Bazzi v The State of Western Australia - [2025] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BAZZI -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 97
CORAM:   BUSS P
MITCHELL JA
HALL JA

HEARD: 15 AUGUST 2024
FURTHER WRITTEN SUBMISSIONS FILED
3 OCTOBER & 15 NOVEMBER 2024

DELIVERED          :   23 JUNE 2025
FILE NO/S:   CACV 39 of 2024
BETWEEN:   NABIL BAZZI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WAGER CJDC
File Number            :   IND 1403 of 2020

Catchwords:

Appeal - Appellant convicted after trial of three counts - Primary judge dismissed the appellant's application pursuant to s 138(5) of the Criminal Procedure Act 2004 (WA), made after he was convicted and sentenced, for permission to be given any order made by the District Court, without notice to the appellant and in his absence, pursuant to s 138(3)(a) of the Criminal Procedure Act - Whether the Court of Appeal has jurisdiction to entertain the appeal under s 79 of the District Court of Western Australia Act 1969 (WA) - Whether an accused or an offender is entitled to know of the making or existence of an order under s 138(3)(a) that was made, on the application of the prosecutor, without notice to the accused and in his or her absence - Whether an accused or an offender may apply for permission under s 138(5) of the Criminal Procedure Act in respect of any order made in the absence of the accused under s 138(3)(a) of the Criminal Procedure Act - Whether it is open to an offender to allege in an appeal against conviction that any order made under s 138(3)(a), further or alternatively a refusal to grant permission under s 138(5), resulted in a miscarriage of justice at his or her trial - Proper construction of s 138 of the Criminal Procedure Act - Appeal notice filed by the appellant in the Court of Appeal struck out on the basis that the appeal is incompetent

Legislation:

Criminal Appeals Act 2004 (WA), s 3, s 4, s 23(1)(a), s 30(3), s 40(1)(h)
Criminal Procedure (District Court) Rules 2008 (WA), r 4, r 7
Criminal Procedure Act 2004 (WA), s 3(1), s 138
Criminal Procedure Rules 2005 (WA), r 22, r 23
District Court of Western Australia Act 1969 (WA), s 6(1), s 8, s 42, s 44, s 79
Interpretation Act 1984 (WA), s 3, s 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(fa)(i)

Result:

Appeal notice struck out on the basis that the appeal is incompetent

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	S R Pack
First Respondent	:	L M Fox SC
Second Respondent	:	J D Berson

Solicitors:

Appellant	:	Holborn Lenhoff Massey
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240
AB (a pseudonym) v Independent Broad‑based Anti‑corruption Commission [2024] HCA 10; (2024) 278 CLR 300
AB v CD [2017] VSCA 338
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney‑General (NT) v Emmerson [2014] HCA 13; (2014) 253 CLR 393
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Bartlett v Commonwealth Director of Public Prosecutions [2013] WASCA 223
Bodruddaza v Minister for Immigration and Multicutural Affairs [2007] HCA 14; (2007) 228 CLR 651
Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1
Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25
Church of Scientology of California v Department of Health and Social Security [1979] 1 WLR 723
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commonwealth v Northern Land Council (1991) 30 FCR 1
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Connell v The Queen (No 5) (1993) 10 WAR 424
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192
Day v The Queen [1984] HCA 3; (1984) 153 CLR 475
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Ex parte Woodhall (1888) 20 QBD 832
Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; (2022) 276 CLR 170
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Harvey v The Queen [2017] WASCA 43
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
KWLD v The State of Western Australia [2020] WASCA 94
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421
Melbourne City Investments Pty Ltd v Leighton Holdings Limited [2015] VSC 119
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Davis [1993] 1 WLR 613
R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123
Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197
Re Her Honour Chief Judge Kennedy; Ex parte Western Australian Newspapers Limited [2006] WASCA 172
Re His Honour Judge Hammond; Ex parte Roddan (1996) 17 WAR 50
Re Hogan; Ex parte Channel Seven Perth Pty Ltd [2008] WASC 113
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1
Sankey v Whitlam (1978) 142 CLR 1
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137
SDCV v Director‑General of Security [2022] HCA 32; (2022) 277 CLR 241
Smithwick v The State of Queensland [2001] QSC 175
South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The State of Western Australia v BW [2024] WASC 163
Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268
Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 269 CLR 219
WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721
Will v Brighton [2020] NSWCA 355; (2020) 104 NSWLR 170

Index

BUSS P

The appellant's trial and conviction in the District Court and his appeals against conviction and sentence to this court

The appellant's appeal notice dated 26 June 2024 in CACV 39 of 2024

Orders made by the court on 4 July 2024

The registrar's notice to attend dated 9 July 2024

The history preceding the appellant's application before the primary judge

The prosecution's disclosure obligations

Section 138 of the CPA

Rule 22 of the Criminal Procedure Rules 2005 (WA)

The primary judge's reasons

Does the appellant have a right of appeal to this court? - relevant provisions of the Criminal Appeals Act

Does the appellant have a right of appeal to this court? - section 79 and related provisions of the District Court Act

Does the appellant have a right of appeal to this court? - the appellant's original submissions in the appeal

Does the appellant have a right of appeal to this court? - the Attorney's original submissions in the appeal

Does the appellant have a right of appeal to this court? - the State's original submissions in the appeal

Orders made by the court on 15 August 2024

The appellant's notice dated 30 August 2024 under s 78B of the Judiciary Act

Does the appellant have a right of appeal to this court? - the appellant's supplementary written submissions

Does the appellant have a right of appeal to this court? - the Attorney's supplementary written submissions

Does the appellant have a right of appeal to the court? - the State's supplementary written submissions

Does the appellant have a right of appeal to the court? - relevant principles of statutory construction

Does the appellant have a right of appeal to the court? - the proper construction of s 138 of the CPA

Does the appellant have a right of appeal to the court? - the primary judge's error

Does the appellant have a right of appeal to the court? - some general principles

Does the appellant have a right of appeal to the court? - the proper construction of the Criminal Appeals Act

Does the appellant have a right of appeal to the court? - s 79(1) of the District Court Act

Does the appellant have a right of appeal to the court? - the Kirk issue and the Kable issue

Conclusion

MITCHELL & HALL JJA

Competence of the appeal

Other observations

Section 138 and public interest immunity

Notification to the accused prior to determination of a s 138 application

Providing a copy of the s 138 order to the accused

Matters on which we do not express a view at this stage

Orders

BUSS P:

Issues have arisen in this pending appeal (CACV 39 of 2024) concerning:
(a)the proper construction of s 138 of the Criminal Procedure Act 2004 (WA) (CPA); and
(b)whether the appellant has a right of appeal to this court against the dismissal by Wager CJDC (the primary judge) of his application pursuant to s 138(5) of the CPA for permission to be given any order made by the District Court, without notice to the appellant and in his absence, pursuant to s 138(3)(a) of the CPA.
The appellant asserts that he has a right of appeal under s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) (District Court Act).
In my opinion, the appellant does not have a right of appeal to this court under s 79(1)(b) or any other statutory provision solely in respect of the primary judge's dismissal of his application pursuant to s 138(5) of the CPA. The appellant's appeal notice should be struck out on the basis that the appeal is incompetent, and the appeal should be dismissed.

The appellant's trial and conviction in the District Court and his appeals against conviction and sentence to this court

On 22 August 2022, the appellant was convicted, after a trial before Burrows DCJ (the trial judge) and a jury, of three counts in indictment IND 1403 of 2020. The charged offences comprised one count of possession of a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA), and two counts of possessing money ($114,950 and $354,700) that was the proceeds of an offence (namely, the sale of prohibited drugs), contrary to s 563A(1)(b) of the Criminal Code (WA) (the Code).
On 2 September 2022, the trial judge sentenced the appellant to a total effective sentence of 21 years' imprisonment, backdated to 30 December 2020. Her Honour made a parole eligibility order.
On 21 September 2022, the appellant filed an appeal notice against conviction (CACR 98 of 2022) and an appeal notice against sentence (CACR 97 of 2022).
On 2 January 2024, the appellant filed his appellant's case in the conviction appeal. The appellant's case contains two grounds of appeal. Each ground alleges, in essence, that the trial judge misdirected the jury. On 3 July 2024, the first respondent (the State) filed its respondent's answer. The conviction appeal has not yet been heard.
The appellant failed to comply with a springing order in relation to the filing of his appellant's case in the sentence appeal. On 4 January 2024, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal. The certificate states, in essence, that the sentence appeal stands dismissed because the appellant did not file the appellant's case by 4.00 pm on 29 December 2023, pursuant to the order of the court made on 20 December 2023.

The appellant's appeal notice dated 26 June 2024 in CACV 39 of 2024

On 26 June 2024, the appellant filed an appeal notice (civil) (the Appeal Notice) in this court against a decision of the primary judge made on 5 June 2024.
The Appeal Notice records her Honour's decision, in effect, as the dismissal of the appellant's application in connection with his conviction on 22 August 2022:
(a)for permission to be given or have disclosed any order made by the District Court, in the appellant's absence, pursuant to s 138(3)(a) of the CPA (order 1);
(b)to be informed about whether any orders were made by the District Court or the Magistrates Court, in the appellant's absence, pursuant to s 138(3)(a) of the CPA (order 2); and
(c)to be given the transcript or recording of any hearing in the District Court, in the appellant's absence, pursuant to s 138 of the CPA, including the transcript or recording of the hearing in the appellant's absence that occurred on 5 May 2021 (order 3).
The appellant states in the Appeal Notice that he has a right of appeal to this court (subject to the grant of leave) against the primary judge's decision, pursuant to s 79(1)(b) of the District Court Act.

Orders made by the court on 4 July 2024

On 4 July 2024, I made orders to the following effect:
(a)By 19 July 2024, the appellant file and serve written submissions on whether the Appeal Notice should be struck out on the basis that the appeal is incompetent.
(b)By 26 July 2024, each of the State and the second respondent (the Attorney) file and serve written submissions in response.
(c)By 1 August 2024, the appellant file and serve written submissions in reply.
The parties filed and served written submissions in accordance with those orders.

The registrar's notice to attend dated 9 July 2024

On 9 July 2024, the Acting Court of Appeal Registrar issued a registrar's notice to attend a hearing on 15 August 2024 for the purpose of this court considering whether the Appeal Notice should be struck out, pursuant to r 43(2)(fa)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the ground that the appellant does not have a right of appeal against her Honour's decision.
On 15 August 2024, the court heard oral submissions from the parties.

