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

1. 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”.

2. 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 asking for their correspondence to be treated as “a formal request for a statement of reasons for the decision to issue this notice under s.32 of the Judicial Review Act 1991”.[2]

   [2]Affidavit of Michael Thomas Gatenby, sworn 11 April 2021, at exhibit MTG-2.

3. On 31 March 2022, an officer of the Queensland Police Service Legal Division responded with a letter that included this paragraph:[3]

   “The issuing of an official warning under section 53BAC of the Police Powers and Responsibilities Act 2000 is a decision relating to the administration of criminal justice. Accordingly, pursuant to section 31 and schedule 2 of the JRA, it is not a decision for which reasons need be given.”

   [3]Ibid at exhibit MTG-3.

4. Pursuant to s 38 of the Judicial Review Act 1991 (Qld) (JRA), the applicant now seeks an order that the reasons be supplied. If the assertion made on 31 March 2022 is correct, he is not entitled to any such order.[4]

   [4]Initially, the respondent contended before me that the decision was not one to which the JRA applied, because it was not “final, operative and determinative” of an issue. This argument conflated concepts and in the end was not seriously pressed. The issue for determination is as framed by the Senior Legal Officer who drafted the 31 March 2022 response.

5. The basis for the assertion traces to sch 2 of the JRA. That schedule contains a list of decisions for which reasons need not be given. It includes:

   “1   Administration of criminal justice

   Decisions relating to the administration of criminal justice, and, in particular—

   (a)  decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and

   (b) decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and

   (c) decisions in relation to the issue of search warrants under a law of the State; and

   (d) decisions under a law of the State requiring—

   (i) the production of documents or things; or

   (ii) the giving of information; or

   (iii) the summoning of persons as witnesses.”

6. 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).

7. 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.”

8. 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.

9. 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.

10. The applicant’s position is at least sufficiently advanced to justify looking beyond the legislative text in order to interpret it. By that exercise, clarity is achieved. Section 53BAC was inserted into the PPRA by the Serious and Organised Crime Legislation Amendment Bill 2016 (Qld). That Bill was reviewed by the Legal Affairs and Community Safety Committee. The Committee’s report noted on three occasions that the PPRA itself provided no mechanism by which the issue of a warning might be reviewed.[7] It was observed that:[8]

    “There is no simple review mechanism provided in respect of these warnings, although presumably judicial review would still be available under the Judicial Review Act 1991”.

    [7]Legal Affairs and Community Safety Committee, Parliament of Queensland, ‘Serious and Organised Crime Legislation Amendment Bill 2016’ (Committee Report No 42, November 2016).

    [8]Ibid at page 66.

11. Parliament was on notice that this was the view that would be taken of the provision, and nothing was done by way of amendment or clarification to contradict that view. Upon closer examination of the statute, it is easy to understand why Parliament took this position. 

12. Section 53BAC includes the following relevant subsections:

    (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.

    […]

    (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; and

    (b)a failure to comply with subsection (3) does not affect the validity of an official warning for consorting.

13. The inclusion of subsection (3) was a clear statement of parliamentary intention as to the conditions precedent to the issue of a warning; these are no less than would be expected when authorising an intrusion of a kind that would, without statutory authority, be unimaginable.

14. However, the inclusion of subsection (8) has the consequence that there is a limit to the extent that the bona fides of a police officer might be interrogated in the course of any trial for an offence against s 77B of the Criminal Code. Even if the legality of a warning was challenged in the context where it matters most – a criminal trial – established failure to comply with subsection (3) would be meaningless. There would therefore be no point in a court even receiving evidence about compliance or lack thereof – it would be irrelevant and therefore inadmissible.

15. Since there is no other provision for review, attention necessarily returns to the JRA. Unless it remains applicable, the decision to issue the warning remains unreviewable in any forum. The words in subsection (3) would ring hollow, and the intention of Parliament could be frustrated with impunity.

16. In these circumstances, there is every reason to conclude that Parliament intended that the decision to issue a warning should be judicially reviewable. No sensible basis for any other conclusion has been identified. It is not, for example, open to contend that the requirement is disproportionately onerous. Of course, reasons for the decision will have to include more than mechanical recitation of the section. However, if the intention of Parliament is respected and the mandatory requirements of subsection (3) have been observed prior to the issue of the warning, then the exercise of providing reasons will be a simple one.

17. Parliament’s intention was clear. The applicant succeeds. I order that the respondent provide a statement of reasons for the decision made on 17 February 2022. By agreement between the parties, there will be no order as to costs.