The State of Western Australia v KWLD - [2025] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- KWLD [2025] WADC 47
CORAM:   BARBAGALLO DCJ
HEARD:   30 JUNE 2025
DELIVERED          :   11 AUGUST 2025
FILE NO/S:   IND GER 122 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
KWLD

Catchwords:

Question of law regarding the District Court's power to make binding orders on a non‑party to criminal proceedings

Legislation:

Criminal Procedure Act 2004 (WA), s 98(2), s 137

Result:

The District Court does not have power to make binding orders on a non-party to criminal proceedings

Representation:

Counsel:

The State of Western Australia	:	Mr A C Ebell
Accused	:	In person
Department of Justice (with leave)	:	Ms P A Femia

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Not applicable
Department of Justice (with leave)	:	State Solicitor for Western Australia

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

Commissioner of Corrective Services v Liristis [2018] NSWCA 143
R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264

BARBAGALLO DCJ:

Introduction

This is an application brought by KWLD pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA) (CPA) seeking this court to determine the following question of law:[1]
Does the criminal jurisdiction of a District Court Judge extend to the making of orders directed to the Director General of the Department of Justice (a non-party), whether by virtue of section 98 of the Criminal Procedure Act 2004 or the inherent (or implied) powers of the Court or otherwise, requiring the Director General to facilitate access by a remanded accused to such legal materials, resources and/or facilities the District Court Judge determines are necessary, for the purposes of ensuring that the accused is able to adequately prepare for trial and that the accused's right not to be unfairly tried is not infringed.
[1] Application dated 12 May 2025.
This question of law has arisen in circumstances where KWLD has chosen to be self‑represented as he awaits his trial on three charges. He has been remanded in custody since 27 June 2022. The three charges are contained in an amended indictment dated 14 June 2023. Count 1 alleges that, on 27 June 2022, KWLD had possession of child exploitation material (CEM), namely pictures and videos, on an SD card stored in one of his mobile telephones, contrary to s 220 of the Criminal Code (WA). Count 2 alleges that, between 19 February 2022 and 22 February 2022, KWLD produced CEM, namely video recordings, contrary to s 218 of the Criminal Code. Count 3 alleges that, on 1 July 2022, KWLD did not obey a data access order, in that he failed to provide the access code for one of his mobile telephones to the police contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). KWLD has pleaded not guilty to all of the counts.
Broadly, the first two charges involve allegations that electronic devices were seized from KWLD which, when interrogated by the police, were found to contain CEM. The third charge involves an allegation that KWLD failed to comply with a data access order to allow police to interrogate an electronic device said to belong to him.
The three charges outlined above are alleged to have been committed in contravention of an interim supervision order (ISO) that had been made in relation to KWLD under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). After KWLD was remanded in custody on 27 June 2022, the ISO was suspended on 14 July 2023 when an interim detention order (IDO) was imposed on that date. There are proceedings pending in the Supreme Court in relation to an HRSO Act application in relation to KWLD.
KWLD has chosen to represent himself in these criminal proceedings (including the current application) as well as numerous other related proceedings, the details of which are not relevant to this application save to note that those other related proceedings have resulted in delays to the commencement of the trial on the current three charges outlined above. In fact, the current three charges are not able to have a trial date allocated to them as there is currently a special leave application before the High Court of Australia brought by KWLD, the result of which will impact directly on when the trial can take place.
The chronology of these criminal proceedings are somewhat lengthy and complicated. I do not propose to set out the entire chronology of these criminal proceedings but will set out matters specifically relevant to this application.

