Forster v Director of Public Prosecutions

1. [1]

   HER HONOUR: A law that is unacceptably vague is not invalid on that account; no such doctrine is recognised in Australia. The vice of a law that adopts unclear terms is the risk that it will be interpreted differently by different people at different times and so threaten equal justice, which is an aspect of the rule of law. [1]

2. [2]

   In R v Hughes, [2] Kirby J noted that doctrines of “invalidating vagueness” have been developed in America, Canada and Europe. His Honour was sympathetic to the suggestion that a constitutional implication of “due process” may be derived from the provisions of Chapter III of our Constitution. But the issue did not arise for determination in that case and the notion of an implied constitutional requirement of clarity in the criminal law does not appear to have been embraced.

3. [3]

   Charlie Forster grew up in the town of Inverell in northern New South Wales. He was reportedly the first person to be convicted of the offence of habitual consorting contrary to s 93X of the Crimes Act 1900 (NSW). That offence was introduced by the Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW), which commenced on 9 April 2012. It carries a maximum penalty of imprisonment for 3 years.

4. [4]

   When warned by police that he may be committing the offence of consorting, Mr Forster replied: “what’s consorting?” He was told “it means people with criminal convictions are not allowed to associate with each other. If you’re caught a certain number of times you get charged.”

5. [5]

   The case against Mr Forster was based on four separate instances of alleged consorting which, taken together, were said to amount to habitual consorting contrary to s 93X. Three consisted of “engaging in conversation” with one other person in the daytime on the main streets of Inverell. Each conversation was with a different man, in each case someone Mr Forster had known for some time. The content of the conversations was not established; the case rested on the fact that conversation had occurred. The fourth incident relied upon to establish the offence was a night when Mr Forster was “out havin’ a drink” with a group that included the same three men.

6. [6]

   Mr Forster initially pleaded guilty to the offence. He was sentenced to a term of imprisonment for 12 months with a non-parole period of 9 months commencing on 22 June 2012. He was subsequently allowed to traverse his plea. It is not clear when that occurred but he remained in custody for most of the period of the sentence imposed; he was granted Supreme Court bail almost eleven months after the commencement of the sentence.

7. [7]

   In the meantime, proceedings were brought in this Court by Mr Forster and two others challenging the validity of s 93X, principally on the grounds that it impermissibly burdens the implied freedom of communication on governmental and political matters. Those proceedings were removed into the High Court. The Court held (by majority) that the section was not invalid. [3] The charge against Mr Forster finally proceeded to hearing in the Local Court in March 2015.

8. [8]

   The Magistrate found the offence proved. The transcript of the proceedings after conviction is not before this Court. According to the Bench Sheets, a conviction was entered on 21 April 2015 and the sentence first imposed (which had already been served) was reinstated.

9. [9]

   Mr Forster now appeals against his conviction. The appeal is brought under ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal was brought late and requires an extension of time, which is not opposed by the Director of Public Prosecutions.

10. [10]

    I am of the view that Mr Forster was wrongly convicted and that the conviction must be set aside. My reasons for reaching that conclusion are as follows.

The offence provision

1. [11]

   Section 93X provides:

2. [12]

   The section requires proof of two elements:

   1. (1)

      habitual consorting with convicted offenders (as to which regard must be had to the minimum requirements stated in s 93X(2)); and

   2. (2)

      consorting with the same convicted offenders after having been given an official warning as to each.

3. [13]

   As provided in s 93X(2), the first element could not be satisfied unless it was established (as a minimum) that Mr Forster had consorted with at least two convicted offenders and that he had consorted with each on at least two occasions. That is not to say that proof of those matters necessary established “habitual consorting”; that issue is addressed below. Separately, the section required proof of consorting with the same convicted offenders after having been given an official warning as to each. There was no contest as to that element of the offence in the case against Mr Forster.

