PORTER -v- KELLY [2024] WASC 282 (7 August 2024)

(1) There was 'no evidence' that the facts specified in the evidentiary certificate were facts that appeared in, or were derived from, the vehicle licence register maintained under s 14 of the Vehicles Act.

(2) The respondent therefore had no case to answer.

1. The appellant now seeks leave to appeal the magistrate's decision.
2. Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.
3. The issues I must decide are whether the magistrate erred in law in making the findings summarised in paragraph 4 above, the first issue being the subject of Ground 2 and the second the subject of Ground 1.
4. For the reasons which follow, I consider that leave should be granted with respect to both grounds and the appeal upheld.

1. By s 5(1) of the Vehicles Act a vehicle owner may apply to renew a vehicle licence by submitting an application in an approved form, and by paying the amount of any fee or charge that would be required under s 7 of the Vehicles Act, the duty, and any penalty tax payable under the Duties Act 2008 (WA), on the transfer of the licence.
2. Relevantly, an offence under s 10(6) of the Vehicles Act arises in circumstances where:

(1) The licensed owner of a vehicle, within seven days after ceasing to be its owner, gives written notice to the CEO of the name and address of the new owner.[1]

(2) The CEO, having received such a notice and being satisfied that the licence may be transferred under s 5(3) and that no application has been made under s 5(1), issues to the new owner a notice requiring that an application be made under s 5 the transfer of the licence.[2]

(3) The new owner, after receiving such a notice, fails to make an application for the transfer of the licence for the vehicle within 28 days after the notice is issued (or within any longer period that the CEO allows) and no exception applies.[3]

1. The evidentiary certificate tendered by the prosecution at trial read as follows:

Certificate Evidence

I, [REDACTED], Release of Information Coordinator, being a person delegated by the Chief Executive Officer (CEO) Department of Transport to issue certificate evidence under Section 110 Road Traffic (Administration) Act 2008, certify that the vehicle register maintained in accordance with Section 14 of the Road Traffic (Vehicles) Act 2012 has recorded that;

1. It is recorded that on 05 August 2022 a Notification of Change of Ownership - Vehicle Licence Transfer form (MR9) 'transfer form' was received by [REDACTED] Driver and Vehicle Services (DVS) office. Attachment 1
2. The vehicle bearing plate number [REDACTED] is recorded as a [REDACTED] identified by the vehicle identification number (VIN) [REDACTED], engine number [REDACTED].
3. It is recorded that the transfer form contained advice of the said sale of the aforementioned vehicle by [REDACTED] to KELLY Dawn Michelle on 30 July 2022.
4. It is recorded that the vehicle register was updated to record the transfer of the vehicle licence to KELLY on 05 August 2022 at [REDACTED] DVS office.
5. It is recorded that a notice under s10(3)(b) of the Road Traffic (Vehicles) Act 2012, titled 'Application to Transfer Vehicle Licence' requiring an application to be made for transfer of the vehicle licence, was posted to KELLY Dawn Michelle at [REDACTED] on 11 August 2022. Attachment 2.
6. It is recorded that an application for the transfer of the vehicle licence will be taken to have been made on payment of the amount set out in the notice. The due date for payment of the amount set out in the notice was recorded as 08 September 2022.
7. There is no record that payment of the amount set out in the notice was made in full by the due date.

This certificate evidence is issued pursuant to Section 110(1) of the Road Traffic (Administration) Act 2008.

A fact specified in this certificate appears or is derived from the vehicle register or another record maintained by the CEO.

[Signed]

OFFICER DELEGATED BY THE CHIEF EXECUTIVE OFFICER

Section 110 Road Traffic (Administration) Act 2008

18 September 2023

1. As will have been observed, the chapeau of the evidentiary certificate refers both to s 110 of the Administration Act and to s 14 of the Vehicles Act.
2. Sections 110(1) and 110(2) of the Administration Act relevantly read:
   1. Certificate evidence

(1) For the purposes of a prosecution for an offence under a road law ... the CEO or a person authorised by the CEO may issue a certificate stating that a fact specified in the certificate appears in or is derived from the driver's licence register or another record kept by the CEO or the Commissioner for Main Roads under a road law.

(2) A certificate purporting to be issued under subsection (1) ... is evidence of any fact stated in the certificate.

(emphasis added)

1. The Vehicles Act is a 'road law' for the purposes of s 110 of the Administration Act.[4]
2. Section 14 of the Vehicles Act states that the CEO[5] 'is to keep a register of vehicle licences and enter in it particulars of each vehicle licence that is granted'.
3. I digress to observe that although the evidentiary certificate concludes with the words '[a] fact specified in this certificate appears or is derived from the vehicle register or another record maintained by the CEO', in my view these words appear merely to replicate the substance of s 110(1) itself and do not detract from what is set out in the certificate's chapeau.

Was there 'no evidence' that facts in evidentiary certificate appeared in or were derived from vehicle licence register? (Ground 2)

1. In her reasons for decision, the learned magistrate concluded as follows with respect to the evidentiary certificate:

The opening preamble to the certificate specifies that the delegate certifies the register maintained in accordance with section 14 of the [Vehicles] Act has recorded the matter specified in the seven paragraphs that follow. I accept on the material before me that the author of the certificate is delegated to issue the certificate. However, insofar as she certified the matters in the following seven paragraphs, are matters recorded in the vehicle licence register, I note that there is no evidence before me of what the vehicle licence register actually records.[6] (emphasis added)

(1) Found that the author of the evidentiary certificate was delegated to issue the certificate.[7]

(2) Determined, with respect to paragraph 1 of the certificate, that:

There is no evidence before me that the fact a notification of a change of ownership form was received by the department is a matter that is contained within the vehicle licence register. As a matter of logical inference, it is only upon the actual transfer of the vehicle licence that a register would be updated to reflect the change in holder of the vehicle licence. Until such time as an application to transfer has been submitted, accepted and processed, as a matter of logical inference, there would be no change made to the vehicle licence register or the particulars of such a licence. (emphasis added)

...

[Section 110(1) of the Administration Act] ... is confined to matters that appear in or are derived from the vehicle licence register, not other business records maintained by the department or the CEO. In my view, the matters contained in this paragraph are not matters that can be validly the subject of evidence by way of a section 110 certificate. There needs to be an explanation of the processes followed. That can only be given by a witness who could then produce the relevant forms from the records of the department.

...

... this paragraph of the certificate is invalid and inadmissible and cannot be relied upon by the prosecution to prove its case.[8]

(3) Arrived at substantially the same conclusions with respect to paragraphs 3, 4, 6, and 7 of the certificate based on a similar process of reasoning.[9]

(4) Accepted, as evidence, only the contents of paragraphs 2 and 4 of the evidentiary certificate, on the basis that the facts stated in those paragraphs 'would' be contained in the vehicle licence register.[10]

1. Her Honour made the above findings after reaching conclusions to the following effect:[11]

(1) Section 110(1) of the Administration Act permits production of a certificate 'stating that a fact specified in the certificate appears in or is derived from the drivers licence register or another record kept by the CEO or the Commissioner ... under a road law'.

(2) The meaning of 'records', for the purposes of the Administration Act, is broad and defined in s 4 to mean 'any documents, documentation or records whether in paper, electronic or other form'.

(3) However, for the purposes of s 110(1) of the Administration Act, 'records' refers only to those records kept under a road law and does not extend to any other 'business record' kept by the CEO or the Commissioner of Main Roads (Commissioner).

(4) The purpose of the subsections in s 110 is to facilitate the tendering of evidence at a criminal trial as to matters contained within registers and other records kept by the CEO under a road law, and it is against this purpose that the confinement of the words 'records' to 'records kept under a road law' is to be understood.

(5) Section 109 of the Administration Act fortifies a view that s 110(1) is limited in its operation in that:

(a) an averment in a prosecution notice as to any of the matters listed in s 109(1) is taken to be proved in the absence of proof to the contrary;

(b) the broader matters of fact specified in s 109(1):

(i) 'would be' derived from various records maintained by government agencies, including the Department of Transport (Department);

(ii) would generally be uncontroversial or not subject to any significant challenge; and

(iii) 'are subject to a rebuttable presumption, unlike the evidentiary certificates in s 110 which are taken as proven'. (emphasis added)

(6) The obligation which arises under s 14 of the Vehicles Act is (only) an obligation to maintain a record of vehicle licences issued and 'the particulars' of those licences.

(7) In meeting this obligation, 'other records' relating to vehicle licences would also be maintained including correspondence relating to vehicles and notices issued in relation to vehicle licences.

