NSW Police v Klein - [2016] NSWLC 26

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Klein [2016] NSWLC 26
Hearing dates: 16 March 2016
Decision date: 28 April 2016
Jurisdiction: Criminal
Before: Brown LCM
Decision:
Charge dismissed

Catchwords: CRIMINAL PROCEEDINGS – habitually consort with convicted offenders after warning - establishment of consorting on at least two occasions
Legislation Cited: Crimes Act 1900, s 93W, 93X, 93Y
Cases Cited: Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97
Brown v Bryan [1963] TASStRp 2; [1963] Tas SR 1
Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376
O'Connor v Hammond (1902) 21 NZLR 573
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96
Reardon v O'Sullivan [1950] SAStRp 4; [1950] SASR 77
Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35
Category: Principal judgment
Parties: NSW Police (prosecution)
Martin Francis Klein (defendant)
Representation:
Sgt S Bowie (for the prosecution)
Counsel:
P Lang (for the defendant)

File Number(s): 2015/253205

Judgment

The defendant is charged with a single count of “consorting” contrary to s 93X of the Crimes Act 1900 (NSW). The particulars of the charge state that the accused did, between 2145 hrs and 2200 hrs on 27 August 2015, “habitually consort with convicted offenders, to wit Timothy MARTIN, Luke RAZZA and Benjamin GITTANY after having been given an official warning in relation to each of those convicted offenders.”
The case proceeded almost entirely on agreed documentary evidence, with only one prosecution witness being briefly questioned by the prosecutor. After the closure of the prosecution case, the defence called no evidence. None of the prosecution evidence was disputed.
Mr Lang for the defendant made a number of submissions on the case’s legal aspects, with particular reference to the decision of High Court of Australia (HCA) in Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [1] (Tajjour). In order to properly address those submissions it is necessary to analyse the language of Part 3A, Division 7 of the Crimes Act 1900, comprising ss 93W, 93X and 93Y, with some precision as, despite its brevity, the language of the Division is decidedly obscure.
1. [2014] HCA 35
These sections provide:

93W Definitions
In this Division:
consort means consort in person or by any other means, including by electronic or other form of communication.
convicted offender means a person who has been convicted of an indictable offence (disregarding any offence under section 93X).

93X   Consorting
(1) A person who:
(a)  habitually consorts with convicted offenders, and
(b)  consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders,

is guilty of an offence.
Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.
(2) A person does not habitually consort with convicted offenders unless:
(a) the person consorts with at least…

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 NSW Police v Klein

Details

AGLC: NSW Police v Klein [2016] NSWLC 26
Case: [2016] NSWLC 26
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the case of NSW Police v Klein, the defendant, Klein, was charged under section 17 of the Crimes (Public Order and Safety) Act 2009 (NSW) for habitually consorting with convicted offenders after receiving a warning from police. The dispute was brought before the Local Court of New South Wales, where Klein sought to have the charge dismissed. The primary issue before the court was whether the prosecution had established that Klein had consorted with convicted offenders on at least two occasions after being warned against such conduct. Klein argued that the evidence was insufficient to prove the required two instances of consorting.

The court considered the statutory requirements and the nature of the evidence presented by the prosecution. The court found that the evidence provided did not clearly establish that Klein had consorted with convicted offenders on two separate occasions after receiving the warning. The prosecution's evidence was deemed insufficient to meet the statutory threshold, and the court accepted Klein's argument that the prosecution had not discharged the onus of proof. Consequently, the court dismissed the charge against Klein, finding that the prosecution had not proven the required elements of the offence.

Orders

Orders of the court

Charge dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NSW Police v Klein [2016] NSWLC 26
Hearing dates:	16 March 2016
Decision date:	28 April 2016
Jurisdiction:	Criminal
Before:	Brown LCM
Decision:	Charge dismissed
Catchwords:	CRIMINAL PROCEEDINGS – habitually consort with convicted offenders after warning - establishment of consorting on at least two occasions
Legislation Cited:	Crimes Act 1900, s 93W, 93X, 93Y
Cases Cited:	Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 Brown v Bryan [1963] TASStRp 2; [1963] Tas SR 1 Johanson v Dixon [1979] HCA 23; (1979) 143 CLR 376 O'Connor v Hammond (1902) 21 NZLR 573 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 Reardon v O'Sullivan [1950] SAStRp 4; [1950] SASR 77 Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35
Category:	Principal judgment
Parties:	NSW Police (prosecution) Martin Francis Klein (defendant)
Representation:	Sgt S Bowie (for the prosecution) Counsel: P Lang (for the defendant)
File Number(s):	2015/253205