YAPPO -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 133 (28 July 2021)

Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

1. At the conclusion of the hearing of this appeal against conviction, we made orders granting leave to appeal, allowing the appeal, setting aside the appellant's convictions and ordering a new trial. These are our reasons for making those orders.

1. On 3 September 2020, the appellant was convicted, after trial by jury, of three counts of sexually penetrating the complainant without her consent, contrary to s 325(1) of the Criminal Code (WA).[1] The offences were all alleged to have occurred at about 4 am on 20 June 2019 at the Jull Street Mall in Armadale. The appellant received a total effective sentence of 4 years' immediate imprisonment, backdated to commence on 6 July 2019.
2. The appellant now appeals against his convictions. In essence, he contends a miscarriage of justice arose when the prosecutor submitted to the jury during his closing address that the appellant had cleverly constructed the account the appellant gave in a recorded police interview to meet the evidence which, by the time of the interview, he had come to appreciate existed against him, in circumstances where the prosecutor had decided not to adduce the evidence of two witnesses whose statements to police, which were in the prosecutor's possession, tended to contradict that submission.
3. In our view, the grounds of appeal to that effect are established and the appeal must be allowed on the basis that the prosecutor's approach deprived the appellant of a fair trial and constituted a miscarriage of justice.

1. The State's case was that the appellant confronted the complainant, a 24‑year‑old woman, as she left a public telephone box where she had tried to call her mother to get a lift home. Holding a fork, the appellant threatened to stab the complainant if she did not give him a 'blow job'. He told her to go down a laneway with him, where he made her suck his penis under threat that he would stab her if she did not do so (count 2). At one point, the complainant got up and the appellant put his finger down her pants and penetrated her vagina with his finger (count 3). He also put his hands on her breasts, still holding the fork. The complainant then returned to sucking the appellant's penis (count 4).
2. The appellant said he was going to ejaculate, and the complainant pulled her head away. The appellant ejaculated in his hand, and then flicked his ejaculate on the ground in the laneway. The appellant and complainant then left the laneway and went in separate directions.
3. The complainant went to a railway station where she used a public telephone to call police. Police attended the scene and took swabs from the laneway and the complainant's breast, which were found to contain the appellant's DNA. The complainant was able to identify the appellant from a photo board after the alleged offending.
4. The appellant was arrested and interviewed by police on 6 July 2019. In the interview, he admitted the penile-oral penetrations. He admitted touching the complainant in the vaginal area but denied digitally penetrating the complainant's vagina. The appellant said that the complainant had consented to the conduct, in an arrangement where she would provide him sex in return for drugs (methamphetamine). The appellant claimed that he had met the complainant and a woman called Alison Trimmer in a park at Armadale the previous day and they had discussed him providing the complainant with drugs. In the course of the interview, the appellant also said that when he got home he had told his brother, Kyle Yappo, 'I got my fucking dick sucked', 'I didn't have to pay for it', and 'I gave her a packet'.[2]
5. The prosecution case principally relied on the complainant's evidence as to what had occurred, CCTV footage which showed the interaction between the appellant and complainant just prior to and after the alleged offending, and admissions made by the appellant in his recorded interview with police. The State also called Ms Trimmer, who denied meeting the appellant or knowing the complainant, and the complainant's mother, who gave evidence that the complainant was at home all day on the day prior to the alleged offending. The State contended that the appellant's statement about having met the complainant and Ms Trimmer in a park the previous day was a lie which evidenced his guilt of the charged offences.

1. In his opening statement,[3] the appellant's trial counsel indicated that the appellant did not dispute that he was the person who was present at the mall and that he had sexually penetrated the complainant in the manner alleged. The issue which the appellant did dispute was that the complainant did not consent to the sexual penetration. The appellant's case was that the complainant consented to the sexual activity in an agreed exchange of drugs for sex. The appellant's counsel also indicated that the complainant's credibility and reliability would be challenged on various grounds, which it is unnecessary to detail in these reasons. Counsel contended that the evidence would not establish, beyond reasonable doubt, that the complainant did not consent to the sexual penetrations.
2. The appellant did not give or adduce any evidence at trial. He relied on the account given in his recorded interview with police and various aspects of the complainant's evidence, which counsel contended reflected adversely on her credibility and reliability.

