HES v The State of Western Australia

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:

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.
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.
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.
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.
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].
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].
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

CaseChat Overview and Summary

The matter between HES, the appellant, and the State of Western Australia, the respondent, was determined by the Court of Appeal of the Supreme Court of Western Australia. HES sought the cancellation of lifetime violence restraining orders imposed under the Domestic and Family Violence Protection Act 2012 (WA). The orders were made after HES was convicted of serious domestic violence offences. The Court of Appeal set aside HES's convictions and ordered a retrial. Following the appeal determination, the prosecution discontinued the charges against HES. Consequently, the appellant applied to the Supreme Court for the cancellation of the restraining orders, which were based on the now-quashed convictions.

The primary legal issue before the court was whether the restraining orders could be cancelled in light of the appellant's convictions being set aside and a retrial ordered by the Court of Appeal. The court was required to consider the implications of the quashed convictions on the validity and enforceability of the restraining orders. Additionally, the court had to examine the provisions of the Domestic and Family Violence Protection Act 2012 (WA) and the relevant case law to determine the appropriate course of action.

The Court of Appeal held that the restraining orders were no longer valid following the quashing of the convictions and the discontinuation of the prosecution. The court reasoned that the restraining orders were contingent upon the existence of the convictions, which no longer existed. The court concluded that the orders were no longer tenable and, therefore, should be cancelled. The court also noted that the Domestic and Family Violence Protection Act 2012 (WA) provided the necessary legislative framework for the cancellation of such orders in circumstances where the underlying convictions had been set aside. The Court of Appeal ultimately decided in favour of the appellant and ordered the cancellation of the restraining orders.

The final orders of the court included the cancellation of the lifetime violence restraining orders imposed on the appellant by the Supreme Court. The court further directed that the restraining orders be expunged from all relevant records. The court's decision provided clarity on the implications of quashed convictions on restraining orders and affirmed the legal framework for the cancellation of such orders in similar circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established