Conditions pertaining to the premises relied upon were specified in the affidavit to be suspicion that:
1. Indecent conduct and entertainment of a demoralizing character occurs at the premises and is likely to occur again (s 3(1)(a));
2. Alcohol is unlawfully sold or supplied on or from the premises and is likely to be sold again on or from the premises (s 3(1)(b));
3. Reputed criminals have resorted at the premises and are likely to resort on the premises again (s 3(1)(c));
"Reputed criminal" is defined in s 2 of the Act to include a person who has been convicted of an indictable offence.
The affidavits depose to inspections of the premises by police on 3 January 2018, 2 February 2018 and 18 June 2018, as well as some information relied upon by Trueman relating to a search warrant executed in 2014. I will deal with the three bases in turn.
[2]
Section 3(1)(a) Indecent conduct/entertainment of a demoralising character
The first aspect of evidence relied upon in support of this suspicion was a June 2014 COPS report stating that a brown alpaca, thought to be stolen, was found at the premises. Unattributed information in the COPS report claimed that the Gypsy Jokers had stolen an alpaca and were having sexual intercourse with it. No further information was included in the affidavit which confirms or denies whether the alpaca found was the stolen alpaca or that he/she was checked for evidence of sexual activity, or whether there was any confirmation at all that the notification held any truth.
Whilst the test for reasonable basis for suspicion can be based on information that is given anonymously and/or information that turns out to be wrong, the presence of an alpaca on the premises and the uninvestigated rumour regarding sexual activity does not of itself provide reasonable grounds for suspicion that indecent conduct was taking place in relation to that alpaca. It is nothing more than rumour and innuendo. Accordingly, I can put the alpaca to one side.
The second aspect to this ground stems from what is described in the affidavit as a "stripper pole" running from the stage to the ceiling seen in place at the premises on 3 January 2018. There was no evidence that the pole had in fact been used for "stripping" (presumably a reference to the removal of clothing) or any other particular entertainment that could be described as "demoralising" or "indecent conduct". I query physical activity involving the balancing and exercising upon such a pole, also known as "pole dancing", could necessarily be described as "entertainment of a demoralising character" particularly given its currency and prevalence for use as dance and fitness class equipment for young corporate women interested in core strength and fitness. I adopt the observations of McCallum J in Beeche v Smith Street Investments Pty Ltd [2018] NSWSC 544 at [12]-[13] in that regard.
More importantly perhaps, there was no evidence that the pole had been "used" in entertainment of any kind at the premises. Further, during cross-examination by senior counsel for the defendant, the deponent confirmed that on execution of a further search warrant in July 2018, the pole had been removed. Accordingly, I find that there is no reasonable basis for the suspicions of the kind referred to in s 3(1)(a). That basis for the application fails.
[3]
Section 3(1)(b) Unlawful sale or supply of liquor
Relevant observations made on the execution of a restricted premises warrant on 3 January 2018 were set out in the 7 March 2018 affidavit. Photographs of the premises were tendered that showed Gypsy Joker emblems, photographs, paraphernalia and motorbike regalia lavishly displayed on the walls and ceiling. A document headed, "Rules" provides for a number of matters clearly pertaining to motorcycle ownership, riding and club protocol. Although the words "Gypsy Joker" do not appear on the document, it is reasonable to conclude that they are rules of the Club.
Other photographs tendered show a very large, commercial sized refrigerator, a well-equipped bar, a sign on the large commercial sized fridge saying, "Please note no liquor is sold or supplied on these premises. These facilities are provided for storage of members' personal liquor", a collection of bar tables and stools and a significant amount of alcohol comprising 247 cases of mixed spirits and beer and 146 bottles of spirits. The estimated value of the alcohol seized was $21,000.
In a room where the pool table was located is a sign on the wall saying, "All donations will be rewarded with a free drink thank you". It seems to me an available reasonable suspicion that the signs are witty efforts to attempt to deflect an available inference that alcohol was being sold or supplied on the premises, cognisant of this being an offence when there is no liquor licence.
Other items suggestive of a commercially operating bar include pourers, a straw dispenser, plastic cups, shot glasses and a defined wide L-shaped bar area not easily accessible, including signs indicating only authorised people are allowed behind the bar.
A ticket method of supply of alcohol was suspected by the deponent to be made up of a cross-referenced hand written makeshift sign which had certain colours seeming to relate to particular drink items including spirits, bourbon, rum, soft drink, beer and cider.
