R v Barbaro; Ex parte Attorney-General (Qld)

In this topical recent matter, a landmark decision, the court clarified what is required when police issue consorting notices in order to ensure compliance with Pt 6A, Ch 2 Police Powers and Responsibilities Act 2000 (“PPRA”). Specifically, it considered (1) whether the legislative provisions require that in order that an official warning for consorting be validly given, a separate official warning for consorting must be given for each separate stated person who is a recognised offender; and (2) 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, whether the official warning stops having effect in respect of all stated persons 24 hours after it is given, pursuant to s 53BAD(3) of the Act. Both questions were referred to the court by the Attorney-General of Queensland under s 669A(2A) of the Criminal Code.

McMurdo JA and Boddice and Crow JJ

6 December 2019

The appeal and questions of law arose after the respondent successfully challenged the validity of a written notice entitled “Official Warning for Consorting”, which nominated 15 named persons as recognised offenders, [27] in the Magistrates Court. The Magistrate held that the written document presented to him was not a valid official warning and did not comply with the legislation. [29]. In the result, the respondent was found not guilty of habitually consorting with recognised offenders in breach of s 77B of the Code. [24], [29].

The legislation

Relevantly, the applicable statutory provisions provide as follows:

• Section 77B of the Criminal Code 1899:

"77B Habitually consorting with recognised offenders

(1) A person commits a misdemeanour if—

(a) the person habitually consorts with at least 2 recognised offenders, whether together or separately; and

(b) at least 1 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.

(2) A person does not habitually consort with a recognised offender unless the person consorts with the offender on at least two occasions.” 

• Section 53BAA of the Police Powers and Responsibilities Act 2000:

“official warning, for consorting, means a warning given in person, whether orally or in writing, that—

(a) a stated person is a recognised offender; and

(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:

“53BAC Police powers for giving official warning for consorting

(1) 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.

(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—

(a) confirm or deny the police officer’s suspicion, including, for example, by exercising a power under section 40 or 43B;

(b) give the person an official warning for consorting;

(c) if the official warning is given orally—confirm under subsection (5) the official warning.

…

(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.

…

(8) To remove any doubt, it is declared that—

(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;

…

9)In this section—

…

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

• Section 53BAD of the Police Powers and Responsibilities Act 2000:

“53BAC Effect of official warning for consorting

(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.

(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.”

The competing arguments

The matter essentially turned upon an important technicality: whether, where a recipient is to be warned about two or more offenders in the one document, it is necessary that the words of warning are individually repeated for each separate offender. [11]. The respondent argued that that was the case, whilst the Attorney-General submitted that it would suffice if only one warning was provided, on the proviso that the recipient was unambiguously informed that consorting with any of the stated persons might result in the commission of the offence. [12]–[14].

The court observed that either scenario would give the recipient the same information: “[i]n each case, persons would be identified, each of whom would be said to be a recognised offender, and the recipient would be warned that consorting with one of them might lead to the commission of the offence” (emphasis added). [16]. Nonetheless the court examined the merits of the arguments in the context of the referred questions.

The court held, by majority, (Justice Boddice dissenting), it was appropriate to answer the first question “no”. It determined that the definition in s 53BAA does not require that prescribed words are repeated for each offender, noting that such a requirement would not enhance to any degree what was conveyed by stating the words of warning only once. [19]. Relevantly, Crow J had difficulty with the proposition that an approved form, using the precise words of s 53BAA, with the exception that it adds “(s)” after the word person, could nonetheless be considered invalid. He suggested that it would be difficult to see how the approved form might be read in any manner other than “distributively, that is, a warning that is specific to each stated recognised offender” (emphasis added). [82].

The court further held by majority that the second question ought also be answered “no”. That was because in the event one stated person was not in truth a recognised offender, as defined in the legislation, “then the official warning in relation to that stated person, but only that official warning, would cease to have effect under s 53BAD(3)” (emphasis added), in circumstances where two official warnings would already have been given, in relation to a certain person, without the prescribed words being repeated twice. [20], [21].

The implications of this decision are important. Police can now resume issuing official warnings for consorting containing multiple names with restored confidence.

A de Jersey