Commissioner of Police v Cole

1. [1]

   The Commissioner of Police seeks an order an order pursuant to s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (the CSCPO Act) that the five defendants be subject to a serious crime prevention order for a period of 12 months from the date of the order, together with an order pursuant to s 6 of the Act that the defendants comply with the conditions set out in a schedule to the summons.

2. [2]

   The annexure to the summons is in the following form:

3. [3]

   The background to the proceedings is said to be a current and escalating conflict between the Nomads Outlaw Motor Cycle Gang (the Nomads) and the Finks Outlaw Motor Cycle Gang (the Finks). The five defendants are members of the Finks. Proceedings have already been heard for the obtaining of similar orders in respect of the Nomads and judgment in that matter will be delivered contemporaneously with this judgment.

4. [4]

   Sections 5, 6 and 7 of the Act deal with the making of orders. Those sections relevantly provide (definitions highlighted):

5. [5]

   Serious crime related activity is defined in s 3(1) as follows:

6. [6]

   Serious criminal offence is defined as having the same meaning as in the Criminal Assets Recovery Act 1990 (NSW). Section 6(2) of that Act relevantly provides:

7. [7]

   Section 4 of the CSCPO Act sets out the meaning of involved in serious crime related activity. That section provides:

The evidence

1. [8]

   An affidavit of Detective Sergeant Groenewegen gives expert evidence about OMCGs and about the Finks in particular. Sergeant Groenewegen says that each of the defendants is a member of the Finks. The first defendant is the President of the Cessnock Chapter of the Finks, the second defendant is likely to be the NSW State president and the fifth defendant is the president of the Newcastle Chapter and possibly the national secretary/treasurer. The third and fourth defendants are full members of the Finks. The third defendant was likely the national vice-president, but he claims to have retired and to be a non-active member. Sergeant Groenewegen doubts the truth of that claim.

2. [9]

   According to Sergeant Groenewegen, the President has absolute authority over his area of responsibility. The Sergeant at Arms is responsible for discipline of members and formulating and co-ordinating attacks on rival motorcycle clubs during times of conflict. Sergeant Groenewegen said that hierarchy is an important feature of OMCG culture and is inexorably linked to membership.

3. [10]

   An affidavit of Sergeant Gary Broadhurst, who is attached to Strike Force Raptor, a specialist unit created to combat OMCG-related serious organised crime, gives evidence of the current conflict between the Nomads and the Finks. He swears in his affidavit of 6 April 2018 that the following acts of violence and related matters that have occurred since the beginning of the present calendar year as follows:

4. [11]

   Sergeant Broadhurst swears in his affidavit that there has been a significant increase in violence in the past few weeks, and that the attacks have now started to involve non-members, extending to the family and friends of OMCG members. He says that in the last few weeks the level of violence in the retaliatory attacks has increased and that the manner in which violence is being inflicted, being more reckless and outside the normal OMCG conventions (including a recent shooting involving a person who was not an OMCG member), leads him to believe that a further significant attack is imminent and may endanger the public. Sergeant Broadhurst says that the fact that police are still locating and seizing weapons and explosives subsequent to the commencement of the two sets of court proceedings, reinforces his view that the defendants in both these proceedings intend to continue escalating the violence against each other.

5. [12]

   Some further background is provided by Sergeant Groenewegen of earlier incidents that tend to point to a conflict between the Nomads and the Finks as follows:

6. [13]

   Sergeant Groenewegen annexes to his affidavit three forms of the rules of the Finks. The first form is dated 1991 as part of an application to have the Finks incorporated in South Australia. Of relevance to the present proceedings is rule 13 headed “Duties of Sergeant at Arms” which provides:

7. [14]

   The second form of the rules is said to be a revised edition of the rules dated 14 February 1996. The document was seized as a result of a murder investigation in Queensland during the execution of a search warrant at the home of a member of the Finks. Again, the rule concerning the duties of the Sergeant at Arms was expressed in the same terms.