Chronology

As stated earlier, KWLD has been held in custody since his arrest on 27 June 2022. He was originally remanded to Hakea Prison but on 26 February 2024 he was transferred to Casuarina Prison where he continues to remain in custody.
KWLD first appeared in the District Court in Geraldton on 1 March 2023, at which time the State had not filed an indictment. Then on 14 June 2023, the State settled on an amended indictment, the terms of which I have already referred.
On 23 October 2023, her Honour Judge Barone made orders (which I will refer to as 'Order 1A of 23 October 2023'), pursuant to the case management powers in s 137 of the CPA[2] in the following terms:[3]
[2] Emphasis added.
[3] ts 218 ‑ ts 222.
1.The
(a)Laptop computer containing the unredacted Universal Forensic Extraction Device (UFED) downloads of the Samsung and the SD card as defined in pars 13 and 16 of the Further Amended Statement of Material Facts dated 14 June 2023; and
(b)the hard copy unredacted prosecution brief,
(collectively referred to as 'the materials')
are to be provided by the ODPP, meaning the Office of the Director of Public Prosecutions, directly to Mr Gavin Ansell, Deputy Superintendent, Security at Hakea Prison during the week of 23 October 2023.
2.Mr Ansell is to store the materials in a secure location accessible only to him and to his delegate, Kevin Frizzel, Prosecutor at Hakea Prison. Mr Ansell and Mr Frizzel are collectively referred to hereafter as 'the Hakea Officers'.
3.On three weekdays per week from the week commencing Monday 30 October 2023, and for a period of one month, concluding on Friday 1 December 2023, the Hakea Officers will make available for the accused a room in Hakea Official Visits from 9 am to 11 am, and then 1 pm to 3 pm, collectively called the 'inspection hours'.
4.During the inspection hours, the accused is to attend Official Visits to sign in for the receipt of the materials and to time and date his sign-in to be countersigned and timed and dated by one of the Hakea Officers.
5.The accused will then be permitted to review the materials in a room in Official Visits during the inspection hours.
6.The ODPP will make available with the laptop a set of headphones.
7.The accused's inspection of the materials is to conclude by no later than 11 am or 3 pm as the case may be. There is to be nobody else in the room with the accused during his inspection of the materials and he is to be provided with writing instruments and a blank notepad.
8.The accused is entitled to retain his notes after leaving the Official Visits.
9.Upon concluding his review of the materials at no later than 11 am or 3 pm as the case may be, the materials are on each occasion to be returned by the accused to one of the Hakea Officers and signed out by him, in doing so noting the time and date and countersigned by one of the Hakea Officers accordingly.
10.The inspection hours are subject to Hakea operational requirements and can be reduced or amended at the discretion of Hakea as necessary. However, the Hakea Officers are to make best endeavours in good faith to ensure that the inspection hours are maximised within the confines of item 3 above.
11.That court will convene on 8 December 2023 at 9 am to review the efficacy and progress of the inspection regime and to hear further submissions if necessary.
12.No officer of the State, ODPP, the West Australian Police Force, the Department of Justice or the Department of Corrective Services is to inspect the laptop computer provided under order 1 or subject it to forensic analysis without leave of the court.
13.There be liberty to apply.
Her Honour Judge Barone added that Order 1A of 23 October 2023 'should cover the unredacted materials'.
On that same day, her Honour went on to also make orders pursuant to the court's powers in s 98(1) and s 98(2)(a) of the CPA[4] (which I shall refer to as 'Order 1B of 23 October 2023'), in the following terms:[5]
[4] Emphasis added.
[5] ts 222 ‑ ts 223.
1.'That the Department of Corrective Services provide KWLD with a laptop [for use within his cell] for the purposes of reviewing the brief and disclosure provided to him' by the Office of the Director of Public Prosecutions for the State of Western Australia and the State of Western Australia.
2.That the Office of the Director of Public Prosecutions for Western Australia provide KWLD with a USB containing:
(i)an electronic copy of the redacted brief;
(ii)an electronic copy of a PDF document containing:
(a)the download of the Samsung mobile phone, which is referred to in par 13 of the Further Amended Statement of Material Facts dated 14 June 2023;
(b)the SD card referred to in par 16 of the Further Amended Statement of Material Facts dated 14 June 2023;
(c)the download of the accused's everyday phone; and
(d)the download of the SD card from within the accused's everyday phone.
3.No officer of the State, ODPP, the West Australian Police Force, the Department of Justice or the Department of Corrective Services is to inspect the laptop computer provided under order 1 or subject it to forensic analysis without leave of the court.
4.There be liberty to apply.
I also observe that Orders 1A and 1B were made on 23 October 2023 in circumstances where the Director General was not separately legally represented. However, the prosecutor who appeared at that time informed her Honour Judge Barone that he had been in discussions with Mr Owen, Director of Public Prosecutions, as well as Mr Gavin Ansell, Assistant Superintendent of Hakea Prison, to assist in the formulation of the Orders 1A and 1B of 23 October 2023.[6]
[6] ts 181.
On 20 November 2023, Order 1A of 23 October 2023 was amended by her Honour Judge Barone by inserting into par 4 the additional words 'or Mr Craig Hey, Supervisor, Official Visits' and into par 9 'or Mr Craig Hey'. I will refer to this amended order as 'Order 2A of 20 November 2023'.[7]
[7] ts 259 - ts 260.
On the same day, Order 1B of 23 October 2023 was also amended by her Honour (which I will refer to as 'Order 2B of 20 November 2023'), in the following ways:[8]
(a)by deleting the word 'laptop' and inserting the word 'computer' in pars 1 and 3;
(b)by inserting the words 'reviewing other legal materials (legislation case law, etc) and drafting legal documents in connection with his preparation and participation in this matter' after the words '… the State of Western Australia' in par 1; and
(c)by inserting an additional paragraph ‑ to be numbered 4, as follows:
Where legal or other materials are provided on storage media, officers within Hakea Prison are to assist the accused in copying the contents of that storage media onto the computer referred to in order (1) [Order 1B of 23 October 2023] above.
[8] ts 267 - ts 268.
On 11 December 2023, her Honour Judge Barone made further amendments to Orders 2A and 2B of 20 November 2023. As amended Order 2A of 20 November 2023 (which I will refer to as 'Order 3A of 11 December 2023'),[9] was in the following terms:
[9] Orders dated 11 December 2023 as signed by her Honour Judge Barone.
1.The unredacted evidentiary materials and electronic equipment previously provided by the Office of the Director of Public Prosecutions ('ODPP') to Mr Gavin ANSELL (Deputy Superintendent, Security, Hakea Prison) pursuant to the orders made by the Court on 23 October 2023, being those materials described hereunder ('the materials'), are to remain at Hakea Prison in accordance with Order (2) below until further Order of the Court:
(a)the Laptop computer (and headphones) containing unredacted electronic copies of the UFED downloads of the devices seized by the Western Australia Police Force on 27 June 2022 and other evidentiary material; and
(b)the hard-copy of the unredacted Prosecution Brief.
