R v Hajje; R v Kearney - [2016] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAJJE; R v KEARNEY
[2016] SASC 13
Reasons for Decision of The Honourable Chief Justice Kourakis
24 December 2015
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicants were taken into custody and charged on information in the Adelaide Magistrate Court. The applicants were charged with unwarranted threats to harm the victim and his family and causing harm. Bail was applied for and refused in the Magistrates Court. The applicants have been in custody since June 2015.
Charges involving unlawful use of serious threats to obtain a benefit or inflict harm reverse the presumption of bail.
The applicants have applied to this court for review.
Held:
1. Special reasons were not shown for either applicant.
2. Bail refused for both applicants.
Criminal Law Consolidation Act 1935 (SA) s 19, s 20, s 172(1), s 248, s 250; Bail Act 1985 (SA) s 3A, referred to.
R v Buhlmann [2010] SASC 123, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"bail review", "blackmail", "serious criminal offence", "bail", "special reasons", "custody", "trial delay", "lies", "strength of case", "presumption of bail", "reversal"

R v HAJJE; R v KEARNEY
[2016] SASC 13
Civil
KOURAKIS CJ

Chad Hajje and Brendan Kearney were taken into custody and charged on information in the Magistrates Court. The Information alleged that between 13 November and 16 November 2014 at Adelaide they menaced Ramazan Demir (Demir) by unwarranted threats to harm him and his family, intending to get him to submit to a demand that he surrender his car, motorcycle, house and money contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). That offence will be referred to as the “blackmail offence”.
It is alleged against them that the offence was aggravated because it was committed in company with one or more other persons and because it was committed for or in association with a criminal organisation or its members.
Hajje is also charged that on 14 November 2014 he assaulted Demir contrary to s 20(4) of the CLCA and that he threatened to kill him without lawful excuse contrary to s 19(1) of the CLCA. Those offences are also alleged to be aggravated because they were committed in the company of others, committed with the use, or threatened use, of an offensive weapon, and committed for, or in association with, a criminal organisation or its members.
The applicants were arrested in New South Wales and given bail in the Penrith Magistrates Court. They appeared in the Adelaide Magistrates Court in answer to that bail but were refused bail and have been in custody since that time. They have made an originating application for bail to this Court.
The offence of blackmail is prescribed by s 3A of the Bail Act 1985 (SA). The presumption of bail is reversed by s 10A(2)(d)(i) of the Bail Act such that an applicant for bail is not to be granted bail unless he or she establishes special circumstances justifying release on bail.
Section 172 of the CLCA, like ss 248 and 250 of the CLCA, prohibits the unlawful use of serious threats to obtain a benefit or inflict harm. In the case of ss 248 and 250 CLCA the proscribed threats are those made to persons’ involved in criminal investigations, or judicial proceedings, and to public officers respectively. The reversal of the presumption of bail for persons charged with those offences is a legislative determination that the risk to the public, the resulting public anxiety, and the risk of reoffending outweigh the principle that the liberty of a defendant should not be curtailed until he or she is convicted. It is the particular risk to the administration of justice from persons charged with offences of that kind which the legislative direction addresses.
It is likely that the reversal of the presumption of bail manifests a concern that offences like those prescribed by ss 172, 248 and 250 are not infrequently committed by members of criminal organisations, and that the risks to which I have referred particularly arise out of the commission of offences of that kind by members of criminal organisations.
The special reasons must therefore relate to the absence or attenuation of those risks, or to the hardship that the reversal of the presumption of bail brings on a particular defendant. Undue delay in the prosecution of the charge on which bail has been refused is a species of the hardship which may amount to special reasons because the legislation is unlikely to have had in mind unusually large and protracted prosecutions. Hardship arising from the effects of denial of bail on an applicant and/or his or her family, or business which falls outside the generality of cases are other examples.
