Police v Hannan & Murrell
[2016] QMC 2
•25 February 2016
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Police v Hannan & Murrell [2016] QMC 2 | |
PARTIES: | Commissioner of Police (Complainant) v Ben HANNAN (1st Defendant) and Nicholas Allan MURRELL (2nd Defendant) | |
FILE NO/S: | MAG-00063094/14(5) MAG-00063193/14(3) | |
PROCEEDING: | Committal Proceedings | |
ORIGINATING COURT: | Magistrates Court, Southport | |
DELIVERED ON: | 25 February 2016 | |
DELIVERED AT: | Southport. | |
HEARING DATE: | 29 October 2015 | |
MAGISTRATE: | Costanzo JJ | |
ORDER: | The two relevant trafficking charges will be amended by omitting the circumstances of aggravation brought under the VLAD Act. | |
CATCHWORDS: | Statutory interpretation — Meaning of “association” — Meaning of “any other group of 3 or more persons by whatever name called” Vicious Lawless Association Disestablishment Act 2013 (VLAD) | |
APPEARANCES: | Qld Police Service: Sgt MW Campbell. Hannan: GM Maguire of counsel, instructed by Guest Lawyers. Murrell: ST Courtney of counsel, instructed by Hannay Lawyers. | |
CASES CITED IN THIS JUDGMENT | Beckwith v The Queen (1976) 135 CLR 569; (1976) 12 ALR 333; (1976) 51 ALJR 247. | |
The proceedings and charges
On 29 October 2015 I heard the joint committal proceedings for the defendants.
As this decision needs to make many references to the Vicious Lawless Association Disestablishment Act 2013, I will, where appropriate, refer to that Act as simply “VLAD” or “the VLAD Act”.
The charges before the court were as follows:
Defendant Ben HANNAN has 5 charges. Charge 2 is poorly worded.:
Charge 1
That between the 10th day of September 2009 and the 24th day of October 2013 at Willow Vale and elsewhere in the State of Queensland one Ben Andrew HANNAN carried on the business of unlawfully trafficking in the dangerous drug namely Cannabis.
Charge 2
That between the 24th day of October 2013 and the 24th day of March 2014 at Willow Vale and elsewhere in the State of Queensland one Ben Andrew HANNAN carried on the business unlawfully trafficking in the dangerous drug namely Cannabis;
and further at the time of the commission of the offence the said Ben Andrew HANNAN was an office bearer within the meaning of section 3 of the Vicious Lawless Association Disestablishment Act 2013.
Charge 3
That on the 26th day of March 2014 at Helensvale in the state of Queensland one Ben Andrew HANNAN had in his possession a mobile phone that he had used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 namely trafficking dangerous drugs.
Charge 4
That on the 26th day of March 2014 at Helensvale in the state of Queensland one Ben Andrew HANNAN possessed property namely cash obtained from Trafficking Dangerous Drugs knowing it to have been so obtained from the Trafficking.
Charge 5
That on the 26th day of March 2014 at Helensvale in the state of Queensland one Ben Andrew HANNAN had in his possession namely a NISSAN motor vehicle an Audi motor vehicle a SEADOO Jetski a Hydro Turf Jetski and Two Trail motor bikes reasonably suspected of having been acquired with the proceeds of an offence defined in Part II of the Drugs Misuse Act 1986.
Defendant Nicholas MURRELL has one charge:
That between the 24th day of October 2013 and the 24th day of March 2014 at Willow Vale and elsewhere in the State of Queensland one Nicholas Allan MURRELL carried on the business of unlawfully trafficking in the dangerous drug namely Cannabis;
and the said Nicholas Allan MURRELL was a vicious lawless associate within the meaning of section 5 of the Vicious Lawless Association Disestablishment Act 2013.
Why the charges are poorly worded
For Hannan, charges 1 and 2, and the single charge for Murrell, each include the reference to “unlawfully trafficking in the dangerous drug namely Cannabis”. The word “the” should read “a”. This is a simple grammatical error and, if necessary, can be easily amended.
However, the circumstance of aggravation in charge 2 for Hannan is problematic. The prosecution alleges that at the time of the commission of the offence Hannan was “an office bearer within the meaning of section 3 of the Vicious Lawless Association Disestablishment Act 2013.” The purpose of alleging Hannan was an “office bearer” is so that, if convicted, he must, under section 7 of the VLAD Act, be sentenced not only to whatever sentence he would otherwise receive, but also to an additional 25 years imprisonment.
Section 7 relevantly provides:
7Sentencing
(1)A court sentencing a vicious lawless associate for a declared offence must impose all of the following sentences on the vicious lawless associate—
(a) a sentence for the offence under the law apart from this Act and without regard to any further punishment that may or will be imposed under this Act;
(b) a further sentence of 15 years imprisonment served wholly in a corrective services facility;
(c) if the vicious lawless associate was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association—a further sentence of 10 years imprisonment served wholly in a corrective services facility which must be served cumulatively with the further sentence mentioned in paragraph (b).
(2)A further sentence—
(a) must not be mitigated or reduced under any other Act or law; and
(b) must be ordered to be served cumulatively with the base sentence imposed.
…
Obviously, to satisfy section 7(1)(c), the prosecution must be able to prove, beyond reasonable doubt, both that Hannan was a “vicious lawless associate” (as defined in section 5) which attracts an additional 15 years imprisonment to a base sentence and that he was also an “office bearer” of a relevant association (as defined in section 3 and proven by the method required by section 6) which attracts a further, cumulative 10 year sentence of imprisonment, that would make a total of 25 years imprisonment which must be added to the base sentence if he is convicted.
The circumstance of aggravation in charge 2 for Hannan therefore would need to be amended accordingly, if the charges were to proceed with a circumstance of aggravation included.
However, for present purposes, as discussed below, the issue still is: was there even an “association” as defined in section 3? Put another way: were Hannan, Murrell and at least one other person an “association”?
Which charges are the subject of the committal proceedings?
For Hannan, charges 1, 2, 3 (subject to a prosecution election), and charge 4 are each indictable offences. Charges 1, 2, and 4 are subject to committal for trial on indictment.
The prosecution will be asked, after these reasons are delivered, and before the defendants are committed for trial, whether they intend to make an election to proceed by way of indictment on charge 3.
Charge 5 is a summary offence and neither the prosecution nor defence have an election.
For Murrell, the one charge of trafficking is indictable and subject to committal for trial on indictment.
The circumstances of aggravation
Counsel conceded there is a prima facie case requiring a committal for trial of each defendant for each of the substantive indictable charges of trafficking. However, they each argue there is no evidence capable of proving beyond reasonable doubt the circumstance of aggravation in charge 2 against Hannan (that at the time of the commission of the offence HANNAN was an ‘office bearer’ of a vicious lawless association) nor the circumstance of aggravation in the single charge against Murrell (that MURRELL was a ‘vicious lawless associate’).
Those circumstances of aggravation are alleged pursuant to sections 3 and 5 respectively of the Vicious Lawless Association Disestablishment Act 2013 (VLAD).
I will address the individual submissions of counsel in more detail below.
The evidence
Detective Sgt Gavin Thomas Pascoe of Taskforce Maxima was the only witness required for cross-examination at the committal hearing. Two statements by Det Sgt Pascoe were also tendered. They were dated 15 August 2014 and 14 February 2015. They were admitted into evidence pursuant to section 110A of the Justices Act1886.
The parties had reached agreement that both defendants would seek to cross-examine Pascoe only about the evidence to be relied upon by the prosecution to support the respective circumstances of aggravation outlined above.
Although, for the purposes of the committal generally, the prosecution tendered numerous statements under section 110A of the Justices Act1886, the prosecution did not rely upon any evidence other than Pascoe’s evidence for the purpose of my determination of the submission that there is no evidence capable of proving the respective circumstances of aggravation.
Evidence of Gavin Thomas Pascoe
The only relevant examination in chief was to confirm and identify Pascoe’s statements and that he was “one of the case officers in relation to the job”.
For Hannan, the brief and concise cross-examination by Mr Maguire of Counsel may be quoted in full:
“Do I understand that the notion of my client, Ben Hannan, being involved in an association comes simply from the fact that he was part of a group of people committing an offence or offences together, that being basically production and trafficking in cannabis? Yes, but I would suggest it goes further than in relation to ownership of assets, management of, the activities of the group.
So that gets? Yeah.
I’ll come to that as far as an office bearer is concerned, but so far as him being part of an association, it was simply that he together with other people were involved in the production of – production and trafficking in cannabis? Yes.
They didn’t self-describe as any particular named group? No.
There’s reference in the material, at least in the QP9, referring to them as the Hannan syndicate, but that’s not a self-description; that’s just a police reference for ease of purpose? Correct.
And so far as him being an office bearer, that simply comes from the fact that he seemed to be the one in charge of giving directions and the one who – to whom most of the money was coming? Correct.
There is no suggestion that he or anybody else involved in the commission of these offences was in any way associated or connected with an outlaw motorcycle gang? That’s correct.” (My underlining)
For Murrell, likewise, the brief and concise cross-examination by Mr Courtney of Counsel may be quoted virtually in full:
“... So that group, they were cooperating, on your case, for that one purpose: the production and distribution of cannabis? That’s correct.
They weren’t involved in any other criminality? No, not to my knowledge.
Just that one purpose. And so far as the group was concerned, there’s Ben Hannan, obviously? Yes.
And Scott Hannan, the brother of Ben? Yes. Yes.
Matthew Gillis? Correct. ...
Sarah Muir, who is the – I understand, is or was the wife of Ben Hannan? Correct.
And then my client, Mr Murrell? That’s correct.
And obviously you’ve conducted a number of telephone intercepts and surveillance? That’s correct.
So in relation to Mr Murrell’s contact with Ben Hannan ? Yes.
Would you agree it’s not significant? I wouldn’t agree with that. There is an amount that – there is quite an amount of contact on the phones, both with Nick Murrell and Ben, through Scott … where Nick Murrell is present, and then Ben speaks to Nick or speaks to Scott about Nick in Nick’s presence. … Nick’s presence at 148 Fairview, Nick’s presence also at 151 Hotham.
Perhaps the point I can make: the direct contact between Nick Murrell and Ben Hannan is much less than the contact between Nick Murrell and Scott Hannan? Yes. Correct.
This group you speak of, it’s not a declared criminal organisation under any of the legislation? No.
Was never that? No.
Okay. Not incorporated? No.
Wouldn’t describe it as a club or a league? No.
