The Court of Appeal this morning clarified the position on official notices issued as part of Queensland’s Consorting Laws.
Following the March 2019 decision of Southport Magistrate, Kerry Magee in Queensland Police Service v Harley Joe Barbaro  QMC 1 the Attorney-General for the State of Queensland referred 2 questions to the Court of Appeal for consideration.
Effectively the Court of Appeal determined by majority that:
- police do not need to issue a separate warning for each stated person and can include multiple offenders on the one notice.
- Even if one of the stated persons on an official warning for consorting is not a recognised offender the official warning continues to have effect.
- On 23 July 2017, Mr Barbaro, was issued with an Official Warning for Consorting (“the consorting notice”).
- The consorting notice included 15 stated persons as recognised offenders.
- One of the 15 was not a recognised offender and should not have been included in the consorting notice.
- Mr Barbaro met with at least two of the stated persons after having being served with the Consorting Notice.
- On 24 May 2018, Mr Barbaro was charged with an offence of ‘habitually consorting’ with at least two of the recognised offenders.
Barbaro was ultimately found not guilty of the Habitually Consorting charge. Included in Her Honour, Magistrate Magee’s reasons was a criticism that the consorting notice named 15 stated persons. Her Honour reasoned that it was impermissible to provide one warning in relation to 15 purported separate recognised offenders.
It was also argued that the Consorting notice was invalid because at least one of the stated persons was not a recognised offender as he did not have a relevant offence. While this person was not one of the two recognised offenders that was the subject of the consorting charge, Magistrate Magee held that his inclusion made the consorting notice invalid.
The effect of the Magistrates decision was that:
- all consorting notices that included more than one stated person where potentially invalid;
- Any consorting notice that incorrectly included a person who was not a stated offender were invalid.
Attorney General’s Reference
By reference dated 26 March 2019, the Attorney-General for the State of Queensland referred two points of law to the Court of Appeal:
Question 1 – Do you have to serve seperate notices
Do the legislative provisions in Part 6A, Chapter 2 of the PPRA require that in order that an official warning for consorting to be validly given, a separate official warning for consorting must be given for each separate stated person who is a recognised offender?
Question 2 – What happens if a stated person is not a recognised offender.
If a validly issued official warning for consorting may refer to more than one stated person as a recognised offender, and an official warning for consorting is given which nominates more than one stated person as recognised offenders but in fact one of those stated persons is not a recognised offender, does the official warning stop having effect in respect of all stated persons 24 hours after it is given, pursuant to s 53BAD(3) of the PPRA?
It was accepted at the trial that the document entitled “Official Warning for Consorting under section 53BAC of the Police Powers and Respnsabilities Act 2000” was delivered to Mr Barbaro. It read:
YOU ARE OFFICIALLY WARNED THAT THE STATED PERSON(S) IS A RECOGNISED OFFENDER, AND CONSORTING WITH THE STATED PERSON(S) ON A FURTHER OCCASION MAY LEAD TO THE COMMISSION OF THE OFFENCE OF HABITUALLY CONSORTING.”
The notice contained 15 photographs, each photograph containing under it a specified name and date of birth. The notice recorded that a copy was personally served on the respondent on 23 July 2017.
In the initial decision, Magistrate Magee said
I find that notwithstanding that the approved form provides for the giving of one warning for multiple recognised offenders, under the legislation a separate official warning must be given for each separate recognised offender. As the warning given to the defendant was one warning given to in relation to 15 purported separate recognised offenders it is not compliant with the legislation.Queensland Police Service v Harley Joe Barbaro  QMC 1
This was the primary issue in the Attorneys reference, did the legislation require a seperate offical warning for each seperate recognised offender. The Court of Appeal was divided on this issue. His Honour, Justice Boddice in his dissenting judgement agreed with the Magistrates decision. He said:
A consideration of those sections, read in the context of the legislation as a whole, and after having regard to the purpose of the legislation, supports a conclusion that an official warning for consorting is only validly given to a person in accordance with the legislation if that official warning relates to one stated person who is said to be a recognised offender.R v Barbaro; Ex party Attorney-General (Qld)  QCA 286 at 68
In his decision Justice Crow noted that he agreed with the reasons of Justice Boddice in all respects other than his Honour’s conclusion that “[i]t follows that the presently approved form is not in accordance with the legislation”. Justice Crow went on to agree with Justice McMurdo and held that a person must be warned, but the official warning did not need to be ‘repeated, offender by offender’. His Honour said:
I agree with the reasons of McMurdo JA at  that the first referral question contains an ambiguity as to what is meant by the expression “a separate official warning for consorting”. I agree with McMurdo JA that if that means that the recipient must be warned against the risk of an offence by consorting with a certain person, then clearly the first question would be answered “yes” and the second question answered “unnecessary to answer”. However, as the arguments proceeded, the intended question was whether the words of warning must be repeated, offender by offender, as in the first example given by McMurdo JA. For the reasons I have set out above, which accord with the reasons of McMurdo JA, that is not required.R v Barbaro; Ex party Attorney-General (Qld)  QCA 286 at 83
Justice McMurdo accepted the Attorney General’s argument that as long as the recipient is “unambiguously informed’ that consorting with any of the stated persons may lead to the commission of the offence the warning is valid.
Accordingly there is no requirement that the words of warning must be repeated, offender by offender. What is essential to the process is that the recipient must be warned against the risk of committing an offence by consorting with a certain person. This decision seemingly does little more that confirm that it is unnecessary for an offender to be warned in two documents rather than in the same document.
Is the warning invalid if someone is incorrectly nominated as a recognised offender?
The Court of Appeal, again by majority held that the inclusion of a person who is not a recognised offender does not of itself make the consorting notice invalid. In our view the incorrect inclusion of a person who is not a recognised offender is likely to affect the validity of the notice. Section 53BAC(1) provides the power to give an official warning for consorting
This section applies if a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders
It follows that the police officer issuing the Consorting Notice has to reasonably suspect that the person has consorted or is likely to consort with the recognised offender. If the person is not a recognised offender one has to consider the reasonableness of the officers suspicion.
Justice Boddice suggested that:
A requirement that a police officer give an official warning in respect of each stated person who is a recognised offender enhances clarity and precision. An individual warning is easily given orally and will itself serve to highlight to the person receiving the official warning the seriousness of further consorting with that individual stated person.
Future challenges to Consorting Orders
Ultimately the Court of Appeal’s decision in R v Barbaro deals with written warnings and whether one notice for 15 persons satisfies the requirement under section 53BAA of the Police Powers and Responsibilities Act. As Justice McMurdo noted, neither of Attorney General’s questions required the Court of Appeal to consider Magistrate Magee’s decision that Mr Barabaro was not given an official warning as required by the provisions of the Police Powers and Responsibilities Act. The decision was on a very narrow issue.
It is now open for an Application for leave to appeal to the High Court of Australia for a final determination of the matter.
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