NSW Police Force v Forster

Issue 1: Is there a difference between consort and a chance encounter?

1. Section 93X of the Crimes Act provides: "93X Consorting (1) A person who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) A person does not habitually consort with convicted offenders unless: (a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and (b) the person consorts with each convicted offender on at least 2 occasions. (3) An official warning is a warning given by a police officer (orally or in writing) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence."
2. Section 93X of the Crimes Act, like its predecessor s 546A, carried forward the concept of "habitual consorting" from the earlier offences contained within the Summary Offences Act 1970 (NSW) and the earlier Vagrancy Act 1902 (NSW) which preceded it. The term "habitually consorts" as it was used in the offence provisions of the various States required proof of more than one occasion of association between a defendant and reputed criminals. The word "habitually" required that such consorting be more than occasionally and consorting for an innocent purpose was within the ambit of the offence.
3. As was observed by Richards J in Gabriel v Lenthall [1930] SAStRp 62; SASR 318 at 327: "The offence is not being with thieves on occasions when it may be expected that they are about their nefarious occupation, but simply habitually consorting with them; it is not companionship in thieving, but with thieves."
4. It is clear that the purpose of any encounter by persons to whom the section is directed is irrelevant for the purposes of the offence. It is not for the Crown to prove that the defendant had consorted for an unlawful or criminal purpose: Johanson v Dixon [1979] HCA 23; 143 CLR 376. In that decision Mason J explained at 383 the word "consorts" in this context to mean: "...'associates' or 'keeps company' and it denotes some seeking or acceptance of the association on the part of the defendant…Nor does the word 'consorts' necessarily imply that the association is one which has or needs to have a particular purpose. What is prescribed is habitual association with persons of the…particular classes. Mere association with those persons, which is not habitual, for a criminal or unlawful purpose, is not proscribed."
5. What was said in that case informs the construction of the term as it is used in s 93X of the Crimes Act. The term "convicted offender" is defined in s 93W to mean: "...a person who has been convicted of an indictable offence." The term "consort" is defined in s 93W to mean: "...consort in person or by any other means, including by electronic or other form of communication." That definition assumes a received meaning for the verb "consort", which may be taken to have been based upon the pre-existing judicial interpretation.
6. As appears from the judicial interpretation of the consorting laws of the Australian States, innocent purpose was never a defence against a charge of habitual consorting. Section 93Y of the Crimes Act specifies a number of "innocent purpose" defences to a charge under s 93X and this represents a significant shift in the law in NSW. Section 93Y provides: "93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order." Those defences are predicated on the basis that meeting in the course of any of the listed activities could constitute consorting. None of those defences apply to the present case.
7. A person does not commit the offence of habitual consorting with convicted offenders, contrary to s 93X of the Crimes Act, unless he or she consorts with them after being warned by a police officer, orally or in writing, that they are convicted offenders and that consorting with them is an offence. That requirement did not appear in the repealed legislation.
8. It appears to be common ground that the legitimate object or end of s 93X of the Crimes Act is to prevent or impede criminal conduct by deterring non-criminals from consorting in a criminal milieu and deterring criminals from establishing or building up a criminal network.
9. Section 93W of the Crimes Act provides that "consort means consort in person or by any other means, including by electronic or other form of communication". The forms of consorting set out in s 93Y are to be disregarded "if the defendant satisfies the court that the consorting was reasonable in the circumstances". Both s 93W and s 93Y depend upon giving meaning to the idea of "consort". Neither of those sections sheds much light upon that meaning.
10. The fact that the legislation prescribes a minimum level of association necessary for the offence under s 93X of the Crimes Act does not exclude recourse to the meaning of "habitually consort" as articulated by the previous decisions to which I have referred in order to identify what further may be required.
11. In the earlier High Court proceedings in which Forster was a plaintiff, it was submitted by an intervening party that "consort" should be given the meaning described by Mason J in Johanson v Dixon (supra) to which I have referred. That meaning has two relevant elements; firstly, an element of associating or keeping company and secondly, there must be "some seeking or acceptance of the association on the part of the defendant". Forster did not put forward any alternative meaning. Rather, he submitted that s 93X of the Crimes Act would have a very wide application, not least because of s 93W and its provision for consorting "by any other means". He seems therefore to accept that "consort" should be given the meaning which has been described. Accordingly, there appears to be no reason for departing from the meaning given to "consort" by Mason J in Johanson v Dixon and it should be adopted.
12. It is clear from that decision that the court regarded consorting as a social interaction involving more than the mere physical presence of two or more persons at the same location: one aspect of consorting is the intentional seeking out of the company of a person convicted of an indictable offence. It is in this respect that Forster submits that the prosecution has no evidence with which to prove such an intentional seeking out for the purposes of proving the offence.
13. The nature of the association is relevant as to whether the relationship is to be characterised as consorting. A casual encounter with an acquaintance is not to consort for two reasons; firstly because the meeting is not sought out, and secondly because an acquaintance is not necessarily a consort. Consorting involves the seeking out or acceptance of a relationship of personal intimacy. In O'Connor v Hammond (1902) 21 NZLR 573 Stout CJ said at 575 - 576, "Consorting would be proved by companionship." One of the meanings given by The Oxford English Dictionary to the verb "consort" captures this idea, "To associate in a common lot, to sort together (persons or things)." This understanding reflects the appreciation that the vice at which the law is directed is the potential spread of criminogenic influence by one's choice of companions.
14. In Dias v O'Sullivan [1949] SAStRp 15; SASR 195 Mayo J said at 201 - 202: "The idea implicit in consorting ... suggests a more or less close personal relationship, or at least some degree of familiarity, or intimacy with persons, or attraction from, or an enjoyment of, some feature in common, that results in a tendency towards companionship. Where there is consorting it may be expected to be in obedience to an inclination, or impulse, to gravitate into the presence of, or, if accidentally in such presence, to remain in a group with some other person or persons. The fundamental ingredient is companionship. The fact that people meet (inter alia) to carry on some trade or occupation is not inconsistent with a fraternising contemporary therewith amounting to consorting.
15. Clearly, a casual encounter between persons would not constitute consorting for the purposes of s 93X of the Crimes Act.

