DC v The Commissioner of Police - [2020] WASCA 69

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DC -v- THE COMMISSIONER OF POLICE [2020] WASCA 69
CORAM:   QUINLAN CJ
MAZZA JA
MITCHELL JA

HEARD:   26 MARCH 2020
DELIVERED          :   29 APRIL 2020
FILE NO/S:   CACR 126 of 2019
BETWEEN:   DC
Appellant
AND
THE COMMISSIONER OF POLICE
Respondent

Catchwords:

Appeal against dismissal of an application for spent conviction order - Serious sexual offences - Whether primary judge erred in failing to make a finding as to the risk of the appellant reoffending - Whether the primary judge erred in taking into account irrelevant considerations

Legislation:

Criminal Appeals Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
District Court of Western Australia Act 1969 (WA), s 79(1)(a)
Equal Opportunity Act 1984 (WA)
Spent Convictions Act 1988 (WA), ss 6, 27
Supreme Court Act 1935 (WA), s 58(1)(m)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	No appearance
Amicus Curiae	:	Mr A J Sefton & Mr G J Stockton for the Attorney General for Western Australia

Solicitors:

Appellant	:	NR Barber Legal
Respondent	:	State Solicitor's Office
Amicus Curiae	:	State Solicitor's Office

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

House v The King [1936] HCA 40; (1936) 55 CLR 499
Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASCA 208
WHW v Commissioner of Police [2014] WASCA 153

JUDGMENT OF THE COURT:

Introduction

The appellant appeals from the decision of Birmingham DCJ dated 25 July 2019, dismissing his application, pursuant to s 6(1) of the Spent Convictions Act 1988 (WA) (Spent Convictions Act or Act), to have thirteen convictions incurred by him declared spent.
The convictions the subject of the application were all convictions recorded on 23 February 1996 in respect of serious sexual offending against the appellant's two stepdaughters.
The learned primary judge's decision under s 6 of the Spent Convictions Act was a discretionary one. The grounds of appeal allege that the learned primary judge erred in law in refusing the application.
For the reasons that follow, in our view, the appeal must be dismissed.

Background

The application before Birmingham DCJ was supported by two affidavits sworn by the appellant.

The appellant's offending and convictions

The first of the appellant's affidavits annexed various documents relating to his convictions, including his criminal history and the sentencing remarks of Pidgeon J on 23 February 1996. That documentation was, however, incomplete and did not include a copy of the indictment in relation to the offences committed against one of the complainants. With the appellant's consent, this Court obtained the full record of the sentencing from the original court file and provided a copy of that material to the parties to the appeal. While that additional material clarified matters of detail, it did not affect the substance of the material before the learned primary judge.
On 19 February 1996, the appellant pleaded guilty to 13 charges on two indictments (one in relation to each of the complainants).
The appellant pleaded guilty to seven offences against the older of his two stepdaughters. That offending, which commenced in 1990 or 1991 (when the girl was 11 or 12) and continued until September 1995, included the following:
(a)sexual penetration of the child without her consent by inserting his finger into her vagina;
(b)sexual penetration of the child, who he knew to be his de facto child, by inserting a pencil into her vagina;
(c)sexual penetration of the child, who he knew to be his de facto child, by engaging in cunnilingus;
(d)indecent dealing with the child, who he knew to be his de facto child, by masturbating onto her leg;
(e)encouraging the child, who he knew to be his de facto child, to do an indecent act, by encouraging the child to masturbate in front of him;
(f)indecent dealing with the child, who he knew to be his de facto child, by rubbing cream on her vagina; and
(g)indecent dealing with the child, who he knew to be his de facto child, by placing his hands down the front of her pants and telling her to spread her legs.
The appellant pleaded guilty to six offences against the younger stepdaughter. That offending, which commenced around 1992 (when the child was nine years of age) and continued until 1995, included the following:
(a)indecent dealing with the child, who he knew to be his de facto child, by touching the outside of her vagina and attempting to rub his penis against her;
(b)indecent dealing with the child, who he knew to be his de facto child, by rubbing his penis on the outside of her vagina;
(c)attempting to indecently deal with the child, who he knew to be his de facto child, by attempting to touch her vagina;
(d)indecent dealing with the child, who he knew to be his de facto child, by sitting on top of her and touching her vagina;
(e)sexual penetration of the child, who he knew to be his de facto child, by forcing his finger into her vagina; and
(f)indecent dealing with the child, who he knew to be his de facto child, by getting on top of her and taking his penis out of his pants.
The facts relied upon by the Crown in relation to the fourth offence against the younger stepdaughter included an allegation that the offence was accompanied by violence, in that the appellant punched the child three or four times in the face following the indecent dealing. The appellant denied that allegation. After hearing evidence from the appellant denying that he had punched the child, Pidgeon J was satisfied that he should sentence the appellant on the basis that the punches did occur.
The offences were undoubtedly very serious and took place over a significant period of time.
On 23 February 1996, taking into account the time that the appellant had spent in custody prior to sentence, Pidgeon J sentenced the appellant to a total effective sentence of 9 years and 4 months imprisonment.