The history preceding the appellant's application before the primary judge

On 28 November 2019, police were conducting surveillance on a man, AM. The prosecutor called AM as a State witness at the appellant's trial. The State alleged that AM worked for the appellant as a drug courier. AM was employed to collect, store and deliver large quantities of drugs and large amounts of cash on the appellant's behalf. The appellant used AM to distance himself from the day‑to‑day operations of his drug dealing business, and to reduce the risk of the appellant being apprehended in possession of large quantities of drugs or large amounts of cash. AM's evidence at the trial implicated the appellant in the commission of the charged offences.
The appellant was tried between 2 August 2022 and 22 August 2022. He was convicted on 22 August 2022 and sentenced on 2 September 2022.
On 5 December 2023, counsel for the appellant requested, by an email sent to the primary judge, copies of any orders made pursuant to s 138 of the CPA, in the appellant's absence, in relation to the prosecution's disclosure requirements in respect of the offences of which the appellant had been convicted.
On 21 December 2023 and 20 February 2024, the primary judge heard the appellant's application. At the hearing, the appellant sought orders to the effect set out at [10] above.
At the hearing on 21 December 2023, the State submitted that, on a proper construction of s 138 of the CPA, the appellant had no standing to make the application; alternatively, if the appellant did have standing to make the application, the application had no merit.
At the hearing on 21 December 2023, the appellant submitted that the proceedings raised a matter involving the interpretation of the Commonwealth Constitution, within s 78B of the Judiciary Act (Cth), and that notice of the matter was required to be given to the Attorneys‑General of the Commonwealth, each of the States, the Australian Capital Territory and the Northern Territory.
The notice given pursuant to s 78B provided as follows:
Whether s 138(5) of the Criminal Procedure Act 2004 (WA) is intended as conferring upon a State court a function or power which is incompatible with and repugnant to the integrated system of courts prescribed by Chapter III of the Commonwealth Constitution.
The order sought being that the Applicant being provided with any order previously made in the accused's absence pursuant to s 138(3) of the Criminal Procedure Act 2004 (WA).
None of the Attorneys (apart from the Attorney General for Western Australia) intervened in the proceedings before her Honour.
On 20 February 2024, the primary judge heard submissions on whether the appellant had standing to make the application under s 138 of the CPA and, if so, whether the orders sought by the appellant should be made. On 20 February 2024, her Honour also heard submissions on the matter specified in the notice given pursuant to s 78B.

The prosecution's disclosure obligations

At common law, the prosecution must disclose to an accused all relevant evidence in its possession or available to it. Evidence should be disclosed if it is relevant to a fact in issue; a fact relevant to a fact in issue; or the credit or reliability of a prosecution witness. See PAH v The State of Western Australia.[1]
[1] PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250 [118] (Buss JA; McLure P & Hall J agreeing).
In Western Australia, the prosecutor and the accused have statutory duties of disclosure. These duties are imposed by s 35, s 42, s 61, s 62, s 95 and s 96 of the CPA.
All of those provisions in relation to disclosure are expressed to be subject to any order made under s 138 of the CPA. See s 35(2)(a), s 42(3), s 61(3), s 62(2), s 95(3) and s 96(2).
Section 95 of the CPA embodies a duty of disclosure by the prosecutor in connection with prosecutions in superior courts. It provides, relevantly:
(1)In this section, unless the contrary intention appears —
confessional material has the meaning given by section 42;
evidentiary material has the meaning given by section 42;
lodge means to lodge with the superior court concerned;
serve, an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.
(2)A requirement under this section to serve evidentiary material includes a requirement to serve the things that are required to be served under section 42(2).
(3)The operation of this section is subject to section 137A and any order made under section 138, whether in relation to a requirement of this section or a requirement of section 35 or 42.
…
(6)Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it —
(a)a statement of the material facts of the charge;
(b)any confessional material of the accused that is relevant to the charge;
(c)any evidentiary material that is relevant to the charge;
(d)a copy of the accused’s criminal record;
(e)a copy of the certificate given to the officer under section 45;
(f)any other document that is prescribed.
…
(9)If, after complying with subsection (6) … and before a charge is finally dealt with, a prosecutor receives or obtains —
(a)confessional material or additional confessional material that is relevant to the charge; or
(b)additional evidentiary material that is relevant to the charge; or
(c)any statement or recording referred to in section 42(2)(b); or
(d)the name or address of a person described in section 42(2)(c),
the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable.

Section 96 of the CPA embodies a duty of disclosure by the accused in connection with prosecutions in superior courts. It provides:
(1)In this section, unless the contrary intention appears —
alibi evidence has the meaning given by section 62(1);
expert evidence material has the meaning given by section 62(1);
lodge means to lodge with the superior court concerned;
serve has the meaning given by section 62(1).
(2)The operation of this section, other than subsection (3)(a), is subject to any order made under section 138.
(3)Within the prescribed period before the trial date for a charge in an indictment, the accused must lodge and serve the following —
(a)if the accused intends to give or adduce any alibi evidence, written notice of —
(i)the accused’s intention to do so; and
(ii)the details of the nature of the evidence; and
(iii)the name of each person who the accused intends to call to give any such evidence and the person’s address or other information sufficient to enable the person to be located;
(b)any expert evidence material that relates to the charge;
(c)written notice of the factual elements of the offence that the accused may contend cannot be proved;
(d)written notice of any objection by the accused to —
(i)any document that the prosecutor intends to adduce at the trial; or
(ii)any evidence to be given by a witness whom the prosecutor intends to call at the trial,
and the grounds for the objection.
(4)If, after complying with subsection (3), an accused receives or obtains evidence, information or material referred to in subsection (3), the accused must lodge and serve it as soon as practicable.

Section 138 of the CPA

Section 138 of the CPA provides:
(1)In this section, unless the contrary intention appears —
disclosure requirement means a requirement under section 35, 42, 61, 62, 95 or 96 to disclose material, other than a requirement under section 62(4)(a) or 96(3)(a).
(2)The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.
(3)A court may, in respect of a disclosure requirement, make an order —
(a)that dispenses with all or part of the requirement, if it is satisfied —
(i)there is a good reason to do so; and
(ii)no miscarriage of justice will result;
or
(b)that shortens or extends the time for obeying the requirement; or
(c)that amends or cancels an order made previously under this section, whether by the court or some other court; or
(d)as to any other matter that the court considers is just.
(4)An application for an order under this section may be made by a prosecutor without notice to the accused and may be dealt with in the absence of the accused.
(4a)Despite section 171, an application by a prosecutor for an order under this section that is made without notice to the accused must not be dealt with in open court and the only people who may be present when it is dealt with are the applicant and those permitted by the court.
(5)If an order is made under this section in the absence of an accused, the order must not be given or disclosed to the accused without the permission of the court that made it or, if it was made by a court of summary jurisdiction and the accused is committed for trial or sentence to a superior court, of the superior court.
Section 3(1) of the CPA includes the following definitions that are relevant to s 138:
(a)'accused means a person alleged in a prosecution notice or indictment to have committed an offence';
(b)'case means a prosecution, or any proceedings in a court that involves its criminal jurisdiction';
(c)'charge means an allegation in a prosecution notice or indictment that a person has committed an offence';
(d)'court means a court of summary jurisdiction or a superior court';
(e)'party, in relation to a charge, means the prosecutor or the accused';
(f)'prosecution means proceedings in a court that allege a person has committed an offence and that are taken for the purpose of having the person tried for the offence';
(g)'prosecutor' means 'in a prosecution in a court of summary jurisdiction, the person who commenced the prosecution or a person who in court represents that person' and 'in a prosecution in a superior court, the authorised officer (as defined in section 80) who commenced the prosecution or a person who in court represents that person'; and
(h)'superior court means the Supreme Court or the District Court'.

Rule 22 of the Criminal Procedure Rules 2005 (WA)

Rule 22 of the Criminal Procedure Rules 2005 (WA) provides:
(1)A prosecutor applying for an order under the CPA section 138 (the section 138 application) may also apply for an order that the section 138 application be heard in private and in the absence of the accused.
(2)If an application is made under subrule (1) —
(a)the prosecutor must not serve either that application or the section 138 application on the accused; and
(b)the court must hear the application made under subrule (1) in private in the absence of the accused.
(3)If the court grants the application made under subrule (1), it may proceed to hear and determine the section 138 application but otherwise the section 138 application will be adjourned and the prosecutor must serve it on the accused.
(4)An order made under the CPA section 138 in the absence of the accused must not be disclosed to the accused except with the leave of the court.

