NSW Police v Klein [2016] NSWLC 26

Local Court New South Wales

Medium Neutral Citation: NSW Police v Klein [2016] NSWLC 26 Hearing dates: 16 March 2016 Decision date: 28 April 2016 Jurisdiction: Criminal Before: Brown LCM Decision: Charge dismissed Catchwords: CRIMINAL PROCEEDINGS – habitually consort with convicted offenders after warning - establishment of consorting on at least two occasions Legislation Cited: Crimes Act 1900, s 93W, 93X, 93Y Cases Cited: 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 Category: Principal judgment Parties: NSW Police (prosecution) Martin Francis Klein (defendant) Representation: Sgt S Bowie (for the prosecution)

Counsel: P Lang (for the defendant) File Number(s): 2015/253205

Judgment 1. The defendant is charged with a single count of "consorting" contrary to s 93X of the Crimes Act 1900 (NSW). The particulars of the charge state that the accused did, between 2145 hrs and 2200 hrs on 27 August 2015, "habitually consort with convicted offenders, to wit Timothy MARTIN, Luke RAZZA and Benjamin GITTANY after having been given an official warning in relation to each of those convicted offenders." 2. The case proceeded almost entirely on agreed documentary evidence, with only one prosecution witness being briefly questioned by the prosecutor. After the closure of the prosecution case, the defence called no evidence. None of the prosecution evidence was disputed. 3. Mr Lang for the defendant made a number of submissions on the case's legal aspects, with particular reference to the decision of High Court of Australia (HCA) in Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [1] (Tajjour). In order to properly address those submissions it is necessary to analyse the language of Part 3A, Division 7 of the Crimes Act 1900, comprising ss 93W, 93X and 93Y, with some precision as, despite its brevity, the language of the Division is decidedly obscure. 4. These sections provide: 93W Definitions In this Division: consort means consort in person or by any other means, including by electronic or other form of communication. convicted offender means a person who has been convicted of an indictable offence (disregarding any offence under section 93X). 93X Consorting (1) A person who: (a) habitually consorts with convicted offenders, and (b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence. Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both. (2) 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. (3) An official warning is a warning given by a police officer (orally or in writing) that: (a) a convicted offender is a convicted offender, and (b) consorting with a convicted offender is an offence. 93Y Defence The following forms of consorting are to be disregarded for the purposes of section 93X if the defendant satisfies the court that the consorting was reasonable in the circumstances: (a) consorting with family members, (b) consorting that occurs in the course of lawful employment or the lawful operation of a business, (c) consorting that occurs in the course of training or education, (d) consorting that occurs in the course of the provision of a health service, (e) consorting that occurs in the course of the provision of legal advice, (f) consorting that occurs in lawful custody or in the course of complying with a court order. 1. There is no reason to revisit the history of "consorting" legislation in NSW or elsewhere, as the HCA in Tajjour examined this topic quite closely.