No. What about an unincorporated association? Is that a label you would attach to this group? I wouldn’t say it was an unincorporated association. I’d say it was a group of persons basically running a business, albeit illegal ... for the purpose of a profit in relation to illegal activities.” (my underlining)
Sgt Campbell, was then permitted to lead the witness further to provide an outline of the investigation to clarify the evidence upon which the case as a whole is based. The transcript is quoted virtually in full:
“SGT CAMPBELL: Officer Pascoe, would you be in a position just to provide the court just with an overview of the investigation of what cannabis has been trafficked and how it has come to your attention? Okay. First came to our attention in August 2013. We were aware of some shipping containers being buried at – on a property at 148 Fairview at Willow Vale. … The owner of that property, we established, was Ben Hannan and that he had lived at that address. Further investigations from there, we established that he had a number of companies, that he and his wife also had bought a property later on at 40 Riverdowns, but he also had a number of other properties, investment properties that were purchased or under the guise of Bensar Properties Proprietary Limited, which was – the two directors of that company were Ben Hannan and Sarah Hannan at the time. We then established through … investigative strategies, that there was a cannabis crop at that site and that cannabis was being sold by persons in that group. As a result of that, we conducted some tactical action in relation to that, in relation to other persons that have been charged, and on the – in March 2014 we closed the operation whereby we located the crops in the shipping containers buried under the sheds at 148 Fairview and 151 Hotham and, obviously, forensic examination of those addresses later showed that there were at 148 Fairview Ben Hannan’s prints, Scott Hannan’s prints, and Matthew Gillis’ prints were located in items at the crop site; and at 151 Hotham, Ben Hannan’s prints, Scott Hannan’s prints and Nick Murrell’s prints were located at items in the crop site. … I think there’s approximately 65 calls that probably relate to the – well, the VLAD circumstance of aggravation that help support that whereby Ben Hannan regularly, if not daily, every – every second day or every couple of days, is in contact with Scott Hannan, who resided at that time at 148 Fairview, where he asks him particulars about the crop, how much it was drinking the night before, for example, how the plants are going. There’s calls also in relation to when there were some pests in the crop and Ben Hannan speaks to Scott Hannan and Nick Murrell about whether to use Kill-a-mite … … . Further calls in relation to the sale of pounds of cannabis, the collection of the money in relation to those pounds, the delivery of those moneys to Scott Hannan and the delivery of that money from Scott Hannan to Ben Hannan. We obtained ... business records … . We made inquiries with a number of companies in relation to invoices that were located at the house where those invoices, we assumed as investigators, were prepared in relation to a business. When we approached the persons documented on those invoices, those businesses and those persons had never heard or had not done the business as stipulated in relation to those invoices. We believe those invoices were a – and that’s part of the financial brief which the forensic accountant can talk about, but that those invoices were prepared in a way to show that there was a legitimate business. That’s a brief summary.”
And can I just briefly ask you to explain to the court what the relationship was between Ben Hannan and Nick Murrell? Yeah. So Ben Hannan, as I said before, ran or managed – managed the operation. He’d be on the phone to Scott Hannan and Nick Murrell and Matthew Gillis – or mostly Scott Hannan and Nick Murrell. He would make sure they’ve purchased equipment – purchased chemicals. He would attend crops of himself and assist with, obviously, planting, with cultivating, with, you know, cutting up the crop. Nick Murrell lived at 148 with Scott Hannan for some of the time. He was also involved in attending to the crop in relation to the planting, the growing, cultivating, cutting up of the crop, the sale of the crop and the collection of money which was given to – mostly to Scott Hannan. I think at least on one occasion or more, to my recollection, he delivered the money personally to Ben.
And was there an employment aspect between Ben Hannan and Mr Murrell? A legitimate employment contract – not to my knowledge.
Was there a payment for his services? There’s – yes. Wages were paid by Ben Hannan and Sarah Hannan to Scott Hannan. There are LII calls there in relation to the wages being paid – or moneys to be paid to them.
Okay. And one of them is Mr Murrell? Yes. Correct.”
I then asked the following question and got the following answer:
“BENCH: Can you point to any other evidence that you haven’t mentioned so far which would show any structure to this association – this alleged association? Definitely in the lawfully-intercepted information where Scott Hannan – sorry – where Ben Hannan is giving Scott directions in relation to equipment to buy, what pesticides to use on the crop, the collection of moneys, the fact that there was money owed and that it hadn’t been paid, the collection of those moneys – getting Nick Murrell to chase up the collection of those moneys – and Matthew Gillis. As far as documentation – like, paper documentary records, no. But certainly the lawfully-intercepted information which is corroborated by intercepts that we did in relation to the sale of the cannabis. (My underlining)
As will become obvious from my analysis below, all of these dealings for which there is supporting evidence, is evidence of production, trafficking and supply of cannabis. It is not, however, evidence capable of proving the added circumstances of aggravation, except to the extent it might have proved Hannan to be an “office bearer” if there was, as defined in VLAD, an “association” to be an office bearer of.
Mr Maguire had no further questions arising out of the further examination.
Pascoe was then asked a few further questions:
“MR COURTNEY: You were asked questions about wages and then you went to the structure? Correct.
Was it – so far as Mr Murrell’s role in all of this, was he in a form of employee of Mr Ben Hannan – is that what you’re getting at? I wouldn’t – I used the term wages probably as a general term just to explain that money was paid by Ben back to Scott Hannan, Nick Murrell. I wouldn’t – as I said, I used it as a general term. Yes.
For their services, though? Yes.
Not as if, for example, Nick Murrell was selling things to Ben Hannan? Not to my knowledge. He was selling things on behalf of the group.
Right? And collecting the money in relation to the sale of that product.
All right? Yes.
I understand. I have nothing further. Thank you.
BENCH: Is there any evidence of this group sharing the proceeds? In relation to – there’s the – obviously, we established – or we believed that we had established that Ben Hannan wasn’t – other than the crops on the two properties, to our knowledge that we could establish, Ben Hannan didn’t – or wasn’t performing any other work. The money that was coming back from the two crops we believe was obviously being used to – for example, pay mortgages, maintain the properties, obviously to – to invest or continue or maintain the crop – the crops on the crop-sites.
Was there any evidence gathered here of any structured distribution of proceeds in any structured way between the participants? Not – not that I could point to immediately, your Honour.” (My underlining)
The prosecution did not rely on any other evidence.
Submissions by Counsel for Hannan
Mr Maguire submitted for Hannan there was “no case to answer on the circumstance of aggravation” that Hannan was an ‘office bearer’ within the meaning of VLAD, section 3.
It was alleged Ben Hannan, his brother Scott and two other persons Murrell and Gillis, were conjointly involved in the production of Cannabis at 2 different sites on the Gold Coast and that they had different roles. It was alleged Ben Hannan was the director of operations and directly involved in the production and distribution of drugs while his brother Scott Hannan was alleged to have overviewed the cultivation, harvesting, packing and distribution of the Cannabis via Murrell and Gillis and was the conduit for the return of the money back to Ben Hannan. Murrell and Gillis are alleged to have assisted in the production, packaging and sale of the drug.
Mr Maguire submits that if these persons were all involved conjointly in the Trafficking business, there is no suggestion in the evidence that they were members of any particular gang or even that they self-described as such. He submitted that this group of people were not “going by a name” to attract support of an organization. He submitted VLAD was:
“designed to attack people who gather together with some uniformity of purpose who are committing serious violent – serious offences that attack public safety and security. I mean, it’s designed for outlaw motorcycle gangs. And there has been an attempt to twist not only logic but language to suit a purpose.”
Further, Mr Maguire submitted that the allegation that Ben Hannan was an ‘office bearer’, seems to be simply based on the fact that he was the mastermind or ring leader of the farming and distribution operation and, consequently, the inclusion of the circumstance of aggravation shows a “fundamental misunderstanding” of the behaviour which VLAD “was designed to attack, namely outlaw motorcycle and related gangs”.
Mr Maguire referred to the ‘Objects’ in VLAD, section 2, the definition of an "association" and ‘office bearer’ in VLAD, section 3. He then referred to section 6 (Proof person is an office bearer of an association).
Mr Maguire submits that on the prosecution’s own case the word 'vicious', which he said is the first word in the name of the Act, is irrelevant, for there is no suggestion there was anything 'vicious' about the activities of Ben Hannan. It is submitted the use of that word itself shows that the Act was aimed at Outlaw Motorcycle Gangs (OMGs). He submitted that the definition of 'office bearer' demonstrates as much, as does the definition of ‘association’ by reference to one of the elements of that definition being a group of three or more persons 'by whatever named called'.
It was submitted “they’re just simply a group of people who got together to grow some cannabis and distribute it” and that if the VLAD circumstance of aggravation is able to be established in this case, it will apply to any declared offence that is committed by any group of 3 or more persons and they would be subjected to “extraordinarily severe penal provisions under the VLAD” and that cannot be what the Act was designed to achieve and as such, it was submitted, there is no case to answer for the circumstance of aggravation.
Submissions by Counsel for Murrell
Mr Courtney joined in the submissions by Mr Maguire and submitted for Murrell that he has no case to answer for the circumstance of aggravation alleging Murrell was a “vicious lawless associate,” in that a jury properly instructed could not be satisfied beyond reasonable doubt that there was an “association” or that Mr Murrell was a “participant” in it.
Operation Lima Wood commenced on 18 July 2013. The purpose of the operation was to investigate the production and trafficking of dangerous drugs by a network of persons coordinated by Ben Hannan. That operation was “closed down” on 26 March 2014. Relevant to Mr Murrell a search warrant was executed at the home address of Ben Hannan. Police found two shipping containers buried below a shed at the rear of the property. Murrell was detained after emerging from one of the containers where police discovered a hydroponic cannabis crop.
Murrell told police he was tending the cannabis crop at the direction of Scott Hannan (the younger brother of Ben Hannan). Murrell told police that he assisted Scott Hannan with cannabis crops at that, and at another, nearby address. Scott Hannan was located at the other address and participated in a record of interview and provided a statement. That statement contains allegations against Ben Hannan and Murrell. Three paragraphs are about Murrell:
i.“Once the second room got going I required help to tend to the plants and I employed Nick Murrell to help me. Nick would help me tend to the plants and manicure them.”
ii.“I’d do the grow, Nick was my help, we’d organise our sales, do harvest manicure sell it then give the money to Ben.”
iii.“Nick was selling to his customer base and getting a pound for $3000 off us. Nick would sell the weed on and any money he’d make he kept as profit. I would give the $3000 to Ben.”
