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 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]
The Magistrate then commented that the bail agreement “had the force of law” and that the appellant “was required to comply with its terms”. She then turned to analyse the evidence stating:
The first breach is stated in the complaint as having occurred on 10 November 2016. …
Her [Ms Wondimu’s] evidence is that there was a telephone call on 10 November 2016 to her phone which she did not answer. She identified the caller by what appeared on the screen and what is commonly called “caller ID”. This identified her husband, the defendant, a man that she had been married to for 13 years. They have five children between them and I have little doubt that the call was made from his phone. It is conceivable that the phone call was not made by him, but I have further evidence to which I can have regard on this issue.
The telephone call the following day was also not answered by Ms Wondimu but she says it came from the same caller. She listened to the message that was left by the caller. She identified her husband’s voice in the message in which he said that he missed her and the children, and that he was going to Sydney.
Is it a reasonable possibility that the dialling of her number the day before on 10 November 2016 was done in error? Had it just been that one call I might have been inclined to consider that as a reasonable possibility. But I do not entertain a reasonable doubt about the call being made by the defendant. The fact that it is a telephone call to Ms Wondimu’s phone is, in my view, a breach of clause 2(b) of the bail agreement in that the defendant has made contact with her. I find count one proved.
Counts two and five relate to text messages that it is alleged that the defendant sent to Ms Wondimu. The text of those two messages has been reproduced in exhibits. The one on 13 November 2016 was captured by screenshots which were then printed out by Ms Wondimu. The words in the text on 16 December 2016 were copied by her and pasted into an email, which she printed. The messages are from the defendant and, in my view, are in clear breach of the condition that prevents him from contacting her. I find the defendant guilty on all counts.
The appellant was not sentenced until 31 August 2018. I was told the explanation for the delay was that the Magistrate wanted to await the outcome of the stalking charge. Ultimately, that charge was not proceeded with.
As mentioned, on 31 August 2018 the Magistrate sentenced the appellant. She took into account that the offending occurred against the background of the breakdown of the appellant’s marriage and that the appellant had never previously come into contact with the criminal justice system. The Magistrate imposed convictions in relation to each count and released the appellant upon his entering into a bond in the sum of $500 to be of good behaviour for six months.
The appeal against conviction
Upon the hearing of the appeal, the appellant was unrepresented. His Notice of Appeal contained a great deal of fresh information and argument. It stated:
3. Grounds of appeal
3.1   My main reason for the appeal is that the bail condition I supposedly breached was established as a result of being falsely arrested. I also have two subsidiary reasons for the appeal. Some of the facts relevant to the appeal are outlined in the following paragraphs.
3.2   On 2 November 2016, I randomly sighted my wife, Melanie Jayne Zeryhun Wondimu, passing by me in our family van with our 5 children when I was at … and followed her to her parents’ property at … because she had hidden the children from me for 37 days and there was no Intervention Order in place. She parked our family van behind locked gates at the property and would not let me make contact with the children. Her father, David Vivien [sic], her mother and her aunty stood between the gate and the van and argued with me (see photograph attached as Item 4). I went away and called the police. When the police arrived at a bit after 6.00 pm, one of them, Constable Christopher McDonald, called me a ‘stupid dumb bozzo’ and told me that they were not there to support me but to arrest me because of a complaint from my wife’s father. I called my brother who is a police officer and he spoke with Constable McDonald. I had to leave without making contact with my children.
3.3   That evening (2 November 2016), I attended at the Sturt Police Station on another matter and at about 6.50 pm was arrested and locked up for supposedly stalking David Vivian, my father-in law. At about 11.50 pm, I was released on bail after signing a Bail Agreement under strong duress. The conditions of bail required me not to make contact with my father-in-law, David Vivian, or surprisingly with my wife, even though I had not been accused of stalking her (copy of Bail Agreement attached as Item 5).
3.4   On 5 December 2017, the charge of my stalking David Vivien [sic] was dismissed in the Magistrates Court of South Australia (Adelaide Registry) because the police could not produce evidence to support the charge (copy of Certificate of Record attached as Item 6).
3.5   Despite the dismissal of the stalking charge the police continued to prosecute me for the breaching of one of the bail conditions (making contact with my wife via her mobile phone) which was established when I was falsely arrested on 2 November 2016.
3.6   Magistrate Panagiotidis indicated that she was interested in the outcome of the hearing on the stalking charge (pronounced by her on 2 November 2017, I believe) but, when the decision was known that the Police had withdrawn the stalking charge on 5 December 2017, she said that she did not want to hear any more about the dismissal of the charge and the matter was not to be mentioned again.
3.7   As previously implied, the main reason for my appeal is that, if I had not been wrongly arrested for stalking my father-in-law, the bail conditions would not have been established and I could not have breached a condition that did not exist.
The subsidiary reasons for my appeal are:
(a)My supposed stalking related to my father-in-law and yet the police included as a bail condition that I do not make contact with my wife. This inclusion certainly was not in the best interest of our 5 children under the age of 13 years and raises questions about its validity considering the reason for my arrest and the fact that that my wife’s mother and aunty were not included.
(b)My breach of the bail condition that I do not make contact with my wife supposedly involved my making missed calls to her phone and sending a text message to her phone. I do not have any record of such actions on my phone and no evidence of the supposed contact actions were shown to me in Court. Supposedly on the second missed call on 11 November 2016 my wife claimed I left a message in which in part I said ‘I was going to Sydney’. In actual fact on 11 November 2016, I was already in Sydney, so the claimed message does not make sense. My being in Sydney was a naïve breach of another bail condition for which I have been punished.
3.8     I fail to understand how it can be lawful for the police to:
·   arrest and impound someone, especially someone in a marginalised group (in my case a black man with influential white relatives), for a false reason;
·   then, release the person on far reaching bail conditions that embrace much more than the false reason for the arrest and impoundment;
·   then, prosecute the person for a breach of one of the established bail conditions long after the charge for the arrest has been dismissed.
[emphasis in original]
The appellant filed four further documents entitled, “Affidavit - Closing Summary”, “Response to Respondent’s Summary of Argument”, “Affidavit in Response to Hearing on 12 November 2018” and “Extra Points to Affidavit in Response to Hearing on 12 November 2018” (collectively, the filed documents). In the filed documents the appellant repeated many of the arguments contained in his Notice of Appeal and added:
i.That contrary to the allegations contained in each of the three counts of which he was found guilty, he did not enter into a bail agreement at Port Adelaide on 2 November 2016, rather he entered into a bail agreement at the Sturt Police Station;
ii.His arrest and charge could be viewed as a set-up by his father-in-law and wife to prevent him seeing his children. The bail conditions imposed were the product of his father-in-law’s influence;
iii.His wife’s evidence as to her receipt of the telephone calls and messages was accepted without question. He submitted that her evidence lacked credibility for two reasons; first, if he were endeavouring to contact her, why would he only make one attempt and not leave a message? Second, in her evidence Ms Wondimu said that in the message left on 11 November 2016 the appellant said he was going to Sydney. Seeing as he was already in Sydney it is unlikely he said this;
iv.He comments upon the content of the text messages of 13 November 2016 and 16 December 2016, but does not deny that he could have been the author;
v.Subsequent to his arrest his wife obtained an intervention order against him. He successfully challenged that order in the Magistrates Court. Nonetheless, he continued to experience difficulty in gaining access to his children;
vi.At the time of his arrest his parents were present at the Police Station. They endeavoured to persuade police not to charge the appellant because he was simply trying to see his children. His parents could dispute any contention that his father-in-law did not influence the bail conditions imposed; and
vii.The appellant alludes to Senior Constable Christiansen’s confusion regarding who it was that the appellant allegedly stalked (Ms Wondimu or her father). Again he suggests that the Senior Constable’s uncertainty was due to his father-in-law’s influence. He contends that the police and his father-in-law have combined to distort the truth.
In bringing the document entitled, “Extra Points to Affidavit in Response to Hearing on 12 November 2018”, to an end the appellant states:
If it was considered important for Senior Constable Christiansen and my father-in-law to give evidence as to how the conditions of the Bail Agreement were established, I would suggest I was not properly represented as my mother and father were not called to refute what they said.
Before me the appellant made submissions consistent with his Notice of Appeal and the filed documents. His primary submission was that the bail agreement was unreasonable or unlawful for including the prohibition against contact with his wife when she was not the complainant. When it was pointed out to him that he could have approached the Magistrates Court at any time to vary his conditions he initially said that he could not because he was in Sydney, then conceded he could have instructed lawyers to appear but was new to the process. The appellant then repeated that he was arrested illegally and forced to sign an agreement he did not understand. Further, and in any event, he contended that it was unfair and worrying that the police could “arrest someone without sufficient evidence, release them on unjustified bail conditions, and then pursue the arrested person for supposedly breaking one or more bail conditions on seemingly flaky evidence …”.