However, the reasons must be such as to displace the general rule made by s 10A(2) in reversing the presumption of bail for offences of this kind.
An affidavit sworn by Detective Sergeant Featherby, a member of the South Australian Crime Gang Tasks Force deposes that Hajje and Kearney are, or were, members of the Nomads Motorcycle Club. Police intelligence discloses that other men accused of offences allegedly connected with the offences committed by the defendants, including co-defendants Honar Pishdari, Mouhmed Tajjour and Michael Kotz, are members of the South Australian Chapter of the Nomads.
Demir and the victim of some of the offences committed by the other defendants, Shannon Coulter, are members of the Nomads at relevant times.
Sergeant Featherby deposes that the Nomads are referred to as a ‘one percenter’ or outlaw motor cycle gang (OMCG). The description “one percenter” signifies that an objective of the gang is to operate beyond the law. OMCGs are organised hierarchically with offices such as President, Vice President, Secretary, Treasurer and Sergeant-At-Arms. Detective Sergeant Featherby deposes that common characteristics of OMCGs include:
·a strict code of silence;
·a culture and acceptance of violence in relations between club members and others;
·demonstrated loyalty to the club and its members;
·a strict obedience to club hierarchy and rules that is enforced by monetary fines expulsion and/or violence;
·disregard for established social norms and law enforcement;
·practices of intimidation towards the community and police; and
·a high percentage of members with a history of criminal behaviour.
Members of an OMCG are expected to assist other members including by performing acts of violence or in defence of the reputation of the club. If a member becomes engaged in a violent confrontation with other OMCGs there is an expectation that all members present will have a responsibility to engage in violence and support club members.
According to Detective Sergeant Featherby the Nomads were established in New South Wales in the late 1960’s. Nomads members interstate have a history for offences including manslaughter, firearms, other offences of violence, and drug trafficking.
Since 2014 the Nomads have been in the process of establishing themselves in South Australia.
Police intelligence shows that Hajje was the national President or Vice President of the Nomads. Kearney was a member at relevant times.
At relevant times Demir was a senior office holder of the Nomads in South Australia. Demir, in his statement of 9 March 2015, deposes that the Nomads that it ‘was and remains a one percent club which means that the members are the 1% of the population who do not abide by rules of the society and choose to live by their own moral codes’.
According to Demir members of the Nomads must own a Harley Davidson or British motor cycle of a value which can be regarded as a sufficient deposit to be seized if club rules are broken. Prospective applicants for membership commence as a nominee of the club. According to Demir, during the period in which they are nominees the prospective members are:
Tasked to do everything from cleaning the club, doing chores, working behind the bar, collecting and driving members around, and doing anything and everything that a full members tell them to. This also include illegal activity such as drug dealing, committing abductions, assaults, debt collecting and the like. A nom must do what they are tasked to do otherwise they will get chopped, which means seriously beaten, shot in the kneecap or even killed.
Demir states that he joined the Nomads in 2011. He was asked to start the Adelaide Chapter. The establishment of the Nomads in Adelaide caused resentment with other OMCGs. During 2014 tensions developed within the Adelaide Chapter of the Nomads and its national leadership. In his witness statement Demir describes some developing anxiety and concern for his safety and the safety of his family.
Demir describes attending at the Adelaide Airport on 14 November 2014, to meet with visiting Nomads members from interstate. There was to be a national meeting in Adelaide. Hajje and Kearney were two of the visiting national leadership. They do not contest they arrived in Adelaide by plane on 14 November. Demir deposed that he picked up them and others. Driving away from the airport, Demir was asked to pull into Adelaide High School. He parked in front of the school. He was told to remove his colours and was forced out of the car. As he and his passengers walked away from the car he could tell that they were angry with him. One of the men, known to Demir as Paul, told Demir that his car was confiscated and that he would take it to Sydney. Demir was questioned about the whereabouts of his bike and about details concerning his residence.
An amount of $30,000 was demanded from Demir. The nature and contents of that threat of course, has particular resonance given the information of Sergeant Featherby’s declaration and Demir’s declaration about the way in which rules of the outlaw motorcycle gangs including the Nomads are enforced. His life was threatened as was the safety of his family.
Anita Zocchi has provided a witness statement that on 14 November 2014 she was in her office at Adelaide High School. As a result of information she received from others, she left her office and saw five males standing on the soccer pitches in an area called Ellis Park to the south of the school. She saw what she described as ‘physical posturing’. What she saw caused her to call police. Another witness, a school services officer, described the men on the soccer pitches as ‘talking really loudly’. His statement says that the men appeared agitated. Another employee described one of the men as becoming particularly agitated and aggressive.
The evidence of the employees of Adelaide High School strongly corroborates Demir’s account. The very timing of this confrontation so soon after Hajje and Kearney were picked up from the airport is evidence from which pre-concert can be inferred as is the evidence of subsequent events to which I will shortly refer. In my view little turns on the identification from CCTV, and other evidence of the precise person or persons who uttered the threats to which I earlier referred.
According to Demir, on the way back to the car his keys, driver’s licence and bank cards were taken from him. Later Demir was taken into a room at Scotty’s Motel on Main North Road. Demir was threatened by the men gathered there. He states that he feared for his life. At one point Demir claims he was pinned down onto a bed by Hajje and another man. From the way he was held down Demir feared that he was about to be shot.
Hajje and Kearney submit that there are special circumstances justifying the grant of bail. First they rely on the change of position by the Director of Public Prosecutions in not seeking a further determination that the applicant is a Serious and Organised Crime suspect.
I can deal with that ground quickly. The changed position is of no significance because there is, in any event, a statutory reversal of the presumption of bail on the charge of blackmail with which they are both charged.
The other grounds on which Hajje and Kearney rely are:
·the admitted lies told by the complainant or allegedly Demir;
·the possible involvement of Demir in an attempted contract killing;
·the inordinate length of time the applicants have spent in custody; and
·matters personal to the applicants.
Hajje and Kearney both submitted that they were no longer members of the Nomads. Hajje claims that he resigned in writing.
Kearney claimed that he had simply resigned but police intelligence suggest that he was voted out. Perhaps he resigned in anticipation of the vote.
However, intercepted phone conversation records of Kearney whilst remanded in custody showed that he remained sympathetic to members of the Nomad Motorcycle Club despite his resignation.
Calls also record that he was kept informed of a serious assault which was planned and ultimately committed by persons, probably members of the Nomads, against another person, at the relevant time at least, also a member of the Nomads. The conversations show that Kearney was plainly pleased by the result.
I place very little weight on the claims of resignation. Membership of the Nomads is not like casual membership of a sporting or social club. The statement of Detective Sergeant Featherby shows that it reflects lifestyle choices and, in particular, lifestyle choices to pursue a criminal lifestyle and criminal purposes.
I turn next to the applicant’s contention that Demir has demonstrably told lies and falsely made statements in connection with the committal proceedings. The false statement on which they primarily rely is an allegation made by Demir against other defendants but it is nonetheless closely associated with the case against the applicants.
In a witness statement dated 3 March 2015 Demir claimed that on 14 February 2015 he was called by the defendant Honar Pishdari, who was at that time vice-president of the Nomads in Adelaide. Demir was summoned to a meeting at the Enfield Cemetery on the following Monday. On Monday, 16 February 2015 Demir was visited by a number of Nomads members or associates. He deposed that he was forced into a car and taken to the Enfield Cemetery where he was assaulted and threatened with a knife. From Demir’s witness statement it appears that the intention of the men was to remove his Nomads tattoos. Demir then gave the following description of events:
Shannon leant forward with a cigarette lighter and set fire to the liquid on my arm. At that time I was shirtless and only wearing shorts and shoes. As soon as it lit up, I was not being held anymore and I tried to put out the flames on my left arm by trying to brush it off. I managed to put out the fire on my arm and I noticed that my left leg was on fire. I used my hands to hit the flame off. I was in a lot of pain but also at the same time I was still a bit dizzy and not with it. I remember shouting at them whilst the attack happened.
