SRO v The State of Western Australia
[2019] WASCA 63
•24 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SRO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 63
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 22 MARCH 2019
DELIVERED : 22 MARCH 2019
PUBLISHED : 24 APRIL 2019
FILE NO/S: CACR 235 of 2018
BETWEEN: SRO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND KUN 21 of 2016
Catchwords:
Criminal law - Appeal against conviction - One count of sexual penetration of a child under 13 - Whether trial judge's directions contained material errors of fact that resulted in a miscarriage of justice
Legislation:
Nil
Result:
Extension of time within which to appeal granted
Appeal allowed
Conviction set aside
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | K Farley SC |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
TRO v The State of Western Australia [2018] WASCA 231
REASONS OF THE COURT:
The appellant and his brother were jointly tried, and convicted, on separate charges of sexual penetration of a child under the age of 13 years by penetrating her anus with his penis. The appellant was the subject of count 1 on the indictment and his brother was the subject of count 2.
On 5 November 2018, this court allowed an appeal against conviction by the appellant's brother on grounds that the trial judge erred in two respects: a misdirection concerning the demeanour of the complainant; and misdirections regarding the absence of injuries.[1]
[1] TRO v The State of Western Australia [2018] WASCA 231.
On 13 December 2018, the appellant filed an appeal notice and an application for extension of time within which to appeal. The appellant relied on the two grounds of appeal that were upheld in TRO v The State of Western Australia.
At the hearing of the appeal, the court made the following orders:
(1)The application for an extension of time to appeal be granted.
(2)The appeal be allowed.
(3)The judgment of conviction on count 1 in indictment KUN 21 of 2016 be set aside.
(4)There be a new trial of the appellant on count 1 in indictment KUN 21 of 2016.
The court also made orders concerning bail.
Whether the jury was satisfied beyond reasonable doubt of the accuracy and reliability of the complainant's evidence concerning count 1 was critical to a finding of guilt against the appellant. The erroneous directions, as found in TRO, concerned the manner in which the jury should approach the evaluation of the accuracy and reliability of the complainant's evidence and were capable of affecting the jury's assessment of whether penetration had occurred. Consequently, as the respondent rightly conceded, the grounds of appeal upheld in TRO apply with equal force to the appellant. For the reasons given in that decision, we upheld this appeal and made the orders set out in [4].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech
24 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SRO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 63 (S)
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 21 AUGUST 2023
DELIVERED : 21 AUGUST 2023
PUBLISHED : 22 AUGUST 2023
FILE NO/S: CACR 235 of 2018
BETWEEN: SRO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND KUN XX of XXXX
Catchwords:
Violence restraining order - Where trial judge had made a violence restraining order - Where violence restraining order could only be made if appellant and complainant were in a family relationship - Where appellant and complainant were not in a family relationship - Where appellant's conviction was overturned on appeal - Whether appropriate to declare violence restraining order null and void
Legislation:
Restraining Orders Act 1997 (WA), s 63A
Result:
Violence restraining order declared null and void
Category: B
Representation:
Counsel:
| Appellant | : | N Sinton |
| Respondent | : | R Arndt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
SRO v The State of Western Australia [2019] WASCA 63
Yappo v The State of Western Australia [2021] WASCA 133 (S)
REASONS OF THE COURT:
(These reasons were delivered extemporaneously on 21 August 2023 and have been edited from the transcript.)
On 21 August 2023, the court ordered that the violence restraining order purportedly made by the District Court of Western Australia against the appellant pursuant to s 63A of the Restraining Orders Act 1997 (WA) on 1 March 2018 is null and void. These are our reasons for so ordering.
On 1 March 2018, the appellant was convicted after trial of a charge of sexual penetration of a child under the age of 13 years.
On 22 March 2019, this court allowed the appellant's appeal against conviction, set aside the judgment of conviction and ordered that there be a new trial.[2]
[2] SRO v The State of Western Australia [2019] WASCA 63.
On 11 April 2019, the District Court noted the State's application to discontinue the charge and discharged the appellant on the indictment.[3]
[3] ts 529 - 530.
At the time of sentencing the appellant on 1 March 2018, the trial judge made a restraining order, purportedly pursuant to s 63A of the Restraining Orders Act.
The trial judge evidently understood that he was obliged to make a restraining order under s 63A of the Restraining Orders Act.[4] However, the appellant's offence was under s 320 of the Criminal Code (WA). At the material time, s 63A applied to an offence under s 320 of the Criminal Code only where the person committing the offence was in a family relationship with a victim of the offence: s 63A(1A)(b) of the Restraining Orders Act. That was not so in the present case. The appellant and the complainant did not meet any of the criteria in pars (a) ‑ (f) of the definition of 'family relationship' in s 4(1) of the Restraining Orders Act. Consequently, the assumed foundation for the violence restraining order did not exist.
[4] ts 01/03/18, 16 - 17.
Further and in any event, this court has power, in relation to a violence restraining order that was founded on a conviction that has been set aside by this court, to declare the violence restraining order to be null and void.[5]
[5] See Yappo v The State of Western Australia [2021] WASCA 133 (S) [9] ‑ [11].
In the circumstances already outlined, it is appropriate to declare that the appellant's violence restraining order is null and void.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
22 AUGUST 2023
2
2
1