(2) An order pursuant to s 6 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) that each of the first, second, third, fourth and fifth defendants comply with the conditions set out below:
Restrictions
[2]
The first, second, third, fourth and fifth defendants are restricted from:
[3]
a. Approaching, contacting or associating directly or indirectly with any member or prospect of any Outlaw Motor Cycle Gang (OMCG) including any form of communication whether written, oral or electronic communication (that is, via telephone, text message or other social media) or communication through a third party. For the purposes of compliance, the defendants are to produce their mobile phone or other communication device at the request of police along with any relevant passwords attached to those devices.
b. Travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency;
c. Attending or approaching any of the following premises:
[4]
i. Any premises known or suspected by the defendant to be resided in by any member, nominee or prospect of the Finks OMCG or member or prospect of any other OMCG;
ii. Any place of work known or suspected by the defendant to employ any member or prospect of the Finks OMCG or member, nominee or prospect of any other OMCG;
iii. Any other location known or suspected by the defendant to be occupied or frequented by any member or prospect of the Finks OMCG or any member, nominee or prospect of any other OMCG, including but not limited to a clubhouse.
[5]
The first, second, third, fourth and fifth defendants are prohibited from:
[6]
a. Possessing or having access to an encrypted communications device and/or possessing an encrypted application/media application (including but not limited to: WhatsApp, wickr, snapchat, hushmail, Confide). For the purposes of compliance, the defendants are to produce any such device and/or application at the request of police along with any relevant passwords attached to the device and/or application;
[7]
b. Possessing more than one mobile telephone and/or a mobile telephone with a number that has not been nominated to police. For the purposes of compliance, the defendants are to produce the details of the subscription of service of the nominated mobile telephone.
[8]
c. Possessing any weapon, including any firearm or any object that can be adapted to be used as a weapon with the intention of it being available to be used as a weapon;
[9]
d. Wearing or displaying any Finks OMCG insignia, patches or accoutrement and/or any other OMCG merchandise including but not limited to any item of clothing depicting the name of an OMCG.
[10]
e. Condition 2d does not prevent the displaying of existing permanent tattoos to the body of the defendant.
[11]
(3) These orders are subject to any sentence imposed at any time on any of the defendants for any offence or offences whether the defendant was convicted before or after these orders take effect and, to the extent that they are inconsistent with any sentence imposed, they are suspended during the period of such sentence.
Catchwords: CRIMINAL LAW - application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) - defendants said to be members of Finks Outlaw Motor Cycle Gang involved in violent conflict with Finks OMCG - whether defendants "involved in serious crime related activity" for which they were not convicted of a serious criminal offence - whether Finks OMCG was a criminal group - whether defendants participated in a criminal group within meaning of Crimes Act 1900 (NSW) s 93T - whether reasonable grounds to believe order would protect the public by disrupting involvement of defendants in such activity - order granted for term of 12 months
[12]
EVIDENCE - standard of proof - civil cases - where commission of criminal offence only required to be proved to the civil standard - Briginshaw principle applied
Legislation Cited: Crimes Act 1900 (NSW) ss 93S, 93T
Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ss 3, 4, 5, 6, 7, 12
Criminal Assets Recovery Act 1990 (NSW) s 6
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 4
Police Act 1990 (NSW) s 6
Surveillance Devices Act 2007 (NSW) s 8
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 636
Jones v Dunkel (1959) 101 CLR 298
R v Cluse (2014) 120 SASR 268; [2014] SASCFC 97
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Commissioner of Police (Plaintiff)
Mitchell Alexander Cole (First Defendant)
Benjamin James Main (Second Defendant)
Andrew Robert Manners (Third Defendant)
Matthew Francis Maybury (Fourth Defendant)
Troy Vanderlight (Fifth Defendant)
Representation: Counsel:
M Tedeschi QC & C Melis (Plaintiff)
P Lange (Defendants)
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.
The annexure to the summons is in the following form:
Restrictions
1. The first, second, third, fourth and fifth defendants are restricted from:
a. Approaching, contacting or associating directly or indirectly with any member or associate of any Outlaw Motor Cycle Gang (OMCG) including any form of communication whether written, oral or electronic communication (that is, via telephone, text message or other social media) or communication through a third party. For the purposes of compliance, the defendants are to produce their mobile phone or other communication device at the request of police along with any relevant passwords attached to those devices.
b. Attending any licensed hotels, pubs, clubs and bars in New South Wales;
c. Travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency;
d. Attending or approaching any of the following premises:
i. Any private residence known or believed by the defendant to be resided in by any member of the Finks OMCG or member of any other OMCG;
ii. Any place of work known or believed by the defendant to employ any member of the Finks OMCG or member of any other OMCG;
iii. Any other location known or believed by the defendant to be used, occupied or frequented by any member of the Finks OMCG or any member of any other OMCG.