The appellant's evidence in support of the application

In support of his application to have the 13 convictions declared spent the appellant set out his personal circumstances, including his work history. At the time of the application he was 71 years of age. The appellant is retired and, following his release from prison, has remarried. He met his current wife in 2008 and, at the time of the application, they had been married for 9 years.
As to his desire to have the convictions declared spent, the applicant deposed, in his first affidavit, to the following:
The reasons why I wish to have my conviction declared a spent conviction are as follows:
a) The offending that I committed was very serious. However since that offending and my later imprisonment for it, I have not committed any offences.
b) I am now a reformed man. The offending I committed more than twenty years ago is abhorrent to me.
c) I will never offend in this way again as I now fully understand the pain and suffering I caused to the victims of my offending.
d) During and after prison, I undertook counselling to understand my offending and to ensure no repeat of that offending.
e) I have become a Christian. It is a fundamental tenet of Christianity to respect others and not to harm them in a sexual way or at all.
f) I am confident I will never reoffend.
g) I am now required to have a Police Certificate even to welcome fellow members at the door and serve tea and coffee within the church.
h) If my convictions are declared spent I will be able to serve at my church and participate in voluntary work to a greater extent than I could otherwise. Doing such work been an integral part of my life since my release from prison. It gives me clarity, peace and a way to give back to the community.
The appellant's second affidavit provided more detail in relation to his experiences with a number of church communities. Those experiences included circumstances in which his convictions had become known to Ministers or members of those communities. In one case, the appellant felt ostracised as a result of information from his past having become known within the community. In another case, the appellant was invited by his Minister to apply to become a warden of his church. While the Minister was aware of the appellant's convictions, his application to become a warden was declined by the central authority of the church.
The appellant deposed that he could not carry out volunteer work at his current church without a police clearance. As he deposed:
This effectively means that I am precluded from doing work I love to do in my Church because, given my previous experiences in disclosing my convictions, I do not wish to find myself again ostracised by disclosing my past offences.
He concluded that affidavit (which we have redacted to remove potentially identifying details) as follows:
Upon my release from prison, I sought to establish an agency called […]. My intent in doing so was to assist ex-prisoners establish their lives in pro‑social lives. Although this venture ultimately failed due to a lack of funding from external agencies, it remains my goal to assist other persons who have had similar prior issues to myself. I intend to continue this work through my church.
I would also like to volunteer at [ … ] and at other opportunity shops but cannot do so unless my criminal record is declared spent, as this agency and other similar agencies also require a Police clearance.
In summary, since my offending, I have never reoffended, my rehabilitation has been entirely successful and yet with my convictions I remain precluded from engaging in voluntary work that is most important to me and whereby I can better assist others.
Hence, I wish my offences from a 'life-time' ago to be declared spent.
The appellant's first affidavit also annexed a number of letters in support of him. One of the 'letters' was from the appellant himself (it is essentially a statement from the appellant consistent with his affidavits). Another of the letters was from the appellant's wife. Both the appellant and his wife, of course, acknowledged that they were aware of his previous offending. The letters from other persons, which were in the form of character references, however, do not reveal whether those persons were aware of the appellant's past offending.
The letter from the appellant concludes with the following paragraph:
I have been a church member since my release from prison but have now found that in this over politically correct world I need a Police Clearance to be a welcomer at the door or even serve tea or coffee. Church and serving is a part of my life so this is the reason for my request to have my offenses quashed. Without a Police Clearance I can no longer do what I believe I need to do within my church or even do any volunteer work at all.
The material provided in support of the appellant's application did not include any material from a person with expertise in the assessment of the risk of sexual reoffending, such as a psychiatrist or a psychologist with specialised expertise.
No oral evidence was called from the appellant or any other person.
Before turning to the learned primary judge's reasons for decision it is appropriate to set out the relevant statutory context.

