Bugmy v Director of Public Prosecutions (NSW)

1. [1]

   LEEMING JA: Ms Julie Bugmy seeks leave to appeal from a judgment of the Supreme Court dismissing her appeal against a conviction recorded against her in the Local Court for an offence of resisting an officer in the execution of duty, contrary to s 58 of the Crimes Act 1900 (NSW) as it then stood: Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862. Ms Bugmy’s appeal to the Supreme Court was on a question of law alone, pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The question of law was identified in Ms Bugmy’s summons as:

2. [2]

   The sole issue before the Supreme Court was whether Ms Bugmy’s arrest for breach of a bail condition was lawful having regard to the proper construction of s 77 of the Bail Act 2013 (NSW). If not, then her conviction could not stand.

3. [3]

   Leave to appeal from an order of the Supreme Court on an appeal under s 52 of the Crimes (Appeal and Review) Act is required pursuant to s 101(2)(h) of the Supreme Court Act 1970 (NSW). However, as the Director correctly conceded in advance of the hearing, the proposed appeal raises an issue of principle which is of general public importance. There should be a grant of leave.

Background

1. [4]

   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.

2. [5]

   Ms Bugmy was provided with a “Bail Acknowledgement” document dated 15 June 2021 which relevantly contained the following conditions and warning:

3. [6]

   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.

4. [7]

   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.

5. [8]

   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.

6. [9]

   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.

7. [10]

   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.

8. [11]

   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.

9. [12]

   Constable McCrindell, the arresting officer, was called and gave the following evidence:

10. [13]

    In cross-examination Constable McCrindell confirmed that he left Broken Hill Police Station with the intention of arresting Ms Bugmy and that it was the first thing he sought to do upon arriving at the residence. This exchange followed:

11. [14]

    Towards the end of his cross-examination, there was the following exchange:

12. [15]

    Constable Picton also gave evidence and was cross-examined. No further oral evidence was called for the prosecution, although witness statements of the other police officers present at the arrest were tendered, as was a statement of Ms Bugmy’s bail conditions and the audio-visual footage recorded by body worn cameras. It is unnecessary to summarise the balance of the evidence. No evidence was proffered on behalf of Ms Bugmy.

13. [16]

    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:

14. [17]

    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:

15. [18]

    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].

16. [19]

    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:

17. [20]

    I shall shortly turn to the construction of s 77. However, both at trial and on appeal, the following three matters narrowed the issues in dispute:

    1. (1)

       Ms Bugmy did not contend that Constable McCrindell did not hold a reasonable belief that she had failed to comply with her bail conditions;

    2. (2)

       the Director did not contend that Constable McCrindell considered any of the matters set out in s 77(3), and

    3. (3)

       it was not suggested that any other source of power to effect the arrest was available.

18. [21]

    Thus, the sole issue was whether a failure to consider the matters in s 77(3) rendered Ms Bugmy’s arrest unlawful.

19. [22]

    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:

20. [23]

    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.

21. [24]

    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”.

22. [25]

    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.

23. [26]

    The basic provision now found in s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (formerly s 79C) for planning decisions is “In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application …”. It is well settled that those matters are mandatory relevant considerations: see for example GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [15]. Similar words in an environmental regulation (“The EPA is to estimate the tonnage of waste ...”) were held by this Court to impose an obligation upon the EPA: Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [31].

24. [27]

    The words “is to” and “are to” do not invariably impose an obligation. Sometimes those words refer merely to the expectation that something will happen in the future; an example might be a direction that an appeal is to be heard on a particular date. Normally whether or not an obligation is imposed is clear from the verb and from the context. However, they are words which are commonly used in New South Wales legislation to impose an obligation, and it is clear that that is their sense in s 77(3).

25. [28]

    Because an officer is concededly under an obligation to consider the four matters in s 77(3), the issue on this appeal is very narrow. Does breach of the obligation in s 77(3) produce the consequence that the Director cannot establish that when Ms Bugmy was resisting him, Constable McCrindell was lawfully executing his duty? The question is one of statutory construction, and falls to be answered in circumstances where the statute has not made express provision for the consequences of failure to adhere with the obligation.

26. [29]

    The parties’ submissions ranged broadly, although both accepted that the starting point was the legislative text. I shall address all of the Director’s submissions, although it will be seen that those which were removed from the text were of no or only limited weight.

