Challenge continues to excessive bail compliance checks

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March 21, 2019

PIAC’s challenge to the power of NSW police officers to conduct bail compliance checks without a Court order continues, with the NSW Court of Appeal setting aside the December 2018 decision of the District Court.

The Court of Appeal decided that the original question of law posed by police (and answered favourably to PIAC’s clients) was not appropriate to answer. This means the matter now returns to the District Court to proceed to trial.

The case arises from concerns that police have been conducting excessive and invasive bail compliance checks, without any reason to believe that a person is not complying with their bail conditions.

PIAC represents two Aboriginal people who were subjected to repeated visits to their house by police officers for the purpose of conducting ‘bail compliance checks’ in 2014. In a three-month period, the police came to their house on at least 50 occasions between 9pm and 2:15am. One of our clients, who was not subject to bail conditions, was heavily pregnant at the time and her two-year-old child was living at the property. On at least six occasions the police visited twice in one night. At no time was our client found to have breached his bail. The underlying criminal charges were later withdrawn.

In December, the District Court held that NSW Police do not have the power to enter people’s properties to conduct ‘bail compliance checks’ without a court order.

However, the State of NSW immediately sought an expedited appeal of the decision of the District Court. The appeal was heard on 29 January.

The effect of the Court of Appeal’s decision is that the question of whether police officers can lawfully conduct bail compliance checks without a Court order remains undecided. The parties will return to the District Court where the proceedings will be set down for a final hearing.

PIAC remains concerned that police in NSW have been stepping outside their power by repeatedly visiting peoples’ homes and requiring them to present themselves at all hours, in circumstances where there is no suspicion that they are breaching bail and without a court order. We will continue to argue that it is for a court to decide whether intrusive bail checks of this type are warranted and set limits on what is reasonable.

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