Moefili v State Parole Authority

[2009] NSWSC 1146

Reported Decision: 76 NSWLR 555

New South Wales

Supreme Court

CITATION:	MOEFILI v STATE PAROLE AUTHORITY & ANOR [2009] NSWSC 1146 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Tuesday 27 October 2009
JUDGMENT DATE :	29 October 2009
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	The summons is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW - whether parole conditions imposing non-association and place restrictions on parolee should be set aside - whether the term "outlaw motorcycle gang" was so uncertain as to be ultra vires - the phrase "specified person" in s 128A of the Crimes (Administration of Sentences) Act extends to the plural - "specified persons" need not be named but can be described by membership of an organisation or class - however, conditions attached to parole should be reasonably precise in order for an offender to understand the requirements they impose - the term "outlaw motorcycle gang" is in current usage and it could be inferred from the evidence that the parolee understood its meaning - no uncertainty or ambiguity found - summons dismissed
LEGISLATION CITED:	Adoption Act 1955 Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Felons (Civil Proceedings) Act 1981 Interpretation Act 1987 Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001
CASES CITED:	A v B [1969] NZLR 534 Cann’s Pty Limited v Commonwealth (1946) 71 CLR 210 Coco v The Queen (1993-1994) 197 CLR 427 DCU v State Parole Authority of New South Wales [2006] NSWSC 526 King Gee Clothing Co Pty Limited v Commonwealth (1945) 71 CLR 184 McCallum v Parole Board [2003] NSWCCA 294 Power v The Queen (1973) 131 CLR 623 Regina v Bugmy [2004] NSWCCA 258 Regina v JJS [2005] NSWCCA 225 Regina v Simpson (2001) 53 NSWLR 704 White v State Parole Authority of NSW [2007] SWSC 299
PARTIES:	Eric MOEFILI v STATE PAROLE AUTHORITY & ANOR
FILE NUMBER(S):	SC 30099 OF 2009
COUNSEL:	P: S Beckett 1D: Submitting appearance 2D: D T Kell
SOLICITORS:	P: S E O'Connor 1D: I V Knight 2D: I V Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

HALL J

THURSDAY 29 OCTOBER 2009

No 30099 of 2009

ERIC MOEFILI v PAROLE AUTHORITY OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff commenced proceedings by way of summons filed on 15 October 2009 in respect of a decision by the Parole Authority of New South Wales (the “Authority”) to impose two parole conditions identified in the summons as conditions 37 and 38.

2 The plaintiff seeks an order that the decision of the Authority of 30 July 2009 imposing the conditions be set aside. In addition, the plaintiff seeks an order that the decision of the Authority to revoke his parole be set aside. An order is also sought setting aside a decision by the Authority on 9 October 2009 not to rescind the abovementioned conditions.

3 On 16 October 2009, this Court (Kirby J) made an order granting leave to the plaintiff to proceed under s.4 of the Felons (Civil Proceedings) Act 1981.

4 On 23 October 2009, the Authority, as first defendant, submitted to orders of the Court, save as to costs.

5 In support of the summons for relief, the plaintiff relied upon the affidavit of Aaron Dickens Debattista, solicitor, affirmed on 15 September 2009. The affidavit establishes the following matters:-

(1) On 6 May 2009, the plaintiff was sentenced for a number of offences at Bankstown Local Court. He received partially concurrent sentences, some of which have expired.

(2) The relevant non-parole period in respect of the sentences imposed expired on 1 August 2009 and all sentences imposed on 6 May 2009 were to expire on 28 October 2009.

(3) One of the offences for which the plaintiff was sentenced was an offence of assault occasioning actual bodily harm contrary to s.59(1) of the Crimes Act 1900, a serious indictable offence.

(4) On 30 July 2009, the Authority added the two conditions to which reference has been made above. The terms of those conditions are set out in paragraph [6] below.

6 The decision of the Authority was made on 30 July 2009 pursuant to the Crimes (Administration of Sentences) Act 1999. The result of the decision was an amendment to the terms and conditions of a parole order. The terms of the order, as notified to the plaintiff, were as follows:-

“TAKE NOTICE that the Parole Authority at its meeting of 30 July 2009 after consideration of the case of the abovementioned offender, pursuant to the provisions of the Crimes (Administration of Sentences) Act 1999, ordered that the terms and conditions relating to the court based parole order dated 6 May 2009 to which the offender is subject shall, as from the date of this order, be amended in the following manner:-
By adding State Parole Authority conditions 37 and 38 which read as follows:-
Other conditions
2. The offender must not associate with any member of any outlaw motorcycle gang .
3. The offender must not frequent or visit any club, house or place where members of outlaw motorcycle gangs gather .”

7 The above emboldening of the expressions used in the disputed conditions has been added for the purpose of highlighting their significance as the issue in these proceedings essentially turns on them.

8 On 5 August 2009, a Breach of Parole report was made to the Authority alleging that the plaintiff was in breach of the above two conditions. The report stated:-

“On 5 August 2009, this Service received information from Police regarding the parolee. Police indicated that on 2 August 2009 at 12.30 am, they attended an establishment known to be frequented by outlaw motorcycle gangs following a call-out regarding a public disturbance. Further, Police advised that Mr Moefili was identified as being in the company of known outlaw motorcycle gang members.”

