R v Cekic, Ciantar, Dettman, Niemann & Paunovic - [2015] SASC 47

Supreme Court of South Australia
(Criminal)
R v CEKIC, CIANTAR, DETTMAN, NIEMANN & PAUNOVIC
Criminal Trial by Judge Alone
[2015] SASC 47
Judgment of The Honourable Chief Justice Kourakis
24 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
This was a trial by judge alone.
The five accused were members of the Finks Outlaw Motorcycle Gang. The five men gathered at the North clubhouse of the Finks Outlaw Motorcycle Gang on 13 February 2013 with an agreement and understanding to assault Mr Charles Bonnici and cause him serious injury with any weapons available to them inside the clubrooms. Three of the accused entered the clubrooms with Mr Bonnici and assaulted him with offensive weapons, namely pool cues and a table. Two of the accused, who were nominees of the Finks Outlaw Motorcycle Gang, acted as lookouts in front of the clubrooms for the initial assault. One of the accused entered the clubrooms with bolt cutters for the purpose of removing a gold chain from the neck of Mr Bonnici valued at $67,200.
An accused, Mr Cekic, raised a case of self defence where he claimed that he was attacked first by Mr Bonnici after an argument.
There was no case to answer with respect to the charged count of aggravated theft.
Verdict: All accused were found guilty of aggravated causing serious harm with intent to cause serious harm.
Criminal Law Consolidatino Act 1935 (SA) s 15, s 23(1), s 134(1), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"causing serious harm", "aggravated causing serious harm", "self-defence", "no case to answer", "theft", "common purpose", "joint criminal enterprise", "agreement"

R v CEKIC, CIANTAR, DETTMAN, NIEMANN & PAUNOVIC
[2015] SASC 47
Criminal

KOURAKIS CJ: This is a trial by judge alone of Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic.
The accused were arraigned and pleaded not guilty on an Information charging them with the following offences:
First Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm (s 23(1) of the Criminal Law Consolidation Act 1935 (SA)).
Particulars of Offence
Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic on the 13^th day of February 2013 at Salisbury, caused serious harm to Charles Bonnici, intending to cause him serious harm.
It is further alleged that Boidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence in company with each other.
It is further alleged Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic used offensive weapons, namely pool cues, a vacuum cleaner and a table when committing the offence.
It is further alleged by Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation committed the offence in company with each other.
Second Count
Statement of Offence
Aggravated Theft (section 134(1) of the Criminal Law Consolidation Act 1935 (SA)).
Particulars of Offence
Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic on the 13^th day of February 2013 at Salisbury, dishonestly dealt with property, namely a gold neck chain valued at $67,200 without the consent of Charles Bonnici, the owner of that property, intending to deprive Charles Bonnici permanently of that property, or to make a serious encroachment on his proprietary rights.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence in company with each other.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation.
It is common ground that the accused Messrs Cekic, Dettman and Paunovic are members of the Finks outlaw motor-cycle gang and that Niemann and Ciantar are nominees. It is also common ground that Mr Bonnici, who was also a member of the Finks, was assaulted and suffered serious harm in the clubhouse of the Adelaide North Chapter (the North Chapter) of the Finks on 13 February 2013.
It is not disputed that it was at least one of the accused who inflicted the serious harm on Mr Bonnici. Indeed, Mr Cekic gave evidence, which all of the accused ask me to accept, that he had a fight with Bonnici which may have caused the injuries he suffered but that he was acting in self defence. Mr Cekic’s account received some support from Mr Dettman who gave evidence that he pulled Mr Cekic away from Mr Bonnici and that he then rendered Mr Bonnici some assistance.
The prosecution case that the accused, other than Mr Cekic, were criminally responsible for assaulting Mr Bonnici, and the prosecution case negativing self defence on the part of Mr Cekic, depends on proving that all accused made an arrangement to seriously harm Mr Bonnici before they entered the clubhouse and then participated in it by entering the clubhouse and taking part in the assault or standing ready to assist each other, or by keeping watch outside.
The offences
The elements of the offence of causing serious harm with intent to cause serious harm are that the accused:
·    caused harm to the alleged victim (causation);
·    caused harm to the alleged victim that is serious harm;
·    acted deliberately as opposed to accidentally;
·    acted unlawfully; and
·    at the time the accused caused serious harm to the alleged victim, intended to cause serious harm.
Section 15 Criminal Law Consolidation Act 1935 (SA) regulates the defence of self defence as follows:
Self defence
(1)     It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
…
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)     in self defence or in defence of another; or
(b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)     However, if a person—
(a)     resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)     resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
It is a complete defence to a charge of assault if the accused genuinely believed that the force he used was necessary and reasonable in his own defence, and if that conduct was, in the circumstances as the accused genuinely saw them, reasonably proportionate to the threat which he believed he faced.
There are therefore two aspects to self-defence. The first is concerned with the need to use force at all and focuses on the accused’s genuine belief that force of that level was needed for a defensive purpose. The second introduces the concept of proportionality as between the threat faced by the accused and his reaction. It poses the question: was the accused’s reaction to the threat, as he genuinely saw it, reasonably proportionate to that threat?
The force used by a person under attack can, of course, exceed that used or threatened against him. It is a question of what is reasonable in the circumstances.
Mr Cekic has testified that he acted in self-defence. He contends that he acted in genuine self-defence and that what he did was reasonably proportionate to the threat he faced. It is for the prosecution to prove the converse of that. If the prosecution fails to do so, then Mr Cekic must be found not guilty of any offence.
Theft
The elements of theft are that the accused:
·dealt with property and at the time;
·did so dishonestly;
·without the owner’s consent; and
·intended either:
(a) to deprive the owner permanently of the property, or
(b)to make a serious encroachment on the owner’s proprietary rights; that is that [he] intended to treat the property as [his] to dispose of, regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner either would not get it back or, if [he] did, that its value would be substantially impaired: s 134(2).
Joint Enterprise
If two or more persons join together in a joint criminal enterprise, every act done, by any one of them, is in law done by them all. The combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime. Each party to a joint enterprise acts both on his own account and on behalf of the other person or persons concerned. The concept of a joint criminal enterprise is that the persons concerned act together to achieve a mutually agreed result.
The mere presence of a person at or near the scene of a crime being committed by another, whatever may be that person’s knowledge of, or attitude towards, the commission of the crime, does not, without more, render him guilty under this principle. That person’s presence must be by agreement with the other persons for the purpose of furthering and achieving the commission of the crime. Criminal responsibility on the basis of a joint enterprise requires proof that the accused both agreed to its arrangements and participated in it.[1]
[1] Huynh v The Queen [2013] HCA 6; (2014) 87 ALJR 434.
Onus of proof
I remind myself that reasonable doubt is simply a doubt which I entertain. It is not sufficient for the prosecution to show a mere suspicion of guilt, or to show that the accused is probably guilty. An accused is not to be convicted unless his guilt has been proved beyond reasonable doubt. The accused must be given the benefit of any doubt that I have.
The prosecution bases its case substantially on circumstantial evidence. I cannot return a verdict of guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. To convict I must be satisfied, not only that the guilt of each of the accused is a rational inference, but that it is the only rational inference that the proven circumstances enable me to draw.
Mr Bonnici is found badly beaten
It is convenient to commence my narration of the evidence with the phone call which first brought the attack on Mr Bonnici to the attention of the authorities.
At 3.26 pm on 13 February Nicholas Brouwer, a member of the North Chapter of the Finks, made a telephone call to 000. He told the operator that someone was bleeding from the head and “everywhere” and asked for a quick attendance.
Mr Brouwer informed the operator that he was alone with the injured person who had been “beaten up”. He described the person as aged 40, male, awake and just barely breathing. He told the telephone operator that the assault had only just occurred.
When asked, Mr Brouwer identified the victim as Charlie Bonnici.
I have listened to the audio-recording of the call. Mr Brouwer sounds distressed. I infer that the cause of that distress was that Mr Bonnici appeared to be very badly beaten and in urgent need of medical treatment.
Mr Parks is an ambulance officer who arrived within 20 minutes of Mr Brouwer’s call. Mr Parks has worked for the SA Ambulance service for 12 years and is now an intensive care paramedic who is called out to serious and critical injuries.
Mr Parks testified that he arrived at 62 Middle Row Salisbury at approximately 3:45pm. He entered through the front door and observed what appeared to him to be the scene of an altercation. Furniture was strewn around the room and items scattered on the pool table. Other paramedics were treating Mr Bonnici to the south of the room at a position which Mr Parks identified as being between markers 6 and 8 visible in photo 25 of P3. Mr Bonnici was positioned in the left lateral position, with his face facing the eastern end of the room and feet towards the southern wall.
Mr Bonnici appeared seriously ill. Mr Parks thought that he had the classic presentation of a person who had been shot. On first inspection, Mr Bonnici appeared to be pale, diaphoretic, struggling to breathe with an increased heart rate.
Behind Mr Bonnici lay a large pool of blood. Mr Parks estimated the volume of blood to be approximately 500ml.
An IV drip had already been inserted into Mr Bonnici before Mr Parks arrived but had been ripped out by him as he thrashed on the floor. Another was inserted because he was hypertensive. Morphine pain relief was administered. Mr Bonnici was provided with oxygen and an ECG monitor was attached. His heart rate was 140 beats per minute which is tachycardic. His upper blood pressure was 90.
Towels were used by the paramedics to secure Mr Bonnici’s neck because a collar could not be fitted around his large neck. He was rolled onto a spinal board to be loaded into the ambulance.
Mr Parks conducted a further assessment in the ambulance. He noted head and facial injuries, including swelling and bruising. Mr Bonnici’s right eye was completely swollen over and closed. Mr Parks observed ligature marks and swelling on Mr Bonnici’s neck, and abrasions over the position of Mr Bonnici’s kidneys and liver. They were approximately 10 cm in diameter. There were slight abrasions on the rear of Mr Bonnici’s lower legs.
During the ambulance ride Mr Bonnici’s heart rate reduced to 122 and 120 and his blood pressure recovered to 140 over 90.
Mr Bonnici continued to struggle to breathe during the ambulance journey. Mr Parks noted decreased air entry into the right lung which he thought was indicative of rib fractures, a sternum fracture or an haemopneumothorax. He formed the opinion that Mr Bonnici had collapsed lungs.
Mr Parks’ overall assessment was that Mr Bonnici had serious to critical injuries.
Mr Bonnici arrived at the Emergency Department of the Royal Adelaide Hospital at 4:25pm. Dr Bata gave evidence of his condition on arrival. Dr Bata observed that Mr Bonnici could open his eyes. He was moaning and not speaking but he followed commands. An endotracheal breathing tube was used to mechanically ventilate Mr Bonnici because of his difficulty in breathing.
Dr Bata diagnosed that Mr Bonnici had a collapsed lung on his right side (right pneumothomax) and a collapsed lung with blood on his left (left haemopneumothorax). His chest was drained on both sides. A pneumothorax can place pressure on the heart and can cause blood pressure to fall. Dr Bata classed Mr Bonnici’s injuries as life threatening.
A CT scan revealed rib fractures of the 6^th to 12^th ribs on the left side and the 7^th to 12^th on the right side. A fractured fibula was also identified. Dr Bata testified that blunt trauma to the chest is a common cause of a collapsed lung with associated rib fractures.
Dr Bata also observed that Mr Bonnici had lacerations on the right side of his face and lips and a 4 cm laceration across his right upper eyelid. The lacerations required suturing. Bruises were observed on Mr Bonnici’s flanks. Mr Bonnici had also sustained a fractured jaw and nasal bone. He had suffered a subdural bleed on the side of his head and excessive swelling of his skull.
Dr Bata would not speculate on the number of applications of blunt trauma or the force that was required to cause the injuries he observed on Mr Bonnici. He could not exclude the possibility that the leg injury was sustained in an awkward fall.
On 21 February Mr Bonnici underwent an appendectomy and gall bladder removal.
Dr Bata testified that the volume of blood in the circulatory system of adults was generally between 5-6L of blood. It follows from the estimation of the volume of the blood pool given by Mr Parks and Mr Bonnici’s internal bleeding that he had lost a significant proportion of his blood volume.
Mr Bonnici has been left with deficits in his memory, attention, orientation, spatial perception and executive brain functioning. He has poor short term memory and reduced planning ability and mental flexibility. Mr Bonnici is likely to permanently suffer mood and behaviour dysfunction. He will be left with a predisposition to physical aggression and reactiveness due to irritability and impulsivity. He is likely to permanently experience difficulty with planning and problem solving tasks.
Constable Plumb was the first police officer to attend 62 Middle Row after the 000 call was made by Mr Brouwer. Constable Plumb testified that he arrived with Constable Hewish, just before any ambulance. When he arrived there was no one at the front of the premises. Two paramedics arrived shortly afterwards.
Constable Plumb gave evidence that Mr Mensforth arrived while he was standing at the front of the premises. After a brief conversation Mr Mensforth entered the premises alone. Mr Brouwer then came out of the premises and spoke to Constable Plumb at the front fence. Constable Plumb testified that Mr Brouwer appeared distressed. He spoke with a sense of urgency but was hesitant to talk to the police.
Mr Mensforth came out of the premises before Constable Plumb entered. Constable Plumb spoke with Mr Mensforth as he left and noted that he was not carrying anything in his hands.
Constable Plumb and Constable Hewish then followed Mr Brouwer to that part of the premises which was Unit 3. Constable Plumb testified that Unit 3 was very dark. He observed motorbikes parked inside, a pool table, a bar at the far end of the unit and furniture which he described as “turned over.” He saw Mr Bonnici laying on the ground between the bar and the pool table. Constable Plumb identified the location in photograph 25 of P3 as between the bar area and stools indicated with the marker E. Mr Bonnici was positioned at about a 90 degree angle, from the wall, with his head facing the pool table and his feet the wall. Standing next to the pool table Constable Plumb observed that Mr Bonnici had blood on his face, body, hands and legs. No obvious injuries were visible from his position. He heard Mr Bonnici “moaning and groaning”, and saw him attempting, but failing, to talk, with little to no movement.