2.Mr Ansell is to store the materials in a secure location accessible only to him and to his delegate Mr Kevin FRIZZEL (Prosecutor, Hakea Prison) at Hakea Prison (referred to collectively hereafter as the 'Hakea Officers').
3.For up to 6 sessions per week ('the inspection sessions') from the week commencing Monday 18 December 2023 and until further Order, the Hakea Officers will make available to KWLD a room in Hakea Official Visits, for up to 12 hours per week ('the inspection hours'). An inspection session being either between approximately 9 am to 11 am or 1 pm to 3 pm on weekdays.
4.KWLD is to indicate to one of the Hakea Officers or Mr Craig HEY (Supervisor, Hakea Official Visits) the specific weekdays and time slots ('the inspection sessions') he wishes to use to room at Hakea Official Visits as part of the inspection hours (within the Hakea Official Visits operating hours).
5.The inspection hours are subject to Hakea operational requirements and can be reduced or amended at the discretion of Hakea as necessary; however, the Hakea Officers are to make best endeavours in good faith to ensure that the inspection hours are maximised within the 12 hours permitted each week.
6.Whenever attending at the Hakea Official Visits for the purpose of utilising the weekly inspection hours, KWLD is to sign a register for the receipt of the materials and time and date the beginning of each inspection session, to be countersigned by one of the Hakea Officers or Supervisor Craig Hey.
7.KWLD will then be permitted to review the materials in the room provided, during which time:
(a)there is to be nobody else in the room with KWLD; and
(b)KWLD is to be permitted to access his writing instruments/materials (which he is entitled to retain at the conclusion of each inspection session).
8.At the conclusion of each of his attendances at Hakea Official Visits for the purpose of utilising the weekly inspection hours KWLD is to return the materials to one of the Hakea Officers or Supervisor Craig Hey, sign the register for the return of said materials and time and date the conclusion of each inspection session, to be countersigned by one of the Hakea Officers or Mr Craig Hey.
9.No officer of the State, the ODPP, the West Australian or Federal Police Force or the Department of Justice (including Corrective Services) is to inspect the Laptop computer being provided under Order (1) or subject it to forensic analysis without leave of the Court.
10.Corrective Services facilitate the purchase by the accused, at his own expense, of an electronic legal database comprising up‑to‑date Australian legislation and case law. The database must be able to operate without the use of the internet. The database is to be installed and used on the accused's computer provided under Order (1) of 'Part Two'.
11.There be liberty to the Parties to apply generally.
Further, on the same day, her Honour Judge Barone made further amendments to Order 2B of 20 November 2023 (which I shall refer to as 'Order 3B of 11 December 2023') which was in the following terms:
1.That Corrective Services provide KWLD with a computer for the purposes of reviewing the legal materials provided to him by the Officer of the Director of Public Prosecutions for the State of Western Australia and the State of Western Australia, reviewing other legal materials (legislation, case law, etc) and drafting[/printing] legal documents in connection with his preparation and participation in proceedings before the District Court of Western Australia, until further Order of the Court.
2.That the ODPP continue to provide KWLD on storage media, in addition to the materials previously provided pursuant to the orders made by the Court on 23 October 2023, any further evidentiary materials (save for materials that depict child exploitation material in an unredacted form) which the ODPP:
(a)intends to rely upon at trial;
(b)intends to otherwise serve pursuant to disclosure requirements under the Criminal Procedure Act 2004 (WA) ('CPA'); or
(c)is ordered by the Court to disclose under the CPA.
3.No officer of the State, the ODPP, the West Australian or Federal Police Force or the Department of Justice (including Corrective Services) is to inspect the [laptop] computer being provided under Order (1) or subject it to forensic analysis without leave of the Court.
4.Where legal or other materials are provided on storage media, officers within Hakea Prison are to assist KWLD in copying the contents of that storage media onto the computer referred to in Order (1) above.
5.There be liberty to the Parties to apply generally.
On 15 January 2024, her Honour Judge Barone made further amendments to Order 3A of 11 December 2023 (which I will refer to as 'Order 4A of 15 January 2024'), amending par 10 to read:[10]
Corrective Services facilitate the purchase by the accused at his own expense of an electronic legal database containing up‑to‑date Australian legislation and case law. The database must be able to operate without the use of the internet. The database is to be installed and used on the accused's computer provided under Order (1) of 'Part Two' [Order 1B of 23 October 2023]. Until such time that said purchase and installation of such a database may be facilitated, Corrective Services is to provide to the accused (in an electronic format - on a storage media able to be accessed using the accused's computer) in a timely manner complete copies of any case law requested by the accused (whether the copies requested are of specific cases or of cases relating to particular provisions of the law or to particular subject‑matter).
[10] Order 4A dated 15 January 2024 as signed by her Honour Judge Barone; ts 339.
Further, on the same day, her Honour also amended Order 3B of 11 December 2023 (which I will refer to as 'Order 4B of 15 January 2024'), by adding in a new sub-paragraph with the wording:[11]
The computer required to be provided under Order (1) [Order 4A of 15 January 2024] is to be issued to KWLD for his use in his allocated prison cell and this access to that computer should not be denied by reason of his being accommodated in a shared cell or prison staff removing it, save for in exceptional circumstances and with the authorisation of the Assistant Superintendent of Security or an officer of the same or higher rank.
During the court hearing this was suggested to become par 11, but it ultimately was added to par 1.
[11] ts 343.
On 12 February 2024, for the first time in these criminal proceedings, the Department of Corrective Services was represented by the State Solicitor's Office. On that occasion, the court was informed of the adverse impacts the binding orders of this court have had on the operations and management of the prison and the prisoner in the prison system at Hakea Prison.
On 19 February 2024, her Honour Judge Barone again amended Order 4A of 15 January 2024 (which I will refer to as 'Orders 5A of 19 February 2024'), by way of adding the following additional paragraphs to the orders:[12]
(11)Corrective Services is to facilitate the printing and copying of material relevant to GER IND 122 of 2022 free of charge and in a timely manner.
(12)Corrective Services is to facilitate the sending and receipt of time‑sensitice [sic] correspondence or legal documents relevant to GER IND 122 of 2022 to a court, the ODPP, the State Solicitor's Office, any recipient of a summons or intended recipient of a summons issued by you, any application made under the Freedom of Information Act 1992 (WA), any correspondence to any intended witness, and/or any application, response, and/or notice.
(13)Corrective Services is to facilitate such printing, copying and emailing as referred to in Orders 11 and 12 on at least Tuesdays, Wednesdays, and Thursdays, and at other times in exceptional circumstances.
[12] Order 5A dated 19 February 2024 as signed by her Honour Judge Barone; ts 436 - ts 440.

