Following a two day hearing in the Southport Magistrates Court, Harley Barbaro was found not guilty of Habitually Consorting contrary to section 77B of the Criminal Code of Queensland. The not guilty verdict highlighted a number of errors in the approach of the Queensland Police towards consorting notices.
Facts of the case
- On the 23 July 2017 Detective Sergeant Toni Lewis hand delivered to the defendant, a document titled “Official Warning for Consorting under section 53 BAC of the Police Powers and Responsibilities Act 2000.”
- Below that official warning were the photographs names and dates of birth of fifteen persons, three of whom are the persons with whom the defendant has been charged with habitually consorting.
- One of the fifteen stated persons ought not to have been included.
- The defendant had ongoing contact with at least three of the stated persons between the 3rd day of July 2017 and the 25th day of May 2018
- The defendant was charged with habitually consorting with at least two recognised offenders during the period.
(1) A person commits a misdemeanour if
(a) the person habitually consorts with at least two recognised offenders, whether together or separately:-
(b) and at least one occasion on which the person consorts with each recognised offender mentioned in paragraph (a) happens after the person has been given an official warning for consorting in relation toSection 77B Criminal Code Qld
(c) maximum penalty – 300 penalty units or 3 years imprisonment.
(2) For subsection (1), a person does not habitually consort with a recognised offender unless a person consorts with the
offender on at least two occasions.
(4) (in this section – Official warning, for consorting, see the Police Powers and Responsibilities Act 2000 Section 53BAA.
The Criminal Code Defines “consort” to mean the following:
(1) A person consorts with another person if the personassociates with the other person in a way that involvesseeking out, or accepting, the other persons company.
(2) For subsection (1), the persons association with the otherperson need not have a purpose related to criminal activity.
(3) Also, for subsection (1), it does not matter whether the persons association with the other person happens in person or in another way, including, for example, electronically.”Section 77A Meaning of Consort
Recognised offender is defined as “an adult who has a recorded conviction, other than a spent conviction, for a relevant offence (whether on indictment or summary conviction)”. A relevant offence is defined to mean an indictable offence for which the maximum penalty is at least five years imprisonment, and other offences against stipulated sections of the Criminal Code.
Section 53BAA of the Police Powers and Responsibilities Act 2000 defines an official warning as:
“Official warning, for consorting, means a warning given in person whether orally or in writing, that-
(a) a stated person is a recognised offender;-Section 53BAA Official warning, for consorting
(b) consorting with the stated person on a further occasion may lead to the commission of the offence of habitually consorting.”
Section 53BAC of the Police Powers and Responsibilities Act 2000 is in the following terms:-
(1) This section applies if a police officer reasonably suspects the person has consorted, is consorting or is likely to consort withone or more recognised offenders.
(3) However, before giving an official warning under subsection (2)(b), the police officer must consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity by deterring recognised offenders from establishing, maintaining or expanding a criminal network.Section 53BAC Police Powers for giving official warning or consorting
(4) If an official warning for consorting is given in writing, the warning must be in the approved form.
(5) If an official warning for consorting is given orally, the police officer must, within 72 hours after giving the warning orally, confirm the warning by giving it, in the approved form, to the person in the prescribed way.
Section 53BAD of the Police Powers and Responsibilities Act is in the following terms:
(1) An Official Warning for Consorting given in relation to astated person who is a recognised offender has effect until the stated person stops being a recognised offender.
(2) However, if an official warning for consorting is given orally, and the warning is not confirmed under section 53BAC(5), the official warning stops having effect 72 hours after it is given.
(3) Also, if an official warning for consorting is given in relation to a stated person who is not a recognised offender, the official warning stops having effect 24 hours after it is given.
(4) A person does not commit an offence against section 791 if—Section 53BAD Effect of official warning for consorting
(a) the person was required to do something under section 53BAC(2); and
(b) the court is not satisfied the police officer, at the time of making the requirement, had the suspicion mentioned in section 53BAC(1).”
Mr Barbaro challenged the validity of the consorting notice on the following basis:
- Firstly, the defendant contends that the official warning is invalid because the one warning was given for multiple recognised offenders.
- If an official warning is given in relation to a stated person who is not a recognised offender the official warning stops having effect twenty-four hours after it is given.
- The official warning was invalid because the warning was ambiguous
- Information conveyed by the serving police officer at the time of providing the warning renders the service “ineffective”.
- the prosecution failed to prove the pre-conditions necessary for the issue of a valid warning
- the evidence falls short of proving that the defendant habitually consorted with the recognised offenders named in the charge
 Multiple recognised offenders on one official warning
Under section 32C of the Acts Interpretation Act 1954, in an Act words in the singular include the plural. This is of course subject to the rider that the Acts Interpretation Act31954 may be displaced, wholly or partly, by a contrary intention appearing in any Act. Her Honour held that as the legislation is one which affects personal liberty, it should be construed strictly in favour of the defendant.
Her Honour also had regard to the the explanatory notes to the serious and Organised Crime and Amendment Bill of 2016, particularly noting:
“The Bill provides that it will be a misdemeanour (i.e.an indictable offence) for a person to consort with two recognised offenders after having been given an official warning by police with respect to each of those individuals. (courts underlining).Queensland Police Service V Harley Joe Barbaro  QMC 1 at 18
In determining that the police had made an error in serving a notice with multiple offenders on the one consorting notice, 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 fifteen purported separate recognised offenders it is not compliant with the legislation.Queensland Police Service V Harley Joe Barbaro  QMC 1 at 23
 Stated person not a recognised offender
Given that one of the stated persons was not a recognised offender, the Court had regard to the provisions of Section 53BAD which provides that an official warning given in relation to a stated person who is a recognised offender has effect until the stated person stops being a recognised offender. Her Honour reasoned that if an official warning is given in relation to a stated person who is not a recognised offender the official warning stops having effect twenty-four hours after it is given in relation to all stated persons.
The section does not distinguish between that part of the warning given in relation to the stated person with the official warning itself. In this case one of the stated persons was not a recognised offender, resulting in the official warning ceasing to have effect twenty four hours after it was given.Queensland Police Service V Harley Joe Barbaro  QMC 1 at 21
 Warning was ambiguous
Her Honour held that the failure to provide multiple warnings and including 15 people on the one consorting notice made the warning ambiguous. It was said that a warning was required to be given in relation to each stated offender so as to avoid any ambiguity.
The warning on the “Official Warning for Consorting,” given to the defendant, adding as it does the letter “s” to the word “person” when multiple offenders are named in the warning, is on its face unclear as to whether the offence occurs upon consorting with one or more of all of the stated persons.Queensland Police Service V Harley Joe Barbaro  QMC 1 at 20
 incorrect information at time of service
In evidence Exhibit 2 is a recording of the service of the warning. Detective Sergeant Tony Lewis stated “What I’ve got here is an Official Warning for Consorting notice”. She went on to say “You are officially warned that the stated persons on this sheet are recognised offenders and consorting with the stated persons on a further occasion may lead to the commission of the offence of habitually consorting. So that means that you cannot consort with these people.” She then proceeds to list the names of all of the persons contained on the Official Warning . She then says, “That means that you can’t have any contact with them, cannot associate with them, you can’t phone them or contact them on Facebook or any social media or you may be committing an offence.”Queensland Police Service V Harley Joe Barbaro  QMC 1 at 25
The Magistrate held the explanation of prohibited contact was not strictly accurate, the explanation ought to have left the defendant in no doubt that further association with any of the persons named on the official warning document may result in the commission of an offence. Her Honour found that if anything, the verbal explanation went beyond the actual legal consequences of the giving of the official warning. That of itself did not, invalidate the notice as it was made clear that further contact with any of the persons stated in the notice may, as opposed to will, result in the commission of an offence.
 Pre-conditions necessary for the issue of a valid warning
Section 53BAC(3) of the Police Powers and Responsibilities Act 2000 requires the police officer to consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity by deterring recognised offenders from establishing, maintaining or expanding a criminal network.
The only evidence adduced about the matters leading to the delivery of the official warning was the response of Detective Sergeant Lewis to the question, “Why did you serve the notice?” Detective Sergeant Lewis replied “In an attempt to disrupt the criminal network known as the Villans which I believed Barbaro was a member of. We were trying to disrupt their criminal activity.”
The Court was not satisfied that this met the necessary test and ruled that the consorting notice was accordingly invalid.
There is no evidence from which I could be satisfied that the reasonable suspicion required as a prerequisite to the issue of the official warning existed. Accordingly, the prosecution has failed to prove that the warning was validly given.Queensland Police Service V Harley Joe Barbaro  QMC 1 at 29
 Evidence of habitually consorting
Section 77B of the Criminal Code provides that a person does not habitually consort with a recognised offender unless they consort with the offender on at least two occasions, that is not a definition of habitually consorting, but rather is a minimum requirement that must be met before there can be a finding of habitual consorting. The term “habitual consorting” has been the subject of judicial interpretation with reference to the New South Wales equivalent of s77B of the Criminal Code:
“At the time s93X was introduced, the term ‘habitually consort’ had a received meaning. The fundamental ingredient of association of this kind is companionship or seeking out the company of the other person. It follows that not every meeting with a convicted offender would qualify has habitually consorting. The fact that the legislation prescribes a minimal level of association necessary for the offence under s93X does not exclude recourse to the received meaning of ‘habitually consort’ in order to identify what further may be required.”Tajjour v New South Wales  HCA 35 at paragraph 101
The High Court referred to the decision of Dias v O’Sullivan where the court said:
“The requirement that consorting be habitual involved ‘a continuance and permanence of some tendency, something that has developed into a propensity that is present from day to day.Dias v O’Sullivan per Mayo J
In relation to two of the stated persons, Her Honour found that the frequency and nature of the contact between with defendant and stated persons, and the ease of their social interaction satisfies me that the consorting between the defendant and stated persons was habitual
In relation to the third stated person, TAB, Her Honour found that the interactions could be summarised as:
- TAB was one of the males present in the footage from the Hilton Hotel Surfers Paradise on 5 November 2017 The first section of footage shows the defendant, BJM, TAB and three women waiting for the lift together in the foyer of the Hilton Hotel. It is clear that the group are familiar with and socially interacting with each other. The second section of footage is from the main entrance of the hotel and shows the defendant, BJM and TAB socially interacting while apparently waiting to be admitted access to the hotel.
- TAB is in the photograph of 10 males, including the defendant and Mortimer taken on 6 November 2017
- Timothy Johnson gave evidence on the 16 December 2017 he was in uniform performing crowd control at a boxing event at the QT Hotel. He initially observed TAB present in the company of his brother and two females. Towards the end of the evening he noticed that there were more people in the group, one of whom included the defendant. He was unable to say how long the defendant and TAB had been in each other’s company that evening.
- In a telephone recording between the defendant and AS on the 23 March 2018 the defendant referred to having met Todd Barnes at the ANA the previous evening.
Her Honour found that the above contact did not meet the test as set out in the High Court deciosn of . Her Honour said:
I am not satisfied on the evidence that the meetings on the 16 December 2017 and the 22 March 2018 were deliberate or pre- arranged. They could well have been accidental. There is no evidence that the interaction was in any way prolonged. The evidence does not persuade me beyond a reasonable doubt that the consorting with Todd Anthony Barnes could properly be described as habitual.Queensland Police Service V Harley Joe Barbaro  QMC 1 at 46
Click on the link to read the decision in the matter of Queensland Police Service V Harley Joe Barbaro  QMC 1. Note that the decision was the subject of a Reference under s 669A(2A) Criminal Code. The Court of Appeal found that the there was no error in providing a Consorting Notice containing 15 stated persons. Nor was the incorrect inclusion of a nominated person fatal to the validity of the Consorting Notice. Read our summary of the Court of Appeal decision https://gatenbylaw.com.au/barbaro-consorting-notices/
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