Mr Courtney points out that Murrell’s charge alleging that he trafficked in a dangerous drug is itself a serious offence with serious consequences. A finding that the Defendant was a vicious lawless associate would see him get a further sentence of 15 years imprisonment that must be served wholly in a corrective services facility. Therefore, VLAD is a penal statute. Consequently, it was submitted, I must follow the High Court decision in Beckwith v The Queen (1976) 135 CLR 569 per Gibbs J at 576 where His Honour stated that in determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in the favour of the subject by refusing to extend the category of criminal offences. At page 578 his Honour added that if the effect of the provision at the least remains doubtful, that doubt should be resolved in favour of the liberty of the subject.
I was also referred to the Explanatory Notes for the VLAD Bill. In particular, under the heading “Policy objectives and the reasons for them” the Explanatory Notes state that on 28 September 2013, in the wake of violence at Broadbeach involving criminal motorcycle gangs, the Queensland Government announced its response and commitments, and from then on the Explanatory Notes refers only to “criminal gangs”.
After referring to VLAD, section 3, Mr Courtney’s written submission was that paragraph (d), referring to “any group of three or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal” cannot be given an unfettered meaning because on a literal reading it would include a group constituted by a mother, father and child, who by any other definition are entitled to, and naturally will, associate with each other because they are a family. However, in court, Mr Courtney said he would “back away” from what he said about a family grouping of mother, father and child. However, he then submitted that as Burglary is a declared offence, and that if the prosecution submission is correct, then “if you had three 17 year olds who decide to break into the local bottle shop so they can each get a bottle of rum or whatever, one of them is the mastermind, he suggests how they do it, he hatches a plan and these three 17 year olds break into a bottle shop. On the very wide definition urged by the prosecution, they would each be liable on top of whatever they get for the burglary, for 15 years, to be served wholly in a Corrective Services institution. … and that demonstrates, in my submission, the manifest absurdity of what the prosecution are proposing.”
Mr Courtney also submits VLAD was designed to deal with “organised crime gangs, not three or more people getting together to cultivate some cannabis. There’s not the slightest suggestion here that these people were involved in any intimidation, violence, threats of violence. They’re just a group of people who conspired together to grow themselves some cannabis.”
Mr Courtney submits “in interpreting example (d) guidance should be taken from examples (a) to (c). Examples (Sic) (a) to (c) refer to corporations, unincorporated associations, clubs or leagues. The flavour of those examples is I submit something with structure and control.”
While perhaps not expressed in legal or eloquent terms, it seems Mr Courtney is submitting that the ‘ejusdem generis rule’ should apply to the interpretation of s 3.
Mr Courtney also points out that the definition of a “participant” in VLAD, section 4, makes reference to membership, meetings and affairs of an association and that to be an “association” there must be “something more than what is alleged by the prosecution in this instance”.
In relation to the stated objects of VLAD, Mr Courtney also submitted VLAD does not achieve the disestablishment of this group of offenders”. He submits “the attachment of the circumstance of aggravation here doesn’t do that. This group would have disbanded no matter what given they were all charged with trafficking.” However, I find this submission is not entirely accurate. The imposition of crushing sentences would without doubt have the desired deterrent effect on some other budding master-mind thugs and criminals.
Finally, Mr Courtney submitted that the case against Murrell is that he was employed by Scott Hannan, “as opposed to having any wider knowledge or involvement in the conduct of Ben Hannan”.
Submissions by the prosecution
Sgt Campbell submitted that the only question is whether or not the legislation was designed to capture persons or organisations other than outlawed motorcycle gangs and “really that’s for your Honour to determine, but there’s nothing within the legislation that excludes other groups or other gangs and the legislation through definitions makes out that Mr Hannan and Mr Murrell are part of a group that are associated formally or informally and there is an illegal activity going on. Now, there is more than three of them. There is Ben Hannan. He’s married to Sarah. They have brother, Scott, and then, obviously, we’ve got Murrell and Gillis as their employees. There’s a group of five persons who are running this trafficking organisation”.
The prosecution submitted that because the properties where the cannabis was grown are owned by a company called Bensar “which is a combination of Ben and Sarah … then Bensar could be the name of the organisation.” He conceded however, that there are only two persons constituting the company, not three. He pressed on to note that they “have Scott, Ben’s brother, who lives in one of the properties where the cannabis is growing and tends to the crops, and then they have Mr Murrell and Mr Gillis as persons who tend to the crops and really grow the drugs. Mr Murrell, subsequently, was … able to on-sell the drugs to other persons as long as the money came back to Ben through Scott. So the organisation is there.”
A concerning and disturbing paucity of thought and resources went into the prosecution’s legal argument in seeking to give the VLAD Act its broadest possible meaning which, if I agree, would result in each defendant, and the State, incurring the expense of a trial in a superior court, with a jury of 12 or more persons empaneled, on trafficking charges with extremely serious circumstances of aggravation, with grave potential consequences for the defendants.
The prosecution submission began by focusing on section 4 (Meaning of participant) rather than the definition of “association” in section 3. It was submitted “They’re all participating in the affairs of the organisation by growing and bagging and supplying the cannabis – sorry – I should say, trafficking the cannabis. Your Honour, the definitions are made out. It isn’t exclusive to outlawed motorcycle gangs.” The explanatory notes for the Bill were referred to and that a policy objective was a zero-tolerance crackdown on criminal gangs in any group of three or more persons. He submitted the Act “doesn’t really distinguish” whether the target of the legislation was gangs or groups. Sgt Campbell made the valid point that the Act and the explanatory notes do not say the government was targeting only “outlawed motorcycle gangs”
Sgt Campbell then referred to the High Court decision in Kuczborski v Queensland (discussed below) but having only perused it he said: “But I can’t draw you to any particular paragraph of any particular page that’s going to help.” The defence counsel were in the same position. Mr Courtney “formed the view that all the High Court was doing there was just discussing or capturing the various definitions as opposed to helping to define the meaning.” This is only partly correct because as Mr Maguire observed: “The focus of the judgment was not at all on interpreting the provisions of the VLAD Act” but on the constitutional validity of the anti-association provisions of the Criminal Code and of other provisions.
As I said then, and will say below, while the discussions and observations about the VLAD Act were not essential to reaching the High Court decision in Kuczborski v Queensland (because Mr Kuczborski did not have legal standing) they are still highly persuasive in my jurisdiction. So I said:
“Well, I just would have thought – and it’s no criticism of you, Sergeant. But I just would have thought in a case with the legal importance of this case that the Queensland Police Service would have put more resources into giving you time to read this case and present adequate submissions to the court to assist this court in determining the meaning of such important provisions.”
CONSIDERATION
The first thing to consider is what the VLAD Act actually states and what elements it requires the prosecution to prove if it is to discharge its onus of proof.
The VLAD Act
The Vicious Lawless Association Disestablishment Act 2013 (VLAD) commenced on the date of assent on 17 October 2013. It was not amended in any way until 5 September 2014 (i.e. since the relevant charge dates) by the Safe Night Out Legislation Amendment Act 2014. However, the only amendment to the Act made by that Act was the inclusion of an extra offence in Schedule 1, entries for the Criminal Code, for section 314A (Unlawful striking causing death). The current reprint is therefore applicable to this case and to this decision.
Under section 36 and Schedule 1 of the Acts Interpretation Act 1954 a ‘provision’ in relation to an Act, means words or other matter that form or forms part of the Act, and includes the long title and any preamble to the Act.
The Preamble to VLAD is that it is an “Act for the purpose of disestablishing vicious lawless associations”. A main objective, as will be detailed below, is disestablishment and dismemberment of Vicious Lawless Associations (whatever they are).
The term ‘disestablish’ and the concept of ‘disestablishing’ are not defined in VLAD and are repeated only in the short title and the Objects in section 2. The goal of disestablishing vicious lawless associations is clearly intended to be achieved by the further aim of discouraging the promotion of the associations and recruitment of members to them by imposing minimum, mandatory, crushing sentences on offenders or, in the alternative, offering relief from such crushing sentences if offenders cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity.[1]
[1] The intended mandatory, cumulative (additional) sentences of 15 and 25 years imprisonment were described as ‘crushing’ by Commissioner Michael Byrne QC in the final report of the Queensland Organised Crime Commission of Inquiry delivered on 30 October 2015 (the day after this committal hearing), at paragraphs 1.1, 2.1, and 5.5.2.
As Crennan, Kiefel, Gageler and Keane JJ stated in Kuczborski v Queensland (2014) 314 ALR 528; (2014) 89 ALJR 59; [2014] HCA 46, at [182]:
“[182] … . In the present case, it may be accepted that the avowed objective of the VLAD Act (whether considered alone or together with the other challenged laws) is to discourage membership of the HAMC and like associations by the threat of draconian punishment of those who break the law while a member of such an association. If the Act is effective in that regard, membership of the HAMC might be expected to decline.”[2]
[2] HAMC is a reference to the Hells Angels Motorcycle Club.
The objects of the Act are set out in section 2:
2 Objects
(1) The objects of the Act are to—
(a) disestablish associations that encourage, foster or support persons who commit serious offences; and
(b) increase public safety and security by the disestablishment of the associations; and
(c) deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the associations.
(2) The objects are to be achieved by—
(a) imposing significant terms of imprisonment for vicious lawless associates who commit declared offences; and
(b) removing the possibility of parole for vicious lawless associates serving terms of imprisonment except in limited circumstances; and
(c) encouraging vicious lawless associates to cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity.
The definitions which are relevant to this case are found in section 3:
3Definitions
In this Act—
association means any of the following—
(a) a corporation;
(b) an unincorporated association;
(c) a club or league;
(d) any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal.
…
office bearer, of an association, means—
(a) a person who is a president, vice-president, sergeant-at-arms, treasurer, secretary, director or another office bearer or a shareholder of the association; or
(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises himself or herself to hold a position of authority of any kind within the association.
Here, the prosecution relies only on the definition of an association in paragraph (d).
However, I must take into account that because the section states ‘association’ means any of the 4 types listed, the definition is not merely inclusionary. That is, it is not open to include other types of associations not listed. Therefore, the rules of statutory construction and interpretation require that to be an association, the grouping of people in any case must fall into one of the four types listed from (a) to (d).
Section 4 defines a ‘participant’:
4 Meaning of participant
For this Act, a person is a participant in the affairs of an association if the person—
(a) (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the association; or
(b) (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the association; or
(c) has attended more than 1 meeting or gathering of persons who participate in the affairs of the association in any way; or
(d) has taken part on any 1 or more occasions in the affairs of the association in any other way.
