MRN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 159 (30 October 2025)

1. In her summing up to the jury, the learned trial judge gave a 'nutshell' summary of the parties' cases.[3] What follows is derived from this summary.
2. It was common ground that on 7 April 2021, B presented to Perth Children's Hospital (PCH) in a severely malnourished state. She was, at that time, just short of her 17th birthday. For her age, she was grossly underweight, and her growth had been stunted. Her pubertal development was significantly delayed. She was at risk of severe illness, infection, bone fractures, cardiac arrest, refeeding syndrome, and death. Her malnourishment was caused by inadequate and insufficient food and nutrition.
3. The broad issue for the jury to determine in respect of count 3 (and count 2, for the appellant's husband) was not whether B was malnourished but, rather, how she came to be in that state.
4. The State's case was that the reason for her state was that the appellant and her husband, in the years leading up to B's admission to hospital, had failed to ensure that she received adequate nutrition. The State alleged that the appellant and her husband, together and individually, failed not only to provide her with adequate nutrition, but also to provide her with proper, sufficient and prompt medical care and treatment in relation to her malnourishment.
5. The State did not allege that the appellant and her husband had intentionally deprived their daughter of nutrition and proper medical care and attention. Rather, the State's case was that they were reckless about those things.
6. Although the appellant and her husband conducted separate defences for counts 2 and 3, there were some common themes. They both alleged that B was not necessarily malnourished for the entire period pleaded in the indictment. They said, in effect, that they saw no reason to be concerned, having regard to what they knew about their daughter's size when she was younger; her genetics; her behaviour, in terms of what she ate and did not eat; and her capacity to perform in high‑energy activities, such as ballet. Essentially, they did not think that anything was wrong. If anybody told them something was wrong with B, they did not think that the concerns made a lot of sense, or accorded with what they believed to be true. In essence, they said that they did not realise, 'until it was too late', that their daughter was malnourished. By this point, B was in hospital and under treatment.
7. In respect of count 5 (and count 4, for the appellant's husband), the State's case was that when B presented to PCH on 7 April 2021, she did so with severe social, emotional, and functional developmental delays. The State's case was that she looked, dressed, and behaved like a child far younger than her almost 17 years. She was found to have low adaptive function, particularly around self‑care skills. Essentially, the State's case was that B demonstrated a lack of understanding and appreciation of how to live in the world as compared to other children of her age.
8. In respect of both the allegations of malnourishment and lack of care, and of B's lack of understanding of, and appreciation for, the outside world, the State's case was that those things were obvious to the appellant and her husband.
9. The defence case put by the appellant and her husband in respect of counts 4 and 5 was that B was not emotionally, socially, and functionally underdeveloped for her age. They alleged that the State failed to provide or adduce sufficient evidence to show that B was, in fact, underdeveloped in the ways alleged by the State. Further, even if B was underdeveloped, neither the appellant nor her husband were aware of this. They denied that they were consciously trying to keep B as 'a little child'.
10. Her Honour emphasised, in her nutshell summary of the respective cases at trial, that the State's case was that neither the appellant nor her husband set out to cause B harm. The State's case was not that they intentionally caused her any kind of harm or intentionally ignored the harm, or intentionally and wilfully acted in the way that they did. The State's case was that they were reckless as to the risk of harm that was obvious and apparent to them.

1. The appellant submits that the exceptional reason why she should be granted bail in this case is the strength of ground 1 of the appeal. Ground 1 is expressed as follows:
   1. The trial judge erred by refusing the appellant's application for an adjournment and ruling the trial proceed in her absence pursuant to s 88(4) of the Criminal Procedure Act 2004 (WA).
2. In essence, by this ground, the appellant submits that the learned trial judge erred in exercising the discretion in s 88(4) of the Criminal Procedure Act 2004 (WA) to proceed in the appellant's absence on 31 October and 1 November 2024. The appellant claims that her trial fundamentally miscarried when the judge refused the appellant's application to temporarily adjourn the trial due to the appellant's illness, instead ruling that the trial could proceed in her physical absence, but while she was in a remote room and able to watch the proceedings via video‑link.
3. The appellant submits that ground 1 is more than reasonably arguable. The appellant submits that the ground is so strongly arguable that she would suffer an injustice by being kept in custody prior to the hearing of her appeal.
4. The respondent opposes the application. The respondent submits that ground 1 does not have sufficient merit to constitute an exceptional reason why the appellant should be released on bail pending her appeal.

Section 88 of the Criminal Procedure Act

1. Section 88 of the Criminal Procedure Act, which deals with an accused's presence at trial in a superior court, is, relevantly, as follows:

(1) In this section, unless the contrary intention appears -

proceedings includes proceedings under section 98, at trial, and under the Bail Act 1982, the Evidence Act 1906, the Sentencing Act 1995 or the Young Offenders Act 1994.

(2) This section applies whether an accused is being tried alone or with others.

(3) Proceedings that relate to an accused must take place in his or her presence unless section 140[4] or the Sentencing Act 1995 provides otherwise.

(4) The court may order proceedings that relate to an accused to proceed in the accused's absence if it is satisfied -

(a) that the accused's interests will not be prejudiced by his or her absence; and

(b) that to do so will not be contrary to the interests of justice.

(5) This section does not prevent a court from allowing an accused to be present before the court by means of a video link or audio link or from taking evidence from an accused by either such means.

1. By the commencement of the second week of the trial, it was clear that the trial would proceed beyond its scheduled conclusion. The State case had not concluded and it was apparent that it would not conclude for some time. On the morning of Tuesday, 29 October 2024, defence counsel for the appellant advised the learned trial judge that the appellant was 'feeling rather unwell and she may need to take a short‑notice comfort break'.[5] The trial proceeded but, at about 12.00 pm, defence counsel made an application to adjourn the proceedings for the day due to the appellant's illness. Her Honour granted the adjournment, acknowledging 'there is nothing we can do about it. The [appellant] is sick'.[6] Her Honour adjourned the trial to 9.30 am on Wednesday, 30 October 2024.
2. On 30 October 2024, the appellant failed to appear.[7] Defence counsel for the appellant informed the learned trial judge that the appellant was seeing her doctor that afternoon, and that as soon as he was provided with a medical certificate, he would forward it to the court. Her Honour said that, unless the court received a medical certificate by 5.30 pm, she would issue an arrest warrant for the appellant. The trial was then adjourned to 9.30 am on Thursday, 31 October 2024.
3. Sometime in the late afternoon or early evening of 30 October 2024, before 5.30 pm, the appellant's doctor provided two medical certificates, which were sent to the learned trial judge.
4. At the commencement of proceedings on Thursday, 31 October 2024, the appellant's trial counsel read into the transcript the contents of one or other, or both, of the medical certificates. According to the appellant's doctor:[8]

(a) the appellant presented to the doctor in an acutely unwell state, suffering from gastrointestinal illness, with vomiting, diarrhoea and high fever;

(b) the doctor recommended symptomatic relief and rest, and certified that the appellant would be unfit to attend court proceedings from 30 October to 1 November 2024, inclusive;

(c) the appellant would need to rest and rehydrate over the next 48 hours to expedite her recovery, and she would not recover 'for a few days';

(d) the appellant was likely to remain symptomatic, with fever, possible confusion, concentration and focus issues, weakness and fatigue, and recurrent vomiting; and

(e) the doctor did not believe that the appellant would be able to understand proceedings to the best of her ability.