The primary judge's reasons

The primary judge summarised in her reasons the evidence given by AM at the appellant's trial. In particular, her Honour noted that:
(a)AM's credibility was challenged at length by defence counsel for the appellant [17].
(b)The State accepted at the trial that AM had 'probably lied' about several matters in his evidence and that consequently the jury should only accept his evidence where it was corroborated by other evidence [17].
(c)The appellant's case at trial was that AM's evidence was untruthful and that AM had falsely implicated the appellant in the offending [18].
(d)Defence counsel for the appellant urged the jury to reject AM's evidence, given the lies he had told and the nature of his conduct. Defence counsel alleged that the police had 'an investigative bias [against the appellant] identified by an inconsistency between the evidence of AM and the investigating officer in relation to AM taking part in a video record of interview … which was consistent with a failure to disclose material' [20].
(e)There were numerous delays at the appellant's trial 'while further disclosure and clarification was sought by [defence] counsel for [the appellant]' [20].
(f)The trial judge told the prosecutor that the prosecutor 'must remind police of their ongoing disclosure obligations and that the prosecutor would need to review all of the materials held by Western Australia Police' [20].
(g)The State submitted at the trial that 'there was no outstanding disclosure issue consistent with the [police] having an investigative bias' [21].
(h)The State also submitted at the trial that 'any issue in relation to failure to disclose notes had been clarified and dealt with by the State on 4 August 2022, therefore all disclosure requests made during the course of the trial were dealt with' [22].
Her Honour recorded that:
(a)The State had submitted that s 138(5) of the CPA prohibits the giving or disclosing of an order to an accused without the permission of the court because 'it is a prohibition provision and one which is directed at the court'. The State had also submitted that s 138(5) should not be considered as 'a facilitative provision authorising the making of an application by an accused' [38].
(b)The appellant and the Attorney had submitted that s 138 is 'a facilitative provision because there is no reason why s 138(5) should be read in isolation from the other subsections'. The appellant and the Attorney had also submitted that when s 138(2) and s 138(5) are read together, 'it is clear that the accused may apply to the court for permission for an order to be given or disclosed to them even though r 22 of the [Criminal Procedure Rules] does not outline the procedural steps for such an application' [39].
The primary judge then said that she agreed with the submissions made by the appellant and the Attorney. Her Honour elaborated [40]:
The fact that s 138(5) sets out that if the order was made by a court of summary jurisdiction and the accused is committed for trial or sentence to a superior court, permission must be sought from the superior court rather than the court of summary jurisdiction before permission of the court for the order to be given or disclosed could be considered, makes it implicit that it must be possible for permission to be sought by a party, including the defence, after the making of an initial order. Section 138(5) does not restrict the defence from making an application and seeking permission to be given or disclosed any order made.
Her Honour rejected the State's submission that an order made by a court under s 138 of the CPA is 'final'. Her Honour said that a court 'has an obligation if circumstances change to ensure that [an order made under s 138] does not give rise to a miscarriage of justice'. Her Honour elaborated [45]:
Given the disclosure obligations at common law and by statute and the serious nature of making an ex parte order in a matter of this type, the prosecution carries a continuing obligation to bring any matters that may impact on the court's discretion in respect of s 138(3) to the court's attention. The court has an obligation to review any s 138 orders made in the event that the court is made aware of any new material or issues in the defence case that may impact on the s 138(3) determination earlier made.
The primary judge recorded that:
(a)The appellant had submitted that the terms 'given' or 'disclosed' in s 138(5) of the CPA 'do not embrace merely informing the accused that an order exists because a person who tells the accused that an order was made by the court does not give or disclose the order itself and does not reveal the terms of the order or the material to which it relates' [48].
(b)The State and the Attorney had submitted that 'if s 138(5) … was intended only to prevent disclosure of the content of an order rather than the fact of its existence the word "given" would be sufficient to convey that meaning and the word "disclosed" would serve no purpose'. The ordinary meaning of the word 'give' is, relevantly, 'to deliver freely; bestow; hand over' whereas the ordinary meaning of the word 'disclosed' is 'to cause to appear; allow to be seen; make known; reveal'. The meaning of 'disclose' is separate and distinct from the meaning of 'give'. The word 'disclose' in s 138(5) is not superfluous. It refers to making known to the defence the fact of any order [50].
(c)The appellant had submitted that 'merely informing a party that an order exists could not derail the objects to which s 138 of the CPA is addressed, nor how the legislature intended to achieve those objects'. The appellant had also submitted that disclosure of the fact that an order had been made 'would enable the accused to take steps contemplated by s 138 to seek permission to receive the order or apply to amend or cancel the order or to seek a redacted copy of the reasons for decision for the purposes of confirming that the pre‑conditions to the exercise of the powers vested in the court by s 138 have been observed thereby preserving an important aspect of procedural fairness' [52].
(d)The Attorney had submitted that 'disclosure of the mere fact that an order has been made to the defence would derail the statutory purpose served by s 138' [53].
Her Honour then said that the statutory purpose of s 138 of the CPA is 'to address the need to protect "at risk" persons and to protect highly secure covert criminal investigations'. Her Honour also said that the purpose of an order under s 138 is 'to relieve the prosecution from its statutorily imposed duty of disclosure when the interests of justice require it'. Her Honour added, however, that 'consistent with the obligation for disclosure … orders made pursuant to s 138 require the court to be satisfied before any order is made, that there is a good reason to make the order and no miscarriage of justice will result' [54]. Her Honour continued [55] ‑ [58]:
Judicial discretion as to whether an order pursuant to s 138(3)(a)(i) and s 138(a)(ii) should be made or remain in place may change throughout the course of a prosecution as may the requirement to disclose to defence whether or not an order has been made. What may satisfy a judicial officer at the commencement of a prosecution may not satisfy a judicial officer at the time of trial. Section 138 orders are not final. If circumstances change the court may be required to vary or cancel the ex parte order previously made. That variation or cancellation may include a determination to disclose to defence whether or not an order has been made and, in some cases, its contents.
In some cases, the disclosure of the fact that an order has been made could frustrate the objects to which s 138 is addressed and could frustrate the purpose of any order made. However, that position may change. A hypothetical example would be if an order was made in relation to information obtained from one member of an outlaw motorcycle gang against another member. If an arrest occurred with one member being arrested and the other not being arrested, the mere knowledge that an order had been made, if known by the person arrested, may be sufficient to place the safety of the person who had provided the information and co‑operation in jeopardy. That position of risk to the safety of the informant may change over time.
Consistent with the purpose of the legislation an order that the fact of the making of an order not be disclosed to defence will only be made if the presiding judicial officer determines that the risk of disclosing that an order has or has not been made would potentially present a risk as serious as a risk to the safety of human life or to an important covert investigation. It is only if the judge determines there is a good reason to make the order and, in making the order, no miscarriage of justice will result, that an order pursuant to s 138(5) would be made.
Accordingly in my view the word 'given' and 'disclosed' should be interpreted according to its ordinary meaning.
The primary judge recorded that:
(a)The appellant had submitted that the construction of s 138(5) advanced by the State and the Attorney, based on the meaning of the words 'given' and 'disclosed', should be rejected because 'the practical effect [of that construction] would be to immunise decisions made by the court from review for jurisdictional error'. Such a construction 'would preclude proper consideration of any appealable error which is inconsistent with the defining characteristics of a court' [64].
(b)The appellant had also submitted that 'being denied the knowledge that an order has been made and a right to appeal the reasons for any decision made distorts the institutional integrity of the court' [68].
(c)The appellant had also submitted that 'unless disclosure of an order is made, the effect of making an order is to remove the supervisory role of the State's Supreme Court'. Consistent with the supervisory role of the State's Supreme Court, 'legislation which would take from the Supreme Court … the power to grant relief on account of jurisdictional error is beyond legislative power'. Accordingly, s 138 of the CPA 'should be given its widest interpretation and the orders sought by [the appellant] should be made' [74].
(d)The Attorney had submitted that s 138 does not preclude the Supreme Court's supervisory role because 'any limitation would only arise after a number of steps had been undertaken'. In particular, the potential limitation on the Supreme Court's jurisdiction only arises after the following steps have been undertaken. First, a prosecutor must have made an application under s 138 on an ex parte basis. Secondly, the court, having considered the ex parte application, must have then determined, in respect of a disclosure requirement, that it could be dispensed with if there was a good reason to do so and no miscarriage of justice would result. Thirdly, the court must not have granted the accused permission to be given or disclosed the order at the time of making the order, or subsequently (whether on the application of the accused, the prosecutor or on its own motion pursuant to s 138(2) and s 138(5)). It is only at that final (third) step that the question of any restriction on the Supreme Court's jurisdiction could be said to arise. The issue only arises following the exercise of a specific statutory power that is conferred upon the court. The interference with the Supreme Court's jurisdiction is not caused immediately or directly by the legislation [75], [78] ‑ [79].
(e)The Attorney had also submitted that a decision under s 138(3) is an interlocutory decision that forms part of the broader criminal proceedings against an accused. The appellant's right of appeal under the Criminal Appeals Act 2004 (WA) remains in relation to the substantive issues. This right of appeal had been exercised in the present case by the appellant having filed appeal notices against conviction and sentence in the Court of Appeal [80].
Her Honour dealt with those submissions as follows [81] ‑ [83]:
Whether jurisdictional error attaches to a decision not to provide material whereby a miscarriage of justice has resulted is a different question from whether there is an appeal against a decision of this court or the Magistrates Court to make a decision under s 138. In a substantive appeal the [appellant] is practically likely to consider that there has been a non‑disclosure order application made by the prosecution if there is material the defence considers is relevant and should be available and that material has not been the subject of disclosure. Accordingly, through a challenged permission in relation to material that has impacted on the fairness of the trial, the Court of Appeal could, indirectly, bring this court's decision‑making within the supervisory jurisdiction of the Court of Appeal.
The [appellant] submits that indirectly requiring the court's actions to be brought to the attention of the Court of Appeal is only a request for this court to review itself. Although this court can (and has) set up procedures for the ongoing review of s 138(3) and s 138(5) decisions, the [appellant] submits the concerns of Kirk are not satisfied because there is no ability for the Court of Appeal to identify whether errors were made by this court.
A s 138 order is only made when the open court principle needs to be qualified by serious public interest considerations. The making of an order does not impact on the ability of the accused to substantively appeal. The Court of Appeal may indirectly request the District Court's determination be brought to its attention. No orders will be made nor remain in place, unless, following the exercise of judicial discretion, it is appropriate for the order to remain in place.
The primary judge then said that, taking into account the context, meaning and purpose of s 138 of the CPA, she was satisfied that 'the definition of "disclosed" in [s 138(5)] is a reference to disclosing the fact that an order has been made, not the substance of the order itself' [84].

Finally, her Honour noted that '[i]n the event that any orders were made, I have had the opportunity to consider, following conviction and sentence and on review of the relevant transcript, the matters I need to consider in relation to any s 138 of the CPA determination' [85].
The primary judge then made the orders dismissing the appellant's application.

Does the appellant have a right of appeal to this court? - relevant provisions of the Criminal Appeals Act

Section 3 of the Criminal Appeals Act provides that the Criminal Appeals Act is to be read with the CPA.
By s 4(1) of the Criminal Appeals Act, if not defined in the Criminal Appeals Act, words and expressions in the Criminal Appeals Act have the same definitions as in the CPA unless the contrary intention appears.
Section 23(1) of the Criminal Appeals Act confers on an offender convicted of an offence on indictment a right of appeal to the Court of Appeal against any or all of the conviction; the sentence imposed on the offender or any order made as a result of the conviction; and a refusal to make an order that might be made as a result of the conviction. Section 25(2) of the Criminal Appeals Act confers on an accused a right of appeal to the Court of Appeal against an acquittal of a charge in an indictment on account of mental impairment. Section 25A of the Criminal Appeals Act confers on an accused a right of appeal to the Court of Appeal against certain decisions made under the Criminal Law (Mental Impairment) Act 2023 (WA) by a judge of a superior court in relation to a charge of an indictable offence. Section 26(1)(b) of the Criminal Appeals Act confers on an accused who is charged in one indictment with two or more offences a right of appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges. Section 26(3)(b) of the Criminal Appeals Act provides that if two or more accused are charged on indictment with an offence, any accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the accused. Part 3A of the Criminal Appeals Act confers on an offender convicted of an offence on indictment a right to bring a second or subsequent appeal to the Court of Appeal against conviction if there is fresh and compelling evidence or new and compelling evidence relating to the offence. The Criminal Appeals Act does not confer any other right of appeal on an offender convicted of an offence on indictment or an accused who is charged with an offence or offences on indictment.
Section 39(1) of the Criminal Appeals Act provides, relevantly, that this court must decide an appeal on the evidence and material that were before the lower court. Section 39(3) provides, relevantly, that s 39(1) does not affect the power of this court in s 40 to admit evidence.
Section 40(1) of the Criminal Appeals Act provides, relevantly, that for the purposes of dealing with an appeal, this court may do all or any of the following:
(a)'order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal' (s 40(1)(a));
(b)'admit any other evidence' (s 40(1)(e)); and
(c)'exercise any power that the Supreme Court may exercise in a civil case' (s 40(1)(l)).