I also refer to sections 5 and 6:
5 Meaning of vicious lawless associate
(1) For this Act, a person is a vicious lawless associate if the person—
(a) commits a declared offence; and
(b)at the time the offence is committed, or during the course of the commission of the offence, is a participant in the affairs of an association (relevant association); and
(c)did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association.
(2) However, a person is not a vicious lawless associate if the person proves that the relevant association is not an association that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences.
6 Proof person is an office bearer of an association
For this Act, proof that a person—
(a) has asserted, declared or advertised that he or she is an office bearer of an association; or
(b) is commonly treated by other persons who participate in the affairs of the association as an office bearer of the association; or
(c) exercises or purports to exercise authority in the affairs of the association;
is, unless the contrary is proved, sufficient proof that the person is an office bearer of the association.
For the purposes of this case and this decision I do not need to give any detailed consideration to the interpretation of the provisions about sentencing (s 7), parole (s 8) nor about cooperation with law enforcement (s 9), except as to how to interpret penal statutes and the conclusions to be drawn.
Under sections 3 and 6, to decide whether Hannan has a case to answer for the circumstance of aggravation that he was an office bearer of an association, it is first necessary to decide if there is any evidence that there was an ‘association’ as defined. It is not enough that he held, or held himself out as having, any position of authority over Murrell or others.
To decide whether Murrell has a case to answer for the circumstance of aggravation that he was a ‘vicious lawless associate’ it is, likewise, first necessary to decide if there is any evidence that there was an ‘association’ as defined. Under section 5, all three elements in paragraphs (a), (b) and (c) must be proved, including that at the times the offence of trafficking is committed Murrell was a participant in the affairs of an ‘association’.
Therefore, the case against each defendant rests or falls on whether there is evidence that there existed, at the times specified in the charges, an ‘association’ as defined in section 3.
The Acts Interpretation Act 1954
I also apply Part 3 (General provisions applying to Acts) in the Acts Interpretation Act 1954 to aid in the interpretation of the VLAD Act:
14 Material that is, and is not, part of an Act
(1) A heading to a chapter, part, division or subdivision of an Act is part of the Act.
(2) A heading to a section, subsection or another provision of an Act is part of the Act if—
(a)the Act is enacted after 30 June 1991; or
(b)the heading is amended or inserted after 30 June 1991.
(3) An example in an Act of the operation of a provision of the Act is part of the Act.
(4) A note in an Act to the Act or to a provision of the Act, as opposed to a footnote, an editor’s note or an endnote mentioned in subsection (7), is part of the Act.
Example of a note—
See the note to section 2.
Example of a footnote—
See the footnote to schedule 1, definition Acting Governor.(5) A schedule or appendix of an Act is part of the Act.
(6) Punctuation in an Act is part of the Act.
(7) A footnote or editor’s note to an Act or to a provision of an Act, and an endnote to an Act, are not part of the Act.
14A Interpretation best achieving Act’s purpose
(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.
(3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.
Example—
There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.14B Use of extrinsic material in interpretation
(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—
(b)if the provision is ambiguous or obscure—to provide an interpretation of it; or
(c)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
(d)in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—
(a)the desirability of a provision being interpreted as having its ordinary meaning; and
(b)the undesirability of prolonging proceedings without compensating advantage; and
(c)other relevant matters.
(3) In this section—
extrinsic material means relevant material not forming part of the Act concerned, including, for example—
(a)material set out in an official copy of the Act; and
(b)a report of a royal commission, law reform commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and
(c)a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and
(d)a treaty or other international agreement that is mentioned in the Act; and
(e)an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and
(f)the speech made to the Legislative Assembly by the member when introducing the Bill; and
Note—
See section 53 in relation to Bills introduced before the commencement of that section.(g)material in an official record of proceedings in the Legislative Assembly; and
(h)a document that is declared by an Act to be a relevant document for the purposes of this section.
ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.
14C Changes of drafting practice not to affect meaning
If—
(a) a provision of an Act expresses an idea in particular words; and
(b)a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example—
(i) the use of a clearer or simpler style; or
(ii) the use of gender-neutral language;
the ideas must not be taken to be different merely because different words are used.
I apply each of these sections under the headings which follow.
I also note that the VLAD Act did not draw on the assistance which ‘examples’ could have given to the interpretation of the VLAD Act. Under section 14D of the Acts Interpretation Act an ‘example’ may not limit, and may extend, the meaning of the provision in which the example is given.
“Vicious” and “Lawless”
An immediate and obvious inquiry is whether the use of the word ‘vicious’ lends any help to achieving a correct interpretation of what is an ‘association’.
The only places where the word ‘vicious’ appear anywhere in VLAD are:
i.in the name and short title of the Act (section 1),
ii.the preamble (“An Act for the purpose of disestablishing vicious lawless Associations”),
iii.the objects (section 2),
iv.the definitions of ‘base sentence’ and ‘further sentence’ (section 3),
v.in section 5, quoted above, which sets out the elements of, and meaning of, the phrase ‘vicious lawless associate’, and
vi.in the provisions about sentencing, parole, and cooperation with law enforcement (sections 7 to 9).
The Oxford English Dictionary defines “vicious”. I think the average person might usually use the word vicious in line with the second meaning given in the Oxford English Dictionary, which is “bad tempered, spiteful, as in a vicious dog, mood, or in remarks or severe, as in severe or vicious storm – severe weather.” But the first meaning given is “of the nature of vice, morally evil or injurious, addicted to vice, and gives the example ‘vicious companions’. While receiving submissions I asked “so wouldn’t the legislature be intending to use the word vicious in that first sense?” However, “vicious” and “lawless” are not defined in VLAD and we will never know, for present purposes, what use the legislature, or the Attorney-General, intended courts to make of those words.
Throughout the Act, the words ‘vicious’ or “lawless” are only ever used in either the phrase ‘vicious lawless associate’ or ‘vicious lawless association’.
The words ‘vicious’ or “lawless” are not defined at all, anywhere, in, or for the purposes of, VLAD.
The words ‘vicious’ or “lawless” are not used in the definition of an ‘association’ in section 3.
Similarly, even though a primary and stated goal of the VLAD Act is to disestablish vicious lawless associations, the phrase ‘vicious lawless association’ appears only in the short title and preamble, but it is not defined, and does not appear, anywhere else in the body of the VLAD Act.
In Kuczborski v Queensland (above) at [14] the Chief Justice of the High Court of Australia, French CJ, observed:
“[14] The term “association” in the VLAD Act is defined as meaning any of a corporation, an unincorporated association, a club or league and any group of three or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal. Only a tiny minority of the range of the bodies or groups covered by the definition of “association” could conceivably attract the description “vicious” or “lawless”. The term “vicious lawless association”, which appears in the title to the VLAD Act, is not defined and appears nowhere in the body of the Act. It is a piece of rhetoric which is at best meaningless and at worst misleads as to the scope and substance of the law.” (My underlining).
To arrive at an interpretation of the meaning of an ‘association’ that will best achieve the purpose of the Act, nothing is to be gained from a consideration of the use of the words “vicious” or “lawless” in VLAD. Labels do not make arguments. Reliance by the prosecution on such labels is futile.
Further, section 14A(2) of the Acts Interpretation Act 1954 prevents the use of the terms “vicious” and “lawless” to create or extend criminal liability.
Instead, it is necessary to focus on the elements which the prosecution needs to prove and which are listed in the definition of ‘association’ in section 3 of VLAD.
The Ejusdem Generis or Class Rule
As stated above, the prosecution case relies on the definition in section 3, paragraph (d) namely, that the defendants where members of a “group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal”.
However, Mr Courtney, for Murrell, submitted that “in interpreting example (d) guidance should be taken from examples (a) to (c). Examples (a) to (c) refer to corporations, unincorporated associations, clubs or leagues. The flavour of those examples is I submit something with structure and control.”
Firstly, it seems Mr Courtney is relying on the rule of statutory interpretation known as the ‘ejusdem generis’ rule (AKA the ‘Class Rule’).
Secondly, it is necessary to consider whether this so-called rule is now excluded by the combined application of section 14A(1) and (3) and the example about taxing legislation provided in section 14A, which declares that the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation despite any presumption or rule of interpretation.
The statutory example in section 14A is that despite the rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour, section 14A requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour. Does section 14A exclude the Class Rule?
In R v Regos (1947) 74 CLR 613; [1947] ALR 308; (1947) 21 ALJR 110; Latham CJ held:
“The ejusdem-generis rule is sometimes stated in very broad terms as, for example, by Lord Campbell in R v Edmundson (1859) 28 LJ MC 213, at p 215 — "Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified." But in more recent cases a very different view has been taken of the rule as, for example, in Anderson v Anderson (1895) 1 QB 749, where it was said in the Court of Appeal that "prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before" (1895) 1 QB, at p 753. The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v Dowgate Steamship Co Ltd (1910) 1 KB 410, at p 419).
The rule is that general words may be restricted to the same genus as the specific words that precede them … . Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co v SS Knutsford Ltd (1908) 2 KB 385, it was pointed out that "Unless you can find a category there is no room for the application of the ejusdem-generis doctrine" — per Farwell LJ (1908) 2 KB, at p 403 … . In Mudie & Co v Strick (1909) 100 LT 701, Pickford J said: "You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then . . . you must read all the particular words separately, and take the general words separately also" … (W)here it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things "possess some common and dominant feature" so that they can be described as constituting a genus distinguished by that feature.
…
The authorities to which I have referred show that the ejusdem generis rule can be applied only where there is a genus to which all the acts or things specifically mentioned can be assigned. It is not sufficient to show that there are two or more such genera … .”
In VLAD, section 3, after referring to corporations, unincorporated associations, clubs and leagues, the section refers to “any other group …”. Previous authorities have considered the meaning of similar terms, in the context of whether to apply the class rule.
In Purdon v Dittmar [1972] 1 NSWLR 94 at 98-99, the NSW Court of Appeal, per Sugerman P., Holmes J.A. and Taylor A.J.A. agreeing, held:
“… the word “otherwise” as explained in the large Oxford Dictionary … is defined as meaning: “In another way or in other ways; in a different way, or by other means, differently.” In other words, the section now says “stolen or” in some other or different way “unlawfully obtained”.
That accords, with respect, with the view which was taken by Windeyer J. in Crowe v. Graham (1968) 41 A.L.J.R. 402, at p. 407. … . His Honour said:
“The words ‘or otherwise publishes’ in s. 16 (d) mean ‘or in other wise publishes’ that is to say ‘in some other manner or way publishes’. To read ‘or otherwise’ as meaning ‘likewise’, ‘in some like manner or way’, seems to me a departure from the ordinary meaning of the phrase. … Their effect is not to enlarge an existing genus by adding new things of like kind. It is to demonstrate a different and wider genus to which the prohibited acts all belong, namely publishing … .”