Analysis of the text of s 77

1. [30]

   The following matters appear on the face of the provision.

2. [31]

   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. [32]

   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. [33]

   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. [34]

   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. [35]

   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. [36]

   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”).

8. [37]

   It may be noted that if the officer does one of the other actions which involve bringing a person before a court or authorised justice (s 77(1)(c), (d) or (f)), the officer is free to change his or her mind on review or further investigation, notwithstanding the absence of any counterpart to s 77(2).

9. [38]

   Sixthly, in contradistinction with s 77(1) and (2), subs (3) is not directed to the existence of power or the qualifications upon that power, but rather to the matters to which the officer is to have regard when the power is enlivened. On the ordinary meaning of the subsection, the police officer who has formed the belief in s 77(1) which enlivens the various powers is obliged to consider each of the four matters in paragraphs (a), (b), (c) and (d) of subs (3) when deciding which action to take.

10. [39]

    In particular, the words “in deciding” in s 77(3) make it clear that the consideration to which subs (3) is directed is to take place at the time the officer is deciding whether to take action and if so which of the actions in subs (1). Rather than being preconditions to the availability of a discretionary power, those matters inform the exercise of discretion.

11. [40]

    Seventhly, the bracketed words in subs (3) “but do not limit the matters that can be considered” make it clear that while the four enumerated matters are specified as matters that are to be considered, their enumeration is not exhaustive of the matters which may be considered. This is a not unfamiliar drafting technique, which in part addresses the familiar difficulties identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 (concerning, when a statute has expressly stated the considerations, “whether those enumerated factors are exhaustive or merely inclusive”).

12. [41]

    Eighthly, in many cases where a police officer had reasonably formed a view that a person had failed to comply with a bail condition, and therefore was empowered to take any of the six “actions” in s 77(1) (including taking no action) and was exercising a real discretion as to what course to take, it may be doubted that the matters in s 77(3) greatly add to the officer’s decision-making process. It is close to self-evident that the triviality or seriousness of the breach is something which bears upon whether to take no action or issue a warning, or else to commence a process that will bring the person before a court. It is also close to self-evident that whether the person has a reasonable excuse, and the person’s personal attributes and circumstances, so far as the officer knew of them, would bear upon what action the officer would take. Submissions were exchanged about the meaning of s 77(3)(d), about which it is not necessary to express a concluded view, but it is scarcely surprising to observe that before a police officer can take any of the actions in s 77(1), the officer must first form the view that the action is an appropriate one.

13. [42]

    Ninthly, conspicuous by its absence is any counterpart to s 99(2) of LEPRA, which provides “A police officer may also arrest a person without a warrant if directed to do so by another police officer”. Thus, a police officer who receives a direction to arrest pursuant to s 99 of LEPRA need not attend to the states of mind ordinarily required when exercising the power to arrest without a warrant conferred by s 99(1), although s 99(2) goes on to provide that the officer giving the direction must himself or herself have the requisite state of mind. The requirement that the officer exercising the powers conferred by s 77(1) consider the matters identified in subs (3) makes the power of arrest in s 77 stand in sharp contrast with a power that may be exercised under direction.

14. [43]

    Pausing there, the text tolerably plainly amounts to a power to take one action out of a suite of actions following a reasonably held belief of a failure to comply with a bail condition, coupled with an obligation when deciding which action to take to have regard to each of four specified matters. So much was common ground. It was also common ground that if the officer chose to arrest the person pursuant to s 77(1)(e), that exercise of power was reviewable along familiar lines in administrative law: for example, if the power was exercised for an improper purpose, or the preconditions for its engagement were not satisfied.

15. [44]

    Where the parties divided was whether a contravention of the requirement in s 77(3) to consider the four matters invalidated the exercise of power. The Director maintained that the four matters were not “relevant considerations” in the sense used by Mason J in Peko-Wallsend, as matters which, if they were not considered, invalidated the exercise of power. Another way of framing the issue is to ask whether in accordance with the principles explained in Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93], on the proper construction of the Bail Act, failure to comply with s 77(3) rendered the action taken under s 77(1) unlawful. Although both Peko-Wallsend and Project Blue Sky were mentioned during addresses, it was not suggested that anything turned for the purposes of the issue in this appeal as to the effect of a non-compliance with s 77(3) on formulations in those decisions.

