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April 2023

NSW Police Fact Sheet on Consorting with criminals - Albanese should have a read

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The consorting law in New South Wales makes it a criminal offence for a person to continue to associate or communicate with at least two people who have previously been convicted of an indictable offence, after receiving an official police warning. The consorting law aims to prevent crime by disrupting organised criminal activity that establishes, uses or builds up criminal networks.

What is an official warning?

The consorting offence is found in Section 93X of the Crimes Act NSW and the legislation makes it clear that an official warning can be given orally or in writing. The warning informs the person being warned that the person with whom they are consorting is a convicted offender and that habitually consorting with convicted offenders is an offence.

An official warning ceases to have effect:

  1. If the warning is given to a person under the age of 18 years – 6 months after the warning is given or
  2. In any other case – 2 years after the warning is given.

A warning can be given before, during or after any consorting incident.

What does consort mean?

A person consorts with another person if that person communicates or associates with that person in any form, including by electronic or other form of communication. Some examples of consorting include meeting with, speaking to, emailing or contacting another person by social media.

Who are convicted offenders?

A convicted offender means:

a person who has been convicted of an indictable offence (disregarding any offence under section 93X). This includes interstate offences, that if occurred in NSW would be an indictable offence.

Can I be guilty of consorting even though I have never been convicted of an offence?

Yes. The offence is about associating with convicted offenders, not being a convicted offender.

Do the police have to tell me I am consorting?

No. Police have to warn you that consorting with convicted offenders is an offence. If you continue to associate with that person (the convicted offender) after you have been warned, then you may be committing an offence.

After a warning has been issued, New South Wales Police Force may provide information in writing to a person, relevant to a consorting warning to or about the person. You can also request NSW Police Force provide you the warning in writing.

Crimes Act 1900

Section 93X Consorting

  1. A person (other than a person under the age of 14 years) who:
    1. habitually consorts with convicted offenders, and
    2. consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence.
    Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.

Albanese'd rather talk about Kyle Sandilands' wedding than answer this woman's housing worries

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It got worse.  

A lot worse.


Shows you how much he really cares about the 'growing up in public housing' narrative.

RSL Victoria responds to our reader Denzil over Welcome to Country leading Anzac Day Dawn Service

HI Michael

Further to my email re the Welcome to Country at the Melbourne Dawn Service, which you kindly posted on your website, I have now received the following pathetic response to my complaint to the RSL.

Kind regards


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Good morning Denzil,

You recently enquiry to the RSL VIC State Branch via our website regarding your concerns about the welcome to country at the ANZAC Day Dawn Service.

Please see below the State Branches response;

As part of RSL Victoria’s annual ANZAC Day Dawn Service commemorations, a Welcome to Country is spoken by an Elder. It is designed to be a respectful way for the event to begin, one that outlines the connection Indigenous people have with the land – a connection that we all feel. 

At RSL Victoria we celebrate, commemorate and support all who have served and all who helped build this country in all eras.

RSL Victoria is reflective of the values of a modern Australia, built on the work and sacrifice of countless Australians who have come before us. A Welcome to Country is reflective of a modern Australia and does not disrespect veterans from any prior conflict.

We are sorry that you are disappointed, however the Dawn Service, and ANZAC Day as a whole, is representative of all Australians, past, present and into the future. It is a day for Australians, one and all.

Kind regards,
RSL Victoria

Federal Court's summary of Bruce Lehrmann's win as his defamation case proceeds.


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Mr Bruce Lehrmann sues Network Ten and Ms Lisa Wilkinson in one proceeding. He also sues News Life Media and Ms Samantha Maiden in another proceeding. Both defamation cases relate to publications made in early 2021, but were only commenced earlier this year, outside the applicable one-year limitation period. It is common ground that unless the limitation period is extended, the proceedings must be dismissed.

Importantly, these applications do not involve consideration of the substantive merits of allegations made in either case and hence nothing in the reasons published today bears upon, or should be construed as bearing upon, the truth or otherwise of the allegation made by the respondents to both proceedings (collectively, the opponents) that Mr Lehrmann sexually assaulted Ms Brittany Higgins.