... I come to the conclusion that the words “or otherwise obtained” not only were deliberately inserted, but were so inserted by way of overcoming the operation of the ejusdem generis rule as it had previously been applied and by way of giving to the terms of s. 40, as contrasted with s. 27 as it had been construed, an expanded meaning.” (My underlining)
Also, in Stewart v Lizars [1965] VR 210 at 210 to 212; (1965) 12 LGRA 76 Winneke J examined the meaning of a section in a Litter Act which made it an offence to throw down, drop or otherwise deposit and leave any litter in or on any public place unless the depositing and leaving takes place in circumstances which are not relevant to the present case. The term “litter” was defined to mean bottles, tins, cartons, packages, paper, glass, food or other refuse or rubbish, and "public place" was defined to mean any street, road, lane or thoroughfare. Winneke J held:
“It is well established that if particular words which precede general words do not constitute a genus, there is no room for the application of the ejusdem generis principle …
In my opinion, the particular words preceding the general in the definition of "litter" contained in s 2 of the Act do not define any such single relevant genus. … . As the particular words do not, in my view, show any other single relevant genus, but on the contrary tend to gather colour from the general words which follow them, I am of opinion that the ejusdem generis principle is inapplicable, and the magistrate was in error in applying it to the words of definition in s 2.”
In Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] ALR 314; (1947) 21 ALJR 113; Starke J held that where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified. The "rule of construction” is subordinate to the real intention of the parties, and does not control it. It is an instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of it or of any other “canon of construction". It was held that nothing could be plainer than that prima facie “general words are to be taken in their larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before" Dixon J held:
“But the truth is that it is wrong to use the rule for an ejusdem-generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter. In this way it is proper to consider what is the natural reason why the draftsman should add to his list of more specific offences a power enabling the Executive to constitute other acts and omissions black marketing, provided they contravene the regulations.”
Clearly, the first three paragraphs of the definition of ‘association’ in section 3 of VLAD establish a class or genus of structured recognisable organisations to which persons may become office bearers, members or affiliates or in some other way become involved in sharing in the activities, goals and support of that organisation.
However, the issue is whether the deliberate use of the phrase “any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal” was used to overcome the class rule.
Legislative drafters (Parliamentary Counsel), and the Parliament, must be taken to know how to draft an Act so as to exclude the class rule.
One example of such drafting appears in the Foreign States Immunities Act 1985 (Cth). In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (ACCC) (2012) 247 CLR 240; (2012) 290 ALR 681; (2012) 86 ALJR 1071; [2012] HCA 33; at para [37] to [38] the following appears:
“37.The term "commercial transaction" as it appears in s 11(1) is defined in s 11(3) as meaning: „a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged and, without limiting the generality of the foregoing, includes:
(a) a contract for the supply of goods or services;
(b)an agreement for a loan or some other transaction for or in respect of the provision of finance; and
(c)a guarantee or indemnity in respect of a financial obligation; but does not include a contract of employment or a bill of exchange.‟
38.The express statement in s 11(3) "without limiting the generality of the foregoing" precludes resort to the ejusdem generis principle to limit the generality of the preceding words in the definition of "commercial transaction". In Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; 24 ALR 513 at 519; [1979] HCA 26, Mason J said of the statute under consideration there:
“In this case the words 'without limiting the generality of the foregoing' evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power to lend contained in par (a).” (My underlining)
I note also that the terms in the Foreign States Immunities Act were not only expressed to be 'without limiting the generality of the foregoing' but that phrase was followed immediately by the word ‘includes’. The words which followed the words which precluded the operation of the ejusdem generis or class rule of interpretation were also expressed, expansively, to be inclusionary.
The VLAD definition of ‘association’ is not inclusionary. The Commonwealth Parliament had made it clear in the Foreign States Immunities Act that the ejusdem generis rule could not apply. The State Parliament of Queensland has not made that clear at all in the VLAD Act.
The class rule would therefore indicate that for any group of three or more persons to come within paragraph (d) it must be one with formal or informal structure and purpose, with a legal or illegal existence, in which members, employees, office bearers and associates can enjoy or expect support and various benefits. It is also relevant that each of the class or genus of groupings in paragraphs (a) to (c), whether they are corporations, unincorporated associations, clubs or leagues, can be structured with varying degrees of formality or informality, and can be allowed or made illegal by the stroke of a Parliamentary pen. Examples of the later are sections 60A to 60C of the Criminal Code (Qld) combined with section 1 (c) of the Criminal Code definition of “criminal organisation" so that a person may be deemed to be a member of a deemed criminal organisation.
This interpretation is consistent with the view that when a court is interpreting a statute the Parliament can be presumed not to have deliberately intended the law to have illogical and perverse consequences. In other words, and contrary to Mr Courtney’s submission, VLAD is not designed to disestablish a family of three or more persons who jointly commit a crime like growing and selling a cannabis crop. A family who commit crime together may ‘do time’ together but unless they are known as more than the Smiths or Joneses, for example, the ‘ndràngheta’[3], their offending will not attract the mandatory additional crushing penalties planned by the VLAD Act.
[3] ‘Ndràngheta being the well-known name for some mafia style families, clans or organisations of Calabrian origin.
On my reading of section 14A of the Acts Interpretation Act, and of the superior court decisions which have continued to consider the ‘ejusdem generis’ rule, it is still a valid aid to statutory interpretation, provided it is not employed in a way that does not best achieve the Act’s purpose. Words and phrases in an Act should also be given their natural meaning and construction.
Obviously, the same approach would have to hold for the rule about strict interpretation of penal legislation (discussed next).
I also find that, even if the class rule was excluded, in a process of interpretation which takes into account the whole instrument and the subject matter, section 3(d) is not simply limited to literally ‘any’ other groups. It specifically casts an onus on the prosecution to prove beyond reasonable doubt that the group has all four characteristics:
i.a group “of three or more persons” (two would not suffice despite the prosecutors contorted contention about a company called Bensar), and
ii.“by whatever name called” (there is no evidence the group to which Hannan and Murrell belonged (as opposed to a corporation owned by one of them) was known by any name whatsoever), and
iii.“whether associated formally or informally”, and
iv.“whether the group is legal or illegal”.
Interpretation of Penal Laws
In Beckwith v The Queen (1976) 135 CLR 569; (1976) 12 ALR 333; (1976) 51 ALJR 247 Gibb J held that in the absence of any indication that the wider construction of a section in the Customs Act contended for in that case was clearly better calculated to give effect to the intention revealed in the Customs Act, the doubt should be resolved in favour of the liberty of the subject.
I refer to and follow the following rulings by Gibbs J in Beckwith:
At ALR 337:
“As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains.”
At ALR 339:
“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567–8; Craies on Statute Law 7th ed, pp 529–34. The rule is perhaps one of last resort.”
At ALR 340:
“Of course a court is not concerned with the wisdom or desirability of the provisions of the statute, but the matters mentioned are material because the provisions of the statute are doubtful, and if a construction that would apply s 237 to the provisions of s 233 b was clearly better calculated to give effect to the intention revealed in the Customs Act than one which denied its application, that would provide a reason why the construction should be adopted even though it enlarged the scope of the penal statute.
In the end, I have reached the conclusion that the considerations to which I have referred, and which suggest that s 237 is not intended to apply to s 233 b, have not been outweighed by any indications of a contrary intention. The effect of the provisions at the least remains doubtful and that doubt should be resolved in favour of the liberty of the subject.”
See also Murphy J at 346:
“The applicant also submitted that there is no offence of attempting to have goods in possession arising from s 237 in relation to s 233 because an attempt to have possession is not intelligible. The suggested offence is not the same as an attempt to acquire possession which is easily understood (see R v Grant (1975) 2 NZLR 165). It is debatable whether an attempt to have possession is an understandable concept (see the Court of Criminal Appeal in this case: People v Siu (1954) 271 P (2d) 575; People v Foster (1950) 91 NE (2d) 875; contrast R v Grant). Because of the difficulty in understanding it, an intention to create such an offence should not be attributed to Parliament. When Parliament imposes very heavy criminal penalties, it should be taken as speaking plainly and not as creating offences which can only be understood (if at all) with very great difficulty.”
When I considered the objects of VLAD, above, I referred to Kuczborski v Queensland per Crennan, Kiefel, Gageler and Keane JJ, and that the Queensland Parliament intended to achieve the objects of VLAD by the threat of severe punishment.
If there is any doubt VLAD is penal legislation, one should also refer to Kuczborski (above) at [12], [13] per French CJ:
“[12]Declared offences are set out in Sch 1 to the VLAD Act. They may also be prescribed by regulation. The range of the declared offences in Sch 1 is wide in subject matter and gravity. They include offences punishable by a maximum sentence of 1 year’s imprisonment up to offences punishable by imprisonment for life. Under the VLAD Act, it is quite possible that a person who would not receive a custodial sentence for a declared offence in the lower range of seriousness would nevertheless, if an officer of a relevant association, be sentenced to a mandatory 25 years imprisonment.
[13]Neither “vicious” nor “lawless” is a defined term. The class of persons designated by the VLAD Act as “vicious lawless associates” may include some who would attract the epithets “vicious” and “lawless” in ordinary parlance. It includes persons who would not. The class of declared offences includes offences which, according to the facts of a particular case, could be described as “vicious”. It includes offences which would not.” (My underlining)
Much of the only High Court authority on VLAD is obiter[4]. However, it is all highly persuasive and this court should be guided by it, if possible.
[4] Obiter: said in passing, not part of or essential to the decision reached.
The VLAD Act does seek to impose additional and crushing penalties on people who commit serious crime. However, policing people also for who they are, rather than solely for the criminal activity they are involved in, poses risks. In such circumstances and when the Act does not clearly define who is meant to be caught by its wide cast net, the law may lead to lazy policing, where only criminal intelligence about membership, as opposed to actual evidence of wrong-doing, is required for the power of the State to bring the severest of additional criminal consequences upon its citizens, here - people who will already face up to 25 years in prison. The penalties are so severe that VLAD may also result in corruption and in improper inducements being offered to defendants to avoid the addition of the VLAD circumstances of aggravation because under section 9 of VALD the offer in writing to co-operate with law enforcement about a declared offence can only achieve the avoidance of additional time served and non-parole periods if the Commissioner of Police accepts the offer. His or her decision is final, cannot be appealed, is not judicially reviewable, nor open to declaratory or injunctive relief. The decision is his or hers alone. In effect it is the police, through the Commissioner of Police, and not the courts, who decide whether a person receives the additional periods of imprisonment or parole eligibility dates. If the offer is not accepted after a person is proven to a jury to be a “vicious lawless associate” or an “office bearer” section 7 of VLAD directs the court that it must impose the additional sentences without any further judicial or discretionary considerations, no matter what the person’s personal or family circumstances may be by then.
