Commissioner of Police v Bowtell (No. 2)

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 Nomads OMCG.

The legislation

1. [4]

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

2. [5]

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

3. [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:

4. [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 Anthony Macken gives expert evidence about outlaw motorcycle gangs and about the Nomads in particular. Mr Macken says, and it is not disputed by the defendants, that each of the defendants is a member of the Nomads. Mr Macken says that the first defendant is the President of the Newcastle City Chapter. The second defendant is likely the national president. The third defendant is attached to the Newcastle City Chapter. The fourth defendant likely remains the Newcastle Chapter Sergeant at Arms. The fifth defendant may be the Newcastle City Chapter Sergeant at Arms.

2. [9]

   According to Mr Macken, the President has absolute authority over his area of responsibility. The Sergeant at Arms is responsible for discipline of the members of the OMCG and for formulating and coordinating attacks on the rival OMCGs during times of conflict. Mr Macken said that hierarchy is an important feature of OMCG culture and is inexorably linked to membership. During times of conflict, office bearers and senior members often direct junior members and prospects/ nominees to commit acts of violence.

3. [10]

   An affidavit of Sergeant Gary Broadhurst, who is attached to Strike Force Raptor, a specialist unit created to combat Outlaw Motor Cycle Gang-related serious organised crime, gives evidence of the current conflict between the Nomads and the Finks. He swears in his affidavit of 12 March 2018 to the following acts of violence and related matters that have occurred since the beginning of the present calendar year:

4. [11]

   Sergeant Broadhurst swears in his affidavit that the current conflict between the two gangs is the most significant OMCG conflict that has occurred in NSW. The violence has escalated to a point that it has become an emergency. He says that it is only a matter of time before an innocent member of the public is injured.

5. [12]

   At my request to Senior Counsel for the Commissioner, Sergeant Broadhurst updated this information in an affidavit sworn 14 April 2018 which disclosed the following:

6. [13]

   Sergeant Broadhurst said further that the fact that Police are still locating and seizing weapons and explosives, even since these proceedings and other proceedings against members of the Finks OMCG have commenced, reinforces his view that the defendants in both of these proceedings intend to continue to escalate the violence against each other.

7. [14]

   Police records detail the following incidents which preceded the violence during 2018 as follows:

8. [15]

   When discussing the nature and distinguishing characteristics of the Nomads OMCG Mr Macken annexes copies of what are said to be the Nomads Constitution and Rules. Mr Macken says that these were obtained by police on two occasions; first, on 11 August 2010, during the execution of a search warrant at the residence of a Nomads member; secondly, on 2 July 2012 during the execution of a search warrant at the residence of a Nomads member.

9. [16]

   One of the documents concerned is headed “Constitution Nomads MC Australia 30th Anniversary 1998”. For present purposes section H is relevant. Section H concerns the duties of office bearers. Section H relevantly provides:

10. [17]

    Section I headed “Police and Laws” says relevantly:

11. [18]

    The Charter Rules was a separate document found with the Constitution. Rule 9 says:

12. [19]

    Another document appears to contain some further rules which relevantly provide:

13. [20]

    Mr Macken gave evidence, unchallenged by objection or cross-examination, concerning the constitution and rules as follows:

14. [21]

    Mr Macken also gave evidence that, from his knowledge of OMCGs, it was his opinion that the Nomads is a structured and hierarchical organisation. He said that the Nomads has a chain of command from lower membership to high ranking officers, while official rules give a clear message of expected behaviour.

15. [22]

    Mr Macken’s evidence of a strong hierarchical organisation is borne out by evidence from Detective Inspector Robert Radmore, who has had experience and investigation management responsibility in OMCG investigation since at least 2001.

