Bugmy v Director of Public Prosecutions

Background

1. The background is uncontroversial. Ms Bugmy had been arrested and charged with an offence of using a carriage service to menace or harass, contrary to s 474.17(1) of the Criminal Code, which is a Schedule having effect pursuant to s 3 of the Criminal Code Act 1995 (Cth). She was granted conditional bail on the same day by a Senior Constable, who identified as bail concerns that she might endanger the safety of persons and interfere with witnesses or evidence.

The conditions of Ms Bugmy's bail

1. Ms Bugmy was provided with a "Bail Acknowledgement" document dated 15 June 2021 which relevantly contained the following conditions and warning: … (3) These are the conditions of your bail: (a) that I enter into an agreement to observe specified requirements as to my conduct while at liberty on bail as set out hereunder; (4) 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 Station, 252 Argent St, Broken Hill. (2) Not to enter or go within 10m of the Barrier PD offices located in the Government Office Block, Sulphide St, Broken Hill. (3) Not to contact Broken Hill Police unless an emergency. (4) In case of emergency she can contact 000. (5) If she wished to report crime she can contact Pal, Crime Stoppers, Community Portal. … (8) If you do not strictly follow this Bail Acknowledgement or any of your bail conditions, Police may a) give you a warning or b) give you an application notice which tells you to appear at court, or c) give you a court attendance notice if Police believe you have committed an offence, or d) arrest you, and take you before a court.
2. The material made available to this Court does not contain facts relating to the underlying offence charged or the outcome of the prosecution. However, as the primary judge noted at [6], it is reasonable to conclude from the nature of the offence and the bail conditions that Ms Bugmy was alleged to have made harassing or menacing telephone calls to the Broken Hill Police Station. At the conclusion of the hearing, the Court was told that it was common ground at the Bar table that Ms Bugmy had subsequently (a) had her bail dispensed with, (b) been convicted of the Commonwealth offence by the Local Court, but (c) had that conviction quashed upon her appeal to the District Court.

The evidence adduced in the Local Court

1. The evidence adduced in the Local Court was to the following effect. On Tuesday 28 December 2021, Ms Bugmy called Broken Hill Police Station at approximately 1.53pm. Constable Alexander Picton answered and, after identifying herself as "Julie", Ms Bugmy requested that police attend "down here in 15-20 minutes". When Constable Picton told Ms Bugmy that he could not dispatch police officers without knowing why their attendance was required, Ms Bugmy said that she would put in a complaint about Constable Picton, and thereafter spent approximately three minutes yelling at Constable Picton and calling him insulting names. After ending the call, Constable Picton checked Ms Bugmy's bail conditions and entered a job on the Police computer system for her arrest after noting that she was in breach of those conditions.
2. Constable Hamish McCrindell returned to Broken Hill Police Station from an unrelated job at approximately 2.00pm on the same day. He was informed by Constable Picton that Ms Bugmy had telephoned the station and was in breach of her bail. Constable McCrindell said that he also checked Ms Bugmy's bail records.
3. Constable McCrindell then attended Ms Bugmy's residence at approximately 2.10pm, along with a sergeant and three other constables. All were in uniform. The arrest and events that followed were recorded on body worn cameras, and the audio-visual recordings were tendered in the Local Court. Constable McCrindell approached Ms Bugmy on the front porch of her home, and immediately informed her that she was under arrest for breaching her bail conditions. There followed resistance from Ms Bugmy and other members of her family (who were also charged with offences including resisting police, hindering police and intimidating police). Ms Bugmy and the others were then arrested and taken to Broken Hill Police Station.
4. A Court Attendance Notice in evidence discloses that Ms Bugmy came before the Local Court at Bathurst at 9.30am the following morning, Wednesday 29 December 2021. It may be observed that the previous day was a public holiday, because Christmas Day and Boxing Day had fallen on the weekend. This Court was told from the Bar table that Ms Bugmy, who would have appeared by AVL, was granted bail at that hearing.
5. At some stage Ms Bugmy pleaded not guilty to the charge of resisting an officer in the execution of duty. The matter came before a Magistrate sitting at Broken Hill on 29 June 2022.

