PRICE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 53 | Case summary

Court of Appeal (WA)|2026-04-16|Before: Thomson P

(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

I will ask Vaughan JA to deliver his judgment first.

On 6 November 2020, following a 5‑day trial, the appellant was convicted of various child sexual offences including two counts of sexually penetrating a child under 13 years of age and three counts of sexually penetrating a child over the age of 13 years and under the age of 16 years. The indictment alleged that the offending occurred between 19 February 2016 and 1 April 2019. The appellant was sentenced by Barrone DCJ on 27 November 2020. The appellant was sentenced to a total effective sentence of 7 years and 3 months' immediate imprisonment (backdated to 6 November 2020).

The appellant suffered a miscarriage of justice due to the incompetence of the appellant's legal representation.

The proceedings come before us today pursuant to a registrar's notice to attend dated 10 March 2026 to consider the appellant's two applications in an appeal dated 3 March 2026. Those applications are for leave to issue two witness summonses to produce records ‑ one to the principal of a regional high school and the other to the proper

officer of a regional health service. The applications are supported by two affidavits sworn by the appellant's solicitor on 3 March 2026.

The appellant's solicitor deposes in respect of each application to the effect that:
1. The appellant seeks records relating to the complainant (being, presumably, records held by the intended recipients of the witness summonses).
2. The records would provide proof of a prior inconsistent statement that would undermine the complainant's credibility (and, as to the records of the regional high school, a submission made by the prosecutor at trial).
3. The failure to present this evidence at trial 'may' (the solicitor's word) have occasioned a miscarriage of justice.
The appellant's solicitor does not depose to a belief that the records sought by the proposed witness summonses exist. Nor does the appellant's solicitor depose to a belief that there are reasonable grounds to believe that the records exist. Instead the appellant's solicitor refers to aspects of the appellant's affidavit evidence which, if accepted at face value, might (or might not) have resulted in the high school or health service creating records which would support the allegation of prior inconsistent statement as made in the appellant's solicitor's affidavit. The appellant's solicitor says that the appellant seeks the issue of the witness summonses to obtain records to establish the appellant's claim in the appellant's affidavit evidence.
The court is empowered, by s 40(1)(a) of the Criminal Appeals Act, to order the production of any record or thing that is or may be relevant to the appeal. The nature of the court's power under s 40(1)(a) was considered in the recent decision of GSA v Department of Communities [No 2].[1] The power to grant leave to issue summonses for the production of records is not a free ranging power. Rather, the power is tethered to the court's appellate function ‑ it is a power in aid of and ancillary to the court's appellate jurisdiction [54]. Accordingly, in GSA [No 2] the court approved the following observation:

[B]efore this court may give leave to a party to issue a summons requiring a person or entity to produce documents, there must be a proper basis, consistent with the appellate function of the court, for the production of any document [49] - [50].

Among other things a proposed summons for the production of records under s 40(1)(a) of the Criminal Appeals Act must serve a legitimate forensic purpose: Houghton v The State of Western Australia.[2]
The power to issue a witness summons is concomitant with the court's power to admit additional evidence on an appeal: Criminal Appeals Act, s 40(1)(e). However, the parties to an appeal do not have an unfettered right to adduce evidence on an appeal. An appeal is not an opportunity to have a fresh trial. Generally, as provided for by s 39(1) of the Criminal Appeals Act, an appeal is determined on the evidence and material that were before the lower court. Ordinarily only evidence that meets the test of being new or fresh is admissible on an appeal. See generally Tsang v Francis.[3]
There are at least two insurmountable difficulties with the appellant's applications for leave to issue the two witness summonses to produce records at this time.
The first difficulty is that the applications are premature. The appellant has not filed his appellant's case. The draft ground of appeal is unparticularised and opaque. Standing alone the draft ground is insufficient for this court to consider whether the documents sought by the appellant might conceivably be relevant to the appeal and might conceivably be received as additional evidence on the appeal. In particular, the material before the court does not demonstrate how the documents sought by the appellant by the applications for leave to issue the two witness summonses to produce records are relevant to a ground of appeal. Nor could the documents sought be relevant to a ground of appeal when the appellant is yet to file and serve his appellant's case containing his grounds of appeal.
The appellant seems to suggest that he seeks the documents to enable him to prepare an appellant's case. That leads to the second difficulty with the applications. The applications are inherently speculative. The appellant is attempting no more than to discover whether the high school or health service might be able to produce

some record which it is hoped might sustain some ground of appeal - as yet unformulated - to support his appeal. In those circumstances the appellant's applications for leave to issue the two witness summonses to produce records does not serve a legitimate forensic purpose. See Houghton [38], [42], [47] ‑ [48], [50] ‑ [51], [53]; Impicciatore v The State of Western Australia [No 2].[4]

The appellant's applications in an appeal dated 3 March 2026 must be dismissed. The dismissal of the applications at this point will not prejudice the appellant in making similar applications in the future, if so advised, after he has filed an appellant's case and, having made due enquiries, is in a position to demonstrate that the existence and relevance of the documents is more than speculative.

I agree with the reasons that have been delivered by Vaughan JA. In the circumstances, the order will be that each of the applications dated 3 March 2026 will be dismissed.

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

[1] GSA v Department of Communities [No 2] [2026] WASCA 36 [49] ‑ [54].

[2] Houghton v The State of Western Australia [2021] WASCA 183 [53].

[3] Tsang v Francis [2021] WASCA 131 [77] ‑ [79], [81] ‑ [87].

[4] Impicciatore v The State of Western Australia [No 2] [2019] WASCA 218 [18] ‑ [20], [22] ‑ [24].

PRICE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 53 (16 April 2026)

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