Commissioner of Police, NSW Police Force v Zahed

The evidence

1. The Commissioner relied upon two affidavits in support of its application: an affidavit of Detective Sergeant Bruce Groenewegen with annexures sworn on 26 February 2021 and an affidavit of Detective Chief Inspector Stuart Cadden with annexures sworn on 21 October 2021. The defendant provided written submissions but did not rely on any material.
2. Detective Sergeant Groenewegen has specialised knowledge of OMCGs through his training, study and experience. He commenced working in the Gangs Squad in 2004 and became a team leader in that group in 2006. In that role he investigated serious criminal activity involving OMCG members and gained further specialised knowledge through attending conferences relating to OMCG activity. In 2017, the Gangs Squad became the Criminal Groups Squad and Detective Sergeant Groenewegen remained as Team Leader of Investigations. He has previously provided expert opinions on the nature and identifying characteristics of OMCGs as well as the membership status of individuals within those groups. He is a Director of the International OMCG Investigators Association and has frequently given presentations in Australia and overseas on the characteristics of OMCGs.
3. In Detective Groenewegen's opinion, the Comanchero OMCG and their members engage in the supply and distribution of prohibited drugs and the possession and use of firearms and other weapons. The Comanchero have an extensively documented history of violence including shootings in public places. Detective Groenewegen noted that the Comanchero have as one of their objectives, the protection and enhancement of their reputation through the commission of further serious violence offences.
4. In relation to OMCGs generally, Detective Groenewegen observed that the groups operate on the assumption that once a man becomes a full member he will remain so for the rest of his life.
5. OMCGs operate under a degree of secrecy and the identity of officeholders is not generally made public. It is the opinion of Detective Groenewegen, however, that the defendant is the Sergeant at Arms of the Sydney Chapter of the Comanchero OMCG and likely also the National Sergeant at Arms. The "Sergeant at Arms" is an elected officer of an OMCG (an office that can be held at a Chapter, State, National or International level). The Sergeant at Arms is responsible for the discipline of members and formulating and coordinating attacks on rival OMCGs during times of conflict.
6. Detective Groenewegen noted that the defendant began associating with the Comanchero in 2009 and has maintained a close association with senior members since then. He likely became a full member between 2009 and 2015 and became the Sergeant at Arms for the Sydney Chapter in 2018. It is likely that he became Sergeant at Arms of the National Chapter prior to October 2020.
7. Detective Sergeant Groenewegen provided as one of the annexures to his affidavit a glossary of relevant terms. That document described "colours" as "a leather or denim vest or jacket displaying the '1%', Three Piece Patch and other patches particular to an OMCG". "Soft colours" were described as a t-shirt, jumper or other item of clothing with image of the three-piece OMCG patch on the back or front. Soft colours are distinguished by the fact that the patches are not sewn on, however only full members are permitted to wear them.
8. The basis of Detective Sergeant Groenewegen's opinion as to the defendant's involvement with the Comanchero OMCG is set out in annexure F to his affidavit. In December 2014, police observed the defendant in the company of several Comanchero members. In July 2015, the defendant was stopped by police in the company of a man who had Comanchero "colours" in his vehicle. The defendant was at that time believed to be the Sergeant at Arms, although the Chapter was unknown.
9. In October 2016 and September 2018, the defendant was again observed to be in the company of Comanchero members. In September 2018, the defendant attended the funeral of Mark Buddle's mother, Leslie. Mr Buddle is a prominent member of the Comanchero. The defendant was observed to be wearing the colours of a full member of the Comanchero. Later on that same day, the defendant was photographed wearing full colours with a "Sydney" side rocker and a "Sergeant at Arms" patch. In late September 2018, he was observed to attend the annual Comanchero Father's Day Run.
10. In November 2018, the defendant told police that he was the Sergeant at Arms of the Sydney Chapter of the Comanchero. In December 2018, police executed a search warrant at the defendant's premises and located a set of Comanchero colours. A patch on that jacket indicated that the defendant had been a member since at least December 2012. The defendant's mobile phone contained messages indicating close contact with the first defendant in this matter, Ali Bazzi, known to police as a senior Comanchero. In late December 2018, the defendant was stopped by police and stated that he was the NSW Sergeant at Arms of the Comanchero.
11. On 11 February 2019, the defendant told police that he was still with the Comanchero and had been with them "for a long time". Two days later, he told police he was "not a member [of the Comanchero] anymore". In October 2020, the defendant told police he was the National Sergeant at Arms of the Comanchero. Later that same day, a search was conducted at the defendant's premises and clothing printed with Comanchero images and words was found.
12. In addition to his involvement in the Comanchero, the defendant has a lengthy criminal history. His criminal record and police facts in relation to particular offences were annexed to Detective Groenewegen's affidavit.
13. In 1995, he was convicted of assault occasioning actual bodily harm, resisting an officer and assaulting police. In 2001, he was convicted of maliciously causing a dog to inflict actual bodily harm, for which he was sentenced to 8 months periodic detention. In 2004, he was sentenced to 5 years imprisonment with a non-parole period of 3 years for maliciously inflicting grievous bodily harm. That offence related to an incident in which he kicked and stomped on the victim's head following an argument that occurred in the course of a drug deal. The victim suffered a large skull fracture and a portion of his skull had to be removed. Police were informed that the victim would suffer brain damage. The defendant was also sentenced for an offence of ongoing supply of a prohibited drug, with an offence of supply prohibited drug in greater than an indictable quantity taken into account on a Form 1.
14. In 2011, the defendant was sentenced to 8 years imprisonment with a non-parole period of 5 years for discharging a firearm with intent to cause grievous bodily harm. He discharged a firearm four times from a moving vehicle and shot the victim in the right ear and right shoulder. The shooting was the culmination of a car and foot pursuit in which multiple stabbings occurred and the eventual victim shot the defendant's associate with a nail gun next to a McDonald's.
15. On 25 September 2020, the defendant was sentenced for dealing with property with a value of $100,000 suspected of being the proceeds of crime. That offence related to transfers from bank accounts in the names of the defendant's children (then aged approximately 11 and 3 years old respectively) to the defendant's account in amounts of over $100,000. The defendant also made cash withdrawals from his daughter's account totalling $240,000 and cash deposits into own account in the amount of $128,835. The defendant's taxable income in that year was $1,137.
16. I have also had regard to the affidavit of Detective Chief Inspector Cadden who is attached to the Criminal Groups Squad, State Crime Command. He has worked on the investigation of OMCGs for the past three years. I am satisfied that he too is an expert able to give evidence as to the operation of OMCGs. He described the activities of the defendant in more recent times since his arrest on 21 January 2021 for participation in affray at Crown Casino on 16 January 2021. Significantly, he deposed as to an investigation into the defendant's making a false statutory declaration in order to receive a travel exemption on 21 August 2021 and his departure to Turkey in September 2021. DCI Cadden also deposed that after the defendant was refused entry to Turkey, he was allowed to travel to another country on false information provided by a Lone Wolf OMCG member.

