Chief Justice finds judge went too far in criminal trial

The accused people, known only by the pseudonyms Mr and Mrs Courtney, were successful in their appeal and will soon be re-tried.

The first matter of concern to the Supreme Court was Judge Black’s refusal to grant an adjournment request, despite evidence from a medical professional that Mrs Courtney was very unwell.

Judge Black herself acknowledged Mrs Courtney appeared sick and was not in a “fit state to be able to instruct her lawyer”, but nevertheless pressed on with the trial on the assumption Mrs Courtney did not need to provide instructions at that stage and could recover from her illness while being present at the court.

Her reasons were interrupted by Mrs Courtney’s vomiting.

The trial continued in Mrs Courtney’s physical absence. Although she was able to watch on from a separate room of the courthouse, she was not heard or seen by anyone in court other than judge Black.

While the Supreme Court noted the adjournment would have inconvenienced the jury and disrupted the trial’s timetable, this did not outweigh the need for Mrs Courtney to be in a fit state to be able to follow the proceedings and instruct her counsel.

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“To continue with the trial in circumstances in which she was not able to do so was inconsistent with Mrs Courtney's right to a fair trial.

“While there may be cases in which the absence of an accused from a trial, without lawful justification, for a very short time might not amount to a material irregularity sufficient to give rise to a miscarriage of justice, that is not this case.

“The significant departure in this case from the fundamental right of Mrs Courtney to be present throughout her trial, was a material departure from the requirements of a fair trial and amounted to a failure to observe the requirements of the criminal process in a fundamental request,” Chief Justice Quinlan, along with Justice Stephen Hall and Auxiliary Justice Jennifer Smith, said.

During the course of evidence for both Mr and Mrs Courtney, Judge Black repeatedly intervened or interrupted in a manner “that went beyond what could reasonably be regarded as necessary”.

The most significant of the interruptions occurred during Mrs Courtney’s evidence, including a suggestion Mrs Courtney was in danger of derailing the trial, an unwarranted remark that she had been “making speeches”, and the “sardonic” reference to her English degree that conveyed to the jury she was being evasive.

“While some interventions in a witness’s evidence may be inevitable, the sheer number of interventions in Mr and Mrs Courtney’s evidence … could not have gone unnoticed by the jury.

“It would, in our view, have been obvious to a fair-minded observer that the approach taken by the learned trial judge to Mr and Mrs Courtney’s evidence differed from that taken to the other witnesses,” Chief Justice Quinlan, Justice Hall and Justice Smith said.

Judge Black also intervened in relation to a decision on whether to call Mr and Mrs Courtney’s daughter and victim, known only as Matilda, to give evidence. At the time of the trial, about eight years had passed since the alleged offending and Matilda was an adult.

Judge Black raised the prospect of taking a number of steps she had no power to take, such as whether she would allow Matilda to be called and whether she would require a psychological assessment.

The judge also raised the “spectre of adverse consequences” for the accused if Matilda was called, including that they would remain in custody during and the decision to call her would be considered during sentencing if Mrs Courtney were to be convicted.

While the decision to call Matilda was an important one that required careful and considered reflection, Chief Justice Quinlan pointed out that this was a decision to be made by counsel alone.

“It was not a decision that could, or should, be made by the trial judge, nor was it a decision in relation to which the trial judge should seek to exercise any influence,” the Supreme Court bench said.

The approach by Judge Black “crossed the line from legitimate concern for the manner in which a potential witness might give her evidence into illegitimate interference in counsel’s forensic plan or strategy”.

The court found these interventions during Mrs Courtney’s evidence contributed to the prejudice suffered by Mr Courtney.

“Each of these matters, taken together … lead us to conclude that the conduct of the trial, as a whole, was such as to no longer justify the characterisation of a ‘fair trial’ (and was thereby a miscarriage of justice,” Chief Justice Quinlan, Justice Hall and Justice Smith said.

Citation: Courtney (a pseudonym) v The State of Western Australia [2026] WASCA 86.