A person in the position of Mr Lehrmann bears the burden of persuading the Court to the necessary state of satisfaction that it was not reasonable for him to have commenced the proceedings within the limitation period. In considering whether this burden has been discharged, the Court is required to identify the relevant circumstances and consider the statutory question in the context of the circumstances as found.

Several aspects of the evidence were either unchallenged or sufficiently plain to be beyond real contention. The findings based upon this evidence are recorded in detail in the reasons. The most important topics of factual disputation were:

(1)    the content of any advice given to Mr Lehrmann on 15 February 2021 and, in particular, whether advice was given by Mr Lehrmann’s solicitor, Mr Warwick Korn, during a lengthy conference that he should not commence any defamation proceedings until any criminal allegations against him were resolved and whether he obtained any other advice from another practitioner; and

(2)    the fact and content of any other advice as to proposed defamation proceedings given by Mr Korn during the limitations period.

As to (1), the opponents submit that contemporaneous SMS and instant messages disclose representations by Mr Lehrmann that he retained another solicitor for the purposes of obtaining defamation advice. It is said that Mr Lehrmann had been informed that any allegations would not materialise into criminal charges and that he had an actionable defamation claim, which would sound insubstantial damages. The SMS and instant messages he sent to Ms Sinclair (his then girlfriend) and Ms Robertson (his lobbyist friend)suggest no legal advice was given to the effect that Mr Lehrmann should defer defamation proceedings.

Among other reasons, the opponents contend this conclusion is supported by Mr Lehrmann’s difficulty in recollecting events, and the implausibility of him fabricating information as to the legal advice he received given his closeness with Ms Sinclair and Ms Robertson.

Despite the vigour with which these submissions were advanced by the opponents, there was a decided air of unreality about them.

It is evident that Mr Lehrmann urgently saw Mr Korn because he perceived he needed a solicitor specialising in criminal work. This is unremarkable given he had received information that day, via an apparently reliable source, that he was the subject of serious criminal allegations, and he knew the media were interested in the incident.

There are a number of aspects of what went on between Mr Lehrmann and Mr Korn in their marathon conference, apparently lubricated by whiskey and punctuated by Mr Lehrmann’s texting, that are unclear. I am satisfied, however, that the SMS and instant messages are an insecure foundation for ascertaining the substance of the advice given by Mr Korn to his client.

As noted above, the opponents stressed that the closeness of the relationship between Mr Lehrmann and Ms Sinclair meant it was unlikely he would be untruthful to her. But the subject of the relevant messages was what would likely happen as a consequence of an allegation Mr Lehrmann was a rapist. Although the opponents’ submission is understandable forensically, accepting it would be unworldly. Being accused of rape is not commonplace. Irrespective of the underlying truth of the accusation, a rational understanding of human nature suggests it does not unduly stretch the bounds of credulity to think that one might seek to downplay the seriousness of such a startling allegation to one’s girlfriend.

Similarly, the notion Mr Lehrmann would reassure a female friend as to the unlikelihood of an allegation of seriously criminal and immoral conduct being given credence by prosecuting authorities is hardly surprising.

Any exaggerations as to the skill and professionalism of Mr Korn, the falsehoods as to apparently considered advice being given regarding prospects of receiving huge damages for defamation, and the reassurances that charges are “off the cards”, are explicablecontextually. Mr Lehrmann’s attempt to add verisimilitude to his narrative by inventing another practitioner giving defamation advice that evening is elaborate, and says something about his level of candour in his dealings with his friends, but must be seen through the prism of a man under stress, flailing around during an unorthodox conference and drinking session, and saying what he thought he needed to say to put the best “spin” on what he perceived to be an appalling situation (whatever be the true position as to the alleged sexual assault).

