Commissioner of Police v Bowtell (No. 2)

[2018] NSWSC 520

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Commissioner of Police v Bowtell (No. 2) [2018] NSWSC 520

Hearing dates:

29 March 2018

Date of orders:

27 April 2018

Decision date:

27 April 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(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. Subject to paragraph 1b below, approaching, contacting or associating directly or indirectly with any member, nominee 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, email 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. Paragraph 1a does not apply to the first and second defendants associating with members of their immediate family members, ie, a parent or sibling.

 

c. Subject to paragraph 1d below travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency.

 

d. The first, third, fourth and fifth defendants are permitted to travel at night solely for the purpose of driving or being driven to or from lawful employment when rostered to perform lawful employment at night provided that they:

 

i. provide a copy of any work roster to a nominated police officer, prior to the journey, and at the earliest opportunity after such roster becomes available and;

 

ii. have in their possession when travelling at night a copy of such roster and;

 

iii. travel to and from the lawful employment only by the most direct available.

 

e. Attending or approaching any of the following premises:

 

i. Any premises suspected by the defendant to be resided in by any member of the Nomads OMCG, or a member of any other OMCG subject to 1b;

 

ii. Any premises suspected by the defendant to be frequented by a member of any 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 or having access to an encrypted application/media application (including but not limited to: What’s app, wikr, snap chat, 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. Wearing or displaying any Nomads 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, subject to 2d.

 

d. Condition 2c 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.

Catchwords:

CRIMINAL LAW – application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – defendants said to be members of Nomads 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 Nomads 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 – balancing act required for imposition of prohibitions and restrictions - order granted for term of 12 months

  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 (Appeal and Review) Act 2001 (NSW) s 63
Crimes (High Risk offenders) Act 2006 (NSW) ss 9, 11
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

Cases Cited:

R v Cluse (2014) 120 SASR 268; [2014] SASCFC 97

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

NSW Commissioner of Police (Plaintiff)
Bradley Bowtell (First Defendant)
Dylan Patrick Brittliffe (Second Defendant)
Blake Kevin Martin (Third Defendant)
James Kenneth Quinnell (Fourth Defendant)
Kane Benjamin Tamplin (Fifth Defendant)

Representation:

Counsel:
M Tedeschi QC & C Melis (Plaintiff)
R Cavanagh (Defendants)

  Solicitors:
Crown Solicitors Office (Plaintiff)
O’Brien Winter Partners Pty Ltd (Defendants)

File Number(s):

2018/80189

Publication restriction:

Nil

Judgment

1. 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.

2. 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 licenced 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 location known or believed by the defendant to be used for and frequented by any member of the Nomads OMCG or any member of any other OMCG;

ii. Any private residence known or believed by the defendant to be resided in by any member of the Nomads OMCG or member of any other OMCG;

iii. Any place of work known or believed by the defendant to employ any member of the Nomads OMCG or member of any other OMCG;

iv. Any other premises known or believed by the defendant to be occupied by a member or members of an 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: What's app, wikr, snap chat, 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 Nomads 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.

3. 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 Nomads OMCG.

The legislation

4. 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.

5. 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).

6. 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,

…

7. 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.

The evidence

8. An affidavit of Anthony Macken gives expert evidence about outlaw motorcycle gangs and about the Nomads in particular. Mr Macken says, and it is not disputed by the defendants, that each of the defendants is a member of the Nomads. Mr Macken says that the first defendant is the President of the Newcastle City Chapter. The second defendant is likely the national president. The third defendant is attached to the Newcastle City Chapter. The fourth defendant likely remains the Newcastle Chapter Sergeant at Arms. The fifth defendant may be the Newcastle City Chapter Sergeant at Arms.

9. According to Mr Macken, the President has absolute authority over his area of responsibility. The Sergeant at Arms is responsible for discipline of the members of the OMCG and for formulating and coordinating attacks on the rival OMCGs during times of conflict. Mr Macken said that hierarchy is an important feature of OMCG culture and is inexorably linked to membership. During times of conflict, office bearers and senior members often direct junior members and prospects/ nominees to commit acts of violence.

10. An affidavit of Sergeant Gary Broadhurst, who is attached to Strike Force Raptor, a specialist unit created to combat Outlaw Motor Cycle Gang-related serious organised crime, gives evidence of the current conflict between the Nomads and the Finks. He swears in his affidavit of 12 March 2018 to the following acts of violence and related matters that have occurred since the beginning of the present calendar year:

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, a member of the Finks OMCG and Kane Tamplin (fifth defendant) had a physical fight.

c.   On 15 January 2018, shots were fired at Troy Vanderlight's house in the early hours of the morning.

d.   On 25 January 2018, Troy 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 (third defendant). The victim's sister also stays with her regularly and she is the current girlfriend of Kane Tamptin. 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, recognising the current shootings in the Northern area as an emergency,

g.   On 13 February 2018, seven rounds were fired from a vehicle into the

house of a member of the Finks OMCG 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, recognising the current shootings in the northern area as a matter of extreme urgency, and as such is an emergency.

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 (first defendant) 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, 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.

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 bullets used in the shooting on Manners's house on 27 February 2018.

n.   On 12 March 2018 each of the defendants were served with materials in relation to this application. In the material, Ashley Chambers, a Finks OMCG member, was referred to as being in the Singleton area, Bowtell called Chambers and threatened him over the phone, 'I know where you live," On 15 March 2018, Bowtell was arrested and charged for intimidating Chambers. He was released on the same day on conditional bail.

o.   Within hours of Quinnell being served with the material on 12 March 2018, 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 Colin 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.

p.   Around lam on 18 March 2018, Chambers' motorbike and house was subject to a firebomb attack. His motorbike was completely destroyed and his house was partially burnt. Police believe the Nomads OMCG is responsible for the attack.

q.   During the evening on 18 March 2018, nine Finks OMCG members, including Chambers and Vanderlight were located at the Victoria Hotel in Hinton. Police believe that this was a meeting to plan an attack on the Nomads OMCG In retaliation for the flrebombing on Chambers' house. Located with the group was a copy of the Finks MC Club Rules. Of note is the rule "right or wrong. If a brother has a drama we ALL have a drama.”

11. Sergeant Broadhurst swears in his affidavit that the current conflict between the two gangs is the most significant OMCG conflict that has occurred in NSW. The violence has escalated to a point that it has become an emergency. He says that it is only a matter of time before an innocent member of the public is injured.

