[18] On Mr Brown's version of the conversation, he had been told by the police that they already had a bike they were interested in in police custody. This conversation was not confirmed by either Detective Papandrea or by Constable Harris. Even if it did occur as stated, this conversation does not exculpate the defendants, because it does not exclude the possibility that more than one motorcycle might have been involved and that the police would be interested in all such motorcycles.
[19] However, this version is somewhat unconvincing. The Banditos is a motorcycle club of some public notoriety and, like all the major motorcycle clubs in Australia, it is noteworthy for the handsome, well maintained, highly customised and highly expensive motorcycles that its members ride. There was never any dispute that Mr Scanlon was riding a Banditos club motorcycle around the time he was shot. There was no evidence from any witness of any other person riding a Banditos club motorcycle in that area on that night: certainly, had any other person been doing so, one might have expected that fact to be known to the club president and other club members. Consequently, if Mr Brown had genuinely believed that the police had taken custody of the motorcycle that had been ridden by Mr Scanlon,he would have known that his errand was futile because there were no other club motorcycles in the vicinity for him to recover.
[20] It must not be concluded from the foregoing that the defendants have anything to prove: quite clearly, they do not. The prosecution bears the burden of proving its case from first to last beyond reasonable doubt. However, because the defendants' states of mind are of such importance to the present case, on either side, it is open a trier of fact to infer a desire on the part of a defendant to conceal the true facts if an illogical and unconvincing explanation of critical events is offered by that defendant.
[21] It is important to note that, Mr Sankovic said nothing of any relevance to the police, and so he cannot be held to have any responsibility for the contents of Mr Brown's statements. Nevertheless, he was a party to all the original dealings at the club president's home, and present at all the conversations between Mr Brown and the police, apart from the ERISP which became Exhibit 3. It follows that he was aware of everything that the police, particularly Detective Papandrea, said to Mr Brown, and everything that Mr Brown said to the police. At no time did he distance himself from what Mr Brown said regarding both men acting on the club president's orders, so one is entitled to infer, at the very least, that he, like Brown, intended to carry out those orders regardless of whether it hindered the police or not.
[22] In the light of this evidence, analysis of the requisite mens rea in terms of foresight is particularly useful. It may have been the intention, in the form of the desire, of Mr Brown and Mr Sankovic, simply to recover the bike and return it to the club in accordance with the club president's orders. However, knowing as they undeniably did that (a) the police were looking for the Banditos club bike that had been ridden that night in Blacktown by John Scanlon, (b) that bike was being sought because it might provide evidence relating to the shooting of John Scanlon, (c) no other unclaimed Banditos club motorcycles were reported in the vicinity and (d) removing the bike would deprive the police of any chance to examine it, one is compelled to the conclusion that the defendants foresaw with certainty that their act of removing the bike might hinder the discovery of any evidence the bike could provide, and that consequently they removed the bike intending to so hinder the discovery of any such evidence .
[23] There is no real issue that the investigation involved potential serious indictable offences, particularly in the light of s 315(2), or that the accused were expressly made aware both of the general nature of the alleged offences and of the likelihood that they were in the category of serious indictable offences.
[24] Despite some faint argument on the part of the defendants, the matters does not come within the scope of the excuplatory provision in s 315(3). The prosecution allegation is not that the defendants failed to divulge information, but that they did an act (removing the motorcycle) with the intention of hindering the discovery of evidence. As I have already noted, Mr Sankovic exercised his right to silence, but no proof of any element of the charge turns on that.
[25] Consequently, I find the charges proved beyond reasonable doubt against both defendants.