Common ground that Crown was required to establish the arrest was lawful

1. In the Local Court, Ms Bugmy contended that her arrest had been unlawful, with the consequence that the element of an "officer while in the execution of his or her duty" in then s 58 of the Crimes Act was not satisfied. At the time of Ms Bugmy's arrest on 28 December 2021, s 58 of the Crimes Act relevantly provided as follows: 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever - … assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, or … shall be liable to imprisonment for 5 years. (The section has been re-enacted with significant differences with effect from October 2022; nothing turns on this.)
2. A broad approach has been adopted to the element of the "execution of [the police officer's] duty" in the offence created by s 58 and cognate offences. Thus a Full Court of the Federal Court said in Director of Public Prosecutions Reference No 1 of 1993; Re K (1993) 46 FCR 336 at 340-341, by reference to Australian, English and Canadian decisions, that: The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.
3. Consistently with that passage, it was common ground that acting "in the execution of his or her duty" for the purposes of s 58 of the Crimes Act required the prosecution to establish that the resistance occurred during the lawful execution of an officer's duty. This is uncontroversial, and accords with that which has been observed in similar statutory contexts: see for example Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [117] and Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [17].

Section 77 of the Bail Act

1. Ms Bugmy contended that Constable McCrindell was not acting in the lawful execution of his duty when arresting her, by reason of his failure to comply with the requirements of s 77(3) of the Bail Act. That section 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) An authorised justice may, on application by a police officer under this section, issue a warrant to apprehend a person granted bail and bring the person before a court or authorised justice. (5) If a warrant for the arrest of a person is issued under this Act or any other Act or law, a police officer must, despite subsection (1), deal with the person in accordance with the warrant. Note - Section 101 of the Law Enforcement (Powers and Responsibilities) Act 2002 gives power to a police officer to arrest a person in accordance with a warrant. (6) The regulations may make further provision for application notices.

Essential reasoning of the Local Court Magistrate and the primary judge

1. Each of the Local Court Magistrate and the primary judge held that s 77(3) did not impose mandatory considerations upon police officers that limited the power of arrest for breach of bail under s 77(1). The Magistrate said: 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.
2. Similarly, the primary judge found that the only relevant limitations upon a police officer's exercise of power were those found in s 77(1) itself, namely, that (a) s 77A does not apply, and (b) the 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 [50]-[51]. Her Honour stated that s 77(3) simply provided "guidance as to considerations by which the powers provided by the section are to be exercised": at [56]. Her Honour also gave an example, at [58]-[61], to which it will be necessary to return.

Common ground that s 77(3) imposed an obligation on police officers

1. In this Court, the Director's written submissions appeared to advance two separate defences: (a) the words "are to be considered" in s 77(3) fell short of imposing an obligation upon an officer exercising any of the actions in s 77(1), and (b) in any event, the failure to consider the matters in s 77(3) did not invalidate the exercise of power under s 77(1). However, her oral submissions proceeded expressly on the basis that an officer exercising power under s 77(1) was required to consider the matters in s 77(3), although if the police officer failed to do so, that did not of itself lead to the arrest being invalid. Senior counsel for the Director confirmed at the conclusion of the hearing that it was not contended that an officer was not required to consider the matters in s 77(3), saying that while "this is a mandatory consideration", it was "simply one of those mandatory considerations that doesn't condition the power".
2. That concession was properly made, although it amounted to a departure from the construction which found favour in the courts below. As noted above, her Honour had regarded subs (3) as providing "guidance" to the exercise of the powers under s 77(1). It is true that the words "are to be considered" are less unequivocal than "must". But the ordinary meaning of the language is that the matters are not mere guidance, but are matters which the officer is required to consider. It is quite clear that those words convey that meaning in this statute. Take a section which is fundamental to the regime established by the statute, s 18, the assessment of "bail concerns". Section 18 is titled "Matters to be considered as part of assessment". Subsection (1) provides "A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division", following which some 21 matters are identified. Subsection (2) provides "The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered", and proceeds to identify three matters. It is perfectly plain that "is to consider" and "are to be considered" in s 18 impose an obligation upon the bail authority, and there is no reason for identical words in s 77(3) to bear a different meaning.

