Lawson v Dunlevy

Supreme Court of NSW|2012-02-10|Before: Garling J

Judgment 1On 17 August 2011, Magistrate Dunlevy, the first defendant, continued a grant of conditional bail to Jeremy Lawson, the plaintiff, during a hearing at the Local Court at Wilcannia. 2One of the bail conditions imposed was that Mr Lawson was "...not to consume alcohol for any reason, and is to submit to a breath test when requested by a police officer." 3On 14 November 2011, Mr Lawson commenced proceedings in the Supreme Court seeking, pursuant to s 69 of the Supreme Court Act 1970, to have orders made which have the effect of: (a)declaring so much of the condition as required submission to a breath test as unlawful; and (b)quashing that part of the condition. 4No challenge was made to that part of the Condition that required Mr Lawson to refrain from consuming alcohol for any reason. 5For the reasons which follow, I am satisfied that the imposition of a bail condition which required Mr Lawson to submit to a breath test is unlawful and relief ought be granted.

Bail Act 1978 15Bail is a statutory concept, the basis of which is to be found in the Bail Act 1978. Whether or not the impugned condition is permissible, can only be determined by a consideration of the legislation and the established principles by which the legislation is interpreted. 16Before identifying the relevant provision of the Bail Act , it is appropriate to restate the central principles of statutory interpretation which are engaged in this case: (a)the starting point for statutory interpretation is to engage in a purposive construction, that is, to prefer a construction which promotes the purpose and/or object underlying an Act: Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6] per Gleeson CJ; (b)the primary object of legislative interpretation is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] and [71] per McHugh, Gummow, Kirby and Hayne JJ; and (c)it is well established that a statute should not be assumed to abrogate existing fundamental rights in the absence of clear language: Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269 at [36] per McHugh J; Harrison v Melhem [2008] 72 NSWLR 380 at [209]-[221] per Basten JA, Spigelman CJ agreeing at [2]. 17It is appropriate now to identify the relevant provisions of the legislation. Bail is to be granted in accordance with the Bail Act but only with respect to certain identified periods: s 6. If bail is granted, then the person is entitled to be released from custody (if appropriate) and is entitled to remain at liberty until required to appear before a court: s 7. 18When bail is conditional, then the right to remain at liberty is subject to compliance with the conditions which are imposed, because where a condition is apparently breached, then the person may be arrested: s 50. 19The authority for police to grant bail, and the procedures to be followed are set forth in Part 3 of the Bail Act . An authorised police officer may only grant bail in accordance with the Bail Act : s 17(1). The authority for a court to grant bail is found in Part 4 of the Bail Act . 20Part 5 of the Bail Act contains provisions that apply to bail whether granted by police or by a court. Of importance to a grant of bail, are the terms of s 32(1) which provide for the criteria and matters to be considered in granting bail. Shortly put these criteria are: (a)the probability that the person will appear in court when next required: s 32(1)(a); (b)the interests of the person: s 32(1)(b); and (c)protection of a particular person, or the community generally: s 32(1)(b1); s 32(1)(c). 21In considering the protection of the community, the likelihood of a person committing any serious offence whilst on bail, can only be considered if the court reaches the view that the person is likely to commit one or more serious offences, and that likelihood is sufficiently serious, when considered with the likely consequences, as to outweigh: "...the person's general right to be at liberty ": s 32(2). This is a statutory confirmation (if one were needed) of the general right of an individual to be at liberty. However, as a matter of the common law, there was no such general right once a person had been arrested. Hence the need for the Bail Act . 22It is to be observed that these matters as set out in s 32 constitute the entirety of the matters that a court (or an authorised police officer) is entitled to take into account in determining whether to grant bail. 23Division 3 of Part 5 of the Bail Act deals with conditions which may be imposed. Sections 36, 36A and 36B list the only conditions that can be imposed when conditional bail is granted. 24Importantly for the issues raised in this case, s 37 provides: " 37 Restrictions on imposing bail conditions (1) Bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed for the purpose of: (a) promoting effective law enforcement, or (b) the protection and welfare of any specially affected person, or (c) the protection and welfare of the community, or (d) reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person. (2) Conditions shall not be imposed that are any more onerous for the accused person than appear to the authorised officer or court to be required: (a) by the nature of the offence, or (b) for the protection and welfare of any specially affected person, or (c) by the circumstances of the accused person." 25In the circumstances of this case, the final purpose listed in s 37(1)(d) is not said by either party to be relevant. No question arises about the promotion of treatment or rehabilitation of the plaintiff by reference to the terms of the impugned condition. It can be put to one side. 26The central issue for determination is whether it can be said that the impugned condition is imposed for, and is capable of, fulfilling any one or more of the first three listed purposes. 27Before further considering that issue, it is appropriate to notice part of the Second Reading Speech of the Honourable Frank Walker MLA, the then Attorney-General, when on 14 December 1978, he said that the Bill which became the Bail Act, was being introduced as a result of a decision to " codify the law as to bail ". 28He said (at page 2016) that: "The basic object of setting bail is to ensure that an unconvicted accused person appears in court in respect of the offence for which bail is being considered. As such, it is the primary and most important factor to be considered in any bail application." 29The Attorney-General noted that non-compliance with bail conditions was dealt with in Part 7 of the Bill. He said: "Part VII is concerned with non-compliance with undertakings and conditions. In order to ensure that accused persons released on non-financial bail conditions will appear and that legitimate community interests are otherwise protected, the Bill contains a number of important provisions in clauses 50 to 53." 30He concludes the Second Reading Speech with the following remarks: "These bail provisions are important measures which will substantially improve the administration of criminal justice in New South Wales. They attempt to strike the necessary delicate balance between the right of an unconvicted accused person to be at liberty while awaiting determination of the charge on the one hand, and the protection and welfare of the community on the other... Although it is perfectly true that the community must be protected against dangerous offenders, one must not lose sight of the circumstances, first that when bail is being considered, one is confronted with an alleged crime and an unconvicted accused person, and second, the liberty of the subject is one of the most fundamental and treasured concepts in our society."