In short, Mr Lehrmann was fashioning some of his comments to suit the perceived exigencies of the moment. It was understandably put to Mr Lehrmann on several occasions that the logic of his evidence was that he had been “fabricating” advice and “lying” to his interlocutors. In large part, these characterisations were accepted. Mr Lehrmann’s senior counsel downplayed these false messages as “white lies”. It is unnecessary for present purposes to describe the conduct in any particular way. What presently matters is that I am satisfied Mr Lehrmann was being untruthful when he messaged that criminal liability was off the table, and the only real issue was defamation and how much he would obtain in damages.

As to (2), the opponents said that contrary to Mr Lehrmann’s evidence, it was improbable that Mr Korn continued to give advice to defer defamation proceedings.

The opponents’ submission is unpersuasive. Mr Korn was a solicitor acting for a client who, if charged and convicted, risked being sentenced to a substantial period in gaol. His job, like any solicitor in that position, was to advise his client against taking any step that could possibly be contrary to his interests in seeking to ward off or defend any criminal proceedings. Commencing defamation proceedings was secondary to Mr Lehrmann’s then priority of avoiding prosecution, and if that was unsuccessful, securing an acquittal.

At bottom, the inescapable fact remains that Mr Lehrmann did not take any steps to try to vindicate himself or tell his story publicly until after the criminal proceeding was resolved. This is despite all the evidence adduced by the opponents that Mr Lehrmann wanted to vindicate himself. One asks the obvious question: why? The most straightforward, plausible, and overwhelmingly likely explanation is that this was consistent with heeding Mr Korn’s advice.

I make the findings as to the advice given to Mr Lehrmann based upon the evidence adduced and the principles explained at length in the reasons (and notwithstanding what I describe in the reasons as the unwonted course taken to adducing evidence in chief by MrWhybrow SC on behalf of Mr Lehrmann, and my conclusion that an inference should be drawn the evidence of Mr Korn would not have assisted Mr Lehrmann).

Leaving aside the submissions based upon the contention Mr Korn did not give the advice I find he gave, the opponents made three significant additional points.

First, it was said Mr Lehrmann has not demonstrated how commencing defamation proceedings might have prejudiced his criminal defence; secondly, the relevant question is whether it was reasonable for Mr Lehrmann to commence in any court, including a court where he could commence but then defer serving process; and thirdly, Mr Lehrmann waited for 20 months before contacting a defamation lawyer and relied upon limited conversations with a criminal solicitor.

No Prejudice

I accept Mr Lehrmann said things about the allegations, as did his counsel. But I reject the assertion that by the time Mr Lehrmanngave his police interview (or later when his counsel gave a public statement), there was no risk of prejudice because Mr Lehrmann had not maintained his “right to silence”.

The privilege against self-incrimination is a basic and substantive common law right and reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct. The importance of a person being able to avoid taking a positive step which may tend to bring them into the peril and possibility of being convicted as a criminal is central to our criminal justice system.

The expression the “right to silence” is useful shorthand but, as is often the case with shorthand expressions, is incomplete. It is aconvenient description of a collection of principles and rules, which differ in incidence and importance.

The opponents placed great reliance on the AFP interview and the statement by his counsel. But it is worth emphasising the chronology. It was on 19 April 2021 that Mr Lehrmann voluntarily attended an interview, but not until 24 May that the AFP Commissioner stated that a brief of evidence was to be provided to the DPP. It was on 6 August that it was reported Mr John Korn said Mr Lehrmann denied that any form of sexual activity took place, and it was on the following day that Mr Lehrmann was charged.

There is an important difference between the investigative stage and any subsequent prosecution. Obviously enough, the criminal justice system operates on the basis that when allegations of sexual assault are made, a prosecutor’s role is independent of police and notwithstanding any cooperation and consultation, any decision as to whether a prosecution should commence, and then be maintained, is to be made independently by the DPP.

What presently matters is that Mr Lehrmann made the decision to engage with the AFP and tried and failed to stop a prosecution. But once the DPP made the decision to prosecute, Mr Lehrmann, as was his continuing right, elected to remain silent.