Circumstances of the offence

1. [14]

   In the proceedings in the Local Court, the evidence relied upon by the prosecution consisted of written police statements tendered by consent. None of the witnesses was required for cross-examination. The only objection to the evidence taken on behalf of Mr Forster was to any hearsay statement being relied upon as to the truth of its contents. The prosecutor confirmed that she did not rely on any hearsay statement for that purpose.

2. [15]

   The element of habitual consorting was sought to be proved by the four instances of alleged consorting referred to above. The persons with whom Mr Forster was alleged to have consorted were Jack Hayes, Eli Morris and Damien Case. It was common ground that each of those men was a “convicted offender” within the meaning of the section.

3. [16]

   The acts of consorting relied upon were:

   1. (1)

      a conversation between Mr Forster and Mr Hayes near the front of the Inverell Motel in Otho St, Inverell at 9:50am on 27 April 2012;

   2. (2)

      a conversation between Mr Forster and Mr Morris outside a shop in Byron St, Inverell at 10:10am the same day;

   3. (3)

      an occasion after midnight that evening when Mr Forster was seen in front of the Tattersalls Hotel with a group of men including Mr Hayes, Mr Morris and Mr Case;

   4. (4)

      a conversation between Mr Forster and Mr Case on Otho St near the intersection of Byron St at midday on 22 May 2012.

4. [17]

   The evidence of those events was brief. As already noted, it did not establish the content of any conversation between Mr Forster and the relevant “convicted offender” during any of the alleged consorting.

5. [18]

   The first incident was described by Sergeant Gillespie in the following terms:

6. [19]

   The conversation that followed (between police and the two men) shed little light on the relevant conduct but, for completeness, is set out below, from the statement of Sergeant Gillespie:

7. [20]

   The suggestion that Mr Forster and Mr Hayes were living together does not appear to have been investigated and formed no part of the prosecution case.

8. [21]

   The second incident occurred twenty minutes later, when the same two police officers were patrolling on Byron St, Inverell. The only description of the relevant conduct was as follows:

9. [22]

   Again, the conversation that followed did not take the matter any further but is set out below for completeness. Sergeant Gillespie stated:

10. [23]

    Shortly after midnight that night, four different police officers saw Mr Forster. The only description in the evidence of the alleged consorting on that occasion is that Mr Forster was walking north on Byron St with a group of men that included Mr Hayes, Mr Morris and Mr Case. By the time police approached the men, they were sitting and standing outside the Tattersall’s Hotel. Each of the four police officers gave a statement about that incident; it is enough to refer to the statement of Constable Milne, who gave the following account of the conversation that followed:

11. [24]

    In light of Mr Forster’s statements that he was having a drink with the other men that night, it was acknowledged at the hearing that that event had a different quality from the three conversations on the street.

12. [25]

    The final incident (which occurred almost a month later, on Tuesday 22 May 2012) was described by Constable Milne as follows:

13. [26]

    The evidence before the Magistrate also included a statement from the Inspector at Inverell Police which gave a disarmingly frank account of the process by which Mr Forster came to be charged. The Inspector said that police at Inverell had discussed the new consorting legislation and its possible use in dealing with recidivist offenders and “crime hot spots” in Inverell. In late April 2012, Mr Forster had been nominated for inclusion in a “Suspect Target Management Plan”. On 29 May 2012, Mr Forster was formally made a “target” of that plan, with the result that staff at Inverell Police were tasked “to proactively interact” with him. That evidently prompted a constable at Inverell to review intelligence reports relating to Mr Forster with Sergeant Gillespie. The constable “observed that there was enough to charge him”, which they did.

Alleged error in the construction of the statute

1. [27]

   The Summons specifies five grounds of appeal. In supplementary submissions filed after the conclusion of the hearing, Mr Forster sought leave to add a sixth. The DPP does not oppose the leave sought. Some of the grounds of appeal require leave under s 53 of the Crimes (Appeal and Review) Act. The question of leave is addressed in the discussion of each ground below.

