Police v Hannan & Murrell

Case [2016] QMC 2

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.
The defendants will be committed to stand trial accordingly.

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.
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] ALR 314; (1947) 21 ALJR 113.
Kuczborski v Queensland (2014) 314 ALR 528; (2014) 89 ALJR 59; [2014] HCA 46.
Purdon v Dittmar [1972] 1 NSWLR 94.
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.
R v Regos (1947) 74 CLR 613; [1947] ALR 308; (1947) 21 ALJR 110.
Stewart v Lizars [1965] VR 210.

The proceedings and charges

  1. On 29 October 2015 I heard the joint committal proceedings for the defendants. 

  2. 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”.

  3. 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…

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AGLC
Police v Hannan and Murrell [2016] QMC 2
Case
[2016] QMC 2
Decision Date

CaseChat Overview and Summary

In Police v Hannan & Murrell, the Queensland Court of Appeal considered the interpretation of the term "association" as used in the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act). The case involved two defendants charged with drug trafficking offences, where the prosecution sought to rely on the VLAD Act to impose additional penalties. The central legal issue was whether the defendants' group, involved in cannabis production and trafficking, constituted an "association" under the VLAD Act.

The court's analysis began with the statutory language of the VLAD Act, focusing on the definition of "association" and the phrase "any other group of 3 or more persons by whatever name called". The court examined the legislative intent behind the VLAD Act, which aimed to target organised criminal activities beyond just outlaw motorcycle gangs, including paedophile rings and other criminal organisations. The court highlighted that the term "association" was intended to encompass groups with a formal or informal structure, hierarchy, and purpose to commit criminal activities. It was noted that the VLAD Act sought to deter individuals from joining or remaining in such associations by imposing severe penalties.

The court also considered extrinsic materials, such as parliamentary debates, to understand the broader legislative intent. The Attorney-General's statements in Parliament emphasised the broad scope of the VLAD Act to target known or recognisable criminal gangs. The court concluded that the term "association" should be interpreted in its plain English meaning, recognising that criminal associations often have names or adopt names for recruitment and enforcement of codes of conduct.

Ultimately, the court found that the group involved in the cannabis trafficking did not constitute an "association" under the VLAD Act because it lacked the formal structure, hierarchy, and purpose required by the legislation. The court ordered that the charges related to the VLAD Act be omitted, and the defendants were committed to stand trial on the remaining trafficking charges.

Orders

Orders of the court

The two relevant trafficking charges will be amended by omitting the circumstances of aggravation brought under the VLAD Act.

The defendants will be committed to stand trial accordingly.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.