Spent Convictions Act

The statutory purpose of the Spent Convictions Act was identified by this Court in WHW v Commissioner of Police in the following terms:[1]
[W]hen the Act is read as a whole, including its long title, it is evident that a fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, be removed, or at least ameliorated, after the passage of what the legislature regards as an appropriate period of time.
[1] WHW v Commissioner of Police [2014] WASCA 153 (WHW v Commissioner of Police) [66] (Martin CJ, Buss & Murphy JJA).
In furtherance of that purpose, s 6 of the Spent Convictions Act confers a power on the District Court to make an order declaring that a conviction is spent. That power is a discretionary one, which is enlivened after the expiration of a prescribed period for that conviction. The prescribed period in relation to the appellant's convictions is 10 years from the day on which the convictions were incurred, plus the period of imprisonment imposed.
The Act provides for a variety of effects to follow from a conviction becoming spent, including provisions prohibiting discrimination against persons on the basis of a spent conviction and making provision for the lodging of complaints in that regard under the Equal Opportunity Act 1984 (WA).
Another effect of a spent conviction is that questions about, or general law obligations requiring disclosure of, convictions, are not to be taken to include or require disclosure of spent convictions (s 27).
Section 6(4) of the Act regulates the court's power to make a spent conviction order. It provides:
(4) The making of an order under subsection (1) is at the discretion of the judge and that discretion shall be exercised having regard to -
(a) the length and kind of sentence imposed in respect of the conviction; and
(b) the length of time since the conviction was incurred; and
(c) whether the conviction prevents or may prevent the applicant from engaging in a particular profession, trade or business or in a particular employment; and
(d) all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and
(e) the nature and seriousness of the offence; and
(f) the circumstances surrounding the commission of the offence; and
(g) whether there is any public interest to be served in not making an order.
The factors enumerated in s 6(4) are factors which the court is bound to take into account. Moreover, it is to be implied, having regard to the subject matter, scope and purpose of the Spent Convictions Act, that the court in exercising its discretion under s 6(4) must also have regard to the underlying rehabilitative objective of the Act.[2]
[2] WHW v Commissioner of Police [70] - [71] (Martin CJ, Buss & Murphy JJA).
Turning then to the learned primary judge's application of these provisions in the present case.

