Forbes v Wilmot - [2022] QSC 168

SUPREME COURT OF QUEENSLAND

CITATION:

Forbes v Wilmot [2022] QSC 168

PARTIES:

Nicholas John FORBES

(applicant)

v
Detective Senior Constable Peter WILMOT

(respondent)

FILE NO/S:

BS 4227 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2022

JUDGE:

Callaghan J

ORDER:

1. The respondent must provide a statement of reasons for the decision made on 17 February 2022 to serve an official warning for consorting under s 53BAC of the Police Powers and Responsibilities Act 2000 (Qld).

2. No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where a police officer issued an official warning to the applicant under s 53BAC of the Police Powers and Responsibilities Act 1990 (Qld) – where the applicant intended to judicially review the warning and requested a statement of reasons to issue the notice – where the request was refused on the grounds that there was no such obligation – whether the decision to issue an official warning is a decision to which the Judicial Review Act 1991 (Qld) applies – whether the respondent is required to provide a statement of reasons for the decision

Criminal Code 1899 (Qld) s 77B
Judicial Review Act 1991 (Qld) ss 31, 38, sch 2

Police Powers and Responsibilities Act 2000 (Qld) s 53BAC

Bull v The Queen (2000) 201 CLR 443, cited
Commissioner of the Queensland Police Service v O’Keefe & Ors [2015] QSC 335, cited
Hatfield v Health Insurance Commission (1987) 15 FCR 487, cited
Pepper v Attorney-General [2008] 2 Qd R 353, cited

Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, cited

COUNSEL:

M Longhurst for the applicant

M Nicolson for the respondent

SOLICITORS:

Gatenby Criminal Law for the applicant

QPS Legal Unit for the respondent

Section 53BAC of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) makes provision for police officers to issue an “official warning” to any person that they suspect is “consorting” with “recognised offenders”.[1]
[1]Terms are defined in s 53BAA of the PPRA. “Consort”: “(a) has the meaning given by the Criminal Code, section 77A; and (b) does not include an act of consorting mentioned in the Criminal Code, section 77C that is reasonable in the circumstances”. “Official warning”, for consorting: “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”. “Recognised offender”: “a recognised offender who is at least 18 years”.
On 17 February 2022, Detective Senior Constable Wilmot issued such a warning to the applicant. On 9 March 2020, the applicant’s lawyers wrote to the Queensland Police Service Legal Division, informing of the applicant’s intention “to [j]udicially [r]eview the issuing of this notice…” and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forbes v Wilmot

Details

AGLC: Forbes v Wilmot [2022] QSC 168
Case: [2022] QSC 168
Decision Date: 18 August 2022

CaseChat Overview and Summary

In Forbes v Wilmot, the applicant, Forbes, sought judicial review of an official warning issued by the respondent, a police officer, under section 53BAC of the Police Powers and Responsibilities Act 1990 (Qld). Forbes requested a statement of reasons for the issuance of the warning, which the respondent refused, arguing there was no obligation to provide such reasons. The central issue before the court was whether the decision to issue an official warning was subject to the requirements of the Judicial Review Act 1991 (Qld) and, if so, whether the respondent was obligated to provide a statement of reasons for the decision.

The court examined the nature of the decision to issue an official warning, considering whether it fell within the scope of decisions relating to the administration of criminal justice, as contemplated by the exemption in the Judicial Review Act. The court referenced relevant authorities, including Pepper v Attorney-General, which indicated that the phrase "relating to the administration of criminal justice" should not be interpreted broadly to encompass all decisions connected to law enforcement but rather those integral to the administration of justice or investigation of offences. The court found that while the issuance of an official warning might be a precursor to criminal proceedings, it did not inherently involve the administration of criminal justice. Consequently, the decision to issue an official warning was considered independent of any subsequent criminal proceedings and did not necessarily relate to the administration of criminal justice.

In conclusion, the court held that the decision to issue an official warning under section 53BAC of the PPRA was not exempt from the requirements of the Judicial Review Act. Therefore, the respondent was required to provide a statement of reasons for the decision made on 17 February 2022 to serve the official warning. The court did not make an order regarding costs.