Demir maintained that version of events and did not say anything to the contrary in witness statements he made to police on over 10 occasions between 9 March 2015 and 22 May 2015. Indeed, in some of them he elaborated on that false account.
On 22 June 2015 Demir’s former girlfriend made a statement to police in which she said she was with Demir on 13 February 2015 when he drove to his cousin’s residence in Mawson Lakes. At that location Demir burnt himself whilst attempting to set fire to his cousin’s house. Only on 1 July 2015 did Demir confess to the falsity of his statement of the events at the Enfield Cemetery and that he had burnt himself while trying to set his cousin’s house on fire.
That false statement substantially undermines Demir’s credibility not only with respect to the Enfield Cemetery incident but more generally. It was a breathtakingly audacious lie.
The Director of Public Prosecutions has only very recently also provided declarations to the applicants containing evidence from which it might be inferred that Demir was involved in a conspiracy to murder. Not surprisingly, the applicants have sought to cross-examine Demir in the course of the Magistrates Court committal proceedings. The Director of Public Prosecutions has intimated that there are special reasons on most grounds. Three days have been set aside for that cross-examination between 17 and 19 February 2016.
The matters I have set out are the factual circumstances which underlie the second and third grounds which the applicants contend constitute special reasons to grant bail either independently or together with the other grounds.
It is convenient to now also refer to a further matter which has only now arisen and can be conveniently dealt with together with those grounds.
A statement of a police officer, Detective Sergeant Fitzpatrick has been provided just today. It discloses that on 8 December Demir was proofed by prosecutors in relation to the special reasons application to which I have just referred.
At the conclusion of that proofing session, it was agreed that Demir would give a further statement to police officers before Christmas dealing with the matters raised with him which, as I have mentioned, are matters arising out of the special reasons application. That statement has not yet been given to police. By reason of Demir’s failure to do so, and because of its significance, I suspect, to this bail application, on 23 December 2015 counsel for the Director on this application in the presence of Detective Brevet-Sergeant Fitzpatrick, phoned Demir. He was told that he should arrange a time to provide a further statement. Detective Brevet-Sergeant Fitzpatrick’s statement then continues:
Demir became aggressive. His demeanour changed and he advised he was not satisfied with the level of assistance provided to him and his family by Crime Gangs Task Force to mitigate risk both to himself and his family. He advised that:
Crime Gangs had screwed him around and “didn’t help” him and that he “had to do it all”.
Demir further stated Crime Gangs “hadn’t done the things on the list and that they needed to be done”.
Demir alleged that Crime Gangs promised him assistance that it was not forthcoming.
Demir stayed that he felt safe and he would “take his chances with the club”.
Demir stated that if suitable assistance was not provided he didn’t wish to go ahead with the matter.
Dunlop asked Demir what he expected from Crime Gangs in regard to assistance and he stated that he was frustrated with Crime Gangs and that “they hadn’t raised a finger” and that “anything would have been good”. Demir explained that he felt like he was “on a cliff” and that Crime Gangs “had put him there and they were going to throw me off”. Demir stated Crime Gangs “want me to jump off the cliff”.
Detective Brevet-Sergeant Fitzpatrick later continued his statement as follows:
At the end of the conversation, Dunlop advised Demir that he would have to make a decision as to whether he was going to provide the further statement as people were remanded in custody on his account and that she needed to know his position. Demir stated that if he wasn’t given the assistance he required, he would not go ahead.
Demir was phoned again later that afternoon. Demir repeated that he was not satisfied with the level of assistance provided by police and stated that he felt his safety concerns had not been addressed and felt the provision of further statements would increase risk to himself and family.
