Commissioner of Police NSW Police Force v Meehan

1. [1]

   The Commissioner and Mr Meehan agreed that the Court should exercise its discretion to make a serious crime prevention order against Mr Meehan, the National President of the Comanchero Outlaw Motorcycle Gang, under s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW). Having heard the parties and considered the evidence and submissions, yesterday I made the order which they had agreed. The reasons for making that order are as follows.

2. [2]

   The terms of the consent order prohibit Mr Meehan from using an alias; require him to notify his residential address, any change in that address and when he intends to reside elsewhere; restrict and regulate his use of communication devices and email and other accounts, his possession of cash and bank accounts and his use of vehicles; and also restrict his associations with specified people.

3. [3]

   The Commissioner led uncontested evidence and advanced largely unchallenged submissions to persuade the Court that the consent orders should be made. Mr Meehan’s position was that the evidence and the parties’ submissions should lead the Court to exercise its discretion to make the orders agreed.

Conclusion

1. [4]

   The evidence and the submissions persuaded me that the applicable statutory requirements had been established by the evidence, which revealed the existence of circumstances which required the acceptance of the parties’ common position that the Court’s discretion to make the orders agreed should be exercised.

How the statutory requirements were satisfied

1. [5]

   There was no issue as to the validity of s 5 of the Serious Crime Prevention Orders Act, which was considered in Vella v Commissioner of Police for New South Wales (2019) 269 CLR 219; [2019] HCA 38, nor that the Commissioner was an eligible applicant for the orders sought.

2. [6]

   There was also no issue that the evidence satisfied the applicable requirements of ss 5 and 6 of the Act which, as explained in Vella at [40]-[54], involve five essential steps.

3. [7]

   That Mr Meehan was over 18 years was conceded and also established by evidence. That satisfied the first essential step flowing from s 5(1).

4. [8]

   Section 5(1) relevantly empowers the Court to make the orders agreed against Mr Meehan, if satisfied that:

   1. (1)

      he has been involved in serious crime related activity for which he has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence); and

   2. (2)

      there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting his involvement in serious crime related activities.

5. [9]

   Section 6 also requires consideration to be given to the appropriateness of the prohibitions, restrictions, requirements and other provisions proposed, “for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.”

6. [10]

   The second step is concerned with the past, requiring satisfaction that Mr Meehan has been involved in “serious crime related activity”: s 5(1)(b). That is defined in s 3 as anything done by a person that is or was at the time a serious criminal offence, whether or not:

7. [11]

   “Serious criminal offence” is defined in s 3 to have the same meaning as in the Criminal Assets Recovery Act 1990 (NSW), where it is defined in s 6(2) by reference to specified offences.

8. [12]

   The summons pleaded in ground 2 Mr Meehan’s firearms conviction, but it was agreed that this was not a “serious crime related activity” under the Serious Crime Prevention Orders Act and so was finally not relied on by the Commissioner.

9. [13]

   Rather, the Commissioner relied on s 93T of the Crimes Act 1900 (NSW), ground 3 of the summons advancing Mr Meehan’s involvement in serious crime related activity for which he has not been convicted. That is an offence within s 6(2)(g1) and 6(2)(d) of the Serious Crime Prevention Orders Act.

10. [14]

    There was no issue about Mr Meehan’s involvement in such offending, given the uncontested evidence. Subsections 93T(1) and (1A) provide:

11. [15]

    “Criminal group” is defined in s 93S of the Crimes Act to mean “a group of 3 or more people who have as their objective or one of their objectives—

12. [16]

    There was also no issue that the Comanchero are a criminal group as so defined. I am satisfied that this is also established by the evidence.

