Bugmy v Director of Public Prosecutions

Supreme Court of NSW|2023-07-03|Before: Wilson J

JUDGMENT

HER HONOUR: By amended summons filed in the Registry of this Court on 19 June 2023 the plaintiff, Julie Bugmy, appeals against a conviction recorded against her on 29 July 2022 in the Local Court of New South Wales for an offence of resisting an officer in the execution of duty, contrary to s 58 of the Crimes Act 1900 (NSW), as it was at the relevant time. The appeal concerns a question of law alone and is brought as of right, pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the C(AR) Act"). [1] The provision is in these terms: 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
The appeal turns upon the construction of s 77 of the Bail Act 2013 (NSW) and the lawfulness of the plaintiff's arrest by police officers on 28 December 2021, an arrest that she resisted. The plaintiff raises a sole ground of appeal: "The Magistrate erred in law by holding that police, in exercising the power to arrest the plaintiff for breach of bail on 28 December 2021, did so lawfully and in accordance with s 77 Bail Act 2013 (NSW), thereby satisfying an element of s 58 Crimes Act 1900 (NSW)."

Background

On 10 August 2021 the plaintiff was arrested by NSW Police officers and charged by way of a Court Attendance Notice with an offence of using a carriage service to menace or harass, contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995 ("the Code offence"). She was allowed conditional bail that same day by a police officer acting as bail authority, as defined by s 4 of the Bail Act. The bail authority identified two relevant bail concerns, being a risk that the plaintiff would endanger the safety of victims, individuals, or the community; and a risk that she would interfere with witnesses or evidence. Excluding a standard condition requiring the plaintiff to appear before the court, conditions of bail were imposed upon the plaintiff in the following terms: 1. These are the conditions of your bail: 1. That I enter an agreement to observe specified requirements as to my conduct while at liberty on bail as set out hereunder; 1. I agree to observe as a condition of my bail the following requirements as to my conduct while at liberty on bail:- 1. Not to enter or go within 10m of Broken Hill Police Stion, 252 Argent St, Broken Hill. 2. Not to enter or go within 10m of Barrier PD offices located in the Government Office Block, Sulphide St, Broken Hill. 3. Not to contact Broken Hill Police Station unless an emergency. 4. In case of emergency she can contact 000. 5. If she wished to report a crime she can contact Pal, Crime stoppers, Community Portal.
The applicant was provided by the bail authority with a copy of the bail conditions imposed upon her, set out in a document that also contained the warning: "(8) If you do not strictly follow this Bail Acknowledgement or any of your bail conditions, Police may: 1. give you a warning, or 2. give you an application notice which tells you to appear at court, or 3. give you a court attendance notice if Police believe you have committed an offence, or 4. arrest you, and take you before a court".
Although the facts alleged against the plaintiff relevant to the Code offence do not form part of the material before this Court, it is a reasonable conclusion to reach from the nature of the offence charged and the bail conditions imposed that the plaintiff was alleged to have made harassing or menacing telephone calls to the Broken Hill Police Station and to staff of the offices of the Barrier Police District at Broken Hill.
On 28 December 2021, at a time when the plaintiff was still subject to the bail conditions noted above, a telephone call was received by Constable ("Con") Alexander Picton from a caller the officer recognised to be the plaintiff. It was not disputed that it was in fact the plaintiff who had placed the call to Broken Hill Police Station that day and who spoke to Con Picton.
Having identified herself as "Julie", the plaintiff told Con Picton: "I need to see police in 15 minutes. I need police down here".
When asked by the officer what had happened, the plaintiff repeated that she needed police "down here" and asserted that "you have to be down here in 15 - 20 minutes". When Con Picton responded that he could not dispatch police officers without knowing why their attendance was required the plaintiff, having initially refused to give further detail, said: "Malcolm went and picked up the kids, and he got abused. I need the police here in 15 minutes or I'm complaining to your boss. I know the inspector. Last time it took the police 3 days to come out. That's not good enough."
Refusing to give Con Picton her telephone number the plaintiff told him that she intended to put three complaints in about him, and "you're out". There followed what Con Picton described as some minutes of the plaintiff yelling at him and calling him by insulting names. The officer terminated the call with the plaintiff still yelling at him. Having checked the plaintiff's bail conditions and noted that she was in breach of those conditions, he entered a job on the Police computer system for the plaintiff's arrest.
Con Hamish McCrindell was also on duty at Broken Hill Police Station on 28 December 2021. [2] Con Picton told him that the plaintiff had breached bail, and Con McCrindell, with Con Taylor Stam-de-Jonge, also made a computer check as to the plaintiff's bail status. The officers concluded that the purpose of the plaintiff's call to the Police Station did not constitute an emergency, and she was, by her telephone call to Con Picton, in breach of her bail. Constables McCrindell and Stam-de-Jonge went with other officers to the plaintiff's house with the intention of arresting her for breaching her bail. All the officers were in uniform, and they were driving marked police vehicles.
On seeing the plaintiff sitting on the front veranda of her home Con McCrindell informed her that she was under arrest for breaching bail. What followed was recorded on film by cameras worn on the bodies of the attending officers. It is not necessary for the purposes of these proceedings to detail what occurred. Suffice to say that, in attempting to effect the arrest of the plaintiff, the officers faced resistance from her, and from a number of members of her family. A melee ensued. The plaintiff was arrested (as were others) and taken to Broken Hill Police Station.
The plaintiff, and others, were charged. The charge preferred against the plaintiff was in the following terms: "Crimes Act 1900 Section 58 Resist officer in execution of duty-T2 Between 1:53pm and 2:30pm on 28/12/2021 at BROKEN HILL did resist Hamish MCCRINDELL being a Constable of police executing his duty."