12. At my request to Senior Counsel for the Commissioner, Sergeant Broadhurst updated this information in an affidavit sworn 14 April 2018 which disclosed the following:

4.   On 5 April 2018, I was the Tactical Commander for 31 Criminal Organisation search warrants which were executed on both Nomads and Finks members in the early morning. During the execution of those warrants, Police located a number of items which I believe are directly related to the ongoing war between the Nomads and the Finks and which I believe represent preparations for a marked increase in the seriousness and thus danger to the public of the retaliatory acts, particularly now that explosives have been located:

(a)   At the premises of Finks member Jacob Miller police located and seized a crossbow and 5 arrows as well as human growth hormones. Police also located a Finks OMCG T-shirt and a letter relating to his membership of the Finks OMCG.

(b)   At the premises of the Sergeant at Arms of the Finks Hunter Valley Chapter, Tim Blake, police located and seized a balaclava, a lock picking gun, and invoices for 2 Harley Davidson Motorcycles. Police also located Finks related clothing and receipts for Finks OMCG merchandise.

(c)   At the premises of the State President of the Finks, Andrew Manners, police located Finks colours, Finks related merchandise, and a gang clothing ledger. During that search, the President of the Newcastle City chapter of the Finks, Mitchell Cole, arrived at Manners' premises and was found to be in possession of drugs.

(d)   At the premises of Finks member Joel Walker, police located and seized prohibited drugs. Police also located Finks colours.

(e)   At the premises of Finks Newcastle City probationary member Trevor Pike-Convery police seized an electronic control device ("Taser"), a snake, knuckle dusters, electronic storage devices, an Ipad, a laptop, seven vials of a clear liquid, a bag containing 10 tablets, a book on secrets of methamphetamine manufacture and pictures of gang members.

(f)   At the premises of Nomads member Matthew Milner police located four (4) 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.

(g)   At the premises of Nomads life member Glenn Scullie, police located and seized a number of prohibited weapons including a slingshot and an extendable baton. Police also located Nomads colours and memorabilia, a Nomads club registration and four (4) mobile phones.

(h)   At the premises of the President of the Nomads Newcastle Chapter, Murray Britliffe, police located and seized a firearm part (barrel), fireworks and suspected drugs. Police also located Nomads OMCG Colours and Nomads Memorabilia.

5.   During the operation 9 Finks OMCG members were charged with offences and are currently on bail for those offences. 4 Nomads OMCG members were charged with offences and are currently on bail for those offences. The offences include participate in criminal group, possession of a prohibited weapon, possession of a prohibited drugs. There are a number of other charges pending. The defendants have not been charged at this stage.

NAME	CHARGE #	OFFENCES	BAIL	ITEMS FOUND REQUIRING FUTHER INVESTIGATION
FINKS
Troy Vanderlight	H67905471	Participate in criminal group	Conditional
H69300482	Affray	Conditional
Mitchell Cole	H67432418	Possession of prohibited drugs	Conditional
David Self	H131439602	Participate in criminal group	Conditional
Trevor Pike-Convery	H66969027	Participate in criminal group	Conditional	Taser, Snake, Knuckle dusters
Possession of prohibited drugs	Conditional
Blake Levy	H67192040	Participate in criminal group	Conditional
Daniel Leacy	H67690721	Participate in criminal group	Conditional	Suspected prohibited drugs
Joel Walker	H67742459	Participate in criminal group	Conditional
Jacob Miller	H67342247	Breach weapons prohibition order	Conditional
Possession of a prohibited weapon	Conditional
Craig Patrick	H67852543	Participate in criminal group	Conditional
Jack Jordan	H130263601	Participate in criminal group	Conditional	Ecstasy tablets
Resist Police	Conditional
Tom Jordan (Associate)	H67720566	Possession of prohibited drugs	Conditional
Joel Walker	H67742459	Participate in criminal group	Conditional
H68319669	Possession of prohibited drugs	Conditional
NOMADS
Murray Britliffe	H67719166	Participate in criminal group	Conditional	Firearm, Fireworks, 2 grams of suspected amphetamine
Matthew Milner	H69495951	Participate in criminal group	Conditional	Explosives - detonator
Bradley Frazer	H280675595	Participate in criminal group	Conditional
Christian Kirby	H246578091	Participate in criminal group	Conditional
Tim Blake	Pending	Lock picking gun
Gleb Scullie	Pending	Suspected prohibited drugs, slingshot, extendable baton.
Dean Ward	Pending	Suspected prohibited drugs

6.   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. I believe members of the Finks are responsible for this attempted firebombing.

13. Sergeant Broadhurst said further that the fact that Police are still locating and seizing weapons and explosives, even since these proceedings and other proceedings against members of the Finks OMCG have commenced, reinforces his view that the defendants in both of these proceedings intend to continue to escalate the violence against each other.

14. Police records detail the following incidents which preceded the violence during 2018 as follows:

(a)   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 NSWPF system under event report E.259966895.

(b)   On 2 December 2016, Michael Lockyer, now a Nomads Member, and his associates were involved in an affray with eight Finks members at a 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 NSWPF system under event report E.63731273.

(c)   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 NSWPF system under event report E.63128876.

(d)   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 NSWPF system under event report E.63181907.

(e)   On 21 January 2017, Nomads Newcastle Chapter Sgt-at-Arms James Quinnell, Nomads Newcastle City Sgt-at-Arms Kane Tamplin and Nomads Newcastle City Nominee Kaddison O'Shea were involved in an affray with members of the public at the Hunter River Hotel. This incident is recorded on the NSWPF system under event report E.318252093.

(f)   On 24 March 2017, 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 NSWPF system under event report E.64911168.

(g)   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 NSWPF system under event report E.64672373.

(h)   On 25 March 2017, Nomads Members Dylan Britliffe, Kane Tamplin, James Quinnell and Blake Martin, along with a number of associates, were involved in an unprovoked assault on two men at a licensed premises in Newcastle, NSW. This incident is recorded on the NSWPF system under event report E.66118189.

(i)   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 NSWPF system under event report E.63860017.

(j)   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 NSWPF system under event report E.63945226.

(k)   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 NSWPF system under event report E.64242159.

(I)   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 NSWPF system under information report E.65646478.

(m)   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 NSWPF system under event report E.63959126.

(n)   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 NSWPF system under event report E.65694480.

(o) 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.

(p)   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 NSWPF system under event reports E.64040209 and E.64903547.

(q)   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 NSWPF system under event report E.65003907.