Does the appellant have a right of appeal to this court? - section 79 and related provisions of the District Court Act

Section 79 of the District Court Act provides, relevantly:
(1)A party to an action or matter who is dissatisfied with —
(a)a final judgment, may appeal from that judgment to the Court of Appeal;
(b)a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act.
…
(3)The Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
Section 6(1) of the District Court Act contains, relevantly, the following definitions:
(a)'action means a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court and includes suit but does not include any criminal proceeding';
(b)'judgment includes a judgment, order or other decision or determination of the Court or a District Court judge'; and
(c)'matter means a proceeding in the Court that is commenced otherwise than by writ'.
Section 80 of the District Court Act provides, relevantly:
No judgment or order of a District Court judge, nor any proceedings brought before him or pending in the Court, shall be removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act.

Does the appellant have a right of appeal to this court? - the appellant's original submissions in the appeal

The appellant's original submissions in the appeal were to the following effect.
Counsel for the appellant submitted that the Criminal Appeals Act does not apply to the primary judge's decision to dismiss the appellant's application.
Counsel noted that the criminal proceedings with which the Criminal Appeals Act is concerned begin with the commencement of the prosecution and end with the accused's acquittal or conviction and sentence.
Counsel submitted:
(a)Section 79 of the District Court Act is not in terms confined to civil proceedings. See Connell v The Queen (No 5);[2] Trajkoski v Director of Public Prosecutions (WA);[3] Harvey v The Queen.[4]
(b)However, s 79 is limited because it 'operates subject to the [Criminal Appeals Act]' (Harvey [8]), or is otherwise read together with the Criminal Appeals Act (Trajkoski [53]), and the Criminal Appeals Act 'covers the field in relation to appeals from interlocutory and final decisions in criminal proceedings to which it applies' (Harvey [10]).
(c)In other words, the rights of appeal of a party to criminal proceedings 'in respect of decisions made in the course of and for the purpose of the criminal proceedings are exhaustively and exclusively covered by the [Criminal Appeals Act]'. See Bartlett v Commonwealth Director of Public Prosecutions.[5]
[2] Connell v The Queen (No 5) (1993) 10 WAR 424, 445 (Malcolm CJ; Franklyn J agreeing).
[3] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [39] (Buss JA; Owen JA agreeing).
[4] Harvey v The Queen [2017] WASCA 43 [7] (Buss P, Mazza & Mitchell JJA).
[5] Bartlett v Commonwealth Director of Public Prosecutions [2013] WASCA 223 [16] (McLure P, Pullin & Mazza JJA).
It was then submitted that this court has recognised that not every decision made in connection with criminal proceedings falls within the field covered by the Criminal Appeals Act, including decisions on:
(a)An application for a drug trafficker declaration (Trajkoski [53]).
(b)An application to set aside a subpoena (at least to the extent that it is a non‑party and not the accused who seeks leave to appeal), notwithstanding that such applications are governed by the CPA and may be taken to be part of the accused's trial. See Australian Crime Commission v Marrapodi.[6]
(c)An application in respect of a suppression order. See Re Her Honour Chief Judge Kennedy; Ex parte Western Australian Newspapers Limited.[7]
[6] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [27] (McLure P; Martin CJ agreeing), [91] ‑ [95] (Allanson J).
[7] Re Her Honour Chief Judge Kennedy; Ex parte Western Australian Newspapers Limited [2006] WASCA 172 [24] ‑ [25] (Steytler P; Roberts‑Smith & McLure JJA agreeing).
Counsel submitted that the decisions in those cases have recognised the existence of a right of appeal where separate proceedings can be identified within a criminal trial (Harvey [10]), consistently with the notion that steps in or incidental to proceedings may themselves constitute a standalone proceeding and therefore a 'matter' within s 79 of the District Court Act (Re Her Honour Chief Judge Kennedy [25]).
It was submitted that the Criminal Appeals Act does not contemplate or deal with orders which may be made by the trial court many months or years after the trial has concluded regarding access to court documents and information. The District Court has a residual jurisdiction to hear and determine applications for permission under s 138(5) of the CPA, notwithstanding that the trial has concluded and an appeal against a resulting conviction has been commenced. The District Court retains the power to make orders regarding access to transcripts or documents on the court file. See, in relation to a non‑party, r 51 of the Criminal Procedure Rules.
Counsel submitted that the primary judge's decision to dismiss the appellant's application was not made in a criminal proceeding and, in any event, does not fall within the scope of the criminal proceedings with which the Criminal Appeals Act is concerned. It is not a decision of a type susceptible to appeal under the Criminal Appeals Act, and nor is it an interlocutory order which has been made as a step along the way towards such a decision. According to counsel, the appellant's application before the primary judge can properly be described as a separate proceeding that was temporally and substantively distinct from the criminal proceedings which began with the filing of the indictment against the appellant in respect of the charged offences and ended when he was sentenced.
It was argued that the primary judge's decision to dismiss the appellant's application was not made in the course of or for the purposes of the criminal proceedings which resulted in the appellant's conviction on 22 August 2022 and his sentence on 2 September 2022. When the appellant's application was made, the criminal proceedings had concluded and the District Court's jurisdiction with respect to those proceedings was spent. The appellant's application gave rise to a new proceeding which had to be (and was) dealt with distinctly.
It follows, according to counsel for the appellant, that the primary judge was not acting within the field covered by the Criminal Appeals Act. Further, the appeal against her Honour's decision is not within the field covered by that Act. In the circumstances, the appeal falls to be dealt with under s 79 of the District Court Act. The existence of a right of appeal under s 79 does not offend against the public policy justification for limiting interlocutory appeals in criminal proceedings. Further, but for a right of appeal under s 79, a party would have no opportunity to appeal from a decision in exercise of the District Court's residual jurisdiction under s 138(5) of the CPA made after the conclusion of criminal proceedings, or otherwise with respect to any application made for access to court documents or to obtain transcripts.
Counsel submitted that different considerations apply to an application under s 138 of the CPA that is made before trial. In those circumstances, the District Court judge would be dealing with the application 'as an aspect of the ongoing criminal proceedings, and the decision may be open to challenge in an appeal against any resulting conviction'. It was submitted that it is not a necessary consequence of the appellant's submissions that any such decision can be challenged separately by an interlocutory appeal under s 79 of the District Court Act in advance of the trial.

Does the appellant have a right of appeal to this court? - the Attorney's original submissions in the appeal

The Attorney's original submissions in the appeal were to the following effect.
Counsel for the Attorney submitted that the Criminal Appeals Act covers the field in relation to appeals from interlocutory and final decisions in criminal proceedings to which the Act applies. See Marrapodi [27]. In other words, the Criminal Appeals Act exhaustively and exclusively provides for the appeal rights of parties to criminal proceedings to which the Act applies. See Bartlett [9].
It was submitted that no appeal from the primary judge's decision in respect of the appellant's application is conferred by the Criminal Appeals Act.
Counsel contended that there is no general right of appeal (with leave) from interlocutory decisions in criminal proceedings to which the Criminal Appeals Act applies. Rather, apart from the specific provisions in s 26 of the Criminal Appeals Act, an accused charged with an indictable offence can only challenge the correctness of an interlocutory decision in any appeal against conviction. See Bartlett [9], [12] ‑ [13]; Harvey [8].
It was contended that there is no general right of appeal (with or without leave) under s 79 of the District Court Act in relation to the residue of decisions or orders made in relation to criminal proceedings that are not covered by the specific appeal provisions of the Criminal Appeals Act. See Connell (440); Allbeury v Corruption and Crime Commission;[8] Harvey [8].
[8] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [137] ‑ [138] (Buss JA).
Counsel argued that although s 79(1) of the District Court Act is not in terms confined to civil proceedings, the provision is constrained by the reach of the Criminal Appeals Act.
It was acknowledged that although the Criminal Appeals Act exhaustively and exclusively provides for the appeal rights of parties to criminal proceedings, this court has recognised that certain decisions made in connection with criminal proceedings on indictment fall outside the scope of the field covered by the Criminal Appeals Act and may be appealed pursuant to s 79(1) of the District Court Act (or s 58(1)(b) of the Supreme Court Act 1935 (WA)). In particular:
(a)a non‑party to criminal proceedings has a right of appeal against a decision refusing to vary or discharge a suppression order (Re Her Honour Chief Judge Kennedy [22] ‑ [24]);
(b)a non‑party has a right of appeal against a decision dismissing an application by the non‑party to set aside a subpoena issued in criminal proceedings (Marrapodi [27]); and
(c)an appeal lies against a drug trafficker declaration made pursuant to s 32A of the Misuse of Drugs Act after an accused has been convicted (Trajkoski [54], [142]).
Counsel argued that the rationale for those exceptions is that the proceedings in question constituted separate proceedings within a criminal trial. See Harvey [10].
It was submitted that, in the case of the first two exceptions, it was critical to the competency of the appeal that it was brought by a non‑party to the criminal proceedings. It was submitted that, in the case of the third exception, the court's conclusion in Trajkoski that there was a right of appeal under s 79(1) of the District Court Act rested, in part, on the interaction between s 32A of the Misuse of Drugs Act and the Criminal Property Confiscation Act 2000 (WA). The consequences of making a drug trafficker declaration are not dealt with by the Misuse of Drugs Act, but by the Criminal Property Confiscation Act. Proceedings under the Criminal Property Confiscation Act are taken to be civil proceedings for all purposes. Although a conviction is a necessary condition for the making of an order under s 32A of the Misuse of Drugs Act, a further step is required before an order may be made under s 32A of the Misuse of Drugs Act. The further step is an application by the Director of Public Prosecutions (WA) or a police prosecutor (not the State of Western Australia) for the making of the declaration. Consequently, the relevant proceedings are not connected to the offender's sentencing process and are not between the State and the offender, but between the Director of Public Prosecutions (WA) or a police prosecutor as the applicant, on the one hand, and the offender, on the other.
Counsel submitted that the appellant's application before the primary judge was made in the District Court's criminal jurisdiction. The application was sourced in the procedural provisions of the CPA which governed the conduct of the appellant's trial and the procedures leading up to and connected with his trial. The parties (and the only potential parties) to the appellant's application and this appeal are the appellant as the accused/offender, on the one hand, and the State, on the other.
It was submitted that the appellant's application sought access to orders dispensing with all or part of the prosecution's disclosure obligations. The application therefore concerned orders which, if made, were made in the course or for the purpose of the criminal proceedings on indictment.
Counsel argued that the primary judge's decision refusing the appellant's application was interlocutory in nature. Ordinarily, the correctness of an interlocutory decision made in criminal proceedings on indictment can only be challenged by the accused/offender in the course of an appeal against conviction or sentence. Save for the limited exceptions in s 26 of the Criminal Appeals Act, that Act makes no further provision for appeals from interlocutory decisions.
Counsel conceded that it might be possible to characterise the appellant's application as a separate proceeding (even if only a separate proceeding within the broader criminal proceedings on indictment) for the purposes of s 79(1)(b) of the District Court Act. However, counsel submitted that this characterisation was not sufficient in and of itself to bring the primary judge's decision outside the scope of the exhaustive and exclusive field provided for by the Criminal Appeals Act. It was submitted that 'something more is required' and that the appellant's application lacked the features of the recognised exceptions to the exhaustive and exclusive field provided for by that Act.
Counsel argued that merely because the appellant's application was made after he was convicted does not alter the correctness of the general proposition that under the Criminal Appeals Act the means of challenging the correctness of an interlocutory decision made in criminal proceedings on indictment is through an appeal against conviction or sentence (as applicable). The availability or otherwise of an appeal against an interlocutory decision made in criminal proceedings should not turn on the timing of the application.
Accordingly, so it was submitted, the Criminal Appeals Act covers the field in relation to the decision the subject of this appeal. None of the exceptions that might otherwise provide a right of appeal under s 79(1) of the District Court Act apply. No right of appeal (with or without leave) against the primary judge's decision is available under s 79(1) or at all. The appellant's appeal is incompetent and the Appeal Notice should be struck out. It may be open to the appellant to challenge the primary judge's decision in his pending appeal against conviction as a particular of an alleged miscarriage of justice.