The Proceedings in the Local Court

A plea of not guilty having been entered to the charge of resisting police the matter came on for hearing before Magistrate Trad sitting at Broken Hill Local Court on 29 Jun 2022. It proceeded as a joint trial, although it is not necessary here to consider the cases relating to the co-accused.
The plaintiff took no issue with the circumstances surrounding the attempt by the police to arrest her on 28 December 2021, and a statement of her bail conditions and the footage recorded by body worn camera were tendered without objection to the court. Con Picton was called to give some short evidence and his statement (summarised above) was tendered. He told the court that the plaintiff had threatened to report him during the telephone call, telling him "three times and you're out", and called him a number of names, the exact details of which he could not recall. The officer said that the plaintiff called police in general as well as himself by various names and, after five or six minutes, and having confirmed for himself that it was the plaintiff's complaint about her husband being verbally abused that she was concerned about, he hung up. He was not cross-examined.
Con McCrindell was also called, and his statement (also summarised above) was tendered. He gave the following evidence: "Q. Constable, just, can you explain to the Court why you went to Ms Bugmy's premises to arrest her? A. Because I was informed by Constable Picton that she'd phoned the police station, thus breaching her bail. Q. And how do you know she was breaching her bail? A. Because we conducted checks on the COPS system which revealed her bail conditions where she was not to contact Broken Hill Police Station unless in the event of an emergency. Q. Any why did you go and arrest her? A. She contacted the police station, she didn't state, according to Constable Picton, the information I had at the time, she didn't state why she was calling and proceeded to abuse him verbally."
In cross-examination the officer said that, although he was not aware of the job entered on the police computer system for the plaintiff's arrest, he had spoken with Con Picton about the plaintiff's telephone call to the Station. He had left the Police Station with the intention of arresting her and, on arriving at her home, he immediately sought to affect her arrest. The following evidence was given: "Q. Sir, you didn't prior to placing Ms Bugmy under arrest, enquire as to whether she might have had any reasonable excuse for having contacted the police? A. I asked her after I placed her under arrest. And I asked, I believe I asked, "Are you aware you can't contact the police station?". She stated that she was calling for help. I was previously told by Constable Picton that that wasn't the case. Q. She later volunteered to you certain things about why she had contacted the police, is that correct? A. She never told me the reason why she called. Q. No, but she volunteered certain things to you about what had occurred. A. She said she had called. Q. Sir, prior to arresting her, you didn't make any enquiries of her about why she had called the police station? A. I don't recall, no. Q. The reason why did you didn't make those enquiries was that you didn't think you had to? A. I have received many calls in the past, Constable Picton as well, as many other officers had. I was going to make the arrest and go from there to find out. Q. You didn't turn your mind to why she would have a reasonable excuse in relation to the matter? A. Not considering Constable Picton told me he had been abused, and not being told as to why in the phone call. Q. You did not turn your mind to that, correct? A. That is correct. Q. Sir, you didn't enquire of Ms Bugmy of circumstances in relation to the matter that might have gone to or been relevant to the triviality or the seriousness of the alleged breach prior to arresting her, correct? A. Correct. Q. Sir, the reason that you didn't do that was that you didn't think you had a lawful obligation to do that. A. I placed her under arrest and made enquiries following that. If satisfactory I could have discontinued the arrest."
Con McCrindell confirmed that, having received clear information as to a breach of bail by the plaintiff, and having satisfied himself of the terms of her bail, he concluded that she had breached bail and he had a lawful right to arrest her. His evidence concluded: "Q. Did you understand at the time that you arrested her that there were alternate ways of dealing with a person for a breach of bail? A. That is correct. Q. What did you understand those alternatives to be? A. You can give a warning, for example, you cannot give anything. Q. There is nothing in your statement about having considered any of those alternatives, is there? A. No, there is not. Q. That is because you did not consider them, correct? A. That is correct."
The statements of other officers as to the circumstances of the plaintiff's arrest were tendered. No further oral evidence was called in the prosecution case. No case was called for the plaintiff.