When asked whether he would provide the statement, Demir replied that he was tired and needed time to think about it.

Demir told police that he would contact them again later that evening. There has been no further contact with him. Detective Brevet-Sergeant Fitzpatrick’s statement concludes:
Demir’s demeanour and attitude during the conversations disclosed in the above statement are consistent with his previous behaviour which has fluctuated during times of stress and when he perceives there to be greater risk.
The matters to which I have referred are capable of constituting special reasons to grant bail. It would constitute a special reason to do so if a person were to be denied bail while held in custody with respect to a matter that was either not going to proceed or was very unlikely to proceed.
Ms Dunlop has informed me that the Director, although constantly reviewing the matter, at this stage intends to proceed. Whatever the Director’s intention, there must be some real doubt about Demir’s cooperation given the statements he made to police and Ms Dunlop on 23 December.
However, the last passage which I set out from Detective Brevet-Sergeant Fitzpatrick’s statement is, in this context, of some importance. In assessing this aspect of the special reasons application, it must be remembered that the very legislative policy behind the reversal of the onus on bail is, in part, the risk to the administration of justice should persons charged with offences of this kind be granted bail. The fears expressed by Demir exemplify that risk. That consideration very much counters what would otherwise have been a relatively strong foundation for a special reasons application.
Associated with Demir’s threatened non-cooperation, is the serious concern over Demir’s credibility. The undermining of his credibility, however, is not such as to foredoom the prosecution to failure. A tribunal of fact may well differentiate between those lies, as outrageous as they were, and the conduct on the oval, corroborated as it is in part by the observations of independent witnesses. The prosecution might face more substantial difficulties on the offence alleged in the room at the Scotty’s Motel but, for these purposes, it is the blackmail offence which reverses the onus on the question of bail.
The evidence from which it might be inferred that Demir conspired to murder undermines his credibility in an equally serious way. Again, the tribunal of fact must be satisfied that there is sufficient independent support on the blackmail offence. It must also be born in mind that this offence concerns an internecine dispute between members of an outlaw motorcycle gang.
Importantly, the fundamental weakness, in Demir’s credibility is not such as to completely remove the risk of the applicants engaging directly, or indirectly, in further threats to dissuade Demir from testifying. It is not such as to give them complete confidence that the prosecution case will collapse. There remains a real risk that they would be tempted to engage in threats to finally dissuade the equivocating Demir from giving evidence. Indeed, the very ambivalence shown by Demir might give them some hope that they would succeed.
In the course of submissions, the applicants relied heavily on the presumption of innocence. The reversal of the onus of persuasion on the question of bail context shows that the presumption of innocence cannot be given unqualified effect as it is in many other aspects of the administration of the criminal law or in life generally. It must, of course, be steadily borne in mind, as Sulan J observed in Buhlmann.[1] The risks which I have been balancing and weighing must be assessed, bearing in mind the possibility that the applicants may be innocent or guilty, the possibility that the evidence on which the prosecution relies may be shown to be false, and the possibility that it may ultimately be accepted by a jury. Bail applications involve an assessment of risks.
[1] [2010] SASC 123.
What can be said in this case is that the possibility that Demir’s evidence is fabricated, given his admitted lie about the burning of his arm is very great. However, for the reasons I have given, it is not such as to foredoom the prosecution of the applicants to failure or to remove any temptation which the applicants might have to dissuade him. I again make it clear that in adverting to that possibility I am making no judgment about their ultimate guilt or innocence. I am doing no more than weighing contingencies.
I am therefore not satisfied that the second and third grounds individually or together establish special reasons to grant bail.
I go on to consider the other matters, being matters personal to the applicants. The applicants have been in custody now for close to six months. That is a serious matter given the possibility of their innocence. However, it could not have been beyond the contemplation of Parliament when it reversed the onus to establish a case for bail, that, in the ordinary course, a charge of blackmail may take this long, and more, to be resolved.
The committal proceedings resume on 17 February. A better idea both of the strength or the weakness of the prosecution case will then emerge. Assessments of the likely future conduct of the prosecution will be better informed after those proceedings. Further applications can then be made.
I now turn to matters personal to the applicants. Mr Hajje ordinarily resides in Kenthurst in New South Wales. He is 37 years of age and has two children aged 12 and 10. He is separated from his partner but provides extensive financial support for his children. Hajje is a qualified carpenter and is also a trained excavator operator. He was employed as such, earning substantial remuneration in excess of $1,000 per week, before he was remanded in custody. From those earnings he paid the school fees of his children. Hajje is indebted to Granlex Pty Ltd, a company owned by his parents, in the amount of $600,000. The loan is secured by a mortgage over a block of land.
It was proposed that if granted bail Hajje would return to New South Wales and resume his work. Hajje’s counsel argued that he might be supervised whilst in New South Wales by the New South Wales Police Strike Force Raptor, or by the New South Wales Department of Corrective Services in conjunction with the Department of Correctional Services of this State. I am satisfied that that is not realistically practical and, in particular, with regards to Strike Force Raptor, I am told there are 40 police officers who supervise something like 2,000 motor cycle gang members in New South Wales.
In a letter personally written by Hajje and provided in the course of the bail application, he writes:
Your Honour, it would appear that I am paying a very heavy price for former membership and association with a motorcycle club. Why did I join the bike club? It seemed like a great bloke’s adventure. After my divorce I found comfort and camaraderie from weekends away, great bike rides from Sydney up the north coast of New South Wales, sharing meals, socialising, drinking and enjoying an active life. Being with my motorcycle friends never stopped me working or being a good family man/father. Actually, I think it made me better in many ways. I understand that that is not the general view of motorcycle clubs but it was my experience - but I left because of the increasing negative profile and subsequent police attention and the concerns of my family. I am not a foolish man, I have made my priorities clear - my family and work ethics.
In the context of the reality of the nature and purposes of outlaw motorcycle gangs and the Nomads in particular appearing from the material before those statements are simply disingenuous. I place very little weight on the claims of dissociation by Hajje.
There are insufficient reasons in his personal circumstances to amount to special reasons either alone or in conjunction with any of the other matters on which he relies.
Turning to Kearney, I place very little weight on his claimed resignation for reasons I have given earlier. I am told that Kearney is involved in the furniture removal business. There is objective material confirming that. It appears that he owns a truck. There are three men whom he employs to work in that business from time to time.
The fact that he is given work by a substantial national furniture removalist business has been confirmed by a letter from a manager of that business. It appears that work is still given to Kearney, but arrangements are made for his employees to undertake the work. Payment is made into an account to which his partner Ashleigh Power has access. She arranges payment to the employees. It appears, therefore, that the business continues. I accept that it probably does not win as much work as it might if Kearney was available to chase and to do the work. That appears to be confirmed in the email received from the manager of the national firm which subcontracts Kearney’s company.
Nonetheless, far from being a special reason to justify Kearney’s release, it appears that Kearney is in the fortunate position of having a business which is still operating, at least to some extent, and earning an income despite his incarceration. There are few persons remanded in custody who have that benefit.
I was given very little material or detail as to difficulties encountered from the day-to-day by Power in the management of the business, although I accept that there must be some. As I have already observed, no doubt the business would do much better if Kearney was running it and working at it himself.
Kearney has strong community ties in Western Sydney. Kearney’s partner, Power, has recently given birth to their child who was born on 17 November 2015. It is also claimed that Kearney’s defence is hindered by his continued detention.
I am not satisfied that any of Kearney’s personal circumstances, either in isolation or in connection with any of the other grounds relied upon, amounts to special reasons.
I refuse bail both on Kearney’s application and Hajje’s.