8. [15]

   On 11 February 2017 a vehicle carrying four members of the Finks was stopped. During a search of the vehicle, a document titled “Finks MC Club Rules” was located. One of the occupants of the vehicle told police that he and the others were members of the Bankstown Chapter of the Finks. There appear to be two forms of these rules but both contain the following:

9. [16]

   Sergeant Groenewegen gave unchallenged evidence that in an OMCG the Sergeant at Arms is responsible for discipline during club meetings and answers directly to the president, from whom he can obtain consent to use violence in dealing with another member who has disobeyed the rules of the club. He said that there are circumstances when the Sergeant at Arms may rely on his own discretion to use violence. He said that there is also documented evidence that the Sergeant at Arms formulates and coordinates attacks on rival motorcycle clubs during times of conflict and will enlist the assistance of junior members to perpetrate the violence to be inflicted. He says that members of OMCGs are invested in a culture that expects, anticipates, encourages and, in many cases, rewards violence and violent reactions to situations.

10. [17]

    Some support for the notion of the hierarchy within the Finks comes from a telephone conversation between the second defendant, Michael Manners, and two police officers with regard to the current dispute between the Finks and the Nomads. A transcript of that telephone conversation reads as follows (B = Sergeant Broadhurst, R = Inspector Radmore, M = Mr Manners; original spelling retained):

11. [18]

    There was further evidence provided on a confidential basis from a source that cannot be identified in this judgment, although the source was partially identified to the lawyers acting on both sides and to the Court. The evidence is contained in a confidential affidavit of a senior constable of the NSW police force. The information was derived in recent weeks.

12. [19]

    The evidence supports the notion that members of the Finks are required at times by those higher up in the club to engage in physical violence. The obligation in recent times has included violence against the Nomads. The evidence tended to suggest that members of the Finks possessed firearms of various sorts including a couple of Glocks and an AK47. The evidence suggested that, whilst members were not obliged to engage in violence using firearms, some of the members did so.

13. [20]

    The evidence suggested that on at least one occasion, members were obliged to go out looking for Nomads for the purpose of engaging in violence against them. This was because there was said to be a turf war between the Nomads and the Finks.

14. [21]

    The evidence supported the notion of hierarchy within the Finks. The evidence supported Sergeant Groenewegen’s evidence about the use of encrypted apps on phones which were employed to disguise criminal activity.

15. [22]

    Sergeant Groenewegen identifies in his affidavit the members of the Finks who have been convicted of offences involving violence and intimidation. Members have been convicted of 28 separate offences since 2012. A number of these offences are offences punishable by a sentence of ten years’ imprisonment or more.

16. [23]

    Sergeant Groenewegen also identifies members who have been convicted of firearms and weapons offences. Since 2014 there have been 14 convictions and some convictions involved multiple offences.

The Commissioner’s case

1. [24]

   The Commissioner relies on s 93T(1) and s 93T(1A) of the Crimes Act 1900 (NSW) to establish that each of the defendants has been involved in serious crime related activity as is referred to in s 5(1)(b)(ii) of the CSCPO Act.

2. [25]

   Section 93T of the Crimes Act provides:

3. [26]

   Section 93S defines criminal group as follows:

4. [27]

   That section also defines a serious violence offence as follows:

5. [28]

   The Commissioner submitted that the Finks are a criminal group because they are a group of 3 or more people who have as one of their objectives the commission of serious violence offences. The five defendants are each participating in that criminal group, and each knows or ought reasonably to know that the Finks is a criminal group, and knows or ought reasonably to know that his participation in the group contributes to the occurrence of any criminal activity. The offence of participating in a criminal group is a serious criminal offence within s 6(2)(g1) of the Criminal Assets Recovery Act, and within s 6(2)(d) of that Act by a more circuitous route because it is an offence that is punishable by imprisonment for 5 years or more and involves violence. The Commissioner submitted in that way that the Court would be satisfied to the Briginshaw standard that each defendant has been involved in serious crime related activity for which he has not been convicted.

6. [29]

   That submission is made on the basis of Sergeant Broadhurst’s belief to that effect in respect of each of the defendants. That belief in turn is based on the evidence that the five defendants are members of the Finks. The Commissioner submitted that it can be inferred that because each defendant is involved with the Finks, they participate in the activities of the Finks. The rules of the Finks, it is submitted, require that its members participate, if necessary, in violent confrontation. The evidence from Sergeant Groenewegen, it is submitted, is that members of the Finks have been involved in serious violence offences including against members of rival OMCGs and members of the public.