The legislative scheme

1. The Act was enacted on 11 May 2016. Its long title is "[a]n Act to provide for the making of serious crime prevention orders …". The Explanatory Note to the Bill for the Act noted that its object is "to enable the Supreme Court and the District Court to make serious crime prevention orders, on the application of the Commissioner of Police, the Director of Public Prosecutions or the New South Wales Crime Commission, so as to prevent, restrict or disrupt involvement by certain persons in serious crime related activities".
2. Section 5(1) of the Act provides as follows: 5 Making of serious crime prevention orders (1) An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if: (a) in the case of a natural person - the person is 18 years old or older, and (b) the court is satisfied that: (i) the person has been convicted of a serious criminal offence, or (ii) the person has been involved in serious crime related activity for which the person 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 (c) the court is 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.
3. The steps to be taken in determining whether to make an order pursuant to s 5 of the Act were set out in Vella.

The defendant's age

1. The defendant was born in 1980 and is currently 41 years of age. Section 5(1)(a) is thus satisfied.

Conviction(s) for a serious criminal offence

1. The second requirement is provided in s 5(1)(b) of the Act which requires that the Court be satisfied that the defendant has been convicted of a serious criminal offence. The term "serious criminal offence" is defined in s 3(1) of the Act as having the same meaning as that which is given to that term in the Criminal Assets Recovery Act 1990 (NSW). Section 6(2) of the Criminal Assets Recovery Act provides that a serious criminal offence includes, inter alia, an offence punishable by imprisonment for 5 years or more which involves, inter alia, money laundering and violence.
2. I have already outlined the defendant's criminal history in general terms. I am satisfied that he has been convicted of a serious criminal offence as defined in the Act.

Likelihood that the defendant will be involved in serious crime related activities

1. Section 5(1)(c) requires an assessment of whether there is a real likelihood, or in other words a real and significant risk, that the defendant will be involved in serious crime related activities (Vella at [43]). It is not necessary for the Court to be satisfied that the defendant will himself commit a serious criminal offence. The relevant test only requires satisfaction that there is a real likelihood he will be involved in such activities.
2. Mr Lange submitted that it is not necessary for the Court to be satisfied that he would be directly involved in such activity. It was his submission that, given the forward-looking assessment required under this step, the evidence would not permit the Court to conclude that the defendant would personally commit a serious offence in the future.
3. The expert evidence relied upon by the Commissioner, as found in Detective Groenewegen's affidavit, is that there is a very high likelihood that the defendant himself would be involved in future conduct which would constitute an offence, including involvement in drug trafficking, theft, fraud, forgery, money laundering, violence, bribery, harbouring criminals, blackmail, tax evasion, illegal gambling or homicide.
4. On behalf of the Commissioner, Ms Davidson submitted today that, given the statutory language and the future looking assessment, it is not necessary for me to be satisfied to the requisite standard that the defendant himself would be highly likely to be involved in such activity, given the evidence of Detective Groenewegen that, even if the defendant did not personally engage in any such criminal activity, his position of seniority was such that he could sanction the commission of serious crimes. I am satisfied that I do not need to make a finding as to the defendant's direct involvement.
5. I am satisfied that the defendant's position of seniority is such that the nature of the criminal conduct he could sanction might include serious offences of violence on behalf of the OMCG. I also note Detective Groenewegen's evidence that, by reason of his association with the OMCG, he could have knowledge of illegal conduct and be in a position to conceal such conduct from the authorities, including the destruction of evidence or influencing of witnesses.
6. The Commissioner also relied on the defendant's lengthy history of criminal offending, including violent offending, in addition to his involvement with the Comancheros. The defendant's long-standing association with and involvement in the Comanchero OMCG, his seniority within the group and his lengthy history of violent offending leads me to conclude that he is likely to continue to be involved in serious criminal activity.

Whether the order would prevent, restrict or disrupt the defendant's involvement in serious crime related activities

1. Section 5(1)(c) then requires the Court to consider whether the facts establish reasonable grounds to believe that the order sought would have the effect of preventing, restricting or disrupting the defendant's likely involvement in serious crime related activities. The words "prevent", "restrict" and "disrupt" are not defined and bear their ordinary meaning. As the High Court observed in Vella at [47], it is sufficient that the effect of the order is one short of complete prevention, but which limits the extent of the person's likely involvement in serious crime related activity.
2. In making this evaluative judgment, it is necessary to have regard to the proposed conditions. The Commissioner submitted that the categories of proposed conditions would prevent, restrict or disrupt the defendant's involvement in serious crime related activities, and I am satisfied that this is the case.
3. I accept that the conditions preventing the use of aliases are would disrupt the defendant's involvement in serious crime given the evidence that the defendant has used aliases in the past and the use of the different names or identity documents would assist the defendant to evade law enforcement authorities. The conditions relating to the defendant's residence would similarly disrupt the defendant's serious crime related activity as OMCG members are known to stay at other members' houses and to utilise a network of safe houses from which criminal businesses can be conducted. The conditions in relation to electronic communications would also restrict his involvement in communications relating to serious criminal activity as OMCG members are known to use multiple devices and encrypted communication applications when organising criminal conduct. In that regard I note that the defendant was found in possession of seven mobile phones in May 2021.
4. Similarly, the conditions pertaining to his banking and finance could have the effect of preventing his involvement in drug trafficking and money laundering. I note that the defendant has previously engaged in serious offending involving the use of motor vehicles, including discharging a firearm with intent to cause grievous bodily harm in 2011. In this respect, the conditions in relation to motor vehicles would act to deter the defendant from using his own vehicle to commit such a crime in the future.
5. Finally, the non-association conditions and the proposed conditions in relation to Comanchero "colours" would have the effect of preventing the defendant's involvement with such groups and the display of their colours. They would likely prevent, restrict or disrupt his involvement in serious crime related activity.

Whether the order is appropriate

1. I am satisfied that the statutory prerequisites in s 5 of the Act have been satisfied, but I must also be satisfied that the order in its terms consented to is appropriate. Section 6(1) of the Act provides that: 6 Content of serious prevention order (1) A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
2. As the High Court noted in Vella at [50], this section requires that the order be reasonable and adapted to its purpose. As the High Court observed in Vella at [49], although s 6(1) of the Act provides that the Court "may" impose restrictions that it considers appropriate, this is an enabling word with compulsory force when what is sought is the advancement of public justice.
3. I accept the Commissioner's submission that the serious crime related activities to which the condition are directed are of significant "magnitude", including offences such as drug trafficking and homicide. The defendant's criminal record and the activities of the OMCG generally have involved "serious, violent and significant offences". In this context, I am satisfied that the proposed conditions are only minimally intrusive upon the defendant's liberty. In any event, any such instruction is to be weighed against the gravity of the conduct the conditions were directed to preventing: see Amoun at [160].
4. The proposed conditions are primarily related to the defendant notifying police of matters such as his residence, vehicles and mobile devices. The restrictions on the use of bank accounts are directed to preventing involvement in large scale drug dealing and/or any dealing with the proceeds of such offences. Although the non-association conditions could prevent contact between the defendant and other Comanchero members unrelated to criminal activities, I am satisfied that this burden is outweighed by the need to ensure the effectiveness of the order in preventing or restricting serious crime related activity. The same applies to the restrictions in relation to the "colours".
5. Overall, I am satisfied that the order in its present form is appropriate. The restrictions would not significantly impact upon the defendant's liberty or his ability to live in a law abiding fashion.

Discretion

1. Finally, even if the statutory preconditions in s 5(1) have been satisfied, the Court ultimately has a discretion as to whether to make the relevant order: see Vella at [54]. For the reasons already provided, I am satisfied that there is a high likelihood of the defendant being involved in serious crime related activity and that the appropriate conditions would prevent, restrict or disrupt his engagement in such activity.
2. I propose to make the orders set out in the signed short minutes of order, a copy of which will be attached to this judgment. As I have already indicated, the defendant is not currently in the jurisdiction. In addition to making the orders by consent, I propose to also make an order for substituted service.

ORDERS

1. Accordingly, I make the following orders: 1. In respect of the third defendant, within New South Wales, I make a serious crime prevention order within the meaning of section 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) on the terms set out in Annexure A for a period of 12 months. 2. There is to be substituted service on the defendant's solicitor, Mr Mohammad Chahine, at the following email address [redacted]. Further, I note Mr Chahine's undertaking to provide direct evidence of notice by him upon the defendant to the Commissioner of Police at the following email address [redacted] within 24 hours of the substituted service.

A. DEFINITIONS In these orders, the following definitions apply:

• "ordinary name" means in respect of each defendant the following: (a) third defendant: Tarek Zahed
• "notify" or "notified" means to send an email to [redacted] or any other email address provided, in writing, by the Commissioner of Police, or his delegate, to each of the defendants and their lawyers after these orders come into effect. The email address [redacted] (or any other email address provided from time to time as aforementioned) is the email address for the provision of any information required to be notified by any of the defendants to the Commissioner of Police in accordance with the orders of this Court;
• "a communication device" or "a communication service" shall include but is not limited to: (a) a mobile telephone; (b) a telephone landline (whether with or without handset); (c) a SIM card or an e-SIM; (d) a satellite telephone; (e) a fixed or mobile telephone or like device which uses a Voice Over Internet Protocol; (f) a 2-way radio; (g) a computer; (h) a fax machine; or (i) any other device configured so as to enable voice, images, text or data to be sent or received.
• "computer'' includes but is not limited to: (a) a desktop computer; (b) a laptop computer; (c) a tablet computer; or (d) an iPad/Notebook or Netbook.
• "motor vehicle" includes (without limitation) a motorcycle

1. Prohibition on use of alias 1.1 The third defendant is prohibited from using any name other than his ordinary name when speaking with, emailing or otherwise communicating with any police officer, Commonwealth or State government authority, or any employee or agent of such authority, any financial institution, when engaging in any commercial transaction, or when responding to any requirement lawfully made upon him for proof of his identity in NSW.

2. Notification of Residence 2.1 Other than in accordance with this Clause C, the third defendant must not travel to or enter, visit, live, reside or stay (Visit) in New South Wales. 2.2 If the third defendant intends to Visit New South Wales, at least 24 hours prior to entering New South Wales, the third defendant must: (a) notify how long he intends to Visit; (b) notify the precise single address where he will be staying when he Visits; (c) notify the reason for the Visit; (d) comply with Clauses D - G below.

3. Restriction and notification of communications devices 3.1 Whilst in NSW, the third defendant is prohibited from using or being in possession of a communication device, a communication service, or a computer which: (a) is accessed or used in any name other than the defendant's ordinary name; or (b) is encrypted, or else is capable of being used to send encrypted voice communications or transmit encrypted images or data messages; or (c) runs messaging applications which automatically delete a message once sent; or (d) to his knowledge, runs software, or accesses websites, which are designed to or else have the effect of, preventing data from being retrieved from the communications device, service or computer; or (e) if capable of accessing and has the capacity to retain the history of websites visited, but it is possible for this capacity to be disabled or circumvented, the third defendant must not disable or circumvent that function so that it does not operate effectively; or (f) is not registered with a service provider solely in the defendant's ordinary name. 3.2 At least 24 hours prior to entering NSW, the third defendant shall notify of any communication device or computer permitted by this order which he will possess, hold or use, identifying the service provider, nature and make of any device, the service number, or telephone number and the !MEI (or other identifying number). 3.3 Whilst in NSW, the third defendant shall make available for examination on request by any police officer, any communication device or computer that he has in his possession or uses or controls, together with any storage device and sufficient information to be able to undertake that examination (including, inter alia, any PIN numbers, usernames, passcodes or passwords). 3.4 Notwithstanding anything else in this Clause 3, the third defendant must not use, hold or possess more than one mobile telephone while in NSW. 3.5 Notwithstanding clauses 3.1 and 3.4 above, the third defendant may temporarily possess an iPad which is ordinarily used only by his children, but the iPad must in any event be made available for examination as per 3.3 above.

4. Notification of the Ownership and Use of Vehicles 4.1 At least 24 hours prior to entering NSW, the third defendant shall notify the details of any motor vehicle which he will drive, travel in or control. Any such notice shall include in respect of each vehicle the following information: (a) the registered owner of the vehicle and their contact details; (b) the vehicle's registration number; and (c) the vehicle's make, model and colour. 4.2 The third defendant may hire, use, possess or control a hire vehicle for his personal use provided that the vehicle is hired in his ordinary name and notified in accordance with clause 4.1. 4.3 The third defendant is prohibited from modifying, adapting or permitting another to modify or adapt any vehicle owned or used by him in a way intended to conceal cash, firearms, weapons or drugs.

F. RESTRICTIONS ON ASSOCIATING WITH OTHER PEOPLE 5.1 While in NSW, the third defendant must not approach, contact, or speak to, or associate directly or indirectly with: (a) each other defendant (b) any person known to the defendant, or else believed by the defendant to be a member, hang-around, prospect, probationer or nominee for membership of the Comanchero OMCG; whether in writing, or by oral or electronic communication (i.e. via telephone, text message, email or other social media) or communication through a third party.

G. CHATTELS & ACCOUTREMENTS 6.1 Whilst in NSW, the third defendant must not possess, wear, store or exhibit any: (a) "colours" (meaning a vest or related garment bearing a "3 piece patch" on the rear bearing the logo, name and location of the defendant and any badges of rank, achievement or commemoration on the front in respect of the Comanchero or Bandido OMCG) (relevant OMCG); (b) "soft colours" including t-shirts and other garments bearing the known, accepted or registered images associated with the relevant OMCG; (c) items of jewellery bearing: 1. The relevant OMCG logo 2. The initials of the relevant OMCG 3. ACCA 4. ABBA 5. 1% 6. "The fat Mexican" 7. "BFFB" - "Bandidos Forever, Forever Bandidos / Brothers" 8. Any other accepted image linked to the relevant OMCG (d) item of clothing bearing the name, code or sobriquets of the relevant OMCGs; (e) vehicle decorated with imagery reflective of the relevant OMCG; (f) number plate issued by an Australian government bearing OMCG related terms; (g) poster, plaque or decoration bearing or referring to the logos, imagery or spirit of the relevant OMCGs; (h) other item reflective of the relevant OMCGs.

H. CASH AND BANK ACCOUNTS 7.1 While in NSW, the third defendant shall not possess cash to a total value of more than $10,000 in Australian currency.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2021