Issue 2: If so, was Forster's encounter with Hayes at 9.30 am on Friday, 27 April 2012, at Inverell a chance encounter or consorting?

1. Sergeant Shane Gillespie stationed at Inverell was on duty on Friday, 27 April 2012. At around 9.30 am that day he was patrolling Otho Street, Inverell along with Sergeant Ginman in a police vehicle. As he approached Inverell Motel in Otho Street, he observed Forster and Hayes standing near the front of the Motel engaged in conversation. The vehicle stopped and both officers emerged and approached Forster and Hayes. The following conversation occurred: Gillespie: "What's happening fellas?" Hayes: "Nah, nothing. We're just hangin' out."​ After identifying himself and Sergeant Ginman, Sergeant Gillespie told both Hayes and Forster that both of them had been convicted of an indictable offence. From their response, both men appeared to have been aware of this. They both received a warning. Forster asked what consorting meant and Gillespie provided a brief explanation. There was further conversation between the police officers and both Forster and Hayes, following which both separated and each departed in separate directions.
2. Forster submits that it is open to the court to find that this encounter was nothing more than an unplanned chance encounter on the basis that there is no evidence that the meeting was sought out by either Forster or Hayes; that is that there was no intentional seeking out and that there is no evidence of any close personal relationship.
3. With respect, I reject that submission. It is correct to say that there is no evidence that the encounter between Forster and Hayes involved any planning by them and indeed, there is no evidence to suggest that both men did not happen upon each other at that time and place by anything other than pure chance. It was submitted for Forster that I may take judicial notice of the fact that Otho Street is a main thoroughfare within Inverell and that it would not be uncommon to come upon known acquaintances in such circumstances. Indeed that might well be so. That, however, is not in my view relevant to the issue at hand. Having become aware of each other's presence on Otho Street, one or the other of both men at some point in time thereafter formed the intention of seeking out the company of the other, evidenced by the engagement of both men in conversation which was observed by Sergeant Gillespie. Hayes' response to Sergeant Gillespie after he was spoken to suggests at the very least that the two men were more than mere acquaintances. They were indeed well known to each other and this is clear from the submissions made on behalf of Forster at the hearing.
4. I am satisfied that in all the circumstances at that time and on that day this interaction was not a casual encounter and that both Forster and Hayes were consorting for the purposes of s 93X of the Crimes Act.

Issue 3: Was Forster's encounter with Morris at 9.50 am on Friday, 27 April 2012, outside the Complete Angler in Inverell a chance encounter or consorting?

1. Following a warning being given to both Forster and Hayes, each man then went in separate directions. Clearly, the import of the warning had not been lost on either of them. Nevertheless, some twenty minutes later, both police officers again observed Forster and Morris engaged in conversation outside the Complete Angler Shop in Byron Street, Inverell. I am asked by Forster to take judicial notice of the fact that Byron Street, upon which the Complete Angler shop is located, is also a busy thoroughfare within Inverell and therefore the chance encounter of a known acquaintance is more likely than otherwise. I accept that as I do with Otho Street.
2. Sergeant Gillespie again speaks to Forster; who by now is resentful of Police intrusion into his movements. He acknowledges that he is aware of Morris previous imprisonment for offences he has committed. He was given a further warning and acknowledged the previous one given "ten minutes ago." Morris was also warned. Both men left in different directions.
3. There is no evidence before the Court that either Forster or Morris knew that they might encounter one another in Byron Street on that day. Indeed, that may well be what happened. That being the case, is it open to find that the encounter was therefore not sought out and in such case outside of s 93X of the Crimes Act? That is the position to which Forster submits I should adopt. I reject that submission as well. Whether or not either man knew or expected that they would meet at that place on that day and at that time is not apposite for the purposes of establishing whether the offence has been made out. When they did become aware of the presence of the other, there was at a point in time thereafter a seeking out by one or the other culminating in the conversation to which Sergeant Gillespie refers. It appears to be common ground that both men had known each other for some considerable time.
4. I am satisfied that this encounter was not a mere casual encounter but consorting as contemplated by s 93X of the Crimes Act.

Issue 4: Was Forster's encounter with Hayes, Morris and Case outside the Tattersalls Hotel in Inverell in the early hours of Saturday, 28 April 2012, a chance encounter or consorting?

1. In the early hours of Saturday, 28 April 2012, Forster was seen by Police in the company of Hayes, Morris and Case walking along Byron Street, Inverell. Constable McArthur along with Constable Spencer approached all four men outside the Tattersalls Hotel in the same street in Inverell and enquired what they were doing. Forster replied that they were "out having a drink." When he was reminded that they were consorting he protested saying that they were not doing anything wrong and that they were just going for a drink. They all received a further warning.
2. As counsel for Forster submits, this encounter at least suggests some seeking out or that a decision had been made collectively to embark upon an enterprise; namely, to go drinking. There is no evidence to establish conclusively, however, that this was also not a chance encounter at a well-recognised hotel in Inverell.
3. For the same reasons as I have given previously, it is not necessary in my view for the prosecution to establish that the encounter between Forster and the others was pre-arranged. Clearly, the participants had planned to engage in a social activity and this had occurred prior to the Police speaking to them. Allowing for the fact that Forster happened upon all of the others by chance, there is certainly no doubt that a decision was made to seek out each other's company for the purpose of mutual association and, accordingly, I am satisfied that this interaction was not a casual encounter and that it falls within the meaning of consorting for the purposes of s 93X of the Crimes Act.

Issue 5: Was Forster's encounter with Case at midday outside the Imperial Hotel in Inverell on Tuesday 22 May 2012 a chance encounter or consorting?

1. Constable Milne and Constable De Filippis were on patrol in Inverell on Tuesday, 22 May 2012, when at around midday they observed Forster and Case near the intersection of Byron Street and Otho Street, Inverell. As they approached, both men separated and walked in different directions. Police then conducted a U-turn, returned, alighted from the vehicle and approached both men who had reconnected and were speaking with each other. Both men received a further warning.
2. I am satisfied in the circumstances of this encounter that this was not a casual encounter but that both men had, upon becoming aware of each other's presence, formed an intention to seek the company of the other for the purposes of the legislation.

Determination

1. I am satisfied in all of the circumstances that the offence has been made out to the required standard, i.e. beyond reasonable doubt, and the offence is therefore proven. Magistrate Michael O'Brien 20 April 2015 Local Court (Moree) ********

Amendments 29 June 2015 - Insertion of "CRIMINAL LAW - particular offences - habitually consorting with convicted offenders after warning" and "WORDS AND PHRASES - "consort" - Crimes Act 1900 (NSW), ss 93W and 93X - "chance encounter"" in Catchwords, Cover Sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2015