Orders

Orders of the court

1. The respondent must provide a statement of reasons for the decision made on 17 February 2022 to serve an official warning for consorting under s 53BAC of the Police Powers and Responsibilities Act 2000 (Qld).

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Although sub-paragraphs (a) to (d) give particular examples, the “decisions” contemplated are not limited to them. An exemption will be made for any decision to which the words “relating to the administration of criminal justice” might apply. The ambit of those words is potentially “extremely wide”.[5] They do not, however, embrace every aspect of what might be termed more broadly as “law enforcement”. Nor are they:[6]“…to be interpreted as encompassing all decisions found to have any connection whatever with the administration of criminal justice or the investigation of persons for offences… In my opinion par (e) refers to decisions which are part of the administration of justice and part of the investigation of persons for offences and also, I would accept, to decisions that are ancillary or incidental thereto or made in assistance thereof. The paragraph does not, however, encompass decisions which are not made in the course of the administration of justice or the investigation of persons for offences but which are simply connected in an indirect manner therewith. Decisions of the latter type do not have the necessary relationship.” [5]Pepper v Attorney-General [2008] 2 Qd R 353, at 360 [13] (Muir JA), citing Bull v The Queen (2000) 201 CLR 443 at 462 (McHugh, Gummow & Hayne JJ), citing Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620 (Taylor J).[6]Commissioner of the Queensland Police Service v O’Keefe & Ors [2015] QSC 335, at [16] (Martin J) (emphasis in original), citing Hatfield v Health Insurance Commission (1987) 15 FCR 487 (Davies J). The respondent seeks to establish that direct connection and thus the “necessary relationship” by pointing to s 77B(1) of the Criminal Code 1899 (Qld) (Criminal Code). It reads: “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.Maximum penalty—300 penalty units or 3 years imprisonment.” It can be seen that the issue of an official warning is an element of the offence created by that section. A decision to charge someone with that offence would be a decision relating to the administration of criminal justice. It does not, however, follow that the same must be said about the issuing of the warning. Until a further act of “consorting” occurs on “at least one occasion”, the link to the administration of criminal justice is not established by mere reason of the fact that s 77B of the Criminal Code exists. Further, not every issue of a warning will result in a charge being laid. If a warning is heeded, there will be no need for any charges. In that way, s 53BAC of the PPRA enjoys a completely independent existence and performs a function that might remain unconnected with the offence that is created by a different statute. Nothing about the issue of the warning itself involves proceedings in any court. In fact, the very concept of a warning is calculated to regulate behaviour in such a way as to avoid the need for criminal justice to be administered at all.

CITATION:	Forbes v Wilmot [2022] QSC 168
PARTIES:	Nicholas John FORBES (applicant) v Detective Senior Constable Peter WILMOT (respondent)
FILE NO/S:	BS 4227 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	18 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2022
JUDGE:	Callaghan J
ORDER:	1. The respondent must provide a statement of reasons for the decision made on 17 February 2022 to serve an official warning for consorting under s 53BAC of the *Police Powers and Responsibilities Act 2000* (Qld). 2. No order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where a police officer issued an official warning to the applicant under s 53BAC of the Police Powers and Responsibilities Act 1990 (Qld) – where the applicant intended to judicially review the warning and requested a statement of reasons to issue the notice – where the request was refused on the grounds that there was no such obligation – whether the decision to issue an official warning is a decision to which the Judicial Review Act 1991 (Qld) applies – whether the respondent is required to provide a statement of reasons for the decision Criminal Code 1899 (Qld) s 77B Judicial Review Act 1991 (Qld) ss 31, 38, sch 2 Police Powers and Responsibilities Act 2000 (Qld) s 53BAC Bull v The Queen (2000) 201 CLR 443, cited Commissioner of the Queensland Police Service v O’Keefe & Ors [2015] QSC 335, cited Hatfield v Health Insurance Commission (1987) 15 FCR 487, cited Pepper v Attorney-General [2008] 2 Qd R 353, cited Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, cited
COUNSEL:	M Longhurst for the applicant M Nicolson for the respondent
SOLICITORS:	Gatenby Criminal Law for the applicant QPS Legal Unit for the respondent