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Steel, Alex --- "Consorting in New South Wales: Substantive Offence or Police Power?" [2003] UNSWLawJl 40; (2003) 26(3) UNSW Law Journal 567

[*] Senior Lecturer, Faculty of Law, University of New South Wales. Warm thanks to David Dixon for his very helpful and thoughtful comments on drafts of this paper.

[1] Summary Ofences Act 1988 (NSW) as amended by Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW).

[2] Crimes (Sentencing Procedure) Act 1999 (NSW), as amended by Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001 (NSW). The operation of the Act is currently subject to review by the NSW Ombudsman.

[3] David Dixon, Law in Policing: Legal Regulation and Police Practices (1997) 68 ff.

[4] There is, however, reference in the NSW parliamentary debates in 1929 to its ‘recent’ introduction to Western Australia, though this is probably a mistaken reference to South Australia.

[5] [1935] HCA 18; (1935) 52 CLR 739, 743.

[6] [1949] SAStRp 15; (1949) SASR 195. 200-1.

[7] [1979] HCA 23; (1979) 143 CLR 376, 383.

[8] [1930] SAStRp 62; [1930] SASR 318.

[9] Ibid 327.

[10] Auld v Purdy (1933) 50 WN (NSW) 219, 219–220.

[11] Clarke v Nelson [1936] QLR 17, 19 (Macrossan SPJ).

[12] Dias v O’Sullivan [1949] SAStRp 15; (1949) SASR 195, 200–1.

[13] Auld v Purdy (1933) 50 WN (NSW) 219.

[14] (1952) QSR 119, 126 (Townley J).

[15] Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97.

[16] Ibid 100–2.

[17] [1953] NZLR 909.

[18] Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376, 391–2.

[19] Ibid 385.

[20] [1902] NZGazLawRp 51; (1902) 21 NZLR 573, 575-6.

[21] Dias v O’Sullivan [1949] SAStRp 15; (1949) SASR 195, 200-1. This approach was approved in Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376, 383.

[22] See, eg, Ryan v R [1967] HCA 2; (1967) 121 CLR 205; Falconer v R [1990] HCA 49; (1990) 171 CLR 30.

[23] [1934] ALR 371, 372. See also Auld v Purdy (1933) 50 WN (NSW) 219, 220.

[24] Apparently this is based on dicta of Bavin J in Ex parte Corbett re Kelly 57 WN (NSW) 51 that ‘[e]vidence that an accused was seen in the company of reputed criminals on seven occasions within six months … is sufficient to support a charge of habitually consorting’: in Cheryl-Ann Brunskill, ‘Consorting’ (2003) 11 Policing Issues and Practice Journal 1, 2.

[25] Six bookings of meetings at a racecourse might suggest habit, but six bookings made in various stores such as supermarkets might not. In such environments, politeness might necessitate the exchange of pleasantries although the meeting was accidental.

[26] Previously this requirement was contained in s 56 of the Justices Act 1901 (NSW).

[27] The initiating procedure is now achieved by the issuing of a court attendance notice – see Criminal Procedure Act 1986 (NSW) s 173.

[28] Conviction based on reputation remains the approach taken in jurisdictions other than NSW. In South Australia, Victoria and Tasmania however it must be proved that the defendant consorts with ‘reputed thieves’. There is some judicial support for the argument that this is a narrow concept and that a reputation as a fraudster would fall outside the scope of the offence: see Dias v O’Sullivan [1949] SAStRp 15; (1949) SASR 195, 204.

[29] See, eg, the discussion in Dias v O’Sullivan [1949] SAStRp 15; (1949) SASR 195, 202.

[30] Ibid 203.

[31] Ibid.

[32] Ibid (citations omitted).

[33] The often referred to judgment of Stout CJ in O’Connor v Hammond [1902] NZGazLawRp 51; (1902) 21 NZLR 573, 576 stated:

In my opinion, if persons had been several times convicted of theft, and this was known, they would properly be classed as ‘reputed’ thieves. They might, however, obtain that unenviable reputation without conviction. Nor need their reputation be known to all the community. It would be sufficient if several in the community believed, or if the police believed it and acted on their knowledge, and person who associated with them knew of this repute amongst the police.

[34] See, eg, Brealy v Buckley [1934] ALR 371; Gabriel v Lenthall [1930] SAStRp 62; [1930] SASR 318; Reardon v O’Sullivan [1950] SAStRp 4; (1950) SASR 77; Young v Bryan [1962] TASStRp 30; [1962] Tas SR 323.

[35] New South Wales, Parliamentary Debates, Legislative Assembly, 23 April 1979, 4924 (Mr Walker, Attorney-General).

[36] New South Wales, Parliamentary Debates, Legislative Assembly, 23 April 1979, 495 1–2 (Peter Anderson).

[37] This had been previously recognised in Waterman v Police [1968] NZHC 28; [1968] NZLR 689, 690 where McCarthy J noted that: ‘Persons may be reputed thieves even though they have never been convicted … Conversely, it may be that people have convictions yet have no such reputation,’ however, he went on to say the general practice was to prove reputation by relying on prior convictions.

[38] Since 1979, the offence has explicitly required proof of knowledge as an element of the offence: s 546A Crimes Act 1900 (NSW). Prior to 1979, knowledge was an implied element of the offence.

[39] [1950] SAStRp 4; (1950) SASR 77, 81. See also Stevens v Andrews [1909] NZGazLawRp 118; (1909) 28 NZLR 773 and the cases cited therein.

[40] See, eg, Auld v Purdy (1933) 50 WN (NSW) 218.

[41] O’Connor v Hammond [1902] NZGazLawRp 51; (1902) 21 NZLR 573, 575–6.

[42] Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376, 385.

[43] It has, however, prevented the ‘booking’ of persons associating with persons considered ‘undesirable’ by police – unless police have previously gained a conviction against that person for an indictable offence.

[44] Crimes Act 1900 (NSW) s 31C.

[45] Crimes Act 1900 (NSW) s 44.

[46] Crimes Act 1900 (NSW) s 308D.

[47] Crimes Act 1900 (NSW) 154.

[48] Protection of the Environment Act 1977 (NSW) s 120.

[49] See, eg, R v Laws [2000] NSWSC 885; (2000) 116 A Crim R 70; Attorney General (NSW) v Radio 2UE Pty Ltd and Jones [1992] NSWCA 40762/91 (Unreported judgement, 28 August 1992); ICAC v Cornwall (1993) 38 NSWLR 207.

[50] See below, Part III.

[51] See Jeffrey Adler, ‘A Historical Analysis of Vagrancy’ (1989) 27 Criminology 209; Chambliss, ‘A Sociological Analysis of the Law of Vagrancy’ (1964) 12 Social Problems 67.

[52] Sir James Stephen traces the vagrancy laws back to the passing of the Statutes of Labourers 1349 and 1350. These statutes required every man and women under the age of 60, and not having means of their own, to work for anyone who required it of them. Payment was at the customary rate of wages. This form of wage slavery was apparently in response to the breakdown of serfdom and an acute labour shortage caused by the Black Death. Labourers were not permitted to move away from their existing place of residence and anyone refusing to work could be imprisoned: Stephen, A History of the Criminal Law of England (1883) vol III, 203–5.

[53] James Sharpe, Crime in Early Modern England: 1550–1750 (1984) 100 ff.

[54] Enid Campbell and Harry Whitmore, Freedom in Australia (2nd ed, 1973) 135.

[55] Ibid 136.

[56] New Zealand, Parliamentary Debates, 10 July 1901, 272 (Mr G W Russell).

[57] See, eg, Peter Grabosky, Sydney in Ferment: Crime, Dissent and Oficial Reaction 1788 to 1973 (1977).

[58] Popular imagery, most probably assisted by the reporting of the Truth, saw the typical razor as a straight edge ‘cut-throat’ razor. It appears, however, that it was more likely to be a safety razor inserted into a cork – a weapon more easily concealed: see, eg, New South Wales, Parliamentary Debates, Legislative Council, 3 October 1928, 533 (F S Boyce, Attorney-General).

[59] Larry Writer, Razor: A True Story of Slashers, Gangsters, Prostitutes and Sly Grog (2001) 48.

[60] ‘Razor-slashing: A Terrible Weapon’, Sydney Morning Herald (Sydney), 7 January 1928, 26.

[61] ‘The Razor Gang’, Truth (Sydney), 12 June 1927, 15.

[62] ‘Wipe Out Gang Terrorism’, Truth (Sydney), 15 January 1928, 23.

[63] ‘Sweep the Gangsters from Sydney’s Streets’, Truth (Sydney), 16 September 1928, 24.

[64] See, eg, ‘Wipe Out Gang Terrorism’, above n 62; ‘Battle Between Police and Crooks’, Truth (Sydney), 12 January 1930, 15.

[65] ‘The Razor Gang’, above n 61.

[66] ‘Wipe Out Gang Terrorism’, above n 62.

[67] See, eg, ‘Police Powers Must Be Extended’, Truth (Sydney), 25 March 1928, 12.

[68] ‘Sweep the Gangsters from Sydney’s Streets’, above n 63.

[69] In addition to the razor gang provisions it contained a large number of disparate amendments ranging from fraudulent appropriation to NSW’s first drink-driving offences.

[70] New South Wales, Parliamentary Debates, Legislative Council, 3 October 1928, 533 (F S Boyce, Attorney-General).

[71] Ibid 540.

[72] ‘The First Blow’, Truth (Sydney), 30 September 1928, 12.

[73] ‘Get to Work on the Vag Act!’, Truth (Sydney), 16 September 1928, 21.

[74] Ibid.

[75] New South Wales, Parliamentary Debates, Legislative Assembly, 25 September 1929, 327 (Francis Burke).

[76] New South Wales, Parliamentary Debates, Legislative Assembly, 25 September 1929, 325 (Captain Frank Chaffey, Colonial Secretary).

[77] New South Wales, Parliamentary Debates, Legislative Assembly, 22 October 1929, 682 (Captain Frank Chaffey, Colonial Secretary).

[78] New South Wales, Parliamentary Debates, Legislative Assembly, 22 October 1929, 683–4 (John Lang). The same concerns were expressed by William Davies: New South Wales, Parliamentary Debates, Legislative Assembly, 22 October 1929, 686 (William Davies).

[79] New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 1929, 730 (Harold Jaques).

[80] New South Wales, Parliamentary Debate, Legislative Assembly, 23 October 1929, 731 (Andrew Lysaght).

[81] It is also worth noting that this article draws on parliamentary debate and tabloid newspaper agitation, neither of which is necessarily a reliable source for the real decisions. Further research into Cabinet papers and Police archives – where available – may be able to shed some better light on the issue.

[82] See, eg, Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (3rd ed, 2002).

[83] See, eg, Erich Goode and Nachman Ben-Yehuda, Moral Panics: The Social Construction of Deviance (1994).

[84] New South Wales, Parliamentary Debates, Legislative Assembly, 22 October 1929, 723 (Captain Frank Chaffey, Colonial Secretary).

[85] ‘Criminals Migrate to Victoria: Effect of New Law’, Sydney Morning Herald (Sydney), 9 January 1930, 12.

[86] ‘Battle Between Police and Crooks’, Truth (Sydney), 12 January 1930, 15.

[87] ‘Hard hit by Consorting Clause’, Truth (Sydney), 2 February 1930, 15.

[88] Interestingly, it seems that there was at this stage no requirement of a minimum number of ‘bookings’.

[89] Writer, above n 59, 130.

[90] ‘Whistling Bullets’, Truth (Sydney), 16 February 1930, 12.

[91] Despite going overseas initially (see ‘Tilly Told to Get Her Ticket in a Hurry’, Truth (Sydney), 9 February 1930, 20), Devine returned in 1931: see ‘Lively “Welcome Home” for Tilly Devine’, Truth (Sydney), 11 January 1931, 18. For a general history of Devine see, eg, Alfred McCoy, Drug Traffic: Narcotics and Organised Crime in Australia (1980) ch 2; Grabosky, above n 57; Writer, above n 59.

[92] See ‘Underworld Hag Queen of Long Bay’, Truth (Sydney), 1 February 1931, 1. For a general history of Leigh see, eg, Writer, above n 59; Grabosky, above n 57; McCoy, above n 91.

[93] New South Wales, Parliamentary Debates, Legislative Assembly, 22 October 1929, 723 (Captain Frank Chaffey, Colonial Secretary).

[94] Detective Bill Harris interviewed in Writer, above n 59, 128.

[95] Superintendant Ray Blissett, former Head of the Consorting Squad interviewed in Writer, above n 59, 129.

[96] The Consorting Squad was a part of the Criminal Investigation Branch and was in existence from 1929– 1987: NSW Police Service, Comprehensive Review of Criminal Investigation, 25 September 1995, 93.

[97] Writer, above n 59, 132.

[98] Karl Alderson, Powers and Responsibliities: Reforming NSW Criminal Investigation Law (PhD thesis, University of New South Wales, 2001) 45–7. Of interest was the fact that such a proposal faced strong opposition from both police and the two tabloid papers of the day – the Daily Mirror and Daily Telegraph: at 46.

[99] This involved the repeal of the Summary Ofences Act 1970 (NSW) and its replacement with a range of offences that placed ‘reasonable person’ constraints on police use of public order powers. As part of this reform package, consorting was moved into the Crimes Act 1900 (NSW). In so doing, the elements of the offence were amended to remove reliance on the reputation of the person consorted with and replaced with knowledge that the person had been convicted of an indictable offence. There does not appear to have been much detailed debate about the amendment to the offence of consorting itself. The repeals and reforms were rushed through Parliament as a package of cognate Bills and little time for discussion was permitted. As the Bills were part of a package that included laws on prostitution, demonstrations, public drunkenness, offensive behaviour and nude bathing, the reform of consorting was given little attention. It was, however, discussed in two Government speeches, the Attorney-General’s second reading speech and a speech by Mr Anderson.

[100] This campaign is reviewed in Sandra Egger and Mark Findlay, ‘The Politics of Police Discretion’ in Mark Findlay and Russell Hogg (eds), Understanding Crime and Criminal Justice (1988) 209. The chapter recounts the highly political campaign waged by the Police Association, the organisation representing police officers. It included placing a full page advertisement in the Daily Telegraph warning that the repeals meant that police could ‘no longer guarantee your safety’ on public streets, and numerous radio and television interviews. Given that consorting was merely being amended in comparison to the repeal of the Summary Ofences Act 1970 (NSW), little direct debate centred on consorting, though it can be assumed that the general police concerns about the restriction in police discretionary powers would have applied to the reform of consorting.

[101] Keenan, ‘Bring Back Old Consorting Laws, Detectives Say’, Sydney Morning Herald (Sydney), 17 July 1985, 3.

[102] NSW Police Service, Comprehensive Review of Criminal Investigation, 25 September 1995, 93.

[103] David Dixon and Lisa Maher, ‘The Policing of Drug Offences’ in J Chan, David Dixon, Lisa Maher and Julie Stubbs, Policing in Cabramatta: Report for the NS W Police Service (1998, unpublished) 73.

[104] Ibid 73, fn 13.

[105] Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Vagrancy Act 1966: Final Report (2002). The Government is still considering the recommendations.

[106] Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Vagrancy Act 1966: Final Report (2002) 11. One particular concern of the Committee was that breaking up meetings of criminals merely displaced their meeting venues and constituted no more than harassment. The police responded:

Senior Sergent Mullett: It is a real preventative tool. In terms of harassment, our members are more accountable – and rightly so – than they ever have been. They have to act professionally. It is not a matter of arresting people for consorting. It is about criminals habitually consorting with each other; it is about going through a proper professional process. At present we have no problem in the retention of certain policy accountabilities from a management perspective within the Victoria Police Force. We would like to think our members these days act extremely professionally and are absolutely accountable.

[107] Evidence of Acting Commander Ditchburn quoted in Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Vagrancy Act 1966: Final Report (2002) 12.

[108] Evidence of Detective Inspector Sitlington and Detective Senior Sergent Chidgey quoted in Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Vagrancy Act 1966: Final Report (2002) 12.

[109] Comprehensive Review of Criminal Investigation, NSW Police Service, 25 September 1995, 92–104.

[110] Ibid 99.

[111] Ibid 104.

[112] Ibid.

[113] ‘Consorting Laws Hit City Gangs’, Daily Telegraph (Sydney), 5 July 2001, 13.

[114] ‘Criminals Warned’, Manly Daily (Sydney), 1 February 2002, 5.

[115] Charles Miranda, ‘Boys Are Back In Town – 10 Gangs Spreading Fear and Violence’, Daily Telegraph (Sydney), 28 April 2003, 5.

[116] Chulov, ‘War on Bikies Goes National’, The Australian (Sydney), 18 March 2002, 5.

[117] (2003) 11 (1) Policing Issues and Practice Journal 1.

[118] Number of charges with a guilty determination, not the number of convicted persons.

[119] Principal offence is defined as the charge for which a guilty determination was reached and received the most serious penalty.

[120] As consorting is a continuing offence, the bookings would all be instances of the one ongoing activity.

[121] Cheryl-Ann Brunskill, ‘Consorting’, (2003) 11(1) Policing Issues and Practice Journal 1, 1. Apparently these strategies had been highly effective for the Police Crime Coordinator in his previous work in Cabramatta.

[122] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21.

[123] Rule-bound approaches to policing have been effectively criticised: see, eg, David Bradley, Neil Walker, and Roy Wilkie, Managing the Police (1986).

[124] See, eg, the claims made by Victoria Police discussed above in the text accompanying nn 105–108.

[125] (1983) 32 SASR 379.

[126] Ibid 380.

[127] See Dixon, above n 3, 68 ff.

[128] Ibid 310.

[129] Crimes (Sentencing Procedure) Act 1999 (NSW) pts 4A and 8A.

[130] Crimes (Sentencing Procedure) Act 1999 (NSW) s 100E.

[131] Crimes (Sentencing Procedure) Act 1999 (NSW) s 100E. The order cannot prohibit the offender from associating with his or her close family: s 100A(1).

[132] Crimes (Sentencing Procedure) Act 1999 (NSW) s 17A(2).

[133] Crimes (Sentencing Procedure) Act 1999 (NSW) s 100B.

[134] Law Reform Commission of Western Australia, Report on Police Act Ofences, Project No 85 (1992) 41– 2.

[135] Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Vagrancy Act 1966: Final Report (2002) 12–13.

[136] Dixon, above n 3, 316.