Prohibitions
2. The first, second, third, fourth and fifth defendants are prohibited from:
a. Possessing or having access to an encrypted communications device and/or possessing an encrypted application/media application (including but not limited to: WhatsApp, wickr, snapchat, hushmail). For the purposes of compliance, the defendants are to produce any such device and/or application at the request of police along with any relevant passwords attached to the device and/or application;
b. Possessing more than one mobile telephone and/or a mobile telephone with a number that has not been nominated to police. For the purposes of compliance, the defendants are to produce the details of the subscription of service of the nominated mobile telephone.
c. Possessing any weapon, including any firearm or any object that can be adapted to be used as a weapon with the intention of it being available to be used as a weapon;
d. Wearing or displaying any Finks OMCG insignia, patches or accoutrement and/or any other OMCG merchandise including but not limited to any item of clothing depicting the name of an OMCG.
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.
Sections 5, 6 and 7 of the Act deal with the making of orders. Those sections relevantly provide (definitions highlighted):
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.
(2) If the ground relied on for an application for a serious crime prevention order against a person 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 by reason of an acquittal, the application must include the following information:
(a) the serious criminal offence of which the person was acquitted,
(b) the court in which the offence was tried,
(c) the date on which the person was acquitted.
(3) Unless the appropriate court orders otherwise, the applicant must serve a copy of the application on the person against whom the serious crime prevention order is sought at least 14 days before the hearing date for the application.
(4) The person against whom a serious crime prevention order is sought and any other person whose interests may be affected by the making of the order may appear at the hearing of the application and make submissions in relation to the application.
(5) In determining an application for a serious crime prevention order, the court may admit and take into account hearsay evidence despite any rule relating to the admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) if:
(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and
(b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission.
(6) The applicant must ensure that a serious crime prevention order is served (whether by the applicant or another person) on the person against whom it is made. The order must be served by means of personal service.
6 Content of serious crime 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) However, a serious crime prevention order cannot contain provisions that require a person:
(a) to answer questions or provide information orally, or
(b) to answer questions, or to provide documents or other information, that are subject to client legal privilege (legal professional privilege), or
(c) to disclose protected confidences (within the meaning of Division 1A of Part 3.10 of the Evidence Act 1995), or
(d) to provide documents or other information that is held by the person in confidence as part of a banking business unless:
(i) the person to whom the confidence is owed has consented, or
(ii) the order specifically requires the provision or production of the documents or other information concerned (or documents or other information of the kind concerned), or
(e) to answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act (other than the Evidence Act 1995).
(3) Without limiting subsection (2), an answer given, or document or other information provided, by a person in compliance with a requirement of a serious crime prevention order (the compelled evidence) is not admissible as evidence against that person in civil or criminal proceedings other than:
(a) proceedings for an offence against section 8, or
(b) proceedings in which the person has adduced the compelled evidence.
7 Duration of serious crime prevention order
(1) A serious crime prevention order:
(a) takes effect when it is served on the person against whom it is made or on such later date as may be specified in the order, and
(b) once it takes effect, has effect for the period specified in the order.
(2) The period specified in a serious crime prevention order for its duration must not exceed a period of 5 years.
Serious crime related activity is defined in s 3(1) as follows:
serious crime related activity means anything done by a person that is or was at the time a serious criminal offence, whether or not:
(a) the person has been charged with the offence, or
(b) if charged, the person:
(i) has been tried, or
(ii) has been tried and acquitted, or
(iii) has been convicted (even if the conviction has been quashed or set aside).
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:
In this section, a reference to a serious criminal offence is a reference to:
…
(d) an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide, or
…
(g1) an offence under section 93T or 93TA of the Crimes Act 1900,
…
Section 4 of the CSCPO Act sets out the meaning of involved in serious crime related activity. That section provides:
(1) For the purposes of this Act, a person is involved in serious crime related activity if:
(a) the person has engaged in serious crime related activity, or
(b) the person has engaged in conduct that has facilitated another person engaging in serious crime related activity, or
(c) the person has engaged in conduct that is likely to facilitate serious crime related activity (whether by the person or another person).