(r)   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 NSWPF system under information report E.65224519.

(s)   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 NSWPF system under event report E.67813381. This is likely retaliation for Mann patching from the Nomads to the Finks several weeks previously.

(t)   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 NSWPF system under event report E.67791488.

(u)   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 NSWPF system under event report E.66224063.

(v)   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 NSWPF system under event report E 65008825.

(w)   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 NSWPF system under event report E 67844955.

(x)   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 NSWPF system under event report E 66206626.

(y)   On 11 December 2017, a vehicle registered to the father of Nomads Newcastle City Chapter Member Blake Martin, was involved in a predatory driving incident at Singleton, NSW, where the victims were threatened with weapons and their vehicle rammed. One of the victims was recorded as having links to the Finks. 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 NSWPF system under event report E 66564264.

15. When discussing the nature and distinguishing characteristics of the Nomads OMCG Mr Macken annexes copies of what are said to be the Nomads Constitution and Rules. Mr Macken says that these were obtained by police on two occasions; first, on 11 August 2010, during the execution of a search warrant at the residence of a Nomads member; secondly, on 2 July 2012 during the execution of a search warrant at the residence of a Nomads member.

16. One of the documents concerned is headed “Constitution Nomads MC Australia 30th Anniversary 1998”. For present purposes section H is relevant. Section H concerns the duties of office bearers. Section H relevantly provides:

1.   President: Oversee all matters related to the chapter including attendances at club committee meetings, inter club meetings, outside matters related to law and order, attend chapter council and to have broad understanding of all chapter members to assist and reflect the views of the individual as well as the chapter. Council (scil, counsel) members prior to discipline. Contact and report on members injured or jailed and to asses (sic) situation of the members family.

…

3.   Sargent (sic) at Arms: Responsibility for any tools and the use of such, to asses (sic) and activate any offensive necessary in the given situation. Attend all committee, chapter council meetings and meetings related to law and order, council (scil. counsel) members prior to discipline, to activate discipline on the recommendations of the chapter council. Contact and report on members injured or jailed and to asses (sic) situation of the members family.

17. Section I headed “Police and Laws” says relevantly:

1.   Do not state or sign anything if arrested or questioned unless legal representation is present.

18. The Charter Rules was a separate document found with the Constitution. Rule 9 says:

REFUSAL OF DUTY AT WAR INSTANT DISMISSAL FROM CLUB

19. Another document appears to contain some further rules which relevantly provide:

A Nomad should observe the chain of command.

…

A Nomad shall defend his colour's (sic), himself and his brother's (sic) to best of his ability.

20. Mr Macken gave evidence, unchallenged by objection or cross-examination, concerning the constitution and rules as follows:

15.   Both the Nomads "Rules" and "Constitution" anticipate violent confrontation as a likely event in which Members (regardless of position in the hierarchy) are expected to participate. Notably, Point 9 of the "Charter Rules" specifically state "Refusal of duty at war instant dismissal from club". From my knowledge and experience of Outlaw Motorcycle Gangs I am of the opinion that the rule is referring to violent conflict with other Outlaw Motorcycle Gangs, commonly referred to in those organisations as being "at war".

16.   The "Rules" and "Constitution (Section H, point 3) also provide instruction as to the duties of the Sergeant At Arms in response to a conflict situation. These include a responsibility to 'assess and activate any offensive necessary in the given situation". From my knowledge and experience of Outlaw Motorcycle Gangs I am of the opinion that the reference to activation of an "offensive" means a violent response to another OMCG or other threat. The same section makes reference to the use of 'tools" which, again, is to be oversighted by the Sergeant At Arms. From my knowledge and experience of Outlaw Motorcycle Gangs I am of the opinion that 'tools" refers to any weapons used by members up to, and including, firearms.

21. Mr Macken also gave evidence that, from his knowledge of OMCGs, it was his opinion that the Nomads is a structured and hierarchical organisation. He said that the Nomads has a chain of command from lower membership to high ranking officers, while official rules give a clear message of expected behaviour.

22. Mr Macken’s evidence of a strong hierarchical organisation is borne out by evidence from Detective Inspector Robert Radmore, who has had experience and investigation management responsibility in OMCG investigation since at least 2001.

23. Inspector Radmore referred to the arrest of the first defendant Bradley Bowtell on 15 March 2018 at which time he was charged with intimidation and using a carriage service to menace. Inspector Radmore spoke with Mr Bowtell in the early hours 16 March. Shortly before he did so, there was a deliberate arson incident at the residential premises of a Finks member Ashley Chambers. Mr Bowtell was questioned about his knowledge of and involvement in that arson. He told Inspector Radmore that he was not involved. He also informed him that as president of the Chapter he has command of his members and can guarantee they were not involved.

24. Inspector Radmore said that on 20 March 2018 he arranged to meet with Mr Bowtell and Mr Brittliffe to discuss an end to the violence between the Nomads and the Finks. During that meeting both Mr Bowtell and Mr Brittliffe 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. Inspector Radmore said that the conversation was a clear indication of the level of control the hierarchy of the gang has over its members and, therefore, the level of control the hierarchy has over the co-ordination of acts of violence. Inspector Radmore was not cross-examined.

25. When Mr Bowtell gave evidence he was asked about this conversation with Inspector Radmore. While denying that it was within his power to end the conflict, he gave this evidence:

On many occasions I have offered my assistance to George [Inspector Radmore], and the gang squad. And he said, "Can we get an end to this?" And I did say yes. I said, "From my side of things, I'll try and I'll get that happen make that happen.”

26. In answer to some questions from me, Mr Bowtell gave this evidence:

Q. Mr Bowtell, you're the president of the chapter of the club.

A. Yes.

Q. Do the members of that chapter have to obey rules and orders that you lay down?

A. To a certain extent, but I can't be held responsible for every person in the chapter's actions.

Q. But that's the general understanding, is it, that they're supposed to obey you?

A. Yeah, but those - yes and no, because those - you know, those rules and regulations were written, what, 50 years ago.

27. Mr Brittliffe, who is the national president of the Nomads, gave evidence about the meeting with Inspector Radmore. Mr Brittliffe was an extremely evasive witness and unless there was corroboration elsewhere or concessions from him I would not accept much of his evidence. For example, although he was the national president he was not able or prepared to say how many Chapters of the Nomads there were in Australia. Nor could he or would he say how many members there were nationally. He also denied that there had been any violence between the Nomads and the Finks and said that none of the violence (which he said did not happen) had anything to do with the Nomads.