On 26 February 2024, KWLD was transferred to Casuarina Prison from Hakea Prison.
On 1 March 2024, her Honour Judge Barone again amended Order 5A of 19 February 2024. The amended Order 5A of 19 February 2024 (which I will refer to as 'Order 6A of 1 March 2024') was in the following terms:[13]
[13] Order 6A dated 1 March 2024 as signed by her Honour Judge Barone; ts 517.
1.The unredacted evidentiary materials and electronic equipment previously provided by the Office of the Director of Public Prosecutions ('ODPP') to Hakea Prison pursuant to the orders made by the Court on 23 October 2023, being those materials described hereunder ('the materials'), are to be provided to, and to remain at, Casuarina Prison in accordance with Order (2) below until further Order of the Court:
(a)the Laptop computer (and headphones) containing unredacted electronic copies of the UFED downloads of the devices seized by the Western Australia Police Force on 27 June 2022 and other evidentiary material; and
(b)the hard-copy of the unredacted Prosecution Brief.
2.The materials are to be stored in a secure location within Casuarina Prison Security Section
3.For up to 4 sessions per week ('the inspection sessions') from the date of these orders and until further Order, Casuarina Prison will make available to KWLD a secure interview room for up to 8 hours per week ('the inspection hours'). An inspection session being either between approximately 9 am to 11 am or 1.30 pm to 3 pm on Monday, Wednesday, Thursday and Friday.
4.The inspection hours are subject to Casuarina operational requirements and can be reduced or amended at the discretion of the Superintendent, the Acting Superintendent, the Deputy Superintendent, or the Acting Deputy Superintendent as necessary; however, Casuarina is to make best endeavours in good faith to ensure that the inspection hours are maximised within the 8 hours permitted each week and are not to reduce the inspection hours to less than 5 hours per week save for in exceptional circumstances.
5.Whenever attending at the secure interview room for the purpose of utilising the weekly inspection hours, KWLD is to sign a register for the receipt of the materials and time and date the beginning of each inspection session, to be countersigned by the supervising officer.
6.KWLD will then be permitted to review the materials in the room provided, during which time:
(a)there is to be nobody in the room with KWLD; and
(b)KWLD is to be permitted to access his writing instruments/materials (which he is entitled to retain at the conclusion of each inspection session).
7.At the conclusion of each of his attendances at the secure interview room for the purpose of utilising the weekly inspection hours KWLD is to return the materials to the supervising officer, sign the register for the return of said materials and time and date the conclusion of each inspection session, to be countersigned by the supervising officer.
8.No officer of the State, the ODPP, the West Australian or Federal Police Force or the Department of Justice (including Corrective Services) is to inspect the Laptop computer being provided under Order (1) or subject it to forensic analysis without leave of the Court.
9.Corrective Services facilitate the purchase by the accused, at his own expense, of an electronic legal database comprising up‑to‑date Australian legislation and case law. The database must be able to operate without the use of the internet. The database is to be installed and used on the accused's computer provided under Order (1) of 'Part Two'. Until such time that said purchase and installation of such a database may be facilitated, Corrective Services is to provide to the accused (in an electronic format - on a storage media able to be accessed using the accused's computer) in a timely manner complete copies of any case law requested by the accused (whether the copies requested are of specific cases or of cases relating to particular provisions of the law or to particular subject matter).
10.Corrective Services it to facilitate the printing and copying of material relevant to GER IND 122 of 2022 free of charge and in a timely manner.
11.Corrective Services is to facilitate the sending and receipt of time sensitive correspondence or legal documents relevant to GER IND 122 of 2022 to a court, the ODPP, the State Solicitor's Office, any recipient of a summons or intended recipient of a summons issued by KWLD, any application made under the Freedom of Information Act 1992 (WA), any correspondence to any intended witnesses, and/or any application, response, and/or notice.
12.Corrective Services is to facilitate such printing, copying and emailing as referred to in Orders 10 and 11 on at least Mondays, Wednesdays, and Fridays, and at other times in exceptional circumstances.
13.There be liberty to the parties to apply generally.
Further, on the same day, her Honour also amended Order 4B of 15 January 2024 (which I will refer to as 'Order 5B of 1 March 2024') by deleting the reference to 'Hakea' and replacing it with the word 'Casuarina'.
On 9 May 2024, there was an incident allegedly involving the accused abusing his access entitlements and privileges to the unredacted prosecution disclosure material (which included alleged CEM). It is alleged that the accused had transferred CEM in the prosecution brief provided to him on 25 October 2023 from a laptop computer to a USB flash drive and had then given the USB flash drive to other prisoners. This incident necessitated police attendance at the prison. On 10 May 2024 and 13 May 2024, items were seized by police including a laptop computer, six partially damaged CDs and a blue key tag with the words 'legal files' written on it.
By the time these events occurred on 9 May 2024, KWLD had had access to the prosecution brief as follows:
1.In Hakea Prison from 25 November 2022 to 26 February 2024:
(a)approximately 96 days of unrestricted use of a Department of Justice computer in his cell; and
(b)approximately 96 hours and 8 minutes of documented inspection time of unredacted evidentiary material.
2.In Casuarina Prison from 26 February 2024 to 9 May 2024:
(a)approximately 73 days of unrestricted use of a Department of Justice computer in his cell; and
(b)approximately 21 hours and 36 minutes of documented inspection time of unredacted evidentiary material.
On 15 May 2024, her Honour Judge Black was informed by counsel representing the Department of Corrective Services and the Western Australia Police Force of the seizure of items on 9 May 2024 together with the allegations of distribution of CEM within the prison by the accused. Her Honour cancelled orders made by her Honour Judge Barone[14] on 1 March 2024, and made the following orders relevant to this application:[15]
1.Orders [1] to [5] made by her Honour Judge Barone SC [on 23 October 2023] as amended on [20 November 2023, 11 December 2023, 15 January 2024 and] 1 March 2024 are set aside.
2.Orders [1] to [13] made by her Honour Judge Barone SC [on 23 October 2023] as amended on [20 November 2023, 11 December 2023, 15 January 2024, 19 February 2024 and] 1 March 2024 are set aside.
3.The ODPP is not to provide KWLD with any material that depicts material reasonably believed to be of a child under the age of 18 years nor any material that is reasonably believed to constitute Child Exploitation Material (CEM) and KWLD is to be made aware of that fact of such omitted material.
4.No officer of the State, (with the exception the appointed employee of the SSO referred to in Order 2 ‑ Directions Hearing), the ODPP, the West Australian or Federal Police Force, the Department of Justice (including Corrective Services), is to inspect any computer formerly in the possession of KWLD or subject it to forensic analysis without leave of the Court.
5.Corrective Services shall permit KWLD to retain any new disclosure provided in GER IND 122 of 2022, unless it includes images that might be reasonably believed to be of a child under the age of 18 years or any material that is reasonably believed to constitute CEM.
[14] ts 595, ts 597, ts 609.
[15] Orders made 15 May and as amended on 16 May 2024 signed by her Honour Judge Black; ts 609 - ts 617.
On 28 May 2024, her Honour Judge Black made further orders as follows:
1.KWLD is not to be in possession of or to access any computer or any other device capable of storing digital data, other than the following exceptions:
a.KWLD may use a gaming device that does not have a disc or USB capability; and
b.KWLD may us a TV for the purpose of turning it on or off, or changing channels, or adjusting the volume.
2.Any material provided to KWLD by Corrective Services is to be provided in hardcopy form.
3.Corrective Services is to provide to KWLD in a reasonably timely manner copies of any case law requested by KWLD that is in relation to GER IND 122 of 2022.
4.Corrective Services is to facilitate the printing and copying of material relevant for the preparation of KWLD's defence in GER IND 22 of 2022 free of charge and in a timely manner.
5.Corrective Services is to facilitate the sending and receiving of time-sensitive correspondence or legal documents relevant to GER IND 122 or 2022 to a court, the ODPP, the State Solicitor's Office, any recipient of a summons or intended recipient of a summons issued by KWLD, any application made under the Freedom of Information Act 1992 (WA), any correspondence to any intended witness, and/or any application, response, and/or notice.
6.Corrective Services is to facilitate such printing, copying and emailing as referred to in Orders 3, 4 and 5 on at least Mondays, Wednesdays, and Fridays, and at other times in exceptional circumstances.
7.There be liberty to the Parties to apply generally.
8.The Parties may vary order 1 by entering into a consent notice setting out the variation. The Court will approve such notice or if no approval is given, the Court will provide an opportunity for both Parties to be heard in relation to such variation.
On 3 July 2024, KWLD made a claim of legal professional privilege over items and material seized from his cell on or about 9 May 2024 which included the prosecution brief and prosecution material that would be led in proof of the charges on indictment GER 122 of 2022.
On 12 March 2025, I rescinded all orders of this court which purported to bind all non-parties until such time as this court heard argument as to the whether this court had the power to make binding orders on a non‑party to these criminal proceedings.[16]
[16] ts 1156.
KWLD made the current application on 12 May 2025.
The application was heard in this court on 30 June 2025. In the lead up to that hearing, leave was granted to allow the Department of Corrective Services to be represented by the State Solicitor's Office. Written submissions were filed with this court from all three parties. The State Solicitor's Office also filed and relied on two affidavits being the Affidavit of Gavin Ansell affirmed on 13 June 2025 and the Affidavit of John Pittard sworn on 16 June 2025. Oral submissions were also made by all three parties.

