MJ -v- SANDERS [2020] WASC 150 (23 April 2020)

1. The respondent did not oppose the appellant's application for an extension of time within which to appeal. The delay was not substantial and has been explained. It is appropriate to grant the extension of time.

1. In her written submissions, the appellant advised that she abandoned ground 2 and withdrew an allegation of duplicity in relation to one of the charges. The remaining grounds are:

Ground 1: With respect to KA 4449/17, KA 4452/17 and KA 4453/17, the learned magistrate erred in fact and in law in finding that the appellant used the restricted‑access computer system ASSIST other than in accordance with her authorisation, in circumstances where:

(a) The magistrate made no findings as to the terms of the appellant's authorisation to use ASSIST; and

(b) The prosecution did not lead any evidence of the terms of the appellant's authorisation to use ASSIST.

Ground 3: With respect to KA 4449/17, the appellant suffered a miscarriage of justice as the charge is duplicitous.

1. Self‑evidently, ground 1 relates only to the alleged unauthorised use of ASSIST.
2. The duplicity alleged in ground 3 is said to arise because KA 4449/17 alleged the unauthorised use of both ICMS and ASSIST.

1. In his written submissions, the respondent conceded that each ground of appeal should be allowed.
2. In relation to ground 1, the respondent wrote that it should be allowed because there was no evidence led, or finding made, as to the scope of the appellant's authorisation to use ASSIST.[2] As will be seen, I do not accept no evidence was led. Nor do I accept that the magistrate did not make a finding as to this.
3. Prior to the hearing, I raised my concerns about the respondent's concessions with the parties. I invited the parties to consider if the issue was rather whether the evidence was sufficient to support a finding beyond reasonable doubt as to the scope of the authority. The respondent provided further submissions in which he agreed, in effect, that this was the question, and explained why he submitted that the answer was 'no'.[3]
4. I accept that the evidence was insufficient to prove the scope of the appellant's authorisation.
5. In relation to ground 3, the respondent conceded KA 4449/17 was duplex. The respondent submitted, however, that the duplicity could and should be remedied by this court amending the conviction to limit its scope to the use of ICMS. As will be seen, I accept this.

1. The issues are:
   1. In relation to ground 1, was the evidence sufficient to support a finding beyond reasonable doubt as to the scope of the appellant's authority?
   2. In relation to ground 3:

Appeals from magistrates' decisions[4]

1. The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[5]
2. Leave to appeal is required.[6]
3. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[7] That means that the ground is required to have a real, rational and logical prospect of succeeding.[8]
4. Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[9]
5. 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.[10] Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[11]
6. Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[12] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly[13]

it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

1. These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case still has a large volume of cases to deal with daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.

1. I gratefully acknowledge the comprehensive and sensible submissions filed by both parties. The following reproduces much of the summary provided by the appellant, with which the respondent agreed.
   1. The appellant was employed as a Prevention and Diversion Officer at the Department of Corrective Services (DCS) from early 2013 to 4 June 2017. In November 2013, the appellant was granted access to the Integrated Courts Management System (ICMS) computer program.
   2. On 6 June 2017, after resigning from her employment at the Department of Corrective Services, the appellant commenced [employment] at the Department [of] Child Protection and Family Services (DCPFS) as an intensive family support worker. In that role, the appellant was granted access to the computer-system "ASSIST".
   3. The appellant was charged with 8 counts of Unlawful Use of a Computer, contrary to s 440A(3)(c) of the Criminal Code, arising out of her use of ICMS and ASSIST in 2017:

1. The appellant entered pleas of Not Guilty to the charges. A trial in respect of the charges was heard over three days, on 20 August 2018, 4 October 2018 and 20 December 2018, before her Honour Magistrate De Maio. Each party filed written closing submissions.
2. On 21 June 2019, the learned magistrate delivered oral reasons for decision. She found the appellant guilty of all eight charges and entered judgments of conviction.
3. Her Honour imposed a global fine of $4000 across all charges. An application for a Spent Conviction Order pursuant to s 45 of the Sentencing Act 1995 was refused.

1. Section 440A(3)(c) provides that a person who unlawfully uses a restricted-access computer system is guilty of a crime.
2. Section 440A(2) provides:

'For the purposes of this section a person unlawfully uses a restricted-access computer system -

(a) if the person uses it when he or she is not properly authorised to do so; or

(b) if the person, being authorised to use it, uses it other than in accordance with his or her authorisation.'

