ROSE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 123

[2026] WASCA 123 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROSE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 123 CORAM : THOMSON P MITCHELL JA HEARD : 28 AUGUST 2026 DELIVERED : 28 AUGUST 2026 PUBLISHED : 28 AUGUST 2026 FILE NO/S : CACR 48 of 2026 BETWEEN : ANDREW BO ROSE Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : HOWARD J File Number : MBA 6 of 2026 Catchwords: Appeal - Practice and procedure - Application for interim orders directing prison authorities as to management of appellant's custody to facilitate his preparation of appeal against refusal of bail -- 1 of 11 -- [2026] WASCA 123 Page 2 Legislation: Bail Act 1981 (WA), s 14, s15A, s 15B Result: Application for interim orders dismissed Extension of time to file appellant's case granted Category: B Representation: Counsel: Appellant : In person Respondent : R C Panetta Solicitors: Appellant : In person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Commissioner of Corrective Services (NSW) v Hamzy [2024] NSWCA 240 Commissioner of Corrective Services (NSW) v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113 JLD v The State of Western Australia [2020] WASCA 156 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Roe v Hockton [2026] WASCA 106 Smart v The State of Western Australia [2010] WASCA 218 YSN v The State of Western Australia [2017] WASCA 155 -- 2 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 3 REASONS OF THE COURT: 1 At the conclusion of a hearing on 28 August 2026, we made the orders noted at [29] below. We said that we would publish written reasons for making those orders later. These are our reasons for making those orders. Introduction 2 We are dealing with an application in the present appeal filed on 24 July 2026 (Application). The present appeal is against the primary judge's dismissal, on 15 May 2026, of the appellant's third bail application. That bail application, filed on 2 February 2026, sought bail in respect of various charges pending before the Magistrates Court of Western Australia. The bail application was made to the General Division of this court under s 14 of the Bail Act 1982 (WA). 3 The Application seeks the following interim orders in the present appeal: a) To be provided personal computer in cell in a timely manner b) Free copying and printing accesible [sic] in a timely manner c) Facilitated calls to businesses for purposes of ascertaining witness names d) Ease of access to 2 - 3 law books at a time in cell. e) Evidential mail packages to be handled with care to ensure integrity of evidence is maintained and documents are not lost or destroyed. f) To be held in a prison with an open library that enables ease of access to Legal resources and minimal staff shortage lockdowns. 4 For the following reasons, the Application must be dismissed. Background 5 The following background is mostly taken from the oral reasons for refusing the bail application, given by the primary judge (Howard J) on 15 May 2026. 6 On 23 September 2022, the appellant was sentenced to a total effective sentence of 6 years 4 months' imprisonment, including for serious offences listed in sch 2 to the Bail Act. The sentence was backdated to 4 October 2019. He was released on parole for those -- 3 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 4 offences in July 2024. On 26 March 2025, when he was still on parole, the appellant was charged with various offences, including two counts of aggravated burglary and two counts of possession of prohibited drugs with intent to sell or supply them to another. Those are also serious offences listed in sch 2 to the Bail Act. Therefore, under cl 3A of pt C in sch 1 to the Bail Act, bail can only be granted on the new charges if the relevant judicial officer is satisfied that there are exceptional reasons why the appellant should not be kept in custody. 7 The appellant was remanded in custody on the new charges, and his parole was revoked. The sentence imposed on 23 September 2022 expired on 3 February 2026. Since that time, the appellant has been held on remand at Bunbury Regional Prison. He is currently held on remand for a trial listed to commence in the Magistrates Court on 27 October 2026. Two earlier bail applications, the last of which was heard on 30 October 2025, had been refused by the General Division of this court under s 14 of the Bail Act. Under s 14(2a) of the Bail Act, the court's jurisdiction could only be invoked again if the primary judge was satisfied that: (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or (b) he failed to adequately present his case for bail on that occasion. 8 The currently relevant bail application was heard by the primary judge on 29 April 2026, after some delay while the parties sought to place material before the primary court. That material included an affidavit of Assistant Superintendent Hellema from Bunbury Regional Prison made on 5 March 2026. 9 One of the bases on which the appellant sought bail was ongoing issues with prosecutorial disclosure and his ability to prepare a defence while in custody. The primary judge was satisfied that the appellant had been given access to the entirety of the prosecution brief and access to a departmental computer subject to certain safeguards to assist him in preparing his defence. The primary judge found:1 I accept that, in this case, Mr Rose's incarceration may make and probably does make the process of preparing for his trial more difficult than would be the case if he was not in custody. However, I do not consider the difficulties that Mr Rose is facing are such as to prejudice his ability to properly and fully prepare his defence to the charge. 1 Primary ts 54 - 55. -- 4 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 5 Specifically, I do not consider that if Mr Rose is kept in custody he will not be able to properly access the disclosed material and, to the extent that there are complaints that are still to be made and agitated about the adequacy of disclosure, then that is a matter which may be taken up with the Magistrates Court. It follows that I do not consider the difficulties Mr Rose will face constitute an exceptional reason for not keeping him in custody. 