By Paul Gregoire and Ugur Nedim
Since their enactment in 2012, the use of the new consorting regime by NSW police has come under significant controversy. The consorting law legislation was introduced into parliament by the O’Farrell government, ostensibly in response to rising gun violence attributed to motorcycle club members and organised crime gangs.
Under section 93X of the NSW Crimes Act 1900, a person – whether or not they have a criminal record – can be warned by police, either verbally or in writing, not to communicate with those who’ve previously been convicted of a crime, even if the latter has ‘served their time’ and moved on with their life.
The warned individual must have been associating with at least two at least two offenders , and met with them at least twice. Consorting has previously been found to include meeting in person, or communicating over the phone, or the internet.
The offence attracts a maximum penalty of three years imprisonment, and/or a $16,500 fine.
The NSW Ombudsman released a scathing report last year, finding the laws have unfairly heavily impacted upon children, family members, the homeless and Aboriginal people, rather than reducing organised crime.
Charlie Forster, an intellectually disabled man from Inverell, was the first person to be imprisoned for habitual consorting under the new laws in June 2012.
Inverell police officers found Mr Forster in the company of person who had previously offended on four separate occasions. Two police sergeants spotted him speaking to Jake Hayes out the front of the Inverell Motel at 9.50 am on 27 April 2012.
The officers approached the two men and warned them that they weren’t allowed to communicate, as “people with criminal convictions are not allowed to associate with each other.” Sergeant Gillespie warned that if Mr Forster got caught “hanging around” with convicted criminals enough times, he’d be charged.
Twenty minutes later, the same two officers came across Forster standing out the front of a camping store. He was speaking to Eli Morris, another previous offender. The officers approached the men, gave them a similar warning and told them to move off in separate directions.
Just after midnight that night, four different officers came across Forster – along with Hayes, Morris and another previous offender Damien Case – out the front of the Tattersall’s Hotel. Constable McArthur warned the men – who were “out havin’ a drink” – that they were not allowed to be associating.
On 22 May 2012, Constable De Filippis noticed Mr Forster speaking to Mr Case on the side of the road. The officer approached the men and said to Forster, “I am giving you an official warning for consorting with Damien Case.”
A statement from the Inspector of Inverell police station outlined that local officers had all discussed the new consorting legislation and how it could be used to deal with repeat offenders. The police established a “Suspect Target Management Plan.” Mr Forster was included as a target of the plan, and police officers were told to “proactively interact” with him.
Convicted of consorting
Mr Forster was then charged with consorting and initially pleaded guilty. On 22 June 2012, he was sentenced to twelve months imprisonment, with a non-parole period of nine months. He was subsequently allowed to traverse his plea; to change it from guilty to not guilty.
Along with two Nomad motorcycle club members, Mr Forster unsuccessfully challenged the validity of consorting laws in the High Court of Australia on the basis that they infringe the implied rights of freedom of association and political communication in the Commonwealth Constitution.
The case against Mr Forster ultimately proceeded to hearing in Inverell Local Court in April 2015. Although his criminal defence lawyer argued there was a difference between deliberate meetings and chance encounters, Magistrate Michael O’Brien found Forster guilty and reinstated the original sentence.
The Supreme Court
In quashing Forster’s conviction last Thursday, Justice Lucy McCallum remarked that “the vice of a law that adopts unclear terms is the risk that it will be interpreted differently by different people.” She found that Magistrate O’Brien’s ruling that simply speaking with an offender during a casual encounter amounts to consorting was “extremely narrow.”
Her Honour noted the magistrate’s acknowledgement that a casual encounter does not amount to consorting in and of itself, but that an encounter which involves a conversation is enough to constitute the behaviour covered by the offence.
During the hearing, Magistrate O’Brien reasoned that when Mr Forster and Mr Hayes had seen each other on the street, one or both of the men had “formed the intention of seeking out the company of the other,” as evidenced by their conversing.
The magistrate therefore found that consorting had taken place on each occasion, and the offence had been proved “beyond reasonable doubt.” However, Justice McCallum found the magistrate’s reasoning to be flawed – as it meant any casual encounter would constitute consorting, unless it was limited to a “smile, a nod,” or the “tip of a hat.”
Her Honour identified that “the essence of consorting is the intentional seeking of something in the nature of companionship, not mere conversation”, and that it’s not until this “companionship with convicted offenders becomes habitual that the conduct is criminalised.”
The judge stated that the fact parliament had prescribed a heavy penalty for the offence weighs in favour of a broad construction of the terms in the legislation, rather than the extremely narrow definition adopted by the magistrate.
“The prospect that that a person might be imprisoned for habitual consorting indicates that parliament intended to proscribe something more grave than casual conversation on the street between two people,” Her Honour remarked.
Justice McCallum further found the magistrate had failed to consider what actually transpired during the interactions that he found amounted to consorting. Her Honour said section 93X “plainly requires the court to undertake that evaluation as a separate step.”
Her Honour ultimately ruled that Mr Forster’s conviction be quashed and his sentence set aside. She declined to remit the proceedings back to the Local Court for redetermination in accordance with the law, which means Forster does not need to go through the ordeal of further proceedings.
But unfortunately for Forster, he already served time for his conviction back in 2012- time he will never get back.