28. However, he gave this evidence which might be thought to be some support for Mr Bowtell’s slightly more honest evidence about what was said at the meeting with Inspector Radmore:

Q. And during that meeting did you offer Detective Radmore a guarantee that, putting aside accidental meetings between individuals and fights breaking out - putting that aside, that there would be no further acts of violence by Nomads towards the Finks until a meeting could be arranged with the Finks?

A. Well, there has been none anyway.

Q. Now, please listen carefully to my question. Did you give a guarantee to Detective Radmore that there would be no further incidents of violence by Nomads towards the Finks?

A. I wouldn't say any further. I'd say there'd be no violent acts, yeah. Because there hasn't been so far anyway.

29. In answer to some questions from me he gave this evidence:

Q. Mr Brittliffe, when you met with the police and Mr Bowtell and gave the guarantee to them about no more violence until a meeting could be arranged -

A. Mmm.

Q. - how were you able to give that guarantee?

A. Because there's never been - there hasn't been any violence between Nomads and Finks.

Q. Since when?

A. Since there's been one or two personal problems, and that was years ago as far as I know, and there hasn't been any - any problems with us and the Finks for over a year or so, I'd say.

Q. Well, how are you able to give a guarantee, though?

A. Because there's no problems, so why would there be any dramas?

30. It may be observed in answer to two of my questions that Mr Brittliffe did not deny giving the guarantee I suggested he had given.

31. Each of the defendants was asked about their knowledge of the rules of the Club and, to the extent that they had a role in the Club, what that role involved. The fourth defendant, Mr Quinnell, who was the Sergeant at Arms of the Newcastle Chapter, said he was not provided with a copy of the Constitution and the Rules and has not informed himself about what the rules were. He denied that as the Sergeant at Arms one of his functions was to administer discipline. He said his only function was to make sure everybody gets along, and rides, and behaves themselves. He claimed at first not to understand what the word “tools” meant even in its ordinary everyday meaning. He denied that it was a euphemism for weapons. He denied that it was a rule of the Club that refusal of duty at war meant instant dismissal. He said that he was not aware that there was a war between the Nomads and the Finks. He denied that there was a code of silence with law enforcement agencies.

32. He was shown a video clip that he made and uploaded to Instagram where he says:

All you fucking Fink dogs, you fucking maggot scumbag pieces of fucking shit, bring it on ya fucking dogs, (unintelligible) ya fucking Fink dogs ah?

He denied that he was referring to the Finks Motorcycle Group and said that he did not want to bring anything on; he was just having a bit of fun.

33. I do not accept any of Mr Quinnell’s evidence about matters to do with the Nomads or their conflict with the Finks. I consider that he lied constantly in answering Mr Tedeschi’s questions. In particular, his denial of any conflict between the Nomads and the Finks was inconsistent with the evidence of Sergeant Broadhurst set out earlier, all of which was amply supported from contemporaneous police records, and with the evidence of Inspector Radmore.

34. The fifth defendant, Kane Tamplin, is the Sergeant at Arms of the Nomads Newcastle City Chapter. He said that it was his role as Sergeant at Arms just to look after everyone. It was not his duty to look after the tools of the Club which he described as a few spanners and the like to fix bikes. He denied that the term was a euphemism for weapons. He did not agree that the Club had a Constitution or that there were written rules. Although he described the Club as a family, he said that the members of the family were not obliged to defend each other. He said there was no current conflict between the Nomads and the Finks. He said that it did not even occur to him that the house of the sister of his girlfriend was shot up because of his membership of the Nomads.

35. Except for his admission that he was involved at a fight at the Honeysuckle Hotel involving four Nomads, I consider that Mr Tamplin lied constantly in answering Mr Tedeschi’s questions.

36. The only one of the defendants who gave reasonably honest evidence was the third defendant, Blake Martin. His evidence provides some corroboration of Mr Macken’s evidence about the fact that a Constitution and Rules exist and that those Rules are usually obeyed. It also corroborates the evidence of Sergeant Broadhurst and Inspector Radmore about the ongoing conflict between the Nomads and the Finks.

37. He gave the following evidence (T31-34 & T36-37):

Q. Is it the case that, from your point of view, the other 99 percent are bound by the laws of society, whereas the one percent of people in your group, and groups like yours, believe that they are not bound by the laws of society?

A. I think we are more bound. We have rules for ourselves in the clubs. It's not saying, yes, don't stick by the law. But we have our own rules to stand by as well.

Q. Would it be correct to say that those rules of your own group are more important or more significant than the rules of society?

A. No. We don't go out and intentionally break the law. But yes, we do stick to our rules.

Q. If your rules mean breaking the law, so be it, is that the case?

A. Yes, that's correct.

Q. Are you aware of the Constitution of the Nomads?

A. Yes, I am.

Q. Did you have to receive a copy of it before being a member?

A. No, I didn't.

Q. As a member, did you receive a copy of it?

A. No. It was just part of my time in the club; you learn the rules.

Q. Does that include the Constitution and the Charter Rules?

A. Yes.

Q. They're two different documents?

A. Well, from memory, I didn't see the paper work. Sorry.

Q. Is this one of the Charter Rules: Refusal of duty at war means instant dismissal from the club?

A. I'm just a junior member. I'm not hierarchical so that's not I can't say that yes or no.

Q. But is that your understanding? That if you are called to defend the club or to defend

A. If a brother calls me for help, yes. Then I go and help.

Q. You are obliged to, as a member of the club?

A. Yes.

Q. If that involves warfare between rival clubs, your duty is to defend your club?

A. It's to look out for my brother.

Q. I'm sorry?

A. It's to look out for my brother. Yes.

Q. That might include defending the club and club members?

A. Yes.

…

Q. Is there a strict rule in your club that you don't go and report anything to the police?

A. Yes.

Q. Is there a strict rule that you don't co operate with the police in any way at all, even when you're the victim of extreme violence?

A. I'm not sure if it's an actual rule, but yes.

Q. Is that the custom?

A. Yes.

…

Q. I suggest to you that you were involved in open warfare at the moment as a member of the Nomads with members of the Finks Motor Cycle Group?

A. There is a disagreement there. Yes.

Q. What's the disagreement about?

A. I don't wish to comment on that.

Q. I'm sorry, but I insist you answering that.

HIS HONOUR: You have to answer the question.

A. It's a personal involvement with them. So, with me, that's the reason.

TEDESCHI

Q. You have a personal --

A. I had a personal disagreement with that person around at the gym.

Q. I'm not asking about Mr Around. I'm asking you about a general war between your Chapter of the Nomads and the local Finks group?

A. I'm not quite sure how to explain it to you. There is a disagreement there but.

Q. What's the disagreement about?

A. I'm a junior. It's not my position to talk about that.

Q. What do you believe it's about?

A. I'm not quite sure how to explain it, honestly, no.

Q. Is it correct, it's about turf? It's about territory?

A. I guess you could possibly say that, yes.

Q. Why do the Nomads feel that their territory is being invaded?

A. Sorry? Say that again.

Q. Yes. Perhaps I should ask you, do you believe that members of your Chapter believe that the Finks are invading your territory?

A. I don't think that. No.

Q. What, in your view, is the cause of the violence?

A. This is a disagreement between two groups.

Q. What's the disagreement about? Is it about territory? Is it about

them being new to the area?

A. I guess.

Q. Sorry?

A. Them being new to the area, I guess.

Q. Which area are you referring to?

A. Newcastle.

Q. Does it include the Hunter Valley as well as Newcastle?

A. Just Newcastle, I think.

Q. But the Newcastle City, the larger city, or the centre of the city or which part of the city?

A. There's no particular area.

Q. How long has your group been in the City of Newcastle?

A. 45 years.

Q. How long have the Finks been there?

A. A couple of years.

Q. Do you believe that they're not entitled to come into your territory?

A. I believe it has caused some events. It has.

HIS HONOUR

Q. Mr Martin, this duty to assist fellow members to defend themselves, does that duty extend to assisting them if they are an aggressor?

A. The way I explain it, if one of your brothers is in trouble, I could do anything to help, from a broken down car and give him a lift, you do the best you can to help your brother and that's how I interpret that.

Q. If the brother takes an active part in violence, does the duty extend to assist him?

A. I always check if my brother is okay. It doesn't mean violence is necessary.

38. In Mr Brittliffe’s evidence he was asked if he knew there was a Constitution and he said he had heard that there was. He was asked if he had seen any rules and he said “Only bits and pieces. What’s in our paperwork”.

39. Yet, in his affidavit of 22 March 2018 in response to Mr Macken’s affidavit, he said:

The constitution of the club is attached to the [Macken] affidavit and annexed at A.

He then went on to draw attention to portions of the constitution which tended to show that the Club was law abiding such as not selling or consuming illegal drugs and obeying traffic laws.

40. He said at paragraph 65 of his affidavit:

I appreciate that the flavour of the evidence of the prosecution is that motorcycle clubs such as the Nomads are responsible for the significant violence in the community. My evidence is that to my knowledge as far as the Nomads are concerned, members are less likely to be involved in violent crime than the rest of the community as a whole.

41. He went on to say that he had done some research and he had found an article which he annexed to his affidavit. The thrust of the article appeared to be that statistics showed that “bikies” committed less than 1% of all crimes in New South Wales and were not a threat to mainstream society.

42. He was cross-examined about portions of that article as follows:

Q. Now, in that article it states that 50.2 per cent of all known outlaw motorcycle group members in New South Wales have been charged and processed. Is that something that you ask the court to take into account?

A. I guess so. I don't know.

Q. It also --

A. That was - that was not include - that was including traffic offences or something, I think.

Q. It also states that police say that outlaw motorcycle gang members are over represented in certain crime categories, pointing to 1,678 violence related charges. Is that also something that you wanted the court to take into account?

A. Yep.

Q. It also states that, based upon those numbers, police say this:

“There is no other portion of the community that has such a large rate of offending that are consistently violent in their behaviour and so entrenched in the illicit drug market in this state.”

Q. Is that also something that you wanted the court to take into account?

A. I guess so.

43. Unwittingly or not, that evidence tends to provide support for Mr Macken’s evidence about the involvement of OMCGs including the Nomads in particular types of crime, especially violence and drug dealing.

44. In his affidavit Mr Macken identifies the Nomads as an OMCG whose membership exhibits various identifying characteristics. Some of those characteristics relevant for the present matter are: that the Club has a hierarchical structure used for governance; that members are governed by rules which are enforced by violence; that members adhere to a culture of silence towards non-members particularly law enforcement; and that the Club has a reputation for violence and for use of firearms and other weapons.

45. Mr Macken identifies the members of the Nomads who have been convicted of offences of violence and intimidation. Members have been convicted of 27 separate offences since 2002 and 16 such offences since 2013. A number of these offences are offences punishable by a sentence of ten years imprisonment or more.

46. Mr Macken also identifies members who have been convicted of firearms and weapon offences. Since 2001 there have been 25 convictions and since 2013 11 convictions. Some of the convictions involved multiple offences.

47. Mr Macken has identified Nomads members who have been convicted of serious drug offences including cultivation, supply and manufacture. There are 13 such convictions since 2001 and five such convictions since 2015.

48. Mr Macken details various conflicts between the Nomads on the one hand and a number of other OMCGs since 2005.

The Commissioner’s case

49. The Commissioner relies on s 93T(1) of the Crimes Act 1900 (NSW) to establish that each of the defendants has been involved in serious crime related activity as required under s 5(1)(b)(ii) of the Act.

50. 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.

51. 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.

52. 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).

53. The Commissioner submitted that all defendants except for the first defendant have been convicted for offences of affray where they have acted together to assault members of the public, and that this demonstrates that their participation in the Nomads OMCG contributes to the occurrence of criminal activity.

54. Those defendants were made subject to non-association orders because of those convictions. However, the third, fourth and fifth defendants have filed appeals against their sentences with the result that the non-association orders are suspended under s 63 of the Crimes (Appeal and Review) Act 2001 (NSW). The Commissioner submitted that, in any event, those non-association orders would not protect the public since they lawfully permit the defendants to associate with other Nomads members that are not subject to an order.

55. The Commissioner submitted that the Nomads are a criminal group because they are a group of 3 or more people who have as one of their objectives committing serious violence offences. The five defendants are each participating in that criminal group, and each knows or ought reasonably to know that the Nomads 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. That 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.

56. That submission is made on the basis of Sergeant Broadhurst’s belief to that effect in respect of each of the defendants. The Commissioner submitted that it can be inferred that because each defendant is involved with the Nomads, they participate in the activities of the Nomads. The Nomads’ constitution and rules require that members of the Nomads participate in violent confrontation. The evidence from Mr Macken, it is submitted, is that members of the Nomads have been involved in serious violence and intimidation offences including against members of rival OMCGs and members of the public.