9 The report recommended that the plaintiff’s parole be revoked upon the basis of his failure to abide by the conditions of his parole.

10 On 18 August 2009, the plaintiff was provided with a “Notice to Inmate of Review by the Authority”. The Notice advised that the Authority, at its meeting of 7 August 2009, made an order for the revocation of the plaintiff’s parole to date from 2 August 2009.

11 The Notice advised that the Authority would reconvene on Friday 11 September 2009 at 9.30 am “… in order to reconsider the revocation of your parole”.

12 The plaintiff was advised by the Notice that it was open to him to make submissions to the Authority with respect to the revocation of the parole order.

13 On 11 September 2009, the Authority convened. The plaintiff was present before the Authority via video link-up. He was represented by his solicitor, Mr Spohr.

14 The plaintiff’s solicitor, Mr Spohr, stated, inter alia:-

“… the short version is that, in my submission, the terms set out on the parole that are alleged to have been breached call upon a condition or a condition unknown to law, that is, outlaw motorcycle gangs. So that is point one. In my submission, it is a concept unknown to law and, on that basis, would have been void for uncertainty if it had been reviewed. But more to the point, Mr Moefili denies any part of the allegation levelled in the breach report; that is to say that the location where he was was not as described and the people he was with were not as described …”

15 The chairperson, identified as “Judge Christie”, is then recorded as saying:-

“You may assume that we don’t accept that submission.”

16 It is unclear as to whether this statement referred to the submission as a whole or to the last assertion made in it.

17 Later in the proceedings, Mr Spohr observed that the phrase “outlaw motorcycle gang members” was not a “term” in any statute. He added:-

“… It is not the case, in my submission, that a person could know with any reasonable degree of certainty whether or not they were at some place known as, for example, a clubhouse if the term itself, that is, ‘outlaw motorcycle gang’, is so uncertain and on that basis …”

18 The transcript then records that the chairperson interrupted and stated (at transcript, pp.2-3):-

“I don’t perceive it is uncertain in the slightest degree myself, won’t hear you further on the matter. If you wish to … (not transcribable) … it elsewhere, please do but the Authority have no difficulty understanding the legislation, we didn’t write it, but we are here to enforce it. Now if you wish to contest the breach, I’ll give you a date but we won’t be able to contest the breach in the absence of the Probation & Parole Service today.”

19 On 30 September 2009, Mr Will Hutchins, Senior Solicitor, Prisoners’ Legal Service, wrote a letter addressed to the Secretary of the Authority setting out submissions. In it, he stated:-

“Conditions 37 and 38, which provide that Mr Moefili not associate with any member of any outlaw motorcycle gang, or frequent or visit any clubhouse or house where members of any outlaw motorcycle gangs gather, go beyond what is authorised by the Act. Section 128A is limited to specified persons and does not provide for the imposition of conditions for non-association with particular groups.
In addition, the outlaw motorcycle gangs themselves are not specified, nor does the expression have any legal definition by which they can be identified. This imprecision makes it impossible to comply with the conditions.”

20 In the letter, Mr Hutchins noted that the matter had been listed for “a disputed revocation of parole hearing” on 9 October 2009. He requested urgent consideration be given to his submission and that the conditions be deleted from his client’s parole order and that he be released on parole.

21 On 1 October 2009, the Director and Secretary of the Authority replied to Mr Hutchins’ letter in which it was advised that the Authority had been notified that the matter had been referred to the Crown Solicitor’s Office and that such advice was requested to be made available as soon as possible before the Review Hearing to take place on 9 October 2009.

22 On 9 October 2009, the hearing continued before the Authority. The plaintiff was represented at the resumed hearing by Mr Hoyles. The Authority received a four-page document entitled “Covering Summary Report for the Parole Authority for Eric Moefili” prepared by Sergeant Michael Bourke of the New South Wales Police Service on 29 September 2009.

23 In addition, the Authority heard oral evidence from Sergeant Bourke and from Ms Cleary of the Probation & Parole Service.

24 The evidence of Sergeant Bourke established that, at 12.30 am on Sunday 2 August 2009, police were called to a brawl at the Pink Pepper Lounge. Those premises were known by Sergeant Bourke as being licensed premises often frequented by members of outlaw motorcycle gangs (OMCG), in particular, the Parramatta Chapter of the Bandidos OMCG. The evidence was that police had been called to the premises many times before in relation to brawls and other incidents involving members of the Bandidos OMCG.

25 Sergeant Bourke’s evidence concerning the events of 2 August 2009 was that he observed about 12 people fleeing the area through a rear car park. Sergeant Bourke reported that these people were of similar appearance to members of the Bandidos OMCG who allegedly frequented the Club.

26 Sergeant Bourke and another officer approached the plaintiff. The plaintiff is said to have outstretched his arms as though to block the access to the Club and said “Can I help you officers?”. Sergeant Bourke’s companion, Inspector Wiggins, asked the plaintiff if he was the proprietor of the Club. The plaintiff replied that he was not. Inspector Wiggins then said, “Then, no, you can’t help us”.

27 Sergeant Bourke inspected the inside of the Club. A number of males were seen leaving the premises as police entered. Several staff members were cleaning up broken glass and spilt drinks. Some of the staff appeared to be shaken, upset and distressed.

28 The plaintiff’s brother, John, was observed to be present inside the Club.

29 After exiting the Club, Sergeant Bourke and Inspector Wiggins observed the plaintiff standing on the street corner near the entrance to the car park, together with Mr Jouayd, the plaintiff’s brother, John, and six other males. Sergeant Bourke approached them and gave them a “move on” direction to leave the area. The plaintiff, together with Mr Jouayd and a further male began to walk away from the area south along Wentworth Street. They then met up with the plaintiff’s brother, John, and the rest of the group and then walked out of view.

30 A short time later, the plaintiff, Mr Jouayd and another male returned to the area. They approached a black BMW station wagon. In response to a question from Inspector Wiggins, Mr Jouayd indicated that the vehicle was his. Mr Jouayd then drove the vehicle from the scene with the plaintiff sitting in the rear left passenger seat and the other male sitting in the front passenger seat.

31 The relevant parts of Sergeant Bourke’s report are as follows:-

“I am aware from past experience that the Pink Pepper Lounge is a licensed premises often frequented by members of Outlaw Motor Cycle Gangs (OMCG). In particular, he Parramatta Chapter of the Bandidos OMCG.
Upon arrival at the Pink Pepper Lounge on the above date, I observed Eric MOEFILI waling away from the entrance of the club …
At the time Eric MOEFILI was in the company of two other males. I know one of these males to be Mostafa JOUAYD. It is my information that JOUAYD is the President of the Parramatta Chapter of the Bandidos OMCG …
A short time later Inspector WIGGINS and I exited the club and observed Eric MOEFILI, John MOEFILI, Mostafa JOUAYD, and about (6) other males standing on the corner of Wentworth Street and the entrance to the multi story [sic] car park …
JOUAYD drove his vehicle from the scene with MOEFILI sitting in the rear left passenger seat, and the unknown male in the front passenger seat.”

32 In the written submissions for the plaintiff, it was stated that it was not disputed at the hearing that the plaintiff went to licensed premises known as the Pink Pepper Lounge at Parramatta where he had a drink with friends and relatives. The police officer was asked in evidence how he knew that the Pink Pepper Lounge was frequented by members of outlaw motorcycle gangs and replied:-

“… the police have been there many times in relation to brawls and other incidents where people identify themselves as members of the Bandidos from the Parramatta Chapter.
Q. – do they come up to you and say, ‘I’m a member of a motorcycle gang’?
A. If we speak to them they identify they are from the Bandidos of Parramatta which in know is an outlaw motorcycle gang.
Q. What is your definition of an outlaw motorcycle gang?
A. Well it is a group of people that identify themselves as one percent of the population that don’t abide by anyone’s rules hence their one percent patches.”

33 Ms Cleary of the Authority who signed the breach of parole report dated 5 August 2009 gave brief evidence confirming that her knowledge of the events on the night of 2 August 2009 was restricted to the information that had been provided to her by police.

34 On behalf of the plaintiff, evidence was called from Mr Aliagas who was said to have been present on the night in question with the plaintiff. The plaintiff did not give evidence.

35 Mr Aliagas gave evidence to the effect that, on the night of his release from parole, the plaintiff had gone out with him and some other persons to the Pink Pepper Lounge in order to attend the 21st birthday celebration of the plaintiff’s (female) cousin before intending to go to the Albion Hotel in Parramatta. The evidence of Mr Aliagas was that, whilst sitting in the Club, a group of persons with whom he was sitting, including the plaintiff, were approached by some other persons in a threatening manner. The plaintiff did not, however, speak to them and the plaintiff’s brother, John, told them to go away.

36 Mr Aliagas said that he later left the premises together with the plaintiff and then got into separate cars and went to the Albion Hotel.

37 In response to a question from an Authority member, Mr Aliagas gave evidence to the effect that he did not know Mr Mostafa Jouayd. Accordingly, he did not know if the plaintiff was present with that person later at the Albion Hotel.

38 After an adjournment, the Authority resumed. The chairperson delivered reasons and ordered that the revocation of 7 August 2009 stand. Reference was made in the Authority’s reasons to the evidence that the plaintiff had left the Pink Pepper Lounge with Mr Jouayd in a car. The Authority also referred to the significant absence of evidence from the plaintiff, from his brother, John, or Mr Jouayd. The Authority stated that it was satisfied that the plaintiff was associating with members of an outlaw motorcycle gang and that the revocation ought to stand for the reasons stated.

39 Following affirmation of the revocation order, the plaintiff’s sentence will presently expire on 4 November 2009.

Statutory provisions

40 The Authority is constituted under s.183 of the Crimes (Administration of Sentences) Act. Its functions include the determination of matters with respect to the granting of parole and the conditions on which parole is granted: s.185(1)(a). It is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate: clause 11(4), Schedule 1, Crimes (Administration of Sentences) Act.

41 The Authority consists of at least four judicial members, at least one police officer, at least one officer of the Probation & Parole Service and at least 10 community members who should reflect, as closely as possible, the composition of the community at large: s.183(2) of the Act.

