WILKINSON -v- WA POLICE [2026] WASC 364

[2026] WASC 364 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : WILKINSON -v- WA POLICE [2026] WASC 364 CORAM : JEYAMOHAN J HEARD : 26 AUGUST 2026 DELIVERED : 26 AUGUST 2026 PUBLISHED : 28 AUGUST 2026 FILE NO/S : SJA 1097 of 2025 BETWEEN : KELLY JOANNE WILKINSON Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE SULLIVAN File Number : M1370125 Catchwords: Criminal law - Single judge appeal - Application for leave to appeal against conviction - Extension of time - Miscarriage of justice - Application to adduce evidence on appeal - Turns on own facts -- 1 of 36 -- [2026] WASC 364 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Road Traffic Act 1974 (WA) Road Traffic (Drug Driving) Regulations 2007 (WA) Result: Leave to appeal refused Application dismissed Category: B Representation: Counsel: Appellant : In Person Respondent : Ms A Westerside Solicitors: Appellant : In Person Respondent : State Solicitor's Office -- 2 of 36 -- [2026] WASC 364 Page 3 Cases referred to in decision: B v Coan [2021] WASC 127 Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Briggs v Houlihan [2018] WASC 301 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337 JAD v McRae [2022] WASC 220 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Johnson v Matthews [2020] WASC 122; (2020) 91 MVR 491 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Miles v WA Police [2025] WASC 439 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Samuels v The State of Western Australia [2005] WASCA 193 Tobin v Dodd [2004] WASCA 288 Y v X [2024] WASCA 104 -- 3 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 4 JEYAMOHAN J: Introduction 1 On 25 September 2025, the appellant, Ms Kelly Wilkinson, was convicted after trial in the Midland Magistrate's Court in respect of charge number MI 3701/2025, of one charge of driving with a prescribed illicit drug present in her oral fluid, contrary to s 64AC(1) of the Road Traffic Act 1974 (WA) (RTA). The appellant was fined $1,600 and ordered to pay $300.50 in costs, plus a $200 analysis fee, and her licence was disqualified for six months to take effect from 25 September 2025. 2 By notice of appeal filed on 9 December 2025, the appellant sought leave to appeal the conviction on four grounds: miscarriage of justice; apprehended bias; prosecutorial misconduct and unjust reasoning in verdict. The appellant's grounds were expanded in her submissions dated 6 May 2026 to include denial of procedural fairness. Each of these grounds, and those matters raised within each ground by way of sub-issues, were considered as part of this appeal. 3 As the appeal was commenced later than 28 days after the date of the decision, the appellant seeks an order for an extension of time to seek leave to appeal. 4 The appellant was self-represented at the trial and the appeal. 5 The appeal is opposed by the respondent, Sargeant Juan Trejos (Sargeant Trejos), who was represented by counsel at the appeal. 6 In addition, both the appellant and the respondent have separately brought applications for leave to adduce evidence in the appeal. At the commencement of the appeal, the appellant also referred to communications with this court prior to the notice of appeal being formally lodged on 9 December 2025, which the appellant sought to rely on in the context of her application for an extension of time. 7 The matter proceeded to hearing before me on 26 August 2026. 8 For the reasons which follow I would refuse the appellant's application to adduce further evidence, allow the respondent's application to adduce evidence in part, refuse the appellant's application for leave to extend time to appeal, refuse leave with respect to all grounds, and dismiss the appeal itself. -- 4 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 5 Background 9 On 26 February 2025, the appellant was driving her vehicle along the Broadway near Westgrove Road in Ellenbrook when she was stopped and required to submit to a preliminary oral fluid drug test by Sargeant Trejos. The appellant submitted to the test. Subsequent analysis of the oral fluid sample provided by the appellant provided a positive result for methylamphetamine. As a result, the appellant underwent an oral fluid evidentiary test using the Securetec Drug Wipe II TWIN COMBO. The appellant submitted to the evidentiary test. The outcome of the test returned a positive result for methylamphetamine. 10 The evidentiary sample was sealed in a container marked O-D48728 and taken to a police station. On 25 March 2025, the evidentiary sample was taken to the Chemistry Centre (WA) (ChemCentre). 11 On 1 April 2025, Ms Melissa Dawes (Ms Dawes), a drugs analyst at ChemCentre certified that the sample tested positive to methylamphetamine. 12 As a result of the positive analysis result, the appellant was charged with an offence of driving a motor vehicle with a prescribed illicit drug present in her oral fluid contrary to s 64AC(1) of the RTA. The proceedings in the Magistrate's Court 13 On 25 September 2025, the charge came before Magistrate Sullivan for hearing. The appellant was self-represented at the trial. At the outset of the trial, the learned magistrate informed the appellant that it was described to him that the appellant 'can be a bit of a rambler', said that this is not a matter that causes any prejudice to the appellant and indicated that he is letting her know this out of fairness:1 HIS HONOUR: All right. Stand up, please, Ms Wilkinson. I understand there's a trial today in respect of a particular charge under 64 AC. I will put that charge to you in just one moment. I know nothing else about the trial. I think I'm obliged to at least mention that it was described to me that you can be a bit of a rambler. That's not a matter that causes any prejudice to you, but 1 MC/CRI/MI/ CRIM 3701/2025 transcript of proceedings dated 25 September 2025 (MC ts) page 2. -- 5 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 6 nonetheless, it will be my role as well to keep the trial focused on the issues. ACCUSED: (indistinct) my pre-boarding - - - HIS HONOUR: No, no. I don't know anything about it, Ms Wilkinson. I'm just, out of fairness, letting you know that comment was made in your absence. It's not a matter that causes you any prejudice. ACCUSED: No, I'm not offended by it at all. It's taken on board. 14 The appellant entered a plea of not guilty. At the commencement of the trial, the learned magistrate explained in detail the trial process and the elements of the offence that the prosecution is required prove beyond reasonable doubt to the appellant.2 15 The prosecution and the appellant each made an opening address. During her opening address, the appellant outlined that the issue in the trial was the manner in which the oral test was administered to her by the police officer and the verification of the appellant's identity. The appellant also raised the manner in which 'papers' were delivered to her by the police:3 ACCUSED: I have based my case on the knowledge of standards and the Act – the Traffic Act – which outlines manufacturers and distributors' need for following their instructions and the lacklustre approach in the way the police, in particular, Trejos, orchestrated the whole affair. The other witness is not anyone I know of. I don't remember him being there. HIS HONOUR: All right. So when you say the “other witness,” Trejos or Townsend? ACCUSED: Trejos is the one I dealt with. The Townsend is – he could have been there, might not have been there. His witness statement is really - - - HIS HONOUR: So as far as you're concerned, it's Trejos that you really expect to her from? 2 MC ts pages 2 - 5. 3 MC ts pages 6 - 7. -- 6 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 7 ACCUSED: Yes, he's the only one that I dealt with, apart from the female cop who searched me. 16 The prosecution called one police witness, Sargeant Trejos and an expert witness, Ms Dawes. 