Defendants’ submissions

57. Counsel for the Defendants focused particularly on the distinction between the individual defendants and the Nomads club itself. He submitted that the Act is concerned with individuals. He submitted that individual offending by the defendants could not be taken to show that the Nomads had the particular objectives to which the Commissioner pointed. He drew attention to the need to show, consistently with s 93T(1), that each defendant knew or ought reasonably to have known that the Nomads was a criminal group and that his participation in it contributed to the occurrence of any criminal activity.

58. Counsel was critical of Mr Macken’s evidence in detailing historical matters concerning the Nomads when it was, in any event, an organisation with changing membership. He drew attention to the fact that the defendants had only joined the Nomads at various times in the 21st century, and it could not be assumed that they were aware of any Constitution or Rules which were prepared some 20 years ago.

59. Counsel submitted that little weight should be placed on what was supposed to have been said at the meeting between Inspector Radmore and Messrs Bowtell and Britliffe. He submitted that nothing said at that meeting implicated those defendants or the others in any acts of violence, and what was said at the meeting did not demonstrate that the office-holders in the Nomads were able to control the members.

60. Counsel made reference to the presumption of innocence and Article 11 of the Universal Declaration of Human Rights. He submitted that all of the defendants in their affidavits accepted that they were bound by the criminal laws.

Consideration

61. 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.

62. 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 this requirement by reliance on s 93S and s 93T of the Crimes Act.

63. I accept Mr Macken’s expertise in relation to outlaw motorcycle gangs and in relation to the Nomads in particular. 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].

64. I accept the evidence of Sergeant Broadhurst concerning the particular incidents of violence that have taken place. The evidence is derived chiefly from contemporaneous police reports of those incidents. I note that, although some statements in his affidavits could be read only as submissions, no objection was taken to them. To the extent that they are submissions I accept them as being supported by the factual evidence he has assembled.

65. These are civil, not criminal, proceedings: CSCPO Act, s 13. Proof of the matters required to make an order under the CSCPO Act is to the civil onus although the Commissioner accepts that by reason of the seriousness of the findings which must be made and, I would add, by the stringency of the conditions that may form part of any order, the Briginshaw principle is engaged. The defendants’ submission about the presumption of innocence is misconceived because any order made will not result in any conviction of the defendants. The only issue is whether the Commissioner proves to the requisite standard the matters set out in s 5(1) of the Act.

66. The evidence of Mr Macken points to the inextricable link between the large numbers of individuals who have been convicted of serious offences involving violence, weapons and drug supply and their membership of the Nomads. The evidence of violent incidents detailed in Sergeant Broadhurst’s affidavit demonstrates objectively that a number of victims of the offences, and properties involved in the offences, are associated with the Nomads and the Finks. It would be unrealistic not to infer that those incidents are strong and persuasive evidence of an ongoing conflict between the two groups.

67. The evidence of Inspector Radmore provides support for Mr Macken’s evidence about the hierarchical structure which operates so that the office-bearers exercise considerable, even if not complete, control over their member’s involvement in violence that is related to the Nomads, and what that organisation perceives as its right and privileges in a certain geographical area. I accept Inspector Radmore’s account of the meeting he had with Mr Bowtell and Mr Britliffe, an account which was, I have noted earlier, unchallenged and largely corroborated by their evidence.

68. I consider that the Constitution and Rules of the Nomads, although written up to 20 years ago (not 50 years, as Mr Bowtell claimed), still identifies the basis by which the Nomads operate. That is borne out by the evidence of Mr Martin and Mr Bowtell, and to a lesser extent, as I have explained, by the evidence of Mr Britliffe. Further, I note that copies of these documents were found as recently as 2010 and 2012, suggesting that they still have currency. The evidence of those witnesses corroborates the expert evidence of Mr Macken about the way OMCGs and the Nomads in particular operate.

69. So too does the evidence in Exhibit B, which was a COPS report of 10 April 2017 showing some discussions between police officers on the one hand and a member of the Finks and a member of the Nomads on the other. The report relevantly reads:

Advise that Police attached to Strike Force Raptor attended Location 1 and served a Firearm Prohibition Order on a Finks member, conducted a search, located nothing of interest.

Whilst at the premises Police discussed the current conflict involving the Finks and Nomads OMCG. The Finks member stated that he had a sit down with a Newcastle Chapter Nomads member and someone else the previous day. During these discussions they discussed the unwanted attention they are attracting from Strike Force Raptor due to a small number of persons. The Finks member went on to mention that the main instigators of the problems are the young members of the Nomads Newcastle City Chapter, particularly Blake Martin, Kane Tamplin, James Quinnell and Dylan Brittliffe.

The Finks members stated that he had no quarrels with the old blokes in the Nomads, however stated that he was told the Newcastle Chapter were finding it difficult to control the members of Newcastle City Chapter.”

…

During the same day Police attended Location 2.

…

At the location Police spotted a Nomads member. It was at this time that a Firearm Prohibition Order was served on him.

Police also spoke with him regarding the conflict. His version was similar to that of the Finks member. He stated that he sat down with the Finks member to discuss the current conflict, however agreed that he had no control over the Newcastle City members and what they did."

70. The evidence of Messrs Bowtell, Martin and Britliffe, and the above report, put the lie to the suggestion of some of the defendants that all that is occurring is the working out of individual disputes unrelated to membership of the OMCGs.

71. I reject for the most part that suggestion by the defendants that the incidents detailed by Sergeant Broadhurst are nothing more than personal disputes between two individuals on any given occasion. I accept, nevertheless, that a few incidents may have personal animosity and personal factors at their root, but the evidence overwhelmingly leads to the conclusion that most of the violence stems from a rivalry between the Nomads and the Finks.

72. I accept the evidence of Mr Macken that the reference to “tools” in the Rules of the Nomads is a reference to weapons, whether firearms or otherwise, despite denials by the various defendants.

73. On the basis of all of this evidence, I am satisfied, bearing in mind the Briginshaw standard, that the Nomads OMCG is a criminal group within the meaning of s 93S of the Crimes Act in that the Club has at least as one of its objectives the commission of serious violence offences.

74. I am also satisfied that each of the defendants knows that the Nomads is a criminal group by virtue of its written or unwritten rules requiring obedience to office bearers and a requirement to engage in or aid violence even if in the first instance, the violence is, in some form, defensive action.

