HIS HONOUR: By an amended summons filed this day by Sergeant Gary Broadhurst, orders were sought pursuant to the Restricted Premises Act 1943 (NSW) ("the Act") in the following terms:
1. An order pursuant to Uniform Civil Procedure Rules r 1.26 and Schedule 10 that the Supreme Court deal with an application under section 3(1) and/or 3(3) of the Act notwithstanding that this summons has not been served on all persons who may have an interest in the proceedings.
2. A declaration under section 3(1) and/or 3(3) of the Act that premises identified by NSW Land Registry Services as Folio XXXX-XX and known as XX-XX XXXXXXXX XXXXX, Islington in the State of New South Wales are premises to which Part 2 of the Act applies, for the predominant (but not sole) reason that reputed criminals have attended or are likely to attend the premises, and a reputed criminal has, or takes part or assists in, the control or management of the premises.
3. Such further or other orders as the Court thinks fit.
The application was supported by the affidavits of Sergeant Broadhurst sworn on 5 February 2018 and Senior Constable Andrew Barwick sworn on 5 February 2018. Senior Constable Barwick also gave short supplementary oral evidence. Reliance was also placed upon an expert report of Mr Anthony Macken. He is an intelligence team leader currently performing duties at the New South Wales Police Force Criminal Group Squad State Crime Command. The report was received into evidence in support of some general propositions as to the nature of the operation of Outlaw Motorcycle Gangs, the conduct of which is central to one aspect of the determination of the present application.
In bringing the application, Sergeant Broadhurst relied upon the provisions of s 3(1)(b), (c) and (d) of the Act. He sought declarations under s 3(1) and (3) respectively. The provisions of s 3(1) and (3) of the Act are in the following terms:
3 Declaration by Supreme Court or District Court in relation to premises
(1) On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say:
(a) that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or
(b) that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or
(c) that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, or
(d) that any of the persons having control of or managing or taking part or assisting in the control or management of the premises:
(i) is a reputed criminal or an associate of reputed criminals, or
(ii) has been concerned in the control or management of other premises which have been the subject of a declaration under this Part, or
(iii) is or has been concerned in the control or management of premises which are or have been frequented by persons of notoriously bad character or of premises on or from which liquor or a drug is or has been unlawfully sold or supplied,
(e) (Repealed)
the Supreme Court or the District Court may declare such premises to be premises to which this Part applies.
…
(3) The appropriate Court may, in declaring premises to be premises to which this Part applies, state that the reason (or the predominant reason) for the declaration is that:
(a) reputed criminals have attended or are likely to attend the premises, or
(b) a reputed criminal has, or takes part or assists in, the control or management of the premises.
Any such declaration is a reputed criminal declaration for the purposes of this Act.
The demonstration of reasonable grounds for suspecting the conditions is required to be provided by a "senior officer" under the preamble to s 3(1). That requirement is met in the present case. Sergeant Broadhurst is a senior police officer for the purposes of s 3(1) as he is a police officer of the rank of sergeant (see s 2 of the Act).
I am also satisfied that based on the material before the court that the premises referred to in the relief sought in the summons ("the premises") are premises to which Pt 2 of the Act applies. The premises are a building which constitutes a clubhouse occupied and owned by Nomad Motorcycle Club Incorporated, the corporate description of an Outlaw Motorcycle Gang known as the Nomad Outlaw Motorcycle Gang ("the Nomads"). There is no known other occupier.
There is a male by the name of Mr Philip Walton who assists in the management of the premises and stays at the premises. That person is relevant to the determination of whether there are reasonable grounds for the suspicion held in relation to s 3(1)(d). However, Mr Walton appears to be no more than a licensee at will. He probably has no right to exclusive possession and, as was submitted upon behalf of Sergeant Broadhurst, he would appear to have no right to be heard as a contradictor in the proceedings.
There are three issues requiring consideration as follows:
1. May the application properly proceed ex parte?
2. If so what are the requisite conditions for the making of the declarations sought pursuant to s 3(1) and (3)?
3. Should the Court exercise its discretion to make those declarations?
[2]
Ex parte Proceedings
The summons in the instant application has not been served on the owner or occupier of the premises. An order is sought that the application be dealt with ex parte.
