WA Police v CFB

Case [2025] WASC 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   WA POLICE -v- CFB [2025] WASC 107

CORAM:   MCGRATH J

HEARD:   6 NOVEMBER 2024

DELIVERED          :   7 APRIL 2025

FILE NO/S:   SJA 1026 of 2024

BETWEEN:   WA POLICE

Appellant

AND

CFB

Respondent

FILE NO/S:   SJA 1030 of 2024

BETWEEN:   CFB

Appellant

AND

WA POLICE

Respondent

ON APPEAL FROM:

For File No:   SJA 1026 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE DE MAIO

File Number            :   JO 1394 of 2023

For File No:   SJA 1030 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE DE MAIO

File Number            :   JO 1394 OF 2023


Catchwords:

Criminal law - Breach of family violence restraining order - Appeal against conviction - Admissibility of interview - Whether appellant a suspect - Whether Criminal Investigation Act2006 (WA) breached - Miscarriage of justice - Whether verdict unreasonable or unsupported by the evidence - Prosecution appeal against sentence on basis of manifest inadequacy - Appeal against failure to order prosecution costs

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

SJA 1026 of 2024

Leave to appeal granted on grounds 1 and 2
Appeal allowed
Fine of $200, suspended for 6 months, set aside and in lieu thereof a fine of $750, suspended for 6 months, imposed
Order that no costs be made set aside and in lieu thereof the respondent pay the appellant's costs in the amount of $4,566.30
Respondent pay the costs of the appellant on appeal in the amount of $2,131

SJA 1030 of 2024

Extension of time in which to appeal granted
Leave to appeal not granted on grounds 1, 2, 3 and 4
Appeal dismissed
Appellant pay the costs of the respondent on appeal in the amount of $2,131

Category:    B

Representation:

SJA 1026 of 2024

Counsel:

Appellant : Mr E Heywood & Mr S J Cobbett
Respondent : Ms R Sleeth

Solicitors:

Appellant : State Solicitor's Office
Respondent : Rebekah Sleeth

SJA 1030 of 2024

Counsel:

Appellant : Ms R Sleeth
Respondent : Mr E Heywood & Mr S J Cobbett

Solicitors:

Appellant : Rebekah Sleeth
Respondent : State Solicitor's Office

Cases referred to in decision(s):

Bardsley v The Queen (2004) [2004] WASCA 251; 29 WAR 338

Basham v City of Joondalup [No 2] [2016] WASC 120

CMB v Attorney General for New South Wales [2015] HCA 9

Eastough v The State of Western Australia [No 2] [2010] WASCA 88

EXF v The State of Western Australia [2015] WASCA 118

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jago v The State of Western Australia [2022] WASCA 2

Kabambi v The State of Western Australia [2019] WASCA 44

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

M v The Queen [1994] HCA 63; (1994)…

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Details
AGLC
WA Police v CFB [2025] WASC 107
Case
[2025] WASC 107
Decision Date

CaseChat Overview and Summary

In the matter of WA Police v CFB, the Court of Appeal was called upon to consider several issues related to the admissibility of evidence obtained during an extended recorded oral interview (EROI) and the subsequent conviction and sentencing of the appellant. The appellant, CFB, was found guilty of breaching a family violence restraining order. The prosecution appealed against the sentence on the grounds of manifest inadequacy, while the appellant appealed against his conviction and sentence, arguing that the evidence obtained during the EROI should not have been admitted due to a breach of the Criminal Investigation Act 2006 (WA). The court was also required to determine whether the verdict was unreasonable or unsupported by the evidence and whether the trial judge erred in not ordering the prosecution to pay the costs of the appeal.

The primary legal issues before the court were whether the appellant was a suspect at the time of the EROI, which would have necessitated the presence of a legal representative, and whether this constituted a breach of the Criminal Investigation Act 2006 (WA). Additionally, the court had to consider whether the admission of the EROI evidence led to a miscarriage of justice, whether the verdict was unreasonable or unsupported by the evidence, and whether the sentence was manifestly inadequate. Finally, the court needed to determine whether the trial judge erred in not ordering the prosecution to pay the costs of the appeal.

The Court of Appeal held that the appellant was indeed a suspect at the time of the EROI, which meant that he should have been provided with the opportunity to consult a legal representative before the interview. This constituted a breach of the Criminal Investigation Act 2006 (WA). However, the court found that the admission of the EROI evidence did not lead to a miscarriage of justice. The evidence was deemed to have significant probative value and was relevant to the offence in question. The court also found that the verdict was neither unreasonable nor unsupported by the evidence. Regarding the sentence, the Court of Appeal determined that it was not manifestly inadequate and therefore upheld the original sentence imposed. Lastly, the court held that the trial judge did not err in not ordering the prosecution to pay the costs of the appeal.

The Court of Appeal dismissed both the prosecution’s appeal against sentence and the appellant’s appeal against conviction and sentence. The court confirmed that the appellant was a suspect at the time of the EROI and that the breach of the Criminal Investigation Act 2006 (WA) did not lead to a miscarriage of justice. The verdict was found to be reasonable and supported by the evidence, and the sentence was deemed appropriate. The trial judge’s decision not to order the prosecution to pay the costs of the appeal was also upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 155 of the CI Act provides that, although evidence may be inadmissible, the court may nevertheless decide to admit the evidence. Section 155 states:155.Inadmissible evidence, court may allow admission(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.(3) In making a decision under subsection (2) the court must take into account -(a)any objection to the evidence being admitted by the person against whom the evidence may be given;(b)the seriousness of the offence in respect of which the evidence is relevant;(c)the seriousness of any contravention of this Act in obtaining the evidence;(d)whether any contravention of this Act in obtaining the evidence -(i)was intentional or reckless; or(ii)arose from an honest and reasonable mistake of fact;(e)the probative value of the evidence;(f)any other matter the court thinks fit.(4)The probative value of the evidence does not by itself justify its admission. The relevant testimony regarding the EROI was given by Senior Constable Baker.[13] [13] ts 43 ‑ 78 (24/10/2023). Senior Constable Baker gave testimony that he contacted CFB and requested that he attend at the Joondalup Police Station for the purpose of participating in an interview. Senior Constable Baker stated that he informed CFB that he would not be arrested but that he would be provided with his accompanying person rights under s 28 of the CI Act. Subsequently, CFB attended at the Joondalup Police Station for his EROI and was afforded a support person who was in attendance. At the commencement of the EROI, Senior Constable Baker informed CFB of his rights and expressly gave him a caution. Senior Constable Baker stated that at no point did he arrest CFB to avoid causing any undue stress to him.[14] At the commencement of the EROI, Senior Constable Baker informed CFB of his accompanying person rights under s 28 of the CI Act.[15][14] ts 57 (24/10/2023).[15] ts 57 (24/10/2023). In cross‑examination, Senior Constable Baker confirmed that one week prior to attending at the Police Station, CFB had informed him that one of his prerequisites to agreeing to an interview was that he would speak to a lawyer first.[16] Senior Constable Baker stated that he assumed that, given CFB attended at the Police Station without a lawyer and that he was not arrested, he had decided freely to give the interview.[17] [16] ts 73 (24/10/2023).[17] ts 73 (24/10/2023). During cross‑examination, Senior Constable Baker confirmed that he reasonably suspected CFB of having committed an offence at the time he commenced the interview.[18] Senior Constable Baker stated that he had decided not to arrest CFB due to concerns regarding his mental health.[19][18] ts 74 (24/10/2023).[19] ts 74 (24/10/2023).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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