17 Sargeant Juan Trejos gave the following evidence-in-chief: (1) at about 4.28 pm on Wednesday, 26 February 2025, he was at Ellenbrook conducting random drug and breath testing when he saw a white vehicle. He requested a sample of the appellant's breath which produced a negative result. He then requested a sample of the appellant's oral fluid for the purposes of a random drug test;4 (2) what he usually does when he asks a vehicle to stop over is access his police issued mobile phone and check the registration of the vehicle, which most of the time, the registered owner of the vehicle is driving.5 If there was not a driver's licence on the day, he would have identified the appellant by checking her registration on his police-issued mobile phone;6 (3) there is a process that police follow when conducting the evidentiary test including some paperwork - a drug interview form, that needs to be completed prior to doing that test.7 The procedure for obtaining that sample is a preliminary drug test and he requested the appellant to provide a sample of that oral fluid.8 He conducted the test and two minutes later, the test gave him a positive reading for methylamphetamines;9 (4) he went onto conduct the second test which is an evidentiary sample of the appellant's oral fluid.10 He explains to every person that he deals with, in this case, the appellant, how the test is to be conducted, the instructions that need to be followed to ensure that he complies with the policy and legislation.11 He then handed a pad to the appellant and instructed her to place that pad inside her mouth, under her tongue, to capture saliva 4 MC ts pages 9 - 10. 5 MC ts page 11. 6 MC ts page 11. 7 MC ts page 12. See also SGM1 - Exhibit 1 - Drug interview document. 8 MC ts page 11. 9 MC ts page 11. See also SGM2 - Exhibit 2 - Confirmatory drug test and Exhibit 3 - Certificate confirming that Sargeant Trejos is an authorised drug testor. 10 MC ts page 12. 11 MC ts page 15. See also SGM4 - Exhibit 4 - Checklist and SGM5 - Exhibit 5 - Form. -- 7 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 8 within that pad.12 Once the saliva was captured within the pad, that was removed from the appellant's mouth, at which point, he conducted the second test. 13 That test goes on a timer for about three minutes and then the saliva from the appellant on the pad is mixed with a solution provided within the kit. (5) once that mixture is completed, two samples of saliva are obtained and sent to the ChemCentre analysis.14 Once the bags are sealed and secured, they are secured in the back of a police vehicle and conveyed to their station as soon as practicable, where they are stored in a fridge before being conveyed to the 'Breath and Drugs' at Midland complex or conveyed to ChemCentre;15 (6) in this case, the appellant gave a second positive rating for methylamphetamines.16 He issued the appellant with a 24 hour prohibition notice because of the second positive rating for methylamphetamines.17 The appellant had concerns about the reliability of the second test because of the test not being stored correctly. The appellant did not have concerns about the way in which Sargeant Trejos took the sample from her, but rather, in broad terms, an error in the 'chain of custody' the way in which Sargeant Trejos secured and processed the sample taken;18 (7) on receiving the Certificate of Drug Analysis from the ChemCentre, he completed the relevant section confirming that the appellant had been served with a copy of that certificate and filed the Service Certificate;19 (8) he was not the officer who conveyed the sample to the ChemCentre and that the conveying officer conveys the sample to the ChemCentre and fills out the paperwork;20 12 MC ts page 15. 13 MC ts page 15. 14 MC ts page 15. 15 MC ts page 33. 16 MC ts page 15. 17 MC ts page 15. 18 MC ts pages 25 and 30. 19 MC ts page 30. See also SGM6 - Exhibit 6 - Certificate of Drug Analysis. 20 MC ts page 30. -- 8 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 9 18 The entire incident was captured on Sergeant Trejos' police-issued body worn camera.21 The appellant 'objected' to the fact that she had not been given the chance to view the footage prior to trial:22 ACCUSED: It's an hour and a half. We should be an hour and a half long as well. And if it's not, then he stopped it. HIS HONOUR: Well, it's just – hold on, hold on. Stop, stop. So what will happen is that video will be played. I can hear objections about it afterwards, but this is the whole issue and problem with me making determinations on matters of law that apply to me. If the video footage is found to be inadmissible, I have to put it to one side. But conducting the trial within the trial, I will need to see the footage and then, can determine its admissibility. But, as I understand, in any event, it's said to capture the incident – the subject to the charge – and is, in those circumstances, the best evidence of that. There's no admissions against interest that I'm expecting to be utilised. It's merely to demonstrate what has occurred at the vehicle stop. That's great, you have an open on there being any admissions against interest in the charge. FREEMAN, MR: No, your Honour. I haven't. 19 Where the appellant raised concerns about Sargeant Trejos attending her residential address for the purposes of 'consent' the learned magistrate determined this to be irrelevant.23 20 The learned magistrate determined that the footage was admissible to establish the identity of the appellant, that the appellant was driving the vehicle at the time, that there was an evidentiary sample taken from the appellant and that the sample was otherwise sealed and provided to the Chemistry Centre.24 21 The footage was of some one and a half hours in duration. Having watched 45 minutes of the footage, the learned magistrate raised with counsel for the prosecution whether what was being proposed was that 21 MC ts pages 14 - 15. MC SGM7 - Exhibit 7 USB body-worn camera footage. 22 MC ts page 14. 23 MC ts pages 18. 24 MC ts pages 17 - 18. -- 9 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 10 he watch another 45 minutes for the evidentiary certificate.25 In this context, the learned magistrate raised that in terms of the trial, he had understood that it was to take one to two hours and observed that:26 HIS HONOUR: All right. I can say, at this juncture, in terms of that video, that is admissible to establish both identity in terms of certainly appearing to be you. You've identified yourself in that video. There's other admissions that are not in issue, but, in terms of this hearing, I had understood this hearing is to take one to two hours. If I'm to watch 45 minutes - - - ACCUSED: No. HIS HONOUR: No. I'm just wanting, Ms Wilkinson – it's all right. I don't want to take into – disregard your concerns that you may have, but, if I'm to watch another 45 minutes, deal with my remaining arrests in custody, potentially have you give evidence and the cross-examination of this officer, we're not finishing today - - - ACCUSED: Yes. HIS HONOUR: - - - which is fine. Well within your rights to do that, but then you will need to tell me whether or not you're travelling to Bunbury or Armadale to continue the trial, because the trial won't continue here. I won't be here. So the trial will continue before me in either Bunbury or Armadale next year. … 22 The appellant clarified that in terms of the footage:27 ACCUSED: In terms of viewing it, you – it's really only – you only really have to see how he processes the test and then after that, it's only – it may still be considered relevant to you. It's him searching my vehicle or the lady - - - … 25 MC ts pages 16. 26 MC ts pages 17. 27 MC ts pages 18 - 20. -- 10 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 11 HIS HONOUR: No. I don't see how the vehicle search is at all relevant one way or the other because there's no charges arising from the search and it's only the issue as to whether or not – and the evidence is of this witness that the vehicle stop was random. You may well dispute that, I appreciate that, Ms Wilkinson. You can ask the witness about that, but, otherwise, I'm not determining probable cause or the like for the search because there's nothing arising from the search that I need to determine. ACCUSED: Okay. HIS HONOUR: Otherwise – well, then, if the only other matter of concern is, as I understand it, the taking of the second sample. ACCUSED: The processing of it. … ACCUSED: - - - I mean, him not using a bench or a flat surface that's not horizontal to process the test and wait. It states – in the Act, it states in the - - - … ACCUSED: I have a concern with both of the tests not being stored – being left in a car. Not supposed to be left in vehicles, temperature. … All I'm really saying is that I would like you to see the test on a flat surface. 23 In any event, during the course of the footage being viewed, the learned magistrate asked the appellant on a number of occasions about whether she was content to fast forward portions of the video.28 The learned magistrate expressly raised with the prosecution the 'need to see – given what Ms Wilkinson has raised - the point at which the sample is sealed prior to any movements of that – as in, prior to that sample being subsequently moved'.29 28 MC ts pages 20 - 21. 29 MC ts page 24. -- 11 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 12 24 The learned magistrate also expressly raised with the appellant whether there was any concerns as to the admissibility of the evidential test and explained that:30 HIS HONOUR: Let's just pause it here. Stand up, Ms Wilkinson. All right. So you intend to clarify with this witness how the test was stored prior to what we see on the video. That's the first issue; correct? ACCUSED: Yes. HIS HONOUR: Yes. And you had raised chain of custody, in terms of what happened with the test after it was taken by this witness; correct? ACCUSED: Correct. HIS HONOUR: But in terms of the actual taking of the test – well, you've raised that there is a tick missing, so are you submitting that the test is inadmissible because there was a missing tick on form 19? … ACCUSED: Yes, I do. I don't have an issue with him – with the way he collected my saliva. My issue is the way he processed it… 25 Prior to the appellant cross-examining Sargeant Trejos, the learned magistrate explained to the appellant that:31 HIS HONOUR: Yes. So, out of fairness, Ms Wilkinson, what I'm trying to do is focus on taking the sample and what happened with the sample subsequently. Prosecution can lead evidence about that and you can clarify any other matters in cross-examination. Is there issues you've raised with what I've just said that - - - ACCUSED: Can you – sorry. Can you please repeat it? HIS HONOUR: That's all right. So what I intend to do is skip ahead to the point at which the oral sample is taken from you, sealed, and this witness can 30 MC ts page 25. 31 MC ts page 26. -- 12 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 13 then give evidence about what happened with that sample after that - - - ACCUSED: Okay. 26 During cross-examination, Sargeant Trejos gave evidence that: (1) there was no 'booze bus' as his unit, being the Road Policing Group North, conducts its own operations and sets up random drug and breath testing.32 The 'booze bus' is a different business unit to the Road Policing Group North is a different business unit; 33 (2) before he took the test out of the back of a car, it is stored in a secure place and kept cool by an ice pack.34 He did not remember what the temperature was that day,35 he would say it would have been a reasonable day, not too hot, not too cold;36 (3) the testing equipment is stored in an insulated esky bag with an ice block inside the bag to keep the tests cool in the way the police are instructed to do by their training and the manufacturer's instructions;37 (4) his understanding of the manufacturer's instructions are that it must be stored at a place or location below 40 degrees.38 He is aware that extreme heat affects the validity of the test;39 (5) police never have a refrigerator in the back of a vehicle but that they have a device in which they can place those kits and keep them in a cool place, but not a refrigerator as such.40 He is not aware of any specification that they be stored in a refrigerator;41 (6) from his training it was made very clear that the consumption of food can contaminate the testing procedure;42 32 MC ts page 33. 33 MC ts page 33. 34 MC ts page 34. 35 MC ts page 34. 36 MC ts page 34. 37 MC ts page 34. 38 MC ts page 35. 39 MC ts page 35. 40 MC ts page 35. 41 MC ts page 35. 42 MC ts page 35. -- 13 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 14 (7) the requirement is for him to explain to the person that is about to do a test that they are not to eat, drink or smoke anything from that point onwards;43 (8) he agrees that he is required to demonstrate a chain of custody of the evidential sample and that there is a form confirming that chain of custody;44 that there is no timekeeping requirement or that it has arrived in a sound transport manner in transporting the evidential sample;45 and that the evidential sample was secure with him.46 27 Sargeant Trejos was clear in his evidence that whilst he did not have sight of the evidential test throughout that time that it was placed in a secure location within the police bag.47 28 Ms Mellissa Dawes, was duly qualified as an expert witness and gave the following evidence-in-chief: (1) she works as a chemist in the Forensic Science Laboratory at ChemCentre.48 She has a Bachelor of Science majoring in chemistry and forensic biology and toxicology, with first class honours from Murdoch University.49 She is also a registered analyst under the Health Act and a registered drug and alcohol analyst under the Road Traffic Act;50 (2) on 25 March 2025, the exhibited marked with 0-D48728 was received from Officer Kaur and then stored in a secure location.51 An analysis is undertaken where she was able to identify the presence of methylamphetamine and documented in a report. 52 (3) she was sure that the sample tested positively for methylamphetamine as it was analysed alongside a certified reference standard for methylamphetamine using mass spectrometry, which is able to unequivocally identify the 43 MC ts page 36. 44 MC ts pages 36. 45 MC ts page 37. 46 MC ts page 37. 47 MC ts page 37. 48 MC ts page 39. 49 MC ts page 39. 50 MC ts page 39. 51 MC ts page 40. 52 MC ts page 40. See also Form 1 SGM6 - Exhibit 6. -- 14 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 15 presence of methylamphetamine, so she was sure that is what is present in the sample;53 (4) the report was in the name of Kelly Joanne Wilkinson and the associated paperwork that was filled out in relation to that certificate was a Form 1 produced on 1 April 2025. 54 29 During cross-examination, Ms Dawes gave evidence that: (1) she received the sample on 25 March 2025.55 She does not know what happened to that sample prior to her receiving it including where it was kept or stored56 and is not aware whether the sample was kept in a refrigerator;57 (2) when the sample arrived, she received it, and it was not in a secure locked box.58 The sample was accompanied with appropriate paperwork and signed and dated;59 (3) that she screens for only three drugs as part of the legislation - methylamphetamine; tetrahydrocannabinol; methylenedioxy alpha dimethylphenethylamine;60 (4) she only provides a qualitative result, positive or negative, and that is when if its above a cutoff which is set on what the Australian standards are and apply a laboratory cutoff of 32 nanograms.61 That she disagrees that it was a laboratory cutoff of 50.62 30 The appellant did not herself seek to call any other witness, including Sargeant Townsend, and confirmed that that she did not require the Sargeant.63 The appellant elected not to give evidence herself at the hearing of the trial. 31 In reaching his determination, the learned magistrate found that he was satisfied beyond reasonable doubt, having viewed the body worn 53 MC ts page 40. 54 MC ts pages 40 - 41. 55 MC ts page 41. 56 MC ts page 41. 57 MC ts page 41. 58 MC ts page 41. 59 MC ts page 41. 60 MC ts page 41. 61 MC ts page 42. 62 MC ts page 42. 63 MC ts page 38 - 39. -- 15 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 16 camera footage, that the appellant did drive a motor vehicle on the road at the relevant time and place and that he was satisfied as to the identity of the appellant.64 As to the issue of whether or not there was a prescribed illicit drug present in the appellant's oral fluid, and whether or not he should exclude the evidence of the testing conducted by Ms Dawes, the learned magistrate observed:65 HIS HONOUR: - - - I only have the evidence of Sergeant Trejos in respect of that. I note that I have exhibit 4 in terms of confirming the steps that were taken in terms of the testing. It may well be that the storage overall of the Drugwipe II Twin Combo is inadequate, but in that regard I have the evidence of Sergeant Trejos that he took all requisite steps, both in terms of storage of the testing equipment and the surrounding, shall I say, ambient temperature, for want of a better description. 