KWLD's submissions

KWLD submits that this court does have power to make orders requiring the Department of Corrective Services (who is not a party in the current criminal matter) to do certain things or acts, the source of that power being derived from two 'possible' sources, being:[17]
•Section 98(2)(a) of the CPA
•The inherent (or implied) power of the court.

Section 98(2)(a) of the Criminal Procedure Act 2004 (WA)

[17] KWLD's submissions dated 30 May 2025, par 11.

KWLD submits that preconditions for the operation of s 98(2) have been satisfied, being:
(a)that he is an accused who has been committed to, or is charged on indictment in, a superior court;[18]
(b)that his trial has not yet begun;[19] and
(c)that the orders he seeks to have made against the Department of Corrective Services are things that are 'necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable'.[20]
[18] CPA s 98(1).
[19] CPA s 98(2).
[20] CPA s 98(2)(a).
KWLD asserts that the phrase 'otherwise desirable' is to be interpreted to mean that it is 'desirable for the effective conduct of the proceedings (including the trial), consistent with the subject matter of the section'.[21] He further asserts that the phrase 'do any other thing' is broad enough to include the making of any order.[22]
[21] KWLD's submissions dated 30 May 2025, par 27.
[22] KWLD's submissions dated 30 May 2025, par 28.
KWLD submits that the powers in s 98(2) of the CPA, unlike the powers in s 137 of the CPA (case management powers) are not limited in their exercise by reference to the parties or certain witnesses. If Parliament intended s 98(2) of the CPA to be restricted to the parties to the proceedings then Parliament would have done so expressly, as they did in s 137 of the CPA.[23]
[23] KWLD's submissions dated 30 May 2025, par 3.
KWLD asserts that the powers in s 98(2) of the CPA are broad and that nothing in the text of s 98 or the balance of the CPA or the principles of statutory interpretation justifies the court 'reading down' s 98(2)(a) so as to exclude the giving of directions or the making of an order directed to a non-party to the proceedings.

The inherent power of the District Court

KWLD submits that this court, exercising its inherent powers, has the power 'to make orders of a particular description, for the purposes of upholding, protecting and fulfilling the judicial function of administering justice according to law in a regular, orderly and effective manner'.[24] KWLD asserts that 'previous cases illustrate that this jurisdiction empowers a court to prevent its process being obstructed and abused',[25] and that such 'previous cases make it clear that to proceed in the face of a real and substantial risk that an accused will not receive a fair trial, would amount to an abuse of process'.[26]
[24] KWLD's submissions dated 30 May 2025, par 34.
[25] KWLD's submissions dated 30 May 2025, par 35.
[26] KWLD's submissions dated 30 May 2025, par 36.
KWLD suggests that[27]
the issue here is the extent of the Court's powers to remedy unfairness and thereby prevent an abuse of process, where faced with an accused whom is deprived of access in custody to legal resources and facilities, which the Court considers are necessary to ensure a fair trial.
[27] KWLD's submissions dated 30 May 2025, par 39.
KWLD submits that[28]
the Court's powers extend to the giving of directions or the making of orders directed to the Director [of Corrective Services], in order to facilitate an accused's access to such resources/facilities in custody.
If the court did not have such power, then it would be left powerless to ensure an accused received a fair trial.[29] The submission being that it would be in the public interest for the court to find that it did have such a power.