Prosecutor's submissions about the appellant's account

1. In his closing submissions, the prosecutor addressed the appellant's account given to police in the recorded interview. At an early point in dealing with this topic, the prosecutor submitted:[4]

By comparison, what do you make of [the appellant's] account to police? ...

Before the interview commenced he was told what it was about. He was told three charges of sexual penetration without consent. As the interview starts, they give him the date 20 June. It's only three weeks before he's been interviewed.

He is given the time, 3 or 4 o'clock in the morning. He's given the venue, the Jull Street Mall in Armadale. He's told that it's a woman who's made a complaint of sexual assault.

Now, at that point, I want to suggest to you, [the appellant] must have known what it was the police wanted to speak to him about. You would recall he even asked the police - he asked Detective Hughes, 'You would have CCTV there', and she said, 'Yes'. I want to suggest he must have realised there wasn't going to be any point denying that it was him.

So he's made a tactical concession to admit that he had engaged in sexual acts with this woman, particularly a head job in the alleyway in the Jull Street Mall. He's admitted what he knew the police would - must have been able to prove already. But he then says it was just for drugs. (emphasis added)

1. The prosecutor attacked the appellant's account on several fronts. He said that the account was implausible, in that the appellant and complainant did not arrange a time and place to meet and it was improbable that they would then accidently meet when and where they did.[5] The prosecutor submitted that the appellant could be seen holding something in the CCTV footage and pointing it at the complainant, when the appellant told police he was not holding anything.[6] He noted that the appellant's account of having met the complainant the previous day was contradicted by both Ms Trimmer and the complainant's mother.[7]
2. The prosecutor then said:[8]

My submission to you is that [the appellant's] account of meeting [the complainant] the day before in a park at Armadale to arrange a drug deal is false. Alison Trimmer, if she is to be believed, contradicts it. [The complainant's mother], if she is to be believed, contradicts it. You have two people who say this can't have been.

I want to suggest to you, it's not just an unreliable statement on the part of [the appellant] to the police. You might properly regard it as a deliberate lie, told because he knows he's left evidence behind in the alleyway that it was him there having sex and that the only possible defence now is to claim it was consensual.

And that's why he's admitted to the police at the outset that he'd taken methamphetamine two days before, because it was part of the story he decided to tell. (emphasis added)

1. The prosecutor anticipated a possible submission from defence counsel that the meeting in the park may have occurred prior to 19 June 2019, and submitted that this made the subsequent meeting at the mall even less plausible.[9] The prosecutor referred to the appellant's admitted methamphetamine use and said that this may have made him incautious in committing a sexual assault near an area covered by CCTV and leaving behind his spermatozoa in the laneway.[10]
2. The prosecutor concluded this part of his submissions in the following terms:[11]

The prosecution submission in this trial is that [the appellant's] version of events was cleverly constructed to meet the evidence he came to appreciate existed against him. His version of events is contradicted by other witnesses, Alison Trimmer and [the complainant's mother].

His version of events is implausible. It doesn't make any sense. They've arranged to do a drug deal and then they've just met by chance. And you shouldn't give it any credence at all. (emphasis added)

1. The prosecutor then introduced the next part of his submissions, which invited the jury to accept the complainant's evidence, as follows:[12]

Now, it's one thing to reject an accused man's account of events. That's what I'm inviting you to do. But it's a separate job for you to ask yourselves whether you accept the account given by the complainant.