Defendants’ submissions

1. [30]

   Counsel for the defendants submitted that the Commissioner has failed to demonstrate that the defendants have been engaged in offences contrary to s 93T of the Crimes Act. Even if it is assumed that the Finks is a criminal group and that each defendant knows the Finks is a criminal group within the meaning of s 93S, counsel submitted that there is minimal, if any, evidence that the respective defendant's participation in that group contributes to the occurrence of any criminal activity. Counsel submitted that much of the evidence provided by Sergeant Broadhurst goes to establishing a link between the particular defendant and the Finks, but that the evidence does not deal with the defendants' alleged participation.

2. [31]

   Counsel submitted that the Court was required to look specifically at the case of each individual defendant and not simply at the Finks or the Nomads as an entire group. Counsel drew attention to the evidence of Sergeant Broadhurst concerning the raids on the homes of various members of the Finks on 5 April 2018. Only one of the persons mentioned, the fifth defendant Mitchell Cole, was a defendant in the present proceedings and all that was found at his premises were various items of Finks merchandise and a disciplinary book.

3. [32]

   In relation to the evidence of the telephone call involving Mr Manners and the police, counsel submitted that even if it was accepted that Mr Manners could give an order to stop the violence, that did not demonstrate any involvement on his part in the violence. Moreover, it was submitted that, in assessing that evidence, it was relevant that Mr Manners was offering to assist if police supported his application for bail when the matter was next at Court.

4. [33]

   In relation to the confidential affidavit, counsel submitted that the material demonstrated that any orders to be followed by the Finks appeared to come from Sydney rather than those office bearers in the Newcastle Chapter. The evidence also tended to show that nobody was obliged to use firearms unless they wished to do so. Counsel submitted that the confidential evidence was an answer to the general evidence of Sergeant Groenewegen about the usual way that clubs such as the Finks operate.

5. [34]

   Counsel submitted that even if it was established that the defendants were involved in serious crime related activity by virtue of s 93T, the Court would not be satisfied that the making of the orders would protect the public. This was because there was no suggestion on the evidence that any of the defendants were involved in, or would be likely to be involved in, or encouraged the involvement of others in, the conflict between the Finks and the Nomads.

Consideration

1. [35]

   Proceedings under the CSCPO Act are civil proceedings and the burden of proof is to the civil standard. However, as the Commissioner accepts, because of the serious nature of findings which must be made and the serious nature of orders that may be made, the principle from Briginshaw v Briginshaw (1938) 60 CLR 636 applies. Because the rules of evidence applicable to civil proceedings apply, a failure on the part of any of the defendants to give evidence means that inferences may be drawn, with the result that I can more readily accept the evidence of witnesses called by the Commissioner: Jones v Dunkel (1959) 101 CLR 298.

2. [36]

   The requirements for making a Serious Crime Prevention Order are set out in s 5(1) of the Act. The first requirement is that a natural person must be 18 years old or older. That requirement is satisfied for each of the defendants.

3. [37]

   The second requirement for present purposes is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence. The Commissioner seeks to satisfy that requirement by reliance on s 93S and s 93T of the Crimes Act.

4. [38]

   I accept the unchallenged evidence of Sergeant Groenewegen concerning the way OMCGs and the Finks in particular operate in terms of their hierarchical structure and the obligation of members, when directed to do so, to engage in acts of violence against members of other OMCGs. There can be no doubt that such evidence is admissible from a person having expertise in the area as, I am satisfied, he does: R v Cluse (2014) 120 SASR 268; [2014] SASCFC 97 at [13]-[15] and [47].

5. [39]

   This evidence receives corroboration from the confidential evidence, even if it is accepted that there is no obligation placed upon unwilling members to use firearms in perpetrating that violence. That evidence and the Finks rules demonstrate clearly that the Finks is a criminal group within the meaning of s 93S.

6. [40]

   The evidence of Sergeant Groenewegen and the confidential evidence in particular makes clear that any person who is accepted as a full member of the Finks probably knows, but certainly ought reasonably to know, that it is a criminal group. The evidence makes clear that if the president or the Sergeant at Arms gives an order to engage in violence towards some other person, the member is obliged to do so. One of the incidents detailed above at [12] above was such an incident. To preserve the confidentiality of the evidence referred to at [18] above, the incident cannot be identified.