2. [28]

   Ground 1 and the proposed new ground allege error in the construction of s 93X and may conveniently be addressed together. Those grounds raise questions of law alone and accordingly do not require leave: see s 52 of the Crimes (Appeal and Review) Act.

3. [29]

   Ground 1 is:

4. [30]

   The proposed new ground is:

5. [31]

   It was acknowledged at the hearing that the issue raised by the proposed new ground was not raised before the Magistrate. Mr Forster submitted, however, that the failure to do so is not determinative, since the new ground raises a pure question of law as to the elements of the offence and so falls within the scope of an appeal that may be brought as of right under s 52 of the Crimes (Appeal and Review) Act. [4] On the strength of that analysis and since leave to amend is not opposed, I am satisfied that the plaintiff should be permitted to rely on the new ground.

6. [32]

   The burden of the argument in support of ground 1 is that his Honour construed the term “consorts” in s 93X too broadly in that, according to his Honour’s determination, virtually any engagement in conversation with a convicted offender would amount to consorting within the meaning of the section.

7. [33]

   Consideration of this ground is complicated by the manner in which the Magistrate analysed the issues in the proceedings. His Honour identified five issues that arose for his determination. [5] The only issue directed to the proper construction of the section was issue 1, expressed as follows:

8. [34]

   His Honour concluded that a “casual encounter” (by which he presumably meant a chance encounter) between persons would not constitute consorting for the purposes of s 93X. [6] I respectfully agree. But it does not follow that any encounter other than a chance encounter (with a convicted offender) amounts to consorting within the meaning of the section.

9. [35]

   The Magistrate’s analysis of the issues assumed otherwise. The question his Honour posed for himself was, as to each of the four encounters relied upon by police, whether it was “a chance encounter or consorting” (issues 2, 3, 4 and 5). Expressed in those terms, the questions assumed a dichotomy. His Honour implicitly rejected the prospect that anything more than a chance encounter might fall short of “consorting” within the meaning of the section.

10. [36]

    Those were the only issues identified and determined in the Magistrate’s judgment. His Honour evidently did not consider it necessary, assuming each of the four encounters was an individual instance of consorting, to give separate consideration to the issue whether the conduct proved amounted to “habitual consorting” within the meaning of the section.

11. [37]

    Authoritative guidance as to the meaning of s 93X is provided in the decision of the High Court in Tajjour (the case in which Mr Forster was one of the three applicants who unsuccessfully challenged the validity of the section). The DPP’s written submissions noted that the language in four paragraphs of the Magistrate’s judgment dealing with the first issue (the question of the construction of the section) almost replicates that of Keane J in his judgment in Tajjour. In fact, upon analysis, the whole of that section of the Magistrate’s judgment is a congeries of extracts from the decision in Tajjour, reproduced without attribution. [7] In saying so, I do not mean to be critical but only to explain the difficulty of discerning what his Honour understood the section to mean.

12. [38]

    Certainly, his Honour held that a casual encounter between persons would not constitute consorting for the purposes of s 93X. However, the manner in which his Honour proceeded to apply that conclusion to the facts of the case suggests an extremely narrow view as to what constitutes a casual encounter. In particular, as submitted on behalf of Mr Forster, his Honour’s analysis of the facts suggests he took the view that any encounter between two people that proceeded to include any conversation at all would fall outside the scope of a casual encounter and would, if one was a convicted offender, necessarily amount to consorting with that person within the meaning of s 93X.

13. [39]

    His Honour was satisfied beyond reasonable doubt that each of the four incidents relied upon by the prosecution amounted to consorting within the meaning of s 93X.