(8) Such other records 'would' also include forms such as the form that was sent to notify of the change in ownership.[12]

(9) Whilst such 'other records' may well be 'business records' for the purposes of the Evidence Act 1906 (WA), they are not:

(a) part of the vehicle licence register for the purposes of s 14 of the Vehicles Act; and

(b) records to which s 110(1) of the Administration Act applies.

(10) Unlike the circumstances in Barrett v City of Cockburn,[13] here the prosecution sought to use the evidentiary certificate to put facts before the court which were 'not immediately apparent' to be matters appearing in (or derived from) the vehicle licence register, and to do so without calling a witness.

1. According to the appellant, the magistrate's finding, that there was 'no evidence' that facts in the evidentiary certificate appeared in or were derived from the vehicle licence register, was contrary to s 110(2) of the Administration Act.
2. This is because s 110(2) expressly provides that a certificate purporting to be issued under s 110(1) is evidence of any fact stated in the certificate.
3. According to the appellant:

(1) Her Honour's approach, if correct, would effectively require a prosecutor seeking to rely on such a certificate to produce additional evidence that the facts specified in that certificate had, in fact, appeared in the driver's licence register or another record kept by the CEO or the Commissioner under a road law.

(2) Such an approach would be inconsistent with a plain reading of s 110 and the purpose of the provision.

(3) The evident purpose of the provision is to facilitate the proof of facts relevant to an offence through tendering a certificate at trial; in other words, to provide evidence of the facts contained in the certificate without calling a witness.

(4) It would be contrary to this purpose if the prosecution were then required to call a witness to verify the accuracy of the certificate's contents.

(5) The relevant question was whether the evidentiary certificate complied with the requirements of s 110(1) and was therefore admissible.[14]

1. All that was necessary was to ask if the evidentiary certificate:

(1) Was issued by the CEO or a person authorised by the CEO under s 110(1).

(2) Stated that the facts specified in the certificate appeared in (or were derived from) a record kept by the CEO or the Commissioner under a road law.

1. According to the appellant, the evidentiary certificate did both.
2. The respondent raised a number of arguments.
3. Relevant to Ground 2, I understood the respondent's arguments to amount to this:

(1) Without a witness to cross-examine, a certificate of evidence was merely an 'averment of fact' and inadmissible hearsay.

(2) Certificates of evidence 'support evidence in chief'. They cannot be relied upon 'solely' as evidence to convict an accused who challenges proceedings based on an infringement notice.

1. In my view, the fate of Ground 2 turns largely on whether it is open to a trier of fact to treat information recorded in a certificate purportedly issued pursuant to s 110(1) as 'inadmissible',[15] 'not admissible',[16] or not 'validly [capable of being] adduced',[17] so as to exclude it from consideration as admissible evidence for the purposes of the prosecution case.
2. In my view, the answer to this question is 'no'. I say this for the following reasons.
3. First, s 110(2) expressly states that a certificate purporting to be issued under s 110(1) ... is evidence of any fact stated in the certificate.
4. This alone militates against a construction that there is a discretion to exclude, on admissibility grounds, facts which are stated in such a document.
5. Secondly, and in any event, such a construction would seem contrary to the approach adopted by this court in the context of the provision's immediate (and almost identically worded) statutory antecedent.[18]
6. The approach is consistent with the evident purpose of s 110(1) and s 110(2); namely, to facilitate proof of facts relevant to an alleged offence by tendering, at trial, a certificate purportedly issued under the hand of either the CEO or a person authorised by the CEO without the need for a witness to be called.[19]
7. In reaching the above conclusions I have not overlooked the learned magistrate's careful analysis of the statutory context in which s 110 appears; including s 109(1).
8. However, I respectfully disagree with some of her Honour's observations in this regard.
9. In particular, I do not agree that the 'broader matters' in s 109(1) 'are subject to a rebuttable presumption, unlike the evidentiary certificates in s 110 which are taken as proven'.[20] (emphasis added).
10. Within div 2 there are several provisions designed to facilitate proof of certain matters. The provisions are not uniformly formulated.
11. For example:

(1) s 109(1) and s 109(3) speak, respectively, of matters being 'taken to be proved in the absence of proof to the contrary' and of proof not being required '[i]n the absence of evidence to the contrary';

(2) s 109(2) speaks of a presumption which is 'rebuttable by evidence to the contrary';