Constable Plumb observed a “bumbag” surrounded by other items on the pool table. In particular he saw licences and cards bearing the name Charles Bonnici. He identified Mr Bonnici from the photograph on the licence.
By reference to photograph 25 of P3 Constable Plumb identified a number of pieces of broken pool cues next to markers 4, 6, 8, 12, 13. He pointed out a small white occasional table in photograph 25 which he had observed to be dented, damaged and blood stained when he entered Unit 3.
More police officers arrived a few minutes after Constable Plumb. They established the area as a crime scene while Mr Bonnici was still being treated.
Constable Plumb used his mobile phone to take four photographs of the scene (Exhibit P18). Mr Bonnici can be seen in photographs 2 and 4. A purple towel that was used by paramedics to treat Mr Bonnici can be seen on the white occasional table. Constable Plumb’s evidence was not contested.
The Police Investigations
Brevet Sergeant Gates works at the Forensic Services Branch SAPOL. He has extensive training in the examination of crime scenes; he is attached to the Forensic Response section of SAPOL.
Brevet Sergeant Gates testified that he attended Unit 3 and collected forensic material with Brevet Sergeant Bartlett. Brevet Sergeant Gates gave the following evidence of the scene. His evidence is not contested.
The premises at 62 Middle Row Salisbury are located in a light industrial area, with a predominance of small workshops. Middle Row runs in a north-south direction and 62 Middle Row is on the western side of the road. The premises comprise four small workshops numbered units 1, 2, 3 and 4. Units 3 and 4 appeared to be occupied by the Finks OMCG. They are the the northern most workshops. The front and rear yards of units 3 and 4 are shared by those units but are separated from units 1 and 2 by a green corrugated iron fence. Access for the shared front yard is gained through two metal wire gates.
Unit 4 is the northern most unit and was set up as a gymnasium with weight lifting equipment. Unit 3 was furnished as a clubhouse with a bar area. Security cameras were in place on the eastern and western exterior walls and above the front door. I will refer to Unit 3 as the North clubhouse.
Floor plans of Units 3 and 4 (P5) were received into evidence and is appended to these reasons.
The front door of Unit 3 is located on its eastern wall. The interior of Unit 3 is obscured from outside view by reflective windows. A toilet block is situated just inside the front door and an interior wall of that toilet block face the front door. That wall is decorated with a large Finks logo. The wall shields the interior of the North clubhouse from view until one turns to the left and walks the length of that wall. When police officers inspected the North clubhouse on 13 February 2013 three motorcycles stood in the south eastern corner, along the southern wall. Further along the southern wall was a water cooler and then two black chairs and a white occasional table.
Two white circular couches were located against the northern wall, to the west of which were two chairs. Discarded packaging of medical supplies like those used by paramedics rested on the chairs.
A horseshoe shaped bar is located at the western end of the unit. The eastern side of the bar is the front of the bar on which appears the Finks logo. Behind the bar, along the western wall, is a hallway and staircase rising to a mezzanine floor area which can be accessed from the south-western corner of Unit 3. The stairway runs south to north, rising, against the western outer wall. A wall connected the bar to the northern wall and so the staircase could not be reached from the northern side of the bar. A walkway runs along the southern side of the bar to the rear of the clubhouse and to the staircase.
Immediately to the northwest of the bar is a hallway that leads to a kitchen area located under the staircase.
A pool table is located in approximately in the centre of the clubhouse. It is to the east of the bar and to the south of the two white couches.
The mezzanine floor consists of a room with a large table and a balcony area that overlooks the ground floor. It sits above a large part of the front bar.
Brevet Sergeants Gates and Bartlett observed, photographed and collected items apparently connected to the altercation in which Mr Bonnici was involved. Splinters and shards of wood from broken pool cues were located primarily around the pool table and the bar area. The majority were found between the pool table and the southern wall, and the pool table and the bar to the west.
An upright vacuum cleaner was located next to the water cooler. The bottom of the vacuum cleaner had broken away from the main handle. Brevet Sergeant Gates noticed small blood stains on one of the broken sections.
A small white occasional table was located in front of the bar. It was damaged. It appeared to Brevet Sergeant Gates to be made out of compressed board that was laminated. Blood splatter was located on the inside “leg” of the table. Portions of the table were located around the pool table, bar and nearby the table itself. Large broken portions were found next to the black chairs, water cooler and bar area.
The occasional table was tendered as an exhibit. I have examined it. A strip of laminate along an edge of the upper surface has broken away revealing the compressed board beneath. There is more extensive damage on the underside of the table directly below the damages on the upper surface but over a more extensive area. The damage on the underside is roughly in a semicircular shape with the laminate completely removed. There are cracks and damage on the top surface of the table, corresponding with the area of damage on the underside of the surface but the laminate is not broken away.
Brevet Sergeant Gates fitted the fragments he found onto the damaged parts of the table. There is more blood staining on the fragment which fitted into the damaged area on the underside of the table than the fragments which fitted the damaged area on the top of the table.
A gold earring and a gold chain link were found between the black couches and the water cooler by the southern wall. Another gold chain link was found on the pool table, by marker C.
On the pool table was a “bumbag” with contents emptied onto the pool table. The items included a driver’s licence in the name of Charles Bonnici, and a number of other cards bearing the name of Charles Bonnici. The remains of a pie were found on the eastern end of the pool table.
Most items apparently connected to the assault on Mr Bonnici were found around the western end of the pool table, the bar and the immediate southern wall.
Brevet Sergeant Gates agreed that he was not the first person to arrive at the scene, a number of police officers and ambulance officers attended before him.
Near the southern wall of the clubhouse, east of the two black chairs, by the two raised chairs; Brevet Sergeant Gates identified a significant blood stain. It spread from the carpet area onto the concreted area, all the way to the bar.
The Finks
It is convenient next to turn to the evidence of the organisational structures of the Finks. The prosecution tendered, and I received, with the consent of all five accused a statement of Detective Senior Sergeant McManus of the Crime Gangs Task Force on the operation of outlaw motor cycle gangs (OMCGs) generally and the organisational structure of the Finks in particular. Detective Senior Sergeant McManus traces the modern origins of outlaw motor cycle gangs to an incident in California in the United States during 4 July celebrations in 1947. The event was sponsored by the American Motor Cycle Association. The celebrations degenerated into a violent incident involving thousands of motor cyclists. The American Motor Cycle Association later condemned those involved in the violence as an antisocial element which comprised just one percent of that country’s motor cycling enthusiasts. Since that time outlaw motor cycle gangs perversely have taken pride in proclaiming that they are that one percent.
In South Australia at present the following organisations identify themselves as outlaw motor cycle gangs:
·Mongols OMCG (formerly the Finks OMCG as at 13 February 2013, I will continue to refer to this OMCG as the Finks),
·Hells Angels OMCG,
·Rebels OMCG,
·Gypsy Jokers OMCG,
·Descendants OMCG,
·Bandidos OMCG,
·Comanchero OMCG,
·Red Devils OMCG.
Intelligence of the South Australian Police (SAPOL) indicates that there are a total of 285 recorded members, nominees or prospective members of those eight clubs. Sixty four are believed to be either members or nominees of the Finks.
Membership of an OMCG is limited to men only. Members are sponsored by way of nomination of existing members. During the period of nomination, persons are often referred to by other members as “prospects” or “noms”. Prospects or noms are usually treated as subservient by former members of the club and often perform menial tasks for the benefit of other members.
The characteristics of OMCGs are:
·a culture of violence;
·demonstrated loyalty to the OMCG and its members – commonly referred to as staunchness;
·obedience to club rules;
·disregard for social norms and the law;
·practices of intimidation towards the community and police;
·a high percentage of membership having a history of serious criminal offending;
·counter surveillance and intelligence gathering against law enforcement and rival OMCGs.
The Finks OMCG took its name from the comic strip “Wizard of Id” in which a catchcry “the king is a fink” was regularly repeated. The insignia or colours of the Finks OMCG depict the King’s jester, named “Bung”, from the comic strip. The Finks OMCG has three chapters in South Australia – the Adelaide North Chapter (the North Chapter), the Adelaide South Chapter (the South Chapter) and the Adelaide Central Chapter (the Central Chapter). As at February 2013 the North Chapter was the most recently re-established chapter of the Finks. Its clubhouse was located at Unit 3, 62 Middle Road Salisbury. The South Chapter was re-established in early to mid 2012 with a clubhouse at 614 Brighton Road Seacliff Park. Those premises are shared with a tattoo studio known as “Tattoo This”.
The North and South Chapters were previously located at industrial premises at Lowlands Roads Salisbury Plains and Seacliff Park respectively.
The Central Chapter of the Finks is the only continuously operating chapter. Its clubhouse is situated in industrial premises at 7 Dalgliesh Street Thebarton. Members of the Central Chapter re-established the North and South Chapters over the period 12 months before February 2013.
The Finks wear sleeveless leather or denim riding jackets with patches (colours) which include:
·1 percent,
·SYLF (Support Your Local Fink),
·FTW (Fuck The World),
·In Memory Of,
·F.F.F.F. (Finks Forever Forever Finks),
·Trust Me, I’m a Fink,
·A Fink stinks but smile when you smell me, and
·Finks terror team.
The wearing of apparel and patches is generally restricted to members and associates of the organisations. A nominee or prospect is not permitted to wear full colours until after he has been accepted into the Club as a full member.
Detective McManus’s statement contains the following on the topics of Chapter Meetings, Sergeant at Arms and Office Bearers and Club Runs:
Chapter Meetings
Each chapter of the club hold regular meetings which normally take place at the clubhouse. The night the meeting takes place is usually known as “Church Night”. Members and nominees are required to attend these meetings and usually there is a payment of fees or dues to the treasurer. Nominees do not participate or have any input into the discussions or decisions at these meetings but must wait outside while the meeting takes place. Failing to attend meetings without a reasonable excuse may result in loss of voting privileges or membership of the club. The Central Chapter normally hold their ‘Church Night’ on a Wednesday night at the Thebarton clubhouse.
Sergeant At Arms and office bearers
Under the rules the committee of each chapter consists of a Secretary, Treasurer and Sergeant at Arms. Unlike other OMCG’s the Finks rules specifically dictate that the term ‘President’ is not to be used. The Sergeant at Arms provides the senior leadership function in each of the chapters.
Within the Finks, the Sergeant at Arms not only leads the Chapter but is in charge of maintaining order and discipline. The duties of the Sergeant At Arms according to the Rules are “to keep law and order by any means available at all meetings and activities to do with the gang”. The Sergeant at Arms may impose penalties on members and nominees who fail to meet the expectations of club rules.
With respect to the position of Treasurer, club rules require the member holding this role to open a bank account and conduct all financial aspects of the club as well as providing a financial statement at each meeting. Another function of the treasurer involves the lodgement of money orders into the accounts of incarcerated prisoners.
Club Runs
OMCG Club “runs” involve a convoy of members and associates on invitation travelling as a group on motorcycle in a structured formation usually to a particular series of destinations. Typically senior members ride at the front, followed by full members, ‘noms’ and associates if invited at the rear.   ‘Colours’ are worn during the run and support vehicles normally containing ‘noms’ and other associates accompany the run. The forms of runs generally undertaken by OMCG include national runs, memorial runs, anniversary runs and poker runs which are essentially fund-raising events where the public is encouraged to participate. Within the rules of the Finks regular participation in club “runs” and “bike shows” as well as ownership of a road going motorcycle with a 650 cc engine capacity which is either British or American is mandated.
The 1991 application for incorporation as an association by the Finks identifies that the association was formed for the purpose of “establishing carrying on, improving a community meeting place and promoting the interests of motor cycle enthusiasts within the local community”. However, assessment of the current drivers licences recorded for the 64 known members and nominees of the Finks reveals (as at August 2013) that 33 or 51.5% of the membership have a current South Australian licence of the appropriate class to ride a motor bike. Whilst club rules dictate that members must participate in club runs, in reality there are now very few club organised runs within the Finks SA Chapters, particularly when compared to other OMCG’s such as the Gypsy Jokers, Descendants or Rebels OMCG’s.
Involvement by members of the Finks in violence and other serious criminal activity
The Finks have a culture of violence within the club.
The profile of criminal offending of those persons currently identified as being either a member or nominee of the Finks MC for the purposes of this statement (as at 22 August 2013),
·    all have criminal convictions
·    54 out of 64 (84%) of the membership have at least one conviction for an offence of violence (includes minor assault, serious assault, affray, threaten harm, robbery)
·    23 out of 64 (36%) have at least one conviction for unlawfully possessing firearms (includes possession of unregistered/unlicensed firearm)
·    21 out of 64 (42%) have at least one conviction for a Firearms Act or Firearms Regulation offence (includes Firearms Act offences other than unlawful possession firearms as well as ammunition security offences and also includes the offences of discharging firearms to cause injury/damage under CLCA)
·    30 of the 64 (47%) have convictions for offences involving a weapon or dangerous articles (this excludes firearms offences but includes Carry offensive weapon, Produce/use prohibited weapon & Possess dangerous article)
·    20 of the 64 (33%) are currently in custody on remand or serving sentences for criminal offending
Since 2004 there have been a number of notable incidents of violence between members of the Finks and Hells Angels OMCG. Tensions between both these OMCG’s are ongoing.
It was largely common ground at trial that the persons in the first column of the table had an association with the Finks OMCG as shown in the second column, were attached to the Chapter shown in the third column and held, or had held, the office shown in the fourth column.

