NSW Police Force v Forster [2015] NSWLC 3

Local Court New South Wales

Medium Neutral Citation: NSW Police Force v Forster [2015] NSWLC 3 Hearing dates: 6 March 2015 Decision date: 20 April 2015 Jurisdiction: Criminal Before: O'Brien LCM Decision: The offence of habitually consort with convicted offenders after warning is proved beyond reasonable doubt. Catchwords: CRIMINAL LAW - particular offences - habitually consorting with convicted offenders after warning

WORDS AND PHRASES - "consort" - Crimes Act 1900 (NSW), ss 93W and 93X - "chance encounter" Legislation Cited: Crimes Act 1900 (NSW), ss 93W, 93X, 93Y Summary Offences Act 1970 (NSW) Vagrancy Act 1902 (NSW) Cases Cited: Dias v O'Sullivan [1949] SAStRp 15; SASR 195 Gabriel v Lenthall [1930] SAStRp 62; SASR 318 Johanson v Dixon [1979] HCA 23; 143 CLR 376 O'Connor v Hammond (1902) 21 NZLR 573 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 Texts Cited: The Oxford English Dictionary Category: Principal judgment Parties: NSW Police Force (Prosecution)

Charlie Maxwell Forster (Defence) Representation: Sergeant Palmer (Prosecution)

Mr Randle (Counsel for the Defence) Lyon Legal (Solicitor for the Defence) File Number(s): 2012/173930 Publication restriction: Nil

​JUDGMENT​

Background 1. Charlie Maxwell Forster ("Forster"), Jack Hayes ("Hayes"), Eli Morris ("Morris") and Damien Case ("Case") share a number of things in common. One of them is that they are all well known to each other. The other is that each of them has been convicted of an indictable offence. 2. At around 9.30 am on Friday, 27 April 2012, Forster and Hayes were observed by Police speaking to each other near the front of the Inverell Motel in Otho Street, Inverell. When approached by police officers, Forster said "We're just hangin' out". Both were warned and each then moved off in separate directions. 3. About 20 minutes later the same police officers who had spoken to both men observed Forster speaking with Morris outside Complete Angler in Byron Street, Inverell. Each were given a warning and told to move on; which they did in separate directions. 4. In the early hours of Saturday, 28 April 2012, Forster along with Hayes, Morris and Case were observed by Police walking along Byron Street, Inverell. Police approached the group who by this time were outside the Tattersalls Hotel in Inverell. Forster, Hayes and Case were each warned by the police officers present. 5. At midday on Tuesday, 22 May 2012, Forster and Case were observed by Police to be engaged in conversation outside the Imperial Hotel and then moved on in different directions. They were observed by Police to re-engage with each other shortly after and continue talking together. When the Police vehicle pulled up outside the Hotel, Forster and Case then remonstrated with Police about being warned. 6. Forster is charged with habitually consorting with convicted offenders after warning contrary to s 93X of the Crimes Act 1900 (NSW). 7. The evidence for the prosecution was by way of an agreed tender of signed statements from Sergeant Shane Gillespie, Constables Mitchell Christie, Mitchell Milne, Callum McArthur, Rosie Spenser, Matthew Harris and Angelica De Filippis. None of the authors of those statements were required to give evidence or to be cross-examined. Forster did not give evidence. I draw no adverse inference from this fact. 8. This matter has a somewhat lengthy history and it is not necessary to examine that to any significant degree other than to say that Forster entered a guilty plea when the matter first came before the Local Court at Inverell and was subsequently convicted and sentenced to a term of imprisonment. The matter then proceeded to the District Court after which Forster successfully applied to traverse the plea. In separate proceedings brought by Forster in the Supreme Court and later transferred to the High Court, the validity of s 93X was challenged and the judgment in those proceedings provides a useful analysis of the history of this area of the law and of its development in Australia, particularly in New South Wales: 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. The challenge to the validity of the section was unsuccessful. 9. In these proceedings it is of course the prosecution which bears the onus of proving the offence beyond reasonable doubt. Forster is not required to prove anything. 10. The following issues arise for determination: * Issue 1: Is there a difference between consort and a chance encounter? * 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? * 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? * 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? * 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?