As Commissioner Michael Byrne QC[5] points out:
“The mandatory sentencing regime in the VLAD Act also, essentially, renders nugatory section 9(2) of the Penalties and Sentences Act, which provides a list of matters that a court must have regard to in sentencing an offender—including, for example:
· the maximum and minimum penalty prescribed for the offence; and
· the extent to which the offender is to blame for the offence; and
· any damage injury or loss caused by the offender; and
· the offender’s character, age and intellectual capacity.”
[5] See the final report of the Queensland Organised Crime Commission of Inquiry delivered on 30 October 2015 (the day after this committal hearing), at paragraph 5.5.2.
There can be no doubting VLAD is intended to be a penal law. Therefore, it is essential that, while maintaining allegiance to section 14A of the Acts Interpretation Act, to read and apply the meaning of “association” in VLAD so as to give it the interpretation that will best achieve the purpose of the Act in preference to any other interpretation, I must also read the provision strictly.
This means no more than needing to apply all of the words in section 3, according to their natural meaning, in an exact way, while taking their colour and meaning from the whole Act. It would be a mistake, therefore, to refer to paragraph (d) in section 3 of VLAD and to leave out any reference to the additional attached words “by whatever name called”, a concept dealt with further below.
Kuczborski v Queensland
In Kuczborski v Queensland (above) the constitutional validity of VLAD was not essential to the ultimate decision of the High Court because Kuczborski, although a member of the Brisbane chapter of the Hells Angels Motorcycle Club, had not been charged with a declared offence, so he lacked standing to challenge the validity of VLAD. On the other hand, because Kuczborski was a member of a declared criminal organisation, the new offences under sections 60A, 60B and 60C of the Criminal Code (Qld) directly affected his freedom of movement and association. Therefore, he did have standing to challenge the validity of these provisions and, consequently, the High Court decided those provisions were indeed valid ones.
Crennan, Kiefel, Gageler and Keane JJ[6] acknowledged that the laws challenged by Kuczborski do operate when an offence has been committed against those existing, unchallenged laws. Hannan and Murrell have not challenged the validity of VLAD. However, they do argue it does not apply to them.
[6] At [151], [177], [178], [181], [182], [188], [259].
As it turns out (contrary to the submissions I heard and read) the High Court had quite a lot to say about the VLAD Act. I rely on the following extracts (with my underlining added, and with footnotes and citations removed for ease of reading), and on those extracts I have already quoted above:
By French CJ:
“[9]At the heart of the VLAD Act is the term “vicious lawless associate”, which is defined in s 5(1) of the Act as a person who:
(a)commits a declared offence; and
(b)at the time the offence is committed, or during the course of the commission of the offence, is a participant in the affairs of an association (relevant association); and
(c)did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association.
The status of “participant in the affairs of an association” attaches to a person who “asserts, declares or advertises his or her membership of, or association with, the association”, a person who “seeks to be a member of, or to be associated with, the association” and a person who “has attended more than 1 meeting or gathering of persons who participate in the affairs of the association in any way”. It also includes a person who “has taken part on any 1 or more occasions in the affairs of the association in any other way”. The term “participating in the affairs of … the relevant association” in s 5(1)(c) bears a corresponding meaning. Participation does not necessarily involve any criminal act or purpose.
[10]The VLAD Act provides that a court sentencing a “vicious lawless associate” for a declared offence must impose a further sentence of 15 years imprisonment. In the case of a “vicious lawless associate” who was, at the time of the commission of the declared offence, an office bearer of an association, there is a further mandated cumulative sentence of 10 years imprisonment. The additional sentences cannot be mitigated or reduced under any other Act or law. If the base sentence did not involve a term of imprisonment, the vicious lawless associate is to immediately begin to serve the further sentence provided for by s 7(1)(b). There is no eligibility for parole during any period of imprisonment for a further sentence.
[11]It is not necessary, in order to attract those additional sentences, that the prosecution prove that the relevant association has a criminal purpose. There is, however, a carve out from the definition of “vicious lawless associate” by way of the defence in s 5(2), the burden of proving which rests upon the alleged associate:
… a person is not a vicious lawless associate if the person proves that the relevant association is not an association that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences.
[12]Declared offences are set out in Sch 1 to the VLAD Act. They may also be prescribed by regulation. The range of the declared offences in Sch 1 is wide in subject matter and gravity. They include offences punishable by a maximum sentence of 1 year’s imprisonment up to offences punishable by imprisonment for life. Under the VLAD Act, it is quite possible that a person who would not receive a custodial sentence for a declared offence in the lower range of seriousness would nevertheless, if an officer of a relevant association, be sentenced to a mandatory 25 years imprisonment.
[13]Neither “vicious” nor “lawless” is a defined term. The class of persons designated by the VLAD Act as “vicious lawless associates” may include some who would attract the epithets “vicious” and “lawless” in ordinary parlance. It includes persons who would not. The class of declared offences includes offences which, according to the facts of a particular case, could be described as “vicious”. It includes offences which would not.
[14]The term “association” in the VLAD Act is defined as meaning any of a corporation, an unincorporated association, a club or league and any group of three or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal. Only a tiny minority of the range of the bodies or groups covered by the definition of “association” could conceivably attract the description “vicious” or “lawless”. The term “vicious lawless association”, which appears in the title to the VLAD Act, is not defined and appears nowhere in the body of the Act. It is a piece of rhetoric which is at best meaningless and at worst misleads as to the scope and substance of the law.” (My underlining)
…
By Hayne J:“[61] The explanatory notes to each of the Bills that became the VLAD Act and the Disruption Act referred to “a comprehensive package of legislative reforms, contained in three Bills”. The Tattoo Parlours Bill 2013, introduced into the Queensland parliament on the same day, was the third of the Bills which formed the “comprehensive package”.
[62] The explanatory notes to the Bills that became the VLAD Act and the Disruption Act said each Bill was directed at “criminal gangs”. The explanatory notes to the Tattoo Parlours Bill said the Bill was directed at “criminal organisations, including criminal motor cycle gangs and their associates”. In a ministerial statement, the Premier said that the three Bills were “not designed to just contain or manage [criminal motorcycle gangs]; they [were] designed to destroy them”.
[63] The provisions made by the resulting Acts do not seek to achieve the destruction of any organisation by dissolving the organisation or making membership of the organisation unlawful. The Acts provide for some new norms of conduct but, for the most part, proceed by requiring the courts to impose special additional punishment on offenders who are shown to have been, at the time of the commission of the offence, participants in a particular kind of association or organisation. But the provisions made by the Acts do not operate by reference to a single definition of what are the relevant associations or organisations or even by reference to a single definition of what constitutes being a participant in the relevant group. And as will later become apparent, although the provisions can be seen as divided by reference to the two forms of association or organisation with which they deal, even that division must take account of variations and qualifications applicable to only some of the provisions dealing with the relevant form of association or organisation.
[64] The VLAD Act is directed at what it defines as a “participant” in the affairs of an “association”. By contrast, the provisions made by the Disruption Act are directed at what it defines as a “participant” in a “criminal organisation”, and the provisions made by the Tattoo Parlours Act are directed to articles associated with what it defines as a “declared criminal organisation”. An “association” is defined in the VLAD Act in different terms from the (more than one) definition of “criminal organisation” given in the provisions of the Disruption Act. The definition of a “declared criminal organisation” in the Tattoo Parlours Act takes up only one limb of a definition of “criminal organisation” given in the Disruption Act.
[65] No doubt it is necessary to recognise that the provisions made by the Disruption Act and the Tattoo Parlours Act amended other Acts. And each of those other Acts must be construed according to its terms. But if the VLAD Act, the Disruption Act and the Tattoo Parlours Act were to constitute a “package” of laws, it might reasonably have been expected that the most basic elements of the laws (identifying the individuals and groups to which they were directed) would be defined identically.
[66] That this has not been done can only create unnecessary difficulty and complexity in the administration of the criminal law. It entails, at least, that those administering and enforcing the relevant provisions must pay the closest attention to the applicable provisions and recognise that a conclusion reached about the engagement of one set of provisions very often cannot be applied when considering the application of other provisions.
[67] The task of those administering and enforcing the relevant provisions is made no easier by the fact that the relevant provisions of the VLAD Act hinge on the definition of a “vicious lawless associate”. As will shortly be explained, that expression is defined in a way that does not depend upon any determination that the person concerned is personally “vicious” or generally “lawless”. The expression is, therefore, at least inapt. Perhaps it was thought to reflect the stated political objective of dealing with “criminal gangs”, but it is an expression which is likely to mislead in at least two ways. First, it is an expression which suggests a much narrower focus for the Act than its provisions require. Second, it is an expression which, at a trial, can only create prejudice and divert attention from the issues which a jury would have to decide. The adoption of this manner of drafting is antithetical to the proper statement and administration of the criminal law.
[68] It is necessary to say more about the relevant definitions.
An “association” for the VLAD Act
[69]Section 3 of the VLAD Act defines “association” as any of a corporation, an unincorporated association, a club or league, or “any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal”. In its terms, this definition embraces any three-member conspiracy to commit a crime, as well as a wide variety of other formal and informal groups of three or more persons.
A “vicious lawless associate”
[70]The definition of “vicious lawless associate” in s 5(1) of the VLAD Act has three elements: (a) the person must commit “a declared offence”; (b) “at the time the offence is committed, or during the course of the commission of the offence”, the person must be “a participant in the affairs of an association”; and (c) the person must do or omit to do the act that constitutes the declared offence “for the purposes of, or in the course of participating in the affairs of, the relevant association”. A schedule to the VLAD Act identifies 70 offences as “declared offences”. They include, but are not limited to, offences of violence, drug offences and offences in relation to weapons. Regulations may be made prescribing other offences as declared offences.
[71] Section 4 of the VLAD Act prescribes what is meant by being a “participant in the affairs of an association”. Four forms of conduct are identified: (a) asserting, declaring or advertising membership of, or association with, the association; (b) seeking to be a member of, or to be associated with, the association; (c) having attended more than one meeting or gathering of persons who participate in the affairs of the association in any way; and (d) having taken part on any one or more occasions in the affairs of the association in any other way.