It is expressly anticipated that this court may make an order under the Act ex parte. Schedule 10 of the Uniform Civil Procedure Rules 2005 (NSW) states:
Restricted Premises Act 1943
Application for declaration: section 3(1)
The Supreme Court or the District Court may make a declaration under section 3(1) of the Act even if the summons has not been served on the owner or occupier of the premises.
Notwithstanding the express permission granted to this Court to make an ex parte application pursuant to the Act, ordinary common law principles apply to whether the Court will exercise its discretion to make such an order.
The determination of that question should be approached, in my view, in accordance with the recent observations of Schmidt J in Commissioner of Police, NSW Police Force v WX Fortunes Pty Limited [2017] NSWSC 1632 (at [6]), where her Honour identified that the test which applied to an ex parte application under this legislative scheme was governed by principles stated in Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 24-25. In short, it is necessary for the plaintiff to demonstrate that an emergency situation exists. I shall turn to that consideration.
The premises have no current or past liquor licence. The evidence discloses that on 7 November 2016 the police, by Strike Force Raptor, executed a search warrant on the premises, which as I will further discuss, provided reasonable grounds for the suspicion that alcohol was being unlawfully consumed or sold at the premises. A further search warrant executed in February 2018 resulted in observations being made of the premises which established grounds for the suspicion that the premises were being used for unlawful sale or supply of alcohol.
These circumstances would indicate that search warrants executed in the ordinary course are unlikely to have the effect of preventing the unlawful sale or supply of alcohol on the premises but of greater significance is, notwithstanding the issuing of search warrants in late February 2018 and a significant police presence in relation to the premises, there has been a significant escalation in conflict and violence between two Outlaw Motorcycle Gangs, the Nomads and the Finks Outlaw Motorcycle Gang ("the Finks"), the former, as I have noted, being the owner of the premises.
That conflict has been ongoing since November 2016. There were a number of public place shootings. As a consequence, for example, on 25 March 2017 bullets were fired into the premises. It was suspected that the Finks were responsible.
These historical developments, in and of themselves, may be insufficient to establish the requisite "emergency" because, whilst they may contain the subject matter of what might be described as the situation constituting an emergency, they may lack the necessary temporal connection.
However, what does establish the proper basis to conclude there is an emergency in this case and, therefore, a basis to conduct an ex parte hearing, is the significant increase in violence which has occurred in the last few weeks. On 4 January 2018, the premises were suspected to have been attacked by the Finks. Molotov cocktails were thrown at the premises. There was a fire. On 2 February 2018, the premises of an ex-girlfriend of a Nomad were shot out with a firearm and, on the same day, a Nomad's vehicle was found with bullet holes in it. The police searched the premises and found assorted weapons.
The evidence of Mr Macken indicates that there is substance to the plaintiff's fear that the Nomads will be unable to resist making retaliatory attacks. Senior Constable Barwick underlined this concern by reference to the past conduct breaching conventions normally operating in the rivalries between the two Outlaw Motorcycle Gangs, thereby heightening the prospects of such retaliation. The evidence discloses that the fear of imminent reprisals is real and could result in deadly outcomes. There is a real risk of harm to the public.
In the circumstances, I am satisfied that the Court's discretion to permit the application under s 3(1) of the Act with the related application for declarations under s 3(3) of the Act to be heard ex parte should be exercised.
[3]
Reasonable Grounds for Suspicion
I turn then to whether there are reasonable grounds for the suspicions held by Sergeant Broadhurst. In Hyder v Commonwealth (2012) 217 A Crim R 571, McColl JA discussed what kind of information may be relied upon by the police officer forming a reasonable suspicion in that matter. Her Honour's findings are applicable in the present case. A police officer may establish suspicion by reference to information or material which is not confined to his or her own observations and may be entitled to rely upon what the officer has been told. The question is whether there are reasonable grounds on the material forming the requisite suspicion.
In the present matter, Sergeant Broadhurst's suspicions arise from his own experience and observations as well as the information provided by Constable Barwick in the context of the opinions expressed by Mr Macken. His opinions were also formed from a substantial volume of records which were assembled with the evidence.