(3) s 117A(1)(a) and s 117B(1)(a) speak of evidence needing to be accepted 'unless there is evidence to the contrary';

(4) s 117A(7) speak of matters being presumed 'in the absence of evidence to the contrary';

(5) s 111(1), s 111(3), s 112(2), s 115, s 117, s 117A(1)(b), s 117A(3), s 117B, s 117G(1)(b), s 117G(5) and s 117H speak of evidence being 'admissible' and 'prima facie evidence', or simply as 'prima facie evidence', of matters; and

(6) s 110(2), s 110(4) and s 110(5) simply speak of facts or matters stated in a certificate being 'evidence of' those facts or matters.[21]

1. In my view the text, context and evident purpose of s 110(2) do not sustain a construction that the facts stated in an evidentiary certificate issued under s 110(1) are to be treated as conclusive evidence.[22]
2. Instead, the combined effect of s 110(1) and s 110(2), on their proper construction, is simply to treat facts stated in the certificate as admissible evidence of those facts.
3. Nothing would therefore preclude an accused person from adducing (or pointing to) 'contrary' evidence in circumstances where a combination of facts stated in an evidentiary certificate alone might otherwise be legitimately susceptible to a finding of proof beyond reasonable doubt.[23]
4. Nor do I consider it would be open to exclude, on admissibility grounds, facts stated in a s 110(1) certificate based on what other statutory provisions might arguably suggest could be recorded in a particular type of record kept under a road law.
5. In short, if a document purporting to be such a certificate says a fact is recorded in (or derived from) a register or other record maintained under a road law, then I consider that fact to be admissible, without more, by force of s 110(2).
6. For the above reasons, I do not consider it was open to the learned magistrate to find there was 'no evidence' that the facts stated in paragraphs 1, 3, 5, 6 and 7 of the evidentiary certificate appeared in (or were derived from) the vehicle licence register.
7. I would therefore grant leave with respect to Ground 2.

Did the respondent have a case to answer? (Ground 1)

1. In determining whether an accused has a case to answer, the trial judge is required to ask whether the evidence of the prosecution, taken at its highest, is capable of establishing the guilt beyond reasonable doubt.[24]
2. Where the case depends upon inferences, the question is whether on the assumption that:

(1) all evidence of primary fact, considered at its strongest from the point of view of the prosecution case, is accurate; and

(2) all inferences most favourable to the prosecution which are reasonably open are drawn, the evidence is capable of producing, in the mind of a reasonable person, satisfaction beyond a reasonable doubt of the guilt of the accused.[25]

1. According to the appellant, the learned magistrate erred in finding that the respondent had no case to answer in relation to the charge in circumstances where:

(1) Her Honour had admissible evidence before her in the form of the evidentiary certificate.

(2) The certificate was capable of establishing the elements of the offence beyond reasonable doubt and the respondent therefore had a case to answer.

1. With respect to Ground 1, I understood the respondent's arguments to be to the following effect:

(1) Without a witness to cross-examine, the prosecution could not prove the matters recorded in the evidentiary certificate beyond reasonable doubt as to do so would be to permit inadmissible hearsay.

(2) The prosecution could not prove that the respondent failed to apply for transfer of a vehicle licence within 28 days after being issued with a notice under s 10(3)(b) of the Vehicles Act.

1. Relevant to (2), the respondent says that an Australian money order was posted to the Department on 1 August 2022, totalling $310. She indicates that the total comprised duty in the amount of $110 and registration in the amount of $200, and that the money order was 'accepted' by the Department but then returned to her.
2. Given my conclusion that the evidentiary certificate should have been received in its entirety by the learned magistrate, as admissible evidence, it follows that the certificate cannot be said to have been inadmissible on hearsay grounds.
3. With respect to the money order, I once again note that the principles applicable to determining whether an accused has no case to answer operate on the premise that the prosecution case is to be 'taken at its highest'.
4. Put another way, it would be incorrect to approach the question as to whether an accused has no case to answer from the perspective 'most favourable to the accused'.[26]
5. Nothing I have just said should be interpreted to mean that the respondent would not have been entitled to introduce evidence, as part of her own case, relating to the money order payment (or indeed any other evidence) if the learned magistrate had found the respondent did have a case to answer.
6. However, the case did not get that far.
7. Noting the features of s 10(6) of the Vehicles Act,[27] the elements of the offence alleged against the appellant were that she:

(a) Was issued with a notice under s 10(3)(b) requiring that an application for transfer of a licence for a vehicle be made under s 5.