The learned primary judge's reasons for decision

Birmingham DCJ, having summarised the factual background, commenced his reasons with the following observations:
That churches today have changed procedures and require disclosure of offences of a type the subject of these - this application is not unsurprising. Throughout Australia over the last several years there has been a very well‑publicised royal commission into the abuse that has been perpetrated against particularly young children within organisations, including religious organisations, where those - that abuse has been concealed for many, many years and in many cases many decades with catastrophic consequences for the victim.
One can well understand why such organisations would today wish to ensure that they are able to say confidently to their congregation that there is no risk posed by any member of the staff of the church or people who perform functions within the church who have effectively been clothed by the responsibility or clothed with authority by the church by their appointment to those positions.
People might well assume that an organisation that has those safeguards in place would ensure that all background checks were undertaken to ensure that there was no risk to the congregation of the church, including family members and children perhaps, attending church from those who are employed and clothed with authority within the organisation.
The learned primary judge expressed some disquiet in relation to the statement made by the appellant that is reproduced at [19] above. In that regard his Honour said:
It's not a matter of political correctness. And in relation to the need for police clearances, and indeed, working with children certificates, and matters of such nature, protection of young, vulnerable children is of paramount importance. Police clearances are also required in relation to offences where they might well have involved dishonesty and people who dealing with finances and things such as that.
His Honour identified the factors in s 6(4) and continued:
I have to have regard also to all the circumstances of the applicant including that the time of the commission of the offence and matters subsequent and the very serious nature of the offending and by their very nature they are serious, they were sustained offending over a period of time.
Critically, I need to consider whether there's any public interest to be served in not making the order. And in considering that, it's necessary for me in turning to that last criteria to look at the interests of other persons in the community with whom the applicant may come into contact with or with whom he may have dealings with knowing his history.
The effect of my making an order is such that the applicant would be able to apply for employment or for positions within the church and be able to provide a police clearance certificate which make no reference whatsoever to his convictions. Prospective employers would be denied that knowledge and indeed in this case, those in authority within his church would be denied that knowledge or information.
His Honour did not make an express finding as to whether the appellant posed a risk of further offending, although he did refer to the submissions made on the appellant's behalf that the appellant had 'atoned' for his offending. His Honour concluded:
I am mindful that there is an impact upon the applicant from the fact of the conviction and of his desire to be effectively a fully participating member of his congregation. I accept also that he's unable to perform tasks that are important to him and that he feels burdened by the conviction and would seek some relief from that burden of his past.
That he has atoned as his counsel has put it for his offending and he wants the full benefit of society, particularly within the church activity from being able to face the congregation without the stigma of the prior conviction. That must be weighed against those matters that must be considered in the last criteria, namely whether a particular public interest will be served in not making the order and that requires me to look at the interests of other persons in the community who he can come in contact with.
In this case in particular, the members within the church or congregation where clearly a basis of utmost truth and honesty would seemingly be the foundation of that community. The presentation of a police clearance certificate would make no reference of the conviction in respect of serious matters which may well trouble other members of its church charged with responsibility for ensuring that the church and its reputation are maintained by ensuring that those persons who it places into positions of responsibility can be seen to have those qualities and values that are in tune with community thinking.
It is not simply a matter of political correctness in circumstances where the welfare of children and their safety must be of paramount concern. Whilst I acknowledge and respect the applicant's desire to fully participate, I have to balance up also the community's interests and in particular as to whether or not those with whom he might come into contact would wish to know or need to know of the prior offending for the purpose of that organisation.
On balance in this case I'm not persuaded that it is appropriate to quash the convictions and make the order at this time, particularly in circumstances where the community of the church seemingly places considerable weight upon the ability to be able to ensure that those discharging its functions within its community are without the stigma of a conviction that would impact upon that organisation.

The Grounds of Appeal

The appellant appeals the learned primary judge's decision on four grounds:
1.The learned Judge erred in law in finding that there was a public interest pursuant to s 6(4)(g) that made it inappropriate to make an order declaring the convictions to be spent, in circumstances where the appellant's evidence that he was fully rehabilitated and would not re-offend was accepted by his Honour or was not the subject of any contrary finding by his Honour.
2.Further or in the alternative to Ground 1, the learned Judge erred in not making any clear finding as to whether the appellant posed a continued risk of re-offending and, if so, to what extent.
3.The learned Judge erred in law in having regard to irrelevant considerations in finding that there was as public interest to be served in not making a spent conviction order.
4.The learned [Judge] erred in law in failing to properly take into account, in the exercise of the discretion under s 6(4) of the Act, that a fundamental purpose of the Act was to encourage offenders to rehabilitate themselves.
The notice of appeal filed by the appellant included an application for leave to appeal. That application appears to have been made on the assumption that the appeal was brought pursuant to the Criminal Appeals Act2004 (WA). That assumption was incorrect. The appeal is not a criminal appeal, but is made pursuant to the general statutory right of appeal in s 79(1)(a) of the District Court of Western Australia Act 1969 (WA), as confirmed by s 58(1)(m) of the Supreme Court Act1935 (WA). In those circumstances, leave to appeal is not required.
In addressing the grounds of appeal it is important to recognise that, as the learned primary judge's decision under s 6 was a discretionary one, the standard of review described in House v The King[3] applies, namely that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[3] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
In accordance with these principles, in the absence of express or implied error on the part of the learned primary judge, the weight to be afforded to the various considerations under the Act were a matter for the learned primary judge. Assertion of a weighting error does not demonstrate appellable error in the exercise of a discretion.[4]
[4] Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASCA 208 [25] (Quinlan CJ, Beech & Pritchard JJA).
For the reasons that follow, in our view the grounds of appeal are without merit.