32 Importantly, the learned magistrate observed that he did not have any evidence to contradict or suggest that placing it on the hood of the car in the circumstances that were demonstrated in the body-worn camera footage would eliminate the reliability of the Drugwipe item.66 33 As to the issues raised about the chain of custody, the learned magistrate ultimately found that:67 HIS HONOUR: – and this is what comes down to the inference argument in respect of the matter is that Ms Dawes received an item marked as essentially from this accused that she has tested in accordance with providing the certificate of Drugs Analyst. It's a matter where there is no other inference on the evidence before me that the sample has otherwise been tampered with or adulterated in order to falsify a result against Ms Wilkinson. 34 The learned magistrate ultimately determined that on the evidence of Ms Dawes, the oral sample that she received which did test positively to methylamphetamine, that he was satisfied beyond a reasonable doubt that the oral sample received by Ms Dawes is the 64 MC ts page 52. 65 MC ts page 52. 66 MC ts page 52 - 53. 67 MC ts pages 54. -- 16 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 17 same sample that was provided by the appellant and that methylamphetamine was present in her oral fluid.68 35 The learned magistrate entered a judgment of conviction and imposed a fine of $1,600 and ordered that the appellant pay costs in the sum of $300.50 in costs, plus a $200 analysis fee. The appellant's licence was disqualified for six months on conviction to take effect from 25 September 2025. The appeal 36 The appeal was initially commenced against the trial police prosecutor Mr Tony Freeman by notice of appeal filed 9 December 2025. The appellant filed an affidavit in support of the appeal being the affidavit of Kelly Wilkinson sworn 3 December 2025 (First Wilkinson Affidavit) which includes by way of annexure a document entitled 'Points of Contention'. 37 By order of the court made 29 April 2026, the name of the respondent to the Appeal was amended to 'Juan Trejos'. 38 By affidavit sworn 21 March 2026 (Second Wilkinson Affidavit) filed for the purpose for the purpose of describing: 'Explain Why the Appellant's Case is Late', the appellant deposed to matters to do with the transcript of the lower court proceedings not being accurate. 39 By certificate dated 24 April 2026 and filed 6 May 2026, the appellant certified that she has not fully prepared the appellant's case and that in all respects, other than the preparation of the appeal books, the appellant is not ready for the hearing of the Appeal and has 'no idea' how long it will take. Included with the certificate were written submissions in respect of the grounds advanced by the appellant in the appeal. 40 The appeal was listed for directions on 29 April 2026 and 24 June 2026. The appellant was present on each occasion.69 On each occasion, a number of procedural directions were made by the court to do with the programming of the hearing of the appeal and the applications being advanced. 68 MC ts page 54. 69 At the directions hearing on 29 April 2026 the appellant was initially not present, but thereafter appeared when the matter was recalled and the appellant appeared. -- 17 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 18 Grounds of appeal 41 The proposed grounds of appeal as they appear in the notice of appeal are as follows: (1) miscarriage of justice (Ground 1) (2) apprehended bias (Ground 2) (3) prosecutorial misconduct (Ground 3) (4) unjust reasoning in verdict (Ground 4) 42 The appeal is supported by an affidavit in support sworn 9 December 2025 (First Wilkinson Affidavit). The appellant relies on written submissions filed 6 May 2026 and 21 July 2026 in addition to oral submissions made at the hearing of the appeal before me on 26 August 2026. I have also had regard to the matters set out in the appellant's 'Points of Contention' document and the matters deposed to in each of the appellant's affidavits which expand the grounds of appeal to include a denial of procedural fairness (Ground 5). 43 A range of further submissions were raised by the appellant during the appellant's oral address at the appeal hearing. Many (if not most) appeared to rely on theories based in pseudolaw or matters of expert opinion that was not the subject of any expert evidence. 44 The appeal is opposed by the respondent. The respondent relies on written submissions filed 15 July 2026 in addition to oral submissions made at the hearing of the appeal. Legal principles relating to appeal 45 Section s 7(1) of the Criminal Appeals Act 2004 (WA) (CAA) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.70 46 The grounds of an appeal pursuant to s 7(1) of the CAA may be that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice. 70 CAA, s 6(c). -- 18 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 19 47 The appellant must obtain leave to appeal.71 If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.72 The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.73 48 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.74 49 In accordance with s 39(1) of the CAA, the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) of the CAA to 'admit any other evidence' for the purposes of dealing with an appeal.75 The power in s 40(1)(e) is wide, and should be exercised in the context of an appeal against an order made as a result of a conviction if the evidence shows that a different order should have been made by the court at first instance, that is, that a miscarriage of justice has occurred, or that the decision-maker at first instance has made an error.76 50 An appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise: CAA s 10(3). As the appellant's notice of appeal was filed some 50 days after the decision, the appellant requires an extension of time to commence the appeal. The court will grant an extension of time for appeal if it is in the interests of justice to do so.77 51 In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are as follows: the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.78 71 CAA, s 9(1). 72 CAA, s 9(3). 73 Samuels v The State of Western Australia [2005] WASCA 193. 74 CAA, s 14(2). 75 CAA, s 39(3). 76 Johnson v Matthews [2020] WASC 122; (2020) 91 MVR 491 [26] (Smith J). 77 Briggs v Houlihan [2018] WASC 301 [47]. 78 JAD v McRae [2022] WASC 220 [25] (JAD v McRae). -- 19 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 20 Extension of time to seek leave to appeal 52 The appellant in the First Wilkinson Affidavit deposes that she was plagued by the 'rambler' remark at the hearing of her trial and that this has impacted her appeals late application. The appellant further deposed to having underestimated the process required to submit the appeal and to a number of prior attempts made which were on time though not fully complete and therefore not accepted. 53 The appellant in the First Wilkinson Affidavit also deposed to her sight failing and this prolonged strain on her eyes causing migraines which the appellant has previously suffered from but not due to reading. No evidence was attached in support of this. I have also had regard to the matters deposed to in the Wilkinson Affidavits. 54 At the hearing of the appeal, the appellant also referred to various attempts made by the appellant to lodge the appeal within time. As these communications, which numbered 15 in total, were in respect of correspondence as between the appellant and the Supreme Court Registry, I had regard to the email communications produced by the appellant, copies of which were also made available to the respondent. These communications did not sit within the appeal file itself as they pre-dated the commencement of the appeal on 9 December 2025. 55 It is evident, on a review of these communications that the appellant first attempted to file a notice of appeal at 6.52 pm AWST on 23 October 2026. Where the appellant engaged with the Supreme Court Registry from then until the formal lodging of the notice of appeal on 9 December 2025, nothing is said as to the reasons for the delay in attempting to commence the appeal on (in effect) 24 October 2025. Importantly, on a review of the communication with the Supreme Court Registry the appellant points to, the appellant was on notice from as early as 24 October 2025 that there would be a need to supply an affidavit in support of an extension of time. 56 That is, these matters demonstrate the appellant engaging with the appeal process at a late stage and does not otherwise advance the matters deposed to in the First Wilkinson Affidavit, or her affidavits generally, with respect to the extension of time. 57 The application for an extension of time is opposed by the respondent. The respondent submits that the appellant filed her appeal notice about 50 days out of time and no objective evidence supports the matters the appellant's deposes to in relation to her mental state and -- 20 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 21 deteriorating eyesight. The respondent also takes issue with the appellant's reliance on the communications with the Supreme Court Registry. 