Other matters

[28] KWLD's submissions dated 30 May 2025, par 41.

[29] KWLD's submissions dated 30 May 2025, par 42.

In support of his submissions, KWLD relied on two judges of this court having made orders which were, in part, directed to non-parties to these criminal proceedings, including the Department of Corrective Services, the Western Australia Police Force and the Australian Federal Police. More specifically, her Honour Judge Barone made orders on 23 October 2023 and amended on 1 March 2024, pursuant to s 137 of the CPA. Then, on 28 May 2024, her Honour Judge Black made a new set of orders.

The State's submissions

The State considered the question of law drawing on three sources of the power of the court being:[30]
•Section 137 of the CPA ‑ case management powers
•Section 98 of the CPA ‑ dealing with pre-trial matters
•The inherent powers of the District Court as a superior court of record.

Section 137 of the Criminal Procedure Act

[30] State's submissions dated 23 May 2025, par 12.

The State's submission is that the case management powers in s 137(3) of the CPA are expressly limited to a power to make orders in relation to a party to the proceedings or a witness. Consequently, as the Director General is neither a party to the proceedings or a witness, an order under s 137(3) of the CPA cannot be made to bind the Director General on behalf of Corrective Services.[31]

Section 98 of the Criminal Procedure Act

[31] State's submissions dated 23 May 2025, pars 16 - 20.

The State's submission is that whilst s 98(2)(a) of the CPA is not expressly limited to a party to the proceedings, having regard to the text, content and purpose of the CPA broadly and s 98(2)(a) specifically, it is clear that the powers are directed to the accused and the prosecutor. That is, the State's submission is that s 98 cannot be properly interpreted so as to extend the court's power under s 98(2)(a) to give any direction, or to make any order to bind a non-party to the proceedings. That is so, even where it may be necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that it otherwise be desirable to do so.[32]

The inherent power of the District Court

[32] State's submissions dated 23 May 2025, par 39.

The State's submission is that the inherent power of the District Court does not extend to making binding orders on non-parties to criminal proceedings other than witnesses.
In support of their submission, the State made reference to the New South Wales Court of Appeal decision in the matter of Commissioner of Corrective Services v Liristis.[33] That was a matter where the New South Wales Court of Appeal was concerned with a decision of the District Court in New South Wales making binding orders on a non-party, being the Commissioner for Corrective Services, to provide a personal laptop and scanner to the accused to allow him to access that equipment in his cell to assist him in the preparation for trial. The majority concluded that the inherent power of the court did not extend to making an order to compel a non-party to criminal proceedings to take some positive action to prevent an abuse of power.

Other matters

[33] Commissioner of Corrective Services v Liristis [2018] NSWCA 143.

In relation to any previous orders made by this court purporting to bind a non-party to these criminal proceedings, the State's position is that where a previous judge has acted ultra vires, there is no good legal reason to support a course of action that would require the court to compound prior error with further error.[34]
[34] State's submissions dated 23 May 2025, par 63.5.

Department of Justice submissions

The Department of Justice in their submissions dated 13 June 2025 considered the question of law by looking at the same three sources of the power of the court identified by the State and as set out in [41] above.

Section 137 of the Criminal Procedure Act

The Department submits that the terms of s 137 are unequivocal such that a case management order under that section cannot be made to bind the Director General of the Department of Justice nor any Officer of that Department because they are neither parties to a case or expert witnesses. No other non‑parties or person or witnesses are specifically referred to in s 137.

Section 98 of the Criminal Procedure Act

The Department submits that the terms of s 98(2)(a) of the CPA has two possible interpretations, being that:
1.Section 98(2)(a) is arguably broad enough to empower the court to make orders directed at third parties, provided those orders are necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial. The Department asserts that this view appears to be consistent with the purpose of the provision, being to facilitate the effective conduct of the proceedings, including the trial.
2.Section 98(2)(a) arguably ought to be construed as being limited to the parties in the trial in the superior court. If the intention of parliament was for s 98(2)(a) to empower the court to give any direction to, or to make an order in respect of a non-party, this would have been made clear in the wording of s 98(2)(a) (as it was in other sections contained in the CPA). In the absence of a clear intention, it should not be presumed that Parliament intended the section to empower the court to make binding orders in respect of a non-party.

The Department observes that they were unable to locate any reported decisions in relation to the interpretation of s 98 with a similar factual matrix as is currently before the court.
The submission ultimately made by the Department is that s 98(2)(a) arguably gives power to the court to make binding orders on the Director General of the Department of Justice or officers in the employ of the Department of Justice.

The inherent power of the District Court

The submission on behalf of the Director General seems to be that the inherent power of the court extends to allowing the court to impose binding orders on a non-party but such a power must be exercised with proper deference given to the lawful regulation of a prisoner's circumstances of incarceration and in circumstances where corrections authorities are far better placed than courts to assess what is required for the safe and secure management of corrections facilities.

My consideration of the question of law

In determining this question of law, I have turned my mind to the powers of the court that can be derived from three sources, namely:
•Section 137 CPA ‑ Case management powers
•Section 98 CPA ‑ Dealing with pre-trial matters
•The inherent power of the District Court as a superior court of record.

