Criminal law: August 2023

Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862

Bail – arrest of breach of bail – execution of duty by police officers

This decision of a single judge of the Supreme Court holds that the only precondition to a police officer arresting a person for breach of bail is a formation of the relevant belief as to a breach of bail – the officer is not obliged to consider alternatives like a warning before determining to arrest the person.

The plaintiff was well known by the police at a particular police station (the implication is that she contacted the station regularly). Things between the plaintiff and the station progressed to the point that she was charged with an offence of using a carriage service to menace, harass or offend. She was granted bail, on conditions including a conduct condition which prevented her from going within 10 metres of the police station and prohibiting her from calling the police station unless there was an emergency.

A few months later, whilst still on bail, a police officer at the station received a call which the officer recognised as coming from the plaintiff. The caller demanded the immediate attendance of the police, although she initially refused to elaborate on why they should attend (eventually she apparently said that someone else in the house had been abused, in circumstances not described). She threatened that if police were not there in about 15 minutes, she would make complaints about the police officer who had answered the phone. The call eventually progressed to some minutes of her yelling and insulting the officer. The officer ended the call, then noticed that the plaintiff was seemingly in breach of her bail condition not to contact the station. A number of uniformed officers went to the plaintiff’s house – not to respond to her call, but to arrest the plaintiff. The plaintiff resisted arrest, a melee ensued and the plaintiff was arrested (along with others). She was charged with resisting an officer in the execution of their duty.

The plaintiff pleaded not guilty to the resist charge and the matter proceeded to hearing. The only issue in the hearing was the lawfulness of the arrest of the plaintiff and whether the officer was acting ‘in the execution of his or her duty’. In the way the hearing was run, the question really became whether or not, in exercising the power to arrest the plaintiff for her alleged breach of bail, the police were obliged first to consider each of the alternatives in s 77 of the Bail Act 2020 (NSW).

Broadly, s 77(1) provides that an officer who believes, on reasonable grounds, that a person has failed to comply with their bail can decide to take no action; warn the person; issue a notice for the person to appear before court; charge the person with a fresh offence (in certain circumstances); apply to an authorised justice for an arrest warrant or; crucially, arrest the person without a warrant. It also provides that arrest can be discontinued. Section 77(3) provides a list of factors to be taken into account in deciding which course to take, including the seriousness or triviality of the alleged breach; any reasonable excuse; the personal attributes of the person; and whether a course of action other than arrest is available.