58 As to the balance of the appellant's reasons for delay, the respondent submits that they may be experienced by all self-represented appellants with driver's licence disqualifications. Further, the respondent submits that the reasons for delay and other factors to an extension of time do little to outweigh the conclusion that the appeal lacks merit. 59 The appellant ultimately filed her notice of appeal on 9 December 2025, some 50 days out of time. The appellant therefore requires an extension of time. 60 I also take into account the fact that the appellant represented herself at the appeal hearing and at the trial. The considerations to be applied when dealing with litigants in person were set out in Tobin v Dodd79. I apply these principles when considering the appellant's appeal. 61 The principles to be applied in relation to a grant of an extension of time within which to appeal are well established. Generally, the following factors are to be considered in deciding whether to exercise the discretion to extend time, although they are not exhaustive: the nature and extent of the delay; the reasons for delay; the proposed grounds of appeal and their merit; the prejudice to the applicant if an extension of time is not granted, and the prejudice (if any) to the respondent if an extension of time is granted and were applied in JAD v McRae and adopted by Whitby J in Miles v WA Police.80 62 The observations of Wheeler JA made in Bardsley v The Queen81 with respect to the proposition of the purpose of the statutory time limit within which to commence an appeal are apt, where her Honour noted: [I]f all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted. A person without such a ground might formally be refused leave, rather than having their appeal 79 Tobin v Dodd [2004] WASCA 288 [13] - [14]. 80 Miles v WA Police [2025] WASC 439 [7] - [10] (Miles v WA Police). 81 Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] - [114]. -- 21 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 22 dismissed, if attempting to appeal out of time, but there would be no practical consequence ever flowing from a failure to appeal within time. It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended. It is also my view that this is a case in which more should be demonstrated. 63 In that regard the appellant did not file any further evidence better explaining her reasons for delay and did not otherwise seek leave to do so including at the directions hearings before this court on 29 April 2026 and 24 June 2026. This is despite the appellant otherwise engaging with the appellate process, including with respect to the application for leave to adduce further evidence on appeal. In circumstances where the appellant is a litigant in person, I permitted the appellant to put before me and the respondent those communications with the Supreme Court Registry that the appellant relies on to support her position that she (in effect) took steps to commence the appeal well before 9 December 2025. 64 In the present matter, in considering whether it is in the interests of justice to grant an extension of time having had regard to the above matters, I have already noted that the appellant filed her appeal some 50 days out of time and requires an order extending time within which to appeal. Whilst the delay in commencing the appeal is not substantial, and the appellant points to attempts to commence the appeal by the evening of 23 October 2025, the delay has not been satisfactorily explained and the appeal was ultimately commenced out of time. 65 However, I am required to exercise a discretion in deciding whether it is in the interests of justice to grant the extension of time within which to appeal.82 In that regard the delay is not the only relevant consideration. I will return to the appellant's application to extend time later in these reasons. Applications for leave to adduce evidence Appellant's application for leave to adduce evidence 66 By application filed 27 May 2026, the appellant seeks leave to adduce further evidence in the appeal (Appellant's Evidence Application). The Appellant's Evidence Application is supported by the affidavit of Kelly Wilkinson sworn 27 May 2026 (Third Wilkinson Affidavit) is in respect of the following matters: 82 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [13]. -- 22 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 23 (1) purported discussions that took place between the appellant and Police Prosecutor Freeman prior to the commencement of the trial on 25 September 2025; (2) extract of proceedings between the Magistrate's court orderly and Magistrate Sullivan prior to the commencement of the trial on 25 September 2025 (Extract of Proceedings). 67 The appellant, in the Third Wilkinson Affidavit, deposes that her purported discussion with the police prosecutor, Mr Freeman, prior to the trial, is new evidence. The appellant deposes further that the evidence of the out of court conversation between the learned magistrate and the court orderly is new evidence. 68 I accept that the Extract of Transcript could not have been obtained by the appellant for use at trial with reasonable diligence. As to the purported conversation that took place between Mr Freeman and the appellant prior to the commencement of the trial, the appellant has failed to satisfactorily explain, on the materials before me, why this was not raised substantively before the learned magistrate. In any event, it is not evident from the material before me that the 'out of court conversation' with Mr Freeman establishes or otherwise meaningfully advances the appellant's proposed grounds of appeal. 69 For completeness, the appellant has filed a document entitled 'Securetec DrugWipe Quick Reference Guide' to the First Wilkinson Affidavit. It is not the subject of any express application for leave to adduce evidence. In any event, the source and date of this document is unclear and is not a document which formed part of the evidence before the learned magistrate at trial. To the extent the appellant seeks to rely on the document on matters of technical and expert evidence, it was open to the appellant to seek to put to the expert witness at trial, Ms Dawes, matters to do with the analysis she undertook of the sample of oral fluid collected using the device identified in the Form 5 document.83 The appellant did not do so despite a review of the transcript demonstrating that the appellant actively engaged in the trial process including with respect to cross-examining both Sargeant Trejos and Ms Dawes. 70 As I have indicated, the power in s 40(1)(e) of the CAA to admit other evidence will only be exercised if the new evidence shows that there has been a miscarriage of justice, or that the decision-maker at 83 Form 5 - Miles Affidavit, SGM5 page 12. -- 23 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 24 first instance made an error. It is not apparent to me that the documents that the appellant seeks to rely upon establish that there has been a miscarriage of justice, or that the learned magistrate made an error. Indeed, it is not apparent to me that the documents raise anything material that was not submitted to the learned magistrate by the appellant. 71 To the extent that these documents address matters beyond the submissions made, it is not apparent to me why those matters are material or assist the appellant. It is true that the Extract of Transcript, which is a relatively brief document, shows that prior to the commencement of trial, that the court orderly in the exchange with the magistrate says that the appellant 'is apparently quite tricky, though. She is a rambler' but on my review of the transcript, this exchange is said in the context of managing the court timetable that day with respect to other matters given the 'in custodies'. 