Does the appellant have a right of appeal to this court? - the State's original submissions in the appeal

The State's original submissions in the appeal were similar to those of the Attorney.
Counsel for the State emphasised that the making of a drug trafficker declaration falls outside the legislative scheme of which the CPA and the Criminal Appeals Act are components in that, relevantly to this appeal:
(a)a drug trafficker declaration is not a type of sentence which may be imposed on a natural person (Trajkoski [57]);
(b)the Sentencing Act does not refer to the drug trafficker declaration provisions, or any other provisions, of the Misuse of Drugs Act (Trajkoski [58]);
(c)there is a disconnect between s 32A of the Misuse of Drugs Act and the sentencing process (Trajkoski [60]); and
(d)there is a difference between the parties to the criminal trial that resulted in the conviction and sentence, on the one hand, and the parties to an application for a drug trafficker declaration, on the other (Trajkoski [61] ‑ [62]).

By contrast, in this appeal there is no difference between the parties to the appellant's application and the parties to the criminal proceedings. Only the State, in its capacity as the prosecutor at first instance, may bring an application for a non‑disclosure order under s 138 of the CPA. Only the accused may seek permission for access to the order once a non‑disclosure order has been made.
It was submitted that a core component of the reasoning in Marrapodi and Re Her Honour Chief Judge Kennedy is that the parties to the 'matter' the subject of the appeals in those cases were different from the parties to the underlying criminal proceedings. The proposition that the Criminal Appeals Act covers the field with respect to interlocutory and final decisions of primary courts in criminal matters is confined to cases where the parties, namely the State (as the prosecutor) and the accused, are identical.
Counsel argued that the fact that the 'matter' the subject of the appellant's appeal was commenced after his trial was completed and his sentence was imposed is not to the point. The only potential parties to the 'matter' are the State and the offender. Unlike cases concerning summonses or suppression orders, there are no potential third parties who, despite not being a party to the underlying criminal proceeding, nevertheless have standing in such matters and, if a statutory provision such as s 79(1) of the District Court Act applies, also have the right to commence an appeal.
It was submitted that the appellant's application the subject of his appeal was sourced in the procedural provisions of the CPA which governed the conduct of his trial. The only potential parties can be the State and the accused. Accordingly, the appeal cannot fall outside the scope of the field covered by the Criminal Appeals Act.
Counsel submitted that the appellant's appeal is incompetent and the Appeal Notice should be struck out.

Orders made by the court on 15 August 2024

At the oral hearing on 15 August 2024, the court raised with counsel for the appellant whether the appellant had standing under s 138 of the CPA to make the application to the primary judge in that, when the application was made, the appellant had ceased to be an accused and had become an offender. The question of standing was relevant in that, if the appellant did not have standing to make the application to her Honour, he would not have a right of appeal to this court.
Upon the completion of the oral hearing, the appellant applied for leave to file and serve supplementary written submissions on the question of standing.
The court then made orders to the following effect:
(a)By 23 August 2024, the appellant may file and serve supplementary written submissions on whether the accused or an offender may make an application for permission under s 138(5) of the CPA.
(b)By 2 September 2024, each of the State and the Attorney may file and serve supplementary written submissions in response.
Subsequently, the parties sought extensions of the times specified in the orders made on 15 August 2024. Eventually, the appellant filed supplementary written submissions on 3 October 2024 and each of the State and the Attorney filed supplementary written submissions on 15 November 2024.

The appellant's notice dated 30 August 2024 under s 78B of the Judiciary Act

On 30 August 2024, the appellant filed a notice under s 78B of the Judiciary Act. The appellant served the notice on the Attorneys‑General of the Commonwealth, each of the States, the Australian Capital Territory and the Northern Territory.
The notice asserted that the appeal before the court involves a matter arising under the Commonwealth Constitution or involving its interpretation, within the meaning of s 78B.
The notice specified the matter as follows:
Does s 138(5) of the Criminal Procedure Act 2004 (WA) permit a court to not give notice to an accused person of an order made by a court in closed court and in the absence of the accused which affects the conduct of his criminal proceedings[?]
If the answer to the above question is 'yes', is section s 138(5) of the Criminal Procedure Act 2004 (WA) invalid as conferring upon a State court a function or power which is incompatible with and repugnant to the integrated system of courts prescribed by Chapter III of the Commonwealth Constitution[?]
If the answer to the above question is 'yes', is s 138(5) capable of being read down to avoid its constitutional invalidity[?]
The notice then stated that, '[r]elevantly to the matter arising under the Constitution, the appellant seeks the making of the following orders:
a.Orders 1 and 2 of the orders made by the [primary judge] on 5 June 2024 be set aside.
b.The appellant be provided with notice of any order previously made in matter IND 1403 of 2020 in his absence, pursuant to s 138(3) of the Criminal Procedure Act 2004 (WA).
c.The appellant be provided with a copy of any order previously made in matter IND 1403 of 2020 in his absence, pursuant to s l38(3) of the Criminal Procedure Act 2004 (WA).
None of the Attorneys (apart from the Attorney General for Western Australia who had already intervened) have sought to intervene in the appeal.

Does the appellant have a right of appeal to this court? - the appellant's supplementary written submissions

Counsel for the appellant submitted that the appellant had standing to make the application that was considered and dismissed by the primary judge. The question of standing involves an enquiry into whether the District Court retained a residual authority to decide whether a party (or perhaps a non‑party) may have access to an order of the court that has been made in closed court and in the absence of an accused, pursuant to s 138 of the CPA. It was submitted that those questions require a consideration of two issues. First, whether s 138 abrogates or modifies the implied or inherent power of the District Court to control who may have access to its records. Secondly, whether the CPA, either expressly or impliedly, purports to permit the District Court to decide that a party (that is, an accused) may not have notice, in its barest sense, of an order that has been made in criminal proceedings relating to that person. According to counsel, there is a 'constitutional dimension' to the second issue. It was submitted that notice to a party of an order made by a court in criminal proceedings in which the party is an accused is 'an essential ingredient of the exercise of judicial power' which may not be removed by Parliament. Accordingly, even if s 138, on its proper construction, permits such an approach, s 138 must be read to the contrary to avoid its invalidity.
Counsel contended that:
(a)section 138(5) constitutes a prohibition on divulging the contents of an order made in an accused's absence, save and except where the court gives permission for that to occur;
(b)the prohibition applies to all persons, including the staff of the court, both while the relevant proceedings are subsisting and after those proceedings have ended; and
(c)the court's authority to decide whether an accused may have access to the contents of an order, is either:
(i)sourced in s 138, which gives the court residual jurisdiction to decide whether there should be permission for an order to be given or disclosed to an accused, including after the relevant proceedings have ended; or alternatively,
(ii)sourced from the court's inherent or implied jurisdiction which, by virtue of s 138(5), is conditioned by the requirements of s 138(5), namely that the court decide, before an order may be given or disclosed, that permission ought to be granted.
Counsel argued that if, contrary to the construction advanced by the appellant, it is permissible to construe s 138 as permitting a court to not give notice to an accused of an order made under s 138 in the accused's absence, the court nevertheless retains a residual power, either within s 138 or within the court's inherent or implied jurisdiction, to give permission for the order to be given or disclosed to the accused.
Accordingly, so it was submitted, insofar as the appellant's standing to seek permission is concerned, the appellant had standing to seek permission.
It was submitted that the appellant's application to the primary judge was, in addition to his request for permission, an application for orders that he be given:
(a)notice of any decision made in his absence pursuant to s 138;
(b)the record of the proceedings relating to any application of which he did have notice; and
(c)the record of the proceedings relating to any application made in the District Court or the Magistrates Court of which the appellant did not have notice.
Thus, so it was submitted, irrespective of whether the appellant had standing to apply for 'permission' pursuant to s 138, the primary judge had authority to determine the appellant's application and, it follows, the appellant had standing to seek the orders he sought.
As to the nature of, and access to, court records generally:
(a)Counsel submitted that an order of the court is a public document to which any member of the public may have access, unless a statute or the court itself restricts access. See Titelius v Public Service Appeal Board;[9] Cummings v Fairfax Digital Australia and New Zealand Pty Ltd.[10]
(b)Counsel submitted that a person will have the right to inspect other documents which have been used in open court if the person has a proprietary interest in the documents or needs to use the documents as evidence in other legal proceedings. See Re Hogan; Ex parte Channel Seven Perth Pty Ltd.[11]
(c)However, counsel accepted that the right of a party to access documents in their own proceedings may also be restricted or modified by statute, subject to constitutional limitations and the dictates of procedural fairness.
[9] Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201 [96] ‑ [100] (Ipp J).
[10] Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173 [215] ‑ [216] (McColl JA; Beazley P & Simpson AJA agreeing).
[11] Re Hogan; Ex parte Channel Seven Perth Pty Ltd [2008] WASC 113 [21] (Blaxell J).
As to the District Court's power to control and manage access to its records in criminal proceedings, counsel submitted:
(a)The District Court is a superior court of record. See s 8 of the District Court Act. Subject to presently irrelevant exceptions, the District Court in both its criminal and civil jurisdiction has all the jurisdiction and powers of the Supreme Court. See s 42(2) and s 50(1) of the District Court Act. The District Court therefore has the same inherent power as the Supreme Court to control and manage access to court records.
(b)The CPA and the Criminal Procedure Rules are premised on an assumption that the District Court (as well as the Supreme Court) has such an inherent power. That explains why the legislation does not (apart from r 43 of the Criminal Procedure Rules) make provision for access to court records by a party to criminal proceedings.
(c)Absent any statutory provision regulating access by an accused to court records, the ordinary position prevails. An accused has a general entitlement to access the District Court's file relating to the accused's criminal proceedings, including accessing any orders made by the District Court.
(d)Rule 43(1) provides that an accused 'is entitled to receive, free of charge and as soon as it becomes available, one copy of the record, or of the certified transcript of the record, of any proceedings directly concerning him or her'. That provision is consistent with an accused having a general entitlement to access orders and records in their criminal proceedings. However, the provision should properly be understood as a rule regulating the fees to be charged for records and transcript, rather than a rule granting an accused access to records and transcript where no such access previously existed.
According to counsel, in the absence of any specific court order or statutory provision to the contrary:
(a)an accused is entitled, as of right, to access any orders made by the District Court in the accused's criminal proceedings;
(b)an accused is entitled, as of right, to obtain a copy of the record or transcript of any hearing in the accused's criminal proceedings;
(c)an accused is entitled, as of right, to access the court file in respect of the accused's criminal proceedings;
(d)any court officer would be obliged (or at least free) to provide an accused with orders, transcript or access to the court file in the accused's criminal proceedings, and could not validly be instructed by the court's administrative staff not to do so; and
(e)the District Court has an inherent power to make orders granting or restricting an accused's access to orders, transcript and the court file more generally.
As to the purpose and continuing nature of the prohibition in s 138(5), counsel submitted that the prohibition serves three key purposes. First, the prohibition seeks to reverse the usual position whereby an accused has access to the court order unless the court specifically decides otherwise. Instead, an accused will not have access to the court order unless the court grants permission. Section 138(5) seeks, in effect, to ensure that an order made under s 138 in the accused's absence is given or disclosed to the accused only after a judicial officer has specifically turned his or her mind to the question of whether it is appropriate for that to occur. The effect of s 138(5) is not to displace the District Court's inherent power to manage access to its records, but rather to condition it. Secondly, s 138(5) creates a specific statutory prohibition which prevents District Court registry staff from being obliged (or at least free) to give an accused access to an order made under s 138 in the accused's absence. The prohibition enables the District Court to adopt valid administrative instructions to registry staff and enforce those instructions by way of disciplinary action. Thirdly, s 138(5) prevents other persons with access to or knowledge of an order made under s 138 in the accused's absence from giving or disclosing the order to the accused.
It was submitted that each of those three purposes are in service to the overarching purpose of s 138(5) which is, in effect, to safeguard the information the subject of the non‑disclosure order. Consistently with that overarching purpose, s 138(5) continues to operate even after the conclusion of the relevant criminal proceedings. If that were not the case, the prohibition in s 138(5) would cease and the accused would again have a right of access to, and a right to be given a copy of, any order made in his or her absence.
Counsel contended that there is no temporal limitation in the text of s 138(5), apart from the text identifying the accused as the person to whom the order must not be given or disclosed. However, the CPA defines 'accused' to mean 'a person alleged in a prosecution notice or indictment to have committed an offence', and does not identify the person the subject of criminal proceedings by any different name at a later stage in the proceedings. Counsel referred to s 148 and s 150 of the CPA and submitted that, in both cases, the term 'accused' is used to identify the person who was the subject of criminal proceedings even after the 'accused' has been convicted or acquitted. Similarly, so it was submitted, in the context of s 138(5), the use of the term 'accused' does not import any temporal limitation, but merely identifies the person who, first, was absent when the order was made and, secondly, the person to whom the order must not be given or disclosed.
Counsel argued that the prohibition within s 138(5), properly construed, applies only to the content of the order, and does not prohibit an accused from being given notice that an order under s 138 has been made in his or her absence.
It was submitted that neither the concept of 'giving' nor the concept of 'disclosing' in s 138(5) embraces the further concept of 'revealing the existence of' the order. To construe s 138(5) as prohibiting notice of an order requires the reading in of words, so that the text reads 'the order must not be given or [its existence] disclosed to the accused'. It was submitted that there is no warrant for reading in those words to displace the ordinary meaning of the provision as enacted. If s 138(5) applies only to the content of an order and not to its existence, the provision is not radically inconsistent with the manner in which courts ordinarily operate in respect of ex parte hearings and sensitive material. Further, if s 138(5) is construed to apply only to the content of an order and not merely its existence, the operation of the provision is consistent with fundamental principles of procedural fairness and open justice. Further, s 138 contemplates that an accused may seek permission to access an order made in his or her absence. It is consistent with that contemplation that an accused be given notice of an order, so that the accused may seek permission, or otherwise apply for the order to be amended or cancelled.
As to the 'constitutional dimension' raised by counsel in relation to whether the CPA, either expressly or impliedly, purports to permit the District Court to decide that a party (that is, an accused) may not have notice, in its barest sense, of an order that has been made in criminal proceedings relating to that person, it was submitted that:
(a)it is a principle of construction that Parliament does not intend for its statutes to exceed constitutional limits: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police;[12] and
(b)a corollary of that principle of construction is that legislation should be construed, so far as the text permits, to keep the legislation within constitutional limits.
[12] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [11] (Gummow, Hayne, Heydon & Kiefel JJ).
It was submitted that if it is open to construe s 138 as permitting a court to not give notice to an accused of a decision made in their criminal proceedings, then constitutional considerations mandate the avoidance of that constructional choice. Counsel advanced two separate but interrelated reasons in support of that submission. First, because a party cannot review a decision that the party does not know exists, such an outcome impermissibly curtails the capacity of the Supreme Court to review decisions made by the District Court or the Magistrates Court for jurisdictional error. Also, on the same basis, the High Court's capacity to hear appeals from the Supreme Court would be impermissibly impaired. Secondly, notice to a party of a decision made in their proceedings is an essential requirement of the judicial process. Legislation that would have the effect of abrogating that requirement results in the court being constituted in a manner that is repugnant in a fundamental degree to the standard of judicial process that is required of a court befitting the constitutional description of the 'court of a State' within s 77(iii) of the Constitution. Counsel raised each of those matters because, on the construction advanced by the Attorney and the State, the effect of s 138(5) is, on the one hand, to cloak the making of an order with absolute secrecy so as to immunise it from review by or an appeal to a superior court and, on the other, to enable a court (including a superior court) to act unfairly, without transparency and with the discretion in effect to immunise their decision from any review.
Counsel noted that in Kirk v Industrial Relations Commission of New South Wales[13] the High Court held that legislation which deprives the Supreme Court of a State of its jurisdiction to review decisions of inferior courts for jurisdictional error is invalid. It was submitted that because a person cannot review or appeal an order that the person has been prohibited from knowing exists, the practical effect of s 138(5) is substantively to impair the ability of the Supreme Court to review certain decisions made under s 138 for jurisdictional error. Counsel acknowledged that the issue only arises if the prosecutor makes an ex parte application; and if the court grants the order sought on a ex parte basis; and if the court does not also of its own motion grant permission for the accused to be given or disclosed the order. However, that scenario was the only scenario in which s 138(5) has any effect. It is the whole of its sphere of operation. Accordingly, the validity of s 138(5) can only be, and must be, assessed by reference to its practical effect in that scenario. The intent and effect of s 138(5) is 'to keep the accused in the dark so they do not even know there is an order which can be reviewed'. Although the restriction in s 138(5) is of a different type from that considered in Bodruddaza v Minister for Immigration and Multicutural Affairs[14] and Graham v Minister for Immigration and Border Protection,[15] the practical effect on the ability of an accused to seek review, and the ability of the Supreme Court to carry out such a review, is at least to the same degree. Section 138(5) operates in practice to shield the purported exercise of power from judicial scrutiny. In these circumstances, if s 138(5) is construed as applying to the existence of an order and not merely its contents, the provision is invalid.
[13] Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
[14] Bodruddaza v Minister for Immigration and Multicutural Affairs [2007] HCA 14; (2007) 228 CLR 651.
[15] Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1.