75. I am also satisfied that each of the defendants at least ought reasonably to know that his participation in the Nomads contributes to the occurrence of the criminal activity because each defendant knows of his obligation to act supportively of others in the group including by engaging in violence to that end.

76. For reasons I have given, I do not accept the evidence of the defendants who deny knowledge of the Club’s rules and obligations, particularly the rule or obligation to act with violence if necessary in support of the group or others in the group.

77. 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.

Conditions

78. 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”.

79. Although the structure of the Act suggests that the Court must first be satisfied that, in compliance with s 5, there are reasonable grounds to believe that the making of the order would protect the public in the ways set out, and then to consider the form of the order as s 6 provides, it is difficult to see how the s 5 determination can be made without considering the particular prohibitions etc that should be put in place. This is at least because the order itself does not exist over and above the particular restrictions. Further, the Court cannot conclude that any order “would protect the public” in any of the ways specified unless the prohibitions etc. are identified. The order may be compared to an Extended Supervision Order under the Crimes (High Risk offenders) Act 2006 (NSW) where the supervision order can be made under s 9(1) and where conditions then may be added under s 11.

80. As to protecting the public, it is doubtful that any provisions are likely to prevent involvement by persons in serious crime related activities. I accept, however, that provisions can restrict and disrupt that involvement. 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 in the form to be discussed, 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.

81. The Commissioner accepts that at this point (ss 5(1)(c) and 6(1)) a balancing exercise is involved between the need to protect the public in that way and the restrictions that will be imposed on the defendants’ activities.

82. As a result of the affidavit evidence given by four of the defendants, that is, Messrs Bowtell, Martin, Quinnell and Tamplin, there is a particular need to focus on paragraphs 1(a),(c) and (d) of the proposed order. In short, that evidence concerns the employment of those four defendants.

83. Mr Bowtell gave evidence that he is employed by One Key Employment as a coal operator at a coal mine in the Hunter Valley region. He works on a rotating shift roster which includes day shifts and night shifts. The day shifts are between 5:00am and 4:30pm and the night shifts are between 4:00pm and 3:30am. He says that he is aware that other members of the Nomads are also employed at the mine and rostering might require him to work with other members of the Nomads. He says also that as a safety requirement, employees are required to travel in carpools to and from work should they reside beyond a particular distance from the mine. The mine is located in rural country where there is no public transport. At times he is required to engage in the carpooling agreement in a motor vehicle with one or more members of the Nomads. He said that if paragraph 1 of the order is made he would likely lose his employment. He also says that he resides at an address with another Nomad member.

84. Mr Martin also gave evidence of working for One Key Solutions as a dump truck operator. He works at a coal mine in the Hunter Valley region. As with Mr Bowtell, he works night shifts and day shifts. Other Nomad members are employed by the company and at times he is required to travel in carpools to and from work and that may involve doing so with other Nomad members.

85. Mr Quinnell gave evidence in his affidavit that he is employed as a labourer by New Pave Asphalt. That company resurfaces roads and pathways and much of its work is for the New South Wales government. He says that often the work needs to be done at night under lights when vehicular traffic access is light. Night shifts are typically between 4:00pm and 6:00am. He says that other members of the Nomads are also employed by that company. However, he said that his supervisor ensures that members work in different crews to avoid contact during those work hours. He said that Kane Tamplin is also employed by New Pave Asphalt. Mr Tamplin also gave evidence in his affidavit that he works for New Pave Asphalt. His evidence was to the same effect Mr Quinnell.

86. The second defendant Mr Brittliffe was unemployed.

87. Although, as I have indicated, I have found the evidence of some of the defendants to be unsatisfactory, this evidence concerning their employment was not challenged. I have no reason for considering that it is not truthful evidence.

88. Counsel for the defendants submitted that the orders sought were unnecessary, and that the Act was not designed to control groups, clubs or associations of any sort. He submitted that the disruption of an individual’s normal life activities was not allowed by the Act. He submitted that attending to employment cannot be regarded as a serious crime related activity, and yet the orders sought would restrict or stop the employment of a number of the defendants. He submitted that the restriction on attendance at hotels, clubs and bars could not properly be considered as preventing serious crime related activities, nor could the wearing of insignia.

89. Counsel for the defendants submitted that paragraph 1(a) and (d) assume that the defendants knew who the members or associates of all OMCGs were, and did so in circumstances where the defendants did not accept that they were the member of an OMCG. He submitted that restricting the association of members of a group where the alleged crimes are not based on the criminal standard of proof was an affront to the freedom of association. Reference was made to the International Covenant on Civil and Political Rights, although counsel for the defendants accepted that such a Covenant had not been incorporated into Australian law. It was submitted that it should nevertheless be regarded as persuasive.

90. During the course of submissions I raised with Senior Counsel for the Commissioner the effect of imposing the restrictions in 1(a), (c) and (d) on the employment of four of the defendants. Further, an issue was raised on behalf of Mr Brittliffe that the restrictions on associating with another member of the Nomads would prevent his being able to have contact with his father who was also a member of the Club. Mr Brittliffe had said that his father was diagnosed with cancer and that he visited his father at his residence at least twice a week to check on his health.

78. The parties were given leave to submit revised proposed restrictions and prohibitions, and both parties availed themselves of that leave.

79. The Commissioner proposed the following revised conditions:

Restrictions

1.   The first, second, third, fourth and fifth defendants are restricted from:

a.   Subject to paragraph 1b below, approaching, contacting or associating directly or indirectly with any member, nominee 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, email 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.   Paragraph 1a does not apply to the first and second defendants associating with members of their immediate family members, ie, a parent or sibling.

c.   Attending any licenced hotels, pubs, clubs and bars in New South Wales.

d.   Subject to paragraph 1e below travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency.

e.   The first, third, fourth and fifth defendants are permitted to travel at night solely for the purpose of driving or being driven to or from lawful employment when rostered to perform lawful employment at night provided that they:

i.    provide a copy of any work roster to a nominated police officer, prior to the journey, and at the earliest opportunity after such roster becomes available and;

ii.    have in their possession when travelling at night a copy of such roster and;

iii.    travel to and from the lawful employment only by the most direct available.

f.   Attending or approaching any of the following premises:

i.   Any premises suspected by the defendant to be resided in by any member of the Nomads OMCG, or a member of any other OMCG subject to 1b;

ii.   Any premises suspected by the defendant to be frequented by a member of any 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 or having access to an encrypted application/media application (including but not limited to: What’s app, wikr, snap chat, 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.   Wearing or displaying any Nomads 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, subject to 2d.

d.   Condition 2c does not prevent the displaying of existing permanent tattoos to the body of the defendant.