(2) In determining whether the conduct of a person has facilitated another person to engage in serious crime related activity, a court may take into account whether the conduct was reasonable in all the circumstances.
[15]
The evidence
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.
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.
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:
a. On 4 January 2018, the Nomads OMCG Clubhouse at Islington was subject to an arson attack, with a member of the Nomads OMCG inside the clubhouse at the time.
b. On 14 January 2018, Troy Vanderlight (fifth defendant) and Kane Tamplin (member of the Nomads OMCG) had a physical fight.
c. On 15 January 2018, shots were fired at Vanderlight's house in the early hours of the morning.
d. On 25 January 2018, Vanderlight's house was subject to an arson attack by Molotov cocktail.
e. On 2 February 2018, several rounds were fired into the house of the ex-girlfriend of Blake Martin (member of the Nomads OMCG). The victim's sister also stays with her regularly and she is the current girlfriend of Kane Tamplin. The victim was home alone at the time.
f. On 5 February 2018, the Supreme Court of New South Wales declared the clubhouse of Nomads OMCG Islington as a Restricted Premises. The court also issued a reputed criminal declaration, finding that reputed criminals attended the clubhouse and were likely to do so again. The Supreme Court issued this on an urgent basis.
g. On 13 February 2018, seven rounds were fired from a vehicle into the house of Vanderlight from a high powered rifle in what is believed by Police to be a retaliation for the shooting that occurred on 2 February 2018 upon Martin's ex-girlfriend. Police suspect that members of the Nomads OMCG are responsible.
h. On 15 February 2018, police received information that there was to be a shooting by the Finks OMCG on the Nomads OMCG. Six members of Finks OMCG were at a licensed venue and were planning shootings for 20 February 2018. CCTV was obtained from the premises, confirming that high ranking members of the Finks OMCG were together at the licensed venue.
i. Around 11.00 pm on 23 February 2018, two members of the Finks OMCG were stopped in near proximity to the premises occupied by a senior member of the Nomads OMCG. Police believe that the Finks members were gathering information to plan an attack or were intending to carry out an attack on the clubhouse or a member of the Nomads OMCG.
j. On 26 February 2018, the Supreme Court declared the clubhouse of Nomads OMCG Hunter Valley a Restricted Premises. The court also issued a reputed criminal declaration, finding that reputed criminals attended the clubhouse and were likely to do so again. The Supreme Court issued this on an urgent basis.
k. Around 1.50am on 27 February 2018, persons believed to be members of the Finks OMCG fired rounds into the front of the house where Bradley Bowtell (member and President of the Nomads OMCG) lives.
I. At 1.00am on 1 March 2018, persons believed to be members of the Nomads OMCG stopped a vehicle outside the house of the State President of the Finks, Andrew Manners (third defendant), and fired 20 rounds of .223 military grade ammunition into the premises. Many of the rounds penetrated the front door and windows of the premises and travelled through walls to rooms including the bedroom at the back of the residence where Manners' de-facto partner and child were sleeping. Manners was not present as he was bail refused on a number of charges.
m. Around midnight on 3 March 2018, persons believed to be members of the Nomads OMCG fired shots into the house of the Finks Treasurer, Shane Hewitt. A friend of Hewitt was asleep in the lounge room and received gunshot wounds to his lower leg. Casings of military grade bullets were found on the roadway. These were the same type of bullets used in the shooting on Manners' house on 27 February 2018 and a Nomads ex-girlfriend on 2 February 2018.
n. On the evening of 12 March 2018 before 8pm, five Nomads members were each served with a notice of motion, three affidavits and a summons to attend NSW Supreme Court on 15 March 2018 in respect of the Commissioner's application under the Act. Part of the documentation served was a conflict time line which identified Finks members Scott Carrall and Ashley Chambers as being in the Muswellbrook area on the night of Friday 23 February 2018. The Nomads OMCG have a clubhouse in Muswellbrook. Within hours of Quinnell (member of the Nomads OMCG) being served with the material, police were patrolling the Chisholm area when they observed a white Ford Ranger utility bearing registration plates known to be used by Quinnell. Police turned around in an attempt to stop the vehicle but the vehicle was driven in a manner that initially evaded police by making a number of turns into other streets. A short time later, the vehicle was located and stopped about 8.45pm in Chisholm. The vehicle was being driven by Quinnell and also in the vehicle were Phillip Walton, Vice President of the Nomads OMCG, and Kaddison O'Shea, another Nomads OMCG member. Walton was arrested on an outstanding warrant. Quinnell is under investigation for the offence of consorting arising from this incident after having been previously warned about habitually consorting with both persons.