Of perhaps more significance was a large white bucket on a bench behind the bar with a sign "Donations" on the front and a sticker "Gypsy Jokers Australia 1%" on it, and inside the bucket notes and coins totalling $515.70.
There was also a wooden box located in the vicinity of the bar with the words "BAR BILLS" written on the front, and inside a series of what were described by the deponent as IOUs with dates and names indicating "DR$" and a witness and date, as well as "CR$", and witness and date and a "balance" column with totals kept. The cards had individual names on the top line including "Chad", "Boof" and "Blackie".
A closed timber door off the bar area had written in large black Texta the following:
"BOOF
BAR MANAGER
KEEP OUT
STOCK ONLY"
Behind that door were stored a significant number of schooner glasses, books of raffle tickets and a small amount of alcohol.
The deponent also relies upon being informed that on 18 June 2014 a search warrant was executed at the premises and "a fully functioning bar with fridges containing alcohol" was observed by police.
On 2 February 2018, the deponent attended the premises again with other police to conduct an inspection under the Gaming and Liquor Administration Act 2007 (NSW). He observed that all persons present were consuming alcoholic beverages, that the fridges had been restocked with alcoholic beverages, that there was money inside the donation bucket on the bench behind the bar and the "BAR BILLS" box with IOU cards included an IOU apparently completed on that night by Michael Odisho who was found to be present at the premises.
On 20 July 2018, the deponent attended the premises again. During this execution of a search warrant, the "BAR BILLS" box and system referred to in [21] and [24] appeared to still be in operation along the lines of what was found by the deponent on the previous occasions. There were a number of invoices in the bar area showing a large amount of alcohol had been purchased in the same transaction from a liquor supplier. There was a mixed variety of alcohol located inside the commercial fridge, although of a much smaller volume than what had been and seized in January 2018. A number of open and unused bottles of spirits were on the bench of the bar area. There were a number of drinking cups containing liquid the deponent believed to be spirits that had been poured but not yet mixed. There was also a straw dispenser. The same layout regarding drinking tables, bar mats, pourers, shot glasses and the arrangement of the tables provided as before further grounds for suspicion that alcohol was being supplied and/or sold without a licence.
The white bucket with the sign "Donations" bearing the "Gypsy Joker Australia 1%" sticker contained $330.70. There was also a metal cash box inside a safe room next to the bar which contained $491.00. Inside the fridge within the bar area were 22 x 425mL schooner drinking glasses and 16 x 200mL/7oz drinking glasses.
The deponent set out his extensive background and experience in attending and assessing motorcycle club premises and the combination of that experience and his observations during the execution of the search warrants in January, February and July 2018, including the large amounts of alcohol in the fridges, the cash box and the IOU system in the "BAR BILLS" box, provided the bases for his belief that alcohol had been sold or supplied without a licence (and therefore unlawfully) on the premises and was likely to be sold again.
I accept the evidence of the deponent that the premises have no current or past liquor licence. No evidence was provided to the contrary. The items and layout described included a very significant amount of alcohol in the fridges in January 2018 and particularly the wooden box titled "BAR BILLS", containing a number of "IOUs" provide a reasonable basis to suspect that these are bar bills relating to the sale of alcohol at these unlicensed premises. There is no requirement that the deponent provide direct evidence of sale. All that has to be shown is reasonable grounds to suspect this activity has occurred on or from these unlicensed premises and that it is likely to occur again.
I accept that the deponent has shown reasonable grounds for suspicion that liquor is unlawfully sold on or from the premises and is likely to be so sold again on or from the premises. This ground for the declaration sought is made out.
[4]
Section 3(1)(c) Reputed criminals to be found on or to resort to the premises
On 3 January 2018, 37 males were found on the premises by Police, 12 of whom fit the criteria of reputed criminal on the basis of possessing criminal records that include a conviction for an indictable offence. There was no evidence establishing any were in fact members of the Club. Only 1 of the 12 was or is a New South Wales resident, Mr Shane Carter.
On 2 February 2018, six male persons located inside the clubhouse included one reputed criminal and New South Wales resident, Jake Simms.
A motorcycle registered to a person named Chad Hogg was found on each of the police inspections of the premises in January, February and July 2018. Whilst there was no evidence before me that Mr Hogg himself was found at the premises, there is evidence that the clubhouse would need to be accessed with a key or Mr Hogg would likely need to be let into the area by a person holding a key to access his motorbike which was observed on at least one of the occasions to be parked actually inside the Club house. Mr Hogg is a reputed criminal.