Condition regarding social media and the Internet

3.   Each of the first, second, third, fourth and fifth defendants is 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 lnternet. 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.

93. The defendants submitted completely redrafted restrictions and prohibitions as follows:

Suggested Restrictions and Prohibitions in the Event of Orders being Considered Appropriate

The first, second, third, fourth and fifth defendants are restricted from:

1.   Intentionally approaching, contacting or associating directly or indirectly with any member of the Nomads or another motor cycle club (described the Commissioner as an Outlaw Motor Cycle Gang). Except where:

(a)   the other person is a relative; or

(b)   the other person is an employee at the same place of work as the defendant and the contact is necessary solely for employment purposes.

2.   Attending any licenced hotels, clubs or bars in NSW whilst wearing Nomads insignia or patches on clothing.

Prohibitions

1.   Possessing any weapon, including a firearm.

2.   Wearing on clothing any Nomads insignia, patches or accoutrements in a public place.

94. In respect of prohibition 2 put forward by the defendants, I note that submissions were made against the Commissioner’s proposed restrictions about wearing Nomads insignia. However, the defendants now appear to have accepted that that condition is a reasonable one.

95. I am satisfied that the first, second, fourth and fifth defendants are office holders in the Nomads and exercise to a greater or lesser extent, influence and control over members of the Nomads. Whilst the third defendant is not an office holder, I am satisfied that it is appropriate to make a similar order against him by reason of his demonstrated past involvement with other Nomads members in acts of violence and by reason of his membership alone of the Nomads, which I have already concluded means that he ought reasonably to know that his participation in the Nomads contributes to the occurrence of criminal activity.

96. I accept the Commissioner’s submission that the most effective way of restricting or disrupting involvement of the defendants in serious crime related activities is to prevent them associating with one another and from contacting one another. I consider that the amended restrictions contained in paragraph 1(a), (b), (d), (e) and (f) of the Commissioner’s proposed revised conditions are more likely to be effective than condition 1 proposed by the defendants.

97. I accept also that, because a number of the acts of violence identified that appear to be related to the conflicts between the Nomads and the Finks have happened at night and with the use of motor vehicles including, perhaps, motorbikes, the restriction in paragraph 1(d) is reasonable.

98. On the other hand, I do not accept that the restriction proposed in paragraph 1(c) is reasonable given the prohibition on the defendants associating or contacting in any way members of any OMCG. Condition 1(c) was put forward because of orders which have been obtained preventing the use of the Nomads clubhouse. It was submitted that the Nomads have resorted to congregating in hotels or clubs or bars since that time.

99. Any order made under the CSCPO Act is a serious restriction on a person’s liberty given that proof is only required to the civil standard of commission of particular criminal offences. In my opinion, there would need to be strong justification for the extra restriction proposed in condition 1(c). Condition 1(a) achieves the purpose of preventing members meeting anywhere. The starting point must be that the only conditions that should be imposed are those which are necessary, rather than simply desirable, to protect the public by preventing, restricting or disrupting involvement by the defendants in serious crime related activities.

100. The Commissioner no longer seeks a prohibition in this order relating to the possession of weapons and firearms. That appears to be because it is accepted that there are certain orders in place in relation to weapons and that recent searches of some of the defendants’ homes have not uncovered any weapons.

101. With regard to the prohibitions in paragraph 2, it should first be accepted that there was no evidence that the defendants were using encrypted communications devices. However, it is a reasonable inference that telephones have been the likely means of communication amongst the defendants. For that reason it is reasonable to impose a restriction that each defendant should not possess more than one mobile telephone so that, if necessary, the communications made using it can be inspected if necessary. That in turn makes it necessary to restrict the defendants from using any form of encrypted communication, whether a Blackberry or some application on an ordinary mobile phone. It is also reasonable that the number for the single mobile phone owned by each defendant should be notified to the police.

102. On the other hand, the proposed restrictions in paragraph 3 dealing with computers do not appear to me to be 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. This condition was not originally proposed by the Commissioner.

103. Finally, the condition preventing the wearing or displaying of Nomads OMCG insignia appears to me to be a reasonable one for minimising the risk of individual altercations in the event that there was inadvertent meeting between one of the defendants and a member of the Finks or other OMCG. I note that the defendants appear to accept that this condition is reasonable.

104. I consider that the other conditions are reasonable in that they take into account the defendants’ employment and family situations.

105. I have given careful consideration to the length of the order although no submissions were made by either side about this aspect. In the original summons filed by the Commissioner the orders were sought for six months. In the amended summons the orders were sought for 12 months. 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.

106. 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 or 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.

107. The first defendant, as has been noted, has been charged with intimidation and using a carriage service to menace. His trial on those charges has not yet taken place. If he is convicted he will be required to be sentenced. The third, fourth and fifth defendants have filed appeals against their sentences for affray. Those matters will come before the District Court in due course.

108. 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 orders 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 orders. Otherwise the present orders should only act to the extent that they are not inconsistent with any sentence imposed.

Conclusion

109. 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.   Subject to paragraph 1b below, approaching, contacting or associating directly or indirectly with any member, nominee 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, email 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.   Paragraph 1a does not apply to the first and second defendants associating with members of their immediate family members, ie, a parent or sibling.

c.   Subject to paragraph 1d below travelling in any vehicle between the hours of 9pm to 6am except in the case of a genuine medical emergency.

d.   The first, third, fourth and fifth defendants are permitted to travel at night solely for the purpose of driving or being driven to or from lawful employment when rostered to perform lawful employment at night provided that they:

i.    provide a copy of any work roster to a nominated police officer, prior to the journey, and at the earliest opportunity after such roster becomes available and;

ii.    have in their possession when travelling at night a copy of such roster and;

iii.   travel to and from the lawful employment only by the most direct available.

e.   Attending or approaching any of the following premises:

i.   Any premises suspected by the defendant to be resided in by any member of the Nomads OMCG, or a member of any other OMCG subject to 1b;

ii.   Any premises suspected by the defendant to be frequented by a member of any 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 or having access to an encrypted application/media application (including but not limited to: What’s app, wikr, snap chat, 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.   Wearing or displaying any Nomads 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, subject to 2d.

d.   Condition 2c 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.

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Decision last updated: 30 April 2018