14. [40]

    As to the first incident (the conversation on the street between Mr Forster and Mr Hayes), his Honour accepted that there was no evidence that the encounter involved any planning and that the meeting may have occurred by chance. However, his Honour said (at [28]):

15. [41]

    Substantially the same reasoning was applied to the second incident (the conversation on the street with Mr Morris). His Honour said (at [32]):

16. [42]

    As to the third incident (when all four men were seen outside the Tattersall’s Hotel and Mr Forster said they were “out havin’ a drink”), the Magistrate said (at [36]):

17. [43]

    The Magistrate reached the same conclusion in respect of the fourth incident (Mr Forster’s encounter with Mr Case on 22 May 2012). His Honour noted that the two men separated and walked in different directions when they saw the police but then reconnected and were speaking with each other by the time police approached. His Honour said (at [38]):

18. [44]

    Having found that each encounter amounted to consorting within the meaning of the section, his Honour concluded:

19. [45]

    I am persuaded that his Honour erred in his construction of the term “consorts” in s 93X. As already noted, authoritative guidance as to the meaning of the section is provided in the decision of the High Court in Tajjour. It may be accepted that that case was not directly concerned with the proper construction of the verb “to consort” as used in s 93X. The questions stated for the opinion of the High Court were whether the section is invalid because it impermissibly burdens the implied freedom of communication on government and political matters contrary to the Constitution; whether there is implied into the Constitution a freedom of association independent of the implied freedom of communication on governmental and political matters; whether s 93X contravenes any such implied freedom of association and whether the section is invalid because it is inconsistent with the International Covenant on Civil and Political Rights as ratified by the Commonwealth of Australia. However, in the course of determining those questions, each member of the Court considered the scope of conduct proscribed by the section.

20. [46]

    Chief Justice French was in dissent; his Honour concluded that s 93X does impermissibly burden the implied constitutional freedom and is invalid on that account. [8] Central to his Honour’s reasoning was the conclusion, based on a comprehensive review of the history of vagrancy laws and the context in which s 93X was introduced, that s 93X extends to habitual consorting for innocent purposes and does not exclude consorting for the purpose of communications on governmental or political matters. [9] However, in considering whether the section could be “read down” so as to avoid the conclusion that it is invalid on that account, his Honour expressed the view that the section does not prohibit “mere communication with convicted offenders”, saying: [10]

21. [47]

    Justice Hayne, in a separate judgment, joined in the conclusion of the majority that s 93X is not invalid.

22. [48]

    In the passage of his Honour’s judgment reproduced in the judgment of the Magistrate in the present case, his Honour considered that the term “consort” in s 93X should be given the meaning articulated by Mason J in Johanson v Dixon (1979) 143 CLR 376; [1979] HCA 23 at 383. [11] Justice Hayne said:

23. [49]

    Justice Hayne made four further points about the section. First, the prosecution does not have to prove that the consorting was for an unlawful or criminal purpose or indeed for any particular purpose. [12]

24. [50]

    Secondly, his Honour appears to have interpreted the section as requiring habitual consorting after an official warning [13] (perhaps not excluding the possibility that one act of consorting after an official warning would reflect a continuation of the habit).

25. [51]

    Thirdly, his Honour noted that the provision which extends consorting to consorting by electronic means (s 93W) “does not modify the elements of consorting itself”. His Honour said: [14]

26. [52]

    Finally, Hayne J appears to have contemplated a requirement for cogent evidence to prove habitual consorting, saying: [15]

27. [53]

    Justices Crennan, Kiefel and Bell published a joint judgment. Their Honours noted that, at the time s 93X was introduced, the term “habitually consort” had “a received meaning”, the fundamental ingredient of which is “companionship, or seeking out the company of the other person”. [16] Their Honours said:

28. [54]

    Central to the reasoning of the plurality was the conclusion that the term “habitually consort” is not to be understood to apply as widely as contended by the plaintiffs. Their Honours said: [17]

29. [55]

    Justice Gageler also adopted the formulation of Mason J in Johanson v Dixon, noting that s 93X “adopts language which has been the subject of authoritative judicial exposition” and that it does so designedly. His Honour said: [18]

30. [56]

    His Honour concluded that the section does infringe the implied constitutional freedom, albeit only in its application to association for the purpose of engaging in communication on governmental or political matters, and is to that extent invalid but severable.

