Smith v The State of Western Australia

[2024] WASCA 52 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 52 (S)

CORAM:   QUINLAN CJ

MAZZA JA

VANDONGEN JA

HEARD:   ON THE PAPERS

DELIVERED          :   19 JUNE 2024

FILE NO/S:   CACR 7 of 2023

BETWEEN:   BRADLEY WILLIAM DEREK SMITH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PETRUSA DCJ

File Number            :   IND 729 of 2021

Catchwords:

Criminal law - Application to cancel lifetime family violence restraining order - Where appellant's conviction set aside and judgment of acquittal entered

Legislation:

Criminal Code (WA), s 321A
Restraining Orders Act 1997 (WA), s 63A

Result:

Family violence restraining order cancelled

Category:    B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

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

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

SRO v The State of Western Australia [2019] WASCA 63 (S)

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

JUDGMENT OF THE COURT

1. After a trial in the District Court, the appellant was convicted on 20 June 2022 of an offence of persistently engaging in sexual conduct with a child under the age of 16 years, contrary to s 321A of the Criminal Code (WA) (Code). On 5 August 2022, the appellant was sentenced to 6 years' imprisonment, and a lifetime family violence restraining order was made pursuant to s 63A of the Restraining Orders Act 1997 (WA).

2. Section 63A(1)(a) relevantly provides that a court convicting a person for a 'violent personal offence' is to make a violence restraining order against the person for the protection of the victim for the period of the life of the person who committed the offence. An offence against s 321A of the Code is a 'violent personal offence' for these purposes.[1]

   [1] Section 63A(1A)(b)(i) of the Restraining Orders Act.

3. The appellant subsequently appealed against conviction.  However, he did not appeal against the imposition of the restraining order.

4. On 27 March 2024, we allowed the appellant's appeal and set aside the conviction.  Later, on 14 May 2024, the court decided that there should be no retrial and a judgment of acquittal was then entered:  Smith v The State of Western Australia.[2]

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

5. By an application filed on 4 June 2024, the appellant seeks an order to, in effect, cancel the restraining order.  The application was supported by an affidavit affirmed by the appellant on 4 June 2024.  It is unnecessary to refer to the contents of that affidavit.

6. In an email sent to the Court of Appeal registry on 5 June 2024, a representative of the Office of the Director of Public Prosecutions for Western Australia advised that the respondent did not oppose the application being determined on the papers, nor did it oppose the cancellation of the restraining order.

7. It was recently confirmed in HTN v The State of Western Australia[3] that this court has power, in relation to a family violence restraining order founded on a conviction that has been set aside by this court, to declare the restraining order to be null and void, and to cancel (or set aside) such an order with effect from the date on which the conviction was set aside.  An order to that effect will recognise that the restraining order was binding upon the appellant 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]. See also Yappo v The State of Western Australia [2021] WASCA 133 (S) [9] ‑ [11] and SRO v The State of Western Australia [2019] WASCA 63 (S) [7].

8. In all the circumstances, it is appropriate to order that the restraining order be cancelled with effect from 27 March 2024.  Accordingly, we make the following order:

   1.The family violence restraining order numbered DC/CIV/PER/RO/212/2022 made against the appellant on 5 August 2022 by Petrusa DCJ is cancelled with effect from 27 March 2024.

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

RH

Associate to the Honourable Justice Vandongen

19 JUNE 2024