1. Charges KA 4449/17, KA 4452/17 and KA 4453/17 all relate to the appellant's use of ASSIST. The following matters were not in dispute at the hearing, and nor is any issue taken on appeal:

12.1. That ASSIST was a 'restricted-access computer system' as defined in s 440A(1);

12.2. That the appellant did 'use' ASSIST, as defined in s 440A(1);

12.3. That the appellant had the authority to use ASSIST at the time of each of the impugned searches.

1. The critical issue was accordingly whether the appellant unlawfully used a restricted‑access computer system in the manner defined at s 440A(2)(b) - that is, whether the appellant used ASSIST other than in accordance with her authorisation.

1. There was a considerable amount of evidence about the role of the accused while employed by DCPFS, as well as ordinary processes within the Department. Primarily, this evidence came from [DR], the appellant's line manager at DCPFS.
2. [DR] gave evidence about the role of the intensive family support team, the creation of family genograms and the process that would ordinarily be followed to determine who a family's case manager was. However, none of that evidence was directed at the terms of use of ASSIST. For example, there was no evidence that a DCPFS employee was only permitted to use ASSIST in relation to people who were within the particular family units that they case managed.
3. [DR] also provided evidence of a warning that appears when you access ASSIST (the warning). The warning reads:

'Important reminder of confidentiality obligations. In accessing client information by clicking okay below I undertake to comply with the provisions of confidentiality documented in section 241 of the Children and Community Services Act 2004, section 127 of the Adoption Act of Western Australia 2004 [sic: 1994], section 81 of the Criminal Code of Western Australia, section 440A of the Criminal Code of Western Australia and the Public Service Commission Administration Instructions 771 [sic: 711 ].'[14]

1. As the appellant pointed out, neither the provisions nor the instruction referred to in the warning restrict the terms of an employee's authorisation to access ASSIST:

(a) Section 241 of the Children and Community Services Act 2004 (WA) and s 127 of the Adoption Act 1994 (WA) restrict the recording, disclosure and use of information that has been obtained. They do not define the purposes for which information can be obtained;

(b) Section 81 of the Criminal Code deals with unlawful disclosure of information;

(c) Section 440A of the Criminal Code prohibits a person from using a restricted‑access computer system without proper authorisation or other than in accordance with a person's authorisation. However, it does not itself define the scope of a person's authorisation; and

(d) Public Service Commission Administration Instruction 711 prohibits giving or disclosing information and documents obtained in the course of official duty.

1. As the summary shows, the charges that alleged the unauthorised use of ASSIST, the subject of ground 1 of the appeal, were KA 4449/17, 4452/17 and 4453/17. The charge alleged to be duplex in ground 3 is KA 4449/17, as it alleged the unauthorised use of both ICMS and ASSIST.
2. It is unnecessary to identify the names of the people who were the subject of the appellant's searches. I will refer to them by initials.
3. KA 4449/17 alleged three unauthorised searches on the same day, 29 September 2017:

1. KA 4452/17 alleged an unauthorised search of a person 'CD' on ASSIST.
2. KA 4453/17 alleged an unauthorised search of a person 'RC' on ASSIST.
3. The appellant gave evidence in the trial. The following exchanges occurred in her evidence:[15]

And what was the policy surrounding access to ASSIST when you were at DCP? ‑‑‑ There was, like, something to do with not accessing someone that you weren't working with and things like that so, but also, like, I mean, our families are all linked into each other so a lot of our families that we were directly working with, so you could sometimes go into somebody else not - you're not working with because they're already linked to that family so.

...

And in that three to four months was there any policy in relation to accessing ASSIST? ‑‑‑ Only that - like I said, they had to be - like, you had to be working with that family but, like I said, all families are interacting so - and in the instance - like, if you needed to access somebody to advise, like, to find out who the case manager was, for instance, that was the easiest way to find out who the case manager was: by looking at ASSIST.

...

Why does an audit show that your login details were used on ASSIST to access [CD]? - ... I used him to look up his mother to see who the case manager was for the family and I immediately emailed the case manager to advise what had happened the day before and that [another person] may be getting charged because she was in possession of my stolen property and that's pretty much how I know [CD]. ...

How was using ASSIST to look up [CD] part of your job at DCP? ‑‑‑ Well, on that day I think it was - I believe, like, I should have, like, as a DCP officer I should advise my co‑worker of what had actually happened on the weekend so I believe that's why I looked at ASSIST to find out his case manager.

