Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 Hearing dates: 25 March 2024 Date of orders: 4 April 2024 Decision date: 04 April 2024 Before: Leeming JA at [1]; Mitchelmore JA at [91]; Basten AJA at [92] Decision: 1. Grant leave to appeal. 2. Direct the applicant to file within 7 days a notice of appeal in accordance with the draft notice provided at the hearing, and otherwise dispense with the requirements as to service. 3. Appeal allowed. 4. Set aside order 1 made by the Supreme Court on 25 July 2023, and in lieu thereof, order that: (a) Appeal from the Local Court be allowed. (b) Pursuant to s 55(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), set aside the conviction recorded in the Local Court in the matter of R v Julie Bugmy, 2023/3319. (c) In lieu thereof, dismiss the charge under s 58 of the Crimes Act 1900 (NSW). Catchwords: BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s 77(3) of Bail Act provided that officer was to consider four matters in deciding whether to take action and which action to take in those circumstances – officer considered none of those matters – whether non-compliance with s 77(3) meant that arrest was not in lawful execution of duties – appeal allowed, conviction set aside and charge dismissed Legislation Cited: Bail Act 1978 (NSW), s 50 Bail Act 2013 (NSW), ss 3, 18, 33, 46, 77, 77A Bail Amendment Act 2014 (NSW) Crimes Act 1900 (NSW), s 58 Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 55 Criminal Code Act 1995 (Cth), s 474.17 Environmental Planning and Assessment Act 1979 (NSW), s 4.15 Evidence Act 1995 (NSW), s 138 Interpretation Act 1987 (NSW), s 34 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105 Prevention of Cruelty to Animals Act 1979 (NSW) Supreme Court Act 1970 (NSW), s 101 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 Director of Public Prosecutions Reference No 1 of 1993; Re K (1993) 46 FCR 336 Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Fleet v District Court of NSW [1999] NSWCA 363 GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 The King v Rohan (a pseudonym) [2024] HCA 3 Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320 Category: Principal judgment Parties: Julie Bugmy (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: B Rigg SC and N Broadbent (Applicant) C Gleeson SC and W Liu (Respondent)