Name Membership Class Chapter Office held

Charles Bonnici Senior Member North Chapter Sergeant at Arms

Malek Bou-Said Member

Nicholas Brouwer Associated from 2007 North Chapter

Andrew Majchrak Senior Member Central Chapter Sergeant at Arms

Timothy Mensforth Long standing member North Chapter

Michael McCarthy Senior Member Central Chapter Sergeant at Arms

Daniel Puddy Member since 2011 North Chapter

Harry Symeonidis Senior Member South Chapter

Brett Taylor Senior Member Central Chapter Sergeant at Arms

Darren Willing Senior Member North Chapter

Stephen Mann Associated since 2012

Rhys Mundy Associated since 2012

Lee Hi Sheldon Associated since 2012

Anthony Wells Nominee from 2010

Paunovic Member since April 2012 South Chapter

Dettman Member since 2010 South Chapter Sergeant at Arms in February 2013

Cekic Member since April 2011 Central Chapter

Niemann Nominee since October 2012 South Chapter

Ciantar Nominee since 2012 South Chapter

Mr McManus’s statement provides a context for many of the following facts which were admitted by the defence during the prosecution case and which have been extracted from Exhibit P37:
Charles Bonnici
4.In February 2013 Mr Bonnici weighed approximately 140 kilograms and was 175cm tall.
Clubrooms
5.On 13 February 2013:
a.     3/62 Middle Row SALISBURY was the address of the ‘North Side Clubrooms’ of the Finks MC (hereafter the ‘North Side Clubrooms’).
b.    7 Dalgleish Street, THEBARTON was on 13 February 2013 the address of the ‘Central Clubrooms’ of the Finks (hereafter the ‘Central Clubrooms’).
CCTV footage from Northside clubhouse
PPMS Exhibit 13/B88068-71, Court Exhibit P13
6.The images contained on PPMS Exhibit 13/B88068-71, now court Exhibit P13, were captured continuously
a.     by five (5) cameras external to the Northside Clubroom
b.    on the 13th February 2013
c.     between the hours of about 08:00 and 15:34.33.
7.The time shown on the embedded clock at the top centre of the images (embedded clock) is accurate to within about a minute of South Australian time on 13th February 2013.
…
12.At about 15:27 Nicholas BROUWER (hereafter BROUWER) attended at the Northside Clubrooms at 3/62 Middle Row SALISBURY.
13.At about 15.27 BROUWER can be seen talking on a mobile phone. He called ‘000’.
a.     The telephone call made by BROUWER is recorded on Exhibit 13/B88068-236 and was tendered at the trial as Exhibit P17.
…
15.The call made by BROUWER was the only call made to 000, SAAS or South Australian Police relating to this incident, or this address between 15:00 and 16:00 on 13 February 2013.
…
Gold chain
18.On arrival at the North side clubhouse on 13 February 2013, BONNICI was wearing a gold chain (the chain) around his neck.
19.That chain was removed with bolt cutters during the incident the subject of the charges.
20.DETTMAN left the North side Clubroom with the chain in his possession.
21.On 9 February 2014 the chain was delivered to the address of Leanne Bonnici by an unidentifiable person. Leanne Bonnici was the victim’s former partner.
b.    That chain was seized by police on 9 February 2014 and booked onto PPMS as Exhibit 13/B88068-281. That chain is now Exhibit P19 in the trial.
i.The chain has been forensically analysed. No DNA profiles have been located.
…
Valuation of Bonnici’s chain
63.The chain worn by BONNICI on 13 February 2013 was valued in 2007 at $42,655. The valuation of the same necklace in August 2013 was $67,200.
Maximum temperature
64.The maximum temperature in the Salisbury area on 13 February 2013, as contained in records kept by the Bureau of Meteorology, was 33.5°C.
Trees
65.A large tree is present on the western part of the verge between the front of the premises at 60 Middle Row, Salisbury and the road.
66.Large trees are also present on the western part of the verge in front of the property at 58 Middle Row, Salisbury.

