BH -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 146

[2026] WASC 146 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : BH -v- DIRECTOR OF PUBLIC PROSECUTIONS [No 2] [2026] WASC 146 CORAM : SOLOMON J HEARD : 22 APRIL 2026 DELIVERED : 23 APRIL 2026 FILE NO/S : SJA 1032 of 2025 BETWEEN : BH Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: For File No : SJA 1032 of 2025 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE LONGDEN File Number : PE 27582/2024 Catchwords: Appellant convicted of sexual offence in Magistrate Court - Appellant received a fine and a spent conviction - Conviction set aside on appeal - Whether the appellant's identity should now be anonymised - Open justice - Power of court to -- 1 of 5 -- [2026] WASC 146 Page 2 suppress identity of appellant - Whether discretionary power should be exercised Legislation: Criminal Code Act 1913 (WA) Criminal Procedure Act 2004 (WA) Evidence Act 1906 (WA) Sentencing Act 1995 (WA) Result: Orders made for anonymisation of appellant and appellant's business in reasons for decision Category: B Representation: Counsel: Appellant : Mr A D Wilson Respondent : Ms M L Wong Solicitors: Appellant : Wilson Legal Respondent : The Director of Public Prosecutions for The State of Western Australia Case(s) referred to in decision(s): BH v Director of Public Prosecutions [2026] WASC 75 Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 Hill v State of Western Australia [2022] WASCA 149 -- 2 of 5 -- [2026] WASC 146 SOLOMON J Page 3 SOLOMON J: 1 In March 2025, the appellant was convicted in the Magistrates Court of one count of indecent assault contrary to s 323 of the Criminal Code Act 1913 (WA). 2 On 2 May 2025, the magistrate imposed a fine of $3,000. The magistrate also granted a spent conviction. 3 The appellant appealed against the conviction to this court. On 16 March 2026, I published reasons explaining my orders which set aside the conviction and entered a verdict of acquittal.1 4 The appellant did not seek the anonymisation of his name at the Magistrates Court hearing or at the appeal. The published reasons include the name of the appellant and the name of the appellant's business. The name of the complainant was not identified as required by s 36C of the Evidence Act 1906 (WA). 5 The appellant has now applied for the anonymisation of his name and the name of his business in the published reasons on appeal. 6 An essential feature of courts in the Australian judicial system is that they sit in public. At common law, the court may, in the exercise of its inherent jurisdiction, make orders that limit or restrict the application of the open-court or open justice principle. However, this jurisdiction may be exercised only where it is reasonably necessary for the proper administration of justice. The open-court or open justice principle ordinarily includes the publication of the name of the accused in criminal proceedings, both at first instance and on appeal.2 7 In addition to the common law, s 171(4) of the Criminal Procedure Act 2004 (WA) provides: (4) On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so - … (b) make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court; 1 BH v Director of Public Prosecutions [2026] WASC 75. 2 Hill v State of Western Australia [2022] WASCA 149 [2]. -- 3 of 5 -- [2026] WASC 146 SOLOMON J Page 4 8 The court thus has both an inherent and statutory power to order the suppression of any identifying feature of the reasons for judgment. 9 Where an appeal against conviction is allowed and the court sets aside a judgment of conviction for a sexual offence which then leads to an acquittal, there is no law or rule of practice that the appellant's name will be supressed.3 10 In the ordinary course, the principles set out above and articulated by the Court of Appeal would amount to a significant obstacle to the exercise of the discretion in the appellant's favour. 11 However, in this matter, there is a distinguishing feature. The learned magistrate granted the appellant a spent conviction. 12 Section 45 of the Sentencing Act 1995 (WA) provides that a court sentencing an offender is not to make a spent conviction order unless: (a) it considers that the offender is unlikely to commit such an offence again; and (b) having regard to: (i) the fact that the offence is trivial; or (ii) the previous good character of the offender, it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. 13 From the terms of s 45, it necessarily follows that the learned magistrate was satisfied that the appellant is unlikely to commit such an offence again, and that either the triviality or the good character of the appellant was such that the appellant should be relieved of the adverse effect that the conviction might have on him.4 14 It is plain from the terms of s 45 itself that the object of a spent conviction is to relieve the offender of the adverse effect of the conviction. 15 The decision in the Magistrates Court was, as is usually the case, not the subject of any published decision. The spent conviction in those circumstances was adequate of itself to relieve the appellant of the adverse effect of the conviction. 3 Hill v State of Western Australia [9]. 4 Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11]. -- 4 of 5 -- [2026] WASC 146 SOLOMON J Page 5 16 The publication of the reasons on appeal, however, are contained in a public document on the Supreme Court website and are easily accessible. 17 The verdict of acquittal does not mean that the court has positively found that the appellant did not commit the offence. Rather, it means that the court was not persuaded of the commission of the offence beyond reasonable doubt. Nevertheless, the effect of the acquittal is that the appellant is entitled to a presumption of innocence. 18 I am persuaded that the identification of the appellant in the reasons for the decision on appeal may well undermine the very object of the spent conviction granted by the magistrate (and now set aside). In all the circumstances, I am, on balance, persuaded that it is in the interests of justice to anonymise the appellant's name and the name of the appellant's business. Accordingly, the court will make orders in those terms. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. AS Associate to the Honourable Justice Solomon 23 APRIL 2026 -- 5 of 5 --