Wonga v Police - [2010] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
WONGA v POLICE
[2010] SASC 126
Judgment of The Honourable Justice Gray
7 May 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal from two restraining orders imposed by Magistrate - restraining orders purported to restrain defendant from being within 10 metres of alcohol and not to let alcohol within 10 metres of brother and not to be within 50 kilometres of named towns - whether restraining orders valid.
Held: appeal allowed - restraining orders invalid - both outside scope of section 99 of Summary Procedure Act 1921 (SA) - consideration of power to impose restraining orders.
Criminal Law (Sentencing) Act 1988 (SA) s 19A(1); Summary Procedure Act 1921 (SA) s 99; Domestic Violence Act 1994 (SA) s 4 and s 5, referred to.
Police v Trzesniowski (2005) 93 SASR 136, considered.

WONGA v POLICE
[2010] SASC 126
Magistrates Appeal
GRAY J:
Introduction

This is an appeal from two restraining orders imposed by a Magistrate.
On 5 May 2009, the defendant and appellant, Harold Wonga, was sentenced in relation to, inter alia, three counts of aggravated assault against a police officer[1] and one count of hinder police.[2] The Magistrate imposed a sentence of imprisonment of eight months, suspended on entry into a good behaviour bond of 12 months of $11.00, and ordered that the defendant perform 96 hours of community service over an 18 month period. In addition, the Magistrate purported to impose a restraining order as follows:
There is also going to be a S19A order restraining you from being within 10 metres of alcohol for any reason whatsoever until further order and not to let alcohol within 10 metres of Daryl Wonga [the defendant’s brother] if defendant is looking after him, when Daryl in his company, inside or outside the APY Lands.
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) which provides:
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)      intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)    the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)    there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)      accosts or impedes another in a threatening manner.
…
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)…

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.

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Details

Case: [2010] SASC 126
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appeal in Wonga v Police arose from two restraining orders imposed by a Magistrate, which sought to restrict the defendant's proximity to alcohol and certain towns. The restraining orders mandated that the defendant not be within 10 metres of alcohol, prevent alcohol from being within 10 metres of his brother, and stay 50 kilometres away from specific named towns. The central issue before the court was whether these restraining orders were valid under the applicable legislation.

The court was required to determine whether the restraining orders imposed by the Magistrate were consistent with the provisions of section 99 of the Summary Procedure Act. The Magistrate's intent to prevent the defendant from engaging in harmful behaviour was evident, but the court had to assess whether the specific terms of the orders aligned with the legal framework. The court considered the language and scope of section 99 and compared it against the restraints imposed.

In reaching its conclusion, the court found that while the intent behind the restraining orders was commendable, the specific terms of the orders exceeded the scope of what was permissible under section 99 of the Summary Procedure Act. The court held that the restraints on proximity to alcohol and geographical restrictions on the defendant were not validly authorised by the legislation. Consequently, both restraining orders were deemed invalid.

The court quashed the restraining orders imposed by the Magistrate. The final orders of the court were to set aside the orders, leaving the defendant free from the restrictions placed upon him by the original decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is to be observed that the intent of the Magistrate in imposing the restraints the subject of this appeal is clear. The Magistrate wished to prevent the defendant from being near alcohol and certain townships, both of which appear to be associated with the defendant’s history of offending. However, whatever the utility in restraining the defendant as attempted by the Magistrate, the restraints as imposed do not accord with the legislative provisions. Conclusion Both restraints imposed by the Magistrate were outside the scope of section 99 of the Summary Procedure Act.

Ratio Decidendi

Legal Principle Established

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