Analysis of the text of s 77

1. The following matters appear on the face of the provision.
2. First, the section confers a discretionary power. The words preceding "may" in subs (1) are preconditions to the availability of the power. The words following "may" identify the range of actions which the police officer is empowered to take.
3. Secondly, the power is only available if 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". A bail acknowledgement is defined in s 33 of the Bail Act as, relevantly, a document identifying the conditions upon the grant of bail. Plainly enough, the police officer's reasonably held belief is a precondition to the exercise of power.
4. Thirdly, a police officer who holds the requisite belief is authorised to undertake any of the six "actions" in subs (1). The word "action" is convenient to describe all six options, having regard to the heading of the section ("Police officers may take actions to enforce bail requirements") and the references to "action" in s 77(3), even though the first "action" is to do nothing.
5. Fourthly and importantly, s 77(1) provides no guidance as to how the police officer is to choose which of the six actions to take.
6. Fifthly, the first two actions involve no immediate legal consequences for the person who is believed not to have complied with a condition of his or her bail. However, the third, fourth, fifth and sixth actions all require the person to be brought before a court or authorised justice. That may occur either through the issuing of an application notice or a court attendance notice, or through the police officer effecting an arrest, or because the officer applies for a warrant; thus the third, fourth and sixth actions will indirectly bring the person before a court or authorised justice at some time in the future. Only if the person is arrested by the police officer is the person's liberty affected immediately. Significantly, that action (and only that action) is accompanied by an obligation upon the police officer to take the person before a court or authorised justice as soon as practicable. The obligation is conveyed without using mandatory language, but its implication is evident.
7. Uniquely amongst the six actions, the power conferred on the police officer to arrest the person is addressed further in subs (2), which expressly entitles the officer to "discontinue the arrest and release the person". In most practical circumstances, that power would only be exercised after the arrest has been effected, but before the person has been taken to a court or an authorised justice. Subsection (2) is therefore an exception to the obligation accompanying the action in s 77(1)(e) (which, incidentally, falsifies the proposition accepted in the courts below that subs (1) was complete or free-standing such that the only limitations were found in the subsection itself). The subsection finds its counterpart in s 105 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA").

Contextual considerations

1. The question being a very narrow one arising from the power conferred by s 77(1) and the constraints upon that power imposed by s 77(3), it might be expected that relatively little is derived from the balance of the statute. Nonetheless, both sides took this Court to the preamble and the statement of purpose. The preamble recites that: 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.
2. The purpose of the Act in its current form in s 3(1) is: 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.
3. The so-called preamble (an unnumbered provision following the long title) was inserted by item 1 of the Schedule to the Bail Amendment Act 2014 (NSW), while s 3(2) was omitted by item 2 of the same Schedule. Subsection (2) as originally enacted, extended the purpose to include the following: 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.
4. I do not consider that any material assistance is had one way or the other on the proper construction of s 77 by reference to any of the above provisions. All are far removed from the lawfulness of an exercise of the power to arrest following belief that a bail condition has not been complied with if the arresting officer fails to consider the matters in s 77(3). Another way of putting this is that neither Ms Bugmy's preferred construction of s 77 nor that of the Director will promote or detract from the general statements in the preamble or s 3. But even if it did, just as every provision of a tax Act is not construed against the taxpayer, notwithstanding the purpose is to raise revenue (cf Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [51]), it is far from clear that it would have any material bearing upon the construction of s 77(3).
5. In contrast, the extrinsic materials are helpful. They tend to confirm the ordinary meaning conveyed by s 77(3). Regard to the report of the NSW Law Reform Commission and the Minister's Second Reading speech is authorised by s 34(1)(a) of the Interpretation Act 1987 (NSW).