1. The primary issue on appeal is the manner in which these submissions by the prosecutor are to be understood. In its written submissions in this appeal, the State contends that:[13]

In submitting that the appellant's version of events was 'cleverly constructed to meet the evidence he came to appreciate existed against him' the prosecutor was, the respondent submits, referring to the appellant's claims about the alleged meeting in the park in Armadale. The prosecutor was not asserting recent fabrication or invention in relation to the claim that the complainant consensually performed oral sex on the appellant 'for a packet' but rather, was suggesting that the appellant's claim about the meeting in the park was a deliberate lie. The prosecutor's use of the words '... to meet the evidence he came to appreciate existed against him' and his reference in the next sentence to Ms Trimmer and the complainant's mother contradicting the appellant's version of events, support this conclusion. (emphasis in original)

Senior counsel for the State maintained this position in his oral submissions in the appeal.

1. We do not accept the submission to the effect that the prosecutor's reference to the appellant's 'cleverly constructed' account related to the alleged meeting at the park. Rather, when the prosecutor's submission is taken as a whole, it conveyed that the appellant had tailored a false account in the police interview about the complainant agreeing to engage in sexual conduct in exchange for drugs after understanding the evidence that police had against him.
2. The passage quoted at [12] above, which begins by identifying the question of what was to be made of the appellant's account to police, makes the point about what the appellant learned at the beginning of the police interview. At the outset, the prosecutor refers to the appellant's admission of penetration as 'tactical', as it was coupled with the statement that it was 'just for drugs'. At the time of the interview, the appellant did not appreciate that police would obtain the evidence of Ms Trimmer and the complainant's mother contradicting his account. The prosecutor's submission was not confined to that aspect of the appellant's account which was contradicted by their evidence. Rather, the 'evidence which he came to appreciate existed against him' was the CCTV footage and the complainant's account. In the passage quoted at [14] above, the appellant was said to have appreciated that he had left evidence behind in the alleyway 'that it was him there having sex and that the only possible defence now is to claim it was consensual'.
3. The 'cleverly constructed version of events' to which the prosecutor referred was the whole account of exchanging sex for drugs, as indicated in the second paragraph of the passage quoted at [16] above. That was the 'version of events' that was said, in that paragraph, to be implausible and to not make any sense. That was also the 'accused man's account of events' which the jury was invited to reject in the passage quoted at [17] above.
4. The State also submits that the appellant's trial counsel did not complain that there had been an allegation of recent invention by the prosecutor and canvas with the trial judge the defence's options for rebutting such a submission. The State contends that this suggests the appellant's trial counsel, 'being absorbed in the atmosphere of the trial and the person in the courtroom most attuned to the appellant's interests, did not consider that the now impugned statements amounted to an assertion of recent invention or prejudiced his right to a fair trial'.[14]
5. It is true that the appellant's trial counsel raised no objection to the prosecutor's submission. However, it is apparent from his closing submissions that trial counsel understood the prosecutor to be submitting that the appellant invented his account in the police interview. Before addressing the prosecutor's submission about the appellant's account, the appellant's trial counsel described the prosecutor's submission in the following terms:[15]

What my learned friend says is this is some kind of cleverly constructed account that he's made up on the spot.

1. In our view, the prosecutor was submitting, and would reasonably be taken by the jury to have been submitting, that the appellant's account of exchanging drugs for sexual favours was invented by the appellant during the police interview after he came to appreciate that police had evidence placing him at the scene of the offence and engaging in sexual activity with the complainant.

1. There were two signed statements on the prosecution brief which tended to contradict the prosecutor's submission of recent invention at the police interview.
2. The first was a statement by the appellant's brother, Kyle Yappo, with whom the appellant lived at the time of the alleged offence, taken on 24 July 2019. His statement referred to the appellant arriving home at about 8.30 or 9 am on the day of the alleged offence while Kyle Yappo was having breakfast, and saying:[16]

You wouldn't believe what I did. I got a head job for packet[.]