...

And how was using assist to look up [RC] part of your job at DCP? ‑‑‑ Again, to advise a co‑worker of information I had about a client.

Who is [AC]? ‑‑‑ [AC] is related to the - if it's the [AC] Junior or [AC] Senior, it's the partner or son of [LM].

Okay. And why does an audit of ASSIST show [AC] is accessed using your login details? ‑‑‑ In relation to that it was when we - [TS] and I were working on - together on a referral in regards to [AC] to DCP.

...

And so why didn't you just ring up the Hedland office and say, 'Who's looking after [RC]'? ‑‑‑ Because I had discussed with her at orientation and she said to contact her and I just - and I don't know, just - - -

Or to research on who's at Hedland and just CC everyone and send an email that way? ‑‑‑ Well, I just don't know. It was just easier to look up ASSIST and get her name.

But you agree that for ASSIST you're only allowed to do it - related to the five families? ‑‑‑ Well, I was just trying - like, maybe I shouldn't have done it that way. I agree now that I shouldn't have. If I had of known I was going to get into trouble for it I would have sent an email, but at the time I just looked on ASSIST to see what her name was.

Do you agree that [RC] was outside the five families, like, not related to those five families - - - ? --- Yes.

- - - that [TS] and yourself looked after. Okay?‑‑‑Yes.

1. The magistrate summarised the prosecution's case in relation to the use of ASSIST as being that the appellant's 'use was not related to her work and, therefore, was in breach of s 440A because she used the system other than in accordance with her authorisation'.[16]
2. The magistrate noted that the appellant did not deny using ASSIST. However, the appellant argued that the prosecution had failed to establish the terms of her authority, and had simply asserted that, because the searches were not work‑related, they must be unauthorised. The appellant further argued that, in any event, the prosecution failed to prove beyond a reasonable doubt that her searches were not work‑related.[17]
3. The magistrate said that, in relation to the charges involving the use of ASSIST, the question was 'whether or not the accused had an unauthorised purpose in accessing the system ... that is, whether the accused was acting within the scope of her employment and, therefore, that her use of it was authorised'.[18]
4. Later, the magistrate said:[19]

In relation to the ASSIST searches, naturally [DR's] evidence is also relevant to the ASSIST searches and I won't repeat what I've already said about his evidence.

[DR] was clear and unshakeable about what might constitute a legitimate business purpose for his teams - or his department. He was equally clear about the processes within the team. Although they worked together, there were specific portfolios held by each team member and a defined publish process or protocol regulating how information passing between the DCP unit he operated and outside agencies was to be conducted. [DR] was also clear about the parameters of the accused's role.

...

Defence counsel poses a very interesting a very interesting argument about the definition of authorisation and he's right. There is no definition in the Code or that section. So authorisation or authority must be given their normal dictionary meaning. [DR] outlined that the accused underwent two days of training before she could access ASSIST and that training covered confidentiality requirements and legal requirements.

In respect of [AC] then, ... In relation to child protection issues, the accused had no authority to assess harm. She should have referred her concerns to the line manager, which was [DR], or [NM], whose portfolio was protection. I make it clear that she may have had a benign purpose and a desire to be helpful. The issue though is whether or not she could access ASSIST in this way, and she can't.

In relation [to CD], the accused gave evidence that [she] accessed [CD] in ASSIST in order to find the name of the case manager for the family so she could advise him or her that [RC's mother], may be charged in relation to a burglary committed at her house. In cross examination, she conceded that this search was not work related, but justified it on the basis that she outlined in her examination. Her answers in cross‑examination did not sit well with her statement, which was tendered into evidence, and that doesn't refer to [CD] at all.

This search in particular can have no legitimate business purpose relating to the accused's role at DCP and therefore it's unauthorised. This search has the flavour a personal matter. I don't deny that she may have searched in order to see [RC's] DCP worker or case worker but it's the physical search that she performed that could not be authorised. That she could not have any mistake that she had the authority to perform this search, particularly because of its personal flavour.

Similarly, accessing ASSIST to locate [RC's] case manager can have no legitimate business purpose. In cross-examination, the accused admitted that her access to the information was easier than following the policy to achieve the same end. That indicates an awareness of the correct procedure and a deliberate decision to bypass it. The accused may have had a desire to be helpful to a fellow DCP worker by passing on information as to [RC's] drug use, but this does not constitute a legitimate business purpose and so the use of ASSIST in this case must be unauthorised also.

