Lawson v Dunlevy - [2012] NSWSC 48

Supreme Court

New South Wales

Medium Neutral Citation: Lawson v Dunlevy [2012] NSWSC 48
Hearing dates: 12/12/2011
Decision date: 10 February 2012
Jurisdiction: Civil
Before: Garling J
Decision:
(1) The Court declares that insofar as the grant of conditional bail to the plaintiff required him to enter into an agreement in accordance with the Bail Act 1978 to submit to a breath test when requested by a police officer, such obligation is unlawful.
(2) The Court orders that insofar as, and to the extent that, the grant of conditional bail obliges the plaintiff to enter into an agreement in accordance with the Bail Act 1978, to submit to a breath test when requested by a police officer, the grant of conditional bail is quashed.
(3) The Court orders that the second defendant pay the plaintiff's costs of the proceedings.

Catchwords: CRIMINAL LAW - Bail - Whether bail condition imposing requirement to submit to a breath test when requested by a police officer unlawful - Does not comply with legislative purpose - Does not promote effective law enforcement - Deterring breach of bail does not fulfill purpose of protection and welfare of community of specially affected person - Consequences of non-compliance with bail condition do not contemplate deterrence conditions - "Breath test" term vague and meaningless - More onerous than required - Unlawful
Legislation Cited: Children (Detention Centres) Act 1987
Children (Detention Centres) Regulation 2010
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Crimes Act 1900
Marine Safety Act 1998
Passenger Transport (Drug and Alcohol Testing) Regulation 2010
Police Act 1990
Police Regulation 2008
Rail Safety (Drug and Alcohol Testing) Regulation 2008
Road Transport (Safety and Traffic Management) Act 1999
Supreme Court Act 1970
Cases Cited: Carr v Western Australia [2007] HCA 47; 232 CLR 138
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Category: Principal judgment
Parties: Jeremy Lawson (P)
Geoffrey Dunlevy (1D)
Monique Gowans (2D)
Representation: M Dennis (P)
Submitting Appearance (1D)
A C Johnson (2D)
Aboriginal Legal Service (NSW/ACT) Ltd (P)
Submitting Appearance (1D)
Crown Solicitor's Office (NSW) (2D)

File Number(s): 2011/363487
Publication restriction: Nil

Judgment

On 17 August 2011, Magistrate Dunlevy, the first defendant, continued a grant of conditional bail to Jeremy Lawson, the plaintiff, during a hearing at the Local Court at Wilcannia.

One of the bail conditions imposed was that Mr Lawson was

"...not to consume alcohol for any reason, and is to submit to a breath test when requested by a police officer."

On 14 November 2011, Mr Lawson commenced proceedings in the Supreme Court seeking, pursuant to s 69 of the Supreme Court Act 1970, to have orders made which have the effect of:

(a) declaring so much of the condition as required submission to a breath test as unlawful; and

(b) quashing that part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lawson v Dunlevy

Details

AGLC: Lawson v Dunlevy [2012] NSWSC 48
Case: [2012] NSWSC 48
Decision Date: 10 February 2012

CaseChat Overview and Summary

The dispute in Lawson v Dunlevy involved the appellant, Lawson, who challenged a bail condition imposed on him by Dunlevy, the respondent and the magistrate. The condition required Lawson to submit to a breath test whenever requested by a police officer. The matter was heard in the Supreme Court of Queensland. The primary legal issue was whether this bail condition was lawful. Specifically, the court had to determine if the condition complied with the legislative purpose of promoting effective law enforcement and the protection and welfare of the community, particularly the specially affected person. The court also examined if the condition was vague and if its consequences did not align with those intended for deterrence.

The Supreme Court found that the condition did not align with the legislative purpose of promoting effective law enforcement. The court reasoned that deterring a breach of bail did not fulfill the purpose of protecting and safeguarding the community or a specially affected person. The consequences of non-compliance with the bail condition did not align with those intended for deterrence conditions. Furthermore, the term "breath test" was considered vague and meaningless, making the condition more onerous than necessary. Consequently, the court held the bail condition unlawful. The court found that the condition did not serve its intended purpose and placed an undue burden on the appellant.

The Supreme Court of Queensland ruled that the bail condition requiring the appellant to submit to a breath test whenever requested by a police officer was unlawful. The condition did not comply with the legislative purpose, and its consequences did not align with those intended for deterrence. Additionally, the term "breath test" was deemed vague and meaningless, rendering the condition more onerous than required. The court quashed the condition, providing relief to the appellant by removing the unlawful requirement. This decision underscores the importance of ensuring that bail conditions are clear, reasonable, and aligned with legislative objectives to protect the rights and welfare of individuals under judicial supervision.

Orders