R v Connors [2012] ACTSC 80

3. That submission relied on a decision by Garling J of the Supreme Court of New South Wales in the recent case of Lawson v Dunlevy [2012] NSWSC 48 ("Lawson v Dunlevy").

4. In that case, the condition under consideration, which had been imposed in support of a condition that the person admitted to bail, Mr Lawson, abstain from the consumption of intoxicating liquor, was that he submit to breath analysis if so required by a police officer. It was agreed that such a condition was commonly imposed in the Local Court by magistrates and by authorised officers granting conditional bail where, in order to avoid further offending, it was considered necessary that abstinence from alcohol be required.

5. It was accepted by his Honour that the condition, so far as it related to abstinence from alcohol, was reasonable.

6. The Bail Act 1978 (NSW) ("the Bail Act (NSW)") provided the statutory basis for the learned Magistrate to grant conditional bail.

7. Central to his Honour's consideration was s 37 of the Bail Act (NSW):

Restrictions on imposing on 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.

8. It was agreed that s 37(1)(d) had no application. The condition was not imposed for those purposes.

9. The substantive objection was to the direction that Mr Lawson submit to breath testing when so required by a police officer. The prosecution, correctly in my view, identified (at [34]) the purpose of the impugned condition as being twofold:

(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.

Subject to sections 36A and 36B, one or more of the following conditions only may be imposed on the grant of bail:

(a) that the accused person enter into an agreement to observe specified requirements as to his or her conduct while at liberty on bail, other than financial requirements (whether for the giving of security, the depositing of money, the forfeiture of money or otherwise) and other than requirements of the kind referred to in paragraph (a1) or section 36A (2),

(a1) that the accused person enter into an agreement to reside, while at liberty on bail, in accommodation for persons on bail,

(b) that one or more than one acceptable person (other than the accused person) acknowledge that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail undertaking,

(c) that the accused person enter into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking,

(d) that one or more than one acceptable person (other than the accused person) enter into an agreement or agreements, without security, to forfeit a specified amount or specified amounts of money if the accused person fails to comply with his or her bail undertaking,

(e) that the accused person enter into an agreement, and deposit acceptable security, to forfeit a specified amount of money if the accused person fails to comply with his or her bail undertaking,

(f) that one or more than one acceptable person (other than the accused person) enter into an agreement or agreements, and deposit acceptable security, to forfeit a specified amount or specified amounts of money if the accused person fails to comply with his or her bail undertaking,

(g) that the accused person deposit with an authorised officer or court a specified amount of money in cash and enter into an agreement to forfeit the amount deposited if the accused person fails to comply with his or her bail undertaking,

(h) that one or more than one acceptable person (other than the accused person) deposit with the authorised officer or court a specified amount or specified amounts of money in cash and enter into an agreement or agreements to forfeit the amount or amounts deposited if the accused person fails to comply with his or her bail undertaking,

(i) that the accused person surrender to the authorised officer or court any passport held by the person.

(2A) In considering whether to impose a condition referred to in subsection (2) (a1), the authorised officer or court is to consider whether placement in accommodation for persons on bail is available and suitable for the accused person. In considering the suitability of placement, the authorised officer or court is to have regard to the background of the accused person, particularly if the accused person is an Aboriginal person or a Torres Strait Islander.

(2B) The Minister for Corrective Services is to ensure that adequate and appropriate accommodation for persons on bail is available for the purposes of the placement of persons on bail.

11. In his Honour's view, the impugned condition did not fulfil any of the listed objectives. Hence, it was not expressly permitted by s 37.

12. I have to say that I cannot see why, though not expressly authorised, the impugned condition is not ancillary to a permitted objective and hence within power. After all, preventing offending whilst on bail is a permissible objective, and preventing, for example, an accused person from associating with named potential co-offenders would be ancillary to such a purpose. Conditions requiring an accused person to report to police may be imposed to enable flight to be detected or deterred, or to detect the use of drugs or alcohol where such use is forbidden by a bail condition. Not only is such a condition ancillary to an authorised purpose, but it also serves the objective of deterring or detecting a breach of another condition.

13. The relevant provision in the ACT is s 25 of the Bail Act (ACT):

Conditions on which bail may be granted to adults

(1) The following conditions may be imposed on a grant of bail to an adult:

(a) conditions about the person's conduct while released on bail;

(b) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) pays to the Territory a stated amount if the person fails to appear in court in accordance with his or her undertaking; or

(ii) gives acceptable security for the payment to the Territory of a stated amount if the person fails to appear in court in accordance with his or her undertaking;

Note For acceptable people and acceptable security, see s 32.

