NSW Police v Klein

Consort

1. Section 93W begins with one of those tautologies beloved of NSW parliamentary draftspersons, viz, "'consort' means consort": perhaps a statement of the obvious. The next two words, however, provide some greater meaning, so the initial clause becomes "'consort' means consort in person", assuming a received meaning for the verb "consort", which may be taken to have been based upon the pre-existing judicial interpretation [2] . This formulation is then further expanded with the words, "or by any other means, including by electronic or other form of communication".
2. Earlier authority did not focus on "communication" expressly. In Johanson v Dixon, [3] in a judgment expressly approved by French CJ [4] and Keane J [5] in Tajjour, Mason J states: ln its context 'consorts' means 'associates' or 'keeps company' and it denotes some seeking or acceptance of the association on the part of the defendant." [6]
3. According to Hayne J in Tajjour: First, there is an element of associating or keeping company. Second, there must be "some seeking or acceptance of the association on the part of the defendant". [7]
4. In Johanson v Dixon, Aickin J, with whom Stephen J also agreed, said: [8] The ordinary meaning of the words 'to consort' is to 'accompany; to escort or attend, to be a consort to (someone) or to associate oneself with (someone)', and thus to associate with or to keep company with a particular person is to 'consort' with such person. In this respect I agree with the views expressed in Brown v Bryan that it denotes some seeking or acceptance of the association with other specified persons on the part of a defendant.
5. These older authorities describe the nature of "consorting" at common law as requiring physical presence (or "keeping company") of consorters together. While this may still satisfy the definition of "consort" as meaning "consort in person", it is clearly Parliament's intention that the requirement of such presence be removed in the expanded version of consorting. However, given the final word of the s 93W definition of "consort", it seems inherent in the new structure that some form of communication between persons, whether in each other's presence or not, is fundamental to consorting. Whilst the concept is not stated expressly this way in the varied judgments in Tajjour, it would seem to be supported by the HCA's opinions. Most clearly, Gaegler J stated: Section 93W serves to ensure that consorting is not limited to personal interactions involving physical presence; but ss 93X and 93W do not operate to proscribe all forms of communication between an individual and a person convicted of an indictable offence. While consorting will usually, if not always, involve some communication between the putative consorts, not every communication between individuals can sensibly be described as consorting." [9]
6. While his Honour was perhaps over-cautious in suggesting that there could be "consorting" between people without communication, the examples chosen by him further in his judgment do not disclose any example of consorting absent communication: "Not every conceivable social interaction between individuals, one or more of whom happens to have been convicted of an indictable offence, amounts to consorting with convicted offenders. Quite apart from s 93Y, no one would sensibly suggest that the sending of a letter of demand by a creditor to a debtor could, of itself, amount to consorting. Equally, an individual who regularly catches the same bus to work as a group of persons previously convicted of indictable offences could not sensibly be said to consort with persons convicted of an indictable offence. Similarly, a pollster who canvasses the political opinions of persons convicted of indictable offences on a regular basis cannot be said to be habitually consorting with those convicted offenders. A member of a political party would not contravene s 93X merely by attending a branch meeting of the party which is also attended by fellow party members who happen to be persons who have been convicted of an indictable offence. Similarly, a political blogger could not be said to consort with convicted offenders by reason of the fact that they are on his or her mailing list. Nor could it be suggested that persons chatting while waiting to vote at a polling booth are consorting with each other." [10] In particular, his Honour's "blogger" example envisages a situation where communication is one-way only.

Habitually consort

1. However, it is not any consorting that is criminalised, but only "habitual" consorting. Section 93X(2) seems to be designed to place some limitation on the common law concept of "habitual consorting" by providing that: 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.
2. On the common law consideration of this topic, French CJ observed in Tajjour: [11] The term "habitually consorts", in the offence provisions of the various States, required, in practical terms, proof of more than one occasion of association between a defendant and reputed thieves or criminals. Consorting was construed as "frequent companionship". The adverb "habitually" required that it be more than occasional, "so constant as to have created a habit." It was not necessary that the consorting be with the same person or persons. and that:

• It was a "question of degree", involving consideration by the court of the number of times a person had been in company with reputed criminals and all the circumstances";
• The requirement that consorting be habitual involved "a continuance and permanence of some tendency, something that has developed into a propensity, that is present from day to day." [12]

1. Section 93X(2) prescribes two concurrent necessary conditions for consorting to be classified as "habitual" consorting. A person may consort with the same convicted offender 100 times, but will not thereby be habitually consorting with that offender. It is only when the person has previously (or simultaneously) consorted with a second convicted offender that an offence is committed. Similarly, a person may consort with 100 different convicted offenders but will only habitually consort when he or she consorts with two of them a second time.
2. The formulation of s 93X(2) carries the logical implication that, even if paragraphs (a) and (b) are satisfied with respect to a person, the person is not necessarily consorting: they are necessary but not sufficient conditions. [13] It appears there is still room in this formulation for the common law concept of "frequent companionship", [14] even if companionship is now via Skype rather than by physical closeness.
3. In common law parlance, the adverb "habitually" required that it be more than occasional, "so constant as to have created a habit". [15] But the s 93X definitions seems to have entirely done away with that concept.