Does the appellant have a right of appeal to the court? - s 79(1) of the District Court Act

Section 79 of the District Court Act (which I have set out at [49] above) is concerned with appeals from judgments of the District Court to the Court of Appeal.
Section 79(1)(a) provides, relevantly, that a party to 'an action or matter' who is dissatisfied with a final judgment may appeal from that judgment to this court. Section 79(1)(b) provides that a party to 'an action or matter' who is dissatisfied with a judgment that is not a final judgment may, by leave of this court, appeal to this court. By s 79(3), this court has jurisdiction to hear and determine the appeal accordingly.
In s 6(1) of the District Court Act, 'action', 'matter' and 'judgment' are defined. The term 'action' means 'a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court and includes suit but does not include any criminal proceeding'. The term 'matter' means 'a proceeding in the [District] Court that is commenced otherwise than by writ'. The term 'judgment' is defined to include 'a judgment, order or other decision or determination of the [District] Court or a District Court judge'.
In s 79(1), 'action' is confined to civil proceedings. By contrast, in s 79(1), 'matter' is capable of including a criminal proceeding as well as a civil proceeding.
However, s 79(1) is subject to and confined by the operation of the Criminal Appeals Act.
It is well established that the Criminal Appeals Act exhaustively and exclusively provides for the rights of appeal of parties to criminal proceedings in relation to statutory offences. See Allbeury [16], [184]; Marrapodi [27]; Bartlett [9]; Harvey [10].
It has been held that the Criminal Appeals Act does not cover the field in relation to the rights of appeal of non‑parties to criminal proceedings. In particular, it has been held that:
(a)a non‑party who makes an application to vary or discharge a suppression order in criminal proceedings may appeal under s 79(1)(b) read with s 79(3) of the District Court Act against a decision of the District Court dismissing the application: Re Her Honour Chief Judge Kennedy [24] ‑ [25];
(b)a non‑party who makes an application to set aside a document summons addressed to the non‑party in criminal proceedings may appeal under s 79(1)(b) read with s 79(3) of the District Court Act against a decision of the District Court dismissing the application: Marrapodi [27]; and
(c)an offender in respect of whom the District Court makes a drug trafficker declaration, pursuant to s 32A(1) of the Misuse of Drugs Act, on the application of the Director of Public Prosecutions or a police prosecutor, may appeal under s 79(1)(a) read with s 79(3) of the District Court Act against the making of the declaration, in that, relevantly, neither the Director of Public Prosecutions nor a police prosecutor is a party to the criminal proceedings which culminated in the conviction and sentencing of the offender: Trajkoski [53] ‑ [63].
In the present case, the appellant and the State were parties to the criminal proceedings in which the appellant was convicted of and sentenced for the charged offences.
Section 138 of the CPA is part of the substantive and procedural framework established by the CPA for, amongst other things, the charging of an accused, the making and hearing of interlocutory applications in connection with the charged offences and any pending trial, and the conduct of any trial of the accused.
As I have mentioned, s 138(2) provides that the powers in s 138 may be exercised by a court on its own initiative or on an application by a 'party to a case'. The term 'case' is defined in s 3(1) of the CPA to mean 'a prosecution, or any proceedings in a court that involve its criminal jurisdiction'. It is apparent that s 138(2), in referring to 'an application by a party to a case', contemplates that applications under s 138 will be made in the context of a prosecution or proceedings that involve a court's criminal jurisdiction.
The appellant's application before the primary judge under s 138 was made within the substantive and procedural framework of s 138 after he was convicted and sentenced. The appellant and the State were parties to the application.
The concept of criminal proceedings, in the context of the proposition that the Criminal Appeals Act exhaustively and exclusively provides for the rights of appeal of parties to criminal proceedings in relation to statutory offences, includes any proceedings in which a judicial decision is made on any question that arises between the accused or the offender, on the one hand, and the State, on the other, in connection with:
(a)the charged offences;
(b)the procedure for their determination; or
(c)any previous interlocutory judicial decision concerning the prosecution of the charged offences or the procedure for their determination.
See Ex parte Woodhall;[68] Carter v Managing Partner, Mallesons Stephen Jaques;[69] Director of Public Prosecutions v Deeks.[70]
[68] Ex parte Woodhall (1888) 20 QBD 832, 835 (Lord Esher MR).
[69] Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, 171 ‑ 172 (Malcolm CJ; Franklyn J agreeing).
[70] Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523, 527 ‑ 531 (Kirby P; Handley JA agreeing).
If the appellant had made the application under s 138 before he was convicted, the application and the proceedings in respect of it would have been part of the criminal proceedings in which the appellant was convicted of and sentenced for the charged offences, in that the application and the proceedings in respect of it would have been in connection with the prosecution of the charged offences.
The application that the appellant in fact made before the primary judge under s 138 after he was convicted and sentenced, and the proceedings in respect of it, were part of the criminal proceedings in which the appellant was convicted of and sentenced for the charged offences, in that the application and the proceedings in respect of it were in connection with the appellant's prosecution for the charged offences, including any previous interlocutory judicial decision under s 138 concerning the prosecution of the charged offences.
Accordingly, in my opinion, the orders made by her Honour on the appellant's application under s 138 were part of the criminal proceedings in which the appellant was convicted of and sentenced for the charged offences. The Criminal Appeals Act exhaustively and exclusively provides for the rights of appeal of the appellant and the State in relation to those proceedings. As I have explained, no right of appeal is conferred on the accused/offender by the Criminal Appeals Act solely in respect of the making of an order under s 138(3) itself or solely in respect of a refusal to grant permission under s 138(5) itself. Accordingly, the Appeal Notice filed by the appellant in this court on 26 June 2024 should be struck out on the basis that the appeal is incompetent.

Does the appellant have a right of appeal to the court? - the Kirk issue and the Kable issue

My conclusions that:
(a)an accused (and, after he or she is convicted, an offender) is entitled to know the fact that an order has been made under s 138(3) in his or her absence;
(b)an accused (and, after he or she is convicted, an offender) is entitled to make an application under s 138(5) for permission that an order made under s 138(3), in his or her absence, be given or disclosed to the accused; and
(c)it is open to an offender (if there is a proper basis for the allegation) to allege in an appeal against conviction that an order made under s 138(3) of the CPA, further or alternatively a refusal to grant permission under s 138(5), resulted in a miscarriage of justice at the offender's trial,
in the context of the issue raised by the registrar's notice to attend dated 9 July 2024 (namely, whether the Appeal Notice should be struck out on the ground that the appellant does not have a right of appeal against the primary judge's decision) make it unnecessary to consider the submissions of the parties in relation to the Kirk issue and the Kable issue.
The appellant's application before her Honour included an application that he be informed about whether any orders were made by the District Court or the Magistrates Court, in his absence, pursuant to s 138(3)(a). The question arises whether the appellant, having regard to these reasons, may make a second application in the District Court for that relief. A second or subsequent interlocutory application may constitute an abuse of process unless there are special or exceptional circumstances that make it in the interests of justice to entertain the second or subsequent application.
Relevantly, for present purposes, Mason P observed in Nominal Defendant v Manning[71] that there will be cases in which 'the attempt to revisit a contested interlocutory application without change of circumstances or genuinely fresh evidence will not amount to an abuse of process'. His Honour elaborated [17]:
For example, new and unexpected appellate authority may have arrived on the scene.
Mason P was in dissent in Manning, but not in relation to that example.
[71] Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 [17].
In Smithwick v The State of Queensland,[72] Dutney J cited the observations of Mason P in Manning and then said [15]:
While readily acknowledging that successful second attempts at interlocutory applications may be rare this seems to me to be such a case. I can see no logical reason why the applicant should be put to the cost and delay of an appeal if a decision of the Court of Appeal has, in truth, resulted in a change in the understanding of the common law which renders the first decision obsolete. I therefore consider that there has been sufficient material change in circumstances to permit the present application to be heard.
See also Melbourne City Investments Pty Ltd v Leighton Holdings Limited.[73]
[72] Smithwick v The State of Queensland [2001] QSC 175.
[73] Melbourne City Investments Pty Ltd v Leighton Holdings Limited [2015] VSC 119 [41] ‑ [42] (Sifris J).
I am satisfied that, in the circumstances, it is open to the appellant to make another application to the District Court, in accordance with r 23 of the Criminal Procedure Rules, for the purpose of ascertaining whether in fact an order under s 138(3) was made, on the application of the prosecutor, in his absence, before he was convicted.
If any such order was made, it is open to the appellant (if there is a proper basis for the allegation) to allege in his pending conviction appeal that the order under s 138(3) resulted in a miscarriage of justice at his trial.

Conclusion

The appeal is incompetent. The Appeal Notice should be struck out and the appeal should be dismissed.

MITCHELL & HALL JJA:

We have had the considerable advantage of reading a draft of Buss P's reasons in this appeal. The relevant background, statutory provisions and the parties' submissions are set out at [4] - [154] of his Honour's reasons.

Competence of the appeal

We agree with Buss P, essentially for the reasons explained by his Honour at [276] - [290] above, that no appeal lies to this court from a refusal by a judge of the District Court of Western Australia to give permission under s 138(5) of the Criminal Procedure Act 2004 for an order made under s 138(3) of that Act in the absence of an accused to be given or disclosed to the accused.
Section 138 of the Criminal Procedure Act forms an integral part of the disclosure regime provided for in that Act. The provisions which impose a 'disclosure requirement' identified in s 138(1) in terms require disclosure to be given at a point prior to the accused's conviction or acquittal of a charged offence. Section 35 deals with disclosure by the prosecutor as soon as practicable after a prosecution notice charging the accused with an indictable offence is served on the accused. Section 42, s 61 and s 95 require disclosure of material which the prosecutor receives or obtains 'before the charge is finally dealt with'.[74] As such, s 138 is relevantly concerned with dispensing with prosecutorial disclosure requirements that are imposed prior to the charge being finally dealt with. As such, s 138 deals with the trial process up to the point of conviction, acquittal or discontinuance of the charge.
[74] See Criminal Procedure Act s 42(6), s 61(7) and s 95(9).
If the exercise of the discretion under s 138(3)(a) of the Criminal Procedure Act, to dispense with a disclosure requirement imposed on a prosecutor, miscarries then that may give rise to a miscarriage of justice in the accused's trial. If the accused is convicted of the offence, he or she may appeal against his or her conviction under s 23(1)(a) of the Criminal Appeals Act 2004 (WA) on the ground, provided for in s 30(3)(c) of that Act, that there was a miscarriage of justice. In such a case, the accused may contend that a miscarriage of justice arose due to the non-disclosure of evidentiary material that ought to have been disclosed to him or her. However, none of the provisions of the Criminal Appeals Act confer a right of appeal against the exercise of powers conferred on a trial court by s 138 of the Criminal Procedure Act.
Section 79(1)(b) of the District Court of Western Australia Act 1969 (WA) confers a right of appeal to this court from a judgment of the District Court that is not a final judgment, subject to the grant of leave to appeal. However, it is established that s 79 operates subject to the Criminal Appeals Act. As this court noted in Harvey v The Queen:[75]
Part 3 div 2 of the Criminal Appeals Act was enacted in a context where it was established that cognate appeal provisions previously found in the Western Australian Criminal Code exhaustively stated the rights of appeal available in respect of decisions in criminal proceedings on indictment. Sections 23 - 25 of the Criminal Appeals Act were based on the former Criminal Code provisions. In our view, they should be construed in the same manner, so that generally an accused person in criminal proceedings on indictment has no right of appeal in respect of interlocutory orders unless and until they are convicted. At the point of conviction, the convicted person can challenge an interlocutory decision by appealing against conviction on the ground that the judge made a wrong decision on a question of law or there was a miscarriage of justice. In that manner the provisions of the Criminal Appeals Act reflect the public policy against the fragmentation of criminal proceedings by appeals against and other challenges to interlocutory decisions. (citations omitted)
[75] Harvey v The Queen [2017] WASCA 43 [8].
A right of appeal under s 79 of the District Court of Western Australia Act has been recognised to exist where separate proceedings can be identified within a criminal trial.[76] However, in our view s 138 of the Criminal Procedure Act does not provide for proceedings which are separate from the trial in which the order under s 138 is made. It is rather concerned with disclosure rights and obligations of the parties to a criminal proceeding prior to the criminal charge being finally dealt with. As such, s 138 is integrally concerned with the trial process. We accept that there is nothing in the terms of s 138(5) which would prevent the permission referred to in that sub-section being sought or given after the charge is finally dealt with. However, that possibility does not characterise the exercise of power under s 138 as separate proceedings within a criminal trial. Therefore, s 79 of the District Court of Western Australia Act does not confer a right of appeal against an order made under s 138 of the Criminal Procedure Act or a refusal to make such an order. As such, s 79 of the District Court of Western Australia Act does not confer a right of appeal against a refusal to give permission under s 138 of the Criminal Procedure Act.
[76] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 (drug trafficker declaration); Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [27] (third party proceedings in relation to subpoenas); Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172 [24] ‑ [25] (suppression orders).
For the above reasons, we agree with Buss P that the present appeal must be dismissed as incompetent.