16. [23]

    Inspector Radmore referred to the arrest of the first defendant Bradley Bowtell on 15 March 2018 at which time he was charged with intimidation and using a carriage service to menace. Inspector Radmore spoke with Mr Bowtell in the early hours 16 March. Shortly before he did so, there was a deliberate arson incident at the residential premises of a Finks member Ashley Chambers. Mr Bowtell was questioned about his knowledge of and involvement in that arson. He told Inspector Radmore that he was not involved. He also informed him that as president of the Chapter he has command of his members and can guarantee they were not involved.

17. [24]

    Inspector Radmore said that on 20 March 2018 he arranged to meet with Mr Bowtell and Mr Brittliffe to discuss an end to the violence between the Nomads and the Finks. During that meeting both Mr Bowtell and Mr Brittliffe offered a guarantee, when asked, that there would be no further incidents of violence committed by Nomads OMCG members towards Finks OMCG members until a meeting could be arranged. Inspector Radmore said that the conversation was a clear indication of the level of control the hierarchy of the gang has over its members and, therefore, the level of control the hierarchy has over the co-ordination of acts of violence. Inspector Radmore was not cross-examined.

18. [25]

    When Mr Bowtell gave evidence he was asked about this conversation with Inspector Radmore. While denying that it was within his power to end the conflict, he gave this evidence:

19. [26]

    In answer to some questions from me, Mr Bowtell gave this evidence:

20. [27]

    Mr Brittliffe, who is the national president of the Nomads, gave evidence about the meeting with Inspector Radmore. Mr Brittliffe was an extremely evasive witness and unless there was corroboration elsewhere or concessions from him I would not accept much of his evidence. For example, although he was the national president he was not able or prepared to say how many Chapters of the Nomads there were in Australia. Nor could he or would he say how many members there were nationally. He also denied that there had been any violence between the Nomads and the Finks and said that none of the violence (which he said did not happen) had anything to do with the Nomads.

21. [28]

    However, he gave this evidence which might be thought to be some support for Mr Bowtell’s slightly more honest evidence about what was said at the meeting with Inspector Radmore:

22. [29]

    In answer to some questions from me he gave this evidence:

23. [30]

    It may be observed in answer to two of my questions that Mr Brittliffe did not deny giving the guarantee I suggested he had given.

24. [31]

    Each of the defendants was asked about their knowledge of the rules of the Club and, to the extent that they had a role in the Club, what that role involved. The fourth defendant, Mr Quinnell, who was the Sergeant at Arms of the Newcastle Chapter, said he was not provided with a copy of the Constitution and the Rules and has not informed himself about what the rules were. He denied that as the Sergeant at Arms one of his functions was to administer discipline. He said his only function was to make sure everybody gets along, and rides, and behaves themselves. He claimed at first not to understand what the word “tools” meant even in its ordinary everyday meaning. He denied that it was a euphemism for weapons. He denied that it was a rule of the Club that refusal of duty at war meant instant dismissal. He said that he was not aware that there was a war between the Nomads and the Finks. He denied that there was a code of silence with law enforcement agencies.

25. [32]

    He was shown a video clip that he made and uploaded to Instagram where he says:

26. [33]

    I do not accept any of Mr Quinnell’s evidence about matters to do with the Nomads or their conflict with the Finks. I consider that he lied constantly in answering Mr Tedeschi’s questions. In particular, his denial of any conflict between the Nomads and the Finks was inconsistent with the evidence of Sergeant Broadhurst set out earlier, all of which was amply supported from contemporaneous police records, and with the evidence of Inspector Radmore.

27. [34]

    The fifth defendant, Kane Tamplin, is the Sergeant at Arms of the Nomads Newcastle City Chapter. He said that it was his role as Sergeant at Arms just to look after everyone. It was not his duty to look after the tools of the Club which he described as a few spanners and the like to fix bikes. He denied that the term was a euphemism for weapons. He did not agree that the Club had a Constitution or that there were written rules. Although he described the Club as a family, he said that the members of the family were not obliged to defend each other. He said there was no current conflict between the Nomads and the Finks. He said that it did not even occur to him that the house of the sister of his girlfriend was shot up because of his membership of the Nomads.

28. [35]

    Except for his admission that he was involved at a fight at the Honeysuckle Hotel involving four Nomads, I consider that Mr Tamplin lied constantly in answering Mr Tedeschi’s questions.

29. [36]

    The only one of the defendants who gave reasonably honest evidence was the third defendant, Blake Martin. His evidence provides some corroboration of Mr Macken’s evidence about the fact that a Constitution and Rules exist and that those Rules are usually obeyed. It also corroborates the evidence of Sergeant Broadhurst and Inspector Radmore about the ongoing conflict between the Nomads and the Finks.

30. [37]

    He gave the following evidence (T31-34 & T36-37):

31. [38]

    In Mr Brittliffe’s evidence he was asked if he knew there was a Constitution and he said he had heard that there was. He was asked if he had seen any rules and he said “Only bits and pieces. What’s in our paperwork”.

32. [39]

    Yet, in his affidavit of 22 March 2018 in response to Mr Macken’s affidavit, he said:

33. [40]

    He said at paragraph 65 of his affidavit:

34. [41]

    He went on to say that he had done some research and he had found an article which he annexed to his affidavit. The thrust of the article appeared to be that statistics showed that “bikies” committed less than 1% of all crimes in New South Wales and were not a threat to mainstream society.

35. [42]

    He was cross-examined about portions of that article as follows:

36. [43]

    Unwittingly or not, that evidence tends to provide support for Mr Macken’s evidence about the involvement of OMCGs including the Nomads in particular types of crime, especially violence and drug dealing.

37. [44]

    In his affidavit Mr Macken identifies the Nomads as an OMCG whose membership exhibits various identifying characteristics. Some of those characteristics relevant for the present matter are: that the Club has a hierarchical structure used for governance; that members are governed by rules which are enforced by violence; that members adhere to a culture of silence towards non-members particularly law enforcement; and that the Club has a reputation for violence and for use of firearms and other weapons.

38. [45]

    Mr Macken identifies the members of the Nomads who have been convicted of offences of violence and intimidation. Members have been convicted of 27 separate offences since 2002 and 16 such offences since 2013. A number of these offences are offences punishable by a sentence of ten years imprisonment or more.

39. [46]

    Mr Macken also identifies members who have been convicted of firearms and weapon offences. Since 2001 there have been 25 convictions and since 2013 11 convictions. Some of the convictions involved multiple offences.

40. [47]

    Mr Macken has identified Nomads members who have been convicted of serious drug offences including cultivation, supply and manufacture. There are 13 such convictions since 2001 and five such convictions since 2015.

41. [48]

    Mr Macken details various conflicts between the Nomads on the one hand and a number of other OMCGs since 2005.

The Commissioner’s case

1. [49]

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

2. [50]

   Section 93T of the Crimes Act provides:

3. [51]

   Section 93S defines criminal group as follows:

4. [52]

   That section also defines a serious violence offence as follows:

5. [53]

   The Commissioner submitted that all defendants except for the first defendant have been convicted for offences of affray where they have acted together to assault members of the public, and that this demonstrates that their participation in the Nomads OMCG contributes to the occurrence of criminal activity.

6. [54]

   Those defendants were made subject to non-association orders because of those convictions. However, the third, fourth and fifth defendants have filed appeals against their sentences with the result that the non-association orders are suspended under s 63 of the Crimes (Appeal and Review) Act 2001 (NSW). The Commissioner submitted that, in any event, those non-association orders would not protect the public since they lawfully permit the defendants to associate with other Nomads members that are not subject to an order.

7. [55]

   The Commissioner submitted that the Nomads are a criminal group because they are a group of 3 or more people who have as one of their objectives committing serious violence offences. The five defendants are each participating in that criminal group, and each knows or ought reasonably to know that the Nomads 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. That 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.

