Accused Gold Coast balcony murderer Gable Tostee has been granted bail ahead of his trial for the death of New Zealand woman Warriena Wright. His conditions include a $200,000 surety, a curfew, and a requirement, put forward by his lawyer, that he stay off Tinder.

The Tinder condition could be a first. Tostee is alleged to have invited the deceased to his apartment after meeting her on the mobile dating / hookup app, then throwing her off the balcony of his high-rise Gold Coast apartment after they had an argument and the deceased tried to leave.

Could this condition be imposed in NSW?

The NSW Parliament enacted a new Bail Act in 2013, removing the confusing presumptions for and against bail which plagued the heavily amended and complicated 1978 Act. The new Act features a simple reasoning process based around the concept of “unacceptable risk”. It even includes a flowchart to demonstrate the process the court is to take.

Conditions under the Bail Act 2013

A person can either be granted unconditional bail or conditional bail. Unconditional bail lets an individual go free and merely requires them to turn up to their court date. Conditional bail involves the court placing a number of conditions on the person being granted bail, failure to abide by which can result in the person being arrested and brought back to court, and more conditions imposed or their bail revoked.

Conditions include:

  • Conduct requirements: you must or must not do something – for example, report to police at certain times and places, live at a specific address, surrender your passport, not associate with certain people, not go near a certain address or suburb, or abide by a curfew.
  • Security requirements: you or someone you know needs to put up money or title to property to ensure you turn up to your court date.
  • Character acknowledgments: a person of good character needs to sign a form saying that you are a responsible person who will obey your bail conditions.
  • Enforcement conditions: you must allow the police to check that you are complying with some of your conditions.

A bail condition may only be imposed for the purpose of mitigating an unacceptable risk (Bail Act 2013 s 24(1)). Therefore, if a NSW court were satisfied in the hypothetical case that preventing a person such as Gable Tostee from using Tinder would protect the community, then it could be lawfully be imposed. The Court noted in Tostee’s case that a condition that he abstain from using Facebook was impractical, as it would be too easy for others to create a fake Gable Tostee profile.

Unreasonable condition: Lawson v Dunlevy

Conditions that do not comply with the law (i.e. unlawful conditions) can be  struck down by the court. Bail decisions imposed in the Local Court can be reheard at the Supreme Court. This is what happened in the case of Lawson v Dunlevy [2012] NSWSC 48. This was a case under the old Bail Act.

In it, an Indigenous person on bail wanted to have the bail condition that he “is to submit to a breath test when requested by a police officer” removed. Similar “alcohol conditions” had been imposed on Indigenous persons coming before the same Magistrate in regional courts in Broken Hill, Wentwoeth, Wilcannia and Balranald (at [13]).

It was not disputed that it is a valid condition of bail to restrict a person from consuming any alcohol (at [31]). It was the submitting to a breath test element which was in dispute.

The impugned condition was found to be unlawful for four reasons:

1. The purposes of the Bail Act, such as “promoting effective law enforcement” and protection of the community in general or the welfare of a specific person, were not fulfilled by the condition. As breach of bail itself is not a criminal offence, a condition which enables the police to detect non-conformity with a  bail condition does not assist the police in enforcing any law (at [40]). As for protection of the community or an individual, the purpose is protection of the physical and mental wellbeing of others. Therefore, a condition such as submitting to a breath test, whose purpose is to make it easier for the police to detect a breach of bail, or to deter a person from breaching bail, does not satisfy this purpose (at [47]). For those reasons, the condition did not comply with the legislative purpose of the Bail Act, and was unlawful (at [48]).

2. The Bail Act did not contemplate imposing a condition to deter the individual from refusing to comply with a condition. The only deterrent is the risk that if a person does not comply with a condition, they may be called to the court and their bail modified or revoked. Therefore, it was not for the court to impose a bail condition for the purpose of deterrence, and for this second reason, the bail condition was unlawful (at [54]).

3. The word “breath test” as defined, was meaningless. It was not defined by reference to any piece of legislation and could mean many different things to different people. For this third reason, the bail condition was unlawful (at [62]).

4. Because of its vague terms, the condition was too broad and was unduly onerous on the person. Conceivably, the police could require the person to submit to a breath test multiple times per day, at any police station in the state. For this fourth reason, the bail condition was unlawful (at [68]).

While the courts have broad power to attach conditions to the grant of bail, those conditions must comply with the legislative purposes of the Bail Act. If a condition is vague, meaningless or more onerous than required, it can be struck down as unlawful. Sydney Criminal Defence Lawyers has had success raising this type of arguments – we recently successfully negotiated for the withdrawal of a bail condition that a person not frequent an entire country town, where many of his family members resided.

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