Bugmy v Director of Public Prosecutions (NSW)

The applicant, Bugmy, appealed to the Court of Appeal of New South Wales against a conviction for resisting a police officer in the execution of their duty. The conviction arose from an incident where a police officer arrested Bugmy, believing she had breached a condition of her bail. The central dispute concerned the lawfulness of that arrest.

The primary legal issue before the Court of Appeal was whether the arrest of Bugmy was lawful, given that the arresting officer had failed to consider the matters prescribed by s 77(3) of the *Bail Act 2013* (NSW) when deciding to arrest her. Specifically, the court had to determine if this non-compliance with the statutory considerations rendered the officer's actions, including the subsequent arrest, not in the lawful execution of their duty, thereby invalidating the conviction for resisting.

The Court of Appeal reasoned that s 77(1) of the *Bail Act 2013* (NSW) empowered a police officer to arrest a person if they reasonably believed the person had not complied with a bail condition, but s 77(3) mandated that the officer must consider four specific matters before deciding whether to take action and which action to take. The court found that the arresting officer had considered none of these matters. Applying the principle that a failure to comply with a statutory prerequisite for the exercise of a power can render the exercise of that power unlawful, the court held that the arrest was not effected in the lawful execution of the officer's duty. Consequently, the appeal was allowed, the conviction was set aside, and the charge was dismissed.