8. [56]

   That submission is made on the basis of Sergeant Broadhurst’s belief to that effect in respect of each of the defendants. The Commissioner submitted that it can be inferred that because each defendant is involved with the Nomads, they participate in the activities of the Nomads. The Nomads’ constitution and rules require that members of the Nomads participate in violent confrontation. The evidence from Mr Macken, it is submitted, is that members of the Nomads have been involved in serious violence and intimidation offences including against members of rival OMCGs and members of the public.

Defendants’ submissions

1. [57]

   Counsel for the Defendants focused particularly on the distinction between the individual defendants and the Nomads club itself. He submitted that the Act is concerned with individuals. He submitted that individual offending by the defendants could not be taken to show that the Nomads had the particular objectives to which the Commissioner pointed. He drew attention to the need to show, consistently with s 93T(1), that each defendant knew or ought reasonably to have known that the Nomads was a criminal group and that his participation in it contributed to the occurrence of any criminal activity.

2. [58]

   Counsel was critical of Mr Macken’s evidence in detailing historical matters concerning the Nomads when it was, in any event, an organisation with changing membership. He drew attention to the fact that the defendants had only joined the Nomads at various times in the 21st century, and it could not be assumed that they were aware of any Constitution or Rules which were prepared some 20 years ago.

3. [59]

   Counsel submitted that little weight should be placed on what was supposed to have been said at the meeting between Inspector Radmore and Messrs Bowtell and Britliffe. He submitted that nothing said at that meeting implicated those defendants or the others in any acts of violence, and what was said at the meeting did not demonstrate that the office-holders in the Nomads were able to control the members.

4. [60]

   Counsel made reference to the presumption of innocence and Article 11 of the Universal Declaration of Human Rights. He submitted that all of the defendants in their affidavits accepted that they were bound by the criminal laws.

Consideration

1. [61]

   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.

2. [62]

   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 this requirement by reliance on s 93S and s 93T of the Crimes Act.

3. [63]

   I accept Mr Macken’s expertise in relation to outlaw motorcycle gangs and in relation to the Nomads in particular. 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].

4. [64]

   I accept the evidence of Sergeant Broadhurst concerning the particular incidents of violence that have taken place. The evidence is derived chiefly from contemporaneous police reports of those incidents. I note that, although some statements in his affidavits could be read only as submissions, no objection was taken to them. To the extent that they are submissions I accept them as being supported by the factual evidence he has assembled.

5. [65]

   These are civil, not criminal, proceedings: CSCPO Act, s 13. Proof of the matters required to make an order under the CSCPO Act is to the civil onus although the Commissioner accepts that by reason of the seriousness of the findings which must be made and, I would add, by the stringency of the conditions that may form part of any order, the Briginshaw principle is engaged. The defendants’ submission about the presumption of innocence is misconceived because any order made will not result in any conviction of the defendants. The only issue is whether the Commissioner proves to the requisite standard the matters set out in s 5(1) of the Act.

6. [66]

   The evidence of Mr Macken points to the inextricable link between the large numbers of individuals who have been convicted of serious offences involving violence, weapons and drug supply and their membership of the Nomads. The evidence of violent incidents detailed in Sergeant Broadhurst’s affidavit demonstrates objectively that a number of victims of the offences, and properties involved in the offences, are associated with the Nomads and the Finks. It would be unrealistic not to infer that those incidents are strong and persuasive evidence of an ongoing conflict between the two groups.

7. [67]

   The evidence of Inspector Radmore provides support for Mr Macken’s evidence about the hierarchical structure which operates so that the office-bearers exercise considerable, even if not complete, control over their member’s involvement in violence that is related to the Nomads, and what that organisation perceives as its right and privileges in a certain geographical area. I accept Inspector Radmore’s account of the meeting he had with Mr Bowtell and Mr Britliffe, an account which was, I have noted earlier, unchallenged and largely corroborated by their evidence.

