Wondimu v Police - [2019] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WONDIMU v POLICE
[2019] SASC 62
Judgment of The Honourable Justice Hinton
18 April 2019
CRIMINAL LAW - PROCEDURE - BAIL - CONDITIONS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction and sentence.
On 2 November 2016 the appellant was arrested and charged with stalking his father-in-law. He was released on bail subject to conditions, including one that prohibited him from contacting his then wife.
On 10 November 2016 the appellant telephoned his wife. She did not answer and no message was left. On 13 November 2016 and 16 December 2016 the appellant sent two text messages to his wife. Subsequently, the appellant was arrested and charged with three counts of breaching the terms of his bail contrary to s 17(1) of the Bail Act 1985 (SA).
At trial the appellant did not dispute either the making of the calls or the sending of the text messages. Instead, the defence focused on the validity or legal reasonableness of including the prohibition against contact with his then wife who was not the complainant in the relevant bail agreement. The appellant was found guilty as charged in November 2017. He was sentenced in August 2018; the Magistrate convicted him of all counts and released him upon his entering into a bond in the sum of $500 to be of good behaviour for six months.
The appellant appealed against his convictions and sentence. His conviction appeal was out of time. Among other arguments, he maintained his contention that the relevant bail condition was unreasonable or unlawful. He also purported to argue that he had not been competently represented by counsel at his trial.
The respondent submitted that an extension of time should not be granted and that the appeal against conviction was without merit. With respect to the appeal against sentence, the respondent submitted that it was within the Magistrate’s discretion to impose convictions on all counts.
Held:
1. refusing the appellant an extension of time in which to appeal against his convictions, no explanation has been provided for the delay and the appeal does not enjoy sufficient prospects of success.
2. the appeal against sentence is dismissed.
Bail Act 1985 (SA) ss 6, 11, 17; Criminal Law Consolidation Act 1935 (SA) s 270A; Criminal Law (Sentencing Act) 1988 (SA) s 16; Criminal Procedure Act 1921 (SA) s 56; Sentencing Act 2017 (SA) ss 23, 24; Summary Procedure Act 1921 (SA) s 56, referred to.
Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223; He Kaw Teh v The Queen (1985) 157 CLR 523; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Pol v Police [2017] SASC 155; R v Clarke (2008) 100 SASR 363, considered.

WONDIMU v POLICE
[2019] SASC 62
Magistrates Appeal
HINTON J:

This is an appeal against conviction and sentence.
Background
On 2 November 2016, the appellant, Zeryhun Wondimu, was arrested and charged with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wondimu v Police

Details

AGLC: Wondimu v Police [2019] SASC 62
Case: [2019] SASC 62
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the case of Wondimu v Police, the appellant, Zeryhun Wondimu, appealed against his conviction and sentence for breaching the conditions of his bail. The appellant had been charged with stalking his father-in-law and was released on bail with a condition that he not contact his wife, Melanie Jayne Zeryhun-Wondimu, who was the daughter of the alleged victim. Despite this condition, the appellant contacted his wife by telephone and sent her two text messages. The appeal primarily focused on the validity of the bail condition that prohibited contact with his wife.

The legal issues the court needed to decide were whether the bail condition prohibiting contact with the appellant’s wife was lawful and if the appellant's conviction for breaching that condition could be successfully appealed. The court considered whether the condition was within the scope of the powers granted by the Bail Act 1985 (SA) and whether it was a reasonable measure to prevent further offending. The court also examined if the condition was imposed legally and if the appellant's conviction could be overturned on the basis that the condition was unlawful.

The court found that the condition prohibiting contact with the appellant's wife was within the broad discretion allowed by the Bail Act 1985 (SA) and was reasonable given the domestic disturbance context. The court rejected the argument that the condition was beyond power or legally unreasonable. The court held that the appellant's conviction for breaching the bail conditions was valid because the condition was lawful. The appeal against both conviction and sentence was dismissed.