At the end of the prosecution case, a further fact was agreed. It was that there was a national run of the Finks OMCG would be held in Melbourne on 9^th to 11^th March 2013.
The movements of the accused and other members of the Finks in and around the Central and North clubhouse was recorded on CCTV footage electronically stored on hard drives. The hard drive on which the footage taken by the security cameras at the North clubhouse was not found by police when they searched that clubhouse on 13 February. It was fortuitously found some weeks later at the home of Darren Willing, a Finks member associated with the North Chapter. The hard drive which contained the recording of the CCTV footage of the Central clubhouse was found in the south western corner of the rear of the Central clubhouse on 13 February. It was not connected to the security cameras.
Appendix B of the Agreed Facts records the following movements shown on CCTV footage from the security cameras installed at the Central clubhouse at about 13:00 on 13 February 2013:
At about 1 pm on the 13th February 2013, Corey Dettman left the Dalgleish Street clubhouse in a silver Toyota Car with Brett Taylor in the front passenger seat and Paul Paunovic in the rear driver’s side passenger seat.
At about the same time, Bozidar Cekic left the Central clubhouse driving a black car (S214AOW) with Andrew Majchrak in the front passenger seat and Moyston Niemann in the back passenger seat. Rhys Mundy also left the Central clubhouse driving a black car with Anthony Wells in the front passenger seat and Stephen Mann in the rear passenger side seat.
At about the same time Michael McCarthy left the clubhouse in black Toyota 4WD.
Appendix A of the Agreed Facts record the following movement shown on CCTV footage taken by security cameras at the North clubhouse on 13 February 2013 (the alpha-numeric references in parenthesis refer to the channel number which relates to each of the security cameras):
Silver and three black cars arrive
13:55.57     A silver car driven by Corey Dettman arrives and parks at gates.
13:56.04A black car (1) containing Bozidar Cekic, Andrew Majchrak and Mostyn Niemann arrives and parks and another black car (2) is mobile directly behind it .
13:56.05     Andrew Majchrak gets out of front passenger door of black car (1).
13:56.06 Dettman car gets out of driver’s door of the silver car (C1) and (C2), and Paul Paunovic gets out of back driver’s side passenger door(C1) and (C2)
13:56.11     Brett Taylor gets out of front passenger of the silver car (C1) and (C2)
13:56.19Black car (2) parks behind white dual cab utility on the street. Back seat passengers is Lehi Sheldon who moves with a limp, to the right of screen when he gets out.
13:56.28     Black car (3) parks across driveways.
13:57.42     Niemann opens the passenger side rear door of black car (1)
13:58.28     Anthony Wells is standing at the gate.
13:58.56 Wells gets into front passenger side and Sheldon gets into rear driver’s side passenger door of black car (3)
13:59.10Black car (3) reverses onto road way and then does three point turn to head to the right of camera out of vision.
13:59.34 Rhys Mundy walks left out of screen (C2) towards black car (2) and to front driver’s door of black car (2) (C1)
14:00.24     Black car (1) drives off.
14:00.33     Majchrak gets into back passenger’s side of the silver car
14:00.34Cekic is walking leftward along Middle Row and gets into black car (2)(C1) & (C2)
14:01.58Majchrak gets out of the silver car passenger side back and [14:02.03] Dettman gets out of driver’s door of silver car.
14:02.10Majchrak is in next door yard to right of clubhouse and points towards direction of camera on roof of clubhouse. Dettman is standing nearby but outside fence of adjoining property.
14:02.13     Dettman also makes a gesture in the direction Majchrak had pointed.
14:02.39-44Majchrak walks from the next door neighbour’s yard and gets into the passenger side of the silver car.
14:04.47     Dettman gets into driver’s seat of silver car.
14:04.46     A black car similar to black car (1) heads right along Middle Row.
14:05.26     A black car returns to original position of (1) (Black1.1).
14:05.56Dettman and Majchrak leave the silver car and go to passenger side of black (1.1) and appear to speak to occupants.
14:05.58Dettman returns to driver’s seat of the silver car and [14:06.27] Majchrak returns to back passenger side door of the silver car and gets in.
14:06.53 Paunovic leaves back passenger seat of the silver car and goes to the passenger’s side of Black (1.1) and then returns to sit in the silver car.
14:07.02Cekic gets into front passenger seat of black (1.1)
White Holden arrives
14:07.23White Holden pulls up behind black (1.1).
14:07.23Dettman and Majchrak gets out of back passenger seat of the silver car and Cekic gets out of front passenger seat of black (1.1) and move towards the white Holden
14:07.28Dean Ciantar gets out of driver’s door of the white Holden.
14:07.51Paunovic gets out of driver’s side back passenger door and moves to where Dettman, Paunovic, Majchrak and Ciantar are talking.
14:08.30Ciantar gets back into driver’s seat. Cekic gets into passenger seat.
Dettman returns to driver seat of the silver car, Majchrak gets into back passenger side seat and Paunovic gets into driver’s side back seat.
Silver dual cab utility arrives
14:24:44A silver dual cab utility pulls up out front of clubhouse. Driver, Mensforth, gets out.
14:24.48Dettman gets out of driver’s seat of the silver car and walks to meet Mensforth.
14:25.25Taylor gets out of the silver car and joins Dettman and Mensforth in conversation.
14:25.25 A black car, which had shortly before pulled up in middle of the Middle Row behind the White Holden, reverses into area obscured from the camera by the trees.
14:25.53The White Holden moves off: it does a three point turn and heads rightward out of camera sight.
Black SUV arrives
14:27.58Black SUV driven by Michael McCarthy arrives and parks next to the silver car.
14:28.04McCarthy walks to where Dettman, Taylor and Mensforth are in conversation
14:29.25 A man with a Yellow vest heads from shadows and goes to Black 1.1
14:32.33A black car moves forward from the shadows on the right of screen - possibly because garbage truck behind it.
14:33.08A black car moves backwards into shadowed area after garbage truck has passed.
14:35.06Cekic gets out of front passenger seat of black (1.1), moves around the back of the car and gets in driver’s seat.
14:35.32Man with yellow vest gets out of driver’s side back passenger door and walks to side of Black (2) and speaks there with another who has gotten out of black (2).
14:35.54Dettman and McCarthy move toward front of the silver car where joined by others.
14:40.25The silver dual cab utility moves off and 14:38.49 Black (2) moves off
14:42.05A man goes from black car(1.1) goes to the workshop and [14:43.09] returns to that car and places something in front of it.
14:42.53Dettman and Cekic are at the gate.
14:43.06-13 Cekic makes movements with foot and hands as though demonstrating something.
14:46.58Black car pulls in left of and adjacent to bin.
14:47.02Majchrak runs right to left to this car and gets in the back passenger seat of and the car drives off towards T-junction and turns right.
14:46.39A man walks from boot area of Black 1.1 to workshop and is carrying something.
14:47.12A man comes out of workshop and walks to car and is not carrying anything.
14:49.10Man with yellow vest gets out of driver’s side of Black (1.1) and opens boot. He walks off right to the area where others are and then walks to workshop.
14:50.10Paunovic goes to the workshop
14:52.07Black SUV moves off and then rightward out of screen.
14:52:57Paunovic exits workshop with yellow vested man and goes to black car.
15:53.08Yellow Vest man gets into driver’s seat of Black (1.1).
14:53.20 Black (1.1) is push started leftward by Dettman, Paunovic and Cekic.
14:53.30Dettman and Paunovic walk rightward towards where Taylor is on right of screen.
14:53.31Cekic walks leftward and ends up next to front passenger side door and makes arm movement.
14:53.40 Black car 1.1 reverses to right on screen and continues backwards (rightward) out of camera view.
14:53.41As Dettman, Taylor and Paunovic get to the palm tree, Paunovic heads back toward the silver car. Dettman and Taylor continue rightward out of sight and are joined by Cekic with white stripe down pants
14:54.03Paunovic gets into passenger seat of the silver car. A male, who is bare chested, gets into driver’s seat. Dettman is on right of screen out of camera sight.
14:54.42The silver car moves off to the left of screen and turns right at T junction of Middle Row and Commercial Road Salisbury (T-Junction).
14:54.52 No cars associated with the accused are seen out the front of the clubhouse.
14:56.07A black car appears on right of screen and drives along Middle Row to the T junction and turns right.
15:01.36The silver car appears turning off commercial road onto Middle Row and travels right on screen along Middle Row and out of camera shot.
15:05.40A black car enters Middle Row from junction having turned left into Middle Row and travels right on screen along Middle Row and out of camera shot.
Bonnici arrives
15:07.21A Black car enters Middle Row from junction having turned left into Middle Row.
15:07.33Bonnici gets out of this car.
15:07.49Bonnici is at the gate.
15:07.59First visible reaction by Bonnici to others [Dettman, Paunovic and Cekic] being there.
15:08.24Bonnici at the door (C 5).
15:08.26First visible sign of two others [Niemann and Ciantar] on right of screen.
15:08.35Bonnici enters the building.
15:08.36Dettman enters the building.
15:08.36Paunovic enters the building.
15:08.38Cekic enters the building.
15:10.19Ciantar enters the gate which is open.
15:10.34 –37 Ciantar gets to the entrance and is sometimes partially within the building (C5).
15:10.46Ciantar exits through the gate and joins Niemann outside the gate.
15:12.00/03There is a movement of a hand at the door (C5).
15:12.05Ciantar goes through the gate followed by Niemann.
15:12.12Ciantar enters the building.
15:12.15/16Niemann returns to gate and shuts it (C2).
15:12.34Niemann enters the building (C5).
15:13.48Niemann leaves the building (C5).
15:13.54Niemann goes to the gate (C2) opens it and then closes it and walks across the road to workshop.
15:14.21 Niemann enters the workshop.
15:15.10 Niemann exits workshop.
15:15.28Niemann returns to the gate.
15:15.40Niemann enters the building with a pair of bolt cutters in his hand (C5).
15:16.37An arm and shoulder can be seen moving in doorway of the clubhouse (C5).
15:16.46Paunovic exits the building (C5).
15:16.52Dettman exits the building carrying a gold chain in his right hand and transfers it to his left (C5).
15:16.54Niemann exits the building with bolt cutters (C5).
15:16.55 Cekic exits the building (C5).
15:16.57Ciantar exits the building (C5).
15:16.58Ciantar turns towards clubhouse and then so does Dettman.
15:17.19All five (5) have exited the gate (C2).
15:17:25Niemann goes into the auto parts shop.
The others walk towards the cars back in the tree line.
15:18:46The silver car pulls out of the tree line and starts driving towards Commercial Road. Two (2) Black cars and one white car follow.
15:27:25A silver Holden ute pulls up at front of clubhouse.
15:27:55Brouwer enters the building.
15:28:35Brouwer comes back out of the building and can be seen talking on the phone.
15:32.00Brouwer goes to gate and closes it.
15:32.08Brouwer is near doorway using mobile.
15:32.10Brouwer disappears into clubhouse.
15:32.30A silver Holden sedan Puddy arrives from left and parks between Bonnici’s car and fence.
15:32.56 Puddy is at gate.
15:32.58 Puddy uses keys to unlock gate.
15:33.10 Puddy approaches the entrance of the clubhouse.
15:33.11 Puddy enters the building.
15:34.33Vision ends.
The CCTV footage taken by the security cameras at the Central clubhouse between 15:00 hours to 16:00 hours on 13 February 2013 records the following:
15:51.10 Mostyn Niemann driving a dark coloured Holden sedan XRI634 arrives at the gate of the clubhouse with Bozidar Cekic in front passenger seat. Niemann park this car in the north western corner of backyard of the clubhouse. Cekic goes to a dark coloured car that has been parked on the roadway out the front of the club house for a number of hours and drives it into the rear yard of the clubhouse.
15:53.15Dean Ciantar arrives at the clubhouse driving a white Holden sedan S148ADJ which after passing through the gates is parked in the rear yard of the clubhouse.
15:53.42Ciantar gets out of white Holden. He has upper torso clothing on and is carrying a white coloured object.
15:54.15 Ciantar puts on white object which is a white singlet.
15:55.00 Niemann and Ciantar enter the clubhouse via rear entrance.
15:55.32Cekic enters the clubhouse via rear entrance.
15:59.25Black Holden S214AOW arrives out the front of the clubhouse and Anthony Wells gets out of the rear passenger side door, Andrew Majchrak gets out of front passenger side door and Rhys Mundy gets out of driver’s door. They all enter clubhouse by front door.
16:15.12 A dark coloured Toyota NSW (registration plates) is at the gates with diver wearing an orange high visibility vest and the passenger wearing a yellow high visibility vest and enter when gate opens and park in rear yard of clubhouse.
16:16.31 Lehi Sheldon gets out of front passenger seat wearing yellow high visibility vest.
16:16.38Lehi Sheldon and Stephen Mann (wearing orange high visibility vest) enter clubhouse via rear entrance in company with Ciantar.
16:18:20-40Ciantar is outside in and around S148ADJ.
16:18.40-42Crime Gangs Task force red vehicle drives south along Dalgliesh Street passed clubhouse.
16:18.48 Police officers Bailetti and Fitzpatrick get out of red vehicle which is now parked on the opposite side of street to clubhouse.
16:18.55Ciantar walks back into the clubhouse through rear entrance.
16:21.26 Ciantar on passenger side of white car and removes white singlet and places in rear passenger side of car. Ciantar puts on Dark coloured upper clothing.
16:23.00Front door to clubhouse opens and Majchrak appear in the opening.
16:23.12 Fitzpatrick and Bailetti move from position at rear of black car parked on Dalgliesh Street to door to speak with Majchrak at front door of clubhouse.
16:23.21 Ciantar enters the clubhouse via rear entrance.
16:30.03Dark coloured Toyota 4WD S833ATL driven by Michael McCarthy arrives at clubhouse.
17:50.21 Dettman driving a silver car XRM063 arrives at clubhouse.
17:59.49 Dettman, dressed in coloured stripe top, greets another.
Investigations conducted at the Central clubhouse
On 13 February 2013 Brevet Sergeant Fitzpatrick received information that Charles Bonnici had been assaulted. Acting on that information he attended the Central clubhouse at 4.22 pm with Senior Constable Bailetti.
After first driving past the clubhouse, Brevet Sergeant Fitzpatrick approached the front door with Senior Constable Bailetti. On the way there he noticed a black Commodore, licence plate S214-A0W parked at an unusual angle away from the curb. While he was inspecting that car persons known to him as Andrew Majchrak and Andrew Wells emerged from the clubhouse.
Brevet Sergeant Fitzpatrick did not make contemporaneous notes of his conversation. He made the notes later on three separate occasions through the night. The first was at 7.30 pm, the second at 9.30 pm and the last at 2.45 am the next morning. He explained that he was taken away from making his notes by other duties associated with the investigation of the assault on Mr Bonnici. He testified that at 7.30 pm when he stopped making his first notes, he was conscious of the fact that he had not completed his record of the conversation. Brevet Sergeant Fitzpatrick estimated that the later notes took 5 to 10 minutes to complete but he could not recall the specific duty or duties which called him away from his task and prevented him taking the time to complete his notes. The notes were not signed by Senior Constable Bailetti.
Brevet Sergeant Fitzpatrick testified to the following conversation with Mr Majchrak, refreshing his memory from his notes.
Mr Majchrak: ‘What’s going on, what the fuck do you want?’
Brvt srgt Fitzpatrick: ‘Andrew we are here to check that everything is all right here. There has been a serious incident, Charlie has been bashed.’
Mr Majchrak: ‘Who the fuck is Charlie? I don’t know what you are talking about.’
Brvt srgt Fitzpatrick: ‘Andrew as I said, we’re here to check that everyone is safe. We’re still trying to work out what’s happened; is everything ok here?’
Mr Majchrak: ‘Yeah, why wouldn’t it be?’
Brvt srgt Fitzpatrick: ‘Police are at the Finks clubhouse up north and Charlie Bonnici has been assaulted and is in hospital. He’s in a really bad way; is everything all right?’
Mr Majchrak: ‘Yes.’
Brvt srgt Fitzpatrick: ‘This car here is unlocked; is everything okay?’
Mr Majchrak: ‘I don’t know what you’re talking about, we’re just drinking and hanging out here, don’t know Charlie.’
Brvt srgt Fitzpatrick: ‘You know Charlie Bonnici, long time Finks member, you know him.’
Mr Majchrak: ‘Don’t know what you are talking about, I didn’t do anything.’
Brvt srgt Fitzpatrick: ‘Well, Charlie has been bashed badly at northside, something bad has happened and we don’t want things to get out of control.’
Mr Majchrak: ‘Well nothing fucking happened, don’t know what you’re talking about. Look, I don’t have a mark on me. Charlie is fucking dead to me. If that’s what you’ve come for we’re done.’
Brevet Sergeant Fitzpatrick described Mr Majchrak’s demeanour as very nervous and agitated. He was breathing quite heavily. Brevet Sergeant Fitzpatrick conceded in cross-examination that Mr Majchrak was verbally obstructive in his responses.
Brevet Sergeant Fitzpatrick was adamant that even though he made the notes at later times during the night he had a clear recollection that Mr Majchrak said ‘Charlie is dead to me.’
The following items were seized from the Central clubhouse during a police search on 13 February 2013:

PPMS Number Item Number Item description Location Found

13/B88068 9 Silver 8mm semi-automatic pistol Under bar, southern end

13/B88068 10 Pistol magazine Loaded into 13/B88068-9

13/B88068 11 Home made 9mm machine gun (black) with scope Under bar, southern end

13/B88068 12 Machine gun magazine Loaded into 13/B88068-11

13/B88068 14 Machine gun magazine containing live rounds Under bar, southern end

13/B88068 17 Spiral bound notebook A6 size Hanging on wall, east end of bar

13/B88068 18 Torn photograph of Charlie Bonnici On top of counter in main room

13/B88068 20 Black DVR hard drive -S/N 12301912080046 South west corner of car park

13/B88068 22 Pages from A6 notebook with black texta writing Garage area, south west end of building

The prosecution relied on the contents of the notebook (P23) and the torn pages (P24) to show a motive for the assault on Mr Bonnici. The notebook is a spiral notebook with prelined pages and the printed words “No.” and “Date” in the top right hand corner of each page. The loose sheets which were found on a box of bourbon bottles in a shed at the Central clubhouse are of the same size, lined in the same way and bear the same printed words as the pages of the notebook. I infer from the fact that the torn pages lay loose on the box of bourbon bottles that the pages were placed there within days, perhaps weeks, of the police finding them. They are not likely to have remained in that position for any longer period of time.

Some of the pages still in the notebook and those torn from it were written on in a thick pen or texta. Most of the pages on which there was some writing were numbered at the top of the page by the same pen or texta. Pages numbered 1, 2, 3, 7, 8, 10, 11, 11 and 15 were still in the notebook. Pages numbered 4, 5, 6, 11, 13 and 14 had been torn from it and were found on the box of bourbon bottles. Some of the pages in the notebook and torn from it were not numbered.
The presence of three pages numbered 11 and the absence of any page 9 or 12 emphasise the importance of treating the notes with some caution. Moreover, there is no evidence which allows the author or authors to be identified or the time the writing was made to be ascertained. However, the relationship between the content of some of the torn pages and the pages which remain in the notebook and the reference to a New Year’s Eve event on the page numbered 13 suggests to me that the notes were made sometime in 2013. The reference to the New Year’s Eve event might suggest that the notes were made in late December 2012 but on the other hand there may have been any number of reasons to refer to the historical fact of that event when later making the notes. No finding can safely be made as to whether the notes were written by one or more persons, or were used as a means of communication between persons attending a meeting. For example, evidence was given by Mr Dettman that he worked on the basis that police might use listening devices in their surveillance of the Finks. However, Mr Cekic never saw notes used as a means of communication. Be all that as it may, there is a strong indication in the notes that the author or authors were concerned that some activities of some of the members of the North Chapter, and Mr Bonnici in particular, were detrimental to the Finks OMCG overall.
The notebook was found hanging from a bolt, which acted as a hook, in the bar of the clubhouse. The photographs in P25 do not show clearly where the notebook was hanging but the video footage of the clubhouse taken in November 2012 (P27) shows where the notebook was hanging. Indeed, a notebook appears to be in that position in November 2012. The location of the notebook suggests it was available for use by Finks members within the clubhouse. The personal notebook of a member is unlikely to be kept in a location so accessible to others. Its location also suggests that its contents are connected with the activities of the Finks members of the Central Chapter.
Page 1 of the notes which is in the notebook, refers to the obligation of an unnamed person to pay money because someone called “Harlo” had gone north. Page 2 of the notebook contains the notation “LEAVE NTH WAR LOST MONEY”.
Page 4 is torn from the notebook. It contains the complaint “I RANG 4 PEOPLE TO KNOW AVAL”. The last word on page 4 is “ANNIVERSARY”. The first words on page 5, which is also torn from the notebook, are “MEMORIAL DAY”. It is followed by these observations:
attendence fucked
bit of miscommunicat[e]
with [indecipherable]
but still fucked
Page 6, which is also torn from the notebook, reads:
noting (sic) changing but date
leave NTH to own peril
can’t change rules
Page 7, which remains in the notebook, contains the words:
just chip away at NTH
don’t want to look like pussy’s
running [indecipherable]
Page 8, which is also in the notebook, advises:
let Charlie sink himself (eg mutiny)
NTH member soon get sick of it;
No page numbered 9 was found.
The next page in the notebook is page 10 which reads:
Charlie blinded by anger –
get ambition mixed up with capabilities eg – Harlo
The next page in the notebook, which is numbered page 11, reads:
Don’t blame central when the shit hits fan
we reached out → told to fuck off.
A torn page, also numbered 11, which was found on the box of bourbon bottles reads:
Hit north where it hurts → Andrew [indecipherable]
$$$
→ need [indecipherable] to live
→ [indecipherable] no steroids.
On a page numbered 13, which was also torn from the notebook, appears to be a reference to the free entrance of all Finks members to premises known as “Strats” on New Year’s Eve. Strats, I was told by counsel, is an adult entertainment venue. Another torn page numbered 14 reads:
STH don’t exit to anybody except [indecipherable].
Page 15 which is found in the notebook reads;
To be frank they or mecinarys created for a reason.
The last page written in texta in the notebook is not numbered but reads:
To do Charlie mates
- security [indecipherable]
- restaurants
- extorts chip [indecipherable]
An unnumbered page amongst the torn pages contains the admonition: “courteous be on time or ring”. Another unnumbered torn page appears to contain a riding order for members of the club when on a “run”.
The writing on the notebook and the torn sheets of paper found at the Central clubhouse evidences that in the weeks or perhaps months before February 13 one or more members of the Central Chapter of the Finks strongly disagreed with aspects of Mr Bonnici’s leadership of the North Chapter.
Detective McManus’s statement shows that there was a strong ethos of loyalty of Finks members to each other and to their club. That evidence was corroborated by the testimony of Messrs Cekic and Dettman. Unity and cohesion were valued. The Finks held regular meetings. Mr Cekic testified that votes and debate were common and that the Sergeant at Arms would summarise and comment on propositions put at meetings. From this evidence, I infer that the views expressed in the notebook are likely to have been known to one or more of the accused before they travelled to the North clubhouse on 13 February 2013.
Case to answer
At the conclusion of the prosecution case, each of the accused submitted that there was no case to answer. The primary contention put by all of the accused was that the prosecution evidence was incapable of excluding the reasonable possibility that Mr Bonnici was beaten by one or more of the three accused, Messrs Cekic, Dettman and Paunovic, who entered the clubhouse with him, acting unilaterally and without any support from the other accused. Messrs Ciantar and Niemann also submitted that the evidence was not capable of excluding the possibility that, irrespective of any pre-existing arrangement between Messrs Cekic, Dettman and Paunovic, they were waiting outside of the clubhouse because their status as mere nominees precluded them from attending any meeting of the full members of the Finks who went into the clubhouse. They submitted that the prosecution evidence was incapable of proving beyond reasonable doubt that they were acting as lookouts.
I ruled that there was a case to answer. I now give my reasons.
It is convenient to start with the accused Messrs Ciantar and Niemann. The evidence that:
·the assault occurred soon after Messrs Cekic, Dettman and Paunovic entered the clubhouse;
·Messrs Ciantar and Niemann did not approach the gates of the clubhouse and Mr Bonnici with, and at the same time as, Messrs Cekic, Dettman and Paunovic;
·Messrs Ciantar and Niemann only moved to the gate at the front of the clubhouse when the others had disappeared into the clubhouse;
·Messrs Ciantar and Niemann stayed within sight and earshot of the front door;
·Messrs Ciantar and Niemann went into the clubhouse as soon as they received a hand and or voice signal,
in itself supports an inference which can be drawn beyond reasonable doubt that Messrs Ciantar and Niemann had agreed with at least one of the accused who had entered the clubhouse to act as lookouts whilst that accused assaulted Mr Bonnici. The evidence of their presence outside of the clubhouse and their subsequent movement into the clubhouse is evidence of their participation in that arrangement.
The contents of the notebook provide a possible motive on the part of one or more of the three who entered the clubhouse to assault Bonnici. That evidence is not strong evidence but like all items of circumstantial evidence must be assessed in the context of, and takes its final significance from, all of the other evidence in the case. It strengthens the inferences supported by the evidence mentioned in the previous paragraph in that it counters what would otherwise be the improbability of conflict within the Finks OMCG.
The evidence of the congregation of Finks members at the Central clubhouse, their massing outside of the North clubhouse and their dispersal about 15 to 20 minutes before Mr Bonnici arrived, also supports an inference that the attendance of the accused at the North clubhouse arose out of an intra-club dispute. True it is that other innocent explanations for the attendance of so many at the North clubhouse are available. For example it was an agreed fact as part of the prosecution case that a Finks run was to be held in Melbourne in March. A meeting to discuss that event may have been planned for that day at the North clubhouse. I accept also that other reasons for the attendance of so many Finks members at the North clubhouse might also be postulated.
However, the fact that the beating of Mr Bonnici occurred so soon after the accused entered the clubhouse strongly supports the inference that the accused had earlier joined in an arrangement to assault him. Such a pre-arrangement is a much more probable explanation for the assault than a spontaneous outbreak of hostility.
The prosecution evidence, if accepted, and the inferences drawn from it taken at their highest, are capable of excluding therefore possibilities to which I have referred beyond reasonable doubt.
The accused also submitted that there was no case to answer on the count charging aggravated theft. I ruled that there was no case to answer on that count and dismissed the charge.
I now deliver my reasons.
The prosecution expressly limited its case on that count to one of joint enterprise. It did not seek convictions of Mr Dettman on the basis that he unilaterally decided to steal the necklace relying on the CCTV footage which showed him carrying the necklace away from the North clubhouse. Nor did it seek a conviction of Mr Niemann on the basis that he aided and abetted that theft by procuring the bolt cutters.
There was no evidence that any one or more of the accused knew that Mr Bonnici wore, or would be wearing, the chain. There was no evidence that the taking of the chain may have been in the nature of a pre-determined “penalty” imposed by an OMCG and the Finks in particular. Moreover, the fact that the bolt cutters were procured from the auto parts business across the road rather than one of their cars suggests that the taking of the chain was not pre-planned. Plainly enough, there was evidence of a theft of the chain but there was no evidence capable of negativing the possibility that it was an opportunistic crime following upon the assault of Mr Bonnici.
The Testimony of the Accused Cekic and Dettman
Mr Cekic gave evidence. He was born in Adelaide, he attended Seaton high school where he completed year 11. At age 16 he left school to work as a concreter eventually running his own business when aged just 18.
Mr Cekic was trained in judo and jujitsu from the age of five and boxing from the age of 13 by his father who was a fifth dan black belt. Mr Cekic won four State titles and two Australian titles in judo and jujitsu around the ages of nine and ten, and at the age of 17 won a State heavyweight boxing title. Mr Cekic and Mr Niemann became friends through their boxing training.
Mr Cekic met a member of the Finks Peter Pantic at a gym in Light Square in the city. Mr Pantic invited Mr Cekic to attend the Central clubhouse for a drink. The two began training together at the gym and the clubhouse. Through his association with Mr Pantic, Mr Cekic struck up a close friendship with Mr Dettman, with whom he also trained.
Mr Cekic testified that he was attracted to membership of the Finks through his interest in motorcycles, the girls who associated with the club, the socialising and the training. Mr Cekic was nominated to join the Finks by Mr Pantic. He remained as a nominee for six to twelve months. In early 2011, Mr Cekic joined the Finks.
Mr Cekic does not have any Finks tattoos. In 2013 Mr Cekic stood at 183cm tall and weighed 110 kg.
Mr Cekic gave evidence that nominees were required to attend to menial tasks including bar tending, running errands for members and driving members around. According to Mr Cekic a nominee remained a nominee until he had proved his loyalty to the club and its members. For example, a nominee might remain sober at a family day and drive a member home if he did not have a licence.
Membership was conferred by a vote of approval from existing members of the club. Only members were permitted to wear Finks colours or tattoos.
When Mr Cekic first joined the Finks he believed that there was only one Fink Chapter, the Central Chapter. Mr Cekic’s evidence was that Mr Bonnici was a member of that Chapter.
Mr Cekic testified that a person’s membership or assignment to a Chapter was primarily based on his residence; a member would belong to whichever chapter was most convenient.
According to Mr Cekic, the Sergeant-at-Arms was a senior member of the club. The Sergeant-at-Arms gave advice to other members. No member of the club is obliged to agree with the view expressed by the Sergeant-at-Arms. In cross-examination Mr Cekic agreed that the role of the Sergeant-at-Arms was to enforce law and order within the club but he added that any member could be involved in the enforcement of discipline on other members.
Mr Cekic explained that each chapter has a different Sergeant-at-Arms. At the time of becoming a member Mr Cekic identified Mr Michael McCarthy as the Sergeant-at-Arms of Central Chapter, followed by either Mr Majchrak and Mr Taylor. On 13 February 2013 Mr Taylor was the Sergeant-at-arms of the Central Chapter. Mr Cekic testified that the Sergeant-at-arms was elected by a vote of the members.
Mr Cekic gave evidence that there were weekly club meetings of the Finks Central Chapter which were ordinarily held on Wednesday night. Any member of the Finks was welcome to a meeting of any Chapter. Nominees were not permitted to attend the meetings. Meetings would canvass any topic relevant to the Chapter, including membership, parties, fundraisers or general social activities of the members.
Mr Cekic explained that he and other members of the Finks presumed that their meetings were bugged but did not recall ever seeing a member write notes which were then passed around in meetings.
Mr Cekic testified that he was given a patch, by a member referred to as “No. 25”, who may have been a Greg Keating, recognising him as a member of the Finks Terror Team. According to Mr Cekic, membership of the Terror Team was conferred on him because he was a good fighter. He testified that the patch carried with it no additional duties or respect, nor did it oblige him to take part in any particular fights.
According to Mr Cekic, Messrs Majchrak, Symeonidis, Sandery and, the accused, Dettman were also South Australian members of the Terror Team.
Mr Cekic gave evidence that Finks members from around Australia would from time to time take part in a national “run”, an event in which large numbers of members congregated and rode their motorcycles into a particular city.
Mr Cekic had been to two national runs. Club members, from the three Adelaide Chapters, came together several months, prior to the national run to organise the logistics of their attendance. The national run meetings which he had attended were held at the central clubhouse. Between 10 to 30 members attended the meeting. At these meetings arrangements for accommodation, flights, trucks to transport bikes and other associated logistical matters were discussed and made. These discussions took place in consultation with Chapters from all around Australia.
Mr Cekic believed that there was to be a national run in late February 2013. However, it is an agreed fact that it was to be held in March. He attended a meeting to organise this national run on the Wednesday, a week before 13 February 2103. The meeting was attended by between 10 to 30 people, a majority of the club, and included members from each of the Adelaide Chapters. In cross-examination Mr Cekic accepted that he had never previously attended a meeting about the national run at the North clubhouse. He suggested that they would have had their own meetings.
On 12 February 2013 Mr Cekic attended a barbecue at the home of Mr Majchrak. There he was informed that a meeting to discuss the upcoming National Run would be held at the central clubhouse on 13 February 2013 at about one or two o’clock. In cross-examination Mr Cekic could not recall if any member of the North Chapter was present at the barbecue. He believed that representatives from all three Adelaide Chapters would attend the meeting on the 13^th February.
On the morning of 13 February 2013 Mr Cekic, trained and had breakfast with Mr Niemann in the city. The two men then went to the Central clubhouse. Mr Cekic’s explained that it was too hot to pour concrete. The two travelled in Mr Niemann’s black Holden to the Central clubhouse.
Mr Cekic testified what someone at the clubhouse told him that the location of the meeting had been changed to the North clubhouse. He was not given a reason for the change but he did overhear someone saying the change was because members of the North Chapter could not make it to the central clubhouse. Mr Cekic testified that he was in the clubhouse for up to an hour before travelling to the North clubhouse in a car with Messrs Niemann and Majchrak. Mr Cekic believed that everyone who travelled to the North clubhouse on that day did so to attend a meeting to discuss the national run.
Mr Cekic had previously attended the North clubhouse. He was familiar with the interior layout, including the pool table. He was also aware that the North clubhouse was monitored by CCTV.
Mr Cekic accepted that he arrived at the North clubhouse at 1:56pm as shown on the CCTV footage. He testified that he and other Finks members were permitted entrance to the North clubhouse, but they did not hold the keys to it. Mr Cekic believed that only members of the North Chapter had keys. Mr Cekic testified that he and the others who travelled to the North clubhouse waited for someone with keys to arrive. Mr Cekic testified, that Mr Mensforth, who was a member of the North Chapter, did not have keys to the clubhouse with him when he arrived there.
Mr Cekic testified that it was a hot day. Mr Cekic gave evidence that whilst waiting at the front of the clubhouse people moved between cars to chat and shelter from the heat in cars with the air conditioning running. Mr Cekic did not see anyone carrying a weapon. Nor did he hear any members complain about Mr Bonnici.
Mr Cekic testified that whilst waiting he overheard someone, whom he could not recall, say that they should wait for Mr Bonnici to open the clubhouse. Mr Cekic claimed that no one mentioned a particular time when Mr Bonnici, or any other member to the North Chapter was expected to arrive. He did hear one or more people say that Mr Bonnici would arrive soon.
Mr Cekic testified that a number of people left in their cars because they were tired of waiting in the heat. However, Mr Cekic and the other four accused decided to park their cars in the shaded area to the south of the North clubhouse to wait for Mr Bonnici in the belief that the meeting would still proceed. Mr Cekic denied that they resorted to that location to conceal their presence. Mr Cekic disclosed that he was bothered by the heat as he waited but denied any impatience. In cross-examination Mr Cekic claimed that he was prepared to wait around all day to get the meeting over and done with.
Mr Cekic testified that when Mr Bonnici arrived he was approached by Messrs Dettman, Paunovic and himself. Mr Cekic was lagging behind and saw Messrs Dettman and Paunovic shake Mr Bonnici’s hand. Mr Cekic claimed that he did not know that it would be Mr Bonnici who would arrive to let them into the clubhouse but he was not surprised to see him. He testified that he did expect other members of the North Chapter to arrive. Mr Cekic expected the meeting to be held in the meeting room on the mezzanine level of the clubhouse.

Mr Dettman denied that he was not at the clubhouse to have a meeting about the national run. Mr Dettman denied that he was waiting for Mr Bonnici to arrive in order to assault him. Mr Dettman denied that he went to the North clubhouse pursuant to an arrangement with Messrs Cekic, Paunovic, Niemann and Ciantar to severely assault Mr Bonnici with whatever weapons were at hand. Mr Dettman denied that part of the plan was that Messrs Ciantar and Niemann would wait outside the gates to make sure that Bonnici had come alone and that nobody came in to support him. Mr Dettman denied that he took part in this plan to further his standing with members of the central and South Chapters of the Finks.
Mr Dettman denied that members of the central and South Chapters of the Finks bore any hostility toward Mr Bonnici.
Evaluation of the testimony of Cekic and Dettman
Mr Cekic’s demeanour in the witness box was appropriate to the gravity of the circumstances in which he found himself. There was nothing about his demeanour in itself which suggested to me that he was fabricating his evidence. His answers were generally responsive and coherent. On the other hand, there were occasions on which he failed to recall details when pressed in cross-examination and occasions on which he later supplied details of circumstances that he had earlier claimed not to recall. Those occasions left me with some suspicion about the veracity of his account. Be that as it may, I am not at all persuaded of the truth of Mr Cekic’s testimony because it is inherently improbable.
It is improbable that Mr Cekic would have fallen into a heated dispute with Mr Bonnici over being kept waiting so soon after they entered the clubhouse when, on his testimony and Mr Dettman’s testimony, not one of the Finks who had waited outside the clubhouse had complained about his tardiness and there is no indication in the CCTV footage that Mr Dettman or Mr Paunovic were annoyed when they greeted Mr Bonnici.
To my mind it is improbable that Mr Bonnici attempted to punch Mr Cekic following the verbal exchange he described. It is unlikely that he would act in a way which would derail a meeting about the national run over such a trivial provocation. I find it very unlikely, on Mr Cekic’s account, that he would turn his back on Mr Bonnici after their initial exchange of punches and that he would not call out to Messrs Dettman and Paunovic to alert them that a fight had broken out. I find it even more surprising, on his account, that he did not call out to Messrs Paunovic and Dettman when he was struck on the arm by the pool cue or when he held up the chair as a shield.
Mr Cekic’s explanation for the damage to the occasional table is also improbable. It is much more likely that the damage to, and blood staining of, the occasional table resulted from its use to strike Mr Bonnici on the head.
Mr Cekic’s evidence that he had a small amount of blood on his hands is inconsistent with his account of being closely held to Mr Bonnici on the floor. It is likely that Mr Bonnici was bleeding profusely from the cut above his eye. I would therefore have expected much more blood on Mr Cekic than he described.
Nor do I believe Mr Cekic’s claim that he was in shock after he was pulled away from Mr Bonnici. He had extensive martial arts and boxing training. He was elevated to membership of the Finks Terror Team because he was a good fighter. It is simply not believable that Mr Cekic would spend about two minutes or so in the bathroom “in shock” after the fight. I would have expected him to stay in the clubhouse and to ensure that Mr Bonnici did not get the better of Mr Dettman and to explain to Mr Dettman what had happened. Mr Cekic’s account of being shocked and spending some minutes in the toilet to clean himself up is also inconsistent with the way in which he checked his appearance in the reflective windows of the clubhouse as he left.
Nor does Mr Cekic’s account of being in shock allow any satisfactory explanation as to why he was sufficiently composed to signal to Messrs Niemann and Ciantar to come into the clubhouse.
I was also unimpressed by Mr Cekic’s initial blanket denials that he had had any discussion with the other accused about what had transpired followed by his subsequent disclosure, when pressed, of disjointed communications with Mr Niemann in the car.
Mr Dettman gave his evidence in a straight forward manner. I make no criticism of his demeanour. However, I am not at all persuaded by his account. It is improbable that he and Mr Paunovic should have moved so quickly as to have been either on the stairs or on the mezzanine floor when the fight broke out. Mr Dettman’s evidence does not explain why he moved so quickly and directly to the stairs without looking back to see where his host, Mr Bonnici, was, and to see where Mr Cekic was. Mr Dettman gave no satisfactory explanation for why he pulled Mr Cekic from Mr Bonnici when, according to Mr Dettman, it was a Finks club rule that members do not intervene in the private fights of other members. The lack of any substantial or significant blood staining on Mr Dettman is inconsistent with his account of his efforts to help Mr Bonnici get to his feet, and his efforts to help him remove the chain.
Mr Dettman’s explanation for not giving Mr Mensforth more information about Mr Bonnici’s condition is implausible. On Mr Dettman’s evidence, Mr Bonnici was not only bleeding but had suffered a broken jaw and a back injury which prevented him from standing up. It is implausible that Mr Dettman would tell Mr Mensforth that Mr Bonnici had been in a fight with Mr Cekic but failed to tell him of the extent of Mr Bonnici’s injuries. Mr Dettman’s concern that his telephone conversations were listened into by police is no explanation for omitting any reference to Mr Bonnici’s injuries given that, on his own evidence, he had disclosed that it was Mr Cekic who had fought with Mr Bonnici.
Mr Dettman’s evidence concerning the removal of the chain is also implausible. On his account, there was no reason apparently connected to Mr Bonnici’s injuries for Mr Bonnici trying to remove the chain. Indeed, Mr Dettman expressly denied that he thought that the attempt to remove the chain was connected to a breathing difficulty. He testified that he “never whilst dealing with Mr Bonnici formed the view that the chain was choking him in any way”. Mr Dettman did testify that he suspected that Mr Bonnici had suffered a broken jaw. The attempts, assisted by Mr Dettman, to pull the chain over Mr Bonnici’s head could only have exacerbated the pain of the broken jaw. Mr Dettman’s evidence that Mr Bonnici had asked that the chain be given to Mr Mensforth is inconsistent with his failure to mention to Mr Mensforth anything about the chain when he phoned him minutes later. It is also inconsistent with Mr Dettman’s claim that in removing the chain he was simply carrying out Mr Bonnici’s instructions to give it to Mr Mensforth, that he should subsequently give the chain to Mr Bou-Said.
I reject Mr Dettman’s denial that he was a member of the Terror Team. I found Mr Cekic’s testimony on that issue persuasive. Mr Dettman’s testimony appeared to be contrived. Mr Cekic became close to Mr Dettman on joining the Finks. I cannot see how Mr Cekic could mistakenly have come to believe that Mr Dettman was a member of the Terror Team.
Overall as between both accused I was also left with grave doubts about the veracity of their testimony about events in the North clubhouse because of the compartmentalisation of their accounts. On both Mr Cekic’s and Mr Dettman’s testimony, Mr Dettman was not in a position to see or intervene in the initial dispute because of his improbably quick movement to the stairs. Similarly Mr Cekic was not in a position to give any testimony about Mr Bonnici’s condition on the floor and the attempts to remove his chain because of his equally improbable and hasty retreat to the toilets.
For all of the above reasons I am not prepared to accept the testimony of the accused as truthful or reliable accounts of what happened in the clubhouse. Moreover, I substantially discount the truthfulness or reliability of their accounts by reason of the improbabilities and inconsistencies to which I have referred. However, my dissatisfaction with their testimony does not relieve the prosecution of its onus. Their testimony remains evidence in the case which I must weigh in my consideration of the inferences that I am prepared to draw from the prosecution evidence and in particular in my consideration of whether I am prepared to draw the inferences for which the prosecution contends beyond reasonable doubt. It is to that question which I now turn.
Findings
I find the accounts of Messrs Cekic and Dettman that they attended at the North Clubhouse in order for the three chapters of the Finks to discuss arrangements for the forthcoming run in Melbourne to be inherently improbable. First, I find it surprising that no members of the Finks attended at Mr Majchrak’s home for the barbeque. Secondly, I find it improbable that a member or members of the North Chapter of the Finks should, on the Tuesday evening, indicate their preparedness to meet the next day at the Central clubhouse but then fail to appear altogether. It is improbable that one or more members of the North Chapter having so agreed, it should transpire that they should unexpectedly find themselves unable to attend that meeting by reason of work or other commitments.
However, most improbable of all is that the non-attendance of any of the members of the North Chapter at the barbeque and then at the Central clubhouse should fail to annoy Messrs Dettman and Cekic at all. It is very surprising that they accepted at face value a reason as improbable as that apparently given by members of the North Chapter for their non-attendance. It is also very surprising that instead of simply holding the meeting in their absence and communicating any decisions to them, the members of the Central and South Chapters decided to travel all the way to Salisbury on what was a hot February day. On the descriptions of the matters to be discussed for the run, and on Mr Dettman’s account of who was responsible for actually making the bookings and arrangements, there is no obvious reason why the meeting could not have taken place without the North Chapter members and the decisions subsequently communicated to them. Nor is there any explanation as to why, to the extent that it was desirable to know the intentions of North Chapter members in this respect, that information could not have been taken over the telephone. Finally, it is simply not believable that the members of the South and Central Chapters would then wait in the heat of the day, and with their cars parked in direct sunlight, for nearly three quarters of an hour at the front of the North clubhouse when no member of the North Chapter had arrived.
I am satisfied beyond reasonable doubt that the members of the Finks who gathered outside of the North clubhouse from about 2.00pm on 13 February did not do so in order to discuss the national run. I have already explained why I am not prepared to act on the evidence of the accused Messrs Cekic and Dettman to that effect. On their accounts, which were also urged on me by the other accused, the possibility that the purpose for the meeting at the North clubhouse was to discuss the “run” in Melbourne is dependent on there having been the two earlier failed attempts to meet of which Messrs Dettman and Cekic gave evidence. I am satisfied beyond reasonable doubt that that was not the purpose because of:
·the improbabilities to which I refer in [220]-[221] above;
·the length of time for which so many Finks members loitered outside the North clubhouse before dispersing shortly before Mr Bonnici arrived;
·the failure of any North Chapter members, other than Mr Mensforth, to arrive;
·the desultory attempts to contact North Chapter members whilst waiting for them to arrive.
I can also exclude other possibilities, for example, that this was the first planned meeting to discuss the Melbourne run because neither Mr Dettman nor Mr Cekic claimed any such thing.
However, I do find that the purpose of the meeting was for senior members of the Central and South Chapters to meet Mr Bonnici. I am not able to make a finding beyond reasonable doubt as to the precise reason for that meeting. I am satisfied that the meeting was pre-arranged because of the way that Messrs Paunovic and Dettman greeted Mr Bonnici. It is plain that Mr Bonnici expected to see Messsrs Dettman, Paunovic and Cekic at the clubhouse when he arrived. I am also satisfied beyond reasonable doubt that the purpose of the meeting was a matter of substantial concern to senior members of the Central and South Chapters. I am so satisfied on the basis of the attendance of a number senior members of the Finks and in particular current or former Sergeants at Arms at the Central clubhouse at about 1.00pm and outside of the North clubhouse for some time after 2.00pm.
It is convenient to observe here that I have placed no weight on the Brevet Sergeant Fitzpatrick’s conversation with Mr Majchrak. I am uneasy about the incremental process of making the notes. More importantly, Mr Majchrak’s comments are as explicable as a reaction to the assault of Mr Bonnici, which he is likely to have learnt, as they are an indication of the motivating reason for it. I have not placed weight on the gathering of Finks members at the Central clubhouse after the assault for the same reason.
I am satisfied that the dispersal of all of the Finks members, apart from the accused, in the 20 minutes or so before Mr Bonnici’s arrival was connected to his arrival. In particular, I find that such phone calls as were made at the Central clubhouse, perhaps through the agency Mr Mensforth, procured the attendance of Mr Bonnici at the North clubhouse. His attendance may have been negotiated whilst the accused and other Finks waited outside the North clubhouse. Howsoever the meeting was arranged, Mr Bonnici’s arrival at about the time that he did arrive was expected. I am satisfied that both the movement of most of the Finks members away from Middle Row and the movement by the accused of their cars to the shaded area to the south of the clubhouse were connected and related to the impending arrival of Mr Bonnici. Mere coincidence is an improbable explanation for the relatively close temporal connection of these events. It can be accepted that it was a hot day and that it would have been more comfortable to have the cars parked under shade. However, that does not explain why the accused and the other Finks were prepared to leave the cars under direct sunlight and to wait in the heat immediately outside the clubhouse for as long as they did until about 15 to 20 minutes before Mr Bonnici arrived.
In the absence of any other explanation, I find that the probable purpose of the meeting concerned the matters underlying the complaints made about Mr Bonnici’s leadership of the North Chapter in the notebook. It is significant that the writing on a page torn from the notebook refers to the need to be courteous and on time when the North Chapter members had failed to attend both the barbeque or the Central clubhouse meeting. Even though I am satisfied that the probable reason for the meeting was a dispute of some kind between the North Chapter on the one hand and the South and Central Chapters on the other, I am not so satisfied beyond reasonable doubt.
Accordingly, I cannot be satisfied beyond reasonable doubt that the decision to meet and the subsequent assault on Mr Bonnici were at the direction of, or in association with, a criminal organisation. There may not have been a resolution, formal or otherwise, of the Finks, as an organisation, to beat Mr Bonnici. Personal hostility might also have been the reason. Similarly, even though I think it probable that the accused believed that the punishment of Mr Bonnici was in the interests of Finks as an organisation, I am not satisfied beyond reasonable doubt that the assault was committed to benefit any of the accused.
Even though the fourth circumstance of aggravation has not been made out, my finding as to the probable reason for the meeting provides a motive for the joint enterprise alleged by the prosecution.
Having rejected the fourth circumstance of aggravation, I indicate that I put aside the evidence of Detective McManus as to the criminal activities and discreditable conduct of the Finks members. I rely only on those parts of his statement describing the roles of officers of the Finks, the distinction between members and nominees, the conduct of meetings, the ethos of loyalty and the reluctance to cooperate with law enforcement agencies. I also put to one side the evidence of the fortifications of the clubhouses and the weapons found there.
Turning to the events in the North clubhouse, I find that Messrs Paunovic and Dettman did not proceed directly up the stairs. The presence of Mr Paunovic’s pie on the western end of the pool table persuades me that he did not walk up the stairs. The CCTV footage shows that as he entered the pie was half eaten. The small amount of pie left on the pool table suggests that he had taken no more than one or two bites before putting it down. Mr Paunovic had time to take those bites as he walked through the door and into the clubhouse. There is no reason for him to have left the pie on the pool table other than to take part in, or to stand ready to take part in, the attack on Mr Bonnici. I reject as a reasonable possibility that Mr Paunovic carried the pie all the way up the stairs and then all the way back down in the period of several minutes which would have elapsed if Mr Dettman’s account were truthful.
I reject as a reasonable possibility that a fight would have broken out between Mr Cekic and Mr Bonnici because of annoyance about the delay so quickly after they had entered the clubhouse. The immediacy with which the fight broke out strongly indicates that there was a pre-existing arrangement to assault Mr Bonnici once inside the clubhouse. So too do the movements of Messrs Niemann and Ciantar to which I referred in [119]. Mr Cekic’s signalling to Messrs Niemann and Ciantar to come into the clubhouse also supports that conclusion.
The damage to the occasional table strongly indicates that it was used to hit Mr Bonnici over the head. The damage to the occasional table is inconsistent with Mr Cekic’s account but strongly supports the inference that it was used as an offensive weapon.
The damage to three pool cues and the vacuum cleaner also suggests a fight with weapons between more than just Mr Cekic and Mr Bonnici. I accept that Mr Bonnici may himself have used at least one pool cue in the course of the fight. It is likely that Mr Cekic was struck on the arm by a pool cue. However, the number of items apparently used as weapons suggests a fight involving more persons than that described by Mr Cekic.
I observe here that I have had regard to the defence submissions that the fact that Messrs Cekic, Dettman and Paunovic did not carry weapons in with them is inconsistent with a pre-arranged plan to assault Mr Bonnici. Given their summer clothing, weapons would have been difficult to conceal and would have alerted Mr Bonnici to any plan. The three men had reason to have confidence in their combined capacity to subdue Mr Bonnici by their own strength and by using such furniture as was available.
Nor am I persuaded by the submission that Mr Paunovic was unlikely to have walked into the North clubhouse eating a pie if he expected a fight. Mr Paunovic may have expected that the “heavy lifting” would be undertaken by the Terror Team members. The eating of a pie is not likely to have hindered him greatly.

I am not persuaded that it is improbable that the accused and other Finks had in mind an assault on Mr Bonnici because they stood in open view outside the clubhouse for as long as they did. The assault of Mr Bonnici was committed behind the walls of the North clubhouse. Nor would the presence of exterior security cameras have concerned them. The OMCG ethos of non-cooperation with law enforcement authorities is likely to have given them comfort.
The chain indentations on Mr Bonnici’s neck suggest that he was held by one or other of the accused during the course of the struggle. The indentations are not explained by Mr Cekic’s and Mr Dettman’s accounts. In particular, the attempt to remove the chain described by Mr Dettman may have left indentations on the chin, jaw or face but not the neck. I observe here that the most likely reason for the removal of the chain and its subsequent return to Mr Bonnici’s former partner is that the removal was intended to symbolise the exercise of power over Mr Bonnici by the accused. However, for the reasons I have earlier given, I am not satisfied that the removal was part of the pre-arranged plan.
When the accused left the premises, there is no indication of surprise, shock, concern or agitation on their part. Indeed, Mr Cekic paused to check his appearance in the reflective window of the clubhouse. I am conscious of the need for caution in drawing inferences from appearances of demeanour generally and from the CCTV footage in particular. Nonetheless, the absence of the signs I have mentioned is inconsistent with the possibility that the assault on Mr Bonnici was spontaneous and unexpected.
The testimony given by Mr Cekic and Mr Dettman of the elliptical conversations between the accused as they left also supports the inference that they were not surprised by how events had unfolded. The lack of interest in finding out from Mr Cekic what had happened is inconsistent with his account of a spontaneous unexpected outbreak of hostility. To the contrary it supports an inference of pre-concert.
For the above reasons, I find beyond reasonable doubt that all five accused joined in an agreement to assault Mr Bonnici and participated in it. Messrs Cekic, Dettman and Paunovic as perpetrators in the clubhouse. Messrs Ciantar and Niemann as lookouts. The essential elements of the arrangement between all of the accused except Mr Ciantar were made by the time they left the Central clubhouse but may have been modified as they waited in Middle Row. Mr Ciantar joined in the agreement whilst waiting in Middle Row if not before. My finding that the agreement was made before entering the North clubhouse negatives any possibility that Mr Cekic or any of the others were acting in self defence.
It is admitted that Mr Bonnici suffered serious harm. I am satisfied that in agreeing to assault Mr Bonnici, each of the accused also agreed to inflict serious harm on him. I find that they agreed to inflict that level of harm because they realised that it would be necessary to do so in order to subdue a man of Mr Bonnici’s size. There could be no half measures in a planned assault on Mr Bonnici.
I find beyond reasonable doubt that each of the accused participated in the joint enterprise to cause Mr Bonnici serious harm. Messrs Cekic, Dettman and Paunovic by entering the North clubhouse and by taking part in the assault and Messrs Niemann and Ciantar by acting as lookouts.
I find that the aggravating circumstances of acting in company and the use of weapons are also proved beyond reasonable doubt.
Verdict
I find each of the accused guilty of the offence of aggravated causing serious harm, with intent to cause serious harm, of Mr Bonnici on 13 February 2013.
In accordance with my finding of no case to answer on count 2, I find each of the accused not guilty of theft.
Appendix

Name	Membership Class	Chapter	Office held
Charles Bonnici	Senior Member	North Chapter	Sergeant at Arms
Malek Bou-Said	Member
Nicholas Brouwer	Associated from 2007	North Chapter
Andrew Majchrak	Senior Member	Central Chapter	Sergeant at Arms
Timothy Mensforth	Long standing member	North Chapter
Michael McCarthy	Senior Member	Central Chapter	Sergeant at Arms
Daniel Puddy	Member since 2011	North Chapter
Harry Symeonidis	Senior Member	South Chapter
Brett Taylor	Senior Member	Central Chapter	Sergeant at Arms
Darren Willing	Senior Member	North Chapter
Stephen Mann	Associated since 2012
Rhys Mundy	Associated since 2012
Lee Hi Sheldon	Associated since 2012
Anthony Wells	Nominee from 2010
Paunovic	Member since April 2012	South Chapter
Dettman	Member since 2010	South Chapter	Sergeant at Arms in February 2013
Cekic	Member since April 2011	Central Chapter
Niemann	Nominee since October 2012	South Chapter
Ciantar	Nominee since 2012	South Chapter

PPMS Number	Item Number	Item description	Location Found
13/B88068	9	Silver 8mm semi-automatic pistol	Under bar, southern end
13/B88068	10	Pistol magazine	Loaded into 13/B88068-9
13/B88068	11	Home made 9mm machine gun (black) with scope	Under bar, southern end
13/B88068	12	Machine gun magazine	Loaded into 13/B88068-11
13/B88068	14	Machine gun magazine containing live rounds	Under bar, southern end
13/B88068	17	Spiral bound notebook A6 size	Hanging on wall, east end of bar
13/B88068	18	Torn photograph of Charlie Bonnici	On top of counter in main room
13/B88068	20	Black DVR hard drive -S/N 12301912080046	South west corner of car park
13/B88068	22	Pages from A6 notebook with black texta writing	Garage area, south west end of building