16. [45]

    I shall return to the various arguments advanced. But before doing so, it is important to bear in mind how straightforward the question is, at least as it appears to me. The starting point is that the statute empowers an officer to infringe a person’s liberty but at the same time requires that officer to consider certain matters. Prima facie, a lawful exercise of power is an exercise of power in which the police officer complies with the requirements imposed by statute. It is improbable, especially when a statute confers a power of arrest, that an exercise of the power will be lawful even if the constraints upon it have been breached. That reflects settled principles of construction. In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [222] Nettle and Gordon JJ said:

17. [46]

    One aspect of construing such legislation strictly is that obligations imposed upon the arresting officer are to be complied with if the exercise of the power is to be lawful.

Contextual considerations

1. [47]

   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:

2. [48]

   The purpose of the Act in its current form in s 3(1) is:

3. [49]

   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:

4. [50]

   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. [51]

   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).

6. [52]

   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.

7. [53]

   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.

8. [54]

   Paragraph 15.30 provided:

9. [55]

   The report addressed objections, including from NSW Police, to that reasoning, but concluded at paragraphs 15.34-15.35:

10. [56]

    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:

11. [57]

    Recommendation 15.2 was as follows:

12. [58]

    There are some differences between the recommendation in the report and s 77. Perhaps most obviously, the words “that arrest is a last resort” have been replaced by s 77(3)(d). Other changes include the addition of actions (d) and (f) in s 77(1), and the alteration of “the police officer must have regard to” by “The following matters are to be considered by a police officer”. There are many more minor changes. The extent to which those changes were made merely as a matter of drafting, or as a result of the political process (for it is clear from both the summary of submissions in the Law Reform Commission’s report, not to mention the Bail Amendment Act 2014, that the legislation was highly controversial) is neither known nor relevant. This Court’s function is to construe the legislation as enacted, although having regard to the extrinsic materials as authorised by s 34 of the Interpretation Act.

13. [59]

    The second reading speeches make it clear that the legislation reflected the recommendations of the Law Reform Commission. When the Bill was introduced, the Attorney General said (NSW Legislative Assembly, Parliamentary Debates (Hansard), 1 May 2013):

14. [60]

    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.

15. [61]

    The first was:

16. [62]

    The second appeared after summarising the Commission’s recommendation that arrest be a last resort:

17. [63]

    The Director contended that the response supported her construction, for the following three reasons:

18. [64]

    Ms Bugmy responded to the effect that none of these submissions assisted resolution of the issue arising on appeal. I agree. The Director’s supplementary submissions may be addressed concisely.

    1. (1)

       The rejection of arrest being of last resort is, as previously noted, perhaps the most obvious divergence between the Commission’s recommendation and the provision as enacted; the Government’s response goes no further than to confirm what is obvious on the face of the statute. As was made clear at the hearing, the construction of s 77(3)(d) is not in issue; the only issue is what is the consequence of an arresting officer failing to consider it or any of the other matters in subs (3).

    2. (2)

       The second point has two aspects. The dilution (if that is what it is) from “must have regard to” to “are to be considered” is of no consequence, in circumstances where it is common ground that the language imposes an obligation. The Director also relied on the reference in the Government’s response to the matters in s 77(3) providing guidance. That also goes nowhere now that it is common ground that they are matters to which the arresting officer must have regard.

    3. (3)

       As for the third point, the difficulty in the present case results from the statute not identifying explicitly the consequences of its breach. I fail to see how the failure of the extrinsic materials to identify explicitly the consequence of any breach can assist one way or the other. Extrinsic materials seldom explicate things for which a statute makes no provision.

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

1. [65]

   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. [66]

   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. [67]

   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.

4. [68]

   The fact that s 77(3) is not a precondition to the availability of the power, but a consideration regard to which must be had when it is exercised, does not mean non-compliance with the subsection leaves the exercise of power valid.

5. [69]

   Next, it was said that s 77(3) was different in form from the opening words of s 77(1) (“Unless section 77A applies”). But those words are another precondition to power. It is true that they are quite different in form from s 77(3). That reflects the fact that they are quite different in function. To reiterate, the question is not whether s 77(3) is a precondition to the availability of power but rather whether s 77(3) imposes an obligation that the lawful exercise of a power must involve consideration of the four matters listed in the subsection.