Occasions

1. Mr Lang argued that there must be some temporal separation in events before they can be described as "occasions". So much may be conceded, but the extent of that separation is unclear. For example, on the prosecution evidence, the accused was seen by police twice on the same day travelling in a particular car with one or more convicted offenders. Mr Lang's argument was that the apparent continuity of these two events, in terms of location, participants and time, meant they together constituted only a single "occasion" of consorting. ln one sense this might merely be a matter of evidence. Consorting, as an offence, does not occur only when police or other persons observe it: it is a continuing behaviour. Evidence of all sorts, such as listening or video recording devices, could be used to establish that consorting took place between particular individuals, regardless of whether the consorting conduct was observed at the time by police or anyone else.
2. Whilst, as noted above, the common law saw physical proximity as a necessary element of consorting (because, prior to the development of the telephone, real-time oral communication could not occur except in the presence of the parties), the statutory expansion of that concept by s 93X removes such spatial proximity from the realm of "necessary" conditions. The spatial dimensions being unnecessary, the only remaining dimension is the temporal, so that an "occasion" must logically be sufficiently constituted by a period of time during which consorting is occurring.
3. lt follows from the above that two "occasions" exist only when there are two distinct periods of time that are separated by another period of time: two periods of time that are consecutive or overlapping can only constitute a single "occasion". The legislation provides no direction as to how long the individual occasions, or the period of separation, must be. But to constitute an "occasion", the requisite period of time must at least be long enough for communication to occur between the parties, since if there is no communication there is no consorting.
4. It does not seem that there must be some direct communication link between consorter (CO) and consortee (CE), as envisaged by s 93W. If CO talks to X (who is not a convicted offender), and X communicates that conversation to CE1 and CE2 (who are both convicted offenders) on the same occasion, is CO "habitually" consorting with either CE1 or CE2? Section 93W's use of the words "by any other means" suggest an affirmative answer to this question.

The present scenario

1. Mr Lang's initial argument was that when, on 7 August 2015, D entered a building shortly after a convicted offender, about whom D had been officially warned, entered the same building, consorting had not been established. [16] That argument is, on the above principles, clearly correct. The prosecution must prove that some actual "consorting" took place: that is, they must show that there was some communication between D and the convicted offender(s). Were the building to be a single room rather than a house, the inference of communication would be quite strong. But in this instance there is no evidence that the police knew when D left the building, so that the prosecution would be unable inferentially to prove consorting, either because there was insufficient time for it to occur, or there was, time aside, insufficient evidence that D and CE had any communication at all. The second argument centred on the abovementioned observations of D in a motor vehicle on the offence date of 27 August 2015. The position suggested by the prosecution was that each period of time during which police observed D in the vehicle was a separate occasion for the purposes of s 93X, as the two periods of observation were themselves separated by an intervening period.
2. However, it would be necessary for the prosecution to prove beyond reasonable doubt that the two observations were not of the one consorting event, viewed twice, but rather were observations of two distinct consorting events, necessarily separated by a period constituting a non-consorting event, viewed (at least) once each. If either argument is correct, the prosecution's case must fail. If D is not proven beyond reasonable doubt to have consorted with a convicted offender on 7 August 2015, or on 27 August 2015, there is evidence of only a single prior relevant consorting event involving D, and s 93X(2) is not satisfied. In my view the evidence falls short of establishing that critical fact. l find the defendant not guilty. The charge is dismissed. Magistrate R A Brown Blacktown Local Court

Endnotes

1. [2014] HCA 35
2. Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 at 106-107
3. [1979] HCA 23; (1979) 143 CLR 376
4. At [64]
5. At [211]-[213]
6. At [9], citing Brown v Bryan [1963] TASStRp 2; [1963] Tas SR 1 at 2; Barwick CJ and Stephen J agreeing; Aickin J and Murphy J gave judgments to a similar effect
7. At [64]
8. At 395, footnote omitted
9. At [202]
10. At [205]
11. At [14], footnotes omitted
12. At [16], footnotes omitted
13. Were this not the case, there would be a logical internal inconsistency with the s 93Y defences.
14. O'Connor v Hammond ( 1902) 21 NZLR 573 at 576 per Stout CJ; Reardon v O'Sullivan [1950] SAStRp 4; [1950] SASR 77 at 87 per Paine AJ; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 101 per Burbury CJ
15. Above note 14
16. Exhibit 1, Statement of Constable Geoff Paul dated 9 October 2015. There is no dispute that D had been officially warned about the status of the convicted offenders he was alleged to be consorting with. 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: 06 April 2017