42 A sentencing court may determine a non-parole period which represents the minimum period for which an offender must be held in custody for an offence. The Authority has the authority to release an offender conditionally from confinement in accordance with the sentence imposed upon him. The full sentence of imprisonment stands and during its term the prisoner is simply released upon conditional parole: Power v The Queen (1973) 131 CLR 623 at 627- 628; Regina v Simpson (2001) 53 NSWLR 704 at 716-717, [55]-[58].

43 The granting of parole by a parole authority has been held to be a privilege and not a right: McCallum v Parole Board [2003] NSWCCA 294 at [28]. See also DCU v State Parole Authority of New South Wales [2006] NSWSC 526 per Johnson J at [14].

44 Pursuant to s.185(1) of the Act, the functions of the Authority include:-

“(a) To determine matters with respect to the granting of parole and the conditions on which parole is granted.
(b) To determine matters with respect to the revocation of … parole orders.”

45 Section 128 of the Act is entitled “Conditions of parole generally” and provides:-

“(1) A parole order is subject to the following conditions:-
(a) the standard conditions imposed by this Act or the Regulations,
(b) any additional conditions imposed by the sentencing court (including any conditions that are, under s.51(1AA) of the Crimes (Sentencing Procedure) Act 1999, taken to be included in the order),
(c) any additional conditions imposed by the Parole Authority under this section.
(2) The Parole Authority may from time to time, by written notice given to the offender:-
(a) impose additional conditions on a parole order, or
(b) vary or revoke any additional conditions imposed by it or by the sentencing court on a parole order.

(2A) The conditions of a parole order must include conditions giving effect to a post-release plan, prepared by the Probation & Parole Service and adopted by the Parole Authority, in relation to the offender.
(3) Without limiting subsection (2A), but subject to s.125B, the conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations, during the period specified by or under the order or the regulations.
(4) This section does not permit the Parole Authority:-
(a) to revoke any standard conditions imposed by this Act or the regulations, or
(b) to impose any additional conditions, or vary any additional conditions imposed by it or by the sentencing court, so as to be inconsistent with any standard conditions imposed by this Act or the regulations.”

46 Section 128A of the Act is of particular importance in the present proceedings. It is entitled “Conditions of parole as to non-association and place restrictions” and provides:-

“128A Conditions of parole as to non-association and place restriction
(1) The conditions to which a parole order is subject may include either or both of the following:
(a) provisions prohibiting or restricting the offender from associating with a specified person ,
(b) provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district .
(2) A condition referred to in subsection (1)(a) or (b) is suspended:-
(a) while the offender is in lawful custody (otherwise than while unescorted as referred to in s.38(2)(a)), and
(b) while the offender is under the immediate supervision of a public servant employed within the Department of Juvenile Justice pursuant to a condition of leave imposed under s.24 of the Children (Detention Centres) Act 1987 .
(3) An offender does not contravene a prohibition or restriction as to his or her association with a specified person:-
(a) if the offender does so in compliance with an order of a court, or
(b) if, having associated with the person unintentionally, the offender immediately terminates the association.
…” (emphasis added)

Submissions

47 Mr S A Beckett, of counsel for the plaintiff, provided an outline of written submissions filed on 22 October 2009.

48 Dr D T Kell, of counsel for the second defendant, the Attorney General of New South Wales, provided an outline of written submissions on behalf of the second defendant.

49 I record my appreciation to counsel for their diligence in providing their well-analysed and constructed submissions.

Submissions for the plaintiff

50 Mr Beckett stated that the principal issue for determination was whether the term “outlaw motorcycle gang” was uncertain so as to cause the power of the Authority to impose the conditions in question on a parolee to be ultra vires.

51 He submitted that, if the conditions are, in fact, ultra vires, then the purported revocation of the plaintiff’s parole must be without foundation and should be set aside and, if necessary, the decision not to rescind the revocation of the parole order should also be set aside. If the plaintiff was successful to that extent, then he would be entitled to be released pursuant to the parole order made on 6 May 2009 at Bankstown Local Court which required his release on 1 August 2009.

52 Mr Beckett analysed in some detail the legislative scheme to be found in the Act. As he has observed, the power in question to impose the additional conditions arises under the provisions of s.128(1)(c) and s.128(2)(a) and/or (b).

53 Mr Beckett observed that in White v State Parole Authority of NSW [2007] NSWSC 299, Harrison AsJ at [43] held that s.128A should be read so as not to limit the broad terms of s.128. He did not seek to re-open that argument in these proceedings.

54 In the written outline of submissions for the plaintiff, it was submitted that it was apparent from the transcript and the police officer’s report that the term “outlaw motorcycle gang” was police shorthand for a particular entity. The submission was that, except for the police officer’s assertion, there was no evidence before the Authority that the Bandidos were at the relevant time an “outlaw motorcycle gang” or that they “don’t abide by any one rules” (even presuming that that was the relevant test). Further, it was submitted that, nonetheless, the Authority accepted that “Mustapha Juwaid or Juwaid Mustapha is known to the Police as the President of the Parramatta Chapter of the Bandidos Outlaw Motorcycle Gang”.

55 It was further contended for the plaintiff that it was apparent that the police who attended the scene did not directly know that any person with the plaintiff was, in fact, a member of the Bandidos but had obtained that information from “police sources” which were undisclosed.

56 It was observed that by force of s.129 of the Act, the offender is required to comply with the requirements of any conditions to which the offender’s parole order is subject.

57 Mr Beckett contended that the nature of the Authority’s condition-making power under s.128(1)(c) of the Act is a form of delegated legislation in the sense that Parliament has entrusted to the Authority the ability to impose additional parole conditions upon persons released into the community on parole. The submission was that the Authority may then exercise that power “within the terms and limits of that power as set out in s.128” (Outline of Submissions, paragraph 26).

58 It was argued that what was described as the administrative power exercised by the Authority was “legislative” in the sense that the Authority may make a normative rule which the parolee must abide by. Hence, the power is subject to the relevant law that applies to the making of such rules, instruments and (delegated) legislation made under the exercise of statutorily granted power.

59 It was further argued for the plaintiff that the additional parole conditions made by the Authority on 30 July 2009 were “ultra vires” because they prohibited conduct which “… was so uncertain as to be invalid. As such, the imposition of the conditions was not a true exercise of the condition-making power in s.128 …” (Plaintiff’s outline of submissions, paragraph 27).

60 Reliance was placed upon the judgment of Dixon J in King Gee Clothing Co Pty Limited v Commonwealth (1945) 71 CLR 184 at 194 affirmed in Cann’s Pty Limited v Commonwealth (1946) 71 CLR 210, both cases being concerned with whether a price fixing formula prescribed by a Commissioner under a statutory power was so uncertain that the setting of the price depended on differing views of the essential factors used to make the relevant calculation.

61 Reliance was also placed upon an extract from Delegated legislation in Australia (3rd ed) at 22.4 by Professor D C Pearce:-

“In (Dixon J’s) opinion such a provision was not bad for uncertainty, but bad because it did not amount to a true exercise of the regulation-making power. In short, uncertainty as to meaning will not invalidate a regulation, but uncertainty as to the conduct which is prohibited after meaning has been placed upon the regulation will constitute invalidity.” (emphasis added)

62 Mr Beckett also submitted that (Plaintiff’s outline of submissions):-

“31. The need for clarity in the setting of parole conditions is perhaps most clearly governed by the effect of the condition. Each condition prohibits or restricts certain activities which a parolee may do on release from prison. The effect of a breach is drastic. The parolee loses his or her right to parole and is returned to prison to serve the remainder of the sentence imposed. To that extent, the parole condition has a direct impact upon the person’s liberty.”

63 In support of the submission, reliance was placed upon the well-known statements of principle as to the impact of legislation upon the fundamental rights or liberty of the person and that such must be “clearly manifested by unmistakable and unambiguous language”: Coco v The Queen (1993-1994) 197 CLR 427 at 437 per Mason CJ.

64 Mr Beckett observed in his written submissions that both of the disputed questions imposed by the Authority on 30 July 2009 rely on the term “outlaw motorcycle gang”. He contended that that expression was unclear and, on that basis, both conditions were invalid.

65 In developing the submissions, reference was made to a number of dictionary definitions of the term “outlaw”. It was argued that that word at law designated a status that has long since been abandoned. Accordingly, it was contended that it was inherently unlikely that, what was described as the ancient definition of “outlaw”, was one that would govern the interpretation of the term today.

66 Reference was made to evidence given by Sergeant Bourke at the reconsideration hearing before the Authority in which he stated that the expression “outlaw motorcycle gang” meant “(A) group of people that identify themselves as one percent of the population that don’t abide by anyone’s rules, hence their one percent patches” (transcript, 7.2-4). He added in answer to a further question that this last reference was to a person who identified themselves as not following anyone’s rules.

67 Mr Beckett submitted that that interpretation or meaning is not one that could be ascribed to it, principally because it did not naturally arise from the word “outlaw”. It appeared to be an expression, he submitted, which was a shorthand reference used by New South Wales Police. He added that compounding the confusion, the police officer said the term was applied to groups of people who do not necessarily ride motorcycles, even though the group may have done so “in the old days” (transcript, p.7).

68 Mr Beckett suggested in his submissions a number of possible interpretations of “outlaw motorcycle gang”. He contended that such interpretations were unsatisfactory for the reasons elaborated upon in the written submissions. Accordingly, the above expression, he submitted, was “uncertain at law”. Such uncertainty, it was argued, indicated that the Authority had exceeded its jurisdiction and the additional parole conditions imposed on 30 July 2009 were ultra vires.

Submissions for the second defendant (Attorney General of NSW)

69 Dr Kell relied upon his written outline of submissions dated 23 October 2009 supplemented by oral submissions made at the hearing of the summons.

70 Dr Kell accepted that an additional condition of parole imposed by the Authority could ultimately be held by the Court to be invalid if it was too uncertain (written submissions, paragraph 43). In that respect, such a condition would be regarded as not being one for a purpose contemplated by s.128 and s.128A of the Act.

71 It was contended on behalf of the Attorney General that the expression “outlaw motorcycle gang” was not an uncertain one, but one that in fact had or conveyed a relevant meaning in ordinary usage. The submission was that organisations referred to as the Bandidos and others such as Hells Angels, The Rebels and The Nomads were “… each properly regarded as an outlaw motorcycle gang within the ordinary understanding of the term. The Authority properly acted upon such ordinary understanding in a manner in which it approached the conditions: Written submissions, paragraph 46.

72 Dr Kell provided a number of references to decisions of the Court of Criminal Appeal, the Supreme Court and other Australian courts and tribunals in which the expression “outlaw motorcycle gangs” appears. It was submitted that the expression contemplates “… those biker groups that regard themselves as the ‘precentors’. Members of those groups typically, but not invariably, (who) wear identifiable uniforms (colours) and display the ‘1% patches’”: Written submissions, paragraph 49.

73 Dr Kell contended that the expression “outlaw motorcycle gang” was neither a term of art nor a matter of a statutory definition and that it did not need to be either. He referred, in this respect and by way of illustration, to the expression “the Harness and Racing Industry” in the relevant condition that was upheld in White (supra). It was sufficient, so the submission went, that the expression was reasonably capable of being understood.

74 I have set out in a schedule at the end of this judgment, the references referred to in the Attorney General’s written submissions which are said to illustrate the usage by judges in a number of cases to which I have referred in paragraph [72] above (not involving parole conditions) in which the expression or similar expressions to that in question in the present case had been utilised.

75 Dr Kell placed some emphasis upon the provisions of s.128A(3) of the Act and contended that a condition as to non-association imposed by the Authority should be read in conjunction with it. That subsection has been set out in paragraph [46].

76 Finally, it was contended that the expression “specified person” in s.128 includes the plural (specified persons) as well as the singular: s.8(2) of the Interpretation Act 1987. It was also contended that, specificity as contemplated by s.128A(3) (and s.128A(1)(a) and (b)) was a question of degree. The contention was that it did not require that a person or persons be identified expressly by name in the relevant condition and that the expression in question employed in the non-association condition was properly to be regarded as a reference to specified persons.

77 As earlier noted, s.128A(3) was relied upon in the construction of s.128A(1). In enacting that provision, the evident intention of the legislature was said to be to provide the means by which an offender is not taken to have breached a condition when he or she unintentionally associated with a specified person and upon becoming aware of the matter, terminated the association. In other words, s.128A(3) was said to operate to lessen what might otherwise be regarded as a potentially oppressive aspect of a non-association condition.

78 The statutory framework, accordingly, within which one is required to approach the non-association condition, it was submitted, included s.128A(3) and the statutory protection which it afforded to an offender. The existence of that provision supported the validity of the condition.

79 Finally, it was contended that the plaintiff had failed to establish that either of the additional conditions were invalid on the grounds of uncertainty.

Consideration

80 The provisions of s.128A were introduced into the Act by the Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001. The effect of this amendment was that “non-association” and “place restriction” conditions could be imposed as parole conditions on persons convicted of offences and as conditions on the grant of bail.

81 The fact, as noted earlier, that the grant of parole has been characterised as a privilege rather than a right does not, in my opinion, in any way diminish the required level of precision in the formulation of a parole condition. A grant of parole to an offender obviously involves the conferring of a significant benefit, namely, the benefit of conditional liberty. The conditions attaching to parole should therefore be expressed in terms that provide a reasonable level of specificity and clarity so that an offender is given a proper opportunity to understand the requirements or restrictions they impose.

82 The fundamental submission for the plaintiff was that, in relation to a requirement that “the offender must not associate with any member of any outlaw motorcycle gang”, there was uncertainty in that there was a failure to identify by the use of such words the persons or class of persons to which the non-association and place restriction conditions applied. The conditions, it was contended, did not impose a restriction in respect of “specified persons” in accordance with the provisions of s.128A(1)(a) of the Act.

83 The phrase “specified person” is a key phrase in s.128A(1). In a completely different context, in A v B [1969] NZLR 534, the New Zealand Supreme Court (Roper J) considered the provisions of s.9(1) of the Adoption Act 1955. The question in that case was whether a consent to an adoption of a child was one made “by any specified person or persons” as required by the section. The names of the adopting parents were not specifically referred to in the form of consent but were referred to in another document. The Court observed:-

“… In my view, persons can be specified without being named, provided they are unambiguously identified, and whichever form of words, as set out above, was used in the consent was sufficient to identify the adopting parents with certainty.”

84 There is very little authority on the power under s.128A of the Act to impose conditions on a parolee as to non-association and place restrictions since the provisions were enacted in 2001. In the course of submissions, I was taken to statements of principle concerning the imposition of conditions on bonds. The principles were recorded by Kirby J in Regina v Bugmy [2004] NSWCCA 258 at [61]. They included the requirement that:-

“… the conditions must each be certain, defining with reasonable precision conduct which is proscribed.”

85 In Regina v JJS [2005] NSWCCA 225, a condition in a good behaviour bond under s.9 of the Crimes (Sentencing Procedure) Act 1999 was held to be lacking precision in defining proscribed conduct. The condition was in the following terms:-

“(vii) He was not to have unsupervised contact with children under the age of 12 years.”

86 In that case, Studdert J (with whom James and Howie JJ agreed) stated:-

“It is desirable that a court when imposing conditions of a bond do so in terms which define with reasonable precision the ambit of the forbidden conduct: see Bugmy … at para 6 … It seems to me that the condition concerning unsupervised conduct does offend the second of the principles to which Kirby J referred in the above passage. There was no definition as to what constituted supervision nor was contact defined. There was a lack of precision in defining precisely what conduct was prescribed.”

87 It is to be noted that in Bugmy (supra) and JJS (supra), the condition in question concerned the nature and scope of the conduct to which the conditions in that case referred. In the present case, the uncertainty is said not to lie in the description of prescribed conduct as such, but rather in the phrase “outlaw motorcycle gang” which is the relevant point of reference in terms of “specified person”. Nonetheless, I consider the approach taken in those decisions is instructive for the purposes of examining s.128A(1).

88 The provisions in s.128A(1)(a) of the Act authorise a condition of parole as to non-association prohibiting or restricting an offender from “associating with a specified person”. The following matters arise in the application of those provisions in a case such as the present:-

(1) The expression “specified person” includes both the singular and plural: s.8(2), Interpretation Act . Accordingly, the prohibition or restriction in such a condition operates to prohibit or restrict a parolee from associating with a number of persons or a group of persons.

(2) For a person or persons to fall within the expression “specified person” it is not necessary that he, she or they be referred to by name. A non-association condition, in other words, may identify “a specified person” (or persons) by descriptive terms provided that such terms are sufficiently precise to enable the parolee to know or identify the specified person or persons referred to in the condition.

(3) Accordingly, although persons can be “specified” without being named, whatever form of words are employed, the person or persons referred to in a non-association condition must be capable of being identified with reasonable precision. If there is an ambiguity in the words used, then it is quite likely that the condition may not meet that requirement of reasonable precision.

(4) If there are a number of “specified persons” referred to in a non-association condition, not identified by name but by membership of an organisation or class, then the description of the organisation or class must be stated in sufficiently precise terms so as to enable a parolee to identify the specified persons.

(5) In cases where there is insufficient information known to a parolee as to whether a particular person or persons is or are members of an organisation or class the subject of a non-association condition, unintentional association with any such person or persons will not constitute a contravention of a prohibition or restriction if the terms of s.18A(3)(b) of the Crimes (Administration of Sentences) Act are met.

89 It was not suggested in the submissions for the plaintiff that there were no organisations in the community known as “outlaw motorcycle gangs”. The evidence before the Authority established that such organisations do exist.

90 In relation to the expression “outlaw motorcycle gangs”, it is to be noted that the word “gang” in its ordinary meaning embraces “a band or group of people acting or going about together especially in a shared cause or for disreputable or criminal purposes”: Oxford English Dictionary.

91 Whether or not the word “outlaw” may be seen as a somewhat antiquated one, as Mr Beckett contended, it is nonetheless an English word that carries, inter alia, the meaning of “a lawless person; a professional criminal”: Oxford English Dictionary.

92 It was not suggested (and it is difficult to see how it could have been) that the expression “outlaw motorcycle gangs” has no currency or usage in Australia. The evidence before the Authority indicated that at all material times (including, in particular, the time the additional conditions were imposed), that expression was one in use in the community.

93 The case law references to “outlaw motorcycle gangs” formulated in Dr Kell’s submissions and extracted into the schedule at the end of this judgment confirms such current usage of the expression and, to some extent, what is meant by it.

94 It is not, of course, always necessary that a parole condition employ or include definitional provisions that explain the sense or meaning of an expression in a parole condition in the fashion of definition sections in a statute. That is particularly so where the terms of a condition are reasonably precise in content.

95 That is not to say, however, that uncertainty may not arise if an expression in common usage is employed. No doubt, each case will turn upon its particular facts. In the present case, there is little doubt that the evidence permitted an inference to be drawn concerning the plaintiff’s knowledge and understanding of the existence and nature of outlaw motorcycle gangs.

96 A person’s knowledge of particular facts may, of course, be established by way of inference from his or her conduct, taking into account time, place and circumstance. There was evidence that, on 2 August 2009, the plaintiff was at licensed premises (the Pink Pepper Lounge) which, according to police evidence, was frequented by members of outlaw motor cycle gangs: Report of Sergeant Bourke, Exhibit A. He was seen there in the company, inter alia, of a person identified by police as the President of the Parramatta Chapter of the Bandidos OMCG. A short time later, he entered a car owned and driven by that person.

97 It may be concluded from the evidence that the plaintiff had some form of relationship or association with one or more persons who were members or associates of outlaw motorcycle gangs. His familiarity or association with persons connected to such gangs is of some relevance on the issue of “uncertainty” in the circumstances of this case. It suggests that the phrase “outlaw motorcycle gangs” is one that was sufficiently understood by him.

98 However, that said, it is not, in my view, necessary to rely upon the evidence to which I have just referred to conclude the issue of “uncertainty”. The terms of the disputed conditions are, in my opinion, sufficiently precise for the reasons earlier stated. In my opinion, there is no uncertainty or ambiguity.

99 There is one final observation to be made. It may not be possible with all unincorporated associations to identify all of their members. The same, of course, can be said in relation to “gangs”. Some such associations may not, for example, have formal constitutions or membership lists. Members may, of course, be capable of identification by other means (eg, insignia or clothing). There may be a core of persons who are, by one means or another, readily identifiable as members of such an association. There may, on the other hand, be “grey” areas where membership is doubtful. In relation to the latter, as I have earlier stated, a defence under s.128A(3) may be available depending upon the facts of a particular case where it is contended that unintentional association with a person who is a “specified person” within s.128A(1) has occurred.