An assertion was made that the record of interview was later used by the Crown (and hence prejudiced Mr Lehrmann’s defence). This is irrelevant. With the benefit of hindsight, given prosecution did eventuate, it might have been a sounder approach not to be interviewed: after all, one is a slave to what one says but the owner of one’s silence. But I am unaware of dealings between the AFP and those advising Mr Lehrmann and cannot speculate as to the factors informing the decision to be interviewed. What is important is not eliding the period when he was trying to forestall a prosecution (and in doing so providing his account of what occurred) and the later period when he was defending a prosecution. When this is understood, the maintenance by Mr Lehrmann of his “right to silence” is put into its proper context.

Had the defamation cases been commenced and proceeded through their normal interlocutory stages and to a trial, there was an inevitability of Mr Lehrmann being obliged to give discovery and a likelihood he would have to give sworn answers to interrogatories. Affidavit evidence would also likely have been ordered (although not necessarily as to the details of the alleged rape) but, at the very least, a proof would have been ordered to be served detailing the evidence Mr Lehrmann would give as to the matters the subject of any truth defence. As a practical matter, Mr Lehrmann would have to give evidence at any trial, and then would be subject to cross-examination. Any cross-examination of Mr Lehrmann would not, of course, have been limited to matters raised in his interview with the AFP.

To the extent these steps may have occurred prior to the conclusion of the criminal trial (and any retrial following a successful conviction appeal), this would have undermined Mr Lehrmann’s defence strategy. Defamation proceedings would have not only exposed him to discovery obligations and potential interrogation, but in any pleadings or particulars he would be obliged to make representations that may be deployed against him. The only ways identified to eliminate or reduce risk were to: (1) refrain from commencing proceedings; (2) commence but not serve or secure an immediate stay after commencement; or (3) proceed and make serial claims asserting his privilege against self-incrimination.

Alternative Steps

As to seeking a stay, this course was open and could have worked. Although there would have been cogent and powerful arguments in support of a stay, there would have been no certainty it would necessarily have been ordered for the period sought or extended in circumstances where there was a conviction subject to a subsequent appeal (and a possible retrial), particularly in circumstances where the stay was opposed. If a stay was not granted or was dissolved, Mr Lehrmann would have had to countenance the prospect of discontinuing the proceedings (coupled with a likely adverse cost order) or compromise the forensic position he had adopted as to the criminal proceeding.

As to Mr Lehrmann identifying another forum where he could defer service without seeking a stay, again, this course might have worked but it assumes all defendants would have been prepared to countenance uncomplainingly the unserved litigation not progressing and potential liability remaining unresolved. No counterfactual evidence was adduced to support this submission, and, in my experience, it is far from unknown for the strategy of deferring serving to be undermined by a defendant, aware of the existence of the unserved process, filing a notice of appearance and pushing the matter on (forcing a reluctant litigant to either proceed ordiscontinue subject to a costs order).

Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown. Everything might well have worked out, and all opponents may have been passive, but one cannot discount as misconceived advice that taking the risk of starting was imprudent and distracting while criminal allegations were unresolved.

Much was made of Mr Lehrmann’s interest in commencing defamation proceedings, but the mere fact that he was interested is not really to the point. What is critical is that despite his interest, Mr Lehrmann chose, on advice, not to commence proceedings.

Failure to Obtain Specialist Advice

I am comfortably satisfied that given the stakes and the criminal law advice he received, and irrespective of his level of knowledge of the Defamation Act 2005 (NSW) providing for a tight limitations period, Mr Lehrmann would not have run the risk of commencement.

Much was also made of Mr Lehrmann’s failure to retain a specialist; but the repeated reference to the status of defamation lawyers as though they are members of a cloistered guild endowed with some form of abstruse knowledge was overdone. It does not take a savant to ruminate upon whether taking non-fanciful risks, by starting collateral fights, might or might not be a good idea. There may, of course, be cases where there are sound forensic reasons to commence a defamation proceeding even when criminal allegations are unresolved, but each case is different (and this is no ordinary case for a number of reasons).

Following on from the above, in broad summary, it was not reasonable in the circumstances for Mr Lehrmann to have commencedactions in relation to the impugned matters within one year for the following reasons.

First, Mr Lehrmann received express advice on 15 February 2021, repeated throughout the limitations period, that he should defer any defamation proceedings and relied upon that advice. I do not consider it is reasonable to expect him to have acted contrary to the advice given to him at a time when his resources and energies were being directed to resolving the criminal allegations.

Secondly, this was a case where prosecution was always a possibility up until it was preferred, notwithstanding Mr Lehrmann’sattempts to paint a contrary and rosier picture on 15 February 2021. Mr Lehrmann’s actions reflect the fact that his real priority, even before prosecution, was the criminal allegations and, in recognising this priority, he engaged and then listened to a specialist criminal defence solicitor recommended by a trusted friend.

Thirdly, the advice to defer fighting on two fronts was unsurprising; the Full Court of this Court has observed that where a person is facing a criminal charge, and the impugned matter raises questions about the person’s guilt or innocence, the “ordinary” position is that it will not be reasonable to commence defamation proceedings. This is not an automatic conclusion but makes intuitive sense ifthe civil proceedings, like here, could expose the claimant to forensic examination of matters bearing upon guilt or innocence, hence prejudicing the defence of the criminal charge. Deferring proceedings was also consistent with husbanding resources.

Fourthly, and relatedly, engaging with the AFP in an apparent effort to ward off prosecution was not inconsistent with Mr Lehrmann’sbroader defence strategy of not taking what was perceived as being an unnecessary step of commencing a defamation case.

Fifthly, even if it is correct to say that the relevant circumstances justifying extension must be relatively unusual, the circumstances cohering in this case can be so described. At the risk of repetition, Mr Lehrmann was in the unusual position of directing his energies and resources in acting on advice to maximise his chances of avoiding, and then defending, one of the highest profile and commented upon prosecutions in recent memory.

Having reached the state of satisfaction it was not reasonable to commence defamation proceedings, it was necessary to come to the discretion as to how long the limitation period should be extended. Of the opponents, only Ms Wilkinson dealt with the issue of discretion by submitting the Court should not extend the limitation period against her beyond 14 days after the DPP ended theprosecution. Taking all the submissions detailed in the reasons made by Ms Wilkinson into account, the appropriate exercise of discretion is to extend the limitation period against all opponents up until the time proceedings were commenced.

These proceedings should be heard and determined with celerity. Recently, a related proceeding was commenced (Lehrmann v Australian Broadcasting Corporation, NSD 316 of 2023). Subject to hearing from the parties, there is no reason why all three proceedings should not be heard concurrently.

There is a further matter that might conceivably impact upon the timing of a trial and upon orders as to the form of the evidence in chief. Although trial by judge alone is the normal mode of trial in a civil proceeding in this Court, a direction may be made for a trial with a jury of either all or some of the issues of fact.

Just because some aspects of these cases are suitable for trial with a jury does not necessarily mean those issues are not suitable for determination by a judge sitting alone. To justify a direction, there must be something more. The public interest in having these proceedings determined fairly and in a manner that promotes confidence in the administration of justice transcends the interests of the parties. The experience of the common law is that allegations of the type made in the opponents’ truth defences involve, in a different curial context, fact finding of a particular character usually (although far from invariably) conducted by a jury comprised of ordinary men and women. The jury as a deliberative body brings to the discharge of their collective role the jury members’ varying perspectives and, one hopes, a collective common sense based upon ordinary and different human experiences. A judge would also bring the judge’s singular perspective and experience to fact finding; but is such a tribunal the best way of resolving all aspects of thiscontroversy? It is perhaps arguable that the ends of justice, including public confidence in the resolution of these disputes, might be promoted if a jury hears and determines at least some factual issues, rather than a judge. Having said this, given the vast publicity already afforded to these allegations, the multiplicity of proceedings and other logistical matters, I am sensible of potential problems in ordering a jury.

I presently express no preference as to whether the Court should direct a trial by jury (and, if so, what issues of fact should be determined by a jury) but given the matters referred to above, I would be assisted by any written submissions of the parties on this topic.



28 April 2023