HTN v The State of Western Australia

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.