7. [41]

   The first, second and fifth defendants occupy positions of president of a chapter or NSW State president. Both Sergeant Groenewegen’s evidence and the confidential evidence establishes that those defendants come within the terms of s 93T(1A) of the Crimes Act because they are directing the activities of the Finks, knowing that it is a criminal group and knowing that participation in it contributes to the occurrence of criminal activity. The evidence of the phone conversation between Mr Manners and the police officers makes his position very clear.

8. [42]

   Although the third defendant at the present time and the fourth defendant do not appear to hold any form of office in the Finks, the evidence I have referred to is sufficient to establish that they at least ought reasonably to know that their participation in the group contributes to the occurrence of any criminal activity. The rules hint at that, and the other evidence demonstrates to the Briginshaw standard that it is so.

9. [43]

   As far as the third defendant, Matthew Mayberry is concerned, he was the national vice president in 2016, and when spoken to by the police in March 2017 he was the spokesman for about 20 members of the Finks who were staying in the Mollymook area. He was recorded at that time by the police database as being the Finks national vice president.

10. [44]

    In August 2017 police reports described him as being instrumental in making the second defendant Andrew Manners the NSW State president. When a search warrant was executed at Mr Mayberry’s residence in December 2017, documentation including copies of Chapters and national rules, minutes of meetings and ordering records of Finks clothing were found.

11. [45]

    As noted earlier, Sergeant Groenewegen expressed doubt about Mr Mayberry’s assertion that he had retired as an active member of the Finks. I am entitled to infer, in the absence of evidence from Mr Mayberry setting out the true position, that he is still actively involved as Sergeant Groenewegen considers. Given his previous position as national vice president I am satisfied that he knows that his participation in the Finks contributes to the occurrence of criminal activity.

12. [46]

    Counsel for the defendant is correct to submit that the Court must ultimately look at each individual defendant rather than examining the behaviour of the Finks as a group. By the way the Commissioner puts his case to show that the defendants are engaged in serious crime related activity, there are three enquiries. First, is the Finks a criminal group? That can be determined without regard to the individual defendants. Secondly, does each defendant know, or ought reasonably to know, that the Finks is a criminal group? Thirdly, does each defendant know or ought reasonably to know, that his participation in the group contributes to criminal activity? The second and third enquiries need to look at individual defendants. In respect of the first, second and fifth defendants, and probably the third defendant, the alternative third enquiry is whether each knows, or is reckless as to whether, their participation contributes to the occurrence of any criminal activity.

13. [47]

    The case against those defendants is, on the evidence, readily established by virtue of their roles in the group. They give the orders, and those orders, from time to time, involve the perpetration of violence against others and, on the evidence, particularly directed towards members of the Nomads. The case against the third defendant is that, even if he no longer occupies his former position, his knowledge of the matters in the second and third enquiries is established.

14. [48]

    In relation to the fourth defendant, Troy Vanderlight, the evidence disclosed that, to some extent, he and his property appear to have been targeted, and it is likely from Sergeant Broadhurst’s affidavit that those responsible are Nomads. The risk of retaliation by Mr Vanderlight and others on his behalf appears to me to be considerable given that he consorts with various members of the Finks including the fifth defendant Mitchell Cole, and because of the incident between him and Kane Tamplin of the Nomads in respect of which Mr Vanderlight has been charged with affray. All of that evidence points to knowledge on the part of Mr Vanderlight about the nature of the Finks and makes it likely that he knows, or at least reasonably ought to know, that his participation in the Finks contributes to the occurrence of criminal activity.

15. [49]

    Accordingly, I am satisfied that each of the defendants has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence.

Conditions

1. [50]

   The third requirement in s 5 is that the Court is to be satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. It is necessary at this stage to focus on the precise restrictions that are sought to be imposed on the defendants to determine if they might protect the public by either preventing, restricting or disrupting involvement of the defendants in serious crime related activities. Section 6(1) gives a discretion to the Court to impose such prohibitions, restrictions, requirements and other provisions “as the Court considers appropriate”.