8. [68]

   I consider that the Constitution and Rules of the Nomads, although written up to 20 years ago (not 50 years, as Mr Bowtell claimed), still identifies the basis by which the Nomads operate. That is borne out by the evidence of Mr Martin and Mr Bowtell, and to a lesser extent, as I have explained, by the evidence of Mr Britliffe. Further, I note that copies of these documents were found as recently as 2010 and 2012, suggesting that they still have currency. The evidence of those witnesses corroborates the expert evidence of Mr Macken about the way OMCGs and the Nomads in particular operate.

9. [69]

   So too does the evidence in Exhibit B, which was a COPS report of 10 April 2017 showing some discussions between police officers on the one hand and a member of the Finks and a member of the Nomads on the other. The report relevantly reads:

10. [70]

    The evidence of Messrs Bowtell, Martin and Britliffe, and the above report, put the lie to the suggestion of some of the defendants that all that is occurring is the working out of individual disputes unrelated to membership of the OMCGs.

11. [71]

    I reject for the most part that suggestion by the defendants that the incidents detailed by Sergeant Broadhurst are nothing more than personal disputes between two individuals on any given occasion. I accept, nevertheless, that a few incidents may have personal animosity and personal factors at their root, but the evidence overwhelmingly leads to the conclusion that most of the violence stems from a rivalry between the Nomads and the Finks.

12. [72]

    I accept the evidence of Mr Macken that the reference to “tools” in the Rules of the Nomads is a reference to weapons, whether firearms or otherwise, despite denials by the various defendants.

13. [73]

    On the basis of all of this evidence, I am satisfied, bearing in mind the Briginshaw standard, that the Nomads OMCG is a criminal group within the meaning of s 93S of the Crimes Act in that the Club has at least as one of its objectives the commission of serious violence offences.

14. [74]

    I am also satisfied that each of the defendants knows that the Nomads is a criminal group by virtue of its written or unwritten rules requiring obedience to office bearers and a requirement to engage in or aid violence even if in the first instance, the violence is, in some form, defensive action.

15. [75]

    I am also satisfied that each of the defendants at least ought reasonably to know that his participation in the Nomads contributes to the occurrence of the criminal activity because each defendant knows of his obligation to act supportively of others in the group including by engaging in violence to that end.

16. [76]

    For reasons I have given, I do not accept the evidence of the defendants who deny knowledge of the Club’s rules and obligations, particularly the rule or obligation to act with violence if necessary in support of the group or others in the group.

17. [77]

    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. [78]

   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. [79]

   Although the structure of the Act suggests that the Court must first be satisfied that, in compliance with s 5, there are reasonable grounds to believe that the making of the order would protect the public in the ways set out, and then to consider the form of the order as s 6 provides, it is difficult to see how the s 5 determination can be made without considering the particular prohibitions etc that should be put in place. This is at least because the order itself does not exist over and above the particular restrictions. Further, the Court cannot conclude that any order “would protect the public” in any of the ways specified unless the prohibitions etc. are identified. The order may be compared to an Extended Supervision Order under the Crimes (High Risk offenders) Act 2006 (NSW) where the supervision order can be made under s 9(1) and where conditions then may be added under s 11.

3. [80]

   As to protecting the public, it is doubtful that any provisions are likely to prevent involvement by persons in serious crime related activities. I accept, however, that provisions can restrict and disrupt that involvement. 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 in the form to be discussed, 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.

4. [81]

   The Commissioner accepts that at this point (ss 5(1)(c) and 6(1)) a balancing exercise is involved between the need to protect the public in that way and the restrictions that will be imposed on the defendants’ activities.

5. [82]

   As a result of the affidavit evidence given by four of the defendants, that is, Messrs Bowtell, Martin, Quinnell and Tamplin, there is a particular need to focus on paragraphs 1(a),(c) and (d) of the proposed order. In short, that evidence concerns the employment of those four defendants.