o. Within hours of being served, Bowtell (member and President of the Nomads OMCG) called Chambers and threatened him over the phone, "I know where you live." There are phone records that support this call being made.
p. Police have received information that Bowtell also contacted Finks member Carrall by telephone on the same night and made a similar threat to Carrall. This matter is still under investigation.
q. On Thursday 15 March 2018, Bowtell was arrested and charged for intimidating Chambers. Bowtell was released the same day on conditional bail.
r. Around 1.00am on Friday 16 March 2018, Chambers' bike and house was subject to a fire bomb attack. His motorbike was completely destroyed and his house was partially burnt. Police believe the Nomads OMCG is responsible for the attack.
s. During the evening of Friday 16 March 2018, nine Finks OMCG members and associates including Chambers and Vanderlight were located at the Victoria Hotel, Hinton. Police believe that this was a meeting to plan an attack on the Nomads OMCG, in retaliation for the firebombing on Chambers' house. Located with the group was a copy of the Finks MC Club rules.
t. On 20 March 2018, Detective Inspector Radmore met with senior members of the Nomads to discuss an end to the violence between the Nomads and Finks OMCGs. During this meeting, they 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. The exception to this guarantee was an impromptu incident where a Nomads member/s inadvertently encountered a Finks member and spontaneous violence ensued, which both stated was beyond their control.
u. On the morning of 27 March 2018, Detective Inspector Radmore attended a premises at 8/16 Huntingdale Avenue, Thornton to conduct a search by virtue of the powers provided to police under Firearms Prohibition Order legislation. The premises were identified as a clubhouse for the Finks OMCG. The premises are leased in the names of Andrew Manners (third defendant) and Craig Patrick. Both Finks members are subject of current Firearm Prohibition Orders.
v. Detective Inspector Radmore subsequently had a conversation with a senior member of the Finks about the current conflict between the Nomads and Finks OMCGs. He asked the member whether he would be willing to attend a meeting with Nomads to discuss a resolution to the violence. He stated that he would never take part in such a meeting as he would never trust them.
w. In further conversation with the member about how he saw an end to the conflict, he stated that the only way was for them to be locked up in gaol and he would never feel safe until they were, no matter what agreements were reached, as he did not trust them to honour the agreements.
x. In discussing the cycle of violence that continued after each incident involving reciprocal attacks by both gangs, the member stated that since the shooting of Bowtell's house (on 27 February 2018), Finks members have been abducted (referring to a reported incident involving Finks OMCG member Trevor Pike-Convery on 27 February 2018) and there have been two shootings (Manners' residence on 1 March 2018 and Shane 'Pug' Edson on 4 March 2018), but the Finks have not retaliated.
y. On 27 March 2018, Detective Inspector Radmore had a telephone conversation with Andrew Manners. During this conversation Manners stated that no one from the Finks could resolve the conflict with the Nomads besides him and he stated that he will resolve it if police support his bail application (on 5 April 2018). Manners stated that he is in charge of the Finks and the only person who can enter into discussions with the Nomads to bring a resolution to the conflict.
z. During conversations with a close associate of the Finks, the associate disclosed that Finks members are being tasked to conduct surveillance on Nomads members and further that this is occurring at the direction of senior members of the Finks OMCG.
aa. On 5 April 2018, police executed 31 Criminal Organisation search warrants on both Nomads and Finks members in the early morning. During the execution of those warrants, police located a number of items which they believe are directly related to the ongoing war between the Nomads and the Finks. Examples of the items found include:
crossbow and 5 arrows
a balaclava
a lock picking gun
an electronic control device ("Taser")
a snake and knuckle dusters
four explosive detonators. The detonators are dangerous explosives in their own right, however are designed to be used as a fuse for larger explosives. The detonators which were seized are activated with a match head striker and have a time delay before they explode, allowing for a person to move away prior to the explosion
a slingshot and an extendable baton
At the premises of the President of the Nomads Newcastle Chapter, Murray Britliffe, police located and seized a firearm part (barrel) and fireworks
bb. On the afternoon of 5 April 2018, police located a failed incendiary device in a laneway behind the premises of Nomads Vice President Phillip Walton. The device contained flammable liquid and was partially melted and charred, indicating that an attempt had been made to detonate it.
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.
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:
(i) On 27 November 2016, Finks Nominee Sam Johnston was riding his motorcycle at North Lambton, NSW. Johnston was wearing his Colours at the time. Another vehicle has collided with Johnston from behind and then left the scene. Johnston suffered serious injuries, including a dislocated hip. The Finks believed the offending vehicle was linked to the Nomads. This incident is recorded on the NSW Police database under Event Report number E 259966895.
(ii) On 2 December 2016, Michael Lockyer, now a Nomads Member, and his associates were involved in an affray with eight Finks members at licensed premises at Wallsend, NSW. During the affray, Lockyer is alleged to have threatened the Finks with a firearm. This incident is recorded on the NSW Police database under Event Report number E 63731273.
(iii) On 8 December 2016, numerous shots were fired at the SWAT Cafe at Merrylands NSW. At the time, this business was owned by Sleiman Tajjour and Moudi Tajjour, the then Nomads National President and Vice President. This incident is recorded on the NSW Police database under Event Report number E 63128876.
(iv) On 9 December 2016, an affray occurred at a service station at Wallsend, NSW, involving members and associates of the Finks and Nomads. During the incident, Nomads member Blake Martin was hit in the head with a baseball bat by then Finks Newcastle City Chapter President Adam Gould. This incident is recorded on the NSW Police database under Event Report number E 63181907.
(v) Allan Arnold, who was previously an unconfirmed member of the Nomads, was assaulted by Nomads members Blake Martin and James Quinnell in a gym in Kotara, NSW with a barbell. Arnold is now a patched member of the Finks and it is likely his patch over was the catalyst for the assault. This incident is recorded on the NSW Police database under Event Report number E 64911168.
(vi) On 24 March 2017 off-duty police observed about eight heavily tattooed males at a hardware store in Kotara, NSW. After a review of the CCTV footage, police identified Finks members Nathan Gallagher and Timothy Blake purchasing pick and axe handles and a 10 litre jerry can. This incident is recorded on the NSW Police database under Event Report number E 64672373.
(vii) On 26 March 2017, two vehicles belonging to the father of a Finks member were firebombed in the driveway of his residence at Mayfield, NSW. This incident is recorded on the NSW Police database under Event Report number E 63860017.
(viii) On 25 March 2017, a number of shots were fired from multiple weapons into the Nomads Newcastle Clubhouse, Islington, NSW. Over ten people were present in the Clubhouse at the time of the shooting including, Britliffe, Tamplin and Martin. This incident is recorded on the NSW Police database under Event Report number E 63945226.
(ix) On 27 March 2017, a number of shots were fired from multiple weapons into the residence and vehicles of the Finks Newcastle City Chapter Sgt-at-Arms Zackary Ross at Metford, NSW. His partner and two children were also in the residence at the time of the shooting Ross refused to provide a statement to police. This incident is recorded on the NSW Police database under Event Report number E 64242159.
(x) On 27 March 2017, four men in dark clothing and balaclavas/bandanas were seen acting suspiciously outside the residence of Paul Wright at Aberglassyn, NSW. Wright is a close associate of Nomads members Kaddison O'Shea and Kane Tamplin. This incident is recorded on the NSW Police database under information report E.65646478.
(xi) On 28 March 2017, the Nomads Hunter Valley Clubhouse at Muswellbrook, NSW was subject to an arson attack by three Molotov cocktails. It appeared the offenders attempted to gain entry, however were unsuccessful. This incident is recorded on the NSW Police database under Event Report number E 63959126.
(xii) On 28 March 2017, over 30 shots were fired into the residence of Nomads Newcastle Chapter Sgt-at-Arms James Quinnell at Wallsend, NSW. The rounds passed through Quinnell's unit into the two neighbouring units Quinnell was uncooperative with police and did not provide a statement. This incident is recorded on the NSW Police database under Event Report number E 65694480.
(xiii) In mid May 2017, Police established the Finks were planning a large show of force in the Newcastle area on the weekend of 19-21 May 2017. A number of suppression strategies were implemented by the Gangs Squad's Strike Force Raptor in conjunction with Northern Region, including issuing and serving Public Safety Orders on Finks and Nomads members and associates under Part 6B of LEPRA.
(xiv) On 7 July 2017, Finks Member Brent Oliver attended a barber shop in Maitland, NSW. Nomads member Blake Martin entered the shop as well and sat down. Oliver and Martin then exit the shop and commence fighting in the street for several minutes. This incident is recorded on the NSW Police database under Event Report numbers E 64040209 and E 64903547.
(xv) On 17 July 2017, Finks Life Member Brian Maloney was assaulted at a licensed premises in Muswellbrook, NSW, and his Colours were stolen. Maloney has not made a statement in relation to this incident and has avoided police attempts to contact him. This incident is recorded on the NSW Police database under Event Report number E 65003907.
(xvi) On 22 July 2017 former long serving Nomads Hunter Valley Chapter members Kenneth Mann (Sgt-at-Arms) and his son Jake Mann (Vice President) were confirmed to have patched over to the Finks. This was recorded on the NSW Police database under information report E 65224519.
(xvii) On 9 August 2017, Finks Newcastle City Member Kenneth Mann was assaulted in the carpark of a licensed premises in Muswellbrook, NSW by four men armed with poles or bats. Mann was wearing a Finks jumper at the time and refused to provide a statement or allow police to photograph his injuries. This incident is recorded on the NSW Police database under Event Report number E 67813381. This is likely retaliation for Mann patching from the Nomads to the Finks several weeks previously.
(xviii) On 12 August 2017 Finks Newcastle City Chapter members Tate Ward and Brent Oliver, were located together in a vehicle at East Maitland, NSW. A search of the vehicle was conducted, and gloves, two baseball bats and a .45 calibre pistol with 19 rounds of 45 calibre ammunition were located and seized. Ward and Oliver were cautioned and were recorded on camera stating they were carrying the bats in the vehicle for their protection against attack from rival Outlaw Motorcycle Gang Members. This incident is recorded on the NSW Police database under Event Report number E 67791488.
(xix) On 15 September 2017, Nomads Hunter Valley Nominee Jesse Dunning was riding his motorcycle in Muswellbrook, NSW, when he was hit from behind and forced off the road by another vehicle. Dunning was assaulted, had his Nomads Colours stolen, and suffered serious injuries as a result of the crash. An associate of Dunning was also assaulted by the same suspects. This incident is recorded on the NSW Police database under Event Report number E 66224063.
(xx) On 19 September 2017, Finks Hunter Valley Chapter Sgt-at-Arms Timothy Blake was sitting in a vehicle parked in the driveway of his residence at Mayfield West, NSW, when unknown offenders have approached and fired two shotgun rounds into the vehicle narrowly missing him. Blake refused to provide police with a statement. This incident is recorded on the NSW Police database under Event Report number E 65008825.
(xxi) On 2 December 2017, Finks Newcastle City Chapter Probationary Trevor Pike-Convery, Nominee Daniel Leacy and Member Blake Levy assaulted Nomads Member Matthew Milliner and an unidentified associate, with baseball bats and other weapons inside a Caltex Service Station at Islington, NSW. A large number of Nomads Members were in the area as they were participating in a poker run and had been in attendance at their Islington Clubhouse. Milliner sustained a broken arm during the attack which required surgery to repair, however refused to provide a statement to police or provide the details of his associate. This incident is recorded on the NSW Police database under Event Report number E 67844955.
(xxii) On 3 December 2017, police searched a vehicle containing Finks associate (now Nominee) Scott Carall and Finks Member Craig Patrick outside Newcastle Police Station. Police seized two baseball bats from the vehicle. It is believed the Finks members were waiting for the Finks in who were in police custody at the time. This incident is recorded on the NSW Police database under Event Report number E 66206626.
(xxiii) On 11 December 2017, a vehicle registered to the father of Nomads Newcastle City Chapter Member Blake Martin, was the aggressor in a predatory driving incident at Singleton, NSW, where the victims, one with links to the Finks, were threatened with weapons and their vehicle rammed. A short time after this, a home invasion occurred nearby at the residence of Finks Member Trevor Pike-Convery, where he was assaulted with a blunt object and stabbed in the thigh. He suffered a lumbar fracture because of the assault, however he refused to provide a statement. Based on my knowledge and experience, it is my opinion this was retaliation by the Nomads for the attack the Finks conducted during their Poker Run the week prior. This incident is recorded on the NSW Police database under Event Report number E.66564264.
[16]
The Commissioner's case
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.
Section 93T of the Crimes Act provides:
93T Participation in criminal groups
(1) A person who participates in a criminal group is guilty of an offence if the person:
(a) knows, or ought reasonably to know, that it is a criminal group, and
(b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity.
Maximum penalty: Imprisonment for 5 years.
(1A) A person who participates in a criminal group by directing any of the activities of the group is guilty of an offence if the person:
(a) knows that it is a criminal group, and
(b) knows, or is reckless as to whether, that participation contributes to the occurrence of any criminal activity.
Maximum penalty: Imprisonment for 10 years.
Section 93S defines criminal group as follows:
criminal group means a group of 3 or more people who have as their objective or one of their objectives:
(a) obtaining material benefits from conduct that constitutes a serious indictable offence, or
(b) obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or
(c) committing serious violence offences, or
(d) engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence.
That section also defines a serious violence offence as follows:
serious violence offence means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves:
(a) loss of a person's life or serious risk of loss of a person's life, or
(b) serious injury to a person or serious risk of serious injury to a person, or
(c) serious damage to property in circumstances endangering the safety of any person, or
(d) perverting the course of justice (within the meaning of Part 7) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c).
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.
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.
[17]
Defendants' submissions
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.
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.
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.
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.
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.
[18]
Consideration
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.
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.
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.
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].
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[19]
Conditions
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".
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.
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:
e. The first, second, third, fourth and fifth defendants are restricted to use of a single nominated computer/laptop to access the Internet, subject to the following conditions:
i. He will not make use of or access any Internet connection or Internet service provider to access any messaging service, chat room, chat service, or social media network, other than as provided below.
ii. He will provide to a nominated police officer a list of all devices, internet service providers and applications (apps) he uses to communicate with others over the Internet or to access the Internet. This includes computers phones, tablet devices, laptops or other similar devices.
iii. He will provide to a nominated police officer details of his Internet service provider, as well as his username/s and password/s for each provider, application or service on the Internet, and the nature and details of such Internet connection or service or application.
iv. He will not create or use any additional username, email address, or application without the prior approval of the nominated police officer.
v. The nominated police officer or his delegate has permission to remotely inspect any Internet service, email program, or any other service suspected of being used by the defendant in order to ensure compliance with this order.
An addition was proposed to paragraph 2 as follows:
(e) Condition 2(d) does not prevent the displaying of existing permanent tattoos to the body of the defendant.
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:
Prospect - see "Nominee". Some OMCGs use the term "prospect" rather than "Nominee" however the terms are synonymous.
He defined "Nominee" as follows:
A man deemed to be possibly suitable for full membership in an OMCG is required to complete a qualifying period of usually 12 to 24 months. He may be entitled to wear a portion of the OMCG's three piece patch. He does not have any of the rights of a Full Member and is required to perform menial duties for the OMCG and Full Members. A successful Nominee can "earn" his Full Patch during this period.
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.
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.
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.
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.
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.
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.
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.
[20]
Conclusion
Accordingly, I make the following orders:
(1) An order pursuant to s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) that each of the first, second, third, fourth and fifth defendants be subject to a serious crime prevention order for a period of 12 months from the date of this order.
(2) An order pursuant to s 6 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) that each of the first, second, third, fourth and fifth defendants comply with the conditions set out below:
Restrictions
1. The first, second, third, fourth and fifth defendants are restricted from:
a. Approaching, contacting or associating directly or indirectly with any member or prospect of any Outlaw Motor Cycle Gang (OMCG) including any form of communication whether written, oral or electronic communication (that is, via telephone, text message or other social media) or communication through a third party. For the purposes of compliance, the defendants are to produce their mobile phone or other communication device at the request of police along with any relevant passwords attached to those devices.
b. Travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency;
c. Attending or approaching any of the following premises:
i. Any premises known or suspected by the defendant to be resided in by any member, nominee or prospect of the Finks OMCG or member or prospect of any other OMCG;
ii. Any place of work known or suspected by the defendant to employ any member or prospect of the Finks OMCG or member, nominee or prospect of any other OMCG;
iii. Any other location known or suspected by the defendant to be occupied or frequented by any member or prospect of the Finks OMCG or any member, nominee or prospect of any other OMCG, including but not limited to a clubhouse.
Prohibitions
2. The first, second, third, fourth and fifth defendants are prohibited from:
a. Possessing or having access to an encrypted communications device and/or possessing an encrypted application/media application (including but not limited to: WhatsApp, wickr, snapchat, hushmail, Confide). For the purposes of compliance, the defendants are to produce any such device and/or application at the request of police along with any relevant passwords attached to the device and/or application;
b. Possessing more than one mobile telephone and/or a mobile telephone with a number that has not been nominated to police. For the purposes of compliance, the defendants are to produce the details of the subscription of service of the nominated mobile telephone.
c. Possessing any weapon, including any firearm or any object that can be adapted to be used as a weapon with the intention of it being available to be used as a weapon;
d. Wearing or displaying any Finks OMCG insignia, patches or accoutrement and/or any other OMCG merchandise including but not limited to any item of clothing depicting the name of an OMCG.
e. Condition 2d does not prevent the displaying of existing permanent tattoos to the body of the defendant.
(3) These orders are subject to any sentence imposed at any time on any of the defendants for any offence or offences whether the defendant was convicted before or after these orders take effect and, to the extent that they are inconsistent with any sentence imposed, they are suspended during the period of such sentence.
[21]
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: 02 May 2018
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:
To keep law and order By (sic) any means available at all meetings and activities to do with the club.
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.
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:
Right or Wrong. If a brother has drama we ALL have drama.
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.
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):
PHONE HANDED TO SC BARWICK (A):
Q12: M. Hello mate
A: B. Yeah how ya going?
Q13: M. **** ya trying to getting to get the boys to sit down with Nomads or something
A: B. Yeah that's what the idea is
Q14: M. Cos there's no one out there, who sits down to talk to them cos it's not there job and that've all been told no one is to talk because that what my role is. So, until I get out there will be no sit down. I've got no dramas sitting down, ya know, if...ya know...bit of turf or whatever well there's no one there now, ya know, so I'll sit down with them, ya know, I don't care if you ring them and whatever and say yeah I'll sit down, but no one there who's is in my club is to speak for us. I'm the voice for the Finks alright, so there is no point trying no point trying..do shit to us
Q15: B. Nah nah nah... boss has had a conversation with the Nomads who said they wanna have a sit down ... and trying to facilitate
Q16: M. Yeah, well until I get out, ya know like, there properly gunna be going a hundred mile an hour ya got other fucking dickheads out there as well. As soon as I'm out I'm glad to fucking sit down, but I don't know seize up ya know. I don't know what's going on out there, but I'm the only one who will talk with them and everyone knows that, everyone out there should just say, where not talking to them cos it's not our job, no one has the right to say anything. So if you want me to get out and sit down and talk, ya know, mate 5th April I'm gunna be at Court so If you can help me out there and get out, mate line it up I'll sit down straight away. Alright, can you do that?
A: B. I'll put you on with the boss..facilitate something for you
Q17: M. Well I'm on Gaol calls so it properly gunna cut out soon
PHONE HANDED TO DCI ROBERT (GEORGE) RADMORE (A).
A: R: Andrew, it's George Radmore mate
Q18: M. Yeah how ya going
A: R. …
Q19: M. That's what I was saying mate, is is none of my boys out there there've been drum for into for years and for ages. Whoever is the voice, that is the voice and I'm the voice for the Finks. I'm the only one who will sit with the Nomads and if anyone else trys all the boys will say no. No we can't talk to them, cos we don't know what to say what we want and I'm the voice for the club and that's it so, the only way that can happen is, I got a week and a half got Court going for bail if you can allow that and make that happen, line up a meeting I'll sit down straight away, cos, I'm about over it just as much as you are
A: R. What are we gunna achieve out of the meeting mate?
Q20: M. Mate, I'm over it, you know, we're fighting over turf I don't even think we have someone there any more, mate, don't put us in a room, you put us some where where you's are all there or whatever, park whatever, its just me and them and we can negotiate we can have one of them and just me, just one of them, just me so we got no dickheads taking bullshit alright, you get me out, you get the big boss of them and III sit down and talk to them. Aright, walk out of there with a fucking good answer I promise. You know, mate *** has been very good to you's, you know that, I'm sure you can do something good for me, yeah? You do something good for me and I'll do something good for you, alright
A: R. Righto mate, well leave it with me ... I've gotta go speak to other people
Q21: M. I know that mate, I know that but trying to bust my boys balls, you know, to talk where they won't it's not gunna work, alright but, the 5th of April I am going for Court I'm going for bail there, so if you can make something happen for me mate, we have been very good to you so far, you know we tried to help you out I'm sure there is a bit of lenience you can give me, I've always been pretty fair to you boys
A: R. Righto
Q22: M. Righto
A: R. ...leave it with me mate I can't give you and answer right now
Q23: M. You do what you gotta do, I'll just sit tight here hopefully we can come to a good solution ok.
… (emphasis added)
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.
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.
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.
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.
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.
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.