1. The doctor diagnosed food poisoning with a differential diagnosis of infective gastroenteritis, which could be contagious.
2. Defence counsel expressed 'grave concerns' as to the appellant's ability to adequately follow proceedings. He also raised the possibility that she might have a contagious illness. He submitted that the appellant was unwell and would not be able to sit through proceedings that day or 'possibly tomorrow'. He applied to adjourn the trial until at least the following day, leaving open the possibility of a further adjournment for that day also.
3. After hearing from defence counsel, the learned trial judge confirmed with the prosecutor that she intended to adduce the evidence‑in‑chief of a witness, Denise McNab. Ms McNab is a social worker who works at the Child Protection Unit at PCH. Through Ms McNab, the State wished to tender records kept by PCH in relation to B. Ms McNab had some personal involvement with B, and her evidence‑in‑chief comprised not only the records of PCH, but also some of her own observations of B and the appellant. The State had disclosed to the defence, before trial, all of the hospital documents. The State had also provided the defence with a witness statement by Ms McNab.
4. The learned trial judge refused the application of the appellant's counsel to adjourn the proceedings. The learned trial judge gave oral reasons for her decision.[9]
5. In her oral reasons for decision, the learned trial judge referred to 'an overwhelming public interest that this trial is to be able to go through to completion'. Her Honour expressed concern that the trial had overrun, and that she had been told that the trial would 'go way over time, maybe as long as a couple of weeks over time'.
6. The learned trial judge acknowledged the fundamental importance that an accused receives a fair trial, and that they be able to follow proceedings.
7. Her Honour said that it was necessary for her to evaluate and consider 'the particular stage at which the trial [was] at'.
8. Her Honour noted that the State intended to adduce evidence from a witness (Ms McNab) whose evidence had been the subject of disclosure and was 'well known to the [appellant]', and that she assumed that the appellant had already given her lawyers instructions concerning it. Her Honour said that, in these circumstances, the appellant would need to provide 'minimal input'. The situation was different to that which would have confronted the appellant had she been required to give instructions concerning other witnesses to be called by the State, notably Tania Shillington or Michelle Doepel, who were B's ballet teachers and who had observed her health and demeanour over time. In that case, her Honour said the appellant would have been 'in no fit state to be able to instruct her lawyer'. However, in the circumstances, it was not necessary to adjourn the trial as requested by the appellant's trial counsel.
9. Instead, her Honour ruled that the trial could proceed with the examination‑in‑chief of Ms McNab (but not the cross‑examination), with the appellant not physically present in the courtroom, but instead present in a remote room. As to this arrangement, her Honour said:[10]

The [appellant] is entitled to be present at the trial but it does not mean she has to be seen at all times by the jury. I have made arrangements with the court staff to have a room available for the [appellant]. Custody are able to accommodate this. This room will be a room where the [appellant] is able to watch all proceedings at all times. She will have a video up, and she will be able to hear and watch the proceedings. No camera will be on her. There will be no sound for her.

And if the [appellant] needs to leave while I'm making this ruling, she can do so, if you'd rather vomit just outside the door.

That way the [appellant], to the extent she is ill, will be able to manage the matter. If there is any evidence given by the witness today that is unexpected by [defence counsel] and for which he does not already have instructions, then of course, [defence counsel] can raise that. [Defence counsel] will be free to have breaks as often as he needs to take instructions, but to ensure as much fairness as possible to the defence, I intend to allow the additional measures.

Firstly, the [appellant] will not be required to remain in custody today. In other words, when there is a luncheon break, as long as she is in the company of one or both of her counsel, she will be free to leave the room and go to any other place that she needs to be. She may choose to stay in that room.

Secondly, I will permit both lawyers to have their phones and computers available to contact her at all times. Counsel can arrange to have a computer with her if they wish to, or alternatively, she will be allowed to have her mobile phone on and she can instruct her lawyers throughout the course of the day as needed.

Furthermore, if she simply wants to tell her lawyers anything in person, she will simply need to text or ask the custody officer to get a message through to the court and I will immediately adjourn proceedings so that one or both of her lawyers may go and meet with her at any time. I will provide any other measures that are needed throughout the course of today to ensure fairness.

I wish to make it abundantly clear the reason for this ruling. I have [an] obligation to balance all interests, as I have said. I do not wish to in any way let the desire for expediency of this trial overwhelm the need for the [appellant] to have a fair trial.

It seems to me because of the unique and fortunate timing of this particular witness that we can continue in this way without any unfairness, in my view, being caused to the [appellant]. The [appellant] can literally position herself in whatever position she is best to be in as she listens to the evidence, as I say, all of which should be completely familiar to her and well known to her.

So that is my ruling. What I will also say is this. We'll get through [the State's] case today hopefully with this witness.

1. After further discussions between the learned trial judge and the appellant's trial counsel, the prosecutor informed the trial judge that the State had 'grave concerns about continuing to proceed in terms of ensuring that [the appellant] has a fair trial'.[11] The prosecutor told the trial judge that she did not oppose the application to adjourn 'because at this point the fairness of the trial for [the appellant and her husband] really has to be paramount'.[12]
2. The learned trial judge said that she completely understood the prosecutor's position. Her Honour acknowledged that proceedings may reach a point where they need to be adjourned.[13]
3. Her Honour said that the ruling she had given was only for the purposes of the application made by the appellant's trial counsel that morning, and that, if the appellant's position worsened, a further application could be made and would be considered 'on its merits'.[14]
4. At about 10.07 am on 31 October 2024, the jury was brought into the courtroom and told by her Honour that the appellant was 'genuinely unwell', and that she should not be prejudiced because she was not present in the courtroom.
5. Her Honour explained to the jury that:[15]

[W]hat I have ordered is this, [the appellant] is sitting in a different room that she has full video access to the trial, so she can hear it and she can monitor proceedings at all times. You will notice that [co‑counsel], who assists [defence counsel], is not here. That is because she is over near [the appellant], less she has any matters she wants to raise with her lawyers.

I've already indicated to [defence counsel] he can call for any time he needs a break, if he wants to go and speak to her.

1. In the presence of the jury, the learned trial judge then confirmed with the prosecutor that she intended to call Ms McNab, and that her evidence 'is largely related to the content of various notes and documents coming from the time at which [B] was in hospital',[16] and that the materials to which Ms McNab would refer had already been provided to the appellant and her lawyers.[17]
2. Her Honour then confirmed with defence counsel that if he considered that he could not fairly conduct the trial on the appellant's behalf, he could raise the matter with her.[18]
3. At approximately 10.15 am on 31 October 2024, Ms McNab was called, and affirmed.[19]
4. At about 10.49 am on 31 October 2024, defence counsel for the appellant sought, and was given, a short adjournment to see the appellant.[20]
5. At about 11.02 am on 31 October 2024, in the absence of the jury, defence counsel informed the learned trial judge that the appellant was unwell and had not been able to follow what was happening in the courtroom, and that the appellant was 'kind of half dozing off'.[21]
6. Defence counsel applied to adjourn the trial on the basis that the appellant was unable to follow the evidence, and that he and his co‑counsel were not able to get 'any meaningful instructions from [the appellant]'.[22] Defence counsel sought an adjournment until midday on 1 November 2024.
7. Her Honour granted the application to adjourn. Her Honour said that the appellant was not fit 'today'.[23] She adjourned the trial until 11.00 am on 1 November 2024. She ordered the appellant to answer her bail at 10.30 am.[24]
8. The trial resumed in the absence of the jury at 10.32 am on 1 November 2024. Defence counsel requested that the appellant return to the remote room. At this point, the trial judge told defence counsel that another remote room, closer to the courtroom, would be used.[25]
9. At about 10.59 am on 1 November 2024, Ms McNab was recalled to resume her examination‑in‑chief.
10. At about 11.45 am on 1 November 2024, the learned trial judge adjourned the proceedings to allow defence counsel 'to check in with his client'.[26] After the jury retired, her Honour commented to defence counsel that the appellant appeared 'much better than yesterday', but she was 'still clearly not well'. Her Honour then referred to s 26 of the Criminal Law (Mental Impairment) Act 2023 (WA) concerning the circumstances in which an accused person may be unfit to stand trial. Her Honour said that the appellant was fit to stand trial because of six circumstances, being as follows:[27]

It seems to me that ..., in circumstances where the following factors are present: one, the witness is giving evidence only in chief; two, the evidence has been previously disclosed; three, the [appellant] is represented by two counsel who are experienced, one who I consider, and you'll be pleased to know this, to be highly experienced; four, the nature of the matters that will occur today therefore are largely matters of objection and therefore legal matters, which you'll be better equipped to do than the [appellant]; five, the fact that you will have the weekend to have the [appellant], when she's feeling better, to be able to go through the transcript and therefore provide you with any further instructions; and six, able to therefore properly instruct you before you're expected to cross‑examine.

I consider, at the moment, that she is not therefore unfit to stand trial, even if she is less than her full health. So, even if, as I understand it from the information given to me, she is sleepy, she is still unwell, she may not be taking notes at the same level as she would normally do. It seems to me that because it's a Friday, it is very different than if I was making this ruling on Thursday. So that's my present view[.]

1. At about 12.07 pm on 1 November 2024, after seeing the appellant, defence counsel applied to adjourn the trial for the day,[28] on the basis that the appellant had apparently been asleep for a large part of the day, had vomited and that, at one point, she had to leave the remote room to vomit.[29] Defence counsel said that the appellant's eyes were closed and that she was not following the evidence, and had been reported to look dazed and have little idea of what was going on.[30]
2. The learned trial judge dismissed the application. The learned trial judge observed that the appellant's physical state appeared to be 'considerably better' than it had been the day before.[31]
3. Her Honour concluded:[32]

In all of those circumstances I consider that the accused is able to fairly proceed to trial today notwithstanding her medical state. It is unfortunate that she is unwell but I do not consider that the unwellness is of such a state as to deprive her of a fair trial.

1. The learned trial judge said that she would continue to monitor the appellant, and she expected that she would be updated if there was any further change.[33]
2. At approximately 12.14 pm on 1 November 2024, the jury returned and Ms McNab resumed her evidence‑in‑chief. At some stages in her evidence on 1 November 2024, Ms McNab referred to some of her own notes and observations of 8 April 2021, and of the appellant's demeanour in a meeting on that day.
3. At approximately 4.20 pm on 1 November 2024, Ms McNab, who was still in examination‑in‑chief, completed her evidence for the day.
4. After the jury retired, her Honour observed that the appellant had 'picked up enormously', and that she had been 'writing things, awake and going well'.[34]
5. The learned trial judge said that she observed 'all afternoon, [the appellant] seems to have been actively participating'.[35]
6. On 4 November 2024, after the weekend, the appellant presented at the District Court, apparently recovered from her illness. The trial proceeded with the appellant in the dock, and no further application to adjourn was made.

Legal principles applicable to an application for bail pending appeal

1. The legal principles relevant to an application for bail pending appeal are well settled and do not require detailed repetition. For present purposes, it is sufficient to say this much.
2. Clause 4A of pt C of sch 1 to the Bail Act provides that an appellant who is in custody awaiting the disposal of appeal proceedings shall only be granted bail if the court is satisfied that exceptional reasons exist, and it is proper to do having regard to the provisions of cl 1 and cl 3 of pt C of sch 1.
3. Where it is said that the exceptional reasons for a grant of bail are that a ground or grounds of appeal are strongly arguable, it must be borne in mind that, at this stage, the opportunity to conduct a comprehensive consideration of the materials is relatively limited, and any assessment of the grounds can only be preliminary. Thus, where it is suggested that a ground or grounds have strong prospects of success, that will generally need to be readily apparent without the benefit of detailed argument or analysis.[36]
4. If the appellant establishes that exceptional reasons exist, the State does not suggest that a grant of bail would be inappropriate, having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 to the Bail Act, although the precise terms of any grant of bail are not agreed.

1. The appellant's primary submission is that she ceased to have a fair trial as soon as the learned trial judge ruled that the trial should proceed in her physical absence from the courtroom on 31 October and 1 November 2024, because her exclusion, without her consent, was in breach of 'the statutorily enshrined and common law right [for an accused] to be physically present throughout the trial'.[37]
2. The appellant further submits that the proceedings were effectively a nullity because the appellant was in no fit state to instruct her lawyers on 31 October 2024, and, for at least some of the time, on 1 November 2024.
3. The appellant contends that, having regard to the appellant's unfitness, the learned trial judge erred in not acceding to her counsel's applications for an adjournment on both 31 October and 1 November 2024.

1. The respondent submits that, having regard to s 88 of the Criminal Procedure Act, the stipulation in subsection (3) that the trial (being a 'proceeding' within the definition in subsection (1)) must take place in the accused's presence, was, having regard to the procedure adopted by the learned trial judge on 31 October and 1 November 2024, complied with. The State submits that the procedures adopted by the learned trial judge did not prejudice the appellant's interests, nor were they contrary to the interests of justice, and that her Honour was permitted to take the steps she did by subsection (5), which allows an accused to be present before the court by means of a video‑link.
2. The respondent also submits that there is insufficient evidence to demonstrate that the appellant was, in fact, unable to follow the proceedings, or that she was so unwell that the proceedings should have been adjourned.
3. The respondent further submits that, even if the appellant was, for some period on 31 October and 1 November 2024, asleep or unable to follow the proceedings, the appellant was at all times able to observe and hear the proceedings. There is nothing before this court that is capable of showing that the appellant was, in fact, prejudiced in the conduct of her trial or how any short periods of inattention could have reasonably affected her outcome.

1. It became evident in the hearing before me that ground 1 as argued by the appellant's counsel raises issues which were not squarely raised in the ground, or in the written submissions in support of the ground, or which, if raised, were not analysed in any real detail.
2. For example, s 88 of the Criminal Procedure Act stipulates that the trial of an accused in a superior court must take place in that person's presence. Even if (favourably to the appellant) I assume, for present purposes, that 'presence' in subsection (3) means physical presence in the courtroom, such a right cannot be absolute, having regard to the text of subsections (4) and (5).
3. The appellant's submissions assume that the learned trial judge was statutorily prohibited from allowing the proceedings on 31 October and 1 November 2024 to be conducted with the appellant not physically in the courtroom but in a remote room, which was connected to the courtroom by way of video‑link, without the appellant's consent.
4. Whether this assumption is legally correct depends upon a consideration of the proper construction of subsections (3), (4) and (5) of s 88. The questions raised have not been previously examined by this court, and, as things presently stand, I do not have the benefit of considered submissions on the point. While I acknowledge, without criticism of counsel for the appellant, that he made oral submissions before me on the construction of s 88, they were, with respect, 'off the cuff' and not comprehensive.
5. Ground 1 potentially raises other issues of importance. Assuming the learned trial judge had the power to do what she did on 31 October and 1 November 2024, did she err in the exercise of the power, having regard to all of the circumstances of the case, or should she have temporarily adjourned the trial as sought by defence counsel? In the circumstances of the case, did the appellant's physical absence from the courtroom, in isolation or together with anything done by the trial judge, including her Honour's refusal to temporarily adjourn, amount to a material irregularity in the trial?
6. Insofar as the appellant alleges that, at times on 31 October and 1 November 2024, she was unable to properly follow proceedings or give instructions to her counsel, or was temporarily absent from the trial because she was out of the remote room to be sick, what evidence is there to establish any of these things? What regard should be given to the learned trial judge's observations on these issues?
7. I have referred to the legal principles relevant to this application. Given the issues raised by ground 1 that I have referred to, and the nature of the submissions on those issues, I am unable to conclude, at this point, that the ground has such strong prospects of success as to amount to exceptional reasons for a grant of bail pending appeal.
8. The fact that I have reached this conclusion at a relatively early stage in the appeal should not be understood to mean that the ground is without prospects of success. It is true, as the appellant argues, that it is unusual, to say the least, for a criminal trial in a superior court to proceed in the physical absence of the accused. Where this occurs without misconduct by the accused, it requires good reason. After full argument before a coram of three judges, it may be that the ground is made out, but, at the risk of repeating myself, on the basis of the arguments and analysis so far put to the court, I am unable to conclude that ground 1 has sufficient merit to justify a grant of bail pending appeal.
9. For these reasons, I ordered that the application for bail pending appeal against conviction filed 24 September 2025 be dismissed.

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

[1] The appellant's husband was also charged with one count of uttering a forged record with intent to defraud, contrary to s 473(1)(b) of the Criminal Code (WA) (count 1). He pleaded guilty to that charge on the first day of trial.

[4] Section 140 of the Criminal Procedure Act concerns circumstances which are not applicable to this case.

[36] Snook v The State of Western Australia [2024] WASCA 56 [5].