13. [17]

    The unchallenged evidence of Detective Chief Inspector Cadden and Detective Sergeant Groenewegen included:

    1. (1)

       explanations of the source of material to which they had had regard in forming their opinions about the criminal activities in which the Comanchero and Mr Meehan had been involved; their extensive education, training and policing experience in the investigation of criminal groups, including the Comanchero and the Rebels Outlaw Motorcycle Gang of which Mr Meehan was formerly a member;

    2. (2)

       the traits of outlaw motorcycle gangs such as the Comanchero, whose members:

    3. (3)

       the Comanchero’s history, internationally and in Australia, where it was formed in 1966 and spread overseas. It includes the 2009 Sydney airport brawl between its members and members of the Hells Angels Outlaw Motorcycle Gang and the resulting charges, convictions and murders of some of those involved;

    4. (4)

       Mr Meehan’s membership of and increasing seniority in the two groups. He became the President of the Cronulla chapter of the Rebels, which he became associated with in 2008, joined in 2010 and left in 2014 when he joined the Comanchero. There he became the President of the Sutherland chapter, climbing the ranks to become ACT Commander in 2020, Sydney Commander in 2021 and later National Commander and President, after the arrest in April 2022 of the former National President, for his involvement in a murder;

    5. (5)

       the role of the National President of the Comanchero, who has ultimate responsibility for its operations, including:

    6. (6)

       that as a result the National President is likely to have knowledge of and involvement in the commission of serious criminal activity, the discovery of which would directly impact the Comanchero;

    7. (7)

       their opinions about Mr Meehan’s:

    8. (8)

       the criminal threats which outlaw motorcycle gangs such as the Comanchero pose in Australia and how Federal and State law enforcement bodies are funded and staffed to identify, investigate and disrupt their activities;

    9. (9)

       the reluctance of victims of such criminal activities to give evidence because of their fear of retribution and/or adherence to a culture of silence towards non-members, especially police;

    10. (10)

        the many violence, intimidation, firearm, weapons and drug importation, supply and possession offences which Comanchero members have been convicted of since 2007. There have also been convictions under s 93T of the Crimes Act for directing and/or participating in criminal groups;

    11. (11)

        what various overt and covert surveillance had disclosed about Mr Meehan’s access to and use of encrypted technology and physical and electronic anti-surveillance devices and how that had impeded the investigation of crimes; and

    12. (12)

        Mr Meehan’s own limited criminal history, conviction in 2014 of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW).

14. [18]

    The only submission about the evidence advanced for the Commissioner which Mr Meehan disputed, was acceptance of Detective Chief Inspector Cadden’s opinion that he had the responsibility for facilitating a reprisal attack for the shooting of Tarek and Omar Zahed in May 2022. Detective Chief Inspector Cadden’s opinion was that Mr Meehan had this responsibility, given his role on becoming the Comanchero’s National Commander and President.

15. [19]

    It is not necessary to base the conclusions I have reached on that disputed submission. But it is relevant that given the undisputed evidence of Detective Chief Inspector Cadden on which it was advanced, that the submission has a basis in the evidence, must be accepted. That follows from Mr Meehan not cross-examining the Commissioner’s witnesses, nor himself giving or calling evidence to dispute either the opinions or the matters on which they were based.

16. [20]

    In the result the unchallenged evidence and the submissions advanced about it by the Commissioner had to be accepted, as the case otherwise advanced for Mr Meehan acknowledged.

17. [21]

    In Commissioner of Police v Cole [2018] NSWSC 517, s 93T of the Crimes Act also arose for consideration. There Davies J had to consider the position of another outlaw motorcycle gang, which he considered at [46] gave rise to three questions:

    1. (1)

       is the Finks a criminal group? That can be determined without regard to the individual defendants.

    2. (2)

       does each defendant know, or ought reasonably to know, that the Finks is a criminal group?

    3. (3)

       does each defendant know or ought reasonably to know, that his participation in the group contributes to criminal activity?

18. [22]

    As was the Commissioner’s case, the evidence in this case establishes that all three of these questions must be answered positively, that satisfying the elements of s 93T(1) as well as subs (1A), given how Mr Meehan is empowered as the National Commander and President, to direct the activities of the Comanchero.

19. [23]

    On the evidence I have discussed, Mr Meehan’s concessions, implicit as they were in his agreement to the making of the consent orders, that the Comanchero is a criminal group; that he knew or reasonably ought to have known that it is a criminal group; and that he knew or reasonably ought to have known that his participation in that group contributed to criminal activity, were all properly made.

20. [24]

    That also accorded, it should be noted, with adherence to his obligations under s 56 of the Civil Procedure Act 2005 (NSW), assisting the Court to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

21. [25]

    A group such as the Comanchero, which has as its National President accepts, the objective of protection and enhancement of its reputation through the commission of serious violence offences; which enforces its rules by the use of violence; which pursues internal and external conflict by intimidation, physical violence, the use of firearms and explosives, as well as involvement in the drug trade, money laundering and other serious offending, is a criminal group, as that term must be understood.

22. [26]

    Mr Meehan’s continued membership of that group while obtaining positions of increasing power over its members, to whom he can give orders which result in their involvement in the commission of crimes and who are thereby the means by which the group achieves its criminal ends and which results in members’ conviction of a great many, serious offences, it must also be accepted, well establish his requisite knowledge. The evidence of the anti-surveillance steps which he has pursued reinforce this conclusion.

23. [27]

    The evidence not only establishes that the Comanchero are a criminal group, but that both its nature and that Mr Meehan’s participation has contributed to its criminal activities, which are all known to him. That is also reinforced by his agreement to the proposed orders. At the very least, that is what he reasonably ought to have known.

24. [28]

    This is concerned with the likelihood that Mr Meehan will be involved in serious crime related activities in the future: s 5(1)(c) of the Serious Crime Prevention Orders Act. I am satisfied that the evidence also establishes that there is a real and significant likelihood of such involvement, as he also conceded.

25. [29]

    What is required is not that the evidence establish that Mr Meehan will be involved in serious crime related activities, but that there is a likelihood of such involvement. That is, that the evidence establishes “a real and significant risk” of such involvement: Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606 at [30].

26. [30]

    As discussed in Commissioner of Police NSWPF v Amoun [2020] NSWSC 1810 at [41] the statutory definitions make plain “that involvement in serious crime related activity “encompasses not just the actual commission of a serious offence directly by an individual, but also conduct which facilitates another person engaging in serious crime related activity or conduct which “…is likely to facilitate serious crime related activity”.”

27. [31]

    On the uncontested evidence, which includes the unchallenged opinions of two senior police officers, based on their extensive experience of policing criminal organisations including the Comanchero’s which are accepted by the cases which both parties advanced, I am well satisfied that the necessary likelihood of Mr Meehan’s future involvement in serious crime related activities has also been established. That reflects the position which Mr Meehan occupies and the power and responsibilities which it gives him and the concessions he has made.

28. [32]

    There is a long and concerning history of the Comanchero and its members’ pursuit of assault, murder and retaliation amongst outlaw motorcycle gangs in which they were involved. On the evidence there is also a likelihood of further retaliation, which Mr Meehan does not dispute.

29. [33]

    Before he joined the Comanchero and attained positions of seniority Mr Meehan had himself been convicted of a firearms offence, committed while in company with others carrying a large amount of cash, methylamphetamine mixed into wax and when a loaded pistol was located where it had been secreted nearby, on which his DNA was found, together with other loaded firearms.

30. [34]

    Although not convicted of other offending, on the evidence Mr Meehan’s later involvement in even more serious criminal offending is long ongoing, albeit with the result that his own criminal record is limited. Nothing in the evidence suggests that this involvement is likely to cease, even if the proposed orders are likely to disrupt his ability to pursue such activities as he has in the past. The necessary likelihood that he will continue to be involved in serious crime related activity is thus well established by the undisputed evidence.

31. [35]

    This step requires consideration of whether the facts establish reasonable grounds to believe that the consent order would prevent, restrict, or disrupt Mr Meehan’s involvement in serious crime related activity: s 5(1)(c) of the Serious Crime Prevention Orders Act.

32. [36]

    There was also no issue about this and I am satisfied, given the conditions which have been proposed by the consent order, which it has been agreed should operate for a period of 12 months, that the necessary reasonable grounds for the required belief have been established.

33. [37]

    The conditions agreed will in various ways constrain Mr Meehan’s ability to direct and be involved in the types of criminal activities which the Comanchero and its members actively pursue.

34. [38]

    The conditions will help prevent Mr Meehan’s use of aliases, accessing safe houses where criminal business is conducted, using anti-surveillance tactics to evade law enforcement and disruption of criminal investigations, including by restricting his use of cash, vehicles, communication devices and emails not notified to police. Thereby they will assist in disrupting his further involvement in the serious crime related activity revealed by the evidence.

35. [39]

    This requires consideration to be given to whether the order is “appropriate” for the purpose of protecting the public, given the prohibitions, restrictions, requirements and other provisions it proposes to prevent, restrict or disrupt Mr Meehan’s involvement in serious crime related activities: s 6 of the Serious Crime Prevention Orders Act.

36. [40]

    This requires a consideration of Mr Meehan’s own criminal record and pursuit and occupation of his membership of the Comanchero and the positions which he has held and continues to hold; the evidence of the offending in which the Comanchero and its members have pursued and the crimes of which they have been convicted. It also requires consideration of the intrusions into Mr Meehan’s liberty, which will result from the imposition of the order.

37. [41]

    It must be accepted that those intrusions will be considerable, although some of them impose notification requirements, rather than prohibitions.

38. [42]

    The intent of the order is necessarily to significantly disrupt and prevent further serious criminal activity of the kind already discussed, including large scale drug dealing and the dispersal and laundering of proceeds, as well as preventing offences of serious violence. In part that is sought to be achieved by considerable restrictions on Mr Meehan’s association with named individuals and steps such as his display of Comanchero colours.

39. [43]

    I am satisfied that given the very serious nature of all of the offending which arises for consideration and the real need to protect the public from further such offending, that the proposed orders, while undoubtedly in some respects onerous, have been fashioned not only to properly ensure their effectiveness, but also to take into account Mr Meehan’s need to continue living in society, accessing his residence, vehicle, communication devices and to conduct his legitimate financial affairs.

40. [44]

    As Mr Meehan himself accepted, I am satisfied that a just balance has thereby been achieved.

Discretion

1. [45]

   On all of the evidence I have discussed I was also satisfied that the parties’ common position that there is a proper basis for the Court to exercise its discretion had to be accepted.

2. [46]

   Mr Meehan’s consent was relevant, entitling the Court to act on his concessions, as he submitted: State of New South Wales v Paton [2020] NSWSC 1707 at [33], there in the context of an application to impose an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW).

3. [47]

   I also considered that there was a very significant public interest in the Court exercising its discretion to make the proposed consent orders in the circumstances revealed by the uncontested evidence which I have explained. Further, that the terms of the orders agreed, arrive at an appropriate balance, as Mr Meehan also accepted, reflective of the risks which he poses and the approach adopted in the order, to limit in an appropriate way the detriments which result for him.

Orders

1. [48]

   It was for those reasons that, by consent I ordered that:

   1. (1)

      In respect of the defendant, within New South Wales, a serious crime prevention order within the meaning of section 5 of the Crimes (Serious Crime Prevention Orders) Act 2016:

2. [49]

   Term of orders: 12 months

   1. (1)

      Prohibition on use of alias

   2. (2)

      Notification of Residence

   3. (3)

      Restriction and notification of communications devices

   4. (4)

      Restriction and notification of email and/or efax accounts

   5. (5)

      Prohibition on the possession or use of Anti-Surveillance technical equipment

   6. (6)

      Restrictions on possession of cash

   7. (7)

      Restriction on bank accounts

   8. (8)

      Notification of the Ownership and Use of Vehicles

   9. (9)

      The defendant must not approach, contact, or speak to, or associate directly or indirectly with

3. [50]

   9.1 The defendants must not wear, display publicly (including by electronic means), or possess outside his primary residence or exhibit any: