 March 2026 (3 August 2026) [55]. 16 Appellant's submissions in support of application dated 11 March 2026 (3 August 2026) [65]. -- 10 of 11 -- [2026] WASCA 116 REASONS OF THE COURT Page 11 49 Category K: The appellant seeks an order for personal appearance upon the hearing of this application and any future hearings. 50 The appellant was brought up in person for the hearing of this application. Whether that should occur for any future hearings will be a matter for the court hearing the matter and is not appropriately the subject of an order at this stage. Disposition 51 For these reasons, we considered that the parts of the application set down for hearing should be dismissed. Further, as there were no other matters that needed to be resolved on the application filed by the appellant dated 11 March 2026, we made an order dismissing the entire application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LH Associate to the Hon President Thomson 20 AUGUST 2026 -- 11 of 11 --