The only matter in issue before the Local Court was the lawfulness of the arrest of the plaintiff, and thus the capacity of the evidence to establish the element of "officer in the execution of duty", it being accepted by both the prosecution and (then) defendant that a constable could only be acting "in the execution of duty" if acting lawfully.
Section 58 of the Crimes Act, as it applied on 28 December 2021 [3] , was (relevantly) in these terms: "58 Assault with intent to commit a serious indictable offence on certain officers Whosoever - … or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, […] … shall be liable to imprisonment for 5 years."
To be acting in "the execution of his or her duty" a constable must be acting lawfully. The plaintiff's case before the Local Court challenged the lawfulness of her arrest. She argued that Con McCrindell, in exercising the power to arrest her for a breach of bail that is provided by s 77(1) of the Bail Act, failed to adhere to the terms of s 77(3) of the Act, the latter imposing a mandatory qualification upon the former. Section 77 provides: "77 Police officers may take actions to enforce bail requirements (1) Unless section 77A applies, a police officer who believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition, may - (a) decide to take no action in respect of the failure or threatened failure, or (b) issue a warning to the person, or (c) issue a notice to the person (an application notice) that requires the person to appear before a court or authorised justice, or (d) issue a court attendance notice to the person (if the police officer believes the failure is an offence), or (e) arrest the person, without warrant, and take the person as soon as practicable before a court or authorised justice, or (f) apply to an authorised justice for a warrant to arrest the person. (2) However, if a police officer arrests a person, without warrant, because of a failure or threatened failure to comply with a bail acknowledgment or a bail condition, the police officer may decide to discontinue the arrest and release the person (with or without issuing a warning or notice). (3) The following matters are to be considered by a police officer in deciding whether to take action, and what action to take (but do not limit the matters that can be considered) - (a) the relative seriousness or triviality of the failure or threatened failure, (b) whether the person has a reasonable excuse for the failure or threatened failure, (c) the personal attributes and circumstances of the person, to the extent known to the police officer, (d) whether an alternative course of action to arrest is appropriate in the circumstances. (4) … (5) …"
Section 77A of the Act has no application in the plaintiff's circumstances.
It was argued before the Local Court that Con McCrindell had set out from Broken Hill Police Station on 28 December 2021 intending to arrest the plaintiff for breaching her bail, and he sought to affect her arrest immediately on arriving at her home that day, without asking her about the circumstances of her telephone call to Broken Hill Police Station or turning his mind to the matters set out in s 77(3). It was submitted that: "That didn't happen because he didn't think that he had to do it, and therefore he didn't do it, and therefore he didn't comply with subs 3, and your Honour, in my respectful submission, there's no way to construe subs 3 other than it placing a mandatory obligation on arresting officers to consider matters that are specified in the subsection, and in those circumstances, in my submission, it follows that it's not a lawful exercise of the power when one hasn't considered those matters".
The prosecutor submitted that the considerations in s 77(3) were not mandatory considerations to be taken into account prior to arresting a person pursuant to s 77(1) of the Act.
Judgment was reserved by Magistrate Trad. Her Honour returned to the matter on 29 July 2022, when orders were made, and reasons given. In her oral judgment, her Honour held that: "The language in s 77 makes it clear that a police officer with the requisite belief, has a discretion regarding what action he or she may take. The power is given in subs 1. It is complete as it sets out the grounds required to be satisfied to trigger it. The matters set out in subs 3 are considerations for the exercise of the discretion in subs 1. It does not qualify the power in subs 1, it seeks to guide it. It does not purport to make the exercise of one of the powers in subs 1 unlawful if one or any of the considerations it sets out, are not considered. […] Accordingly, I am satisfied beyond a reasonable doubt that the police in exercising the power to arrest Ms Bugmy for breach of bail on 28 December 2021, did so lawfully. There being no other question raised in relation to that arrest and the stated reliance upon the resolution of this question to deal with the element of "in execution of duty", I am satisfied that the officers were acting in the course of the execution of their duty in their dealings with Julie Bugmy […]."