[72] Obviously, this definition of a participant in the affairs of an association includes many kinds of connection with an “association”. Some of those connections refer to past acts: having attended more than one meeting or gathering; having taken part on any one or more occasions in the affairs of the association. Yet the definition of “vicious lawless associate” in s 5 is cast in the present tense. Section 5(1)(b) provides that the person must be a participant in the affairs of an association “at the time the offence is committed, or during the course of the commission of the offence” (emphasis added). How the apparent tension between these requirements should be resolved was not examined in argument of this matter.
[73] Section 5(2) of the VLAD Act qualifies the definition of “vicious lawless associate”. It provides that a person is not a vicious lawless associate if that person proves “that the relevant association is not an association that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences”.
A “criminal organisation”
[74]By contrast with the VLAD Act, those of the impugned provisions which were inserted or amended in other Acts by the Disruption Act depend upon a definition of “criminal organisation”.
...
[85] Section 60A(3) of the Criminal Code defines who is a “participant” in a criminal organisation. This definition is taken up by the impugned provisions of the Criminal Code and the Bail Act. The term has five applications, including: (a) if the organisation is a body corporate, a director or officer of the body corporate; (b) a person who asserts, declares or advertises his or her membership of, or association with, the organisation; (c) a person who seeks to be a member of, or to be associated with, the organisation; (d) a person who attends more than one meeting or gathering of persons who participate in the affairs of the organisation in any way; and (e) a person who takes part in the affairs of the organisation in any other way. The definition expressly excludes from its reach “a lawyer acting in a professional capacity”.
[86] This definition of a “participant” in a criminal organisation is similar to, but not identical with, the definition, in the VLAD Act, of a “participant” in the affairs of an association. Those similarities, however, should not be permitted to obscure the differences between an “association” for the purposes of the VLAD Act and a “criminal organisation” for the purposes of the other impugned provisions.” (My underlining)
The only relevant passage by Crennan, Kiefel, Gageler and Keane JJ at [182] has already been quoted above and is concerned with how the objective of VLAD, of discouraging membership of relevant associations, is meant to be achieved by the threat of severe punishment.
Bell J, at [280], was concerned with Kuczborski’s standing to challenge the validity of VLAD and did not offer any evaluation of the drafting.
The highly persuasive authority of the High Court therefore informs me that—
i.VLAD is directed at “criminal gangs” and not only at outlaw motorcycle gangs.
ii.Nothing is to be gained by a comparison of definitions in the different Acts within the package of legislation mentioned,
iii.The class of persons designated by the VLAD Act as “vicious lawless associates” may include some who would attract the characterization “vicious” and “lawless” as those expressions are ordinarily used. However, it includes persons who would not. The class of declared offences includes offences which, according to the facts of a particular case, could be described as “vicious”. But, it includes offences which would not.
iv.Further, the expressions “vicious” and “lawless” are not defined and their usage add nothing whatsoever to my interpretation of “association” in section 3. Indeed, reference to them is likely to mislead.
v.The High Court did not need to consider, as I must, what meaning is to be given to the phrase “by whatever name called”.
What does the phrase “by whatever name called” mean?
Consideration of extrinsic material
Section 14B of the Acts Interpretation Act permits a consideration of the extrinsic material listed in subsection (3) to assist in the interpretation of the expression “association” and the expression “any other group of three or more persons by whatever name called” within it—
(a)if the provision is ambiguous or obscure—to provide an interpretation of it; or
(b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
(c)in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
As Gibbs J held in Beckwith v R (above) as a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains.
The expression “by whatever name called” has not previously been judicially considered in this context. It is an expression deliberately inserted in the definition of “association” and one which must have been intended to have some meaning. It is not in the class of expressions the High Court described as rhetoric. Indeed, the expressions “vicious” and “lawless” do not appear in the definition of “association” in section 3 and can be ignored for that reason alone. The expression “by whatever name called”, as used, would ordinarily mean it is, in one sense, expansive in that the group can have any name, and at the same time it is limiting, in that the group has to have a name. The prosecution did not submit the section is wide enough to catch a group which is not called by any name, but that could be one possible, but not ordinary, meaning of the phrase.
The phrase “by whatever name called”, as used, could be expansive because the group could have any type of nomenclature and not just those which are similar to “corporation”, “association”, “club” or “league”. It could be called the “XYZ Syndicate”, “XYZ Group”, “XYZ Conspiracy”, “XYZ Clan”, or any other name like “The Joke”.
The phrase “by whatever name called”, as used, could also limit the application of the definition of “association” to groups with a name, i.e. that they must be called by some name. That then raises the question whether it encompasses only a group which names itself. Some groups are given names by the police during a covert operation. Is that enough? I think not, because it would then be up to the police to decide whether the group will attract crushing penalties by deciding whether to name the group, or not. Some groups choose their own names such as the Hells Angels and other outlaw motorcycle gangs. This would clearly be included in the definition of “association”. Other groups adopt a name by which they have become notorious. It is not clear if the ordinary meaning could lend itself to include the later.
Do the explanatory notes answer these questions, or help to do so?
The Explanatory Notes
The Explanatory Notes to the Vicious Lawless Association Disestablishment Bill 2013, which became the VLAD Act, state:
“Policy objectives and the reasons for them
On 28 September 2013, in the wake of violence at Broadbeach involving criminal motorcycle gangs, the Queensland Government announced its commitment to:
•adopt a zero tolerance crackdown on criminal gangs;
• provide whatever additional resources are necessary for the Queensland Police Service to carry out this crackdown;
•introduce a range of tougher laws to tackle criminal gangs; and
• support any moves to have additional criminal gangs declared a ‘criminal organisation’ under the Criminal Organisation Act 2009.
In order to deliver on the commitment to introduce tougher laws to tackle criminal gangs, the Government is introducing a comprehensive package of legislative reforms, contained in three Bills.
The primary objective of the Vicious Lawless Association Disestablishment Bill 2013 is to:
•disestablish associations that encourage, foster or support persons who commit serious offences; and
•increase public safety and security by the disestablishment of the associations; and
•deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the associations.
The structure and operation of these criminal associations poses particular challenges to law enforcement and the criminal justice system. The association often provides members with the impetus, support and infrastructure to further their criminal activities and their violent behaviour. These associations are generally resilient and difficult to disband. Indeed, a successful prosecution against some individual members may not impact the overall ability of the association to operate. They are often characterised by silence, violence and an unwillingness to cooperate with law enforcement, impeding the ability of authorities to successfully cultivate informants, infiltrate and disestablish the associations. This Bill is designed to address these particular challenges and provides for a targeted regime to dismantle these criminal associations.
Achievement of policy objectives
The Bill achieves the objectives by creating a legislative scheme whereby members of criminal associations that commit serious criminal activity for the purposes of, or in the course of participating in the affairs of, the relevant association, are subject to significant terms of imprisonment.
This penalty regime is to be imposed by the court without reduction or mitigation unless the offender cooperates with law enforcement. Only in circumstances where an offender provides such cooperation, to the satisfaction of the Commissioner of the Queensland Police Service, may a penalty be reduced. The purpose of this regime is to cultivate informants within associations and to deny individual members the assistance and support usually provided by their grouping.
…
Consistency with fundamental legislative principles
The Bill impacts on the rights and liberties of individuals through increasing penalties, imposing mandatory terms of imprisonment and denying parole for particular types of offenders.
The Bill is necessary for an appropriate and effective response to public safety concerns raised by the activities of criminal associations. This Bill targets those individuals who offend while enjoying the support and encouragement of criminal associations. The Bill will enhance community safety and ensure public protection from the activities of such associations, by addressing offending through general and specific deterrence (as a result of the significant penalties), and by encouraging cooperation with law enforcement for a reduction in penalty.
The Bill will operate prospectively and will only capture those offenders who commit offences following commencement of the Bill.”
The “Notes on provisions” each merely restate, in abbreviated form, as they usually meant to, the content of each proposed section. However, for clause 5 (which became section 5 of the VLAD Act) the Notes make the following point:
“The intention is to characterise persons as vicious lawless associates who belong to associations which encourage, support or foster the commission of offences and who are, therefore, persons who commit offences as part of their membership activities.”
There is nothing in the Explanatory Notes which adds anything to the interpretation of the expression “by whatever name called” or to the interpretation of “association” in section 3 as a whole, except to confirm the objective of having a zero tolerance crack-down on ‘criminal gangs”, “criminal associations” and “criminal organisations”. I appreciate that these three references are probably meant to refer to each component of the package of three Acts mentioned but, as noted by the High Court, the language is still unclear and there is a tendency in the Explanatory Notes to use the three terms interchangeably although the definitions of each of those terms in each Act is not identical.
Hansard: the speech made to the Legislative Assembly by the Attorney-General and Minister for Justice when introducing the Bill
The Bill was introduced to Parliament on 15 October 2013. The introduction speech was quite brief. I refer to Hansard, pages 3154 to 3155:
“I am pleased to introduce the Vicious Lawless Association Disestablishment Bill 2013. This bill is part of a package of measures the Newman government is introducing to tackle organised crime in Queensland. The bill aims to create a new act that will:
•disestablish associations that encourage, foster or support persons who commit serious offences;
•increase public safety and security by the disestablishment of the associations; and
•deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the association.
These aims will be achieved by:
•imposing significant terms of imprisonment for vicious lawless associates who commit declared offences;
•removing the possibility of parole for vicious lawless associates serving terms of imprisonment except in limited circumstances; and
•encouraging vicious lawless associates to cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity.
The new act will apply to people who participate in the affairs of associations and who commit declared offences for the purposes of or in the course of participating in the affairs of the relevant association. The intention is to characterise persons as vicious lawless associates who belong to associations which encourage, support or foster the commission of offences and who are, therefore, persons who commit offences as part of their membership activities. A vicious lawless associate will be sentenced for the declared offence but will also receive a further 15 years mandatory imprisonment, cumulative to any imprisonment imposed for the declared offence. If the vicious lawless associate was, at the time of the commission of the offence, an office-bearer of the relevant association, they will receive a further 10 years imprisonment, cumulative to the 15 years and the original term of imprisonment.
The bill makes clear that the extra punishment is mandatory and cannot be reduced by the sentencing court. Further, parole will not apply to the extra punishment unless the associate cooperates with the police and other law enforcement agencies. This lever to induce informants to cooperate is a very important part of the punishment regime. An offender will only be able to mitigate his or her sentence via section 13A of the Penalties and Sentences Act where the Police Commissioner is satisfied that the cooperation will be of significant use in a proceeding about a declared offence. This will ensure that only effective cooperation is rewarded. Especially for recent recruits, where a gang member is facing an additional mandatory term of imprisonment of up to 25 years, they may well choose to become an informant. This will be an important mechanism for destroying these gangs as it will drive a wedge into the membership so that morale is broken. Codes of silence and oaths of loyalty are fractured when it becomes clear that some of those being protected by silence have sold out. The mandatory terms of imprisonment will also make it less attractive for criminals to be part of these gangs and will enhance community safety by providing for the severe punishment for serious offending.