Is the Impugned Condition authorised by the Bail Act? 31It is convenient to restate here two matters: (a)It is accepted by both parties that it is a valid condition of bail to restrict a person from consuming any alcohol; (b)The impugned condition is restricted to the following words: "...and is to submit to a breath test when requested by a police officer." 32In this and many like cases, as the consumption of alcohol has been directly connected with the commission of the offences with which the plaintiff was charged, the imposition of a ban on the consumption of alcohol can be said to fulfil the purpose of the protection and welfare of either the specially affected person or the community. 33Considering the three purposes, it is to be observed that they have been expressed separately. It is appropriate therefore, to give them separate consideration and meaning. A condition can fulfil more than one purpose, but each purpose should be understood as being addressed to different circumstances. 34In submission, the second defendant contended that the purpose of the impugned condition was two-fold, namely: (a)to provide a ready means for the detection of the breach of the condition of bail requiring the plaintiff to refrain from consuming any alcohol; and (b)to provide a deterrent to the plaintiff so as to ensure that he complied with the bail condition, by refraining from drinking alcohol. 35A question arises as to whether either or both of these purposes fall within any of the three purposes contemplated by s 37.

Law Enforcement 36I accept that the purpose of " promoting effective law enforcement " is a concept that is rather more elastic than concise, rather more ambulatory than fixed and generally protean like. In addition to the well known concept of preventing the commission of crime and the arrest of offenders, or else those suspected of committing crimes, it would also include ensuring that a person attends court when required and preventing the person from fleeing the jurisdiction, thereby attempting to avoid prosecution and sentence. It may also include conditions of bail, such as designated residence and compliance with supervision by a nominated person, because such conditions are designed to achieve these ends, and these ends promote law enforcement. 37I observe that the Bail Act does not make a breach of a condition of bail an offence except in one clearly defined circumstance. A person may be arrested for breaching a condition of bail and be brought before a court, but they are then to be dealt with by being released on original bail or by the original bail being revoked: s 50 of the Bail Act . It is only an offence if a person fails to appear, and then only without reasonable excuse: s 51 of the Bail Act . 38In the context of the impugned condition, which is one as to the conduct of an individual whilst on bail, the mechanism envisaged by the Bail Act is that the person seeking bail "... enter[s] into an agreement to observe specified requirements as to his or her conduct while at liberty on bail ... ": s 36(2)(a) Bail Act . 39The agreement does not create any obligation which is enforced by the criminal law. A breach of it is addressed by a revocation of bail, or else a continuation of bail. No question arises, at least directly, as to the enforcement of any specific law or the law generally. 40A condition which is designed to enable a more ready proof of a breach of the agreement, or else to deter a breach of this agreement does not either directly or indirectly address any issue of law enforcement. 41In those circumstances, it does not seem to me that either of the two purposes stated by the second defendant to justify the impugned condition fall within the purpose of " promoting effective law enforcement ": s 37(1)(a) Bail Act .