The Arguments on the Appeal

The plaintiff complains that her Honour was in error in construing s 77 of the Bail Act, and thus in error in concluding that the arrest of the plaintiff on 28 December 2021 was lawful. She submits that, on the basis that her arrest was not lawful, the offence of resisting a constable in the execution of duty was incapable of proof, and her conviction for that offence should be quashed.
The plaintiff submits that s 77(3) is expressed in mandatory terms and thus, in considering what, if any, action is to be taken pursuant to s 77(1), a police officer must first consider each of the matters raised in s 77(3) and, having done so, conclude that arrest is required. In support of that argument the plaintiff referred the Court to extrinsic material, being the Second Reading Speech to the Bail Bill 2013, and sections of the NSW Law Reform Commission Report 133 on Bail of April 2012 as referred to by the Attorney. In the Second Reading Speech the Attorney-General said: "Section 77 (3) sets out the considerations that a police officer is required to take into account when deciding whether to take action, and what action to take. They include the seriousness of the failure or threatened failure, whether the person has a reasonable excuse, the personal attributes and circumstances of the person and whether an alternative to arrest is appropriate in the circumstances. Section77 (2) also makes clear that is an officer arrests a person for a breach, the officer may decide to discontinue the arrest and instead issue a warning, application notice or court attendance notice.
It was argued that, by using the words "a police officer is required to take into account", the parliament intended to require police officers to consider the matters referred to in s 77(3) prior to taking action pursuant to s 77(1). This, is was argued, is consistent with what had been said by the Law Reform Commission in its 2012 Report 133 ("the LRC Report"), that it was appropriate to "make clear that police have options other than arrest", particularly in circumstances where the similar power of arrest for the suspected commission of a criminal offence is constrained by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA").
Noting the importance of a citizen's right to liberty referred to in State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 at [63], and the Law Reform Commission's concern that alternatives to arrest be clear, the plaintiff contends that the Parliament clearly intended that a police officer who "suspects on reasonable grounds that a person has failed to comply with or is about to fail to comply with, a bail acknowledgment or a bail condition" must consider alternatives to arrest prior to depriving an individual of his or her liberty.
The Director submits that there was no error by her Honour in construing the operation of s 77. The task of statutory construction must focus on the text and should be purposive. These features have primacy over any consideration given to extrinsic material. The extrinsic material in any event supports the construction given to the provision by the Magistrate. The LRC Report, in referring to the constraints that apply to the power of arrest for a suspected breach of the criminal law said: "[15.34] We consider it anomalous that the LEPRA constraints apply to an arrest for a criminal offence but not to arrest for a breach of a bail condition or conduct direction. Legislation should make clear that police have options other than arrest in such circumstances, what those options are, and, to some extent, what police should take into account. Some of the constraints on arrest prescribed by s 99(3) of LEPRA are not applicable to arrest for failure to comply with a conduct requirement under bail legislation. Otherwise, we consider that those constraints should apply. … [15.36] The police power to take action should arise only where the police officer believes, on reasonable grounds, that a failure or anticipated failure to comply with a conduct direction has or will occur without reasonable excuse. We make a corresponding recommendation in relation to the powers of a court when dealing with a case of failure to comply with a conduct direction. [15.37] In considering what course is to be taken in response to failure to comply with a conduct direction, the officer should be required to have regard to the relative seriousness or triviality of the perceived breach. The officer should also be required to have regard to the person's age and any mental health or cognitive impairment that is apparent or known to the officer. We make those recommendations".
The Director contends that, whilst s 77(3) requires that the matters referred to in it "are to be considered", it does not mandate any particular course of action, or make the power of arrest subject to the conclusion that no alternative to arrest would suffice. Sub-section (3) informs the exercise of the discretion of a police officer, but officers retain a broad discretion to arrest.

