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…
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- AGLC
- Police v Hannan and Murrell [2016] QMC 2
- Case
- [2016] QMC 2
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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.