Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862

Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862 · Read the judgment on AustLII

Catchwords: Bail – arrest of breach of bail – execution of duty by police officers

This decision of a single judge of the Supreme Court, holds that, the only precondition to a police officer arresting a person for breach of bail is a formation of the relevant belief as to a breach of bail – the officer is not obliged to consider alternatives like a warning before determining to arrest the person.

The plaintiff was well known by the police at a particular police station (the implication is that she contacted the station regularly). Things between the plaintiff and the station progressed to the point that she was charged with an offence of using a carriage service to menace harass, or offend. She was granted bail, on condition including a conduct condition which prevented her for going within 10 metres of the police station, and prohibiting her from calling the police station unless there was an emergency.

A few months later, whilst still on bail, a police officer at the station received a call which the officer recognised as coming from the plaintiff. The caller demanded the immediate attendance of the police, although she initially refused to elaborate on why they should attend (eventually she apparently said that someone else in the house had been abused, in circumstances not described). She threatened that if police were not there in about 15 minutes, she would make complaints about the police officer who had answered the phone. The call eventually progressed to some minutes of her yelling and insulting the officer. The officer ended the call, then noticed that the plaintiff was seemingly in breach of her bail condition not to contact the station. A number of uniformed officers went to the plaintiff’s house – not to respond to her call, but to arrest the plaintiff. She resisted arrest, a melee ensued, and the plaintiff was arrested (along with others). She was charged with resist officer in the execution of their duty.

The plaintiff pleaded not guilty to the resist charge and the matter proceeded to hearing. The only issue in the hearing was the lawfulness of the arrest of the plaintiff, and whether the officer was acting ‘in the execution of his or her duty’. In the way the hearing was run, the question really became whether or not, in exercising the power to arrest the plaintiff for her alleged breach of bail, the police were obliged first to consider each of the alternatives in s 77 of the Bail Act 2013.

Broadly, s 77(1) provides that an officer who believes, on reasonable grounds, that a person has failed to comply with their bail can decide to take no action; warn the person; issue a notice for the person to appear before court; charge the person with a fresh offence (in certain circumstances); apply to an authorised justice for an arrest warrant or; crucially, arrest the person without a warrant. It also provides that arrest can be discontinued. Section 77(3) provides a list of factors to be taken into account in deciding which course to take, including the seriousness or triviality of the alleged breach; any reasonable excuse; the personal attributes of the person; and whether a course of action other than arrest is available.

In the Local Court hearing, the argument was made that the arresting officer had set out with the intention to arrest the plaintiff, and duly did so – without asking her about the circumstances of the phone call which was said to be a breach of her bail. In other words, that the officer hadn’t considered the alternatives to arrest, and was therefore outside of the execution of their duties. The Magistrate decided that the language in s 77 made it clear that the section guides the discretion and does not purport to make it unlawful if the alternative options are not considered. The plaintiff appealed to the Supreme Court.

Wilson J, sitting alone, considered that s 77(3) does not impose a mandatory requirement upon police officers that limits the power to arrest for breach of bail. Other than in limited circumstances (presently irrelevant), the only pre-condition to the power to arrest for breach of bail is that a police officer ‘… believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgement or a bail condition’. (at [33]). Except in the limited circumstances in which s 77A may apply (essentially, in circumstances where a sentence has been stayed pending an appeal), the officer may take any of the actions listed in s 77(1), and which of them they take (if any) is a discretionary matter for the officer (at [51]).

In coming to that interpretation, her Honour was unconvinced by arguments which resorted to extrinsic materials (at [34]-[36]). Her Honour also considered it to be of ‘some note’ that the ‘general right to be at liberty’ was listed as only the third of the things to which the Parliament had regard in the Preamble to the Bail Act (behind the safety of the community and the need to ensure the integrity of the justice system), and that it was ‘not without significance’ that very shortly after the Bail Act’s introduction Parliament had moved to repeal a section which had previously required a bail authority to have regard to the presumption of innocence and the general right to be at liberty (at [37]-[40]). It was of some relevance to note that the heading of the provision included the wording ‘Police officers may take actions to enforce bail requirements’ [emphasis as in judgment], because the use of the word ‘may’ points to a discretion (at [49]). It would hinder, rather than ensure that the objects of the Act are met if the section required an officer to consider all available options before arresting a person who may be in breach of bail (at [56]). A person on bail is to be contrasted, her Honour considered, with a person who has not yet been charged. In that sense, comparisons to the limitations upon the power to arrest to commence proceedings for offences were of limited assistance (at [41]).

In the circumstances of this case, her Honour considered the plaintiff to be clearly in breach of her bail (at [65]), such that the power to arrest was enlivened. Whether the officer chose to exercise that power was entirely a matter for that officer, unfettered by s 77(3) (at [66]). It followed that the arrest was lawful (even if not necessarily the best course of action), and the plaintiff’s summons was dismissed (at [68]-[69]).

Although it obviously remains to be seen, the practical consequence of this decision could well be more arrests for alleged breaches of bail (or putting it another way, a reduction in the use of the non-arrest responses to alleged breaches of bail).