6. [83]

   Mr Bowtell gave evidence that he is employed by One Key Employment as a coal operator at a coal mine in the Hunter Valley region. He works on a rotating shift roster which includes day shifts and night shifts. The day shifts are between 5:00am and 4:30pm and the night shifts are between 4:00pm and 3:30am. He says that he is aware that other members of the Nomads are also employed at the mine and rostering might require him to work with other members of the Nomads. He says also that as a safety requirement, employees are required to travel in carpools to and from work should they reside beyond a particular distance from the mine. The mine is located in rural country where there is no public transport. At times he is required to engage in the carpooling agreement in a motor vehicle with one or more members of the Nomads. He said that if paragraph 1 of the order is made he would likely lose his employment. He also says that he resides at an address with another Nomad member.

7. [84]

   Mr Martin also gave evidence of working for One Key Solutions as a dump truck operator. He works at a coal mine in the Hunter Valley region. As with Mr Bowtell, he works night shifts and day shifts. Other Nomad members are employed by the company and at times he is required to travel in carpools to and from work and that may involve doing so with other Nomad members.

8. [85]

   Mr Quinnell gave evidence in his affidavit that he is employed as a labourer by New Pave Asphalt. That company resurfaces roads and pathways and much of its work is for the New South Wales government. He says that often the work needs to be done at night under lights when vehicular traffic access is light. Night shifts are typically between 4:00pm and 6:00am. He says that other members of the Nomads are also employed by that company. However, he said that his supervisor ensures that members work in different crews to avoid contact during those work hours. He said that Kane Tamplin is also employed by New Pave Asphalt. Mr Tamplin also gave evidence in his affidavit that he works for New Pave Asphalt. His evidence was to the same effect Mr Quinnell.

9. [86]

   The second defendant Mr Brittliffe was unemployed.

10. [87]

    Although, as I have indicated, I have found the evidence of some of the defendants to be unsatisfactory, this evidence concerning their employment was not challenged. I have no reason for considering that it is not truthful evidence.

11. [88]

    Counsel for the defendants submitted that the orders sought were unnecessary, and that the Act was not designed to control groups, clubs or associations of any sort. He submitted that the disruption of an individual’s normal life activities was not allowed by the Act. He submitted that attending to employment cannot be regarded as a serious crime related activity, and yet the orders sought would restrict or stop the employment of a number of the defendants. He submitted that the restriction on attendance at hotels, clubs and bars could not properly be considered as preventing serious crime related activities, nor could the wearing of insignia.

12. [89]

    Counsel for the defendants submitted that paragraph 1(a) and (d) assume that the defendants knew who the members or associates of all OMCGs were, and did so in circumstances where the defendants did not accept that they were the member of an OMCG. He submitted that restricting the association of members of a group where the alleged crimes are not based on the criminal standard of proof was an affront to the freedom of association. Reference was made to the International Covenant on Civil and Political Rights, although counsel for the defendants accepted that such a Covenant had not been incorporated into Australian law. It was submitted that it should nevertheless be regarded as persuasive.

13. [90]

    During the course of submissions I raised with Senior Counsel for the Commissioner the effect of imposing the restrictions in 1(a), (c) and (d) on the employment of four of the defendants. Further, an issue was raised on behalf of Mr Brittliffe that the restrictions on associating with another member of the Nomads would prevent his being able to have contact with his father who was also a member of the Club. Mr Brittliffe had said that his father was diagnosed with cancer and that he visited his father at his residence at least twice a week to check on his health.

14. [91]

    The parties were given leave to submit revised proposed restrictions and prohibitions, and both parties availed themselves of that leave.

15. [92]

    The Commissioner proposed the following revised conditions:

16. [93]

    The defendants submitted completely redrafted restrictions and prohibitions as follows:

17. [94]

    In respect of prohibition 2 put forward by the defendants, I note that submissions were made against the Commissioner’s proposed restrictions about wearing Nomads insignia. However, the defendants now appear to have accepted that that condition is a reasonable one.

