By Nicholas Hodgkinson and Thomas O’Keefe
In Courtney (A Pseudonym) v The State of Western Australia [2026] WASCA 86, the Court of Appeal (Quinlan CJ, Hall JA, and Smith AUJ) set aside Mr and Mrs Courtney’s convictions for child neglect and ordered a retrial. The Court held that s 88(3) of the Criminal Procedure Act 2004 (WA) requires an accused’s physical presence in the courtroom throughout trial, and attendance by video or audio link does not satisfy that requirement.
Section 88(5) does not confer a carte blanche power on a court to order attendance by video or audio link; rather, it is permissive, operating only at the accused’s request and with his or her consent. The Court also held that the cumulative effect of the trial judge’s treatment of the accused, namely her Honour’s repeated interventions during both accused’s evidence, was materially different from her treatment of prosecution witnesses, and her interference with counsel’s forensic decision to call a witness amounted to a miscarriage of justice.
Facts
Mr and Mrs Courtney (pseudonyms) were tried by judge and jury on charges under s 101(1)(b) of the Children and Community Services Act 2004 (WA) of recklessly neglecting their daughter Matilda (also a pseudonym) by failing to ensure she received adequate nutrition and medical attention, or adequate emotional, social, and functional development (at [14]).
The State did not allege intentional deprivation, but recklessness as to an obvious and apparent risk of harm (at [19], [23]). Matilda presented to hospital grossly underweight, with stunted growth and significantly delayed pubertal development, and was at risk of severe illness, cardiac arrest, refeeding syndrome, and death (at [17]).
In the second week of trial, Mrs Courtney was certified unfit to attend court due to an acute gastrointestinal illness (at [76]). Her counsel applied for an adjournment, which the State did not oppose. The trial judge refused the application and directed the trial to continue in Mrs Courtney’s physical absence (at [78]–[81]).
Before counsel made the adjournment application, the trial judge had already made arrangements with court staff and custody personnel to place Mrs Courtney in another room (at [89]). That room had a video feed of the proceedings, but no camera was directed at Mrs Courtney and no sound was transmitted from her (at [81], [88]). She could not be heard by anyone in the courtroom, and could be seen only by the trial judge (at [7], [92], [117]).
During Mr Courtney’s cross-examination and re-examination, the trial judge intervened at least 160 times, the overwhelming majority being directions to answer questions, without the prosecutor requesting or inviting the interruptions (at [139], [142]). During Mrs Courtney’s evidence, 153 interruptions were identified, including 89 during cross-examination alone (at [158]).
The trial judge warned Mrs Courtney in the presence of the jury that if she gave inadmissible evidence, ‘this whole trial could come to an end as a consequence of that alone’ (at [154], [157]). No other witness received that warning (at [157]). The judge also repeatedly raised obstacles to defence counsel calling Matilda to give evidence, including the prospect of bail revocation during cross-examination and a warning that calling her would be taken into account on sentence if Mrs Courtney were convicted (at [188], [190], [219]). Matilda ultimately did not give evidence (at [196], [224]). Both accused were convicted and sentenced to imprisonment (at [5]).
Issues on appeal
The two conviction appeals raised six grounds between them. Three of those grounds are the subject of this note: the refusal of adjournment and proceeding in Mrs Courtney’s physical absence; excessive judicial intervention amounting to a miscarriage of justice; and interference with counsel’s forensic decision to call a witness.
Ground 1 of Mrs Courtney’s conviction appeal was established (at [128]). Ground 2 of each conviction appeal was established (at [242]). Leave to appeal on the remaining conviction grounds was refused (at [264], [272]). Leave to appeal against sentence was refused in both appeals (at [333]–[334]).
Reasons
An accused’s right to physical presence at trial
An accused has a forfeitable right at common law to be physically present in court throughout his or her trial (at [42]). Section 88(3) of the Criminal Procedure Act gives that rule statutory expression. The Court held that the requirement in s 88(3) that proceedings ‘take place in his or her presence’ means physical presence in the courtroom (at [45]).
Attendance by video or audio link does not constitute the accused’s ‘presence’ within s 88(3) and requires justification under some other statutory provision or exception (at [45], [48]).
The Court further held that s 88(5) does not supply that justification (at [49], [62]). Rather, s 88(5) preserves the court’s power to permit an accused person to attend by video or audio link but does not empower it to order such attendance without the accused’s request and consent (at [61]–[62]). Parliament drew a deliberate distinction between a power to ‘order’ remote attendance and a power to ‘permit’ it, as reflected in the legislative history of the provisions replaced by s 88 (at [58]–[60]).
Section 141 of the Act, which applies to proceedings other than sentencing, allows a court to ‘permit’ attendance by video or audio link at the accused’s request and with their consent (at [56]–[57]). The use of the word ‘allowing’ in s 88(5) is consistent with that statutory scheme (at [61]). Nothing in the Criminal Procedure Act authorises a court to require trial attendance by video or audio link against an accused person’s wishes (at [62]).
Further, the arrangements made were not a ‘video link’ within the meaning of the Act (at [88]). No camera was placed on Mrs Courtney and no sound was transmitted from her (at [88]). The trial therefore proceeded in her ‘absence’ within the meaning of s 88(4) (at [117]).
The right to be present at trial is, as the Court held, ‘not merely a formal entitlement to occupy a seat in the dock’, but a right to participate in the case, to observe witnesses give evidence, to observe the tribunal of fact, and to communicate instructions to counsel as the evidence unfolds (at [122]).
The only prejudice the trial judge identified was the prospect of the jury observing Mrs Courtney visibly unwell (at [121]). That was prejudice attributable to her presence, not her absence (at [121]). Her inability to access counsel as the evidence progressed compounded that prejudice (at [122]–[123]).
The trial judge also erred in refusing the adjournment (at [115]). The application sought neither the discharge of the jury nor the adjournment of the entire proceedings (at [109]). Three prosecution witnesses remained to be called, and nothing indicated they could not be called after a short adjournment (at [112]).
The only matter the trial judge identified in favour of refusing the application was the ‘overwhelming public interest’ in completing the trial. That consideration carried no reasonable weight against a temporary adjournment for recovery (at [112]–[114]). Both errors together gave rise to a miscarriage of justice (at [127]–[128]).
Excessive judicial intervention
Excessive interference by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice. Whether the cumulative effect of judicial conduct crosses that threshold is always a matter of fact and degree, assessed in the context of the trial as a whole.
The question is always whether the trial has been so compromised as to no longer justify the characterisation of a ‘fair trial’.
The trial judge’s interventions in the evidence of both accused were neither requested nor invited by the State prosecutor (at [142], [159], [171]) and were materially different from her approach to prosecution witnesses (at [150], [168]).
In Mr Courtney’s cross-examination, the trial judge regularly interjected before the sense of his answer was apparent, most commonly beginning with ‘No’ or ‘No, no’ (at [140]). She insisted on single, unqualified answers to questions that involved nuance (at [149]). This occurred even though the prosecutor had no apparent difficulty controlling Mr Courtney as a witness (at [142]).
During Mrs Courtney’s evidence, the trial judge warned her in the presence of the jury that if she gave inadmissible evidence, ‘this whole trial could come to an end as a consequence of that alone’, and later that she had to ‘make sure that evidence isn’t given inadvertently by a witness that would cause this trial to fall apart’ (at [154], [157]). No other witness received those suggestions (at [157]).
A sardonic reference to Mrs Courtney’s English degree could only have conveyed to the jury that she was being deliberately evasive and deserving of criticism (at [173]). The cumulative effect of those interventions was such as to create the impression that the trial judge had identified herself with the prosecution (at [208], [231]).
In the summing-up, the trial judge acknowledged becoming ‘grumpy and frustrated and wanted to bang lawyers’ heads together and wanted to squeeze witnesses to make them answer things the way I wanted to answer, and quickly’ (at [236]).
Her Honour inaccurately characterised her interventions as ‘very normal’ for a long overtime trial and did not acknowledge that they were directed at the defence witnesses rather than the prosecution witnesses (at [238]–[240]). Her direction therefore did not adequately repair the prejudice (at [237]).
The Court held that where a trial judge’s conduct has created a real risk that the jury formed an adverse view of the defence, a corrective direction in the summing-up will rarely suffice (at [70]). Where such conduct gives rise to a reasonable apprehension of bias there has been ‘a failure to observe the requirements of the criminal process in a fundamental respect’, the miscarriage of justice is inherently substantial, and the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) has no application (at [244]–[245]).
Interference with counsel’s forensic decision to call a witness
The decision whether to call a witness is for counsel alone, having appropriate regard to the client’s instructions and wishes (at [217]). The trial judge has no power to make orders in relation to that decision and should not seek to influence it (at [217]).
From the beginning of trial, the trial judge expressed that there were ‘real issues whether I’ll allow’ the defence to call Matilda, and raised the prospect of requiring psychological and psychiatric assessments as a precondition to her giving evidence (at [178], [181], [183]). After counsel confirmed that Matilda wished to give evidence in open court, the trial judge stated that calling Matilda would ‘obviously’ be taken into account on sentence if Mrs Courtney were convicted (at [188]).
Her Honour then directed that both accused would be remanded in custody during any overnight adjournment while Matilda was under cross-examination (at [190]). The Court held that those interventions crossed the line from legitimate concern for the manner in which a witness might give evidence into illegitimate interference with counsel’s forensic plan (at [218]).
A fair-minded lay observer would reasonably apprehend from the cumulative course of those interventions that the trial judge was seeking to influence both Mrs Courtney and counsel not to call Matilda (at [219], [225]). When Matilda was called to the witness box, that apprehension was reinforced by the trial judge’s further questions of the prosecutor in the jury’s presence, which again suggested a preference that Matilda not give evidence (at [222]).
Implications
The decision in Courtney has at least three implications.
First, an accused person’s right to be present at trial requires physical presence in the courtroom. Where illness or other circumstances prevent attendance, the permissible options are a short adjournment or an order under s 88(4) of the Criminal Procedure Act that proceedings continue in the accused’s absence.
Section 88(4)(a) requires the court to be satisfied that the accused’s interests will not be prejudiced by that absence. That criterion requires an assessment of whether the accused can participate meaningfully in the trial and give adequate instructions to counsel as the evidence unfolds, not merely whether the jury will observe the accused’s physical condition.
Secondly, a comparison between the trial judge’s treatment of defence witnesses and prosecution witnesses is relevant to whether interventions amount to a miscarriage of justice.
Frequent and precipitous interventions in defence witness evidence, with no like interventions in prosecution witness evidence, are apt to give rise to an objective impression that the judge has allied with the prosecution. A corrective direction will rarely overcome such an impression and will not do so if it simultaneously misstates the character or uniformity of the impugned interventions.
Where the conduct gives rise to a reasonable apprehension of bias, the proviso in s 30(4) of the Criminal Appeals Act has no application.
Thirdly, a trial judge must not interfere with, or seek to influence, counsel’s decision whether to call a particular witness.
Attaching adverse consequences to that forensic choice, including announcing that calling a witness will affect sentence or that the accused will be remanded in custody during cross-examination, crosses from legitimate concern into illegitimate interference with the conduct of the defence case.