10 The appellant's bail application was dismissed on the basis that he had not established any new circumstances that should lead to the grant of bail, and that he had not established exceptional reasons as to why he should be granted bail. The appeal to this court 11 On 26 May 2026, the appellant instituted the present appeal against the refusal of his bail application. That right of appeal, subject to the grant of leave to appeal, is conferred by s 15A of the Bail Act. Under s 15B(2) of that Act: The Court of Appeal shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal. 12 This provision means that, if there are new facts or circumstances which have arisen since the decision under review, the proper course is to make a fresh application under s 14(2a) of the Bail Act.2 While new evidence referred to in the affidavits discussed below may be received where relevant to the determination of the Application, those affidavits will not be admissible in the determination of the appeal itself. 13 The appellant has not yet filed a compliant appellant's case in the appeal. On 18 June 2026, the appellant was ordered to file and serve his appellant's case by 4.00 pm on Monday 17 August 2026. 14 On 12 August 2026, the appellant attempted to file an appellant's case but the document was not accepted for filing as it did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). Most significantly, the 19 pages of grounds of appeal did not comply with the requirement in r 32(4)(b) that the grounds, and concise particulars of them, be stated succinctly in numbered paragraphs. On the same day, the acting Court of Appeal registrar wrote to the appellant advising why the appellant's case had not been accepted for filing and providing information about the requirements of the Rules. 2 Smart v The State of Western Australia [2010] WASCA 218 [10]; JLD v The State of Western Australia [2020] WASCA 156 [61]. -- 5 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 6 15 The appellant did not file a compliant appellant's case by 17 August 2026, and had not done so at the time of the hearing. The Application 16 The appellant relies on his affidavit sworn on 9 June 2026 in support of the Application. Relevantly, the appellant deposes to the following effect: 1. He has only been provided with access to enable him to type documents on three to four occasions in 14 months due to staff shortages. 2. The appellant is dissatisfied with his ability to save, store and type legal documents 'in accordance to privacy/confidentiality'. 3. While the provision of a cell computer had been approved, the appellant is unwilling to use it to upload material (which he says can only be done once) because he considers that full prosecutorial disclosure has not been provided. 4. The appellant has had limited access to print or copy documents due to staff shortages, library closures, and the prison authorities are unwilling, for security reasons, to copy documents to devices containing disclosure material provided by police. The appellant says that he has had to wait for up to four weeks for documents to be mailed and had to use his prison gratuities to pay for copying and printing. 5. He has written to numerous businesses over 14 months, most of which have not responded to him, in an attempt to obtain evidence. 6. The appellant complains that he does not have adequate access to law books and has received mixed responses from different officers to borrow law books for use in his cell. 7. The appellant says that 'evidential mail packages of mine have not reached their destinations'. 8. For four months, the appellant was held in a prison without an open library and he has often been held in a cell or prison wing with confinement regimes. 17 An affidavit affirmed by Assistant Superintendent Hellema on 17 August 2026 most relevantly deposes that: -- 6 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 7 1. The appellant, like all prisoners at Bunbury Regional Prison, is permitted to use a library computer for typing documents (subject to availability), but is not permitted to electronically store typed documents or possess a storage device for privacy and security reasons. 2. Legal resources are available in the library for prisoners' use but cannot be taken from the library. 3. While access to the library is limited by times when it is closed, the appellant has been given library access on various occasions. 4. On 27 January 2026, the appellant was granted permission to use a departmental computer in his cell for the purposes of his pending criminal matters. On 23 February 2026, the appellant was granted permission for a word processor to be utilised on the computer. The appellant has refused to accept this computer, indicating that this is because he cannot use the computer for civil matters, he believes there were ongoing issues with the USB provided by police, and he believes that prosecution disclosure is not complete. 5. While prison officers are not permitted to copy any evidentiary information received from police, the appellant has been afforded numerous opportunities to view his evidentiary disclosure material from police in private when he requested to do so. 6. The prison records indicate that all of the appellant's mail has been sent as requested, and there is no record that the mail has not reached its intended destination. Power to make orders 18 While it is not necessary to resolve the full extent of the court's power to make orders of the kind sought by the Application, we make the following observations. 19 The conferral of jurisdiction on the court carries with it implicit power to make orders, at least against the parties to the proceeding against whom final relief might be granted, as are necessary to ensure the effective exercise of its jurisdiction.3 That general principle applies 3 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35]. -- 7 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 8 to the conferral of appellate jurisdiction on this court by s 15A of the Bail Act. 20 It has been held that, where proceedings are pending in this court between the parties to an appeal, the Court of Appeal division may exercise the court's power to make such procedural directions in those proceedings as are necessary for the purpose of preserving the integrity of the exercise of the court's appellate jurisdiction.4 However, we are not aware of any case where the court has held that its implicit powers to preserve the effective exercise of its appellate jurisdiction extend to making orders directed to prison authorities as to how prisons or prisoners are to be managed. 21 Under s 7 of the Prisons Act 1981 (WA), the Chief Executive Officer of the Department of Justice is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners, subject to that Act and the control of the Minister. The Chief Executive Officer is not a party to this appeal. There is no clear basis on which this court would have power to issue directions to the prison authorities as to the management of prisons or prisoners for the purposes of preserving the effective exercise of its appellate jurisdiction. 