31. [57]

    Justice Keane considered that the challenge to the validity of s 93X must fail. Central to his Honour’s reasoning was the conclusion that, on its true construction, although the section is directed at social interaction which may be effected by or include communication, it is “not directed at all social interactions” (and so does not have a necessary effect upon those interactions which consist of communications on political or governmental matters). His Honour identified two aspects of “consorting”. First, drawing from Johanson v Dixon, his Honour characterised consorting as intentional social interaction. His Honour said: [19]

32. [58]

    The second matter identified by Keane J as a feature of a relationship that is to be characterised as consorting was the nature of the association, that is, the degree of “personal intimacy”. His Honour said: [20]

33. [59]

    None of the judgments in Tajjour purports to provide definitive guidance as to what it is to “consort” within the meaning of s 93X and it may be acknowledged that some differences of opinion or emphasis are reflected. But there is at least in Tajjour authoritative if not unanimous rejection of the proposition that a casual conversation on the street with an acquaintance can, of itself, amount to consorting. The decision provides support for the proposition that the essence of consorting is the intentional seeking of something in the nature of companionship, not mere conversation. Further, it is only when such companionship with convicted offenders becomes habitual that the conduct is criminalised.

34. [60]

    The Magistrate’s decision can only be understood to reflect the view that a casual encounter not involving conversation (a smile, a nod, a tip of the hat) would not amount to consorting but that by embarking upon conversation – any conversation – a person evinces an unequivocal “intentional seeking out” of the kind of companionship that is proscribed by the section. In my respectful opinion, applying the principles stated in Tajjour, that was an erroneous construction of the section.

35. [61]

    My conclusion on that issue is fortified by a consideration of the maximum penalty for the offence, which is imprisonment for 3 years. The prospect 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 persons. [21]

36. [62]

    I am further persuaded that the Magistrate erred in failing to give separate consideration to whether the individual acts of consorting his Honour found were established amounted to habitual consorting. As already noted, that point was not taken before the Magistrate. In my respectful opinion, however, the section plainly requires the Court to undertake that evaluation as a separate step. On the plain terms of the section, it is an element of the offence that the accused is “a person who habitually consorts with convicted offenders”. Section 93X(2) imposes minimum requirements for satisfaction of that element. I do not think it is to be taken that the bare satisfaction of those requirements necessarily establishes habitual consorting.

37. [63]

    In Tajjour, French CJ said at [16]:

38. [64]

    I should acknowledge that his Honour was there considering earlier vagrancy provisions; it might be argued that the terms of s 93X(2) supplant that task. I would reject that argument. The facts of this case provide ample illustration of the need for the Court to make an evaluative judgment about the conduct proved. Even if each of the encounters relied upon by the prosecution in the present case amounted to consorting, they scarcely established a habit. The first three encounters occurred within the space of 24 hours. The fourth was almost a month later. In light of the Magistrate’s acceptance of the possibility that each of the conversations on the street began as a chance encounter, it is difficult to see how the impugned conduct could be characterised as habitual.

39. [65]

    To approach the section on the basis that the bare proof of a number of conversations meeting the minimum requirement of s 93X(2) necessarily establishes the offence is wrong, in my view.

40. [66]

    For those reasons, ground 1 and proposed ground 6 are made out.

Grounds 2 and 5

1. [67]

   Grounds 2 and 5 contend, in substance, that the conclusion that each of the on-the-street encounters amounted to consorting within the meaning of s 93X was not open on the evidence. Ground 2 is:

2. [68]

   Ground 5:

3. [69]

   In my analysis, those grounds reflect an alternative analysis of the issue raised by ground 1. On the basis of my consideration of that ground it can, in my respectful opinion, be concluded that the Magistrate either misconstrued the section or made findings that were not open on the evidence.