The defence case at trial was a form of collateral attack upon the reasonableness or legality of the bail agreement. In the course of the appeal the appellant complained about the quality of his representation. So doing he elaborated upon his “Response to the Respondent’s Summary of Argument” in which he stated:
The evidence of my breaking the bail condition of making contact with my then wife was never properly examined by my lawyer in Court. The supposed written communications were not forensically examined and the supposed voice communications were accepted just on the word of my then wife. One of those supposed communications was factually wrong as she said I advised her I was going to Sydney whereas I was actually in Sydney at the time of the supposed communication. I was extremely upset when in Sydney and was certainly not in the mood to communicate with my then wife who had seemingly conspired with her father to have me arrested.
It was pointed out to the appellant that the incompetence of his representation was not squarely raised in his Notice of Appeal. The appellant was granted an adjournment to seek legal representation and advice including on the question of whether he should amend his grounds of appeal in order to pursue his contention that he was not competently represented at his trial in addition to determining whether he was prepared to waive privilege.
On the resumption of the appeal the appellant remained unrepresented. He did not apply to amend his Notice of Appeal, maintained that he was incompetently represented and did not waive privilege. His complaint as to his representation was based upon the fact that the Magistrate never heard his side of the story and what she did hear was not tested. That side, largely set out in his Notice of Appeal and the filed documents, was to the effect that his wife was not the victim of any offence and was not in any need of the protection provided by the bail agreement. Further, he repeated that he had signed the bail agreement under duress and that Senior Constable Christiansen had not been truthful.
I received four written submissions from the respondent — “Respondent’s Summary of Argument 7 November 2018”, “Respondent’s Summary of Argument 13 December 2018”, “Response to the Appellant’s “Closing Summary”” and “Respondent’s Submissions to Further Question”.

The respondent’s submissions commenced by pointing out that the appeal against conviction was some 40 weeks out of time and was without merit such that no extension of time should be granted.
The respondent then grouped the appellant’s complaints into four: first, that there was no proper basis for the bail agreement to apply to him; second, that he entered the bail agreement under duress; third, that the condition that he not contact Ms Wondimu was not reasonable in the circumstances; and, fourth, that his convictions were not supported by the evidence.
With respect to the first complaint the respondent submitted that there was no evidence before the Magistrate to support the argument that the arrest was unlawful. The contention that the validity of any charge for breach of bail was dependent upon the stalking charge proceeding was misconceived.
With respect to the second complaint it was submitted that there was also no evidence to support it. The appellant did not give evidence in his defence and no witness for the prosecution was cross-examined to suggest that the appellant had signed the bail agreement under duress.
As for the third complaint, there was no basis upon which the Magistrate could determine that the condition contained in the bail agreement was unlawfully imposed or unlawful in any sense. Senior Constable Christiansen gave evidence of his normal practice to the effect that the conditions of the bail agreement would reflect discussions he had with the arresting officers. In any event the Magistrate accepted Senior Constable Christiansen’s evidence that the bail conditions were read to Mr Wondimu and accepted by him and found that the terms of the bail agreement were a matter of judgment reposed in the bail authority. Further again, there was no requirement in the Bail Act 1985 (SA) that any bail condition be reasonable. In this connection the respondent submitted that because the condition prohibiting the appellant’s contact with Ms Wondimu was a condition pertaining to his conduct while on bail it did not attract the requirement contained in s 11(4) of the Bail Act 1985 (SA) that it be reasonably necessary. Accordingly, the appellant’s contention that the clause was not in the best interests of his children or was otherwise unnecessary was irrelevant. The Magistrate was correct to conclude, it was submitted, that the reasonableness of a condition of a bail agreement did not determine the legality of the bail agreement. Here the respondent referred to Pol v Police where it was held that a complaint that a bail condition was unduly onerous was not a matter that could not be agitated on appeal.[2]
[2] [2017] SASC 155.
With respect to the fourth complaint the respondent submitted that the findings were open on the evidence.
To the extent that the appellant’s complaints regarding the competence of his representation at trial relied upon fresh evidence, the respondent objected to the admission of that evidence. In any event, the respondent contended that there was no factual basis sufficient to warrant a conclusion that the appellant’s representation had been incompetent.
Lastly, the respondent contended that the location where the bail agreement was entered was not an element of the offence. The defect in the charges was thus inconsequential.
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.