Based upon the outcome of searches of the premises and observations of alcoholic beverages and facilities constituting the basis for the operation of commercial bar activities therein together with the appearance of sales or the equivalent, there is more than ample evidence to sustain the suspicion formed under s 3(1)(b) of the Act, namely, that liquor was unlawfully sold or supplied on or from the premises.
As to the grounds relied upon for the suspicion formed, with respect to circumstances described in s 3(1)(c), the observations made by Sergeant Broadhurst, when combined with his experience and the evidence of Senior Constable Barwick, upon which Sergeant Broadhurst relied, indicates that there were reasonable grounds for suspicion that reputed criminals or associates of reputed criminals were to be found on or had resort to the premises or have resorted and are likely to resort again to the premises.
The premises are a known clubhouse for the Nomads. Motorcycles were found on the premises in the locked area. The registration details of the owners of the motorcycles were persons who were reputed criminals as that expression is defined in s 2 of the Act. In particular, those persons were identified as being persons who have been convicted of an indictable offence. The evidence disclosed that those persons were likely to attend the premises again. For example, one of the persons identified by reference to the motorcycle registrations was a person known to have been a Sergeant of Arms of the Nomads.
As for the requirements of s 3(1)(d), as earlier mentioned, Mr Walton was the caretaker and lived at the premises. He advised police that he could be contacted by his telephone as to any matters in relation to the premises. He was present at the time of the throwing of the Molotov cocktails and the fire and communicated with the police in that respect. He was present when the police executed a firearm search and a noise complaint. Mr Walton is a reputed criminal as defined or is an associate of reputed criminals and, in my view, on the evidence, either controls or manages the premises or assists in the control or management of the premises for the purposes of s 3(1)(d) of the Act.
I am, therefore, also satisfied that the plaintiff has met the requisite statutory conditions for the making of such declarations under s 3(1) and (3) of the Act. In particular, I am satisfied that Sergeant Broadhurst has shown reasonable grounds for suspecting the conditions as reflected in those submissions. Moreover, I am satisfied that s 3(1)(b), (c) and (d) have been satisfied with respect to the premises.
[4]
Discretion
In reliance upon the judgments of Priestley and McHugh JJA in Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 98 the plaintiff submitted that in the event that the requisite conditions for the making of orders under s 3(1) and (3) were met that it would, in the result, be appropriate for the Court to exercise its discretion to make the declarations under those respective provisions.
I do not propose to pronounce upon that submission, as it is unnecessary to do so, in the circumstances of this matter. The establishment of reasonable grounds for suspecting those things specified in s 3(1)(b), (c) and (d) when combined with the emergency circumstances described earlier in this judgment, amply indicate, in my view, that there is a proper basis for the exercise of the court's discretion to grant the declarations under both s 3(1) and (3).
I note in that respect that the effect of the declarations under s 10 of the Act is to, inter alia, allow police to enter premises while ever the declaration remains in force without a warrant. I have also taken into account that s 4 of the Act permits the Court to rescind the declaration on premises if it thinks fit, on an application being made by either the owner or the occupier of the premises, the subject of the declaration, on proof that the owner or occupier has not at any time allowed any of the conditions, the subject of s 3, to obtain in relation to the premises.
In my view, the declarations will serve the purposes to which the Act is directed. The requisite declarations as to the premises in this case will have the effect, inter alia, of permitting police to enter the premises without a warrant in circumstances. Entry and observation have been carried out by the police under warrant or as part of their normal investigatory functions (together with the keeping of good order and peace). This has been presently insufficient to mitigate the conflict between the rival gangs. The conflict has now evolved into an emergency situation in which the public may be placed at risk by the predicted immediate retaliatory violent conduct between two major Outlaw Motorcycle Gangs. These factors also constitute a proper basis for making the declarations sought under s 3(3).
In the circumstances, therefore, I make the declarations sought in paras 1 and 2 of the amended summons (although my judgment will necessarily remove identifying parts of the premises in the form of the orders published in the judgment).
[5]
Amendments
07 February 2018 - Typographical error corrected.
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Decision last updated: 07 February 2018