Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70

Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 · Read the judgment on AustLII

Catchwords: Arrest for breach of bail – preconditions to arrest

This decision overturns a single-judge decision which graced these pages in August last year: Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862. Here, the Court of Appeal determined that an officer who has formed a belief, on reasonable grounds, that a person has failed (or is about to fail) to comply with their bail conditions, must in fact take into account the considerations set out in s 77(3) before taking enforcement action.

To recap, the applicant was on bail for offences related to making harassing or menacing phone calls to Broken Hill Police Station. Her bail conditions prevented her from going to the local police stations or calling them on the telephone except in an emergency. On the day in question it was alleged that she called the Broken Hill Police Station and demanded that police attend within 15-20 minutes, but didn’t explain why. She spent about three minutes yelling and abusing the constable who had the bad fortune to answer the phone. When the call ended, the constable looked up the applicant’s bail conditions and entered a job on the police computer to the effect that the applicant had breached her bail conditions. Shortly another officer came back to the station and was told what had happened. That other officer also checked the applicant’s bail conditions, then set off to the applicant’s home with four other police – not to respond to her call, but to arrest her for breaching her bail conditions. The applicant resisted her arrest.

In evidence, the officer confirmed that he’d set off from the station with the intention of arresting the applicant, and that it was the first thing he sought to do when he arrived at her home. At the hearing in the Local Court (and in the subsequent appeals), the applicant contended that the arresting officer was not acting in the lawful execution of his duty because he hadn’t complied with s 77 of the Bail Act.

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. Crucially, s 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.

The sole issue in the hearing was whether a failure to consider the matters in s 77(3) rendered the applicant’s arrest unlawful.

Here, the Court of Appeal (Leeming JA; Mitchmore JA agreeing; Basten AJA agreeing with additional reasons) considered the extrinsic material helpful in the interpretation of s 77(3), and considered that those extrinsic materials tended to confirm the ordinary meaning of the words in the section (at [51]). The fact that s 77(3) is not a precondition to the availability of the power of arrest, but a consideration regard to which must be had when it is exercised, does not mean non-compliance with the subsection leaves the exercise of the power valid (at [68]). There is nothing especially technical in the reasoning required by s 77(3); it requires that four matters ‘are to be considered’ by a police officer in deciding whether to take action and if so what action to take when he or she reasonably believes a bail condition has not been complied with. The short point is that if a police officer’s exercise of power is to be lawful, he or she should comply with the obligation imposed by the statute – a conclusion said by the Court to be ‘utterly unsurprising’ (at [79]).

In short, the Constable was obliged to consider the matters in s 77(e) before deciding to arrest the applicant, as opposed to taking any of the actions under s 77(1) (at [87]). It followed that the arrest was not lawful, and such resistance as was offered by the applicant was not resistance to an officer in the lawful execution of their duties (at [88]).