A review of the provisions contained in the new Vicious Lawless Association Disestablishment Act will occur three years after commencement. It is imperative that this bill be passed as a matter of urgency to ensure the public is protected from the serious criminal activities of criminal associations. I commend this bill to the House.” (My underlining)
See also 15 Oct 2013 Ministerial Statements, 3115 to 3116:
“Criminal Motorcycle Gangs
Hon. JP BLEIJIE (Kawana—LNP) (Attorney-General and Minister for Justice) (9.38 am): Recent incidents on the Gold Coast have highlighted the threat criminal motorcycle gangs pose to public safety. In response, this government has promised to act quickly to enact new laws aimed at removing criminal motorcycle gangs and organised crime from Queensland. We are drawing the line on criminal motorcycle gangs in Queensland.
To this end I propose to introduce three bills today: the Vicious Lawless Association Disestablishment Bill, the Tattoo Parlours Bill and the Criminal Law (Criminal Gangs Disruption) Amendment Bill. The Vicious Lawless Association Disestablishment Bill is designed to severely punish members of criminal organisations that commit serious offences. The bill is intended to deter individuals from participating in these criminal organisations, encourage persons involved in such organisations to cooperate with law enforcement to avoid severe penalties, and break the morale of members in criminal motorcycle gangs.
The new punishment regime will apply to people who participate in the affairs of criminal organisations and commit offences or for the purpose of participating in the affairs of the organisation. Such offenders will be vicious lawless associates and subject to extra punishment beyond that which would apply for the commission of the declared offence.
…
The members of criminal motorcycle gangs are cowardly bullies who get together for mutual support to carry out crimes for personal satisfaction. The members are deliberately cruel, violent and dangerous. This legislation will ensure that it is no longer beneficial to be part of a criminal motorcycle gang or other organised crime group. Any group that persists should be prepared to feel the full weight of the law brought down upon them from today.” (My underlining)
At 3268, in answer to a concern expressed by Ms Cunningham, member for Gladstone, about reports that VLAD could extend to “something that a gang would be involved in to robbing somebody at an ATM”, The Attorney-General added:
“Mr BLEIJIE: The list is a broad list because, as I said earlier in the debate, we are dealing not only with criminal motorcycle gangs under the Vicious Lawless Association Disestablishment Bill; we are also dealing with paedophile rings and other criminal gangs that are not patched and motorcycle riders. That is why it has to be such an extensive list. … whether a trade union is going to be caught under these provisions. If one of the purposes of a trade union is to conduct illegal activity under one of the prescribed offences, then possibly.
...There are a lot of tests that one has to go through. Firstly, they have to be an association. For instance, the Bandidos might be categorised as the association. Secondly, they have to be an associate and a relevant person to the association. Thirdly, they have to be convicted as a vicious lawless associate and it is all about their conduct in terms of doing the association’s work in terms of the criminal activity. I do not think the examples the member for Gladstone used would come under these provisions. These provisions are simply taken from the codes and legislation that exist. … The intention and the aim of this legislation is criminal gangs in Queensland. There may be instances where, if you look under limb 1, which is the definition of ‘association’, it may be very broad and may take in a lot of associations, but golf clubs and bowls clubs will never satisfy the second, third and fourth elements so they will never be affected unless, in the course of the daily life of the organisation, their whole purpose is the committal of criminal activity. I do not think they are going to be caught under what the member has described.” (My underlining)
Finally, also in further debate, at p 3252 the Attorney-General stated:
“It is important to note that the vicious lawless associates may not necessarily be caught up in criminal motorcycle gangs. The definition is sufficiently broad enough to go after paedophile rings in Queensland and support our tough new laws on paedophiles and two-strike policies we have in this state and to look at other gangs in Queensland that are not criminal motorcycle gangs but organised crime gangs. That bill is sufficiently broad enough to make sure that we can go after as many of these organised crimes as we can.”
CONCLUSIONS
Clearly, the Attorney-General and Parliament meant the VLAD Act to have broad operation to known or recognisable criminal gangs, not just to Outlaw Motorcycle Gangs, but not to a small group of 17 year olds who rob from a bottle shop on just one occasion (to take Mr Courtney's example). The only thing I can see to distinguish the two is whether one has a name.
The Attorney-General stated in Parliament that clubs (such as bowls and golf clubs) will never satisfy the elements required to be caught by VLAD unless, during the daily life of the organization, their whole purpose is to commit crime. It was also made clear to the House that the intent was to cover not only criminal motor cycle gangs but also pedophile rings and other organized crime groups. I think that interpretation is supported by giving all the words in the definition of “association” in section 3 their plain English meaning. However, the current drafting would not operate against all paedophile rings either if the ring has no name. The current drafting my lead to inconsistent, capricious, arbitrary and unjust results.
Nothing stated in any of the extrinsic material adds to, or assists with, the interpretation of the phrase “by whatever name called”.
What can be said is that, reading the VLAD Act as a whole, section 3 envisages a grouping with formal or informal structure, some hierarchy of organisers and members and/or office bearers. The purpose is to disestablish and dismember not just any association but organised criminal associations, and to deter like-minded individuals from joining or remaining in them, and to prevent or discourage recruitment to them.
Section 3 recognises that for these purposes criminal associations also have names, which they call themselves, or which they adopt for use for the enforcement of codes of conduct, or for recruitment and promotion. They are often organized hierarchically with a code of conduct e.g. the code of silence based on, secrecy, violence, solidarity (often based on blood relationships) and, as the Attorney-General stated, mutual assistance.
For example, “association” in VLAD, s 3, would capture any association of Calabrian criminal Mafiosi families or syndicates such as the 'ndràngheta or even a group of several police officers, judges, lawyers, accountants or politicians involved in corrupt activities, for example earning illegally gotten gains from, and protecting criminals from prosecution for, illegal gambling, SP Bookmaking, prostitution, drug trafficking and other nefarious activities and who call themselves, or lay claim to being called, a particular name.
In the Report of a Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, 3 July 1989, at pp 32-33, Commissioner Fitzgerald (as he then was) explained that the members of an initial police protection system referred to themselves as “The Joke”.[7] The joke was fairly self-contained, largely within the then Licensing Branch of the Qld Police Force. Its members came and went. They dealt personally with their “own” s.p. bookmakers, and a list of those who were paying for protection was held by an organizer. While there was no central bank of corrupt money the members of “the joke” who did not have personal contact with an s.p. bookmaker were paid by the organizer from funds collected from those who were getting “more than their share”. Members were not paid equally. They were paid according to their importance within the joke. The organiser also made it his task to recruit new members.
[7] See The Fitzgerald Royal Commission Report (A Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct), Ch 2, para 2.2.1 at p32 for a description of “The First Joke” 1959 to 1974 and para 2.2.4 at p38 for a description of the “New Joke”.
So, it is likely “The Joke” would have ‘ticked every box’ for being an ‘association’ under the VLAD Act. It operated as a group, had more than three members, was organised hierarchically, each member fulfilled differing roles such as keeping lists of those receiving protection from prosecution, and conducting raids on those who were not, so as to provide opportunities to extend the corruption, and the organizer and others were involved in collecting and distributing the proceeds. It was a vehicle for corrupt and criminal conduct. Corrupt police officers came and went from the conspiracy. Its members supported each other, shared in its ill-gotten gains, and the group gave itself a name for the wry and cynical pride of its members and for recruitment purposes.
The High Court of Australia has recently, and in the past, upheld the validity of several anti-association laws passed in various States of the Commonwealth. The policy about how best to achieve the disestablishment of criminal associations is a matter for governments and the parliament. However, if the government or the parliament intended VLAD to catch every group of three or more persons committing declared offences, whether or not the group had a name, it could have simply said so according to well-known and long established drafting practices and in accordance with well-known and long established rules of statutory interpretation. In VLAD it did neither.
The trafficking operation in this case did not have the hallmarks of organized crime. It simply has all the elements of a local trafficking operation[8], which is still a very serious offence with a maximum penalty of 25 years imprisonment.
[8] In The Fitzgerald Royal Commission Report (A Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct), at 4.3.1, Commissioner Fitzgerald outlined the nature of “organised crime”. He said: “An exhaustive definition of organized crime is both impossible and unnecessary. A working definition might focus on the destination of the proceeds of crime. If they stay with and are used on “legitimate” expenses by the people directly engaged in misconduct, then the crime is usually local. If a “cut” goes to others, remote from the misconduct, then the crime is clearly “organized”.”
The problem with the wording of section 3(d) is that although it was likely not meant to punish a small band of men holding to a defiant and valiant philosophy such as the fictional League of Extraordinary Gentlemen, it probably would (if three or more people decide to actually form such an association). There can be little doubt it would also apply to a group of people who might decide to act like Robin Hood and his Merry Men. I suppose it comes down to who gives them the name. It could encompass a group of 3 or more 17 year old graffitists if their offences are declared offences (such as obscene drawings of young children coming within subsections 228(1)(b), (2) of the Criminal Code) and if they are called by some name.
Having a name and a patch or logo is one of the attractions for some people to be associated with likeminded people, in groups. Part of the intent in disestablishing criminal organisations or associations is no doubt aimed at preventing recruitment to such groups. Having a name is something the Parliament understood would be used by organised crime groups to promote criminal organisations or associations and to recruit more members.
This group to which Hannan and Murrell belonged, although it was a group of three or more persons, who associated largely informally, and associated illegally for the purpose of committing crime, was not called by any name. Section 3(d) requires that the group calls itself by some name before it can qualify as an “association”. Otherwise, the section would encompass any and every group of three or more people who commit even a single crime.
Therefore, according to the evidence relied upon by the prosecution, there is no evidence, as it stands, capable of proving beyond reasonable doubt, to a jury properly instructed that, at the times alleged in the charges, Hannan was an office bearer in an “association”, or that Murrell was a participant in the affairs of an “association” and therefore a “vicious lawless associate”, because there is no evidence that there was an “association” as that term is defined in section 3(d) of the VLAD Act.
ORDERS
The two relevant trafficking charges will be amended by omitting the circumstances of aggravation alleged under the VLAD Act.
The defendants will be committed to stand trial accordingly.
0
12
0