NSW Law Reform Commission Report on Bail

1. The predecessor to s 77 was s 50 of the Bail Act 1978 (NSW), which conferred a power of arrest. It did not have any counterpart to the suite of powers in s 77(1), nor did it have any counterpart to the matters in s 77(3) which an officer was to consider.
2. The provision which became s 77 of the new Bail Act emerged from a recommendation in a report by the NSW Law Reform Commission entitled "Bail" (Report 133, April 2012). The report observed by reference to s 99 of LEPRA that the general power of arrest was conditioned upon the officer being of the view that the arrest was necessary to achieve one or more of certain specified purposes.
3. Paragraph 15.30 provided: The policy reasons for subsection 99(3) of LEPRA apply with equal force to arrest for failure to observe a conduct requirement imposed under a bail agreement. Indeed, they apply with greater force because, in such a case, the person is not being arrested for a criminal offence. As a consequence it would seem inappropriate for the power of arrest in such a case to be unlimited.
4. The report addressed objections, including from NSW Police, to that reasoning, but concluded at paragraphs 15.34-15.35: 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. In the case of breach or anticipated breach of a conduct requirement, where the arrest is not also for the commission of a criminal offence, the legislation should provide explicitly that the following options are available to police: take no action; issue a warning; require the person to attend court by notice without arresting the person; and arrest the person and take them as soon as practicable before a court. Arrest should be specified as an option of last resort.
5. After stating that the precondition to the power to take action should turn on an officer's reasonably held belief, the report continued at paragraph 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.

NSW Government Response to the NSW Law Reform Commission Report on Bail

1. I shall shortly turn to the submissions made in advance of and at the hearing, but while dealing with extrinsic material it is convenient to address a submission made on 26 March 2024, pursuant to leave, by the Director after she was directed to the NSW Government Response to the NSW Law Reform Commission Report on Bail (November 2012). She observed that that response included the following passages relevant to s 77.
2. The first was: Under the new model, when a breach of a bail condition has been identified, police may either: • take no action; • issue a warning; • require the person to attend court by issuing a notice; or • arrest the person and take them before a court. In considering what course of action to take when responding to breach, the police officer will be required to consider the relative seriousness or triviality of the suspected breach, whether the person has a reasonable excuse for the breach, the personal attributes and circumstances of the person, (known or apparent to the officer) and whether an alternative course of action to arrest is appropriate in the circumstances. The police response will depend on the circumstances of the breach, and the first response may be arrest if considered appropriate. (Emphasis added by the Director.)
3. The second appeared after summarising the Commission's recommendation that arrest be a last resort: The Government agrees arrest should not be the universal response to a breach, however, is of the view police should have the discretion to arrest as a response to a breach when appropriate. The new legislation will provide guidance for police in considering what course of action to take when responding to a breach. (Emphasis added by Director.)
4. The Director contended that the response supported her construction, for the following three reasons: a. First, the Government expressly rejected the LRC's recommendation that arrest be specified as a last resort when dealing with breaches of bail conditions, and disclosed the intention that the police retain the discretion to arrest, unfettered by any presumption towards non-custodial alternatives. b. Secondly, the Government accepted that a police officer should be required to consider the matters enacted in s 77(3), but indicated that the intention of the inclusion of those matters was to provide guidance to police when considering the courses of action presented by s 77(1). That provides contextual explanation for the Legislature's departure from the LRC's recommended formulation of the chapeau to s 77(3) "in considering … the police officer must have regard to" (more suggestive that the considerations were conditional on the exercise of the discretion) in favour of "the following matters are to be considered … in deciding whether to take action" (more consistent with a requirement that is intended to guide the discretion, and not to condition it). c. Thirdly, nothing in the Response speaks to the invalidation of an arrest if the s 77(3) factors are not considered.