6. [70]

   It was said that on the Director’s construction, the words in s 77(3) still performed work. They were matters which could guide the exercise of discretion. It was also said that if an officer failed to consider them, there could be disciplinary consequences. Further, it was said that the failure to adhere to them could ground an inference that the power was being used for an improper purpose, or maliciously, or indeed for any basis of judicial review save for the failure to have regard to a mandatory relevant consideration. This submission taken at its highest is best understood as a response to the criticism that one matter disfavouring the Director’s construction is that it leaves s 77(3) with no work to do, and ordinarily courts will strive to avoid a construction which renders a provision wholly inutile: see Project Blue Sky at [71]. That much may be accepted. But it does not otherwise detract from the textual and contextual matters which favour Ms Bugmy’s construction.

7. [71]

   In oral submissions the Director contended that the “duty”, for the purposes of s 58 of the Crimes Act, was “to administer and enforce the requirements of the Bail Act” and that “to the extent that the execution of that duty must be lawful, for the purposes of the relevant part of s 58 or otherwise, it must arise in the occasion for its exercise”. There followed this exchange:

8. [72]

   I do not accept these submissions. True it is that s 58 refers to “duty”. However, the focus of s 58 is not on some abstract characterisation of the police officer’s duty, but on events in the real world: the officer’s execution of the duty, and a person who resists or obstructs the officer. The factual question posed by s 58 is whether there is resistance or obstruction by the person to the actions taken by the police officer which, in the present case, were actions taken to effect an arrest. The legal question posed by s 58 is whether when Constable McCrindell was arresting Ms Bugmy, his actions were lawful. That is to say, the lawfulness is determined by reference to what the police officer actually did when executing a duty, rather than some abstract characterisation of the officer’s duty.

9. [73]

   Further, for the reasons already given, the Director’s submissions tend to conflate the absence of preconditions to the power with non-compliance with conditions accompanying its exercise.

10. [74]

    The Director pointed to the fact that s 77(5) disapplied s 77(1) where a warrant had issued. It was said that if s 77(3) were mandatory, then it should also have been disapplied. This point is analogous to an expressio unius argument, and should be treated cautiously: cf Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34]. Where an arrest warrant issues, it is tolerably clear that the officer is no longer entitled to choose amongst the actions in s 77(1), and thus there will be no occasion to have regard to the matters in s 77(3). It may thus be seen that expressly excluding 77(3) in such a case would achieve little. Likewise, it is difficult to see how s 77(2) could ever apply in the case of a warrant, and yet s 77(2) is not excluded when a warrant has issued. In short, although this point is not wholly without force, it is not a secure basis to detract from the natural meaning of s 77(3).

11. [75]

    Reliance was sought to be placed upon the fact that “the fundamental common law right to liberty” was “qualified” under the Bail Act. It is true of course that the statute contains a very elaborate suite of provisions most of which are directed to how and when a person charged with an offence may have his or her liberty qualified. But the issue before this Court is as to the construction of s 77. The premise of s 77 is that a person has been charged with an offence, but has been granted bail subject to a bail condition, and a police officer reasonably believes that there has been or will be non-compliance with that condition. The premise therefore is that the person presently enjoys qualified liberty. In the case of Ms Bugmy, she was free to do as she pleased, save in relation to approaching or telephoning certain nominated police stations. The action of arresting a person who has been granted bail will impinge upon that liberty, immediately, directly and drastically. The fact that the person’s liberty was qualified at the outset does not materially bear upon the construction of a power which will impact that person’s liberty. I see no reason to discount the operation of principles of statutory construction directed to clear language being used before a statute is to be understood as curtailing a person’s liberty.

12. [76]

    A second limb of this submission, reflecting a point which found favour with the primary judge, is that the considerations applicable to s 99 of LEPRA were inapplicable because in that case a person was at unconditional liberty. With respect, I cannot agree. As a matter of fact, the Law Reform Commission explicitly based its recommended reforms on the comparable power in s 99, and the Attorney General explicitly confirmed that the government adopted those recommendations. As a matter of law, the question posed by the construction of s 77(3) is informed by the immediate cessation of liberty, albeit a liberty which was conditional, upon the exercise of a power of arrest in s 77(1)(e).

13. [77]

    The Director also said that the arrested person was to be brought before a court or authorised justice as soon as practicable, thereby reducing the impact of the provision upon a person’s liberty. So much may be accepted. But any arrest without a warrant requires the arresting officer to take the person before an authorised officer to be dealt with according to law as soon as practicable: see s 99(3) of LEPRA, which reflects the common law: North Australian Aboriginal Justice Agency Ltd v Northern Territory at [23] and [97] (for completeness, I note that although an arrest under s 99 may in the first instance be the subject of a bail determination by a police officer, s 46 of the Bail Act imposes an obligation if police bail is refused to bring the person before a court or authorised justice as soon as practicable). But the main point is that the fact that the infringement of a person’s liberty may be brief does not deny the applicability of the principles applicable to the construction of statutes in such cases.

14. [78]

    It was said that if s 77(3) bore the construction for which Ms Bugmy contended, there might in some cases be matters where the personal circumstances of the person were known to the officer but were of absolutely no relevance to the decision to arrest, and not lightly should the Court conclude that a failure to consider those matters would invalidate the arrest. However, as was pointed out in the hearing, it is well settled that the failure to have regard to an irrelevant or sufficiently insignificant matter will not invalidate a decision. As Mason J said in Peko Wallsend at 40, and as confirmed by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30]:

15. [79]

    There is nothing especially technical in the reasoning. Section 77(3) of the Bail Act provides that four matters “are to be considered” by a police officer in deciding whether to take action and if so what action to take when he or she reasonably believes a bail condition has not been complied with. The Director conceded, correctly, that the statute thereby imposes an obligation upon a police officer when exercising public power. For all of the elaborate complexity in the Director’s submissions to the contrary, the short point is that if a police officer’s exercise of public power is to be lawful, he or she should comply with the obligation imposed by the statute. That is, at least to my mind, an utterly unsurprising conclusion.

16. [80]

    Junior counsel for the Director addressed two topics orally. First, she submitted that the existence of subs (2) reflected a recognition by the Legislature that the circumstances as they appeared to the officer effecting an arrest might be fluid, and change as time proceeded. Thus the officer might be given an explanation which made the failure to comply less serious than might have initially appeared, or might provide further facts amounting to a reasonable excuse, or might otherwise disclose personal circumstances which told against the appropriateness of exercising the power to arrest as opposed to one of the other s 77(1) actions.

17. [81]

    I acknowledge that there is some force to the submission that the acknowledgement in s 77(2) that further information might lead to the appropriateness of discontinuing an arrest might suggest that a breach of the obligation to consider the matters in s 77(3) did not make the arrest invalid. On the other hand, the same is true of all of the actions in s 77(1). An officer who chooses initially to do nothing, or to issue a warning, may in light of further developments choose to take an action which will indirectly or directly bring the person before a court or authorised justice. Conversely, an officer who determines to apply for a warrant or to issue a notice may on further consideration or inquiry change his or her mind. Thus the fact that s 77(2) makes express provision for revision of the decision to take one of the actions says little about whether non-compliance with subs (3) renders the action unlawful. To that may be added the point made on behalf of Ms Bugmy, by reference to Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 and State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46, that when exercising the power conferred under the legislation considered in those appeals it was necessary to intend to take the arrested person to an authorised officer as soon as possible. The arguments on both sides are quite subtle. But it is to be borne steadily in mind that the question is one of statutory construction, and for all the ingenuity of the parties, the text is tolerably clear. I do not accept that these considerations materially detract from the statutory language.

18. [82]

    Secondly, it was said that there might be an emergency when very prompt action was required to arrest a person believed to be in breach of his or her bail conditions, and that the matters in s 77(1) like the matters in s 99 of LEPRA were “reasonably straightforward”, while those in s 77(3) might take “a little more time” to consider. Counsel endorsed the example given by the primary judge of a man charged with assaulting his estranged wife who was granted bail on condition that he not enter the street where the wife lived, and not contact or harass her, who was seen about to open the front gate of her house. The primary judge said at [59]-[60]:

19. [83]

    One difficulty with this empirical argument is that it is far from clear that a trained officer would take any appreciable time to consider the matters in s 77(3). I find it difficult to contemplate circumstances where whether the non-compliance is serious or trivial, whether there is a lawful excuse, and which action is appropriate would not be at the forefront of the officer’s mind, and likewise if there are personal circumstances known to the officer, then they too are likely to be at the forefront of the officer’s mind.