Disposition

The grounds of appeal are all related. It is appropriate to consider them together.
The appellant's principal complaint is that, on the basis of the material before him, the learned primary judge should be taken to have found that the appellant was fully rehabilitated and that he posed no risk of further offending. In those circumstances, the appellant submits, the learned primary judge erred in law in finding that there was a public interest to be served in not making an order. This is the essence of ground 1.
In the alternative, ground 2 alleges that, if the learned primary judge did not make a clear finding as to whether the appellant posed a continued risk of reoffending, it was an error for his Honour not to do so.
Before turning to those issues, it may readily be accepted, as a matter of the construction of the Act, that whether, and to what extent an applicant has rehabilitated himself or herself is one of the 'circumstances of the applicant … at the time of the application' within the meaning of s 6(4)(d). Moreover, as the Court observed in WHW v Commissioner of Police, allied with the question of rehabilitation is the question of whether and to what extent the applicant poses a risk of reoffending.[5]
[5] WHW v Commissioner of Police [72] (Martin CJ, Buss & Murphy JJA).
In WHW v Commissioner of Police the Court also said:[6]
It will be important, at least ordinarily, for the court to make a clear finding as to whether, and to what extent, the applicant for a spent conviction order poses a continued risk of reoffending as one of the relevant circumstances of the applicant at the time of the application (s 6(4)(d)).
[6] WHW v Commissioner of Police [88] (Martin CJ, Buss & Murphy JJA).
While this observation is undoubtedly correct, it must be seen in its proper context. In WHW v Commissioner of Police the appellant had adduced evidence from a clinical psychologist that his risk of reoffending was 'extremely low or negligible'.[7] On appeal, the Court observed that the judge at first instance 'appear[ed] to have accepted the psychologist's report, but … misstated the psychologist's opinion as to the appellant's risk of reoffending'.[8] The observation reproduced in the above paragraph at [43] was therefore made in a context in which the evidence clearly enabled the primary judge to make a finding as to the risk of reoffending.
[7] WHW v Commissioner of Police [29] (Martin CJ, Buss & Murphy JJA).
[8] WHW v Commissioner of Police [87] (Martin CJ, Buss & Murphy JJA).
Whether the court is able to make a clear finding as to the risk of reoffending, however, must necessarily depend upon the evidence adduced in each particular case, having regard to the nature of the applicant's past offending. Much, in this way, depends upon the circumstances of each case.
In some cases, such as WHW v Commissioner of Police, there will be evidence, including expert evidence, which enables a clear finding to be made as to the risk of reoffending. In other cases, the evidence may be scant, and provide little basis for the court to provide a finding either way.
The present case is in the latter category.
On the material before the learned primary judge, in our view, there was insufficient evidence to enable his Honour to make a finding as to the risk of reoffending.
The only evidence in that regard, as the appellant acknowledged at the hearing of the appeal, was the appellant's own evidence that he had fully rehabilitated himself and that he would never reoffend. The appellant submitted that the learned primary judge should be taken to have accepted the appellant was rehabilitated and would not reoffend (ground 1) and, if not, that his Honour was in error in not making a finding in that regard (ground 2).
In our view, neither proposition can be accepted.
As to the first proposition, his Honour did not make a positive finding that the appellant was rehabilitated and posed no risk of reoffending. It is true that the learned primary judge did not expressly reject the appellant's own evidence that he was fully rehabilitated. To that extent, it may, at least, be inferred that his Honour accepted that the appellant's view of his own risk of reoffending was genuinely and sincerely held. It is a different question, however, whether as an objective matter, the appellant posed a risk of reoffending.
In that regard, the common experience of the courts is sufficient to recognise, in relation to sexual offending, and in particular sexual offending against children, that an offender's self-assessment of the risk of reoffending is not always a reliable indicator of future risk. That is why legislative schemes specifically concerned with the risk of future sexual offending, such as the Dangerous Sexual Offenders Act2006 (WA), require the preparation of detailed reports from qualified experts as to the assessment of that risk.
None of which is to proffer any conclusion in relation to the risk posed by the appellant in the present case. On the contrary, it is simply to recognise that, in the absence of any other evidence, for the learned primary judge to have made a clear and positive finding in relation to that risk, on the basis of the appellant's evidence alone, would have been fraught with difficulty.
No error has been demonstrated in the manner in which his Honour dealt with the issue of the risk of reoffending.
For these reasons, grounds 1 and 2 are without merit.
Ground 3 challenges, as an irrelevant consideration, the learned primary judge's finding that there was a public interest to be served in not making a spent conviction order. The finding that there was such a public interest is also challenged in ground 1.
The matters that the appellant submitted were irrelevant considerations were those concerning the contemporary environment in which religious institutions operate and the community's legitimate expectation that those institutions ensure that all background checks are taken so as to ensure that there is no risk to the congregation of the church from those who are employed by, or clothed with authority within, the institution. The appellant also referred, in this context, to the learned primary judge's observation that truth and honesty were the foundation of the appellant's church community.
None of these matters were irrelevant considerations.
On the contrary, following the Royal Commission into Institutional Responses to Child Sexual Abuse (if not before), no informed member of the Australian community could fail to be aware of the catastrophic history of child sexual abuse within religious institutions in this country and the failure of those institutions to adequately respond to that abuse. The public interest in ensuring that persons charged with responsibility for those institutions take all reasonably practicable measures to ensure that such abuse does not recur in future is obvious.
It is a corollary of that public interest that those persons with responsibility for those institutions should be able to take effective measures to assess the risks of child abuse and to have confidence in the information that is available to them in relation to those risks.
For these reasons, particularly in a case such as the present, where the court is not able to make a clear finding as to the applicant's risk of reoffending, the need for there to be a continuing requirement for the disclosure of sexual offending against children is a relevant consideration in relation to whether there is a public interest to be served in not making a spent conviction order.
In this regard, it is to be recalled that in the present case, it was the appellant's stated purpose for seeking the order that he would not have to disclose his convictions, in circumstances in which his previous disclosure had, on the face of it, affected the decision-making of church authorities. In those circumstances, the interests of the appellant's new church community having access to information relating to the appellant's convictions, for the purposes of its own decision-making, was a relevant consideration. The weight to be afforded to it was a matter for the learned primary judge.
This is not to say that the public interest would, in every case, require that an application for a spent conviction order in relation to convictions for sexual offences against children should be refused. As the Court held in WHW v Commissioner of Police, there is nothing in the Act to indicate that the public interest requires that offences of this particular kind should fall outside the scope of its ordinary operation.[9]
[9] WHW v Commissioner of Police [81] (Martin CJ, Buss & Murphy JJA).
Each case must be determined on its merits, having regard to all relevant facts and circumstances.
Ground 3 is without merit.
Finally, there is no basis to conclude, as alleged by ground 4, that the learned primary judge failed to properly take into account that a fundamental purpose of the Act was to encourage offenders to rehabilitate themselves; see the passage from WHW v Commissioner of Police reproduced at [23] above.
Indeed, the learned primary judge was specifically taken to that passage from WHW v Commissioner of Police, and, in the course of his reasons, expressly referred to the general purpose of the Act in allowing applications 'where there's been no further offending and [the applicant] may be considered to have been rehabilitated and deserving of some relief from conviction'.
His Honour, therefore, clearly took into account the purpose of the Act in exercising his discretion. Insofar as the use of the word 'properly' in ground 4 suggests that the learned trial judge gave insufficient weight to the underlying rehabilitative objective of the Act, such an allegation does not amount to error, in the House v The King sense, unless the learned primary judge's decision was unreasonable or plainly unjust.
On no view could the learned primary judge's decision be described as unreasonable or plainly unjust. Indeed, on the basis of the material before the learned primary judge, if we were exercising the discretion we would have reached the same conclusion.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan
29 APRIL 2020