With respect to the contention that the appellant signed the bail agreement under duress, I agree with the respondent that there was no evidence adduced in the Magistrate’s Court capable of supporting the contention. Similarly, there was no evidence of any undue influence on the part of Ms Wondimu’s father. As stated, the defence case appears to have focussed at trial upon attacking the validity or legal reasonableness of the relevant bail condition. That was a forensic decision that binds the appellant.
Despite being given an adjournment to seek advice and consider amending his Notice of Appeal to contend that he was incompetently represented, the appellant declined to do so. In those circumstances it would not be appropriate for me to consider that issue. The consequence is that the appellant is bound by the case he ran in the Magistrates Court. In fact, it appears that the appellant now seeks to run an entirely new case on appeal. I accede to the respondent’s submission and refuse to receive the new evidence proffered by the appellant. I refuse, in effect, to re-try the matter.
Even if this Court were to accept the assertions made by the appellant, the fact that Ms Wondimu was not the person stalked and the fact that the stalking charge was not proceeded with do not render the condition that the appellant not contact his wife unlawful. Non-contact conditions often extend beyond the complainant to include witnesses and, particularly in cases of domestic disturbance, family members. As indicated above, such condition may be the product of a concern that otherwise further offending may occur. In addition, the validity of a bail agreement is not conditioned on the prosecution being successful on the trial of any charge to which the bail agreement relates. The fact that a person is charged is sufficient to subject him or her to bail.
For these reasons I agree that the Magistrate was right to reject the challenge to the validity or legal reasonableness of the bail agreement.
I also agree with the submission that the erroneous particular in each of the three charges that the bail agreement was entered at Port Adelaide was of no consequence. The location at which a bail agreement was entered is not an element of the offence created by s 17 of the Bail Act 1985 (SA). This was not the sort of case where the nature of the forensic contest was such that the location where the bail agreement was signed became a fact upon which guilt or innocence turned. On anyone’s case the appellant entered into the bail agreement comprising exhibit P1.
Further submissions were invited on the question of whether, with respect to the 10 November 2016 charge, the element comprised of making contact was proved beyond reasonable doubt. The respondent provided submissions on 9 April 2019. The Court made numerous attempts by telephone aits nd once by email and also letter to contact Mr Wondimu and invite him to provide written submissions in relation to the same. All calls were unanswered and the Court received a delivery failure notification when it attempted to email Mr Wondimu.
The relevant bail condition is set out in the bail agreement (exhibit P1). It stated:
2. I agree that -
…
(b) I will not make contact with MELANIE JAYNE ZERYHUN-WONDIMU.
The question arises, does an unanswered telephone call with no message left amount to making contact? The respondent submitted that the phrase making contact should be given its ordinary meaning and referred to the Macquarie Dictionary for that meaning. The Macquarie entry for make contact is as follows:[9]
14. make contact, (sometimes fol. by with) to initiate communication.
[9] Macquarie Dictionary (Macquarie Dictionary Publishers, 7^th ed, 2017) at 332.
The respondent focuses on the word initiate as signalling that it is enough to take a step preparatory to effecting actual contact. I do not think that the ordinary meaning of clause 2(b) extends to acts preparatory to contact. In fact, I do not think the Macquarie definition does so. I understand the act of initiating communication to involve receipt of a communication but not necessarily reciprocation. It is not an attempt to make contact, but the making of contact. The word make serves to identify the party initiating contact. Contact, as the Macquarie definition states, includes the state or fact of touching, a touching or meeting of bodies, immediate proximity or association, or, sociologically, a condition in which two or more individuals or groups are placed in communication with one another. I consider the prohibition in the present case to be on contact in the sociological sense as defined by the Macquarie and on physical contact. As the norms of conduct created by a bail agreement become elements of a criminal offence punishable by imprisonment they should be narrowly construed. In my view the prohibition contained in clause 2(b) of the bail agreement is upon communication actually achieved, that is, contact actually made not contact attempted. Whether contact attempted would be an offence against s 17 of the Bail Act 1985 (SA) and s 270A of the Criminal Law Consolidation Act 1935 (SA) is a question for another day.