On 20 July 2018, Shane Carter was again present. I am satisfied that he meets the definition of reputed criminal. He was observed by the deponent to arrive and leave in a utility. A motorbike registered in his name was parked at the premises before he arrived and remained on the premises after he left.
A submission was made by senior counsel for the defendant that because all of the reputed criminals found to be physically present at the premises except Shane Carter and Jake Simms had their usual place of residence interstate, the applicant could only show that those interstate reputed criminals had been found on or resorted to the premises once, but could not show that they were likely to resort again to the premises. There is some force in this submission.
However, further analysis is required as to whether condition 3(1)(c) is met by the circumstance of Mr Carter, Mr Simms' presence at the premises in February and/or Mr Hogg's potential to resort again to the premises.
Obviously there is direct evidence that reputed criminals have been found on the premises. The issue is, does s 3(1)(c) require that it is those same identified reputed criminals that are likely to resort to the premises again, or is it enough that any reputed criminals (or for that matter associates of reputed criminals) are likely to resort to the premises again.
Mr Hogg comes back into play because of the presence of his motorcycle inside the premises in January, February and July 2018 and his status as a (New South Wales resident) reputed criminal. One inference available is that he stores his motorcycle on the premises and that means he will return to the premises every time he wishes to ride it. This is sufficient to ground a reasonably based suspicion that he is likely to resort to the premises again.
The submission made on behalf of the applicant is that the relevant officer is not required to show reasonable grounds for a suspicion that the same reputed criminals are likely to resort to the premises again, but only that reputed criminals are likely to resort to the premises again.
Given the evidence of the deponent that on each of the three separate occasions when he attended there were reputed criminals present, first on 3 January (12 reputed criminals), and one present on 2 February, and on 20 July when Mr Carter was present again, the total picture presented by the evidence is that on each of the three occasions police have attended the premises, there has been at least one reputed criminal present.
Whilst the defendant has submitted that 11 out of the 12 reputed criminals present on 3 January 2018 were interstate residents and it was therefore unlikely that they would return to the premises, I accept the plaintiff's submission that all that is required is that the deponent suspects on reasonable grounds that reputed criminals are likely to resort to the premises again. There is nothing in the wording of s 3(1)(c) that mandates the resorting of more than one reputed criminal to be present at the premises at exactly the same time, just that there is more than one (identified) reputed criminal who is likely to resort to the premises in the future.
I conclude that the deponent has demonstrated reasonable grounds for suspecting that reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises.
It is in those circumstances unnecessary to go on to consider the breadth of the definition of "associates of reputed criminals" or to analyse the wider import of the full definition of "reputed criminals" contained in s 2 of the Act.
[5]
Exercise of discretion - Sibuse
A submission was made that Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 98 is authority for the proposition that once a court finds a relevant factual matter, in this case, the existence of reasonable grounds for the relevant suspicion, the court ought to exercise its discretion to make the declaration sought. I do not agree that submission is correct. I respectfully adopt the analysis made and conclusions reached by McCallum J in Beeche at [19]-[20] where a similar submission was made.
I am however satisfied in the circumstances here that it is appropriate to exercise my discretion to make the declaration that has been sought. The predominant reason for reaching that conclusion is that the premises appear to be used as a meeting place of male persons who include reputed criminals. A further reason is that it has been demonstrated that there is a reasonable basis to suspect that liquor has been unlawfully sold or supplied on or from the premises and is likely to be so sold again on or from those premises.
[6]
Order
I declare, pursuant to the provisions of s 3(1) of the Restricted Premises Act 1943 (NSW) that the premises described below, namely Lot C in Deposited Plan 398446 which is commonly known as 1681 The Horsley Drive, Horsley Park in the State of New South Wales are premises to which Part 2 of the Restricted Premises Act 1943 applies for the predominant but not sole reason that reputed criminals have attended or are likely to attend the premises.
[7]
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: 10 December 2018
Power to make a declaration in relation to premises
Section 3 of the Act provides:
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.
(2) Such declaration shall be in force until rescinded.
(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 test in the legislation is that the relevant applicant, a senior police officer, in this case Acting Sergeant Nathan Trueman, needs to show reasonable grounds for suspecting certain things. Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCCA 336 looked at the issue of what type of information may be relied upon by a police officer to inform a reasonable suspicion or belief.
In relation to the information which can be relied upon to inform suspicion or belief, counsel for the applicant relied upon the following remarks by McColl JA in Hyder at 577:
"(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 per Kitto J"
And at 576:
"(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112; 251); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo (2001) 126 A Crim R 562 at 53 per Smart AJ (Spigelman CJ and Simpson J agreeing); Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn"