HES v The State of Western Australia

[2022] WASCA 151 (S2)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HES -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 151 (S2)

CORAM:   MITCHELL JA

HEARD:   ON THE PAPERS

DELIVERED          :   23 JULY 2024

FILE NO/S:   CACR 55 of 2021

BETWEEN:   HES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 56 of 2021

BETWEEN:   HES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number            :   XXX IND 19 OF 2020

Catchwords:

Criminal law - Application to cancel lifetime violence restraining orders - Where appellant's convictions set aside and retrial ordered - Where prosecution discontinued following appeal determination

Legislation:

Restraining Orders Act 1997 (WA), s 63A

Result:

Violence restraining orders cancelled

Category:    B

Representation:

CACR 55 of 2021

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

CACR 56 of 2021

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

HES v The State of Western Australia [2022] WASCA 151

HTN v The State of Western Australia [2024] WASCA 5

Smith v The State of Western Australia [2024] WASCA 52

Yappo v The State of Western Australia [2021] WASCA 133 (S)

MITCHELL JA:

1. On 4 March 2021, the appellant was convicted after trial by jury of one count of indecent assault contrary to s 323 of the Criminal Code (WA) (Code), and 11 counts of sexual penetration without consent, contrary to s 325(1) of the Code. The offending related to six complainants.

2. On 3 May 2021, in addition to sentencing the appellant, the trial judge made lifetime violence restraining orders (Lifetime VROs) against the appellant protecting the six complainants. The Lifetime VROs were made under s 63A of the Restraining Orders Act 1997 (WA) as a result of the appellant's convictions.

3. On 2 December 2022, this court allowed the appellant's appeal against conviction, set aside the judgments of conviction and ordered a retrial on the counts of the indictment on which the appellant was convicted at trial.[1]  The Director of Public Prosecutions subsequently decided not to proceed with a retrial on those counts, which were discontinued on 23 June 2023.

   [1] HES v The State of Western Australia[2022] WASCA 151.

4. By application in an appeal filed on 12 July 2024, the appellant seeks an order to, in effect, cancel the Lifetime VROs with effect from 2 December 2022.  The parties have advised that they are content for the application to be determined on the papers.  The Director of Public Prosecutions has indicated that the State does not oppose the application.

5. For the reasons I explained in Yappo v The State of Western Australia,[2] I have jurisdiction to deal with the application sitting as a single judge.

   [2] Yappo v The State of Western Australia [2021] WASCA 133 (S) [10] - [12].

6. As was recently confirmed in HTN v The State of Western Australia,[3] and Smith v The State of Western Australia,[4] this court has power to cancel a violence restraining order made under s 63A of the Restraining Orders Act 1997 on the basis of a conviction that has been set aside by this court on appeal.  Such an order recognises that the restraining order was binding upon the person between the date on which the restraining order was made and the date on which the conviction was set aside.

   [3] HTN v The State of Western Australia [2024] WASCA 5 [5] ‑ [6].

   [4] Smith v The State of Western Australia [2024] WASCA 52 (S) [7].

7. The Lifetime VROs could not have been made in the absence of the appellant's convictions, which this court has set aside in the appeal.  In the circumstances, it is appropriate for me to make a consequential order cancelling the Lifetime VROs with effect from 2 December 2022.  I will therefore make an order to that effect.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RL

Associate to the Honourable Justice Mitchell

23 JULY 2024