Contact, in terms of communication, can occur in ways direct and indirect.[10] In the present case the appellant’s telephone call was not successful. He left no message. However, the caller identification capability of Ms Wondimu’s mobile telephone recorded the telephone number of the missed call. That number belonged to the appellant. The Magistrate was satisfied that it was the appellant who made the call. With the caller’s number recorded and relayed by the caller identification capability communication was effected and with it contact made. The only question that remains is whether a mental element attaches to the consequence; was the contact such as it was intended or was the appellant reckless thereto. I do not think it matters. In my view, applying the calculus set out in He Kaw Teh v The Queen[11] the offence created by s 17(1) of the Bail Act 1985 (SA) is one of strict liability with the onus of establishing that the offender had a reasonable excuse for breaching the bail agreement resting upon the accused.[12] To the extent that conduct is regulated by a bail agreement, it is particular to the accused and the circumstances of the matter. Any compromise of those conditions compromises the administration of justice and the protection that the criminal law provides to the community. Strict liability is necessary. In my view a bail agreement not only seeks to ensure compliance but, as an agreement, by its very nature obliges the accused to take positive steps to ensure compliance. To hold that the offence is one that has a mental element attaching to the act or consequence would undermine the obligation imposed upon an accused granted bail to take the positive steps contemplated by the agreement to avoid the possibility of inadvertent breach. The fact that liability may be avoided if the accused can establish on the balance of probabilities that he or she has a reasonable excuse for any contravention fortifies me in this conclusion. A reasonable excuse will be one where the ordinary person considers the accused could not prevent his or her breach.
[10] See, for example, State v Bowen, 2015 WI App 12.
[11] (1985) 157 CLR 523 at 529-530 (Gibbs CJ); see also, R v Clarke (2008) 100 SASR 363 at [17] (Doyle CJ).
[12] Summary Procedure Act 1921 (SA), s 56; Criminal Procedure Act 1921 (SA), s 56.
For these reasons I am satisfied that it was open to the Magistrate to be satisfied of the appellant’s guilt on count 1 beyond reasonable doubt.
As the respondent pointed out, the appellant’s appeal against conviction is over 40 weeks out of time. No explanation has been provided for the delay. It was only upon the Magistrate imposing convictions as part of sentencing that the appellant decided to appeal. As I have indicated, the appeal is, in effect, an effort to have the case re-tried with the appellant taking a different approach to that taken at trial. For the reasons given I do not think the appeal enjoys any prospect of success. Accordingly, I refuse the appellant an extension of time in which to appeal. If I am wrong in this regard, I would, in any event, dismiss the appeal.
I turn to the appeal against sentence. Here I understand the appellant to contend that the Magistrate erred in imposing convictions for each of the three charges of which he was convicted. His complaint focuses upon the outcome. No process error is asserted. To succeed he must establish that it was not reasonably open to the Magistrate to proceed other than by discharging him without imposing a penalty,[13] or, to impose a fine or sentence of community service without recording a conviction.[14]
[13] Sentencing Act 2017 (SA), s 23.
[14] Sentencing Act 2017 (SA), s 24.
The appellant is an intelligent, articulate man. The Magistrate accepted the evidence of Senior Constable Christiansen that the Senior Constable went through the bail conditions with the appellant before the appellant entered the bail agreement. In those circumstances I do not think that it can be said that the Magistrate erred in not proceeding under s 23(1)(a) of the Sentencing Act 2017 (SA).
In Chehade v Commissioner for Consumer Affairs (Chehade) I dealt with the significance of a conviction as a penalty and with the application of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) in some detail.[15] Section 16 has been reproduced in s 24 of the Sentencing Act 2017 (SA). My observations in Chehade, to which I adhere, apply equally to s 24. I resist the temptation to recover the same ground. I have reminded myself of the authorities to which I referred in Chehade and the applicable principles. I bear in mind the condemnatory nature of a conviction and that it acts as a continuing punishment until spent.
[15] (2016) 125 SASR 223.
The discretion to proceed without imposing a conviction is conditioned on the court first forming the opinion that it is unlikely that the accused will commit such offence again, and, second, that having regard to his or her character, antecedents, age or physical or mental condition, or to the fact that the offence was trifling, or to other extenuating circumstances, good reason exists for not recording a conviction. Putting to one side the question of whether the appellant is unlikely to commit such offence again, I do not think it can be said that it was not open to the Magistrate to conclude that good reason did not exist for proceeding without recording a conviction. As I have said, the appellant is intelligent and articulate and the Magistrate accepted that the bail conditions were explained to him. Nothing in his character, antecedents, age or physical or mental condition suggests the gravity of his offending is such that it was not open to the Magistrate to impose convictions. His offending cannot be said to be trifling. Lastly, no extenuating circumstances exist.
No doubt the appellant was tested by the breakdown of his relationship and the loss of access to his children, but the conditions imposed as part of the grant of bail were intended to prevent further offending. He was obliged to take steps to ensure he complied. He did not do so. I do not think it can be said that the Magistrate erred in not imposing convictions.
I would dismiss the appeal against sentence