1. The second statement was by Tanisha Hensley, the partner of Kyle Yappo at the time of the alleged offences, also taken on 24 July 2019. She described being with Kyle Yappo in the kitchen of their house on the morning of 20 June 2019 when the appellant strolled in. She described the appellant saying:[17]

1. Neither Kyle Yappo nor Ms Hensley were called as witnesses at trial.
2. The reference to a 'packet' was capable of being understood as a reference to a package of drugs. If the appellant's statement is understood in that way, then the evidence of Kyle Yappo and Ms Hensley would be inconsistent with the appellant's account of exchanging drugs for sex being invented at the recorded interview with police only after he was appraised of the evidence against him.
3. It is common ground that, although Kyle Yappo and Ms Hensley were not named on the back of the indictment as prosecution witnesses, the prosecution, at the request of the appellant's trial counsel, summonsed them to attend court. Both attended court on the first day of the trial and spoke to the appellant's trial counsel. After this discussion, trial counsel informed the prosecutor that the two witnesses could be excused. This occurred in circumstances where trial counsel understood that the prosecutor would not call the two persons as State witnesses and would object to them giving evidence of what the appellant had said to them about the claimed sexual transaction if they were called as witnesses by the appellant.

1. The appellant appeals against his convictions on the following two grounds:
   1. A substantial miscarriage of justice occurred when the prosecutor, in his closing address, suggested the appellant invented the 'drugs for sex' explanation in his record of interview. This was unfair in light of the prosecution's failure to call two relevant witnesses who heard the appellant give a similar explanation on the day of the alleged offending.
   2. The prosecutor's failure to call Kyle Yappo and Tanisha Hensley caused a substantial miscarriage of justice.