2. [51]

   I am satisfied that the safety of members of the public is being put at risk by the ongoing violence between members of the two OMCGs. Quite apart from that, the police have a responsibility to all members of the public including members of rival groups, even if those members will not co-operate or assist the police in that task. Further, the police have a responsibility to keep the peace in the community, and to work with the community to reduce violence, crime and fear: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 4(2); Police Act 1990 (NSW) s 6(1). In my opinion, the making of orders in the present matter, and in the related proceedings, will assist in those responsibilities, and will help to protect the public by disrupting or restricting the involvement of the defendants in serious crime related activities.

3. [52]

   At the hearing of the amended summons, Senior Counsel for the Commissioner handed up proposed amended restrictions and prohibitions. Some minor wording changes were made to paragraph 1(d). Paragraph 1(e) was added as follows:

4. [53]

   An addition was proposed to paragraph 2 as follows:

5. [54]

   Before the conclusion of the hearing, Senior Counsel withdrew paragraph 1(e)(v), and accepted that the word “associate” wherever it appears in paragraph 1(a) and (d) should have substituted for it the word “prospect” which was defined in Sergeant Groenewegen’s affidavit in these terms:

6. [55]

   He defined “Nominee” as follows:

7. [56]

   I do not accept that the restriction proposed in paragraph 1(b) (not attending hotels etc.) is reasonable, given the prohibition on the defendants associating or contacting in any way members of any OMCG. In my opinion, there would need to be strong justification for the extra restriction proposed in condition 1(b). Condition 1(a) achieves the purpose of preventing members meeting anywhere.

8. [57]

   Nor do I accept that the restrictions in condition 1(e) are reasonable. There is no evidence to suggest that computers have been or are likely to be used in any manner that contributes to serious crime related activities. I accept that they can be so used, but I have no evidence to show how such use could be monitored if such restrictions were imposed. Senior Counsel withdrew proposed condition 1(e)(v) during the hearing, presumably because it might contravene s 8(1)(b) of the Surveillance Devices Act 2007 (NSW) without a warrant being issued under that Act.

9. [58]

   I consider that the other proposed conditions are reasonable. I note that a great many of the incidents set out at [10] and [12] of the judgment have occurred at night and with the use of motor vehicles including, perhaps, motorbikes. Although I accept that condition 1(b) as proposed (the restriction on travelling in motor vehicles at night) is a serious restraint on the liberty of movement of the defendants, especially where they reside in towns or rural areas, in the light of the history of the violence I consider that such a restriction is both reasonable and necessary.

10. [59]

    Counsel for the defendants submitted that there was no utility to making an order against the second defendant Andrew Manners because he was, at the time of the hearing at least, on remand bail refused for offences with which he has been charged. In circumstances where he put himself forward to control the ongoing violence if he was given bail, I consider that it is still appropriate to make an order. The fact that he is in custody does not preclude him from being able to contact or communicate with other OMCG members and, if he has the authority he claims and the evidence suggests, the restrictions sought by Commissioner ought to apply to him whether in custody or in the community.

11. [60]

    I have given careful consideration to the length of the order although no submissions were made by either side about this aspect. I bear in mind that the restrictions to be imposed are serious restrictions on the liberties of the defendants when the orders to be made are made in circumstances where it has not been proved to the criminal standard that they have committed the offence under s 93T that justifies the making of the order. I note that the maximum period allowed under the Act is five years.

12. [61]

    Given that the evidence discloses that the conflict between the groups has existed for considerably longer than the events documented during the current calendar year, it seem to me that anything less than a period of twelve months would only be likely to create a brief hiatus, and that the conflict would then be re-ignited. A period of 12 months has more chance of producing a more permanent end to the conflict because habits and behaviour that have been routine will be interrupted, may possibly be changed in the interim, and will be more difficult to re-establish. In any event, the defendants have the right to apply to the Court under s 12 for a variation or revocation of the orders, but only if they establish that there has been a substantial change in the relevant circumstances since the order was made.

13. [62]

    Each of the defendants is waiting a hearing on various criminal charges. At the date of the hearing Mr Manners was remanded in custody, and the other four defendants were on bail with varying conditions. The present orders should not be seen in any way as influencing or inhibiting any magistrate or judge who is required to sentence any of those defendants. The restrictions, prohibitions and conditions of the order I make should operate only until such time as a sentence is imposed on any of the defendants if such a sentence would be inconsistent with the present order. Otherwise the present order should only act to the extent that it is not inconsistent with any sentence imposed.

Conclusion

1. [63]

   Accordingly, I make the following orders: