R v Graham and Weetra - [2019] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRAHAM AND WEETRA
[2019] SADC 41
Reasons for Decision of His Honour Judge Slattery
1 April 2019
CRIMINAL LAW - PROCEDURE
The first defendant was charged with and pleaded guilty to 2 counts of failing to act honestly in the performance of duties as a public-sector employee.
The second defendant was charged with and pleaded guilty to 2 counts of aiding, abetting, counselling or procuring the first defendant to commit the offence of breaching her public duties.
The offences were charged against both of the defendants as being aggravated; that to the knowledge of the first defendant the illegally obtained information was provided to the second at the behest of or in order to obtain information to be passed to the Hell's Angels Outlaw Motorcycle Gang. A disputed facts hearing was held concerning the question of the aggravating feature.
Held:
In relation to Count 1, the aggravating feature has not been proved beyond reasonable doubt.
In relation to Count 3, the aggravating feature has been proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 s 26(1), s 267, referred to.

R v GRAHAM AND WEETRA
[2019] SADC 41

The first defendant is charged on an Information for arraignment on 15 December 2017 with four separate counts of failure to act honestly in the performance of duties and abuse of public office. On the same Information, the second defendant is charged with aiding and abetting or procuring those breaches. On 29 November 2018 and 21 December 2018, the defendants respectively pleaded guilty to the first and third counts on the Information. These pleas were accepted in satisfaction of all of the counts on the Information.
Those counts read as follows:
First Count
Statement of Offence
Failure to Act Honestly in the Performance of Duties. (Section 26(1) of the Public Sector (Honesty and Accountability) Act, 1995 and section 267 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kim Marie Graham on the 21^st day of March 2017 at Adelaide or another place, being a public sector employee, failed to act honestly in the performance of her duties.
It is further alleged that Colin Andrew James Weetra aided, abetted, counselled or procured Kim Marie Graham to commit that offence.
…
Third Count:
Statement of Offence
Failure to Act Honestly in the Performance of Duties. (Section 26(1) of the Public Sector (Honesty and Accountability) Act, 1995 and section 267 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kim Marie Graham on the 13^th day of April 2017 at Adelaide or another place, being a public sector employee, failed to act honestly in the performance of her duties.
It is further alleged that Colin Andrew James Weetra aided, abetted, counselled or procured Kim Marie Graham to commit that offence.
Background
At the material times, the subject of the two counts, Ms Graham was a public officer employed by the Department for Correctional Services with a specific focus upon support for Aboriginal prisoners and their families.
Ms Graham had access to all of the prison records held on the Department’s databases but generally, her access would be taken to information about Aboriginal persons. This was because of the more restricted nature of her role in dealing with Aboriginal offenders.
Following unrelated allegations, telephone intercepts commenced on Ms Graham’s telephone in February 2017. It was then discovered that the accused, Mr Weetra, had regular contact with Ms Graham by phone and in person and it is alleged that at the material times Mr Weetra was associated with an outlaw motorcycle gang, the Hell’s Angels. The issue for consideration here is whether that aggravating feature can be proved to my satisfaction beyond reasonable doubt in relation to both Mr Weetra and Ms Graham.
In relation to Count 1, it is alleged that on 21 March 2017 Ms Graham took access to the Department’s records and provided information to Mr Weetra about non-Aboriginal persons unconnected to her work. Subsequent conversations between Mr Weetra and Ms Graham infer that the request for information, the subject of Count 1, came from Mr Weetra to Ms Graham.
In relation to Count 3, Mr Weetra made a request to Ms Graham on 13 April 2017 for information about a person whose name had been written down on a piece of paper and delivered to Ms Graham’s daughter. Ms Graham then followed up with her daughter and asked her to text the name to her and that material was texted to Ms Graham at 4.05pm on that day. The name was transmitted and Ms Graham then accessed the electronic file of that name within 10 or 11 minutes of receiving the name through the text transmission. At 4.51pm on the same day, Ms Graham sent to Mr Weetra a text message containing the address of the person identified and as recorded in the database. The Independent Commission Against Corruption (ICAC) made an investigation, arrested both Mr Weetra and Ms Graham and upon being searched by investigators, Ms Graham was found to be in possession of handwritten notes including information about a person in respect of whom an enquiry had been made.
Disputed Facts
The disputed facts hearing concerned the question of the aggravating feature, namely that Mr Weetra (and as was known by Ms Graham) sought the information provided by Ms Graham in order to further his association with the Hell’s Angels Outlaw Motorcycle Gang. As part of the aggravating features, the prosecution’s case is that Ms Graham knew of that association of Mr Weetra and provided the information to him when it was apparent that Mr Weetra was requesting this information in furtherance of his association with the Hell’s Angels Outlaw Motorcycle Gang. The prosecution also asserts that Ms Graham knew of this association and in that context provided the information when the only reasonable inference was that the information was sought for the purpose of that association. This is the alleged aggravating feature of the offending.
The prosecution defines the issue in relation to the aggravating feature as whether the Court is able to determine from the material before it, a link through Mr Weetra and the connection with the Hell’s Angels Outlaw Motorcycle Gang and the knowledge of Ms Graham in relation to it.
The prosecution argues that an inference can be drawn from the calls and text messages intercepted by ICAC that Ms Graham was aware of the connection of Mr Weetra to the Hell’s Angels Outlaw Motorcycle Gang, was aware he was going to Hell’s Angels’ meetings at the time and that he was a ‘prospect’ of a Hell’s Angels Chapter and she provided the information to him in that connection. Being a ‘prospect’ of the chapter meant that Mr Weetra had to do things to assist the members. This was part and parcel of the requirements he had to fulfil in order to obtain full membership. One of the things he was doing was providing information to the Hell’s Angels Outlaw Motorcycle Gang about people who had previously been in custody.
The prosecution tendered Exhibit P1 which is a folder of materials divided into four parts. There was no objection to its receipt on the application. I remind myself that the issue for my consideration is whether I am satisfied beyond reasonable doubt of the aggravating features. An unusual aspect of the consent of the defendants to the receipt of this Exhibit was that it contained as Item 1 an outline of the prosecution facts and as Item 2 an outline of the issues in dispute. I was then and remain unable to see how those documents fell within what is commonly described as evidentiary matter. I have decided to put that question aside and limit my consideration of these matters to the admissible evidence before me.
Evidence of Detective Sergeant Lienert
The principal evidence, contained within Exhibit P1, is the Affidavit of Heath Ross Lienert, a Detective Sergeant of police, attached to the South Australian Police Crime Gangs Task Force – Serious and Organised Crime Branch. Detective Sergeant Lienert gave evidence and he was cross-examined. His Affidavit is dated 6 February 2019. Detective Sergeant Lienert was qualified to give evidence because of his particular expertise in relation to outlaw motorcycle gangs. There was no challenge to this expertise which had been gathered over many years of dealing principally with two outlaw motorcycle gangs, one of which was the Hell’s Angels. He has been involved in this work over much of the 22 years of his employment as a police officer. The Task Force with which he is and has been involved conducts targeted and reactive investigations of alleged criminal and anti-social offences committed by Hell’s Angels and other motorcycle gangs. His training and the gaining of his expertise derives from on-the-job work, separate training, the attendance at seminars locally, interstate, nationally and internationally on dealing with outlaw motorcycle gangs and all of the information that he has gathered in the fulfillment of the various tasks required of a person of his rank.
He is therefore familiar, through his sources of information, with intelligence which is disseminated for further investigation including the activity, movements, structure and membership as well as the criminality of outlaw motorcycle gangs. He informed me that a motorcycle run in relation to a motorcycle gang is essentially a ride conducted by members of the particular gang. It could be a state or national run or a world run where only those persons described as ‘members’, ‘prospects’ or ‘nominees’ and those wanting to join the gang known as ‘hang arounds’ would attend. In his role, he is able to gather information about those persons who are members of the outlaw motorcycle gangs at any particular time and those persons who are prospective members. He gathers this information through informers and through investigations, through strategies such as undercover operations, telephone intercepts and other electronic means. He also exchanges information with local, interstate and overseas sources and authorities.
He said that there are 10 particular characteristics of an outlaw motorcycle gang (which hereunder are described as a ‘club’) and they are:
1Strict code of silence throughout the entire membership;
2A culture and acceptance of violence applied internally and externally;
3Demonstrated loyalty to the Club and its members;
4A strict obedience to the Club hierarchy and rules that is enforced by monetary fines, expulsion and/or violence;
5Disregard for established social norms and law enforcement authority;
6Practices of intimidation towards the community and police;
7A high percentage of members having a history of criminal behaviour;
8Use of sophisticated electronic equipment;
9Counter-surveillance being conducted and intelligence gathered against law enforcement and rival gangs; and
10The cultivation and corruption of contact persons within key agencies and utilities.
He said that these are characteristics that applied to Hell’s Angels as an outlaw motorcycle gang. He was able to provide history of how outlaw motorcycle gangs developed from an event in 1947 in California in the United States and how the Hell’s Angels Outlaw Motorcycle Gang grew out of those events. There have been three Chapters operating in South Australia, the first established in 1983 called the Adelaide Chapter. There are other outlaw motorcycle gangs such as Rebels, Gypsy Jokers, Descendants, Comancheros, Red Devils and the Finks and since 2015, these have been declared criminal organisations.
For a person to become a member of the Hell’s Angels Outlaw Motorcycle Gang he must first be an associate or a friend of a member of the Gang. An associate may not necessarily want to join the gang but if he does, he will indicate his willingness to become a member and become known as a ‘hang around’. When he makes his intention known that he actually does want to seek full membership, the process towards full membership is commenced and he would then need to be sponsored by someone within the Gang who is a full member. The Gang would then vote and if a 75% approval vote is obtained, he would then become a ‘prospect’ for the Gang. Before becoming a ‘prospect’, a person’s history would need to be fully traceable.
Once that person becomes a ‘prospect’, he would then remain a ‘prospect’ for a period of at least 12 months and if a 100% membership vote can be obtained, that person would become a full member. That person, as a full member, would then be required to comply with the rules of the chapter, the by-laws for the national rules and the world rules.
In relation to Hell’s Angels, the expectation is that every member of the Hell’s Angels would become involved in any violent confrontation that other members are involved in and depending upon circumstances, there may be ramifications if those persons do not become involved, particularly when they are still a ‘prospect’.
There is a hierarchy within chapters starting with a president, officeholders such as vice-president, secretary and treasurer. There is a sergeant-at-arms who is the enforcer within the Gang. A chapter is similar to a franchise and there are three Chapters of the Hell’s Angels Outlaw Motorcycle Gang in South Australia. There is the Adelaide chapter commenced in 1983, the North Crew which commenced in 1996 and the Dead End Crew which started in 2006. There are world rules for the Gang and these are exhibited to the Affidavit tendered as evidence as Exhibit HL1 and HL2. Exhibit HL3 to the Affidavit of Detective Sergeant Lienert is the local chapter rules.
Members of the Gang and others may wear patches that are Gang embroidered insignia. If a person is a ‘hang around’, that person would be entitled to wear a flash upon the black leather or denim jacket worn typically by members of the motorcycle gang. The flash is a small rectangular patch with a white background and a red border and this will signify that the person is ‘hanging around’.
If the person becomes a ‘prospect’, and therefore is able to obtain a vote of 75% of the membership, that person is entitled to wear a ‘prospect flash’ with the words ‘prospect’ on it and a flash showing what chapter he is prospecting for; the flash is worn on the chest and then on the rear of the vest. The ‘prospect’ has what is referred to as a ‘bottom rocker’ which is a semi-circular patch in red and white saying ‘Australia’ and above that is a patch with the letters ‘MC’ which refers to a motorcycle club. If a person becomes a full member, he would get a Hell’s Angels flash and so would replace the ‘prospect flash’ with the Hell’s Angels flash. On the rear, there would be a ‘top rocker’, which is a semi-circular patch on the top of the rear of the vest with the words ‘Hell’s Angels’ and below there would be a patch showing the emblem of the Hell’s Angels which is called a ‘death head’. All of this detail is shown within the material at page 21 of the Affidavit of Detective Sergeant Lienert. Full members are also entitled to have tattoos which say ‘Hell’s Angels’ and ‘Death Head’ which must be removed if they leave the gang in bad standing. If they leave the gang in good standing, there would be an out-date tattoo.
Detective Sergeant Lienert was not seriously challenged on the evidence he gave that the Hell’s Angels Outlaw Motorcycle Gang franchises have regular meetings. A meeting of the Hell’s Angels Outlaw Motorcycle Gang is referred to as ‘church’. In 2017, for the Hell’s Angels North Crew, ‘church’ would occur weekly, normally upon Friday nights. The meeting would be moved if there was a reason such as a holiday Friday. ‘Church’ meetings are held now at the member’s houses following the enforcement of legislation in South Australia. Full members are allowed to attend the meetings. ‘Prospects’ and ‘hang arounds’ would be asked to leave the meeting and wait outside. They would be allowed back in when the meeting was finished. There are sanctions if members do not attend meetings. These could be fines, a form of violence or in the end expulsion.
Mr Weetra’s alleged involvement in motorcycle gangs
The South Australian Police hold records of the membership of the defendant Mr Weetra within motorcycle gangs. In the period between April 2011 and March 2016, Mr Weetra was cited or spoken to on a number of occasions by police and he indicated that he was a member of the Rebels outlaw motorcycle gang. He was seen on national runs, at Rebels’ club room, he was seen wearing Rebels’ clothing and a Rebels’ vest and wearing Rebels’ jewellery. He told police in 2016 that he was a full member of the Rebels outlaw motorcycle club.
In relation to the Hell’s Angels, Mr Weetra first came to the notice of police about an affiliation with that gang in February 2017 when police stopped him en route to a Hell’s Angels event being held in Mildura, Victoria. He was riding with a full member of the Hell’s Angels, and was wearing a black leather vest that did not have any Hell’s Angels patches indicating that at that time he was not a ‘prospect’ but may only have been a ‘hang around’.
On 15 May 2017, members of the Police Crime Gangs Task Force spoke to Mr Weetra and at that time he was carrying a vest indicating that it was a vest of a Hell’s Angels North Crew ‘prospect’ and he informed police that the vest belonged to him.
On 12 September 2018, the police conducted a search of Mr Weetra’s home. During that search, the police were unable to find any material connecting Mr Weetra to the Hell’s Angels Outlaw Motorcycle Gang.
The charges before the Court
Detective Sergeant Lienert was then taken to the intercept material from the phones of Mr Weetra and Ms Graham. On 11 February 2017, Mr Weetra sent to Ms Graham an SMS text in the following terms: ‘In Mildura with 81’. There is no contest that there was this exchange of texts between the two phones belonging to Mr Weetra and Ms Graham. Detective Sergeant Lienert gave evidence that this means that Mr Weetra was in the town of Mildura with members of the Hell’s Angels Outlaw Motorcycle Gang. The date it was sent, namely 11 February 2017, was the date of the Hell’s Angels national run in 2017.
The importance of this text is that Weetra was attending Hell’s Angels events before the dates of the offences in respect of which guilty pleas have been entered. Also by way of explanation, the expression ‘81’ is to be interpreted as the 8^th letter of the alphabet followed by the 1^st letter of the alphabet. The 8^th letter is ‘H’ and the first letter is ‘A’. This acronym HA so derived stands for Hell’s Angels.
Detective Lienert was then taken to a telephone conversation between Mr Weetra and Ms Graham dated 13 April 2017 at 3.30 pm. In that telephone conversation, Ms Graham informs Mr Weetra that she has been at the jail all day. As part of her duties, she is required to visit Aboriginal inmates in all prisons. She said that she was heading back to the office. Mr Weetra then informed her that, at 3.30 in the afternoon, that he was heading off to ‘church’ now ‘… so like um 5:30 when we spoke last night, you know, I thought I would catch up with you before then.’ Detective Sergeant Lienert said that this was to be understood as a reference to Mr Weetra going to a meeting of the Hell’s Angels which was a regular ‘church’ meeting as he had described it. Detective Sergeant Lienert also said that Mr Weetra was a ‘prospect’ for memberhip of the Hell’s Angels North Crew at the time, he having become one between 10 February and 5 May 2017.
Evidence of Detective Brevet Sergeant Bridge

The balance of the material was then addressed in the evidence of Amanda Jane Bridge, a senior investigator with the ICAC, having been seconded from the South Australian Police. She has been a member of the South Australian Police for 25 years and working with the ICAC for a period of 2 years. She is a Detective Brevet Sergeant in the Police. She conducted the investigations for the telephone intercepts between Mr Weetra and Ms Graham following the seeking of a warrant on 8 February 2017 which was then extended in time and scope for all phone calls to and from Ms Graham’s phone and to and from Mr Weetra’s phone as well as text messages.
After listening to a very large quantity of material which is recorded, Detective Bridge was able to isolate 12 text messages and phone calls and download them to a disk which was admitted to evidence and is marked Exhibit P2. She gave evidence, similar to the evidence given by Detective Sergeant Lienert, in relation to the first text message concerning being in Mildura with Hell’s Angels. She was then taken to the 13 April 2017 record of the telephone calls between Mr Weetra and Ms Graham marked 6046. After Mr Weetra announced that he was going off to ‘church’, the Hell’s Angels’ meeting, he is asked by Ms Graham whether he wanted her to ‘text it to you’. Therefore, on that day, Ms Graham knows that Mr Weetra is going to ‘church’ and she is requesting whether or not he wished her to text information to him.
Ms Graham had been the source of information, under the First Count, for the named person but there is no evidentiary basis that I can see to substantiate a conclusion beyond reasonable doubt that this exchange was connected with the Hell’s Angels Outlaw Motorcycle Gang. Different to that position and in relation to the exchange on 13 April 2017, based on all the evidence before the Court, I am satisfied beyond reasonable doubt that the only inference that arises from this exchange, is that Ms Graham was aware that Mr Weetra was heading off to a Hell’s Angels’ meeting, and he was seeking the provision to him of information that Ms Graham had obtained before he went to that meeting of the Hell’s Angels. The very clear inference is that he required that information for the purposes of attending at that meeting. In particular, at line 43 of the exchange, Ms Graham informed Mr Weetra that, having provided him with this information, that ‘… you owe me fucking big time …’ raising the clear inference of two things: how important the information was for him and how much risk she was accepting in doing this for him.
Detective Bridge said that she listened to many thousands of calls and, in the context of the use of the expression ‘church’ about which Detective Sergeant Lienert had already given evidence, she was not ever able to obtain any religious context out of the use of that expression. This is consistent with the largely unchallenged evidence given by Detective Sergeant Lienert that the expression ‘church’ means a meeting. There was some suggestion that it could mean going to a hotel for a drink but this was not seriously put or pursued. The suggestion was rejected by Detective Sergeant Lienert. I reject it as a reasonable possibility.
Detective Bridge then gave evidence about the telephone call on 20 April 2017 marked 6601. This is a telephone call from a Mr Tim Graham to Ms Graham. In it, there is a reference to ‘big fella’. Having read all of these exchanges, I am satisfied beyond reasonable doubt that the expression ‘big fella’ is a reference to Mr Weetra. At line 18, Mr Tim Graham informs Ms Graham that Mr Weetra apologised for not being around but he is a ‘prospect’ now and he was busy and had jobs to do. Thus, she was aware that on 20 April 2017, Mr Weetra was a ‘prospect’ for the Hell’s Angels Outlaw Motorcycle Gang. She confirms that by her response at line 21 ‘… yeah, I gathered that …’ This response indicates that she understands what is being said to her and was already familiar with that information. I am satisfied that this was the case on 13 April 2017. That is reconfirmed to her by Mr Tim Graham telling her in the next exchange that after apologising to her for not being around, Mr Tim Graham should let Ms Graham know that he has just been busy because he is a ‘prospect’ now for the ‘HAs’ and he has a lot of jobs to do. He will be around when things are less busy. This is confirmed in the exchange at line 36.
I am satisfied beyond reasonable doubt that a reference to ‘HAs’ is a reference to Hell’s Angels and I am satisfied beyond reasonable doubt that a reference to a ‘prospect’ for the ‘HAs’ means that Ms Graham was being told again, and she already understood, that Mr Weetra is a ‘prospect’ for the Hell’s Angels Outlaw Motorcycle Gang and that he had a lot of jobs to do. That is consistent with the evidence given by Detective Sergeant Lienert who informed me that once a person becomes a ‘prospect’, he is given jobs to do by the chapter and he is required to fulfil them as part of their initiation to full membership if that is the decision of the membership itself. The balance of that intercept contains a number of references to messages being communicated to Ms Graham by Mr Tim Graham from Mr Weetra.
Detective Bridge was then taken to the third telephone conversation between Ms Graham to Mr Tim Graham which is call number 6740 dated 21 April 2017. In it, Mr Tim Graham informs Ms Graham that he has cannabis and refers to the expression ‘bunda’. That means money. Ms Graham informs Mr Tim Graham that she had tried to ring ‘the big fella’ but he did not answer. Detective Bridge said that consistently throughout these calls, the reference to Mr Weetra was made by the expression ‘the big fella’. There was no other reference to someone who carried the nickname ‘big fella’ apart from Mr Weetra. This further satisfies me that in relation to the earlier calls, the references to ‘big fella’ was a reference to Mr Weetra.
The next exchange is a text message number 7693. This is a text message from Ms Graham’s phone to Mr Tim Graham’s phone informing him that the ‘big fella’ had popped in to her home the previous night with two ‘HA chicks’. The expression ‘HA chicks’ is a reference to Hell’s Angels women. In the text message, Ms Graham tells Tim Graham that Mr Weetra reckoned that it was in her best interests to meet these women. This illustrates her familiarity with the fact that he is associating with Hell’s Angels people, he being in company with two ‘HA chicks’. These are properly to be understood to be the wives or partners of Hell’s Angels members.
There is another text number 7694 from Mr Tim Graham to Ms Graham. In it he says ‘True deadly. Sounds like your an interest, they have plans for you ha’. I am satisfied that that text is self-explanatory. The expression ‘they’ is a reference to the Hell’s Angels and their interest in drawing Ms Graham in ever more deeply to the vortex of cooperation, knowing of her access to information.
The next document is 7695. It is a text from Ms Graham to Mr Tim Graham. It reads ‘Lol’ which is an acronym for ‘laugh out loud’.
The next document number 7722 is a record of a telephone call between Ms Graham and Mr Tim Graham on 30 April 2017. In it, Ms Graham describes to Mr Tim Graham the women who had been brought around to her home by Mr Weetra. Again, she refers (lines 36-38) to Mr Weetra telling her that it is in her best interest and that Mr Weetra wanted her to meet these ‘miminis’. The expression ‘miminis’ is an Aboriginal expression meaning women. The approach is the same: the Hell’s Angels know that Ms Graham is now compromised and so they try to draw her in more deeply.
Then, at line 64, Ms Graham informs Mr Tim Graham that the two women who Mr Weetra brought around to her home were ‘fucking higher up wives of members, you know what I mean?’ This means that she knows they are wives of Hell’s Angels members. Then, Ms Graham informed Mr Tim Graham of her objection to these women being brought around to her home by Mr Weetra and complaining about the fact that Mr Weetra was not answering her telephone calls including a text sent to him asking him to respond. He had not done so. When he did call, she could hear female voices in the background, the clip clopping of high heels and Mr Weetra telling her that he was looking after members’ wives. Then at line 132, Ms Graham recounts again to Mr Tim Graham that she told Mr Weetra that she did not want him bringing these women around to her home and being told again by him that it was in her best interests for her to meet them, which she rejected.
The next exchange is a text number 8029 from Ms Graham to Mr Tim Graham dated 5 May 2017. It reads ‘No worries plz don’t put those photos on Facebook cuz. I can’t be associated with bikies lmao’. Detective Bridge said that the acronym ‘lmao’ means ‘laugh my ass off’. The text message and all the associated prior communications satisfy me beyond reasonable doubt that Ms Graham is aware of the connection with the outlaw motorcycle group.
The next exchange is number 8030 from Mr Tim Graham to Ms Graham and he promises not to put the material on Facebook. This is sent on 5 May 2017 at 12.52 pm. The next exchange is from Ms Graham to Mr Tim Graham of the same date at 12.53 pm where she says ‘… we’re in deeper than that …’
The final exchange is a telephone intercept dated 7 May 2017 number 8196 at 3.57 pm. This is a telephone conversation between two females. The call is made from Ms Graham to Ms Stacey Haining who is Ms Graham’s daughter. In it at line 6, Ms Graham asks for the photo put up on Facebook by Ms Haining of Ms Graham, Ms Haining and Mr Weetra to be taken off the Facebook post. At line 14, Ms Graham says to Ms Haining ‘But I don’t want any photos of me with him. I can’t be seen in the community being associated with a fucking Hell’s Angel.’ I am satisfied beyond reasonable doubt that Ms Graham was aware of the connection between Mr Weetra and the Hell’s Angels Outlaw Motorcycle Gang.