1. The above grounds, taken in combination, are established. The prosecutor invited the jury to find that, when interviewed by police, the appellant invented his account of an exchange of sex for drugs to meet the evidence which he came to appreciate existed against him. It was unfair for the prosecutor to make that submission when he was aware that two witnesses, who the prosecution had decided not to call, had given statements to police which tended to contradict the submission. Either the submission should not have been made, or the evidence of Kyle Yappo and Ms Hensley should have been adduced as part of the prosecution case. That unfairness constituted a miscarriage of justice in the circumstances of this case.
2. As the High Court recently emphasised in Nguyen v The Queen,[18] while it is for the prosecution to decide which witnesses are to be called and what evidence is to be presented as part of the prosecution case, the prosecution must put its case both fully and fairly before the jury. This is an aspect of the broader concern that the trial be conducted fairly. Generally, fairness requires the prosecution to present all available, cogent and admissible evidence including the evidence of all material witnesses.[19] Where a failure by the prosecutor, without good reason, to adduce all available, cogent and admissible evidence results in an unfair trial then a miscarriage of justice will result.
3. In the present case, it is not suggested that Kyle Yappo or Ms Hensley were not available to give evidence, or that their evidence lacked cogency in the sense that its reliability or credibility was so demonstrably lacking as to justify a refusal by the prosecutor to call the witnesses.
4. Evidence of Kyle Yappo and Ms Hensley of the appellant's statement quoted at [26] and [27] above was admissible in the prosecution case. The statement they attributed to the appellant contained an admission against interest, namely that the appellant had sexually penetrated the complainant in the manner charged in counts 2 and 4 of the indictment. As such, the evidence of Kyle Yappo and Ms Hensley as to the appellant making the statement was admissible as a well-established exception to the hearsay rule. It would have been necessary to adduce evidence of the whole of the appellant's statement, as the reference to sexual penetration could not be separated from the reference to the 'packet'.
5. Although the element of sexual penetration was not in dispute, there was no admission of the fact of penile-oral penetration under s 32 of the Evidence Act 1906 (WA). It therefore remained necessary for the State to adduce evidence establishing that element of the offence charged in counts 2 and 4 beyond reasonable doubt. The evidence of Kyle Yappo and Ms Hensley was admissible on the basis that it was relevant to the question of whether the alleged penile-oral sexual penetration occurred. It did not cease to be relevant and admissible because there was other evidence that also tended to establish the element of sexual penetration. Nor did the evidence of Kyle Yappo and Ms Hensley cease to be relevant and admissible because that other evidence was not disputed and may have been sufficient to establish the element beyond reasonable doubt.[20]
6. No unfairness may be involved in the omission of evidence of witnesses who may reasonably be regarded as unnecessary given the matters in dispute and the other evidence adduced in the trial. The failure to adduce the evidence of Kyle Yappo and Ms Hensley may well not have resulted in an unfair trial if there had been no suggestion of recent invention by the appellant during the police interview. The defence opening indicated that the element of sexual penetration was not in dispute, and the only real issue in dispute was whether the State had proved that the complainant did not consent to the sexual penetration alleged. The appellant's account to police, which was much more detailed than his statement to Kyle Yappo and Ms Hensley, was before the jury.
7. In these circumstances, the prosecutor might reasonably have taken the view that the evidence of Kyle Yappo and Ms Hensley was not necessary, or material, given the real issues in dispute and the other evidence before the court. There is no suggestion that the prosecutor decided not to call Kyle Yappo or Ms Hensley to gain a tactical advantage (which was the vice of the approach taken by the Crown in Nguyen).
8. However, if the prosecutor took the view that the evidence of Kyle Yappo and Ms Hensley was not necessary, or material, then it was unfair for the prosecutor to invite the jury to reach a conclusion on the evidence adduced at trial which was inconsistent with evidence which the prosecutor was aware Kyle Yappo and Ms Hensley could have given. The obligation to present the prosecution case fully and fairly meant that, if the prosecutor intended to make a submission that the appellant invented his account during the course of the police interview, then it was incumbent on the State to adduce the evidence of Kyle Yappo and Ms Hensley as part of the prosecution case. That submission meant that their evidence could not reasonably be regarded as unnecessary or immaterial. It was unfair to the appellant for the prosecutor to decide not to call those witnesses and then make a closing submission inviting the jury to reach a conclusion inconsistent with the evidence which he was aware those witnesses could have given.
9. The evidence of Kyle Yappo and Ms Hensley would have been admissible as part of the defence case once the prosecutor had made the submission as to recent invention. It would then have been evidence of a prior consistent statement which could be adduced by the defence to rebut the suggestion of recent invention.[21] However, in the present case, the first suggestion of recent invention was made after the closing of evidence. To have adduced the evidence of Kyle Yappo and Ms Hensley, the appellant's trial counsel would have had to apply for leave to reopen the defence case after the prosecutor's closing address. There may or may not have been logistical difficulties and tactical disadvantages in the appellant's trial counsel adopting this course. However, the failure of the appellant's trial counsel to seek leave to reopen to call Kyle Yappo and Ms Hensley does not deny the conclusion that the prosecution case was presented in a way that was unfair to the appellant. That unfairness was not addressed by any other action subsequently taken by defence counsel.
10. Senior counsel for the State submitted that the decision of the appellant's competent trial counsel not to object to the prosecutor's submission meant that no miscarriage of justice is established. We do not accept that submission. Senior counsel for the State properly eschewed any suggestion that an inference arose from the record that at trial a decision was made to refrain from taking the objection in order to save the point for appeal.[22] Nor was senior counsel for the State able to point to any objectively rational forensic advantage for the appellant's conduct of the trial in refraining from making any objection. There would have been no forensic disadvantage for the appellant in objecting to the prosecutor's submission after it had been made and inviting the prosecutor to withdraw the submission or asking the trial judge to direct the jury to ignore the submission.
11. In McKinnon v The State of Western Australia,[23] this court held that no miscarriage of justice resulted where the only inference to be drawn from the conduct of the defence case was that a forensic decision had been made not to object to complaint evidence because it was to be relied on as part of the defence case. The court applied the following dicta of McHugh J in Suresh v The Queen:[24]

[B]y not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.

1. That principle is not engaged in the present case. It cannot be inferred that the appellant's trial counsel made a tactical forensic decision not to raise any objection to the prosecutor's submission. Even if such an inference could be drawn, it would certainly not be the only reasonable inference to be drawn from the conduct of the defence case. Further, if the point had been appreciated, as we have noted there was no rational forensic reason for the appellant's trial counsel not to object in the manner described at [41] above.
2. In our view, the prosecutor's submission that the appellant had invented his account in the police interview after being appraised of the evidence against him, combined with the decision not to adduce the evidence of Kyle Yappo and Ms Hensley which was inconsistent with that submission, gave rise to an unfair trial and constituted a miscarriage of justice.

1. For the above reasons, in our view, the grounds of appeal were established. The State did not contend that the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied on the basis that no substantial miscarriage of justice has occurred. We therefore allowed the appeal and made the orders noted at [1] above.
2. There is an additional aspect of the prosecutor's closing submissions to the jury which we note for the purpose of indicating that it is an approach which should not be repeated.
3. The prosecutor began by telling the jury that they might be excused for thinking that, when someone goes to the police to say that they have been sexually assaulted, it is the alleged victim who goes on trial rather than the man accused of doing it to her. The prosecutor then identified several of the appellant's advantages and the complainant's disadvantages, punctuated by a rhetorical repetition of a phrase indicating that this was to ensure that the appellant 'gets a fair trial'. He submitted that, consequently, the appellant had 'the fair trial which everyone who comes before our criminal justice system is entitled to'.[25]
4. In our view, this was not an appropriate submission for a prosecutor to have made in the course of a criminal trial. The prosecutor's commentary on the fairness of the trial procedure did nothing to assist the jury in the proper resolution of the questions they were required to answer. The submission, with its rhetorical repetition of 'to ensure that [the appellant] gets a fair trial', was capable of being taken to suggest, sub silentio, that the appellant was given an unfair advantage by the procedures established to ensure what persons other than the speaker regard as a 'fair trial'. Taken in that way, the submission had the tendency to undercut the objective of procedures, such as a requirement for prosecutorial disclosure and an opportunity to cross‑examine witnesses, which the law regards as integral to the fair conduct of a criminal trial for a serious offence. The submission should not be repeated in the future.

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

CITATION : YAPPO -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 133 (S)

Criminal appeals - Effect of setting aside a conviction on orders made on the basis of the conviction - Whether lifetime violence restraining order made under s 63A of the Restraining Orders Act 1997 (WA) continues after conviction on which it is based is set aside on appeal - Power of the court to make consequential orders declaring the lifetime violence restraining order to be null and void

Criminal Appeals Act 2004 (WA), s 40(1)(l), s 40(1)(m)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 53

Declaration that lifetime restraining order is null and void

Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1

Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220

Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122

1. On 3 September 2020, the appellant was convicted, after trial by jury, of three counts of sexually penetrating the complainant without her consent, contrary to s 325 of the Criminal Code (WA). On 23 September 2020, the trial judge sentenced the appellant to a total effective sentence of 4 years' immediate imprisonment in respect of those offences.
2. On 24 September 2020, the trial judge made a lifetime violence restraining order restraining the appellant from, among other things, communicating with or approaching the complainant (Lifetime VRO). The Lifetime VRO was expressly made under s 63A of the Restraining Orders Act 1997 (WA).
3. 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.[26] An offence against s 325 of the Code is a 'violent personal offence' for these purposes.[27]
4. It is therefore apparent from the terms of the Lifetime VRO and the legislation that the appellant's convictions of offences against s 325 of the Code formed the basis for the making of the Lifetime VRO. The Lifetime VRO could not have been made in the absence of the convictions.
5. The appellant subsequently appealed against his convictions. On 23 July 2021, this court ordered that the appeal be allowed. The court set aside the convictions and ordered a retrial. The appellant was subsequently acquitted of all offences on retrial.
6. By application in an appeal filed on 26 October 2022, the appellant seeks an order of this court setting aside the Lifetime VRO. The respondent does not oppose the application.
7. The effect of an order setting aside a conviction on appeal was described by the High Court in Commissioner for Railways (NSW) v Cavanough.[28] The conviction is avoided ab initio. Acts done in execution of a judicial order based on the conviction are protected as acts done in the execution of justice. Proceedings which, although based on the judgment of conviction, are brought to completion before its reversal are not avoided. But upon the reversal of a judgment of conviction, the judgment, execution and all former proceedings thereby become absolutely null and void.
8. The decision in Cavanough has been followed in many subsequent cases, including Easterday v The State of Western Australia,[29] and Ardrey v The State of Western Australia [No 2].[30] In Easterday, Steytler J (Wheeler and Roberts-Smith JJ agreeing) held that the statutory power of the Court of Criminal Appeal to quash a conviction carried with it a power to declare that a consequential order depending solely on the conviction is null and void.[31]
9. In Ardrey, Mazza JA and I held that the requirement in s 30(5) of the Criminal Appeals Act 2004 (WA), that the court set aside a conviction if it allows the appeal, implicitly carried with it the power to declare that an order which could not have been made in the absence of a conviction is null and void.[32] In Ardrey, the question was whether a compensation order that depended on a conviction which the court had set aside should be declared null and void. Justice Mazza and I observed:[33]

The compensation order did not entirely lack legal effect when it was made. A person who executes a judgment may rely on the judgement to justify their conduct (which may otherwise be tortious) notwithstanding its removal, reversal or annulment. Further, an order of a superior court, even when made outside of jurisdiction, is valid until set aside. However, once this court sets aside a conviction, it may declare a consequential compensation order that depends only on the conviction to be null and void. Once the declaration is made, the compensation order is taken never to have had effect, although it may still be relied upon to justify what may otherwise have been unlawful action taken before the declaration to execute the compensation order. (citations omitted)

These observations are equally applicable to a violence restraining order made under s 63A of the Restraining Orders Act depending only on a conviction that has been set aside by this court.

1. The power to make such an order is also conferred by s 40(1)(l) of the Criminal Appeals Act, which provides that, for the purpose of dealing with an appeal, this court may exercise any power that the Supreme Court may exercise in a civil case. This was the basis on which Buss P held that the inherent power of the Supreme Court, to annul or set aside an order made as a consequence of a conviction that has been set aside on appeal, was 'picked up and brought into play' in Ardrey.[34] The Supreme Court plainly has the power in a civil case to declare null and void an order that has been made in consequence of an order that is set aside on appeal.
2. Where a conviction has been set aside on appeal, declaring an order that could not have been made in the absence of the conviction to be null and void may also be seen as an exercise of the power conferred by s 40(1)(m) of the Criminal Appeals Act. Section 40(1)(m) allows this court to make any order that is necessary to give effect to the court's decision on the appeal.
3. Rule 53 of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that a single judge has jurisdiction to make an order under s 40 of the Criminal Appeals Act. I therefore have jurisdiction, sitting alone, to exercise the power conferred by s 40 to declare the Lifetime VRO to be null and void.
4. The Lifetime VRO 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 declaring the Lifetime VRO to be null and void.
5. I therefore make an order declaring that the Section 63A Violence Restraining Order made by the District Court of Western Australia against the appellant on 24 September 2020 is null and void.

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

[1] The trial judge incorrectly recorded the conviction for count 2 as being of an offence against s 326 of the Code, of which the appellant was found not guilty: see trial ts 229 - 230; cf Certificate of Final Outcome at Blue/Green AB 3 - 4. Nothing turns on that discrepancy in this appeal, although the retrial must be for offences against s 325 of the Code only.

[13] Respondent's submissions, par 42 (White AB 34).

[14] Respondent's submissions, par 14 (White AB 27).

[18] Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686 [26].

[20] See, in these respects, Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 [63] - [64].

[21] See the summary of relevant principles in Maynard v The State of Western Australia [2019] WASCA 189; (2019) 280 A Crim R 82 [45] - [54].

[23] McKinnon v The State of Western Australia [2010] WASCA 51 [9] - [13].

[24] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23].

[26] Different provision is made where a violence restraining order is already in force.

[27] Section 63A(1A)(a) of the Restraining Orders Act.

[28] Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220, 225.

[29] Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 [22] - [25].

[30] Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 [162].