1. The magistrate imposed a global penalty of $4,000 in relation to all eight charges.

1. Ground 1 challenges the convictions in relation to the use of ASSIST.

1. Section 440A(2) of the Criminal Code identifies two circumstances in which use of a restricted‑access computer system is unlawful. The first is where the person has no authorisation to use the computer system. The second is where the person is authorised to use the system, but uses it in a way that is not in accordance with the authorisation. The charges challenged in ground 1 fall into the second category.
2. The offence is the use of the restricted access computer system without authority. It is not whether the person obtains access to any information, the nature of any information obtained, or how the person uses any information they obtain.[20]
3. The parties drew my attention to Giles v Douglas[21] as being the only decision in which s 440A of the Criminal Code has been considered in the context of an appeal against conviction. In that case, there was evidence that the accused's authority to access the relevant computer system did not extend to access for personal reasons. The finding that the system was being used for personal reasons led to the conclusion that the system was not used in accordance with the person's authorisation.
4. The respondent also referred to Director of Public Prosecutions v Murdoch,[22] as it involved an analogous provision. The provision was s 9A of the Summary Offences Act 1966 (Vic), which provided that a 'person must not gain access to, or enter, a computer system or part of a computer system without lawful authority to do so'. Hayne J said:[23]

Where, as is the case here, the question is whether the entry was with permission, it will be important to identify the entry and to determine whether that entry was within the scope of the permission that had been given. If the permission was not subject to some express or implied limitation which excluded the entry from its scope, then the entry will be with lawful justification but if the permission was subject to an actual, express or implied limitation which excluded the actual entry made, then the entry will be 'without lawful authority to do so'.

1. Hayne J quoted from the reasons of Brennan and Deane JJ in Barker v R,[24] a case of alleged trespass where the entry was said to have been with permission:

When the only suggested justification for entry is the permission of the person in possession, the question whether entry was as a trespasser involves no more than identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission.[25]

1. Hayne J said that the same kinds of question arose in considering s 9A.
2. His Honour continued:[26]

In my view the section requires attention to whether the particular entry in question was an entry that was made without lawful authority. In the case of a hacker it will be clear that he has no authority to enter the system. In the case of an employee the question will be whether that employee had authority to effect the entry with which he stands charged. If he has a general and unlimited permission to enter the system then no offence is proved. If however there are limits upon the permission given to him to enter that system, it will be necessary to ask was the entry within the scope of that permission? If it was, then no offence was committed; if it was not, then he has entered the system without lawful authority to do so.

1. The magistrate delivered her reasons on 21 June 2019, six months after the last hearing date. For this reason, I consider that I should give less weight to the observations of Martin CJ in Strahan v Brennan referred to earlier. Nevertheless, it remains inappropriate to scrutinise her Honour's reasons with a fine tooth comb and some infelicity of language may be expected.
2. The appellant's submissions can be understood as being two‑fold. First, there was no evidence adduced by the prosecution from which a finding could be made as to the scope of the appellant's authority to use ASSIST. Second, the magistrate did not make a finding as to that scope.
3. In relation to the first point, while there was no evidence led by the prosecution, there was evidence from the appellant herself. The issue is whether it was sufficient to prove the scope of the appellant's authority. I will say more about this later, as I intend to begin with the submission that the magistrate did not make a finding as to the scope of the appellant's authority to use ASSIST.

1. It was common ground that the appellant had authority to use ASSIST. The offences challenged in ground 1 alleged that she used ASSIST in a way that was not in accordance with her authorisation.
2. It was therefore necessary for her Honour to identify any limits on the appellant's authority before it could be determined whether the use was not in accordance with that authority.
3. Her Honour said that 'authorisation' should be given its ordinary dictionary meaning. In this appeal, the parties essentially agreed that the ordinary meaning of 'authorisation' was 'permission'. Applying this meaning does not illuminate any limits on such permission.
4. Her Honour referred to the fact that the appellant had received training which covered the confidentiality and legal requirements of accessing ASSIST. This evidence did not identify what those requirements were. Accordingly, this evidence did not identify the limits on the appellant's authorisation.
5. In relation to KA 4449/17, her Honour found, in effect, that this use was unauthorised because it was not part of the appellant's role to assess harm. It is implicit from this, and in the context of her Honour's reasons as a whole, that her Honour found that the appellant's authority to use ASSIST was limited to purposes directly related to the discharge of her specific duties.
6. In relation to KA 4452/17 and KA 4453/17, her Honour found that these uses were unauthorised because they were not for 'legitimate business purposes'. Again, it is implicit from this, and in the context of her Honour's reasons as a whole, that her Honour found that the appellant's authority to use ASSIST was limited to purposes directly related to her specific duties.
7. Accordingly, on a fair reading of her Honour's reasons, I am not satisfied that she did not make a finding as to the scope of the appellant's authority to use ASSIST. Her Honour found that it was limited to purposes directly related to the appellant's specific duties. I will refer to this as the 'finding'.

Was it open to the magistrate to make the finding?

1. The appellant says there was no evidence adduced by the prosecution to prove that her authority was limited in this way. The respondent agrees. I accept this.
2. However, the appellant herself gave evidence to the effect that it was departmental policy that ASSIST should only be used to access information about people in the families with which the staff member was working.[27] I will refer to this as the appellant's 'policy evidence'.
3. The question is whether, in light of the appellant's policy evidence, it was open to the magistrate to make the finding.
4. Two matters can be noted.
5. First, it is clear that the magistrate did not make the finding on the basis of the appellant's evidence. It appears from the magistrate's reasons as a whole that the magistrate simply inferred, subconsciously or perhaps as a matter of common sense, that the appellant's authorisation to use ASSIST was limited to using it to carry out her specific duties.
6. The magistrate did not refer to the appellant's policy evidence, other than obliquely when referring to the appellant's admission that she had used ASSIST on one occasion because it was easier than following the policy to achieve the same end. Further, the magistrate clearly did not wholeheartedly accept the appellant's evidence.[28] The policy evidence is likely to have been reliable, as it was against the appellant's interest. However, as it was not relied upon by the magistrate and the magistrate did not make express findings as to the appellant's credibility and reliability, it is difficult to know what, if any, weight should be given to it.
7. Second, the appellant's evidence was about policy, not expressly about her authority to access ASSIST. While it may be expected that departmental policies would be binding on employees, there was no evidence of their specific terms and the extent to which they prescribed limits or were expressed in advisory or qualified terms. In addition, there was no evidence of what the appellant even meant in referring to policies.
8. Both parties submit it was not open to the magistrate to conclude that the appellant's authority to use ASSIST was limited to purposes directly related to her specific duties. Having regard to the burden and standard of proof, I have been persuaded of this. There was no evidence led by the prosecution as to this. The appellant's evidence, even if accepted, did not prove it beyond reasonable doubt.
9. I therefore accept the respondent's concession that the convictions relating to the use of ASSIST should be set aside.
10. The respondent concedes that it would be inappropriate to apply the proviso[29] and, therefore, acquittals should be entered on charges KA 4452/17 and KA 4453/17. Given that I am persuaded that the finding was not open to the magistrate, I agree. It was entirely within the power of the prosecution to prove the scope of the appellant's authority. It failed to do this and should not have an opportunity to remedy its failure.
11. Whether an acquittal should be entered on KA 4449/17, or whether the charge should simply be amended so as to not include the use of ASSIST, turns on the resolution of ground 3.

1. Ground 3 alleges that KA 4449/17 was duplex.
2. The principles in relation to duplicity are well settled and were not in dispute. For present purposes, it is sufficient to observe that a charge will be duplex if it alleges two or more offences, either on its face (patent duplicity) or on the facts adduced at trial (latent duplicity).[30]
3. In relation to KA 449/17, the prosecution alleged at trial that the charge related to three separate searches on 29 September 2017, two of which were not in accordance with the appellant's authorisation to use ASSIST and one which was by using ICMS without authorisation. The charge therefore suffered from latent duplicity.
4. The duplicity was not authorised by the Criminal Procedure Act 2004 (WA), which permits a charge to allege more than one offence in specific circumstances.[31]
5. The respondent submits that I should amend the charge so as to eliminate the duplicity, so that the offence refers only to the search alleged by the charge to have been made under ICMS. This was the search of LM on 29 September 2017. By this time, the appellant was employed by the DCPFS. The respondent points out that the appellant has not challenged the magistrate's finding that the appellant had no authorisation to use ICMS while she was employed by the DCPFS. It was also not in dispute that the appellant had used ICMS on 29 September 2017 to search LM.[32] Given this, there cannot be any uncertainty as to whether the magistrate found the appellant guilty of having carried out the search alleged by the charge to have been made under ICMS.
6. In City of Swan v Bayblue Holdings Pty Ltd,[33] the Court of Appeal, exercising powers under pt 2 of div 2 of the Criminal Appeals Act 2004,[34] granted leave to amend a duplex charge to which the appellant had pleaded guilty. It did so because 'the amended charge eliminated the latent duplicity, the respondent was not relevantly prejudiced by the amendment and counsel for the respondent did not oppose the amendment'.[35]
7. In this case, amending the charge so as to limit it to the search of ICMS would eliminate the latent duplicity. Further, the appellant would not relevantly be prejudiced by the amendment. In particular, the appellant was not prejudiced in the conduct of her defence by the latent duplicity. Nor did the appellant complain at the trial that the charge was duplex. Further, there is no doubt that the magistrate found the appellant guilty of having carried out the search alleged by the charge to have been made under ICMS. In addition, the appellant did not oppose the amendment.[36]
8. In these circumstances, I consider that it is appropriate to amend the charge so as to add 'by using the Integrated Courts Management System'.

Should the global penalty be set aside and the appellant re-sentenced?

1. The magistrate imposed a global penalty of $4,000 in relation to all eight charges. As a result of my conclusions, the appellant is guilty only of six. More significantly, she is guilty of improperly using only one restricted‑access computer system, rather than both ICMS and ASSIST. This is a material change and it is appropriate to set aside the global penalty and re‑sentence the appellant.

1. For the above reasons, I made orders allowing the appeal and re‑sentenced the appellant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Now part of the Department of Communities.

[2] Respondent's Outline of Submissions filed 19 March 2020 [11].

[3] Email from Mr Murray, counsel for the respondent, dated 21 April 2020.

[4] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362 and Vucemillo v Ambrose [2019] WASC 411, but is repeated here

[5] Criminal Appeals Act 2004 (WA), s 8(1).

[6] Criminal Appeals Act 2004 s 9(2).

[7] Criminal Appeals Act 2004 s 9(2).

[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[9] Criminal Appeals Act 2004.

[10] Criminal Appeals Act 2004 s 14(2).

[11] Ninyette v Holmes [2015] WASC 287 [65]; WS v Gardin [2015] WASC 97 [239] ‑ [241].

[12] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[16] ts 3, 21 June 2019, last full paragraph. In the context of the reasons surrounding this statement, it was clearly intended to reflect the prosecutions argument.

[20] Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502 [26].

[21] Giles v Douglas [2011] WASC 14.

[22] Director of Public Prosecutions v Murdoch [1993] VicRp 30; [1993] 1 VR 406.

[23] Murdoch (409 - 410) cited in Salter v Director of Public Prosecutions [2011] NSWCA 190; (2011) 81 NSWLR [21] ‑ [22].

[24] Barker v R [1983] HCA 18; (1983) 153 CLR 338.

[26] Murdoch (410); cited in Salter [22].

[27] ts 12 ‑ 14, 20 December 2018, extracted earlier.

[28] See for example, ts 13, 21 June 2019, where the magistrate described something the appellant had said in evidence as 'nonsensical'.

[29] Criminal Appeals Act 2004, s 14(2).

[30] See Michaels v Western Australia [2009] WASCA 174 [8]; Green v The State of Western Australia [No 2] [2014] WASCA 53; (2014) 240 A Crim R 73.

[31] A charge must allege one offence only unless cl 8 of sch 1 of the Criminal Procedure Act or another written law permits otherwise - see s 23, read with cl 2(4) of sch 1. Neither cl 8 nor another written law permitted the charge in this case to allege more than one offence.

[32] See ts 10, 20 December 2018. See also ts 37 in relation to the two ASSIST searches the same day.

[33] City of Swan v Bluebay Holdings Pty Ltd [2015] WASCA 227.

[34] As it was an appeal from a decision of a single judge of the Supreme Court - see s 18 of the Criminal Appeals Act. As for the court's powers, see in particular s 14(1)(c), s 14(1)(b) and s 14(4).

[35] City of Swan [54]. See also Wellington v Police [2009] SASC 294; (2009) 105 SASR 215.