20. [84]

    A separate difficulty with such examples, which counsel candidly acknowledged, was that the police officer might well be entitled to arrest pursuant to s 99 of LEPRA, if the officer had a reasonably held suspicion that the man was about to commit a crime. But it is possible to contemplate cases where immediate action was required, albeit that something short of a crime was about to be committed. An example may be found in Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 at [40]-[42], upon which the primary judge also relied, where it was hypothesised that an immediate response was required.

21. [85]

    A further consideration telling against this point is that it is ordinarily dangerous to reason from extreme cases, as has repeatedly been observed: see for example The King v Rohan (a pseudonym) [2024] HCA 3 at [74] and Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [253]. After all, this appeal has been brought about because the statute does not expressly deal with the consequences of an officer’s failure to comply with s 77(3). The answer to that question, which is a question of law, will far more likely turn upon the text, context and purpose of the statute than from extreme examples which are inherently unlikely to have been in the contemplation of the Legislature.

Conclusion and orders

1. [86]

   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. [87]

   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. [88]

   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. [89]

   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. [90]

   I propose the following orders:

6. [91]

   MITCHELMORE JA: I agree with Leeming JA.

7. [92]

   BASTEN AJA: For the reasons explained by Leeming JA, this appeal should be upheld. The following observations are not inconsistent with, nor do they qualify, Leeming JA’s reasons. They explain why there was error in the reasoning of the primary judge (Wilson J), although lucidly expressed, in adopting the Director’s submissions at trial. [1]

8. [93]

   The critical element in the construction of s 77 of the Bail Act 2013 (NSW) is its structure. [2] Section 77(1) confers power on a police officer who believes on reasonable grounds that a person has failed to comply with a bail condition, to take (or not take) action, including arresting the person. That power is engaged based on a belief formed on reasonable grounds.

9. [94]

   The second relevant element in the section is the identification of matters that “are to be considered” by the officer “in deciding whether to take action, and what action to take”: s 77(3). This provision does not impose a condition of engagement of the power, but rather imposes a constraint on the exercise of the power.

10. [95]

    It is entirely correct, as the primary judge found, that s 77(1) is not “subject to the operation of s 77(3)”. [3] But that is because each of subs (1) and subs (3) performs a different function. Section 77(3) conditions the exercise of the power conferred by s 77(1): no question as to its exercise will arise until the power is validly engaged. Contrary to submissions accepted by the primary judge, s 77(1) is not expressed to be “subject to subsection (3)” because they are dealing with different matters.

11. [96]

    The remaining question as to the operation of s 77(3) is whether it is mandatory in the sense that failure to comply with its terms may or will invalidate an exercise of the powers conferred by s 77(1). Both parties accepted that it was in mandatory terms, identifying matters that “are to be considered” by the officer. The question was reduced, therefore, to whether breach of its terms invalidated the action taken under s 77(1), or merely led to the possibility of disciplinary action against the officer concerned, or some separate consequence, such as the rejection of evidence as unlawfully or improperly obtained, pursuant to s 138 of the Evidence Act 1995 (NSW).

12. [97]

    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:

13. [98]

    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.

14. [99]

    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.

15. [100]

    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.

16. [101]

    Both parties directed submissions to the preamble to the Bail Act and the statement of its purpose in s 3, which were influential in the reasoning of the primary judge. [5] Neither assisted in construing s 77.

17. [102]

    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.

18. [103]

    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.

19. [104]

    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):

20. [105]

    Secondly, the clear statement principle, recognised in cases such as Potter v Minahan [7] and Coco v The Queen, [8] meant that “arrest as a last resort” should, in a case of ambiguity or uncertainty, lead to a construction of a statutory power protective of the fundamental right to liberty, whether absolute or conditional. Care must be taken in applying that principle in circumstances where the very purpose of the legislation is to authorise executive action which infringes the right of liberty. [9] The principle is nevertheless relevant in relation to legislation which, in its terms, imposes constraints on the permissible infringement of liberty. The applicant’s submission should be accepted as supportive of the construction that the mandatory considerations condition the validity of the exercise of the power.

21. [106]

    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.

22. [107]

    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.

23. [108]

    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.

24. [109]

    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.

25. [110]

    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]

26. [111]

    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.

27. [112]

    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.

28. [113]

    For these reasons, in addition to those given by Leeming JA, I agree with the orders he has proposed.