4. [70]

   Those grounds raise questions of fact or mixed law and fact and accordingly require leave under s 53 of the Crimes (Appeal and Review) Act. The DPP accepted that their consideration would be inextricably linked with the consideration of ground 1 and on that basis did not oppose leave to appeal on those grounds. I am satisfied that leave should be granted.

5. [71]

   As to the three encounters on the street, the evidence rose no higher than that Mr Forster engaged in conversation on a public street with a person he knew (including knowing that person to be a convicted offender). The Magistrate’s conclusion that each of those encounters amounted to consorting within the meaning of s 93X can only be reconciled with the principles set out in the Magistrate’s decision on the premise that every conversation between persons known to each other necessarily entails the two elements described by Mason J in Johanson v Dixon (that is, an element of associating or keeping company and some seeking or acceptance of the association). Plainly, that is an invalid premise.

6. [72]

   In the proceedings below, the prosecutor came close to inviting the Magistrate to reverse the onus of proof on that issue, noting more than once that there had been “no utterance” or “no positive utterance” by the applicant to the effect that it was a chance encounter (T19.48; T20.48). In making that submission, the prosecutor expressly acknowledged that there was “no positive onus on the defendant” but the submission tended to distract from the absence of any basis on which the Magistrate could undertake the evaluative judgment required of him.

7. [73]

   Separately, the prosecutor invited the Magistrate to speculate beyond the matters observed by police, saying:

8. [74]

   The prosecutor submitted that the legislation imposes no onus on the prosecution to establish any minimum period of time of consorting. That is so but, as stated by French CJ in Tajjour in the passage set out above, the Court must undertake an evaluative judgment having regard to the circumstances established by the evidence. In my respectful opinion, the evidence adduced by the prosecution was incapable of establishing that the three encounters on the street observed by police amounted to consorting within the meaning of s 93X. It established no more than a casual conversation on the street with a person Mr Forster knew. The conduct described in the police statements was incapable of proving the kind of companionship proscribed by the section.

9. [75]

   As already noted, it was accepted on behalf of Mr Forster that the pub incident had a different quality. The evidence of that incident was sparse (resting primarily on the information volunteered to police by Mr Forster that they were out having a drink) but it is not necessary for present purposes to consider whether it was capable of amounting to consorting.

10. [76]

    I am satisfied that grounds 2 and 5 are made out.

11. [77]

    Grounds 3 and 4

12. [78]

    Grounds 3 and 4 challenge the adequacy of the Magistrate’s reasons.

13. [79]

    Ground 3 is:

14. [80]

    Ground 4 is:

15. [81]

    These grounds raise mixed questions of law and fact and so require leave. In this instance, the DPP opposed leave on the basis that the grounds are without merit. I agree. The plaintiff essentially relied on the same matters to establish inadequacy in the reasons and inadequacy in the evidence. In my respectful opinion, the issues agitated in the appeal demonstrate the latter rather than the former. The Magistrate identified the test he was applying and the evidence on the strength of which he considered that the test was satisfied. I have been persuaded that the evidence (accurately summarised by his Honour) was incapable of satisfying the correct test but that is not to say the reasons were inadequately exposed, only that I have (respectfully) concluded that the result was wrong.

Conclusion

1. [82]

   For those reasons, I am satisfied that Mr Forster’s conviction must be set aside. In light of the conclusions I have reached, it is neither necessary nor appropriate to remit the proceedings to the Local Court.

2. [83]

   I make the following orders:

   1. (1)

      Pursuant to r 51B.6(2)(a) of the Supreme Court Rules 1970 (NSW), that the time for instituting the appeal be extended to 1 July 2015;

   2. (2)

      That leave be granted to amend the Summons to include proposed ground 6;

   3. (3)

      That leave to appeal on grounds 2 and 5 be granted;

   4. (4)

      That leave to appeal on grounds 3 and 4 be refused;

   5. (5)

      That the plaintiff’s conviction for habitual consorting entered on 21 April 2015 be set aside.