Determination

For the reasons that follow, the plaintiff's complaint must be rejected, and the amended summons dismissed. Section 77(3) does not impose a mandatory requirement upon police officers that limits the power to arrest for breach of bail. The only limitations or pre-conditions upon that power are those which appear in s 77(1) itself; that is, that s 77A does not apply; and that the power may be exercised only where an officer "believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition".
In support of her appeal the plaintiff placed great weight on the extrinsic material, and particularly on the LRC's Report 133 concerning Bail. Extrinsic material can be useful in the interpretation or construction of legislation, but only in somewhat limited circumstances. After all, determining the intention of the parliament from what may have been said by individual members of parliament about it, or from examining materials considered by parliament in introducing a new provision or Act, is fraught with uncertainty, as Dawson J said in Mills v Meeking (1990) 169 CLR 214, at 234; [1990 HCA 6]: "The difficulty has been in ascertaining the intention of Parliament rather than in giving effect to it when it is known. Indeed, as everyone knows, the intention of Parliament is somewhat of a fiction. Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament".
The starting point is always the text of the relevant provision itself, considered in the context of the statute, as French CJ observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ("Alcan (NT)"), at [4]: "The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose".
The task must also conform with s 33 of the Acts Interpretation Act 1987 (NSW), which is in mandatory terms and requires a purposive construction: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
The purpose of the Bail Act may be gleaned from s 3, informed by the Preamble to it. The latter is in these terms: "Preamble The Parliament of New South Wales, in enacting this Act, has regard to the following - (a) the need to ensure the safety of victims of crime, individuals and the community, (b) the need to ensure the integrity of the justice system, (c) the common law presumption of innocence and the general right to be at liberty."
It is of some note, particularly when viewed in the context of s 3, that "the general right to be at liberty" is the last of the considerations referred to in the Preamble, with the need to ensure the safety of the community and its members, including victims and witnesses, the first of the matters raised. Section 3 contains no reference at all to the common law right of liberty, but focuses on the question of the need for an accused person to be detained or released and, if released, whether conditions should be imposed. It provides as follows: "3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions. (2) Repealed."
It is not without significance to observe that one of the earliest amendments made to the Bail Act was the repeal of s 3(2) by the Bail Amendment Act 2014 (NSW), assented to on 25 September 2014. The sub-section thereafter omitted from the Act was formerly in these terms: "(2) A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty."
It is clear that the parliament intended by the repeal of s 3(2) of the Act that s 3, in which its purpose is stated, should not include any reference to the common law presumption of innocence or the right to liberty. The Act in its present form is intended to provide a statutory framework for decisions concerning whether an accused person should be remanded in custody or released after charge, with or without conditions.
Bearing that in mind, comparisons to the statutory power of arrest relevant to persons at unconditional liberty reasonably suspected of having committed a crime, s 99 of LEPRA, and any constraints that operate upon it, are of limited assistance. Such a person has not yet been charged with any crime, or assessed by a bail authority as presenting a bail risk or bail concern. By contrast, a person who is at liberty subject to bail has already been made the subject of a criminal charge or charges, being an "accused person" or "a person accused of an offence", as those terms are defined by s 4 of the Act. Other than as provided in Schedule 1 to the Act, it is only a person accused of an offence who can be granted bail: s 7(2).
A further distinction between a citizen at liberty and a person subject to bail arises where conditions of bail are or have been imposed upon the accused person. Section 8 of the Act allows for a person accused of a crime to be released without bail, but a bail decision of that nature can only be made in accordance with Part 3 of the Act. Part 3 is, critically, directed to the assessment of whether the accused person poses any relevant concern or risk and, if so, if and how that concern or risk can be mitigated. A decision to release without bail, or to dispense with bail, pursuant to s 20(1) of the Act, can only be made where there are no unacceptable risks identified. Determining whether there are any unacceptable risks requires compliance with Division 2 of Part 3 by assessing whether, having regard to those matters in s 18, there are any bail concerns (s 17) and whether there are unacceptable risks as set out in s 19 of the Act.
If there are neither bail concerns nor unacceptable risks identified, a person can be released without bail, or bail might be dispensed with, in accordance with s 8. This was not the plaintiff's situation, she being subject to a grant of conditional bail.
By the imposition of bail conditions upon an accused person, he or she has necessarily been assessed as presenting "bail concerns" within the meaning of s 17(2) of the Act. Section 17(2) itemises bail concerns: "(2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will - (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence."
That is, where there is a grant of conditional bail the accused person's liberty has been lawfully constrained because of a determination by a bail authority that the person's conduct must be the subject of restriction to protect the integrity of the criminal justice system, or the safety of the community, or both. That follows because of the operation of s 17(2), read in conjunction with s 20A of the Bail Act, which permits the imposition of conditions of bail only in limited circumstances, as follows: "20A Imposition of bail conditions (1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns."
Division 3 provides for the categories of bail conditions that may be imposed upon an accused person to address bail concerns.
Once a person is admitted to conditional bail, Part 8 of the Act regulates the "Enforcement of bail requirements". The construction of that Part must be carried out by reference to the text, in the context of the Act, and ensuring that the purpose of the legislation is achieved.
The power available to a police officer provided by s 77 of the Act must be construed by reference to those same considerations.
The text of s 77 is set out above. It is of some relevance to note the wording of the heading to the section: "Police officers may take actions to enforce bail requirements" (emphasis added). The use of the word "may" points to a discretion to take actions and, implicitly, what action to take.
What might otherwise be immediately observed is that the power provided by s 77(1) is qualified by two stated pre-conditions or considerations, both of which are in the sub-section itself. The first limitation is found in the opening words of the sub-section: "Unless s 77A applies…". Section 77A applies to persons subject to arrest by warrant, a sentence of imprisonment having been imposed, but stayed pending apprehension. Section 77A is of no relevance in the present context, other than to draw attention to the fact that the opening words of s 77(1) themselves qualify the operation of the powers provided under the sub-section.
The second qualification on the power provided by s 77(1) is also found in the words of the subs-section, by stating that action enumerated in s77(1)(a) - (f) may only be taken where "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 acknowledgment or a bail condition". Those are the only limitations upon the decision to take action pursuant to s 77(1)(a) - (f). On the basis that s 77A does not apply, and where a police officer has formed the relevant belief on reasonable grounds, the officer may take any of the actions listed in the provision. Which of them to take, if any, is a discretionary matter for the officer.
Had the parliament intended to further qualify the powers that may be exercised for breach or suspected breach of bail, the relevant qualification could have been readily given in the sub-section. Alternatively, it could have been specifically stated as a "limitation" on the exercise of the power of arrest in the text of the section. That it did not is a clear basis upon which to conclude that no mandatory qualifications to the power were intended.
Other provisions of the Bail Act operate with stated limitations or are made subject to another provision, such as the following small selection: s 15(3) "..except as otherwise provided by this Act"; s 22A(3) "Subject to subsection (1)…"; s 22B(3) "Subject to subsection (1)…"; s 29 "Limitation on power to impose pre-release requirements"; and s 68 "Limited powers when proceedings pending in another court."
There is nothing in the text of s 77(1) of a similar nature, or which makes s 77(1) subject to the operation of s 77(3). Further, the structure of the provision itself, when coupled with the text, renders s 77(2) - (5) subsidiary to a police officer reaching the state of belief referred to in s 77(1), and taking some action. Those provisions don't otherwise arise.
That s 77(1) stands unqualified by the operation of any other part of the section is reinforced by consideration of s 77(2), which provides for those circumstances in which a police officer who exercised the power of arrest pursuant to s 77(1)(e), may decide "to discontinue the arrest and release the person". It would be unlikely for that provision to be necessary if, before affecting an arrest, a police officer was obliged to consider each of the alternatives to arrest provided by s 77(1)(a) - (d) and discount them as inappropriate.
Section 77(3) applies to both s 77(1) and s 77(2): the sub-section provides guidance as to considerations by which the powers provided by the section are to be exercised. That is what the words "are to consider" refers to; the phrase does not establish a mandatory pre-consideration to the exercise of the power of arrest.
Finally, if the purpose of the legislation is to provide a framework concerning the making of bail decisions, with that framework giving importance to the protection of the criminal justice system and the safety of the community (including victims and witnesses), it would hinder rather than ensure that the objects of the Act can be met by those exercising functions under it to construe s 77(1) as subject to s 77(3). One example suffices to make the point.
Assume a situation where a man is arrested and charged with assaulting his estranged wife. The accused person is granted bail later that same day by an authorised officer at the Police Station where, two bail concerns being identified, conditions of bail are imposed. The bail concerns are concerns that the accused might commit a serious offence (s 17(2)(b) of the Act), and interfere with witnesses (s 17(2)(d) of the Act). Conditions are imposed preventing the accused from entering the street in which the complainant resides; from contacting her by any means; or from harassing, assaulting, or interfering with her. Because of the bail decision, s 14 of the Bail Act imposed a limitation on the accused's right to be at liberty, until such time as he signed a copy of the bail acknowledgement on which the concerns and conditions are endorsed. Having signed the document, the accused is released from the police station, to attend court on a particular date.
An hour after the accused's release to bail the arresting officer sees him in Smith Street, that being the street where the complainant resides, and which the accused has been restricted from entering by a condition of the bail granted earlier that day. The accused is observed to be about to open the front gate of the property where his estranged wife lives. In those circumstances the police officer forms a reasonable belief that the accused has failed to comply with a condition of his bail by entering Smith Street, and is about to fail to comply with another condition of bail by contacting, or harassing the complainant, who lives there.
It could hardly be sensibly argued that the objectives and purpose of the Bail Act are met by the police officer taking time to run through in his or her mind, and consider the efficacy of, each of the alternatives to arrest that are provided for by s 77(1)(a) - (d), before setting off in pursuit of the accused to arrest him. If the officer took that approach the time lost, even if only momentary, could be enough to allow the accused to enter the house and do some serious harm to the complainant before the officer could apprehend him. The grant of conditional bail would singularly fail to protect a witness, and to ensure the safety of the complainant and ultimately the integrity of the criminal justice system, in such a scenario.
A similar conclusion was reached by Rothman J in Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50, at [40].
Whilst the plaintiff sought to distinguish this scenario as an emergency, s 77(1) must be expected to operate consistently regardless of any urgency or other unusual consideration. Laws must be capable of being applied consistently and effectively in a range of situations, without the need to read extra words into a statutory provision, such as (relevant to s 77(3)) "except in the case of emergency".
Nothing in the extrinsic material referred to by the parties has caused me to alter the view I have taken of the construction of s 77. The text is clear, particularly so when viewed in the context of the Act as a whole, and bearing in mind the purpose of the Act and the section. Extrinsic materials cannot be permitted to displace the meaning of the text: Alcan (NT), at [47], per Hayne, Heydon, Crennan and Kiefel JJ.
In the plaintiff's case, she was arrested and charged with a serious offence carrying a maximum penalty of imprisonment for 3 years. A bail authority had made the assessment required and made a bail decision, determining that bail concerns existed, with conditions of bail required to regulate the plaintiff's conduct, to ensure the safety of victims, individuals, or the community; and to prevent interference with witnesses or evidence. The plaintiff's liberty was conditional on obedience to the conditions of bail imposed upon her. She did not enjoy an unrestricted right to liberty.
There was no suggestion that, by telephoning Broken Hill Police Station on 28 December 2021 to make a trivial complaint that did not require any police action, and to abuse Con Picton, the plaintiff was other than in breach of her bail. She clearly was. It was in those circumstances open to Con McCrindle to consider taking some action other than arresting the plaintiff, informed by those matters referred to in s 77(3), but he was not obliged to do so.
Con McCrindle had formed the belief, which was reasonable having regard to the information he had, that the plaintiff had failed to comply with her bail conditions. That being the case, and s 77A of the Bail Act having no application, the power to arrest was enlivened; whether to exercise that power was entirely a matter for Con McCrindle, unfettered by the operation of s 77(3).
Upon arresting her, he could have, as he said in evidence, "discontinued" the arrest after speaking with the plaintiff, and released her pursuant to s 77(2), perhaps after considering those matters in s 77(3), but he chose to take her to a police station so that she might be placed before a court. That course was a lawful one.
It follows that the plaintiff's arrest by Con McCrindle was lawful, and her conduct in seeking to interfere with her lawful arrest constituted the offence of resisting an officer in the execution of duty. The Magistrate was correct in her construction of s 77 and correct in her determination of fact as to proof of the plaintiff's guilt of the offence.
That is not to say that the decision to arrest was necessarily the best course of action, or that some other less confrontational course may not have been wiser, but the decision was within the police officer's discretion and his exercise of the discretion that reposed in him was lawful.

orders

The Orders of the Court are: 1. The amended summons filed on 19 June is dismissed; 2. No order as to costs.

Endnotes

The appeal was filed within the extended time allowed, and there is no issue as to the nature of the ground of appeal. As it concerns the proper construction of a provision of the Bail Act, it concerns a question of law alone. That being the case, leave is not required.
Erroneously referred to as 21 December 2021 in his statement of 7 March 2022. Nothing turns on this error.
Section 58 was amended by the Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Act 2022 (NSW), with the changes coming into effect on 18 October 2022. The equivalent offence of resisting a police officer in the execution of duty after that date is pursuant to s 60(1AA) of the Crimes Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2023

Acts Interpretation Act 1987(NSW)

Bail Amendment Act 2014(NSW)

Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Act 2022(NSW)

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