New South Wales. Forster v Director of Public Prosecutions [2017] NSWSC 458. McCallum J. The Supreme Court has set aside
Judgment Summary Supreme Court New South Wales Forster v Director of Public Prosecutions [2017] NSWSC 458 McCallum J The Supreme Court has set aside Mr Charlie Forster’s conviction for habitual consorting contrary to s 93X of the Crimes Act 1900 (NSW). Mr Forster was the first person to be convicted of the offence created by s 93X, which was introduced in 2012 by the Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW). The case against Mr Forster was based on four separate instances of alleged consorting which, taken together, were said to amount to habitual consorting contrary to the section. Three consisted of “engaging in conversation” with one other person in the daytime on the main streets of Inverell. Each conversation was with a different man, in each case someone Mr Forster had known for some time. The content of the conversations was not established; the case rested on the fact that conversation had occurred. The fourth incident relied upon to establish the offence was a night when Mr Forster was “out havin’ a drink” with a group that included the same three men. Mr Forster initially pleaded guilty to the offence. He was sentenced to a term of imprisonment for 12 months with a non-parole period of 9 months. He was subsequently allowed to traverse his plea and brought an unsuccessful challenge to the validity of the legislation in the High Court. The charge finally proceeded to hearing in the Local Court in March 2015. The Magistrate found the offence proved and reinstated the sentence first imposed (which Mr Forster had already served). The Supreme Court held that the Magistrate erred in his construction of the term “consorts” in s 93X. The Magistrate’s decision reflected the view that a casual encounter between persons known to each other that proceeded to involve any conversation would amount to consorting within the meaning of s 93X. The Court held that the essence of consorting is the intentional seeking of something in the nature of companionship, not mere conversation. The Court further held that the section requires the Court to undertake an evaluative judgment as to whether the conduct proved amounted to “habitual” consorting. The Court further held that the evidence relied upon by the prosecution was incapable of establishing the minimum requirements of s 93X. Mr Forster’s conviction was set aside. In light of the conclusion that the evidence was not capable of establishing the offence charged, the matter was not remitted to the Local Court. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