18. [95]

    I am satisfied that the first, second, fourth and fifth defendants are office holders in the Nomads and exercise to a greater or lesser extent, influence and control over members of the Nomads. Whilst the third defendant is not an office holder, I am satisfied that it is appropriate to make a similar order against him by reason of his demonstrated past involvement with other Nomads members in acts of violence and by reason of his membership alone of the Nomads, which I have already concluded means that he ought reasonably to know that his participation in the Nomads contributes to the occurrence of criminal activity.

19. [96]

    I accept the Commissioner’s submission that the most effective way of restricting or disrupting involvement of the defendants in serious crime related activities is to prevent them associating with one another and from contacting one another. I consider that the amended restrictions contained in paragraph 1(a), (b), (d), (e) and (f) of the Commissioner’s proposed revised conditions are more likely to be effective than condition 1 proposed by the defendants.

20. [97]

    I accept also that, because a number of the acts of violence identified that appear to be related to the conflicts between the Nomads and the Finks have happened at night and with the use of motor vehicles including, perhaps, motorbikes, the restriction in paragraph 1(d) is reasonable.

21. [98]

    On the other hand, I do not accept that the restriction proposed in paragraph 1(c) is reasonable given the prohibition on the defendants associating or contacting in any way members of any OMCG. Condition 1(c) was put forward because of orders which have been obtained preventing the use of the Nomads clubhouse. It was submitted that the Nomads have resorted to congregating in hotels or clubs or bars since that time.

22. [99]

    Any order made under the CSCPO Act is a serious restriction on a person’s liberty given that proof is only required to the civil standard of commission of particular criminal offences. In my opinion, there would need to be strong justification for the extra restriction proposed in condition 1(c). Condition 1(a) achieves the purpose of preventing members meeting anywhere. The starting point must be that the only conditions that should be imposed are those which are necessary, rather than simply desirable, to protect the public by preventing, restricting or disrupting involvement by the defendants in serious crime related activities.

23. [100]

    The Commissioner no longer seeks a prohibition in this order relating to the possession of weapons and firearms. That appears to be because it is accepted that there are certain orders in place in relation to weapons and that recent searches of some of the defendants’ homes have not uncovered any weapons.

24. [101]

    With regard to the prohibitions in paragraph 2, it should first be accepted that there was no evidence that the defendants were using encrypted communications devices. However, it is a reasonable inference that telephones have been the likely means of communication amongst the defendants. For that reason it is reasonable to impose a restriction that each defendant should not possess more than one mobile telephone so that, if necessary, the communications made using it can be inspected if necessary. That in turn makes it necessary to restrict the defendants from using any form of encrypted communication, whether a Blackberry or some application on an ordinary mobile phone. It is also reasonable that the number for the single mobile phone owned by each defendant should be notified to the police.

25. [102]

    On the other hand, the proposed restrictions in paragraph 3 dealing with computers do not appear to me to be 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. This condition was not originally proposed by the Commissioner.

26. [103]

    Finally, the condition preventing the wearing or displaying of Nomads OMCG insignia appears to me to be a reasonable one for minimising the risk of individual altercations in the event that there was inadvertent meeting between one of the defendants and a member of the Finks or other OMCG. I note that the defendants appear to accept that this condition is reasonable.

27. [104]

    I consider that the other conditions are reasonable in that they take into account the defendants’ employment and family situations.

28. [105]

    I have given careful consideration to the length of the order although no submissions were made by either side about this aspect. In the original summons filed by the Commissioner the orders were sought for six months. In the amended summons the orders were sought for 12 months. 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.

29. [106]

    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 or 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.

30. [107]

    The first defendant, as has been noted, has been charged with intimidation and using a carriage service to menace. His trial on those charges has not yet taken place. If he is convicted he will be required to be sentenced. The third, fourth and fifth defendants have filed appeals against their sentences for affray. Those matters will come before the District Court in due course.

31. [108]

    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 orders 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 orders. Otherwise the present orders should only act to the extent that they are not inconsistent with any sentence imposed.

Conclusion

1. [109]

   Accordingly, I make the following orders: