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Queensland Police Service v Barbaro[2019] QMC 1

Queensland Police Service v Barbaro[2019] QMC 1

Queensland Police Service v Barbaro [2019] QMC 1

 [2019] QMC 1

PARTIES:

Queensland Police Service

V

Harley Joe Barbaro

FILE NO:

Sout-Mag 00011373/18

PROCEEDING:

Trial

ORIGINATING COURT:

Southport

DELIVERED ON:

8 March 2019

DELIVERED AT:

Southport

HEARING DATES:

6 & 7 February 2019

MAGISTRATE:

Magee K

ORDER:

The defendant is found not guilty .

COUNSEL:

Ms Salzman for the prosecution

Mr M Longhurst for the defendant

SOLICITORS:     

Queensland Police Prosecution Service for the QPS

Moloney MacCallum Abdelshahied for the defendant

LEGISLATION:

Criminal Code ss 77A, ss 77B, Police Powers and Responsibilities Act ss 53BAA, 53BAC, 53BAD,  Acts Interpretation Act ss 4 and 32C.

CATCHWORDS:

The offence of habitually consorting with recognised offenders – whether one official warning for consorting can be given for multiple recognised offenders – pre-requisites for the validity of an official warning for consorting – meaning of phrase ”habitually consort”.

  1. [1]
    The defendant is charged that between the 3rd day of July 2017 and the 25th day of May 2018 at Gold Coast in the State of Queensland, he habitually consorted with at least two recognised offenders namely Sonny Brandon Jenkins, Todd Anthony Barnes, and Brodie Jason Mortimer together and separately and at least one of the consorting happened after the defendant had been given an official warning for consorting in relation to Sonny Brandon Jenkins, Todd Anthony Barnes and Brodie Jason Mortimer.

Particulars

  1. [2]
    The particulars of the charge, which have been admitted by the defendant, are as follows:-
  1. The defendant was given an official written notice for consorting in the approved form on 23 July 2017.
  1. On 4 July 2017 the defendant was residing with Sonny Brandon Jenkins.
  1. On 23 July 2017 the defendant accepted a phone call from Sonny Brandon Jenkins from the Brisbane Correctional Centre and had a conversation.
  1. On 29 September 2017 the defendant met with Sonny Brandon Jenkins at Brisbane Correctional Centre
  1. On 19 October 2017 the defendant met with Sonny Brandon Jenkins at Brisbane Correctional Centre.
  1. On 2 November 2017 the defendant met with Sonny Brandon Jenkins at Brisbane Correctional Centre.
  1. On 5 November 2017 the defendant met with Brodie Jason Mortimer at the Hilton Hotel in Surfers Paradise.
  1. On or about 6 November 2017 the defendant met with Todd Anthony Barnes and Brodie Jason Mortimer.
  1. On or before 23 November 2017 the defendant met with Brodie Jason Mortimer.
  1. On 23 November 2017 the defendant accepted a phone call from Sonny Brandon Jenkins from the Brisbane Correction Centre and had a conversation.
  1. On 24 November 2017 the defendant accepted a phone call from Sonny Brandon Jenkins from the Brisbane Correction Centre and had a conversation.
  1. On or before the 25 November 2017, the defendant met with Brodie Jason Mortimer.
  1. On 25 November 2017 the defendant accepted a phone call from Sonny Brandon Jenkins from the Brisbane Correction Centre and had a conversation.
  1. On 2 December 2017 the defendant met with Brodie Jason Mortimer in Surfers Paradise.
  1. On 2 December 2017 the defendant accepted a phone call from Sonny Brandon Jenkins from the Brisbane Correction Centre and had a conversation.
  1. On 7 December 2017 the defendant met with Sonny Brandon Jenkins at the Brisbane Correctional Centre.
  1. On 16 December 2017 the defendant met with Todd Anthony Barnes at the QT, Surfers Paradise.
  1. On 20 December 2017 the defendant accepted a call from Sonny Brandon Jenkins from the Woodford Correctional Centre and had a conversation.
  1. On 26 January 2017 the defendant met with Sonny Brandon Jenkins at the Woodford Correctional Centre.
  1. On 9 February 2018 the defendant accepted a phone call from Sonny Brandon Jenkins from the Woodford Correctional Centre and had a conversation.
  1. On 10 February 2018 the defendant accepted a phone call from Sonny Brandon Jenkins from the Woodford Correctional Centre and had a conversation.
  1. On 11 February 2018 the defendant accepted a phone call from Sonny Brandon Jenkins from the Woodford Correctional Centre and had a conversation.
  1. On 10 March 2018 the defendant accepted three phone calls from Sonny Brandon Jenkins from the Arthur Gorrie Correctional Centre and had a conversation.
  1. On 19 March 2018 the defendant accepted a call from Sonny Brandon Jenkins from the Arthur Gorrie Correctional Centre and had a conversation.
  1. On 22 March 2018 the defendant met with Todd Anthony Barnes at ANA Hotel, Surfers Paradise.
  1. On 23 March 2018 the defendant accepted a call from Sonny Brandon Jenkins from the Arthur Gorrie Correctional Centre and had a conversation.
  1. On 25 March 2018 the defendant accepted a call from Sonny Brandon Jenkins from Arthur Gorrie Correctional Centre and had conversation.
  1. On 4 April 2018 the defendant accepted a call from Sonny Brandon Jenkins from the Arthur Gorrie Correctional Centre and had a conversation.
  1. On 24 May 2018 the defendant was residing at 58 Blair Athol Crescent, Bundall with Brodie Jason Mortimer.
  1. That in relation to admissions 2-29 admits that his conduct included associating with the other person or persons in a way that involved seeking out, or accepting, the other persons company.

The Legislation

  1. [3]
    Section 77B of the Criminal Code Act 1899 provides:-

77B – Habitually consorting with recognised offenders.

  1. (1)
    A person commits a misdemeanour if - 
  1. (a)
    the person habitually consorts with at least two recognised offenders, whether together or separately:-
  1. (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 to the offender.
  1. (c)
    maximum penalty – 300 penalty units or 3 years imprisonment.
  1. (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.
  1. (3)
    ………..
  1. (4)
    (in this section –

Official warning, for consorting, see the Police Powers and Responsibilities Act 2000 Section 53BAA.

  1. [4]
    Section 77A of the Criminal Code Act 1999 provides as follows:

77A Meaning of Consort

  1. (1)
    A person consorts with another person if the person associates with the other person in a way that involves seeking out, or accepting, the other persons company.
  1. (2)
    For subsection (1), the persons association with the other person need not have a purpose related to criminal activity.
  1. (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.”
  1. [5]
    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.
  1. [6]
    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-

  1. (a)
    a stated person is a recognised offender;-
  1. (b)
    consorting with the stated person on a further occasion may lead to the commission of the offence of habitually consorting.”
  1. [7]
    Section 53BAC of the Police Powers and Responsibilities Act 2000 is in the following terms:- 

53BAC Police Powers for giving official warning or consorting.

  1. (1)
    This section applies if a police officer reasonably suspects the person has consorted, is consorting or is likely to consort with one or more recognised offenders.
  1. (2)
    The police officer may stop the person and require the person to remain at the place where the person is stopped for the time reasonably necessary for the police officer to do any or all of the following—
  1. (a)
    confirm or deny the police officer’s suspicion, including, for example, by exercising a power under section 40 or 43B;
  1. (b)
    give the person an official warning for consorting;
  1. (c)
    if the official warning is given orally—confirm under subsection (5) the official warning.

Note—

Failure to comply with a requirement given under this subsection is an offence against section 791.

  1. (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.
  1. (4)
    If an official warning for consorting is given in writing, the warning must be in the approved form.
  1. (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.
  1. (6)
    Unless the contrary is proved—
  1. (a)
    an approved form given by post is taken to have been received by the person to whom the form was addressed when the form would have been delivered in the ordinary course of post; and
  1. (b)
    an approved form given by electronic means is taken to have been received by the person to whom the form was sent on the day the form was sent to the electronic address nominated by the person to a police officer.
  1. (7)
    If practicable, the giving of an official warning under subsection (2)(b) must be electronically recorded.
  1. (8)
    To remove any doubt, it is declared that—
  1. (a)
    an official warning for consorting may be given to a person in relation to a recognised offender before, during or after the person has consorted with the recognised offender; and
  1. (b)
    a failure to comply with subsection (3) does not affect the validity of an official warning for consorting.
  1. (9)
    In this section—

criminal activity means the commission of a relevant offence under the Criminal Code, section 77.

electronic address includes an email address and a mobile phone number.

electronic means includes by email, multimedia message and SMS message.

prescribed way, for giving an approved form to a person, means—

  1. (a)
    delivering the form to the person personally; or
  1. (b)
    sending the form by electronic means to the electronic address nominated by the person to a police officer; or
  1. (c)
    sending the form by post or certified mail to the person at the last known or usual place of residence or business of the person or the last known or usual postal address of the person.

recognised offender includes a person who a police officer reasonably suspects is a recognised offender.

Example of when a police officer might reasonably suspect a person is a recognised offender—

A police officer reasonably suspects a person has been convicted of an indictable offence. The police officer is unable to confirm the nature of the indictable offence, or whether the conviction is spent, due to the unavailability of the person’s complete criminal history or the application of the Criminal Law (Rehabilitation of Offenders) Act 1986. However, the police officer reasonably suspects the person is a recognised offender.

SMS message means a text message sent using the mobile phone service known as the short messaging service.”

  1. [8]
    Section 53BAD of the Police Powers and Responsibilities Act is in the following terms:

53BAD Effect of official warning for consorting

  1. (1)
    An Official Warning for Consorting given in relation to a stated person who is a recognised offender has effect until the stated person stops being a recognised offender.
  1. (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.
  1. (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.
  1. (4)
    A person does not commit an offence against section 791 if—
  1. (a)
    the person was required to do something under section 53BAC(2); and
  1. (b)
    the court is not satisfied the police officer, at the time of making the requirement, had the suspicion mentioned in section 53BAC(1).”

Relevant Facts

  1. [9]
    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.” 
  1. [10]
    The form was in the approved form. It contained an official warning in these terms: “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.” 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.[1]
  1. [11]
    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 evidence also discloses that one of the stated persons named in the official warning was not a recognised offender. [2]

The Validity of the Warning

  1. [12]
    Notwithstanding the admission by the defendant that he was given an official written notice for consorting in the approved form on 23 July 2017, he disputes the validity of the warning. The prosecution did not object to the defendant’s submissions about the validity of the warning notwithstanding the admission. In this regard I note that the admission pertains to the giving of a “notice”, rather than a “warning.” In the circumstances, I am satisfied that the admissions did not include an admission that the official warning for consorting was validly given.
  1. [13]
    The defendant challenges the official warning on a number of bases. Firstly, the defendant contends that the official warning is invalid because the one warning was given for multiple recognised offenders. The defendant contends that an official warning can only be given in relation to one recognised offender. The submission is based on the definition of official warning as being a document given in relation to “a recognised offender” for consorting with “a stated person.”
  1. [14]
    Under section 32C of the Acts Interpretation Act 1954, in an Act words in the singular include the plural.
  1. [15]
    This is of course subject to the rider that the Acts Interpretation Act 1954 may be displaced, wholly or partly, by a contrary intention appearing in any Act.[3]  Accordingly unless there was a contrary intention appearing in any Act, an official warning could be given providing that stated persons are recognised offenders and consorting with the stated persons on a further occasion may lead to the commission of the offence of habitually consorting.
  1. [16]
    The issue then is whether the application of section 32 of the Acts Interpretation Act 1954 has been displaced.
  1. [17]
    As the legislation is one which affects personal liberty, it should be construed strictly in favour of the defendant.[4] 
  1. [18]
    The explanatory notes to the serious and Organised Crime and Amendment Bill of 2016, in relation to the creation of the offence with which the defendant has been charged state:

“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. (my underlining). 

     They also state ‘The Bill also amends the Police Powers and Responsibilities Act 2000 to facilitate the giving of the official warnings for the consorting offence’.

  1. [19]
    It appears from the explanatory notes that an official warning is to be given in respect to each recognised offender. Further it contemplates the giving of multiple warnings”.
  1. [20]
    Once the warning has been given, conduct that would not otherwise be unlawful, may result in the commission of a criminal offence. Accordingly, it is of vital importance that the warning clearly and accurately identifiy the conduct that may give rise to the commission of an offence. 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.
  1. [21]
    Further, the provisions of Section 53BAD provide 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, and 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. 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.
  1. [22]
    These matters persuade me that the legislation has manifested an intention contrary to Section 32C of the Acts Interpretation Act 1954 insofar as Section 53BAA of the Police Powers and Responsibilities Act 2000 is concerned.
  1. [23]
    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.
  1. [24]
    The defendant further contends that the official warning was invalid because the warning was ambiguous. I have already dealt with this in finding that a warning was required to be given in relation to each stated offender so as to avoid any ambiguity.
  1. [25]
    The defendant further contends that information conveyed by the serving police officer at the time of providing the warning renders the service “ineffective”. 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.”
  1. [26]
    Whilst it is true that 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. If anything, the verbal explanation went beyond the actual legal consequences of the giving of the official warning. That of itself does not, in my view, 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.
  1. [27]
    It is further contended that the official warning was invalid because the prosecution failed to prove the pre-conditions necessary for the issue of a valid warning. In this regard the defence relies upon the provisions of Section 53BAC of the Police Powers and Responsibilities Act 2000.  It is firstly contended that there is no evidence before the court that the police officer reasonably suspected that the defendant had consorted was consorting or was likely to consort with one or more recognised offenders.  The evidence of the issuing officer in this regard is detailed at paragraph [12] of these reasons.  There is no evidence before this court that any police officer reasonably suspected the defendant had consorted, was consorting or was likely to consort with any with one or more recognised offenders.
  1. [28]
    The prosecution contends that Section 53BAC(1) only applies if a police officer stops the person and requires them to remain where they are stopped for the time necessary to do any all of the things specified in section 53BAC(2) (a),(b) or (c) and that as the defendant was not stopped and required to remain at a place for the purpose of being given an official warning for consorting there is no requirement for the reasonable suspicion referred to in Sub Section (1) of Section 53BAC. It is true that Section 53BAC could have been more appropriately worded. However the interpretation contended for by the prosecution would lead to an absurd result. For example the requirement of Sub-Section (3) that a police officer must consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity would only apply if the person is given an official warning after having stopped a person and required the person to remain where they are stopped for the purpose of giving the official warning. The manifest intention of the legislation is that the requirements set forth in Section 53BAC apply to the giving of an official warning regardless of whether it is given after the person is stopped and required to remain at a place.
  1. [29]
    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.

Habitually Consorting

  1. [30]
    Finally, whilst it is admitted that the defendant consorted with each of the named recognised offenders and at least one occasion of consorting with each recognised offender occurred after the giving of the official warning, it is contended that the evidence falls short of proving that the defendant habitually consorted with the recognised offenders named in the charge. Whilst 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.
  1. [31]
    The term “habitual consorting” has been the subject of judicial interpretation. As was stated by Crennan, Kiefel and Bell JJ in Tajjour v New South Wales [2014] HCA 35 with reference to the New South Wales  equivalent of s 77B of the Criminal Code :

“At the time s 93X 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 s 93X does not exclude recourse to the received meaning of ‘habitually consort’ in order to identify what further may be required.”[5] 

  1. [32]
    As French CJ stated in the same decision, quoting Mayo J in Dias v O'Sullivan:

“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.’”[6]

The contact with Sonny Brandon Jenkins

  1. [33]
    In evidence exhibit 3, are the recordings of telephone conversations between the defendant and the recognised offender Sonny Brandon Jenkins whilst Mr Jenkins was incarcerated. The conversations took place on the 23 November 2017, 24 November 2017, 25 November 2017 to December 2017, 20 December 2017, 9 February 2018, 10 February 2018, 11 February 2018, on three occasions on 10 March 2018, 19 March 2018, 23 March 2018, 25 March 2018 and for April 2018. In addition the defendant met with Mr Jenkins at a correctional centre on the 29 September 2017, 19 October 2017, 2 November 2017, 7 December 2017, 26 January 2017.
  1. [34]
    The frequency and the nature of the contact satisfies me the contact comes within the definition of habitually consorting. Further, the nature of the conversations engaged in during the telephone intercepts are of a personal nature and the familiarity between the defendant and Jenkins demonstrates that requisite quality of habitualness mandated by the legislation. Further it was admitted that the defendant was residing with Jenkins on the 4 July 2017, (that being the only evidence of consorting with any of the named recognised offenders prior to the giving of the official warning).

