The steps police must take when arresting someone over bail breaches are under the microscope as an Indigenous woman challenges her detention as unlawful.
Julie Ann Bugmy was arrested while sitting on the verandah of her Broken Hill home on December 28, 2021 while on bail facing one charge of using a carriage service to harass, menace or offend.
Accused of breaching her bail conditions by phoning up the Broken Hill Police Station and abusing a constable, the 56-year-old put up a fight during the arrest and was hit with an extra charge of resisting an officer in execution of their duty.
She was convicted for resisting arrest by Magistrate Jacqueline Trad on July 29, 2022 and sentenced to a six-month conditional release order which expired on March 11 this year.
Bugmy is now appealing her conviction in the NSW Supreme Court, challenging Ms Trad's findings that the arrest was "lawful".
Her earlier conviction for the use of a carriage service was overturned on appeal in November 2022.
On Monday, barrister Nicholas Broadbent argued the arrest was invalid because the police officer who detained Bugmy did not take into account all required considerations, including the relative seriousness of the breach, whether there was a reasonable excuse for it, or her personal circumstances.
Police admitted during cross-examination in a Broken Hill Local Court criminal hearing that they had detained Bugmy so they could further investigate the alleged bail breach.
This was not a proper use of police powers, Mr Broadbent told Justice Helen Wilson.
The officer had other alternatives to arresting the 56-year-old, including issuing a warning, issuing a notice requiring her to appear before a court, or simply doing nothing, the court heard.
"As a matter of fact, no other options were considered," the barrister said.
In urgent situations, police did not have to go through some "tick-a-box exercise" but merely had to consider the individual circumstances of any bail breach, he added.
Representing the Director of Public Prosecutions, barrister Catherine Gleeson said that for police to arrest individuals like Bugmy, they simply needed a reasonable belief that bail conditions had been breached.
This deprivation of liberty was only intended to be temporary and would eventually come before a court where that person could argue whether they should remain free or stay in custody, she said.
Ms Gleeson argued the steps Bugmy claimed the police should have taken were not, in fact, required.
"These are simply non-mandatory considerations that are designed to direct the police officer's mind," she said.
Even if police did not take into account all relevant matters, this may show impropriety but did not necessarily mean the arrest was unlawful, she told the court.
Justice Wilson will hand down her judgment on July 25.
Julie Bugmy is the aunt of William David Bugmy, an Indigenous man whose landmark High Court appeal found his disadvantaged background should have been considered on sentencing.
He was jailed after throwing pool balls at three prison officers at Broken Hill Correctional Centre, blinding one after hitting him in the eye.
The Wilcannia man was originally sentenced to a non-parole period of four years and three months, with a full term of six years and three months.
This was appealed by the Crown with the NSW Court of Criminal Appeal resentencing him in 2012 to a total term of seven years and six months, with a non-parole period of five years.
The High Court overruled this, sending the matter back to the CCA, after finding that "the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender".
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