Parties’ Submissions
I turn then to the parties’ submissions. The prosecution submitted that at the relevant time of the charges before the Court, Mr Weetra was associated with or the ‘prospect’ of a Hell’s Angels Outlaw Motorcycle Gang. Ms Graham was aware of this through the information supplied to her by him and by others including Mr Tim Graham and the only inference that arises on all of this evidence is that the information provided by Ms Graham to Mr Weetra was connected with Mr Weetra providing that information to the Hell’s Angels Outlaw Motorcycle Gang. The exchange of 13 April 2017 is instructive. In it Mr Weetra is seeking the information provided by Ms Graham which is the subject of the third count in circumstances where he is saying that he is attending ‘church’ in a couple of hours and she immediately offers to text to him the information that she had illegally obtained. I agree that the only inference which arises is that she knew that the information she was providing to him was connected with him attending the Hell’s Angels Outlaw Motorcycle Gang meeting called ‘church’. She had known from as early as 11 February 2017 that he was associating with the Hell’s Angels Outlaw Motorcycle Gang by use of the code reference ‘81’. Ms Graham was aware at that stage, on 11 February 2017, of the association between Mr Weetra and that outlaw motorcycle gang.
Insofar as these submissions of the prosecution are directed to Count 3, I accept them. The evidence in the prosecution brief Exhibit P1 is that the detail about the name communicated on 13 April was the detail that Mr Weetra had requested. I am satisfied beyond reasonable doubt that the only inference arising from the evidence is that Mr Weetra wanted this information for the ‘church’ he was attending that evening. I am similarly satisfied that the ‘church’ was a meeting of the Hell’s Angels Outlaw Motorcycle Gang, that he needed this information for that meeting and at the time he was a ‘prospect’ of that gang. I am similarly satisfied that Ms Graham knew all of this and was very much aware of the extraordinary risks that she was taking by giving this information to him. She sent the material to him quickly so that he would have it with him when he attended ‘church’.
Although I consider that the position is probably the same in relation to Count 1, I cannot be satisfied beyond reasonable doubt of that fact. The only contemporaneous evidence is the text from Mildura but there is no evidence that by 21 March 2017 Mr Weetra was a ‘hang around’ or a ‘prospect’. I do not think that there is enough information before the Court to satisfy me beyond reasonable doubt of that fact.
Mr Richards for Mr Weetra submitted that the evidence at its highest would tend to establish an association from February 2017 and Mr Weetra being a ‘prospect’ for a motorcycle gang. Mr Richards submitted that in order for the aggravating circumstance to be made out, it would need to be proved beyond reasonable doubt that the offending in question was done at the behest of or in order to obtain information to be passed on to the Hell’s Angels Outlaw Motorcycle Gang. He suggested that the evidence falls well short of that. In relation to Count 1, I accept the submissions of Mr Richards. The information before me does not satisfy me beyond reasonable doubt that that was the case. I am unable to accept that submission in relation to Count 3. I am satisfied beyond reasonable doubt that Ms Graham clearly understood at that stage that the information was provided to Mr Weetra in connection with him attending a ‘church’ meeting and that he would need to have that information before he went to the ‘church’ meeting of the Hell’s Angels Outlaw Motorcycle Gang. This explains her readiness to quickly text the information to him and then the angst that she later expressed about what she had done. I am unable to accept the submission that the actual call was not for the purpose of being passed on to the gang. I consider that this is the only inference that arises on the evidence before the Court.
In his submissions, Mr Lang supported the submissions of Mr Richards and focused in large part upon the material after 13 April 2017. For the same reasons, I am unable to accept that submission.
Conclusion
In the result, I am satisfied that in relation to the Third Count, the aggravating feature has been proved to my satisfaction beyond reasonable doubt. I am satisfied beyond reasonable doubt that the purpose of the provision of the information by Ms Graham to Mr Weetra was for the purpose of onforwarding to members of the Hell’s Angels Outlaw Motorcycle Gang. I am satisfied beyond reasonable doubt that Ms Graham knew of that intention at the time that she provided the information to Mr Weetra and that Mr Weetra was requesting the information for that purpose. I am satisfied beyond reasonable doubt of the aggravating feature in relation to the Third Count.
Conversely, I am not satisfied of the aggravating feature in relation to the First Count.