Other observations

Having concluded that the present appeal must be dismissed as incompetent, we are somewhat hesitant to further consider the operation of s 138 of the Criminal Procedure Act. Any such observations must be obiter. However, we are satisfied that it is appropriate to make the following observations as to the operation of the provisions, for the future guidance of the parties to this appeal and those who may deal with future applications under s 138 of the Criminal Procedure Act.

Section 138 and public interest immunity

Section 138 of the Criminal Procedure Act provides for orders modifying or dispensing with the broad range of disclosure obligations otherwise imposed on both the prosecution and an accused. The prosecutor's disclosure obligations extend to 'evidentiary material' as defined in s 42(1) of the Criminal Procedure Act. This evidentiary material includes statements in the possession of the organisation or person who investigated the offence by 'any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence'. It also includes 'a copy of every other document or object that may assist the accused's defence'. The powers conferred by s 138 are not confined to cases where there is some secret or sensitive aspect to the evidentiary material that would otherwise be subject to the disclosure obligation.
Under s 137A of the Criminal Procedure Act, the operation of s 42, s 61 and s 95 of that Act is relevantly subject to 'the law on public interest immunity'. As such, a prosecutor would not be obliged to disclose evidentiary material which is properly the subject of a claim of public interest immunity, which may include evidentiary material that would reveal the identity of a confidential police informer.[77] However, determining a claim for public interest immunity involves balancing the public interest that harm not be done by the disclosure of documents against the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[78] It is understandable that a prosecutor may make an application under s 138 even where the State may claim public interest immunity, so that the court can make an assessment of whether, on balance, it is against the public interest to disclose the documents. Doing so not only protects the prosecutor against claims of improper non-disclosure but also advances the administration of justice by providing a mechanism by which a claim of public interest immunity by the executive government may be scrutinised by the courts.
[77] See, for example, Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 673 - 675.
[78] Sankey v Whitlam (1978) 142 CLR 1, 38 - 44.
Where a claim for public interest immunity is established, this may constitute 'good reason' for the court to dispense with the requirement to disclose the relevant material within the meaning of s 138(3)(a)(i) of the Criminal Procedure Act. The fact that evidence protected by public interest immunity would not be disclosable or admissible in any event may provide a basis for the court to be satisfied that no miscarriage of justice will result from dispensing with the disclosure requirement within the meaning of s 138(3)(a)(ii) of the Criminal Procedure Act.

Notification to the accused prior to determination of a s 138 application

While orders under s 138 may comprehend documents which may properly be the claim of public interest immunity, they are not confined to documents of that kind. Even where the relevant documents may be subject to public interest immunity, there will not always be an imperative for the hearing of an application under s 138 of the Criminal Procedure Act to be conducted in the absence of an accused. Nonetheless, there may be cases where the public interest sought to be protected by an order under s 138 will require the application for the order to be heard without notice to, and in the absence of, the accused. For example, it may be that once the existence of a confidential police informer within a criminal organisation is revealed, the identity of the informer could be readily deduced by persons in the organisation. However, this will not always be the case, even where the public interest relates to the protection of the identity of a confidential police informer. Claims for public interest immunity are often litigated with notice to the parties to the relevant proceeding, with the possibility of the court inspecting the documents claimed to be privileged for the purpose of determining the privilege claim without the parties having access to the document.
Section 138(4) of the Criminal Procedure Act provides that an application for an order under s 138 'may be made by the prosecutor without notice to the accused and may be dealt with in the absence of an accused'. The section does not expressly say whether it is the court or the prosecutor who determines whether an application which may be made without notice to the accused should be made without notice to the accused. In the absence of clear language to the contrary, we would not construe this provision as depriving the court of the capacity to control its own procedures. In our view, the question of whether an application for an order under s 138 should be determined without notice to the accused and in the absence of the accused is a question for the court to determine.
Rule 22 of the Criminal Procedure Rules 2005 (WA) is consistent with that construction of s 138(4) of the Criminal Procedure Act. Rule 22(1) provides for the prosecutor to apply for an order that a s 138 application be heard in private and in the absence of the accused. Rule 22 contemplates that the court may either:
(a)grant the application under r 22(1), in which case it may proceed to hear the s 138 application without notice to and in the absence of the accused; or
(b)refuse the application under r 22(1), in which case the s 138 application must be adjourned and served on the accused.
When an application is made under r 22(1) for an order that a s 138 application be heard in private and in the absence of the accused, the court will need to consider whether the public interest sought to be protected by the order dispensing with a disclosure requirement will be compromised if notice of the s 138 application is given to the accused. The court will appropriately consider whether steps can be taken to preserve the confidentiality of the material over which public interest immunity is claimed while providing the accused with some opportunity to be heard on the claim.

Providing a copy of the s 138 order to the accused

Section 138(5) of the Criminal Procedure Act provides that, if an order is made under s 138 in the absence of the accused, 'the order must not be given or disclosed to the accused without the permission of the court'. This qualifies the ordinary entitlement of an accused under r 43(1) of the Criminal Procedure Rules to receive a copy of the record of any proceedings concerning him or her. Section 138(5) prevails over r 43(1) to the extent of any inconsistency.[79]
[79] See Interpretation Act 1984 (WA) s 43(1).
Section 138(5) of the Criminal Procedure Act does not specifically provide a sanction for breach of the prohibition it creates. There may also be a question, which it unnecessary for us to resolve, as to whether giving or disclosing an order made under s 138 in the absence of the accused without the permission of the relevant court might constitute:
(a)an offence against s 177 of the Criminal Code (WA); or
(b)a breach of discipline if done by a public sector employee, such as a member of the court staff, with consequences under the Public Sector Management Act 1994 (WA).[80]
[80] See Public Sector Management Act s 9(1)(a), s 80(b) and s 81.
As a matter of ordinary language, the reference in s 138(5) to an order being given or disclosed to an accused comprehends both communicating the fact that an order has been made and communicating the contents of an order. The context in which s 138(5) appears confirms that the language is used in its ordinary sense. The context is that an application for an order under s 138 will, at least generally, only be made without notice to and in the absence of the accused where the court is satisfied that the public interest sought to be protected by dispensing with the disclosure requirement will be compromised by the accused being made aware of the fact that an order under s 138 has been sought. That public interest could equally be compromised by the accused being informed that an order under s 138 has been made. The context also includes the prohibition in s 138(4a) against a s 138 application made without notice to the accused being dealt with in open court, so that any order made under s 138(3) in the absence of an accused will be made in closed court. In our view, in this context the prohibition against giving or disclosing an order made under s 138 to an accused without the permission of the relevant court extends to communicating the fact that an order under s 138 has been made.
It follows that we do not consider that the Chief Judge erred in the present case by taking the view that the appellant was not entitled to be informed about whether any orders were made by the District Court or the Magistrates Court, in his absence, pursuant to s 138(3)(a) of the Criminal Procedure Act. In that respect we have taken a different view to that adopted by Buss P at [257] above.
When a court makes an order under s 138 of the Criminal Procedure Act in the absence of an accused then the court should ordinarily consider whether permission should be granted for the accused to be informed of the fact that the order has been made or the content of the order. Ordinarily, it is to be expected that permission will not be granted at the time the order is made, since the premise for the application for the s 138 order being dealt with in the accused's absence is that informing the accused of the fact an application has been made will compromise the public interest sought to be protected by the application.

Matters on which we do not express a view at this stage

There are two matters dealt with in submissions on which we do not express any view at this stage.
First, like Buss P, having determined that the appeal is incompetent we do not consider it to be necessary or appropriate to address the question of the validity of s 138 of the Criminal Procedure Act in these proceedings.
Secondly, we would not at this stage express any conclusive view as to the procedure which might be adopted in the appellant's appeal against conviction which might enable the appellant or his counsel to be informed about the existence or content of any order made under s 138 of the Criminal Procedure Act in the present case. It was common ground between the parties at the hearing of the question of the competence of this appeal that s 138(5) would not necessarily prevent the appellant's lawyers in the conviction appeal being provided with information about the orders on an undertaking not to disclose the information to the appellant.[81] There would therefore appear to be mechanisms by which the appellant's legal representatives in the conviction appeal might be informed of matters of which they may need to be aware in order to formulate a ground of appeal alleging that non-disclosure of evidentiary material in the appellant's trial gave rise to a miscarriage of justice. In our view, however, the identification of those mechanisms is best dealt with by this court on an application for directions made in the conviction appeal, rather than in these reasons for finding that the present appeal is incompetent.
[81] See appeal ts 25, 40, 50.

Orders

For the above reasons, we would order that the appeal notice in the present appeal be struck out on the ground that the appeal is incompetent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
23 JUNE 2025