NSW Police Force v Alameddine

[2023] NSWSC 577

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

NSW Police Force v Alameddine [2023] NSWSC 577

Hearing dates:

29-30 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) That the defendant be subject to a serious crime prevention order within s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) on the terms set out in Annexure A, for a period of 12 months

(2)   No order as to costs of the proceedings, such that each party is to bear his or its own costs.

Catchwords:

CRIME – serious crime prevention orders – application – orders made

Legislation Cited:

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW)

Crimes Act 1900 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Cases Cited:

Commissioner of Police NSWPF v Amoun [2020] NSWSC 1810

Commissioner of Police v Alameddine [2020] NSWSC 1919

Commissioner of Police, NSW Police Force v Bazzi [2021] NSWSC 1150

Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606

R v Mee [2004] 2 Cr App R (S) 81

Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; [2019] HCA 38

Category:

Principal judgment

Parties:

NSW Police Force (plaintiff)
Mohamad Alameddine (defendant)

Representation:

Counsel:
K Curry (plaintiff)
M Ayache (defendant)

Solicitors:
Makinson d’Apice Lawyers (plaintiff)
One Group Legal (defendant)

File Number(s):

2022/76907

Publication restriction:

Non-publication and suppression orders made: see [54]

JUDGMENT

Introduction

1. By summons filed 17 March 2022, the Commissioner of Police, New South Wales Police Force (‘the Commissioner’) seeks that Mohamad Alameddine (‘the defendant’) be subject to a serious crime prevention order within the meaning of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (‘SCPO Act’). An order of that kind has been described as a “civil ‘preventative order’”: Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; [2019] HCA 38 at [29].

2. The orders are sought to be imposed against the defendant for a period of 24 months.

3. The Commissioner relied on affidavits from Detective Superintendent of Police Stuart Cadden sworn 3 June 2022 (‘the Cadden 2022 affidavit’) and 18 April 2023 (‘the Cadden 2023 affidavit’). Those affidavits were read, without objection.

The legislative framework and principles: ss 5 and 6 of the SCPO Act

4. The SCPO Act creates a regime for the making of a serious crime prevention order by an appropriate court: ss 5(1) and 6.

The relevant statutory provisions

5. Section 5 relevantly provides:

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. “Serious criminal offence” is defined to have the same meaning as in the Criminal Assets Recovery Act 1990 (NSW): s 3(1) of the SCPO Act.

7. Section 6 of the Criminal Assets Recovery Act relevantly defines “serious crime related activity” to be:

(1)  In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged—

(a)  has been tried, or

(b)  has been tried and acquitted, or

(c)  has been convicted (even if the conviction has been quashed or set aside).

(2)  In this section—

…

serious criminal offence means the following offences—

(a)  the following offences referred to in the Poisons and Therapeutic Goods Act 1966, section 45A, immediately before its repeal—

(i)  the offence of supplying a drug of addiction or prohibited drug,

(ii)  the offence of cultivating, supplying or possessing a prohibited plant,

(iii)  the offence of permitting premises, as owner, occupier or lessee of the premises, to be used for the purpose of the cultivation or supply of a prohibited plant or of being concerned in the management of the premises,

(b)  a drug trafficking offence,

(c)  a prescribed indictable offence, or an indictable offence of a prescribed kind, that is of a similar nature to a drug trafficking offence, including in either case an offence under a law of the Commonwealth, another State or a Territory,

(d)  an offence punishable by imprisonment for 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another person, 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,

(e)  an offence under the Firearms Act 1996, section 50A, 51, 51B, 51BA or 51BB,

(f)  a second or subsequent offence under the Drug Misuse and Trafficking Act 1985, section 36Y,

(g)  an offence under the following provisions of the Crimes Act 1900—

(i)  section 80D or 80E,

(ii)  Part 3, Division 15 or 15A, other than section 91D(1)(b),

(iii)  section 93T or 93TA,

(iv)  section 197, to the extent the offence involves the destruction of or damage to property having a value of more than $500,

(v)  section 308C, to the extent the offence involves the intention of committing an offence referred to in this paragraph or paragraphs (a)–(f),

(vi)  section 308D or 308E,

(h)  an offence under the law of the Commonwealth or a place outside this State, including outside Australia, that, if the offence had been committed in this State, would be an offence referred to in paragraphs (a)–(g),

(i)  an offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, an offence referred to in paragraphs (a)–(h).

8. The phrase ‘serious crime related activity’ is defined to essentially mean “anything done by a person, whether or not the person was charged or convicted, that is, or was at the time, a serious criminal offence”: s 3(1) of the SCPO Act; Vella at [36]. The Act also defines “involved in serious crime related activity”: s 4(1) of the SCPO Act.

9. Section 6 of the SCPO Act provides:

(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.

The key principles: making a serious crime prevention order

10. The principles concerning the imposition of serious crime prevention orders, and the steps required to be considered before a Court may exercise those powers under the SCPO Act were set out by the plurality in Vella at [39]-[54]. There it was stated that there were “six required steps before the court can exercise the power in relation to natural persons”: Vella at [39].

11. Those steps, which are reflected in ss 5(1) and 6 of the SCPO Act, are as follows.

12. First, that it be established that the defendant is at least 18 years of age (s 5(1)(a)). In the present case there is no issue about this: the defendant was born on 12 November 1983, and is currently 39 years of age.

13. Secondly, that it be established that the defendant has either been convicted of a serious criminal offence, or has been involved in ‘serious crime related activity’ (ss 5(1)(b)(i) and (ii)). Here, the Commissioner relies upon the defendant’s past convictions for serious criminal offences (s 5(1)(b)(i)).

14. The evidence established that the defendant has been convicted of a number of offences – which are serious criminal offences for the purposes of the SCPO Act – namely:

1. deal with property the proceeds of crime, less than $100,000 contrary to s 193C of the Crimes Act 1900 (NSW).

2. Possess articles with intent destroy/damage others property, contrary to s 200(1)(a) of the Crimes Act 1900.

3. Drive conveyance taken without consent of owner, contrary to s 154A(1)(b) of the Crimes Act 1900.

4. Aggravated break and enter and commit serious indictable offence in company, contrary to s 112(2) of the Crimes Act 1900.

15. The parties accepted that these offences were within s 6(2)(d) of the Criminal Assets Recovery Act. I am satisfied that the defendant has been convicted of a serious offence for the purposes of s 5(1)(b)(i) of the SCPO Act.

16. Thirdly, the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting or disrupting the person’s involvement in serious crime related activities (s 5(1)(c)). That is, there is a real likelihood – being a real or significant risk – that the defendant will be involved in serious crime related activity: Vella at [43]. This step imposes “a forward-looking requirement”: Vella at [43].

17. In Commissioner of Police NSWPF v Amoun [2020] NSWSC 1810, Garling J emphasised at [41] that this “encompasses not just the actual commission of a serious offence directly by an individual, but also conduct which facilitates another person engaging in serious crime related activity or conduct”. A similar point was made in Commissioner of Police, NSW Police Force v Bazzi [2021] NSWSC 1150 by Bellew J at [15] (‘Bazzi’) – namely:

It is important to emphasise that s 5(1)(c) does not require that I be satisfied that there is a real or significant risk that first defendant will himself commit a serious criminal offence, only that there is a real likelihood that he will be involved in serious crime related activities”. (emphasis in original).

18. The requirement that the Court must be satisfied that there are “reasonable grounds to believe” points to a requirement of “the existence of facts which are sufficient to induce that state of mind in a reasonable person”: the Court must have “reasonable grounds to believe that the making of the order ‘would’ prevent, restrict or disrupt involvement by the person in the serious crime related activities and thus ‘protect the public’ from these public wrongs”: Vella at [44].

19. Fourthly, s 5(1)(c) imposes a requirement that the Court must consider “whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting, or disrupting the person’s involvement in serious crime related activities”: Vella at [47]. The requirement that the order ‘prevent, restrict or disrupt’ includes “a result that is short of entire prevention but which limits the extent of the person’s likely involvement in the serious crime related activities”: Vella at [47].

20. Fifthly, s 6(i) of the SCPO Act constrains the orders that can be made to those 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”. In Vella it was said that this constraint requires “an assessment of future possibilities” (at [50]), and involves a balancing process (at [51]):

The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate.

21. In connection with the length of any order, the Court accepted that the order should be “tailored to the defendant to such a degree as the court feels able when balanced against the risk”: Vella at [52], citing R v Mee [2004] 2 Cr App R (S) 81 at 438-439 [14].

22. Sixthly, the Court is required to consider whether any appropriate order should be made: “s 5(1) empowers, but does not require, the court to make the order”: Vella at [54]. The Court thus retains its general discretion whether to grant the orders, even where the prior five steps are made out.

The position of the parties

23. The matter was listed for hearing commencing on 29 May 2023. During the course of the day, the parties advised that they had reached an agreed position – subject to the defendant’s legal representatives confirming their instructions with the defendant: that is, the parties agreed that the Court should exercise its discretion to make a serious crime prevention order against the defendant. On 30 May 2023 consent orders were provided to the Court.

24. The position of the defendant was that the agreement reached reflected a range of considerations (which he sought to have formally noted), including his desire to lead a lawful existence. That aspiration should be encouraged, and acknowledged. But, as I indicated during submissions, the role of the Court is to determine whether the statutory criteria for the making of a serious crime prevention order are fulfilled (or not), and the parties’ reasons for reaching an agreed position is irrelevant to that task.

25. Notwithstanding the consent position of the parties, the Court is nevertheless required to be satisfied of the matters in ss 5(1) and 6 of the SCPO Act – albeit that the process is facilitated by that agreement and the Court is entitled to take the consent as being an admission of the necessary facts and preconditions to the exercise of the Court’s powers: Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606. The decisions in Commissioner of Police v Alameddine [2020] NSWSC 1919 and Bazzi are to the same effect.

26. For the reasons that follow, I am satisfied that the various steps required under ss 5 and 6 of the SCPO Act are satisfied, and that it is appropriate for me to make the orders sought on the conditions proposed (and agreed to) by the parties.

Discussion: the remaining steps

27. I have previously found that the first and second steps have been established.

The third step

28. I am satisfied that the evidence demonstrates that the defendant is a person who associates with persons that may be involved in serious crime related activity. I am also satisfied and accept that the evidence demonstrates, as the Commissioner argued, that there is a real and significant risk of involvement in serious crime related activity. In this respect the Commissioner relied upon three matters to support that finding: first, the defendant’s criminal history; secondly, the police intelligence [redacted]; and, thirdly, the defendant’s “ongoing close association with high ranking members of the Alameddine [Organised Crime Network (‘OCN’)] and the Comanchero [Outlaw Motorcycle Gang (‘OMCG’)]” (Commissioner’s submissions at [31]).

29. I accept the evidence contained in the Cadden 2022 affidavit and the Cadden 2023 affidavit. It amply demonstrates the existence of the real and significant risk of involvement by the defendant in serious crime related activity. [redacted].

The defendant’s criminal history

30. In terms of the defendant’s criminal history, in order to determine the defendant’s risk of engaging in serious crime related activity, a “consideration of the details of past involvement in such activity is essential”: Amoun at [43]. The defendant’s criminal history is reasonably extensive, and includes the offences referred to in [13], above.

31. The full history is set out in the defendant’s ‘criminal history – bail report’ which was behind tab 2 of the Cadden 2022 affidavit.

Police intelligence and reports

32. In addition to the defendant’s criminal history, the Commissioner also argued that the evidence supported a finding that [redacted] the defendant will engage in serious criminal activity (Commissioner’s submissions at [28]-[29]).

33. [redacted].

34. Additionally, between 1 June 2022 and 28 March 2023, the defendant was the subject of 101 intelligence reports. [redacted].

35. The Commissioner emphasised, and I accept, that the defendant’s conduct was also relevant to this assessment. [redacted].

The defendant’s ongoing associations

36. The Commissioner next submitted that the “relevant risk” was compounded by the defendant’s ongoing close association with high ranking members of the Alameddine OCN and the Comanchero OMCG. I am satisfied that the defendant had, and has, an ongoing close association in the way submitted by the Commissioner.

36. The Alameddine OCN was described as an organisation that is “responsible for drug importation, interstate drug supply, local drug supply, money laundering, public place shootings, kidnappings and other offences of violence”: Cadden 2022 affidavit, par 27. In the period 2020-2022, there was a conflict between the Hamzy OCN and the Alameddine OCN “over drug distribution and drug territory”, and there is a current ongoing “gang war” conflict between the two groups: Cadden 2022 affidavit, par 29.

37. [redacted].

38. [redacted].

39. NSWPF surveillance and intelligence suggests that the defendant is a close associate of the Alameddine OCN, including high ranking members of that network – who have been identified in evidence: Cadden 2022 affidavit, par 44. Further, Detective Superintendent Cadden noted that the defendant had been observed meeting with the “Alameddine OCN members on a regular basis”: Cadden 2022 affidavit, par 46.

40. Physical surveillance by police has observed the defendant meeting with members of the Alameddine OCN during September 2021, each of whom have not insignificant criminal histories and one of them (Masood Zakaria) is currently wanted by NSWPF for “conspiracy to murder, direct criminal group, supply commercial quantity of prohibited drug, deal with proceeds of crime, and contravene serious crime prevention order (H84917104)”: Cadden 2022 affidavit, pars 66-67. In November 2021, the defendant was observed meeting with members of the Alameddine OCN, as well as celebrating his birthday with known members and associates of the Comanchero OMCG and Alameddine OCN: Cadden 2022 affidavit, pars 77-79.

41. The Comanchero OMCG, according to Detective Superintendent Cadden, is the highest threat OMCG operating in Australia: whilst they are not the largest OMCG numerically, they nevertheless “possess criminal intent, tradecraft and capability beyond all others”.