22 In our view the following observations of Basten JA (Beazley P agreeing) in Commissioner of Corrective Services (NSW) v Liristis (a case concerned with the Supreme Court's power to give directions to facilitate an accused's preparation for trial) are apposite:5 The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the court was directed and is untenable. Importantly, no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security. It is notorious that security in prisons is a serious issue at all times. The particular concerns raised in this case involved the potential for smuggling in small modems which could then be used by prisoners with mobile phones (illegal, but known to exist within the gaols) to obtain access to the internet (also a prohibited practice). 4 Roe v Hockton [2026] WASCA 106 [16] and cases there cited. 5 Commissioner of Corrective Services (NSW) v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113 [104] - [107]. -- 8 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 9 By contrast, where a prisoner seeks the taking of steps necessary to ensure a fair trial, the nature of the claim must be analysed in the context of the system of criminal justice. It is undeniable that, at least in many cases, a person who is arrested, charged and denied bail will be hindered or impeded by the constraints of custody, as compared with an accused person who is at large in the community awaiting trial. The accused person in custody may apply for bail, but has no separate entitlement to seek an order from a Supreme Court judge directing that he or she be released from custody by the governor of a prison for the purpose of conferences with his or her legal representatives. The assumption underlying the significant number of cases addressing communications between prisoners and their legal representatives is that such communications must occur within the confines of detention. 23 The approach of Basten JA in Liristis was approved by Bell CJ (Payne and Stern JJA agreeing) in Commissioner of Corrective Services (NSW) v Hamzy.6 That case raised the question of whether the court could make orders against prison authorities to make facilities available to a prisoner taking civil proceedings against prison authorities. The court held that the primary judge in Hamzy erred in finding that the court had power to make directions to achieve an 'equality of arms'. Bell CJ observed: The role of the Court is to ensure a fair trial and it may be accepted that an 'irreducible minimum' of resources may be required to achieve that but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities. Disposition of Application 24 In the present case, while the appellant is disadvantaged by being in custody, he is not being prevented from invoking this court's appellate jurisdiction. It must be kept in mind that this is an appeal from a bail decision where the court is confined to the material before the primary judge. Consequently, there is no utility in the appellant seeking further evidentiary material for the purposes of the appeal against the refusal of bail. The relevant legal principles governing appeals from those decisions are well established.7 6 Commissioner of Corrective Services (NSW) v Hamzy [2024] NSWCA 240 [87] - [88], [93], [95], [97]. 7 See, for example, YSN v The State of Western Australia [2017] WASCA 155 [15] - [21], [30] - [34]. -- 9 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 10 25 Many of the appellant's complaints appear to be directed to perceived impediments to his preparation for trial, rather than the bail appeal. Any interim orders would need to be confined to the latter issue. The appellant has demonstrated an ability to prepare lengthy documents while in custody, and has access to computer facilities and other legal resources. Some of the appellant's difficulties appear to be of his own making, such as a refusal to accept the provision of an in- cell computer until certain conditions are met. The fact that the purported appellant's case was not accepted for filing seems to be more attributable to his prolixity and lack of focus on critical issues than the lack of access to resources. 26 While he faces the ordinary restrictions associated with custody, the appellant is not being denied access to this court's appellate jurisdiction under s 15A of the Bail Act. He is being provided with resources which, while not ideal, are sufficient to enable him to prepare for the appeal. He does not require the interim orders contemplated by the Application to engage his right of appeal. It is highly doubtful that this court has power to give directions to prison authorities as to the management of a prison or prisoner to preserve the effective exercise of its appellate jurisdiction. But even if this court did possess that power, this would not be an appropriate case for its exercise as the effective exercise of the court's appellate jurisdiction under s 15A of the Bail Act in the present case does not depend on the making of orders of the kind contemplated by the Application. 27 Therefore, we dismissed the Application. Extension of time to file appellant's case 28 This appeal has now been on foot since May 2026. An appellant's case, identifying proper appeal grounds, is required before the appeal can be determined. The delay in the filing of an appellant's case risks the appeal being rendered redundant by the passage of time. While we are prepared to grant a further extension of time, it is important that the appellant understands that, if he does not file and serve a compliant appellant's case within the extended period, there is a real prospect that the appeal will be called on and the appeal will either be: 1. dismissed for failure to file an appellant's case; or 2. the appellant will be given a short extension of time subject to a self-executing (springing) order (which is an order that the appeal be immediately dismissed if an appellant's case is not filed within the further extended time). -- 10 of 11 -- [2026] WASCA 123 REASONS OF THE COURT Page 11 Orders 29 For the above reasons, at the hearing on 28 August 2026, we made the following orders: 1. The appellant's application in an appeal filed on 24 July 2026 is dismissed. 2. The time for the appellant to file and serve an appellant's case is extended to 4.00 pm on 11 September 2026, and the appellant must file an appellant's case that complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) by that time. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 28 AUGUST 2026 -- 11 of 11 --