The Contact withBrodie Jason Mortimer

  1. [35]
    In evidence Exhibit 5 is CCTV footage taken from the Hilton Hotel on the 5 November 2017. The first section of footage shows the defendant, Brodie Jason Mortimer, Todd Barnes 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, Mortimer and Todd Barnes socially interacting while apparently waiting to be admitted access to the hotel. The third section of footage appears to show the same view as in the first section of footage, albeit from a different camera angle. The fourth section of footage shows the same group of six inside the lift in the Hilton Hotel where they all continue to socially interact with each other. The final piece of footage shows the same group of six exiting the lifts to a floor in the hotel. Again the group appear to be socially interacting with each other. Body worn camera footage in Exhibit 6, although dated 4 November 2017, has been identified in evidence as footage taken in the early hours of the 5 November 2017. It shows the defendant walking in company with Mortimer.
  1. [36]
    In evidence Exhibit 7 is a photograph posted on Instagram on the 7 November 2017 by Brodie Mortimer said to be taken at a birthday dinner for his brother. The ten males in the photograph include Brodie Mortimer, the defendant and Todd Barnes. This photograph is of the consorting which took place on the 6 November 2017.
  1. [37]
    The evidence of the meeting between the defendant and Mortimer on the 23 November 2017 is an admission by the defendant in a telephone conversation Jenkins at the Brisbane Correctional Centre that he is in the company of Mortimer.
  1. [38]
    In a telephone conversation between Jenkins and the defendant on the 25 November 2017, the defendant hands the phone over to “Brodie” indicating that he is at that time in the company of Mortimer.
  1. [39]
    In evidence Exhibit 7(2) is body worn camera footage taken on the 2 December 2017 (although incorrectly marked the 1 December 2017) which shows the defendant being street checked in the company of Mortimer. The pair together with another male are seen to socially interact whilst waiting for the police to complete their checks. In evidence Exhibit 8(1) is Gold Coast City Council footage from the 2 December 2017 which shows the defendant, Mortimer and another male on a street corner several minutes prior to their being street checked by the police as evidenced in the footage in Exhibit 8(2) . The footage shows them engaged in social interaction with each other.
  1. [40]
    It is admitted that as at the 24 May 2018 the defendant was residing at 58 Blair Athol Crescent, Bundall with Mortimer.
  1. [41]
    The frequency and nature of the contact between with defendant and Mortimer, and the ease of their social interaction satisfies me that the consorting between the defendant and Mortimer was habitual.

Todd Anthony Barnes

  1. [42]
    Todd Anthony Barnes was one of the males present in the footage from the Hilton Hotel Surfers Paradise on 5 November 2017.
  1. [43]
    He is in the photograph of 10 males, including the defendant and Mortimer taken on 6 November 2017
  1. [44]
    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 Todd Barnes 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 Todd Barnes had been in each other’s company that evening.
  1. [45]
    In a telephone recording between the defendant and Anthony Soong on the 23 March 2018 the defendant referred to having met Todd Barnes at the ANA the previous evening.
  1. [46]
    Accordingly, the evidence of the defendant consorting with Todd Anthony Barnes can be summarised as being in his company on the evening of the 5 November 2017, the two being in a group of ten at a celebration on 6 November 2017,the defendant having been in his company for an indeterminate period of time at a boxing match on the 16 December 2017, and having met with him for an unknown period of time and for an unknown purpose on the 22 March 2018. 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.
  1. [47]
    However in light of my findings in relation to the consorting with Jenkins and Mortimer, had the warning been validly given, it may well have been appropriate to amend the charge to delete any reference to Todd Anthony Barnes. However this is purely academic in light of my findings that the official warning was not validly given.
  1. [48]
    In all of the circumstances, based on my findings, the defendant is found not guilty of the offence charged.

Footnotes

[1]Exhibit 1

[2]Exhibit 14

[3]Section 4 Acts Interpretation Act 1954

[4]Bulsey and  Anor v State of Queensland (2015) QCA187[20]

[5]At paragraph 101

[6]At paragraph 16

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v Barbaro

  • Shortened Case Name:

    Queensland Police Service v Barbaro

  • MNC:

    [2019] QMC 1

  • Court:

    QMC

  • Judge(s):

    Magee K

  • Date:

    08 Mar 2019

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2019] QMC 108 Mar 2019Defendant found not guilty on the charge of habitually consorting with recognised offenders in contravention of s 77B of the Criminal Code: Magistrate Magee.
Appeal Determined (QCA)[2019] QCA 286 (2019) 3 QR 6806 Dec 2019Attorney-General's reference under s 669A(2A) of the Criminal Code on two points of law concerning the giving of warnings for consorting with recognised offenders under Part 6A, Chapter 2 of the PPRA: McMurdo JA, Crow J (Boddice J dissenting).
Special Leave Refused (HCA)[2020] HCASL 10722 Apr 2020Special leave refused; insufficient doubt attending reasoning of majority of Court of Appeal: Gageler and Keane JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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