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Local Court 28 April 2016

NSW Police v Klein

[2016] NSWLC 26

Public order & justice offences
CRIMINAL PROCEEDINGS

Citation: NSW Police v Klein [2016] NSWLC 26
Court: Local Court of NSW
Date: 28 April 2016
Judge(s): Brown LCM

Background

The defendant was charged with a single count of habitually consorting with convicted offenders contrary to s 93X of the Crimes Act 1900 (NSW). The charge alleged that, between 9:45 pm and 10:00 pm on 27 August 2015, the defendant consorted with three named convicted offenders after having received official warnings about each of them.

The prosecution case rested almost entirely on agreed documentary evidence, and the defence called no evidence. The factual circumstances were not in dispute. The key contest was whether the prosecution had established the legal requirements of the consorting offence to the requisite standard.

Legal Issues

  • What does "consort" mean under s 93W of the Crimes Act 1900, and is communication between parties required?
  • What are the conditions that must be satisfied for consorting to be classified as "habitual" consorting under s 93X(2)?
  • What constitutes a separate "occasion" of consorting for the purposes of s 93X(2)?
  • Did the prosecution establish, beyond reasonable doubt, that the defendant consorted with convicted offenders on at least two distinct occasions?

Decision

Issue 1: The meaning of "consort" and the role of communication

The court analysed the definition of "consort" in s 93W, which expands beyond physical presence to include any other means of communication, including electronic communication. The court concluded that some form of communication between persons is inherent in, and fundamental to, the concept of consorting, whether the parties are in each other's physical presence or not (at [6]-[10]). A mere shared location, without evidence of actual communication, does not establish consorting (at [21]).

Issue 2: The requirements for "habitual" consorting under s 93X(2)

Section 93X(2) prescribes two concurrent necessary conditions for consorting to be classified as habitual. The defendant must consort with at least two different convicted offenders, and must do so on at least two separate occasions (at [12]-[14]). The court emphasised that these conditions are necessary but not sufficient: satisfying them does not automatically establish that habitual consorting occurred (at [15]).

Issue 3: What constitutes a distinct "occasion"

The court held that an "occasion" of consorting must comprise a distinct period of time separated from another by an intervening non-consorting period. Two consecutive or overlapping periods can only constitute a single occasion (at [18]-[19]). At minimum, each occasion must be long enough for communication to occur between the parties, since without communication there is no consorting (at [19]).

Issue 4: Whether the prosecution established two distinct occasions

The prosecution relied on two events: the defendant entering a building on 7 August 2015 shortly after a convicted offender, and two separate police observations of the defendant in a motor vehicle on 27 August 2015. The court found that the first event failed to establish consorting because there was no evidence of any communication between the defendant and the convicted offender inside the building (at [21]). As to the 27 August observations, the prosecution did not prove beyond reasonable doubt that the two observations were of two distinct consorting events rather than two views of a single, continuous event (at [21]-[22]). With only one established consorting event at most, the requirements of s 93X(2) were not satisfied, and the evidence fell short of proof beyond reasonable doubt (at [22]).

Orders Made

  • Charge dismissed.

Key Takeaways

  • Under s 93W of the Crimes Act 1900 (NSW), "consort" requires some actual communication between the parties, whether in person or by other means. Shared physical presence or location alone, without evidence of communication, does not establish consorting (at [6]-[10], [21]).

  • Section 93X(2) sets two concurrent necessary conditions for habitual consorting: the defendant must consort with at least two different convicted offenders, each on at least two separate occasions. Neither condition alone, nor satisfying both in a technical sense, is automatically sufficient to establish the offence (at [12]-[15]).

  • An "occasion" of consorting is constituted by a distinct period of time separated from another by an intervening period in which no consorting occurs. Two consecutive or overlapping periods amount to only a single occasion, not two (at [18]-[19]).

  • Where the prosecution relies on multiple police observations of a defendant to establish separate occasions of consorting, it must prove beyond reasonable doubt that those observations captured distinct consorting events and not a single continuous one viewed more than once (at [21]-[22]).

  • The Local Court dismissed the charge after finding that the evidence was insufficient to establish that the defendant had consorted with convicted offenders on at least two distinct occasions, which is a prerequisite of the offence under s 93X(2) (at [22]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900, s 93W, 93X, 93Y

Cases
- Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97
- Brown v Bryan [1963] TASStRp 2; [1963] Tas SR 1
- Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376
- O'Connor v Hammond (1902) 21 NZLR 573
- Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96
- Reardon v O'Sullivan [1950] SAStRp 4; [1950] SASR 77
- Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35