(c) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) deposits a stated amount with a court or authorised officer; and

(ii) forfeits the amount if the person fails to appear in court in accordance with his or her undertaking.

(2) With the consent of a person who makes a deposit or gives security under subsection (1) (b) (ii) or (c), it may be a condition of bail that the deposit or security continues to apply if bail is continued.

(3) It must not be a condition of bail that a person gives consent under subsection (2).

(4) Without limiting subsection (1) (a), the requirements that an accused person may be required to observe relating to his or her conduct while released on bail include -

(a) a requirement that the accused person report periodically, or at specified times, at a stated place; and

(b) a requirement that the accused person reside at a stated place; and

(c) a requirement that the person undergo psychiatric treatment or other medical treatment; and

(d) a requirement that the accused person participate in a program of personal development, training or rehabilitation; and

(e) a requirement that the person -

(i) accept supervision by the directorgeneral; and

(ii) comply with any reasonable direction of the directorgeneral; and

Examples of directions

1. a direction to attend a program
2. a direction to comply with a mental health assessment or treatment order made by the ACAT
3. a direction to attend drug or alcohol counselling

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(f) for a person (the accused person) charged with a domestic violence offence -

(i) a requirement that the accused person not contact, harass, threaten or intimidate, or cause someone else to contact, harass, threaten or intimidate, a stated person; or

(ii) a requirement that the accused person not be on premises where a stated person lives or works; or

(iii) a requirement that the accused person not be on or near premises where a stated person is likely to be; or

(iv) a requirement that the accused person not be in a stated place; or

(v) a requirement that the accused person not be within a stated distance of a stated person; or

(vi) if the accused person lives with someone - a requirement that the accused person not enter or remain at the home if the accused person is under the influence of alcohol or another drug.

(5) A court or an authorised officer must, in considering conditions for the release on bail of an accused person who is an adult, consider the conditions for the release of that person in the sequence in which they appear in subsection (1).

(6) A court or an authorised officer, in granting bail to an accused person who is an adult -

(a) must not impose a condition mentioned in subsection (1) unless the court or authorised officer is of the opinion that the imposition of the condition is necessary to secure 1 or more of the following purposes:

(i) the attendance of the person before a court from time to time as required in relation to the offence in relation to which bail is being granted;

(ii) the protection from harm of the accused person or any other person;

(iii) the prevention of the accused person from committing an offence while at liberty on bail;

(iv) the prevention of the accused person from interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or anyone else; and

(b) must not, except at the request of the accused person, impose a condition, or a combination of conditions, that impose obligations that are more onerous than necessary to secure the purposes referred to in paragraph (a) for which the condition or combination of conditions is imposed.

(7) A court or an authorised officer, in granting bail to an accused person on a condition referred to in subsection (1) (b) or (c) must not require the accused person to give an acceptable security for a stated sum, or to deposit a stated sum with the court or authorised officer, if the court or authorised officer has reasonable grounds for believing that the accused person does not have the means to provide such a security or make the deposit, as the case may be.

(8) If a court or an authorised officer grants bail to an accused person on a condition mentioned in subsection (1) and the accused person satisfies the court or authorised officer that the person is unable to comply with that condition, the court or authorised officer must -

(a) refuse bail; or

(b) grant the accused person bail subject to such other condition mentioned in subsection (1) as the authorised officer or the court believes the accused person will be able to comply with and will secure the purposes mentioned in subsection (6) (a).

(9) In this section:

directorgeneral means -

(a) if section 25A applies in relation to the accused person - the responsible directorgeneral decided under that section; or

(b) in any other case - the directorgeneral responsible for this Act.

premises includes -

(a) any land; and

(b) any structure, building, vehicle, vessel or place (whether built on or not); and

(c) any part of such a structure, building, vehicle, vessel or place.

14. As in NSW, breach of a bail condition, though not an offence unless it is a failure to appear in answer to bail, renders the accused person liable to arrest without warrant: s 50 Bail Act (NSW); s 56A Bail Act (ACT). It is, therefore, important that a person is not exposed to such arrest save for good and sufficient cause. Thus, conditions should not be imposed unless required for the purposes of s 25.

15. His Honour, however, also rested his decision upon the principle that the terms of a condition should not be vague, or worse, meaningless: Lawson v Dunlevy at [55].

16. He noted that the term "breath test" was not defined in the impugned condition. Given the range of meanings that the term "breath test" might refer to, that is a valid objection. However, it is entirely curable if the term is further defined by reference to a test by means of an approved device. Specifying a screening device under the Road Transport (Alcohol & Drugs) Act 1977 (ACT), for example, would remove ambiguity in that respect.