Protection and Welfare 42A condition that restricts the consumption of alcohol can fulfil either of the legislated purposes dealing with the protection and welfare of either a specially affected person or of the community generally. 43The context in which it is necessary to consider these purposes is that although a person is charged with the commission of a criminal offence, it is likely that they will appear when required and so they should not remain in custody pending their next court appearance, but rather should be released on bail. 44A determination then needs to be made as to whether a particular specially affected person may need protection or else whether the community generally is in need of protection, and hence the person's bail ought be subject to a conduct requirement. 45It seems to me that the concept of protection as it is used in s 37, is protection from the conduct which involves the commission of further offences, or else which may involve a threat, a potential threat to the physical and mental well-being of an identified individual, but which may fall short of the commission of an offence. 46The impugned condition cannot fulfil these objectives. Nor could a condition such as an obligation to wear a specified type or colour of clothing that would enable ready detection of, or deterrence from breach of bail conditions fall within such a purpose. 47Likewise, the impugned condition, the purpose of which is to deter a breach of a condition of bail, or else to make the detection of a breach more readily established, does not fall within either of those purposes. 48For those reasons, I am not satisfied that that impugned condition is one which is permitted by s 37 as it does not comply with any of the purposes dictated by the legislation.

Further Difficulties with the Impugned Condition 49There are three further reasons why I am satisfied that the condition is unlawful. 50Part 7 of the Bail Act deals with non-compliance with undertakings and conditions. As I have identified earlier, where a person is in breach of a condition of bail, the Bail Act provides that they may be arrested, their original bail revoked or else they may be released on their original bail. If their original bail is revoked then new bail can be set. 51It is quite clear that the terms of s 50 are intended by the Legislature to deal with the course of action that would follow in the event of a breach of an undertaking or agreement that has been entered into. The method by which the Bail Act achieves its intention is to require an individual to enter into an agreement, with or without conditions to comply with the bail undertaking. 52The penalty envisaged by a failure to comply with the bail agreement, or any condition of it, is that the person is brought before the Court and the question of bail is reconsidered, as would be the question of the imposition of any conditions. In other words, the Legislature places the responsibility of compliance with the bail undertaking on the individual, with the sanction that if they do not comply, the Court would reconsider the question of bail and any conditions. The ultimate sanction would be that the person has their liberty on bail terminated and they are remanded in custody. 53Section 50, which is contained within Part 7 of the Bail Act , does not contemplate the imposition of any deterrent upon a person subject to the bail undertaking or agreement other than that undertaking and the consequences of breach of that undertaking or any condition contemplated by s 50. 54It is not for the courts to fill a void left by the legislation and to impose a condition that deters a person from breaching their bail agreement. As I have said, the Bail Act contemplates that the agreement will be adhered to or else the release of the person on bail will be put in jeopardy. 55The second reason which leads me to conclude that the impugned condition is unlawful, is that the terms of it are not capable of any enforcement because they are vague and, in a legal sense, meaningless. 56Central to the impugned condition, is the concept of a "breath test". But what is meant by the phrase a breath test? The phrase is not one known to the common law. It is only to be found in a defined way in a number of different statutes, none of which have any application in the context of the Bail Act . 57It seems to me that those statutes fall within readily identifiable categories: (a)those which affect the safety of the public, namely to test the alcohol consumption of: (i)drivers of motor vehicles: Road Transport (Safety and Traffic Management) Act 1999; (ii)rail safety staff; Rail Safety (Drug and Alcohol Testing) Regulation 2008 ; (iii)operators of marine craft: Marine Safety Act 1998; (iv)drivers of passenger transport: Passenger Transport (Drug and Alcohol Testing) Regulation 2010; and (b)those which affect the fitness for work of certain employees, namely: (i)juvenile detention centre staff: Children (Detention Centres) Act 1987, Children (Detention Centres) Regulation 2010; (ii)correctional centre staff: Crimes (Administration of Sentences) Act 1999, Crimes (Administration of Sentences) Regulation 2008; and (iii)police officers: Police Act 1990, Police Regulation 2008. 58The term "breath test" is defined in each of these pieces of legislation. There is considerable similarity, although not precise identity, between these statutory definitions. Common to the statutory definitions is a definition of the device being used. The device is typically defined by reference to: "... a type approved by the Governor for the conduct of breath tests under the Road Transport (Safety and Management) Act ". 59In that particular legislation, the breath test is defined as one involving the use of a device which is of " ... a type approved by the Governor by order published in the Gazette" . In other legislation, the device is defined as including a device of a type "... that complies with the requirements of AS 3547 - 1997, Breath alcohol testing devices for personal use ... ". 60In these various pieces of legislation, the test is used for the detection, by way of a preliminary analysis at least, of the presence of alcohol in the blood of an individual. However, the breath test alone in each of these statutes is insufficient to determine that question with any finality or specificity. In order to determine the question of the actual amount of alcohol in a person's blood, generally the procedure required is that the person to whom a breath test has been administered is obliged to undertake a breath analysis test, administered by the use of a different device, often in a different location. Again, this is a statutorily defined test that includes provision for the certification of types of devices and operators, in order to comply with the statute. 61Of particular importance, where this is necessary for the purpose of the statute, the statutes also include provisions that give effect to the readings of the breath analysis machine and certificates that constitute admissible evidence and proof of the relevant reading. The detail of these statutory provisions is unnecessary to be recounted here, but such provisions as are typical can be found in Part 2, Division 7 of the Road Transport (Safety and Management) Act . 62It seems to me that without any form of definition, the words "breath test" as they are contained in the impugned condition, are meaningless. The test that can be undertaken by a police officer is not defined by the impugned condition itself, nor is it defined by reference to any piece of legislation. The concept is at large and could mean many different things to different people. 63There is a further final reason that the impugned condition is not valid. It is more onerous than required for the plaintiff, and thereby contrary to s 37(2) of the Bail Act . 64The impugned condition does not call for any of the following: (a)the police officer making the request to have a reasonable suspicion that the person has consumed alcohol; (b)the specification of the location for, or the method of testing to which a person may be subject; (c)the number of times in any one hour or on one day that a person can be requested to undergo a breath test; (d)any connection between the result of a breath test and proof of the consumption of alcohol by the person subject to the bail condition. 65The second defendant accepted that upon a proper interpretation of the impugned condition, an individual could be tested every 15 minutes for the entirety of a day. While this is an example that may be unlikely to be replicated in practice, it serves to demonstrate the onerous nature of the impugned condition, because there is no additional qualification or restriction contained within it which address any of the matters noted in the preceding paragraph. 66As well, arguably, the police requesting the person to undergo a breath test are not obliged to administer the test at the time when, and at the location where, the request is made, but rather are able to ask the person to whom they wish to administer the breath test to go to a different location, perhaps a police station, where the test would be administered. Yet there is no distance or location fixed by way of any words in the impugned condition, which would limit the police officer making the request. 67There is nothing in the impugned condition that would prevent a police officer requesting an individual to attend at a police station which is some kilometres from where that individual lives, in order to undergo the test. An individual without means of transport required to attend for the purpose specified, may be unable to do so, but may yet be in breach of the bail agreement, if they fail to comply with such a request. 68The example in the preceding three paragraphs may be highly unlikely to occur in everyday practice. And, it may be open to a person who does not comply with a request of the kind identified to contend that there has not been any breach of the impugned condition either, because the request was an unreasonable one, or else that they used their best endeavours to comply with the request. But this serves only to highlight that the impugned condition as stated: (a)is far too broad, and (b)is far more onerous than could possibly be required in the circumstances prevailing in the matter before Magistrate Dunlevy. 69The impugned condition as framed, because of the reasons to which I have just referred is more onerous than the circumstances required and does not accord with the requirements of the Bail Act .

Conclusion 70The impugned condition is unlawful and appropriate relief ought be granted.

Orders (1)The Court declares that insofar as the grant of conditional bail to the plaintiff required him to enter into an agreement in accordance with the Bail Act 1978 to submit to a breath test when requested by a police officer, such obligation is unlawful. (2)The Court orders that insofar as, and to the extent that, the grant of conditional bail obliges the plaintiff to enter into an agreement in accordance with the Bail Act 1978, to submit to a breath test when requested by a police officer, the grant of conditional bail is quashed. (3)The Court orders that the second defendant pay the plaintiff's costs of the proceedings.

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: 13 February 2012

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