100 On 28 October 2009, I made an order dismissing the summons and stated that I would hand down reasons for the making of that order. These are those reasons.

SCHEDULE TO JUDGMENT:
REFERENCE TO MOTORCYCLE GANGS

Generation Pty Limited v Liquor Licensing Court (2009) 83 ALJR 327 at [54] per French CJ:-

“Section 28A was introduced into the Act by the Statutes Amendment (Liquor, Gambling and Security Industries) Act 2005 (SA). In his Second Reading Speech the Attorney-General referred to the infiltration by organised crime of the liquor and hospitality industries and, in particular, a significant level of involvement by outlaw motor cycle gangs . He pointed out that the liquor, gambling and security industries are attractive to and susceptible to infiltration by organised crime. Although this is reflected in regulatory regimes using various tests of fitness and propriety, existing licensing regimes had proved not sufficiently robust to combat infiltration.”

In Stanton v Regina [2008] NSWCCA 326 at [40] per Beazley JA:-

“The offences of which the applicant was convicted arose out of a controlled operation conducted by police into the activities of the Rebels Outlaw Motorcycle Gang , Mid North West Chapter (the Motorcycle Gang). The offences occurred over a one month period, in circumstances where there were drug sales to police undercover operatives.

In Regina v KR and PR [2008[ NSWSC 970 at [34] per Price J:-

“It was also a matter of concern that the present offence was committed about eight months after his release. I have, however, considered the nature and extent of the offender’s assistance to police and the change that assistance will necessarily bring to his life. He will no longer be associated with the Nomads Outlaw Motor Cycle Club and has a strong incentive not to involve himself in the criminal community. I am of the opinion that the offender has good prospects of rehabilitation.

In Regina v Walsh & Little [2005] NSWSC 125 at [17], Howie J said:-

“The offences for which Mr Walsh is to be sentenced arose from his involvement with the Newcastle Chapter of the Nomad Outlaw Motor Cycle Club . He joined that organisation in 1995. Up until this time he had apparently been living as an honest and worthwhile member of the community and carried on a legitimate business as a concreter.”

In State of New South Wales v Heins [2005] NSWCA 258 at [28], Handley JA said:-

“In February 1998 the plaintiff with Detective Sergeant Quinn questioned a suspect regarding a missing elderly lady in Queensland and the plaintiff heard a graphic description from the suspect of how he shot the lady at point blank range and disposed of her body and the murder weapon. In August that year the plaintiff was involved in an investigation into the murder of a member of the Rebel Outlaw Motorcycle gang in a volatile atmosphere and a police search recovered firearms.”

In Regina v Villa [2005] NSWCCA 4 at [49], Dunford J said:-

“He [Det Sgt Walpole] said the police had no suspects. He knew that the appellant was a nominee of the Rebels Outlaw Motorcycle Club and he knew that that club was significantly involved in the supply of drugs in the Queanbeyan area, but he had no reason to believe that the ‘Rebels’ were involved in the house fire.

In Regina v Roberts [2004] NSWSC 514 at [5], Howie J said:-

“The offender comes before the Court as a result of an investigation into two persons who were operating a business of supplying drugs in the Newcastle area in the years immediately prior to September 2001. The principal offender was a man named Walsh, who was the offender’s employer at the time that he committed the offences before the Court. Walsh was also the Sergeant-at-Arms of the local Chapter of the Nomads Outlaw Motorcycle Club of which the offender was also a member.”

In Regina v Georgiou [2000] NSWSC 287 at [5], Dowd J said:-

“The three now deceased and David were members of the Bandido Outlaw Motor Cycle Club , Kulakowski was the National President of the Bandidos Club and Milenkovic held that Club’s position of Sergeant at Arms.

In Regina v Georgiou [1999] NSWCCA 125 at [5], Spigelman CJ said:-

“The Crown case against the co-accused is as follows. Mr Georgiou and Mr Harrison acted in concert from beginning to end. They travelled to the Black Market Café in Mr Georgiou’s Porsche motor vehicle. The deceased were killed by gun shot wounds and Mr David was wounded by gun shot. The shooting took place in a basement of the Café which is not open to the public. A Mr Culshaw, an off-duty doorman employed at the Café and a current member of the Rebels Outlaw Motor Cycle Club , obtained the keys to the basement from the bar attendant.

Note also that in David v Commissioner of Police, NSW Police [2008] NSWADT 223 at [42], the tribunal member (Mr Montgomery) said:-

“Similar sentiments were expressed on the introduction of the Security Industry Amendment Bill into the NSW Legislative Assembly on 19 November 2002 where Mr Gaudry, Parliamentary Secretary on behalf of Mr Iemma, stated:-
‘The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.
It is the view of NSW Police that persons who are known to have extensive links to organised crime figures, who are members of an outlaw motor cycle gang linked to organised crime, or who are suspected of offences relating to drug trafficking, murder or other violence offences, should be regarded as ‘not fit and proper’ to hold a security licence …’”
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29/10/2009	-	Incorrect judgment date on cover sheet - Paragraph(s) Cover sheet
29/10/2009	-	. - Paragraph(s) .