17. The term "urinalysis" suffers less from such ambiguity. Clearly, all that is required is that the accused provide a sample of urine to be tested for illicit drugs by way of standard tests habitually conducted by Corrective Services.

18. In each case, however, there is no need for a specific prescribed limit. There may in some cases be a question as to whether a positive test result indicates a breach, but that is as much a question of fact as, for example, whether an accused has driven a motor vehicle in contravention of a bail condition.

19. I am of the opinion that bail conditions designed to detect and deter a breach of another condition of bail, if reasonably framed so as to be least obtrusive, particularly where breach is considered a real risk, are ancillary to the prescribed purposes of bail and hence authorised by s 25.

20. However, a further objection considered by his Honour has more substance.

21. For example, a "curfew" condition is not infrequently imposed to inhibit further offending behaviour. It is commonly supported by a condition that, if called upon, the accused present himself or herself to a police officer at the specified place of residence. Of itself, this could be seen as a reasonable means of ensuring compliance with bail conditions.

22. Nevertheless, it could be oppressive to call upon an accused person at unreasonable hours or repetitively.

23. The grant of power to Corrective Services to require an accused on bail to submit to urinalysis could, theoretically, be similarly abused. It would, however, be expected that such requests would be made on attendance for supervision. Similarly, submission to breath testing would be expected to occur when the accused attends to report to a police station. Administering a test on such an occasion could not be regarded as unreasonable.

24. Two issues then arise: first, the extent to which such grants of power are incidental to the purposes of bail.

25. I refer to the words of Dixon CJ in Wragg v State of New South Wales [1953] HCA 34; (1953) 88 CLR 353 at 386:

A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include ... provisions which can only be justified as ancillary or incidental.

26. Though it should not restrict the accused more than necessary to attain the objectives of the grant of power, the power conferred by the legislature on authorised officers or judicial officers must nevertheless confer authority to render the condition capable of enforcement. A condition the breach of which is not readily detectable by reasonable means would be nugatory.

27. Nevertheless, a real question remains whether, to justify the intrusion upon the accused's privacy rights, there needs to be some grounds for suspicion of breach of the relevant bail condition.

28. Section 12 of the Human Rights Act 2004 (ACT) ("HR Act (ACT)") relevantly provides:

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily;

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

30. The latter sub-section succinctly and appropriately prescribes the limits which should apply to the specification of bail conditions imposed in the exercise of the powers conferred by or under s 25 of the Bail Act (ACT).

31. The central question is whether the primary condition is necessary having regard to the test prescribed under s 28(2) of the HR Act (ACT). In that regard, whilst there is a right to consume intoxicating liquor, there is no right to consume illicit drugs. Even so, it is not part of the criminal law that a consequence of such consumption is the suspension or revocation of bail. If the primary condition is, as in this case, clearly related to criminogenic risk, then it is reasonable to impose it.

32. The next question is whether the ancillary condition is justified in order to render the primary condition effective. In this case, there is no challenge to the imposition of the primary condition. It is accepted as being relevant to reduce the risk of further offending by this accused. So far as the scope of the ancillary condition is concerned, it is, on its face, not limited to any particular person or persons who may demand the provision of a urine sample. It is not limited by reference to any occasion such as attendance for admittedly relevant supervision or, in the analogous case of police, reporting to a designated police station or, in the case of checking curfews, to reasonable hours and frequencies. In the case of a curfew, it is appropriate to bear in mind that an absent accused is likely to come to the notice of patrolling police. As I have noted, the further question raised by his Honour's judgment in Lawson v Dunlevy is whether the ancillary condition should be triggered at random, even if limited to specific occasions, or whether it should be triggered by a reasonable suspicion of breach. There is no doubt that random testing is a more effective tool for detection and deterrence than scheduled tests, or tests conducted only if suspicion is engendered.

33. It depends how intrusive the testing is. A breath test or urine test is, for example, less invasive and intrusive than a blood test. Those former tests are also well known in the course of supervision of offenders and of drivers of motor vehicles.

34. I conclude that, provided the occasion for potential testing is reasonable and well defined, the fact that it is random is not a valid reason to find such a condition outside the legitimate purpose of supporting a primary condition.

35. Accordingly, I would support the imposition of the impugned condition amended by the addition of "if so directed in the course of supervision by an officer so authorised by the Director-General."

36. The application of the accused is, therefore, granted to that extent.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Director of Public Prosecutions

Solicitor for the Defendant: Aboriginal Legal Service (NSW/ACT) Ltd