72 That the learned magistrate expressly disclosed the exchange, and in particular, the reference that the appellant 'can be a bit of a rambler' is evident on my review of the transcript of the trial. 73 Where the appellant points to the magistrate's failure to disclose the reference to 'quite tricky', this in and of itself, when one has regard to the entirety of the exchange between the court orderly and the learned magistrate prior to the commencement of the trial, does not cause me to alter my view when one has regard to the Extract of Transcript as a whole. 74 Ultimately, the learned magistrate's reasons indicate that the reasons as to why he was satisfied beyond a reasonable doubt that it was appropriate to convict the appellant with the offence she was charged with was based on the evidence before him. 75 The appellant's Application for Leave to Adduce Evidence is refused. Respondent's application for leave to adduce evidence 76 By application filed 10 June 2026, the respondent seeks leave to adduce the evidence in the appeal that was before the lower court at trial (Respondent's Evidence Application). The respondent submits that the application was made to put the documents the respondent believes were tendered at exhibits at trial before the court in circumstances where the trial exhibits were destroyed by the Midland Magistrate's -- 24 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 25 Court. The respondent submits that the application should be admitted under s 40(1)(e) of the CAA so that the court may consider the appellant's proposed ground 4. 77 The Respondent's Evidence Application is supported by the affidavit of Rossanna Carmen Panetta affirmed 10 June 2026 (Panetta Affidavit) is in respect of the following matters: (1) the affidavit of Samuel George Miles affirmed 10 June 2026 be admitted as evidence in the appeal (Miles Affidavit) on the grounds that the Miles Affidavit contains evidence relevant to the appellant's grounds of appeal 'unjust reasoning verdict' namely: (a) the six documents that Mr Miles believes are copies of documents which were tendered at the trial of the appellant on 25 September 2025 in the Midland Magistrate's Court in respect of charge number MI3701/2025 for the offence of 'drove a motor vehicle, on a road, whilst a prescribed illicit drug was present in her 'oral fluid' contrary to s64AC(1) of the RTA; (b) the documents grounding that belief. 78 Mr Miles in the Miles Affidavit relevantly deposes that: (1) he is employed by the Western Australian Police Force (WAPOL), prosecuting services division and is authorised to affirm the affidavit on behalf of the respondent;84 (2) the six documents are copies of documents he believes were tendered at the trial of the appellant on 25 September 2025 in respect of charge number MI3701/2025;85 (3) the six documents and the body worn camera footage are as follows: (a) Exhibit 1 - Drug interview form;86 (b) Exhibit 2 - Confirmatory drug test;87 84 Miles Affidavit paragraph 1. 85 Miles Affidavit paragraph 2. 86 Miles Affidavit, paragraph 4(a) Attachment 'SGM1'. 87 Miles Affidavit, paragraph 4(b) Attachment 'SGM2'. -- 25 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 26 (c) Exhibit 3 - Form 6 Authority;88 (d) Exhibit 4 - DrugWipe III Twin Combo S 202 G.24 kit - Check List;89 (e) Exhibit 5 - Form 5; 90 (f) Exhibit 6 - Certificate of Drug Analysis 91 and (g) Exhibit 7 - USB - Bodyworn Camera Footage.92 (4) further to a request for copies of the documents from the State Solicitor's Office and his own enquiries with the Midland Magistrate's Court, he was advised by email dated 21 April 2026 from Rhee, Customer Service Officer at the Midland Magistrate's Court that the Midland Magistrate's Court had destroyed the exhibits tendered at trial;93 (5) between 21 April 2026 to 2 June 2026, he went through a process of verifying with Senior Constable Freeman, the police prosecutor, the documents tendered at trial;94 (6) on 3 June 2026, following his Form 1 'Request to Inspect or Obtain a Copy of a Court Record' to the Midland Magistrate's Court by email dated 2 June 2026; he received an email from the Midland Magistrate's Court attaching the exhibit list for the trial (Exhibit List).95 79 There is little information before me, including the Magistrates Court of Western Australia's guidelines in respect of the manner in which physical exhibits are dealt with at the conclusion of trial and the relevant appeal period. However, it is apparent that an order for destruction of exhibits in respect of the lower court proceedings was signed on 10 December 2025. This date being after the appeal period. 80 Whilst the matters deposed to at paragraphs 9, 10, 11, 12 and 13 of the Miles Affidavit should properly be deposed to by Senior Constable Freeman, the police prosecutor at trial, on my review of the transcript 88 Miles Affidavit, paragraph 4(c) Attachment 'SGM3'. 89 Miles Affidavit, paragraph 4(d) Attachment 'SGM4'. 90 Miles Affidavit, paragraph 4(e) Attachment 'SGM5'. 91 Miles Affidavit, paragraph 4(f) Attachment 'SGM6'. 92 Miles Affidavit, paragraph 4(g) Attachment 'SGM7'. 93 Miles Affidavit, paragraphs 6 to 8; Attachments SGM9 - SGM 12. 94 Miles Affidavit, paragraphs 6 to 8; Attachments SGM9 - SGM 13. 95 Miles Affidavit, paragraph15 to 16; Attachments SGM20 - SGM21. -- 26 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 27 of the trial proceedings on 25 September 2025, I am satisfied, having carefully considered the Exhibit List, and the documents attached at 'SM1' to 'SM7' of the Miles Affidavit, and in circumstances where the application to adduce the evidence is not opposed, that the respondent be granted leave to adduce evidence in the form of the Miles Affidavit affirmed on 10 June 2026. 81 In circumstances where the appellant is a litigant in person, the court printed and provided the appellant with a copy of the Panetta Affidavit which attached the Miles Affidavit for the express purpose of the appellant having the document available to her during the hearing (as she herself had not printed out the entirety of the 81 page document which had been available to her from the date of the filing of the Panetta Affidavit on 10 June 2026). The appellant referred to the Miles Affidavit for the purposes of referencing the reconstructed exhibits during the course of her submissions at the appeal. Leave to appeal 82 What comes before this court therefore is essentially an appeal framed on the overarching grounds that the appellant has suffered a miscarriage of justice arising out of Proposed Grounds 1, 2, 3 and 4 of the notice of appeal and submissions in respect of a lack of procedural fairness afforded to the appellant by the learned magistrate. Did the out of court conversations give rise to a miscarriage of justice? (Proposed Grounds 1, 2 and 3) Apprehended bias 83 As against this ground of appeal, the appellant raises a number of reasons why the learned magistrate demonstrated apprehended bias: the 'out of court' conversation; 'lying' about the content of the conversation; 'lying' that he knew nothing else about the trial; 'acknowledging the prejudice' to the appellant as a result of his conversation with the orderly; refusing to accept documents into evidence; interrupting the appellant throughout the trial; questioning Sargeant Trejos on the appellant's behalf; setting a one hour time limit; being frustrated and exhibiting discomfort during the trial; being uninterested in Sargeant Trejos' behaviour after the conviction; 'coercing the appellant' not to view the body worn camera footage and disregarding the applicable Australian standards. -- 27 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 28 84 The appellant alleges that the learned magistrate was biased in the conduct of the trial in that the magistrate referred to the appellant as a rambler at the outset of the trial. The appellant deposed in the First Wilkinson Affidavit that she was overwhelmed as a result and found it hard to focus, was unfairly scrutinised thoroughly the entire court proceedings and did not once feel fairly treated. The appellant also points to matters the subject of the exchange between the learned magistrate and the orderly which I have determined, for the reasons set out above, do not form part of the evidence in this appeal. 85 The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is: whether a fair- minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide.96 86 The application of that test involves two steps. First, it requires the identification of the facts and circumstances said to give rise to the apprehension of bias. Second, it requires that there is a logical connection established between those facts and circumstances and the asserted conclusion that the judicial officer may not decide the case on its merits.97 The party who alleges an apprehension of bias bears the onus of proving the facts upon which that allegation is made.98 87 The test is objective and it is to be assumed that the lay observer will base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the hearing as a whole. Apprehended bias must be firmly established. Suspicions of an ultra-sensitive, paranoid or cynical person do not determine the applicable legal standard of impartiality.99 88 The passages of the extract of proceedings between the Magistrate's court orderly and Magistrate Sullivan prior to the commencement of the trial on 25 September 2025 and the transcript of the substantive lower court proceedings the appellant relies on, including in the Third Wilkinson Affidavit, demonstrate that the learned magistrate did what any reasonable trier of fact would have done; namely, disallowed questions or propositions that were plainly baseless and/or irrelevant. In doing so, the magistrate acted consistent 96 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. 97 Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337 [8]. 98 Y v X [2024] WASCA 104 [123]. 99 B v Coan [2021] WASC 127 [103] citing S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374. -- 28 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 29 with his duty to 'discard the irrelevant, the immaterial and the prejudicial'.100 89 I have reviewed the transcript of the lower court proceedings in detail. It is clear that at the outset of the trial, as noted above, the learned magistrate informed the appellant that it was described to him that the appellant 'can be a bit of a rambler' and expressly said that it is not a matter that causes any prejudice to the appellant. The learned magistrate went on to explain that he was obliged to mention this to the appellant as a matter of fairness in circumstances where the comment was made in the appellant's absence. Importantly, the appellant, having heard these matters, informed the learned magistrate that she was 'not offended by it at all' and that 'It's taken on board'.101 90 At no point during the course of the trial did the appellant seek to revisit the position or raise any concern. It is clear from my review of the transcript of the trial proceedings that the learned magistrate throughout the course of the trial explained the trial process to the appellant and sought the appellant's position on various matters that arose during the course of the evidence. 91 Whilst some of the magistrate's interactions with the appellant might fairly be described as forthright, those interactions must be viewed in context, as the respondent correctly submits. 92 That context included that the proceedings took the form of a trial in a court of summary jurisdiction, involving a litigant who was evidently fixed in her determination to advance unmeritorious points not relevant to any element of any of the charges of which she stood accused. 93 I do not consider that a fair-minded lay observer, aware of that context, would have thought that his Honour was biased against the appellant. 94 There is no merit to this ground of appeal. Prosecutorial misconduct 95 The appellant submits that the police prosecutor attempted to 'gas light' the appellant before the trial. The matters complained of, whilst not substantiated by any evidence, sit in the category of pre-trial 100 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]. 101 MC ts page 2. -- 29 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 30 conferral where on the appellant's own submission, the police prosecutor sought the appellant's 'defence intentions'. 96 As to the nub of the matters raised in the ground of appeal, the appellant in her submissions points to the exchange between the police prosecutor and the Magistrate's Court orderly prior to the commencement of trial. The appellant points to breaches of professional conduct and prosecutorial obligations and protocols and casts a wide net in advancing the assertions. 97 These are serious matters to raise. However, no objective evidence has been adduced by the appellant to support or meaningfully advance her alleged conversation with the police prosecutor prior to trial. Accepting that a pre-hearing conference in the nature of conferral occurred as between the appellant and the police prosecutor, this in itself does not establish the proposed ground of appeal complained of. That is, there is nothing to support the broad assertion of prosecutorial misconduct. 98 There is no merit to this ground of appeal. Was there a lack of procedural fairness? (Proposed Ground 5) 99 The appellant points to a range of matters said to demonstrate a lack of procedural fairness on the part of the learned magistrate. Broadly, having worked though the appellant's submissions and Points of Contention document, they relate to the following matters: the magistrate not accepting the appellant's written statement as evidence; the magistrate interrupting the appellant; the magistrate not permitting the appellant to advance matters to do with Sargeant Trejos' alleged conduct subsequent to the charge; (in effect) allowing only an hour for the trial; being frustrated and impatient; 'threatening' the appellant to reduce footage played at the trial; disregarding the Australian Standards. 100 Where the appellant submits that the learned magistrate was impatient and frustrated, there is no evidence that the learned magistrate acted in a manner inconsistent with him identifying and focussing the trial on the issues and giving the appellant information as to the practical consequences if the trial did not conclude within the allocated timeframe. Contrary to the appellant's submission, there is no evidence that the magistrate imposed a one hour time limit on the trial. -- 30 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 31 101 In fact, the trial proceeded for well over two hours. Relevantly, when the appellant commented at trial that she felt 'frustration in the air', the learned magistrate said:102 HIS HONOUR: I'm going to be abundantly clear, Ms Wilkinson. When you say no one wants to listen to it - - - ACCUSED: I just feel there's frustration in the air. There has been a lot of frustration since the beginning, and there's a lot of – I don't know - - - HIS HONOUR: Well, let me be frank, Ms Wilkinson, I'm aware – I tend to be aware when I'm getting frustrated. I'm not frustrated now. I know when I'm getting frustrated. ACCUSED: Okay. HIS HONOUR: I'm fine. And if you choose to give evidence, or choose not to give evidence, it's of no consequence to me. As I say, I'm here - - - ACCUSED: You're here anyway - - - HIS HONOUR: And we won't be sitting until midnight, so it's a matter entirely for you. So I don't want you to feel like you can't give evidence because I'm trying to subtly discourage you from giving evidence, but let me be clear. If you don't want to give evidence, that's fine. I have no problems either way. Do you wish to give evidence? ACCUSED: No. 102 Importantly, during the course of this exchange, the learned magistrate expressly asked the appellant whether she herself sought to give evidence, and she elected not to. That is of course entirely a matter for the appellant but it is relevant to the extent there is any suggestion of a lack of procedural fairness. 103 The appellant did not herself seek to call any other witness, including Sargeant Townsend, and confirmed that that she did not require the Sargeant.103 102 MC ts page 44. 103 MC ts page 38. -- 31 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 32 104 Where the appellant objected to the fact that she had not been given the chance to view the body worn camera footage prior to trial it was explained to the appellant by the learned magistrate that the footage will be played, with the opportunity to hear objections about it afterwards.104 What is evident from the exchange around the body worn camera footage was that from the appellant's perspective, matters to do with the manner in which Sargeant Trejos processed the second sample was in issue.105 As was observed above, in any event, during the course of the footage being viewed, the learned magistrate asked the appellant on a number of occasions about whether she was content to fast forward portions of the video.106 The learned magistrate otherwise directed the prosecution to show the footage of the point at which the sample is sealed prior to any movement of that sample.107 105 The learned magistrate further explained the evidentiary process to the appellant during the course of the cross-examination of Sargeant Trejos.108 And again, in outlining the appellant's case theory with respect to the sample.109 106 The learned magistrate dealt with matters which he determined were irrelevant to the charge before the court. This included Sargeant Trejos' searching of the appellant's vehicle and the serving of the 'papers' on the appellant. 107 The appellant's case theory appears to centre around the alleged lack of police procedure in respect of the storage of the evidentiary test sample - that is concerns around the 'chain of custody' of the sample. There is also reference to the lack of consent and the manner in which the papers were delivered to her by police.110 These matters were brought to the attention to the learned magistrate. 108 The appellant cross-examined Sargeant Trejos and the expert witness, Ms Dawes. In the context of the integrity of the sample, there is nothing in the answers provided to support the appellant's view that the integrity of the sample had in some way been compromised due to the manner in which the sample was stored, or the manner in which the sample was transported. That is, Ms Dawes was clear in her evidence 104 MC ts page 14. 105 MC ts pages 18 - 24. 106 MC ts pages 20 - 21. 107 MC ts page 24. 108 MC ts page 25. 109 MC ts page 26. 110 MC ts pages 6 to 7. -- 32 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 33 that having undertaken the prescribed screening of the sample, she obtained a qualitative result, being a positive result for methylamphetamine as it was analysed alongside a certified reference standard for methylamphetamine.111 109 The appellant's view as to the integrity of the sample being in some way compromised is at its highest, entirely speculatively. Sargeant Trejos having given clear and cogent evidence as to how the evidentiary test sample was secured, stored in a secure place kept cool by an ice pack112 and transported prior to being delivered to the ChemCentre for analysis. 110 Importantly, each of the matters complained of by the appellant on appeal with respect to the integrity of the sample and the purported lack of correct procedure were all part of the trial. They were dealt with properly by the court below. None represents new evidence which may be thought to undermine the conviction. 111 As to the balance of the matters complained of, on my review of the transcript and in all of the circumstances, I am of the view that there the appellant was given a reasonable opportunity to be heard and to present her case by evidence, information and submissions. There is nothing to suggest a lack of procedural fairness and no miscarriage of justice arises. 112 There is no merit to the ground of appeal. Unjust reasoning in verdict (Proposed Ground 4) 113 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court is asked to conclude that the verdict is unsafe or unsatisfactory, the question is whether upon the whole of the evidence it was open to the fact-finder to be satisfied beyond reasonable doubt that the accused was guilty.113 114 In reaching is determination, the learned magistrate found that he was satisfied that beyond reasonable doubt, having viewed the body worn camera footage, that the appellant did drive a motor vehicle on the road at the relevant time and place and that he was satisfied as to the identity of the appellant.114 The learned magistrate in his reaching his 111 MC ts page 40. 112 MC ts page 34. 113 M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. 114 MC ts page 52. -- 33 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 34 decision, expressly considered the question of whether or not he ought to exclude the evidence of the testing conducted by Ms Dawes. 115 The applicable scheme governing the roadside drug testing is in the RTA and the Road Traffic (Drug Driving) Regulations 2007 (WA) (Regulations). Schedule 2 division 1 of those regulations fully describes the steps for the collection and testing of the appellant's oral sample which was collected using an approved device, being the Securetec Drugswipe II Twin Combo, in accordance with the Regulations.115 116 In electing to accept the testing, having heard the appellant's submissions on the matter, the learned magistrate found, having had regard to the evidence, of Sargeant Trejos, that all requisite steps were undertaken.116 117 Importantly, the learned magistrate observed that he did have not any evidence to contradict or suggest that placing it on the hood of the car in the circumstances that were demonstrated in the body-worn camera footage would eliminate the reliability of the Drugwipe item.117 118 As to the issue raised about the chain of custody, the learned magistrate ultimately found that:118 HIS HONOUR: – and this is what comes down to the inference argument in respect of the matter is that Ms Dawes received an item marked as essentially from this accused that she has tested in accordance with providing the certificate of Drugs Analyst. It's a matter where there is no other inference on the evidence before me that the sample has otherwise been tampered with or adulterated in order to falsify a result against Ms Wilkinson. 119 The learned magistrate ultimately determined that on the evidence of Ms Dawes, the oral sample that she received which did test positively to methylamphetamine, that he was satisfied beyond a reasonable doubt that the oral sample received by Ms Dawes is the same sample that was provided by the appellant and that methylamphetamine was present in her oral fluid.119 115 Miles Affidavit, Attachment 'SGM5' - Form 5. 116 MC ts page 52. 117 MC ts page 52. 118 MC ts pages 53 - 54. 119 MC ts page 54. -- 34 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 35 120 On my review of the transcript of proceedings and having had regard to the entirety of the matter, I am satisfied that the learned magistrate's conviction is supported by the evidence. 121 It follows there is no merit in this ground of appeal. Conclusion 122 Considering all the matters to which I have referred, I have concluded that none of appellant's complaints have merit. Accordingly, I would refuse the applications to extend time within which to appeal against conviction. 123 Given my conclusions about the appellant's applications to extend time it is strictly unnecessary for me to consider the question of leave to appeal against conviction or sentence. This is because the effect of refusing to extend time is that the appeals are taken not to have commenced. However, to the extent that it may be necessary, I would also refuse leave to appeal against conviction on all grounds on all grounds proposed in the appellant's notice of appeal and proposed Ground 5. 124 On that basis I would dismiss the appellant's appeal against conviction. 125 For completeness, I note that none of the appellant's proposed grounds of appeal touched on the question of sentence. Nor did the appellant take issue with the reasonability or otherwise of any of the sentences imposed; let alone advance a contention that they were manifestly excessive. Evidently, it was the appellant's case that she should not have been sentenced because she should not have been convicted in the first place. There is in any event nothing to suggest to me that the sentences imposed were such as to warrant appellate intervention. Orders 126 For the above reasons, the following orders should be made in this appeal: 1. The respondent's application to adduce additional evidence is granted. 2. The appellant's application to adduce additional evidence is refused. -- 35 of 36 -- [2026] WASC 364 JEYAMOHAN J Page 36 3. The application for an extension of time within which to appeal against conviction is refused. 4. Leave to appeal is refused. 5. The appeal is dismissed. 127 I will hear the parties in relation to the issue of costs of the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MO Associate to the Hon Justice Jeyamohan 28 AUGUST 2026 -- 36 of 36 --