Section 137 of the Criminal Procedure Act ‑ Case management powers

Section 137(3) of the CPA provides that, unless the CPA or the rules of court or another written law provides otherwise, a court may do any or all of the following for the purposes of controlling and managing cases before it ‑
(a)order the parties to a case ‑
…
(iii)to do anything that in the court's opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously;
(b)order 2 or more witnesses who are to give expert opinion evidence, whether for the prosecutor or the accused, and whose evidence has been disclosed ‑
(i)to confer on a 'without prejudice' basis before trial in order to identify the differences between them and to resolve as many of them as possible;
(ii)to each provide a report to the court that explains which aspects of the evidence to be given by the other are disputed and why.
Section 137(1) of the CPA provides that s 137 does not limit the superior court's inherent powers.
The power of the court, in s 137(3)(a) is limited to case management orders to 'parties to a case'.
The term 'party' is defined in s 3 of the CPA as 'in relation to a charge, means the prosecutor or the accused'. 'Prosecutor' is also defined in s 3 of the CPA to mean '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'. 'Authorised officer' means a person listed in s 80(2) of the CPA which includes 'the DPP' or 'a member of the DPP's staff appointed in writing by the DPP as an authorised officer'.
Although the term 'witness' is not defined in the CPA, the ordinary English meaning that can be attributed to that word is a person who sees or hears or claims to see or hear an event or occurrence that is relevant in the trial.
Corrective Services is a division of the Department of Justice for which the chief executive officer is ultimately responsible. Subject to the Prisons Act 1981 (WA) and to the control of the Minister, the chief executive officer 'is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners'.[35] Every prisoner is deemed for so long as he continues to be a prisoner to be in the custody of the chief executive officer.[36] The chief executive officer reports to the Director General.
[35] Prisons Act s 7(1).
[36] Prisons Act s 16(1).
KWLD is currently remanded in custody at Casuarina Prison, with bail refused on the current charges. Casuarina Prison is a prison in Western Australia under the management and control of the Director General. Pursuant to s 16(1) of the Prisons Act, KWLD is deemed to be in the custody of the Director General.
The case management powers in s 137(3) of the CPA are limited to a power to make orders in relation to a party to the proceeding or a witness. The Director General is neither a party or a witness to the current proceedings within the meaning of the definitions given by s 3 and s 80(2) of the CPA.
I find that an order made pursuant to s 137(3) of the CPA cannot be made to bind the Director General on behalf of Corrective Services. I should add that neither KWLD, the prosecutor or the Department of Justice suggest a conclusion to the contrary.

Section 98(2)(a) of the Criminal Procedure Act

Section 98 of the CPA, so far as is relevant to this application, provides as follows:
1.This section applies if an accused is committed to, or is charged on indictment in, a superior court.
2.At any time before the accused's trial begins, the court ‑
(a)may determine any question of law or procedure, give any direction, or do any other thing, that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable;
…
(h)may make an order under the Juries Act 1957, section 43A
(i)may make any order under section 137.
…
6.Any proceedings under subsection (2) are to be taken to be part of the accused's trial.
7.The powers of a judge in a trial include, but are not limited to, the powers in this section.
Section 98 of the CPA is contained in pt 4 div 4 of the CPA. Part 4 is titled 'Prosecutions in superior courts'; div 4 is titled 'Pre‑trial matters'; s 98 is titled 'Issues that may be dealt with before trial'.
The title of the CPA states that the CPA is 'An Act to provide procedures for dealing with alleged offenders and for related matters'. The CPA does not expressly set out the purpose or object of the Act.
Looking more closely at pt 4 of the CPA, there are eight divisions. Those divisions are titled:
•Division 1 (s 80 ‑ s 82) ‑ Preliminary
•Division 2 (s 83 ‑ s 87) ‑ Commencing and discontinuing a prosecution
•Division 3 (s 88 ‑ s 93) ‑ General matters
•Division 4 (s 94 ‑ s 98) ‑ Pre-trial matters
•Division 5 (s 99 ‑ s 100) ‑ Committals for sentence
•Division 6 (s 101 ‑ s 116) ‑ Trial by jury
•Division 7 (s 117 ‑ s 120) ‑ Trial by judge alone
•Division 8 (s 121 ‑ s 124) ‑ Miscellaneous.
Close scrutiny of pt 4 reveals that it deals with prosecutions in superior courts, and the provisions are directed to the court's processes as between the parties to the proceedings, being the accused and the prosecutor. The only non-parties which are mentioned in pt 4 of the CPA are witnesses[37] and jurors.[38] In both cases, the court has been given express power to deal with witnesses and jurors in particular circumstances and in particular ways.
[37] CPA pt 5 div 3 s 137(3)(b) and pt 5 div 7 s 156 ‑ s 167.
[38] CPA pt 4 div 4 s 98(2)(h) and pt 4 div 6 s 101 - s 116.
In relation to s 98 (2)(a) of the CPA specifically, I agree with KWLD's submission that it is a broadly drafted section. It certainly includes a wide ambit of powers to determine interlocutory matters prior to trial. With one exception, those interlocutory matters involve matters between the court and the parties. For example, the determination of any question of fact in a trial may be determined by a judge alone,[39] a determination as a matter of law that the accused had no case to answer,[40] deal with any application made by a party,[41] may exercise any power under the CPA[42] and may make any order under s 137.[43] The one exception involves an order the judge can make in relation to the jury.[44] Of course, this is an express power to make orders for a non-party.
[39] CPA s 98(2)(b).
[40] CPA s 98(2)(c).
[41] CPA s 98(2)(e).
[42] CPA s 98(2)(f).
[43] CPA s 98(2)(i).
[44] CPA s 98(2)(h).
It is trite to say that the ordering of a non-party to comply with an order of a court is a significant step for a court to take. In my view, it is so significant that if the Parliament intended the court to have the power to make orders binding non-parties to criminal proceedings, then such a power would be an express power included in the CPA or some other piece of legislation. Such express power might also include the circumstances in which that power could be exercised as well as ensuring non-parties have been afforded natural justice (including a right to be legally represented and heard) before any such orders were made to bind a non‑party. There is no such clear power contained in the CPA or any other legislation that would impact on the posed question of law.
Upon consideration of reading the text of the CPA at its widest, together with the content and purpose of the CPA, I have determined that s 98 empowers the court to deal with matters before trial as between the parties, that is, as between the accused and the prosecutor. To be clear, I have determined that s 98(2)(a) of the CPA does not empower the court to make binding orders on non-parties to the proceedings.

