Citation: NSW Police Force v Forster [2015] NSWLC 3
Court: Local Court of NSW
Date: 20 April 2015
Judge(s): O'Brien LCM
Background
The defendant was a man with prior convictions who was observed on multiple occasions in 2012 associating with three other men, each of whom was also a convicted offender. The encounters took place across several locations in Inverell, New South Wales, and were witnessed by police officers on patrol. On each occasion, police issued official warnings under the Crimes Act 1900 (NSW), advising that the individuals were convicted offenders and that consorting with them was a criminal offence.
The defendant was charged with habitually consorting with convicted offenders after warning, contrary to section 93X of the Crimes Act 1900 (NSW). The charge arose from four separate encounters across two days in April 2012 and one in May 2012. The prosecution tendered agreed statements from seven police officers; the defendant did not give evidence.
The case had a notable procedural history. The defendant had earlier pleaded guilty and was sentenced to imprisonment, but successfully applied to set aside that plea in the District Court. A constitutional challenge to the validity of section 93X, taken to the High Court in related proceedings, was unsuccessful: Tajjour v State of New South Wales [2014] HCA 35.
Legal Issues
- Whether the concept of "consorting" in section 93X of the Crimes Act 1900 (NSW) is distinct from a mere chance encounter
- Whether each of the four observed encounters between the defendant and convicted offenders constituted "consorting" or was instead a chance encounter
- Whether the prosecution had established the offence of habitual consorting beyond reasonable doubt across the requisite minimum number of occasions with the requisite minimum number of convicted offenders
Decision
The meaning of "consort" and the chance encounter question
The court held that "consorting," as used in section 93X, carries its established judicial meaning of associating with or keeping company with another person, and importantly requires some seeking or acceptance of the association on the part of the defendant. This interpretation drew on the High Court's analysis in Johanson v Dixon (1979) 143 CLR 376, where Mason J explained that the word "consorts" denotes some degree of voluntary engagement with the association. A purely fortuitous or involuntary encounter, where no such seeking or acceptance occurs, does not meet this threshold. The purpose of the association is irrelevant; innocent purpose has never been a defence to habitual consorting, and section 93Y now provides specific and exhaustive statutory defences for defined innocent purposes, none of which applied here.
The individual encounters
For the early morning encounter at the Tattersalls Hotel on 28 April 2012, the court was satisfied that the group had gathered with a common social purpose, namely drinking, and that this amounted to a mutual seeking of association. Even if the initial meeting was fortuitous, a conscious decision to remain and associate together took it beyond a mere chance encounter. Similarly, the midday encounter on 22 May 2012 outside the Imperial Hotel was found not to be casual: when both men noticed each other and then deliberately reconnected after initially separating upon seeing the police, this demonstrated a formed intention to seek each other's company.
Overall finding
The court was satisfied beyond reasonable doubt that the defendant had consorted with at least two convicted offenders on at least two occasions each, and had done so after receiving official warnings in relation to each of them. All elements of the offence under section 93X were established and the charge was proven.
Orders Made
• The offence is proven beyond reasonable doubt
Key Takeaways
- Under section 93X of the Crimes Act 1900 (NSW), "consorting" requires some element of voluntary seeking or acceptance of association; a purely involuntary or fortuitous encounter, with no such element, does not meet the definition.
- The purpose of the association is irrelevant to the offence. Consorting for an entirely innocent purpose is still capable of constituting the offence, subject only to the specific statutory defences in section 93Y.
- Section 93Y provides exhaustive "innocent purpose" defences (covering family members, employment, education, health services, legal advice, and custody or court orders), but the burden of establishing those defences rests on the defendant.
- A pre-arranged meeting is not required. Where the evidence shows that parties who happened upon each other then made a conscious decision to remain in each other's company, that conduct can satisfy the consorting element.
- The High Court's ruling in Tajjour v State of New South Wales [2014] HCA 35 had already confirmed the constitutional validity of section 93X, and this Local Court decision applies that confirmed framework to a factual analysis of individual encounters.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93W, 93X, 93Y
- Summary Offences Act 1970 (NSW)
- Vagrancy Act 1902 (NSW)
Cases
- Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCA 35; 88 ALJR 860
- Johanson v Dixon [1979] HCA 23; 143 CLR 376
- Gabriel v Lenthall [1930] SAStRp 62; SASR 318
- Dias v O'Sullivan [1949] SAStRp 15; SASR 195
- O'Connor v Hammond (1902) 21 NZLR 573