The Director's written and oral submissions on the construction of s 77(3)

1. The ordinary meaning of the words of s 77, supported by the extrinsic materials referred to above, and the settled approach to construction of statutes authorising a power of arrest, all point in one direction. The gravamen of the Director's approach was to advance a series of submissions designed to displace those considerations. Although the Director's submissions were numerous, and some were quite ingenious, it is to be borne steadily in mind that all face the obstacle of undercutting the textual and contextual considerations summarised above.
2. The Director observed that in contrast with the belief in subs (1) which was relatively clearcut, the matters in subs (3) were more open-ended, and did not necessarily admit of a crisp answer. That is true. It is reflective of the fact that the belief in subs (1) is a precondition to the existence of power, while the matters in subs (3) are things to which consideration must be given in its exercise. I do not think this carries any weight.
3. More generally, the Director drew attention to the differences between subss (1) and (3), maintaining that the latter unlike the former was not a precondition to the exercise of power. Thus it was said that "[t]he considerations in s 77(3) do not impose conditions on the power to take the steps in s 77(1), because that power already exists". As it was put orally, the textual features of the subsection "on their terms, are not directed to the power to take action", and the words of s 77(3) reflected "an acceptance in the text that the power to do something that's provided for in s 77(1) has already been enlivened". I agree. But this submission does not advance the resolution of the issue. The submission is seemingly based on the proposition that the only way in which the exercise of the power of arrest might become unlawful is if its preconditions were not satisfied. But the means by which lawful executive action may be constrained are numerous. One possibility is to impose preconditions upon the exercise of the power. Another is to require that the power be used for a particular purpose. A third is to insist that the power must only be used if particular matters are first considered. A fourth is to insist that the exercise of power is vitiated if regard is had to particular matters. A fifth is to require that the power not be exercised unreasonably or capriciously. A sixth is to require that the power not be exercised until the person affected by it has been heard. Those considerations, which are not exhaustive, merely illustrate that the law recognises a large number of ways in which executive power may be constrained.

Conclusion and orders

1. Constable McCrindell arrested Ms Bugmy immediately upon arriving at her home. It was common ground that before doing so, he did not consider the matters in s 77(3). The arrest appears to have been effected because other officers had formed the view that she should be arrested, and he was tasked with that "job". The Constable may have treated that as equivalent to a direction under s 99(2) of LEPRA; if so, that was wrong. Constable McCrindell gave evidence to the effect that after arresting Ms Bugmy, he might obtain more information and might discontinue the arrest. That however did not absolve him, as the officer effecting the arrest, from considering the matters in s 77(3).
2. By the time oral submissions were made on appeal, it was common ground that the mandatory language in s 77(3) meant what it says. The Constable was obliged to consider the matters in s 77(3) before deciding to arrest Ms Bugmy, as opposed to taking any of the other actions available under s 77(1). Text and context confirm that the lawfulness of the exercise of power under s 77(1) depends on the officer complying with s 77(3). It follows that the Magistrate erred in finding that the officer was in the lawful execution of his duties when Ms Bugmy resisted him, and the primary judge erred in failing to reach the same conclusion.
3. The result is neither technical nor unexpected. A lawful exercise of the power of arrest conferred by s 77 is one in which the arresting officer complies with the requirements of s 77(3). That concededly did not occur. There was no suggestion, nor could there have been any, that the non-compliance was immaterial or insignificant. It follows that the arrest was not lawful, and such resistance as Ms Bugmy offered was not resistance to a police officer in the lawful execution of his duties.
4. The appeal must be allowed, and the conviction quashed. When providing an amended draft notice of appeal at the hearing, Ms Bugmy's counsel explained that if her arguments were successful, it should not be necessary for the matter to be remitted to the Local Court, and the hearing proceeded on that basis. It follows that this Court's decision will terminate the proceedings initiated by the court attendance notice dated 29 December 2021. It was common ground in this Court that whatever the outcome, there be no order as to costs.
5. I propose the following orders:

Text, context and purpose

1. This question is to be determined in accordance with the approach adopted by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [4] in the following terms: "91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
2. In the present case, the subject matter of the section is how to deal with a person who, having been charged with an offence and granted conditional liberty, fails to comply, or may have failed to comply, with a condition of his or her liberty. However, apart from a failure to attend at court, breach of the conditions of bail is not an offence. Nor has the person said to be in breach been convicted of the offence charged, or at least, if convicted, will be awaiting determination of an appeal.
3. Section 77(1) identifies a range of possible actions with gradations in the severity of interference with individual liberty, including taking no action at all. The principal effect of s 77(3) is to remind the officer of matters which, to the extent they are relevant, will direct a decision as to which option should be adopted. Because there is more than one option other than arrest, par (d) (considering "an alternative course of action to arrest") will not suffice. But the structure of s 77 demands that the officer make a choice. The s 77(3) considerations may, as Leeming JA suggests, be self-evident, or perhaps intuitive; their consideration will be inherent in carrying out the decision-making process required once the officer has decided to invoke a power.
4. Section 77(3) does not limit the available matters "that can be considered"; other matters remain permissible, but not mandatory. There are no textual indications that the mandatory considerations did not condition the validity of the exercise of the power. While the Bail Act does not state what consequence would flow from an officer's failure to comply with s 77(3), neither does it state the consequence of failure to comply with a condition to the engagement of the power conferred by s 77(1). No party suggested that compliance with s 77(1) was not a condition of the validity of any action taken. Consistency supported the conclusion that each affected validity.

Extrinsic materials

1. The Court was taken to extrinsic material, including a Law Reform Commission Report and the Second Reading Speech to the Bail Bill 2013. This material did no more than confirm that the language of s 77(3) was intended to be mandatory in effect. However, at least implicitly, it supported the conclusion that non-compliance would invalidate the exercise of the power. No extrinsic material suggested there was any other form of sanction available for non-compliance.

Clear statement rule

1. The applicant relied upon what she described as a common law principle that arrest should be an action of last resort, as an element of respecting the liberty of the individual. She then invoked the principle of statutory construction that the court should not construe legislation as overriding a fundamental common law right without clear language.
2. There were two limbs to this submission. The first involved the concept of individual liberty (which may be accepted to be a fundamental common law right) in the context of powers of police to arrest. As this Court observed in Fleet v District Court of NSW, [6] in relation to the power to arrest a person suspected of having committed an offence under the Prevention of Cruelty to Animals Act 1979 (NSW): "73 Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where [the arresting officers] knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that: 'Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.' 74 There have been many judicial statements about the inappropriateness of resort to the power of arrest (by warrant or otherwise) when the issue and service of a summons would suffice adequately (O'Brien v Brabner (1885) 49 JP 227, R v Thompson [1909] 2 KB 614 at 617, Dumbrell v Roberts [1944] 1 All ER 326 at 332, Chung v Elder (1991) 31 FCR 43). Some are in a legal context that differs from the present. … Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve."

Arrest on a charge: reasoning by analogy

1. It is unsurprising that the submissions compared s 77 of the Bail Act with s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (Law Enforcement Act). Although the subject matter is similar, the structure of the provisions is different. Section 99 imposes two separate criteria governing the engagement of the officer's power to arrest without a warrant, being (a) suspicion on reasonable grounds of the commission of an offence, and (b) satisfaction that arrest is reasonably necessary for one of several specified reasons. Satisfaction of one of the specified reasons is sufficient; they are not cumulative. Their purpose is to ensure that there is a proper reason to proceed by way of arrest, rather than by the issue of a court attendance notice which has the same effect, namely to bring the person before a court to answer a charge.
2. Thus, s 99 authorises only one course of conduct (namely, arrest), while s 77 requires the officer to choose from a range of actions. Nevertheless, the officer seeking to take some action under s 77 is required, in deciding what action to take, to consider a range of circumstances which may dictate or permit an action short of arrest and deprivation of liberty. Thus, although the structure of the provisions differs, at least at a high level of generality, they condition the exercise of a power of arrest. It is accepted that, in relation to s 99, compliance with a requirement conditioning the engagement of the power is necessary for the validity of the arrest. It therefore seems likely that Parliament intended that failure to comply with requirements conditioning the exercise of a power of arrest under s 77(1) should also result in invalidity.
3. The Director resisted that conclusion on the basis that four of the six categories of action identified in s 77(1) do not involve arrest. However, on closer analysis, the distinction is of limited weight. Section 77(1)(a) (taking no action) and (b) (issuing a warning) are possible consequences reaching an affirmative answer to any of the factors in subs (3). Two more, (c) and (d) (issuing an application notice or a court attendance notice) provide for steps to be taken by a court or authorised justice, also without the person being arrested. That is, they are directly equivalent to the alternative course of action in relation to a suspected offender under s 99 of the Law Enforcement Act. The fifth, (e) (applying for an arrest warrant), also involves the intervention of an independent authority, rather than the police officer arresting without a warrant.

Unfortunate consequences

1. The Director proposed two practical difficulties arising from a conclusion that s 77(3) conditioned the validity of action under subs (1). The first was that the need to consider all the factors, each of which invoked an open-ended and evaluative judgment, rendered it unlikely that non-compliance was intended to lead to invalidity. In this respect, the exercise required differed from that under s 99 of the Law Enforcement Act, because satisfaction of one ground of reasonable necessity under s 99(1)(b) sufficed to justify the arrest.
2. Reading each of the elements of s 77(3) individually, the submission has some weight. However, the preferred approach is to read the section as a whole, as noted above. Furthermore, as a practical matter, not all factors will have equal relevance in a particular case. Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Limited: [10] "Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision."
3. The factual circumstances to be considered are those known to the officer. To describe the criteria as "open-ended" is merely to say that they do not prescribe precise standards; to describe them as "evaluative" is merely to say that there may be no right or wrong outcome. The merits of the outcome are not reviewable by a court; the only factual inquiry is whether the process was undertaken. Further, the statute would not be read so as to impose an unreasonable burden on the officer.
4. The second undesirable consequence identified by the Director was the potential difficulty in taking the wide-ranging considerations into account in a case of emergency. [11] The example given was of an officer seeing a person (known to be subject to a bail condition prohibiting approach to the home of an estranged partner) approaching the gate or door to the home, who would need to act without even momentary delay. The example was unpersuasive. First, the unexpressed assumption was that the person was acting in a threatening manner or appeared to be carrying a weapon - otherwise why not shout to the person to stop? Secondly, in a real emergency, it is likely that the officer would rely upon a power under the Law Enforcement Act. Thirdly and in any case, the officer would have to consider his or her options before arresting the person; in a perceived emergency, the extent of reasonable consideration would be extenuated.

Endnotes

1. Bugmy v Director of Public Prosecutions [2023] NSWSC 862 ("Bugmy").
2. The provision is set out at [19] above.
3. Bugmy at [54].
4. (1998) 194 CLR 355; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ) (footnote omitted).
5. Bugmy at [37]-[40].
6. [1999] NSWCA 363 (Mason P, Priestley and Handley JJA).
7. (1908) 7 CLR 277 at 304 (O'Connor J); [1908] HCA 63.
8. (1994) 179 CLR 427 at 437-438 (Mason CJ, Brennan, Gaudron and McHugh JJ); [1994] HCA 15.
9. See Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [313]-[314] (Gageler and Keane JJ).
10. (1986) 162 CLR 24 at 40(c); [1986] HCA 40.
11. See also Bugmy at [58].

Amendments 30 July 2024 - inserted reference to Criminal Code in [4], so it reads "Criminal Code, which is a Schedule having effect pursuant to s 3"

• changed "limitation" to "limitations" in [23]
• deleted "to" in second sentence of [52], so it reads "s 77(3) which an officer"
• inserted "[action]" into the quotation in [57] 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: 30 July 2024