HTN v The State of Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HTN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 5
CORAM:   BUSS P
MAZZA JA

HEARD:   12 JANUARY 2024
DELIVERED          :   12 JANUARY 2024
FILE NO/S:   CACR 172 of 2021
BETWEEN:   HTN
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   BUN 79 of 2019

Catchwords:

Family violence restraining orders - Trial judge made family violence restraining orders against the appellant pursuant to s 63A of the Restraining Orders Act 1997 (WA) following the appellant's conviction on two counts of offending against s 329(4) of the Criminal Code (WA) - This court allowed the appellant's appeal against conviction, set aside the judgments of conviction and ordered a new trial - The State filed a notice of discontinuance in respect of the charges - Whether the family violence restraining orders should be cancelled

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(l) and (m)
Restraining Orders Act 1997 (WA), s 63A

Result:

Family violence restraining orders cancelled

Category: B

Representation:

Counsel:

Appellant	:	Ms M C Bouwman
Respondent	:	Mr R P Arndt

Solicitors:

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

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

Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1
HTN v The State of Western Australia [No 2] [2022] WASCA 51
SRO v The State of Western Australia [2019] WASCA 63 (S)
Yappo v The State of Western Australia [2021] WASCA 133 (S)

REASONS OF THE COURT:

(These reasons were delivered extemporaneously on 12 January 2024 and have been edited from the transcript.)

On 6 August 2021, the appellant was convicted of two counts of indecently dealing with a child under the age of 16 years who she then knew to be her lineal relative, contrary to s 329(4) of the Criminal Code (WA).
On 13 May 2022, this court allowed the appellant's appeal against conviction, set aside the judgments of conviction and ordered a new trial. See HTN v The State of Western Australia [No 2].[1]
[1] HTN v The State of Western Australia [No 2] [2022] WASCA 51.
On 20 October 2022, Wager CJDC noted that the State had filed a notice of discontinuance in respect of the charges. Her Honour discharged the appellant on the indictment.
On 29 October 2021, when the appellant was sentenced in the District Court, the trial judge made family violence restraining orders against the appellant in respect of the complainants in the charges on which the appellant had been convicted. The restraining orders were made pursuant to s 63A of the Restraining Orders Act 1997 (WA) as a result of the appellant's convictions. There was no other basis on which the restraining orders were made.
This court has power, in relation to a family violence restraining order that was founded on a conviction that has been set aside by this court, to declare the restraining order to be null and void. See Yappo v The State of Western Australia;[2] SRO v The State of Western Australia.[3]
[2] Yappo v The State of Western Australia [2021] WASCA 133 (S) [9] ‑ [11].
[3] SRO v The State of Western Australia [2019] WASCA 63 (S) [7].
This court also has power, in relation to a family violence restraining order that was founded on a conviction that has been set aside by this court, to cancel the order with effect from the date on which the conviction was set aside. See s 40(1)(l) and (m) of the Criminal Appeals Act 2004 (WA); Ardrey v The State of Western Australia [No 2];[4] Yappo [10] ‑ [11]. An order to that effect will recognise that the restraining order was binding upon the person against whom it was made between the date on which the restraining order was made and the date on which the conviction was set aside.
[4] Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 [126(e)], [133].
In the present case, counsel for the State did not suggest that the appellant may have breached the family violence restraining orders between 29 October 2021 (when the trial judge made them) and 13 May 2022 (when this court set aside the judgments of conviction).
Nevertheless, it is appropriate, in the circumstances, to order that each of the family violence restraining orders made against the appellant be cancelled with effect from 13 May 2022.
An order will be made in these terms:
The family violence restraining order numbered DC/CIV/PER/RO/279/2021 and the family violence restraining order numbered DC/CIV/PER/RO/280/2021 made against the appellant on 29 October 2021 by Wallace DCJ are cancelled with effect from 13 May 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
17 JANUARY 2024

This appeal concerns the cancellation of family violence restraining orders made against the appellant, HTN, following her conviction on two counts of indecently dealing with a child under the age of 16 years, who was a lineal relative. The restraining orders were made by the District Court of Western Australia pursuant to section 63A of the Restraining Orders Act 1997 (WA) as a direct consequence of the appellant's convictions. This court previously allowed the appellant's appeal against her convictions, setting aside the judgments of conviction and ordering a new trial. Subsequently, the State filed a notice of discontinuance in respect of the charges, resulting in the discharge of the appellant on the indictment. The central legal issue before the Court of Appeal was whether the family violence restraining orders should be cancelled in light of the appellant's successful appeal against conviction.

The Court of Appeal had the authority to declare the restraining orders null and void or to cancel them, effective from the date the convictions were set aside. The court found that the family violence restraining orders were solely based on the convictions that had been set aside. Since there was no suggestion that the appellant had breached the restraining orders between the date they were made and the date the convictions were set aside, the court deemed it appropriate to cancel the orders from the date the convictions were set aside. This approach recognises that the restraining orders were binding on the appellant until the convictions were set aside, and cancelling them from that date appropriately reflects the legal context.

Consequently, the Court of Appeal ordered the cancellation of the family violence restraining orders made against the appellant with effect from the date the convictions were set aside. Specifically, the orders numbered DC/CIV/PER/RO/279/2021 and DC/CIV/PER/RO/280/2021 were cancelled effective from 13 May 2022. This decision was made in recognition of the appellant's successful appeal and the subsequent discontinuance of the charges by the State.

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established