Inherent power of the court

Section 42(1) of the District Court of Western Australia Act 1969 (WA) (District Court Act) provides that the court has all the jurisdiction and powers that that Supreme Court has in respect of any indictable offence, subject to the exceptions set out in s 42(2). The charges the accused faces in these criminal proceedings do not fall within the exceptions set out in s 42(2).
Section 43(1) of the District Court Act provides that the jurisdiction of the District Court is to be exercised subject to the Criminal Code and the CPA.
Section 44 of the District Court Act provides that in all respects, the practice and procedure of the court as a court of criminal jurisdiction shall be the same as the practice and procedure of the Supreme Court in like matters.
As a result of s 42 and s 44 of the District Court Act, the District Court, in its criminal jurisdiction, is a superior court of record. Section 3 of the CPA defines superior court as the Supreme Court or the District Court.
The inherent power of this court has been preserved by s 16 of the Supreme Court Act 1935 (WA) (Supreme Court Act). The District Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence.
The scope of the court's inherent powers is wide, dynamic and defies exhaustive definition.[45] The jurisdiction derives from the powers that a court has by virtue of it being a court.[46] Such powers are necessary for the administration of justice.[47]
[45] See Mason K QC, 'The Inherent Jurisdiction of the Court' (1983) 57 Australian Law Journal 449, 458 ‑ 459.
[46] R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, 7.
[47] Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270.
Mason QC described the court's inherent jurisdiction as 'a judicial power of last resort that will be invoked to block certain types of conduct which are not regulated by statutes or rules of court, or indeed expressly permitted by them'.[48]
[48] 'The Inherent Jurisdiction of the Court' (458).
In academic discourse,[49] the four functions of the inherent jurisdiction of a superior court of record of unlimited jurisdiction have been identified as:
(a)ensuring convenience and fairness in legal proceedings;
(b)preventing steps from being taken that would render judicial proceedings inefficacious;
(c)preventing abuse of process; and
(d)acting in aid of superior courts or in aid or control of inferior courts and tribunals.
[49] 'The Inherent Jurisdiction of the Court' (458); Lacey W, 'Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution' (2003) 31(1) Federal Law Review 57, 63 ‑ 67.
In the matter of Commissioner of Corrective Services v Liristis[50] the New South Wales Court of Appeal considered whether the inherent jurisdiction or power of the Supreme Court could extend to making positive binding orders against a third party to criminal proceedings to prevent an 'abuse of process'. In that case, a prisoner, Mr Liristis, was facing charges for sexual assault in the District Court of New South Wales when he sought access to his personal laptop and a scanner whilst in prison to assist in the preparation of his defence. He sought access to that equipment in his cell. President Beazley[51] and Justice Basten[52] agreed that it was not within the scope of the inherent power of the District Court of New South Wales to make positive binding orders against a third party to criminal proceedings of the kind made by the primary Judge. President Beazley went on to add that this was all the more so where the order made directly affected the operations of a correctional facility.[53] Justice Basten was of the view that a judge of the Supreme Court has no general power (or jurisdiction) to order officers responsible for the custody of prisoners to take steps thought necessary by the judge to ensure that an offender is not subject to an unfair trial.[54] Justice Basten went on to add that there was no authority that suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security.[55]
[50] Commissioner of Corrective Services v Liristis.
[51] Commissioner of Corrective Services v Liristis [36] (Beazley P).
[52] Commissioner of Corrective Services v Liristis [104] (Basten JA).
[53] Commissioner of Corrective Services v Liristis [36] (Beazley P).
[54] Commissioner of Corrective Services v Liristis [41] (Beazley P).
[55] Commissioner of Corrective Services v Liristis [104] (Basten JA).
It always remains a possibility that the court may make a binding order on any party to a criminal proceeding. That is the nature of litigation more generally. Parties to litigation can be ordered to do certain acts or refrain from doing certain acts either pursuant to a statute or the inherent power of the court. However, with few exceptions, that is not the same for a non-party. A non-party may well be going about their legitimate business completely unaware that some court, somewhere, is contemplating making binding orders against them. Even if a non-party has been afforded the chance to be legally represented and heard on any application seeking an order to bind them, it is still an extraordinary act to require a non-party to be involved in a criminal proceeding. As I have already pointed out, the court has been given express (statutory) power to make orders in relation to two categories of non-parties, being witnesses and jurors.
In my view, the inherent jurisdiction of the court cannot be used to explicitly compel executive agencies ‑ such as the Director General ‑ to do certain things, even if it is to ensure a prisoner has a fair trial. That would involve prison management and therefore undermine the separation between the judicial and executive branches of government. In my view, there is a separation of powers limit on the scope of the inherent jurisdiction of this court.
Whilst I accept that the inherent power of the court is wide, I do not accept that it is unlimited. To make a binding order on a non-party, in my view, exceeds the limitations of the inherent power of the court. Therefore, I have determined that the court's power to make binding orders is limited to the parties to the proceedings only, unless there is express power to make binding orders on a non-party.

My decision

The answer to the question 'does the criminal jurisdiction of the District Court extend to the making of orders directed to the Director General (a non-party), whether by virtue of s 98 of the Criminal Procedure Act 2004 or the inherent (or implied) powers of the court or otherwise', is no.
If I am wrong, and the answer to the question is 'yes', then I would have declined to make any orders binding the Director General or the chief executive officer in the particular circumstances of this matter. Operating a prison has dynamic complex issues, some of which are obvious, many of which are not. Importantly, dealing with individual prisoners with their own personal circumstances is an added overlay to the complexities of running a prison. Only the prison staff know how they can best manage each prisoner in that dynamic prison environment at any moment on any day.
In light of my determination to the posed question, I would however strongly encourage the parties to engage with the relevant prison superintendent to come to an agreement or form a proposal as to how KWLD can adequately prepare for his trial whilst still managing any issues that he may present in the prison system.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate
11 AUGUST 2025