In a unanimous judgment, the full bench of the WA Supreme Court overturned and ordered a retrial of two parents for the alleged mistreatment of their 17-year-old daughter.

One of the successful grounds of appeal was that the trial judge, Linda Black DJC, erred by refusing the defendant mother’s application for an adjournment due to her acute case of food poisoning or gastro which caused her to vomit so much that the court ran out of bags to contain it. For the squeamish, reader discretion is advised.

The other successful ground of appeal was that there was a miscarriage of justice by the trial judge’s excessive interventions in the accused’s evidence, and their decision to call their daughter as a witness.

In 2021, 17-year-old Matilda arrived at Perth Children’s Hospital malnourished and severely underweight. She was deemed to be at risk of severe illness, infection, bone fractures, cardiac arrest, and death.

The parents were charged with (among other offences) failing to ensure she received adequate nutrition in the years prior to her hospital admission, and failing to provide her with prompt medical care, contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA).

The parents provided separate defences for the charges, but common themes included that they did not think anything was wrong, considering their daughter’s size when she was younger, her genetics, her behaviour, and her ability to participate in high-energy activities such as ballet.

Separately, the father had also pleaded guilty to forging Matilda’s birth certificate.

The jury initially found the parents guilty on all counts. Mr Courtney received a sentence of six years’ and six months’ imprisonment (including 8 months for the forgery offence), while Mrs Courtney was sentenced to five years’ imprisonment.

On appeal, Mrs Courtney argued the trial judge erred by refusing her application for adjournment due to illness and by proceeding with the trial in her absence.

Mrs Courtney began feeling poorly on day seven of the trial. The hearing was adjourned for the afternoon, and the following day she failed to appear.

Due to Mrs Courtney’s absence, the trial judge advised that “unless I receive a medical certificate, I’ll be arranging to issue an arrest warrant”.

Under the threat of arrest, Mrs Courtney attended court the next day and applied for an adjournment. She was vomiting in court at the time of application, and her medical certificate listed her diagnosis to be either food poisoning or infective gastroenteritis, with symptoms of vomiting, diarrhoea and high fever.

Although the adjournment was not contested by the prosecutor, it was refused by the trial judge, who placed great weight on the fact the trial had already been postponed thrice, and that it was in the public interest to proceed.

To balance this consideration with the need for Mrs Courtney to receive a fair trial, Black DCJ permitted her to view the trial via video link, from a separate room.

Her camera and microphone would be off, so she could vomit “when and as she needs to”, without prejudice from the jury. Any contact with her legal representatives was to be via text or phone.

Despite these “accommodations”, Mrs Courtney was so ill that she was unable to follow what was happening, and the trial was again adjourned that afternoon.

The following morning, Mrs Courtney attended court and went to her separate room. Although better than yesterday, she was still clearly unwell. Nonetheless, HH held she was not “unfit to stand trial”.

She continued to vomit during the proceedings, so much so that security ran out of vomit bags. Mrs Courtney had to leave her viewing room to vomit in the toilets, while the court usher went in search of more vomit bags. However, Black refused a further adjournment.

By Monday, Mrs Courtney had recovered from the illness and was able to continue with the trial in the courtroom.

The court of appeal unanimously held that the decision not to grant an adjournment was erroneous. They noted that despite the trial judge’s concerns regarding further delay of the trial, the application was only for one or two days so as to allow Mrs Courtney to recover. The considerations in favour of a short adjournment in these circumstances were strong.

The trial judge’s error was compounded by the decision to proceed with the hearing in Mrs Courtney’s absence. This is in violation of an accused’s well-established right in common law and statute to be physically present throughout a trial.

The court of appeal emphasised that this means an accused must have an opportunity to actively participate in the case by observing the witnesses give evidence, observing the tribunal of fact, and communicating to their counsel as required.

The court held (Quinlan CJ, Hall JA and Smith AUJ) that the accommodations made to Mrs Courtney did not constitute her presence at the trial under section 88(3) of the Criminal Procedure Act 2004 (WA).

She had limited communication with her lawyer, and was no longer an active participant in court.

Moreover, the arrangement put in place by HH did not constitute a video link within the meaning of s.88(5) of the CPA, as she was neither seen nor heard by the courtroom.

Any possible exception under s.88(4) of the CPA, which allows a trial judge to make an order to continue proceedings if it does not prejudice the defendant and is not contrary to the interests of justice, did not apply.

This provision was not examined by Black DCJ, but in any event, the requirements of the section would not have been met.

A further successful ground of appeal, relied on by both appellants, was that Black DCJ intervened excessively in the trial, causing a miscarriage of justice.

In particular, she intervened 171 times during Mr Courtney’s cross-examination and re-examination, 160 of which related to his evidence.

These interruptions were held to be even more ‘precipitous’ as they regularly occurred before Mr Courtney could finish his answers, and often began with the words “no” or “no no”.

Interjections also demonstrated an increasing impatience by the judge, who also insisted on single unqualified answers, even when they required some nuance:

BLACK DCJ: Sorry. Just – just listen to the question, though. You have to either say ‘yes’ or ‘no’ to that question.

BLACK DCJ: No, no. Don’t refer back? —

Mr COURTNEY: Sorry.

BLACK DCJ: Just answer whether you agree or disagree with —

Mr COURTNEY: I –I disagree.

—what’s being put.

Mr COURTNEY: Yeah.

BLACK DCJ: No, you – you can just say ‘yes’ or ‘no’ to the propositions —?

Mr COURTNEY: No.

BLACK DCJ: — where you can hear, just so we can move on. We’ve been through most of this.

The trial judge exhibited a similar disposition to the questioning of Mrs Courtney.

However, Judge Black generally allowed prosecution witnesses to provide context to the questions asked of them.

The cumulative effect of these interjections created a reasonable apprehension that the judge lacked impartiality and amounted to a substantial miscarriage of justice.

A further successful ground of appeal was that Black interfered with the case by discouraging the defendants from calling Matilda as a witness.

HH raised a number of disincentives in highly emotive language, including that it may be necessary that Matilda should be subject to prior psychological assessments.

This is despite the fact that, at the time of trial, Matilda was a 20-year-old adult attending university, and there was no suggestion she lacked competence to give evidence.

HH further suggested that if Matilda were called, it would be taken into account during sentencing, and bail may not be available.

The court found that Black’s actions “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”.

A fair-minded reasonable lay observer may therefore reasonably apprehend that the views expressed by Judge Black did affect the final decision not to call Matilda to give evidence – even though there was additional evidence the ultimate decision was also based on Matilda being “a ball of nerves” immediately prior to being called.

A retrial has been ordered.

Courtney (a pseudonym) v the State of Western Australia [2026] WASCA 86