(b) Did not make such an application within 28 days after the notice was issued.

1. In my view, the combined effect of all the facts stated in the evidentiary certificate were capable of establishing the above two elements beyond reasonable doubt.
2. Accordingly, had the learned magistrate properly accepted into evidence the certificate in its entirety, I consider the respondent would have had a case to answer.
3. It follows, in my view, that the learned magistrate erred in making a finding to the opposite effect.
4. I would therefore grant leave with respect to Ground 1.

No substantial miscarriage of justice in any event?

1. Even if a ground of appeal might be decided in favour of an appellant, this Court may still dismiss an appeal if it considers no substantial miscarriage of justice has occurred.[28]
2. The learned magistrate found the respondent had no case to answer and acquitted her after making it clear that she did not intend requiring the respondent to make an 'election'.[29]
3. A final determination in criminal proceedings, as to facts to be found and inferences to be drawn, can only be made after an accused has made an election and once 'the procedures for the taking of evidence and the receipt of submissions have been completed'.[30]
4. A fair trial involves fairness both to the accused and the State.[31]
5. In circumstances where such fairness does not occur, it is not open to conclude that 'no substantial miscarriage of justice has occurred'.[32]
6. However, where the presuppositions of a fair trial have not been breached, it may be open to conclude there has been no such miscarriage.[33]
7. One of the ways in which such a finding may be reached is where this court is satisfied that an acquittal was 'inevitable'.[34]
8. In her reasons, the learned magistrate recorded that even if she was wrong about there being no case to answer, she would in any event have found the accused not guilty.[35]
9. This was because, according to her Honour, the 'admissible evidence' led by the prosecution was incapable of proving the appellant's guilt beyond reasonable doubt as there were no facts to establish the elements of the offence 'in an admissible form'.[36]
10. I infer, from the learned magistrate's reasons, that her Honour's reference to 'admissible evidence' was intended to mean only the facts set out in paragraphs 2 and 4 of the evidentiary certificate.
11. In circumstances where, in my view, the entirety of the evidentiary certificate ought to have been treated as admissible and the respondent had a case to answer, I do not consider an acquittal could be said to have been 'inevitable'.
12. In all the circumstances, I would uphold the appeal.

(1) Leave to appeal be granted with respect to both Grounds 1 and 2.

(2) The appeal be upheld.

(3) The decision of the learned trial magistrate, dated 15 December 2023, to acquit the respondent, be set aside.

(4) The matter be remitted to the Magistrates Court to be heard and determined before a different magistrate according to law.

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

CITATION : PORTER -v- KELLY [2024] WASC 282 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Costs - Single judge appeal - Where appellant successful - Relevant principles - Where question of law of public importance raised - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14(1)(h)

1. On 7 August 2024, the Court handed down its reasons in Porter v Kelly.[37]
2. Leave to appeal was granted on both grounds advanced by the appellant, and the appeal was upheld. Consequently, the matter was remitted to the Magistrates Court to be heard and determined before a different magistrate according to law.
3. In the aftermath of that ruling, the parties were unable to agree costs. Consequently, the Court directed the parties file written submissions on the question.
4. The appellant seeks an order for the respondent to pay the appellant's costs, to be fixed in the sum of $4,906 as per a Draft Bill of Costs dated 9 August 2024. The respondent submits costs should not be awarded against the respondent.
5. Under s 14(1)(h) of the Criminal Appeals Act 2004 (WA), the court may make an order as to the costs of this appeal. However, there is no general rule in criminal appeals that costs should ordinarily follow the event.
6. The Criminal Appeals Act confers a general and unconstrained discretion upon the decision maker to award costs, having regard to all relevant circumstances, including any relevant aspect of the public interest.[38]
7. These circumstances include:

(1) Whether the unsuccessful party commenced the proceedings.

(2) The result of the proceedings.

(3) Whether the unsuccessful party's submissions were accepted in part by the court.

(4) Whether the appeal involved a point of law of public importance, or a point of law that required reconciliation of conflicting authority.

1. In this instance, the appeal was commenced by the successful party. Leave to appeal was granted on both grounds advanced, and the appeal upheld.
2. Further, as the appellant submits, none of the respondent's arguments were accepted by the Court.[39]
3. That said, the appeal did involve a point of law of at least some public importance.
4. Indeed, the point was fundamental to the outcome.
5. As is apparent from Porter v Kelly,[40] the point concerned the proper construction of provisions of the Road Traffic (Administration) Act 2008 (WA).
6. The question arising from the point was whether:[41]

it is open to a trier of fact to treat information recorded in a certificate purportedly issued pursuant to s 110(1) [of the Road Traffic (Administration) Act 2008 (WA)] as 'inadmissible', 'not admissible', or not 'validly [capable of being] adduced', so as to exclude it from consideration as admissible evidence for the purposes of the prosecution case. (emphasis in the original) (citations omitted)

1. Having determined the answer to be 'no', the appeal was upheld.
2. In addition, and as explained in Porter v Kelly, the appeal came about because the learned trial magistrate found the respondent had no case to answer, and acquitted the respondent after making it clear she did not need to hear from the respondent.[42]
3. It cannot therefore be said that any conduct on the part of the respondent contributed to this appeal.
4. In all the circumstances, I will not order the respondent to pay the appellant's costs.
5. In exercising my discretion in this way, I should stress that I do not accept the respondent's submissions as to why costs ought not be awarded against her.
6. In particular, I reject the respondent's contention that to award costs in favour of State, as the successful party, would be 'a hideous abuse of power'.
7. I similarly reject the respondent's contention that to award costs in favour of the appellant, in circumstances where the matter has been remitted to the Magistrates Court and therefore not yet finally determined, would be 'unconscionable' and 'predatory'.
8. To conclude, for the reasons identified earlier in this judgment, there will be no order as to costs.

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

[3] Vehicles Act s 10(6). There is no suggestion any exception applies in this matter.

[4] Administration Act s 4 (definition of 'road law', para (d)).

[5] Defined, in s 4 of the Administration Act, as 'the chief executive officer of the department of the Public Service principally assisting in the administration of [the Administration Act]'.

[6] Transcript, Western Australia Police v Kelly, Magistrates Court of Western Australia, 15 December 2023 (ts 15 December 2023), 10 - 12.

[12] Evidentiary certificate, paragraph 1.

[13] [2023] WASC 384 (Vandongen J).

[14] Cf Tey v Carpenter [2011] WASC 263, [32]; and (generally) Tsolacis v McKinnon [2012] VSC 627; (2012) 38 VR 260.

[15] ts 15 December 2023, 12 (evidentiary certificate, paragraph 1), 15 (evidentiary certificate, paragraph 6).

[16] ts 15 December 2023, 13 (evidentiary certificate, paragraph 3).

[17] ts 15 December 2023, 15 (evidentiary certificate, paragraph 5), 17 (evidentiary certificate, paragraph 7).

[18] Tey v Carpenter [2011] WASC 263 (Mazza J, as his Honour then was) [32] (first two sentences) read with [6]. The relevant statutory antecedent of s 110(2) was s 98(1c) of the Road Traffic Act 1974 (WA), s 110 having been designed to replicate 'the substance' of former s 98: Road Traffic (Administration) Bill 2007, Explanatory Memorandum, p 31.

[19] See also Barrett v City of Cockburn [2023] WASC 384 [155] (Vandongen J).

[22] Compare for example Duties Act 2008 (WA) s 275(b) and Taxation Administration Act 1953 (Cth), s 350‑10(1) Schedule 1.

[24] Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482, 489 (Malcolm CJ, Kennedy and Ipp JJ agreeing).

[25] Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482, 491. See also State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155, [37] - [38] (Martin CJ, Pullin and Miller JJA).

[26] Cf. State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155, [35].

[27] See paragraph 10 above.

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

[30] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124, [342] (Buss JA, Martin CJ and Mazza J agreeing).

[31] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 [342].

[32] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 [343].

[33] Morgan v Cramer [2019] WASC 68 [48] - [49] (Hall J).

[34] Morgan v Cramer [2019] WASC 68 [48] - [49] (Hall J).

[37] Porter v Kelly [2024] WASC 282.

[38] Wilson v McDonald [2009] WASCA 39 (S) (Wilson) [10] (Martin CJ, Beech AJA agreeing); The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) (Ginbey) [10] (Pullin, Newnes, Mazza JJA).

[39] Appellant's Submissions on Costs [6].

[40] Porter v Kelly [2024] WASC 282.