42. Detective Superintendent Cadden also noted that the defendant has close association with known, and high ranking, members of the Comanchero OMCG: Cadden 2022 affidavit, pars 49-50. One such member is Tarek Zahed, who is said to be the National Sergeant at Arms of the Comanchero OMCG and who was subject to a serious crime prevention order for 12 months made on 8 December 2021. Mr Zahed’s criminal history is in evidence and it may be described as an extensive one, involving serious criminal offending: Cadden 2022 affidavit, par 52. It appears that on 10 May 2022, Mr Zahed was shot in public whilst he attended the Bodyfit Gym in Auburn: Cadden 2022 affidavit, par 87.

43. [redacted].

44. [redacted].

The fourth step

46. The fourth step requires the Court to consider whether the facts established reasonable grounds to believe that the orders sought would have the effect of preventing, restricting or disrupting the defendant’s likely involvement in serious crime related activities. This step requires a consideration of the existence of reasonable grounds to believe “that the potential order under the Act would have the required effect of preventing, restricting, or disrupting the person’s involvement in serious crime related activities”: Vella at [47]. It requires the Court to consider the range of possible orders, and whether there is a real likelihood the order will have the relevant effect.

47. The proposed conditions cover six categories – namely, identity; residence; communications; cash and bank accounts; vehicles; and restrictions on associations. These conditions will prevent the defendant’s ability to direct, and be involved in, the range of activities referred to in the evidence of Detective Superintendent Cadden. They will, I am satisfied, have the effect of “preventing, restricting, or disrupting the person’s involvement in serious crime related activities”. The conditions will help prevent the defendant’s use of aliases; will require notification to the Police about where the defendant is to reside; noting that in the evidence from Detective Superintendent Cadden that mobile telephones and other electronic devices are regularly used in communicating, planning and undertaking criminal activity, they will restrict the type of communication devices available to the defendant (prohibiting, for example, those that encrypt, or send encrypted, communications); they prohibit the possession or use of anti-surveillance technical equipment; they restrict the defendant’s use of cash and restrict the manner in which the defendant is to operate a bank or credit card account (in order to prevent the dispersion of proceeds of any serious crime related activities); they restrict the ownership and use of vehicles; and they impose conditions in relation to non-association.

48. I am satisfied that the Commissioner has demonstrated that there are reasonable grounds to believe that an order under the SCPO Act which contains the conditions that have been agreed upon would prevent, restrict or disrupt the defendant’s involvement in serious crime related activities.

The fifth step

49. The Commissioner argued, and I accept, that the orders sought are appropriate, and directed to preventing, restricting or disrupting criminal activities of “significant magnitude”, [redacted]. The Commissioner further argued, and I also accept, that the restrictions not only would have the effect of preventing, restricting or disrupting the defendant’s engagement in serious crime related activity, but they would not “significantly impact upon the defendant’s liberty or his right to live his life in an ordinary, law-abiding fashion” (Commissioner’s submissions at [60]; Commissioner’s further submissions at [14]).

50. This last requirement is an important part of the balancing exercise required: Vella at [50]. Specifically, particularly in view of the agreed position reached, I am satisfied that there is no less intrusive order that is available that would achieve the same effect as the orders that I propose to make.

The sixth step

51. Section 5(1), empowers, but does not require, the Court to make the order – even where the prior five steps are made out: Vella at [54].

52. Given my satisfaction of the matters addressed above, and the agreed position of the parties, I am satisfied that there are no discretionary matters that tell against the making of the order.

Orders

53. For the above reasons are, I make the following orders:

1. That the defendant be subject to a serious crime prevention order within s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) on the terms set out in Annexure A, for a period of 12 months.

2. No order as to costs of the proceedings, such that each party is to bear his or its own costs.

54. Note that on 9 June 2023, the following orders were made:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

1. there be a non-publication order prohibiting the publication of the Police Intelligence Reports tendered in these proceedings, including any references to those reports (or opinions based on them) by Detective Superintendent Cadden in his affidavits or any references in submissions of either party, by each of the parties and Nationwide News Pty Ltd, and any other news media organisation or any other person; and,

2. the decision in NSW Police Force v Alameddine [2023] NSWSC 577 be suppressed in the manner proposed in Annexure “A” to the confidential affidavit of Michael Ayache sworn 6 June 2023 and,

3. that paragraph 3 of the affidavit of Michael Ayache sworn 2 June 2023 is suppressed.

2. That the NSW Police and all law enforcement agencies be exempt from the operation of Order 1.

3. That these orders apply throughout the Commonwealth.

4. That these orders operate for a period of 30 years.

5. Note that the confidential affidavit of Michael Ayache sworn 6 June 2023 is returned.

6. I grant access to Nationwide News Pty Ltd to the file subject to the above orders.

**********

Annexure A (217893, pdf)

Amendments

13 June 2023 - Judgment redacted

Decision last updated: 13 June 2023