The final orders of the court were that the appeal against the conviction and sentence was dismissed. The appellant's conviction for breaching the conditions of his bail remained intact, and the sentence imposed by the Magistrates Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against conviction and sentence.Background On 2 November 2016, the appellant, Zeryhun Wondimu, was arrested and charged with stalking his father-in-law. He was released on bail subject to conditions, one of which prohibited him from contacting Melanie Jayne Zeryhun-Wondimu, his then wife of 13 years, mother of his five children and the daughter of his father-in-law. On 10 November 2016 the appellant telephoned his wife. She did not answer and no message was left, but the caller identification capability on Ms Wondimu’s telephone revealed that the contacting telephone number belonged to her husband. On 13 November 2016 and 16 December 2016, the appellant sent two text messages to his wife. Subsequently, the appellant was arrested and charged with three counts of breaching the terms of his bail.[1] The prosecution alleged that the telephone call and the two text messages were each made in breach of the prohibition contained in the appellant’s bail agreement. [1] Contrary to s 17(1) of the Bail Act 1985 (SA). The matter proceeded to trial before a Magistrate. The prosecution called two witnesses, the appellant’s wife and Senior Constable Christiansen, the police officer who authorised the appellant’s release on bail on 2 November 2016. The defence did not dispute either the making of the calls or the sending of the text messages. Cross-examination focused upon the reason for including the prohibition against contact with Ms Wondimu in the bail agreement when she was not the complainant in relation to the 2 November 2016 allegations. The appellant was represented by counsel at his trial. He did not give nor call evidence. The Magistrate found the appellant guilty as charged. In her ex tempore reasons the Magistrate referred to the defence case saying:The defendant was arrested by police on a charge of stalking his father in law, Mr David Vivian. Upon arrest, he was taken to the Sturt Police Station where the charging officer, Senior Constable Christiansen, after conferring with the arresting officers, granted the defendant bail in the terms that appear clearly in the bail agreement, which has been tendered in evidence. Clause 2(b) of the bail agreement states: ‘I will not make contact with Melanie Jane ZERYHUN-WONDIMU’. She is not the alleged victim of the stalking but she is the defendant’s wife and the daughter of the alleged victim. She had been in the vicinity when the police were called.Whether or not that is a reasonable condition does not determine the validity or otherwise of the bail agreement. It might be argued that as a member of the alleged victim’s family the police considered that she should be protected by this clause. The fact that other family members such as Mr Vivian’s wife or his sister were not mentioned are all matters for discussion and debate but, in the end, the terms of the bail become a judgement call of the charging officer on the day that bail is granted, and these are the terms that were set. The charging officer, Senior Constable Christiansen, told me that he read the conditions to the defendant and the defendant signed them in his presence.[footnote omitted]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Turning to the sentence imposed, the respondent submitted that it was within the Magistrate’s discretion to impose convictions on all counts. To succeed on appeal it was incumbent upon the appellant to establish that the Magistrate had committed an error in the House v The King sense which he had not done.[3][3] (1936) 55 CLR 499.Consideration The appellant’s Notice of Appeal identifies the judgment appealed against as “the Judgment and Order of the Magistrates Court of South Australia made … on 31 August 2018”. 31 August 2018 was the date upon which the appellant was sentenced. He was found guilty on 2 November 2017. The grounds of appeal contained in the Notice of Appeal suggest that his appeal is against the findings of guilt made on 2 November 2017. On the hearing of the appeal the appellant indicated that he appealed against both his conviction and sentence. The appellant did not divide his submissions into those relevant to his conviction appeal and those relevant to his sentence appeal. I commence with the appeal against conviction. It is plain from the transcript of proceedings in the Magistrates Court that a forensic decision was made to attack the validity of the contravened condition of the bail agreement. Adopting that approach, it did not matter what contact the appellant had made or attempted to make with Ms Wondimu, if, as he contended, the relevant condition of the bail agreement was unlawful he could not be convicted of acting in breach of it. The Bail Act 1985 (SA) reposes a broad discretion in a bail authority to impose conditions.[4] That said, the discretion is not without limits. Some limitations can be found in s 11 of the Bail Act 1985 (SA) itself. It is unnecessary for present purposes to consider further what if any implicit limitations exist. Beyond express limitations, none of which is applicable in the present case, the power to impose conditions as part of a grant of bail is constrained, at a minimum, by the scope and purpose of the Bail Act 1985 (SA).[4] Bail Act 1985 (SA), ss 11(1d), 11(2) and, in particular, s 11(2)(a)(vi). I did not have the benefit of hearing full argument on the question of whether, in the course of the trial of a charge alleging the failure to comply with a condition of a bail agreement, the lawfulness of the grant of bail may be challenged. There is an obvious impediment to concluding that a grant of bail may be collaterally challenged; bail is kept constantly under review and can be varied or revoked[5] at any time and may be reviewed in this Court.[6][5] Bail Act 1985 (SA), s 6(4).[6] Bail Act 1985 (SA), pt 4. Assuming that the lawfulness of a bail agreement may be collaterally challenged, without deciding the question, the impugned condition in the present case was one that related to the appellant’s conduct. Accordingly, it did not have to satisfy the requirement that it be reasonably necessary.[7] [7] Bail Act 1985 (SA), s 11(4). One of the functions of conditions contained in a bail agreement is to prevent further offending. Ms Wondimu’s evidence and the content of the text messages (exhibits P2 and P3) suggest there was an evident and intelligible reason to impose the impugned condition. The impugned condition was the product of discussions between the arresting officers and Senior Constable Christiansen and, I infer, emanated from the circumstances that the officers confronted in dealing with the complaint made. Ms Wondimu said in her evidence that she was present. She said the stalking allegation was about her father. When asked if the condition prohibiting contact was suggested by her father she referred to the fact that she was in the process of getting an intervention order. The evidence bespeaks a domestic disturbance involving the appellant and his wife a repeat of which the police intended to prevent by prohibiting contact. This being so, I do not think the condition can be said to be beyond power on the basis that it was legally unreasonable.[8] [8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.