The State of Western Australia v Martin and Namnik
[2018] WASC 151
•4 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MARTIN & NAMNIK [2018] WASC 151
CORAM: FIANNACA J
HEARD: 6, 8, 13, 14 FEBRUARY 2018 & 7 MARCH 2018
DELIVERED : 4 MAY 2018
FILE NO/S: INS 125 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CHRISTOPHER MYLES MARTIN
First-named Defence
JASON BEAU NAMNIK
Second-named Defence
Catchwords:
Nil
Legislation:
Criminal Code 1913 (WA)
Evidence Act 1906 (WA)
Result:
Expert evidence permitted at trial
Category: B
Representation:
Counsel:
| Prosecution | : | Mr S W O'Sullivan & Ms D Borkowski |
| First-named Defence | : | Mr G W Massey |
| Second-named Defence | : | Mr B P Bullock |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| First-named Defence | : | Holborn Lenhoff Massey Barristers & Solicitors |
| Second-named Defence | : | Ben Bullock Legal |
Case(s) referred to in decision(s):
Clark v Ryan (1960) 103 CLR 486; [1960] ALR 524
Cooper v Bech (No 2) (1975) 12 SASR 151
Hillstead v R [2005] WASCA 116
Italiano v State of Western Australia [2012] WASCA 260.
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) NSWLR 705
Marinovich v The Queen (1990) 46 A Crim R 282
Murphy v R (1989) 167 CLR 94; 86 ALR 35
Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214
Nickisson v The Queen [1963] WAR 114
R v Abadom [1983] 1 WLR 126; [1983] 1 All ER 364; 76 Cr AppR 48
R v Bonython (1984) 38 SASR 45
R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268
R v Duncan [1969] 2 NSWR 675
R v Gallagher [2001] NSWSC 462
R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452
R v Hodges [2003] 2 Cr App R 15
R v Oakley [1979] RTR 417
R v Turner [1975] QB 834; [1975] 1 All ER 70
Weal v Bottom (1966) 118 CLR 696
FIANNACA J:
The accused, Christopher Myles Martin (Martin) and Jackson Beau Namnik (Namnik), are charged on indictment with a number of offences alleged to have been committed on 3 August 2016 at Gosnells and Maddington. The offences involve alleged conduct towards a man named Henare Manihera Tule (Tule). Martin is charged in the first count with making a threat to unlawfully kill Tule. He and Namnik are then charged jointly with three counts, namely unlawfully detaining Tule, detaining Tule with intent to gain a benefit, and assaulting Tule and thereby causing him bodily harm. The accused were to be tried in respect of those charges before a jury on Monday, 12 February 2018. For reasons which will appear later, those dates were vacated, and the trial is now to commence on 7 May 2018.
Two matters of law were raised for determination before the trial commences. The first consisted of two special witness applications by the State under s 106R of the Evidence Act 1906 (WA) (Evidence Act). The second concerned an objection by each of the accused to purported expert evidence which the State intends to adduce from the investigating officer, Detective Sgt White, in relation to outlaw motorcycle clubs, generally, and the Gypsy Joker Motorcycle Club (the GJMC) in particular.
The accused are alleged to have been members of the GJMC, and the offences against Tule are alleged to have been committed by them, in conjunction with other members of the GJMC, in order to locate and retrieve Namnik's motorcycle which had been stolen. The motorcycle was integral to his membership of the GJMC.
The special witness applications and the objections to the evidence of Detective Sgt White were heard initially on 6 February 2018. On that date, I made the special witness declarations and some consequential orders. I said I would provide reasons before the commencement of the trial. My reasons for making those orders are set out below.
The hearing of the objections to the evidence of Detective Sgt White proceeded on three further days, being 8, 13 and 14 February 2018. It included the calling by the State of Detective Sgt White to elaborate on his written statements and be available for cross‑examination by the accused's counsel. On 8 March 2018, I gave my decision in respect of the objections, ruling that Detective Sgt White could give expert evidence in relation to outlaw motorcycle clubs and the GJMC, limited to specific areas which I identified broadly in brief reasons, indicating that more specific particulars would be provided in written reasons to follow. My reasons are stated below.
It is necessary to mention an issue that arose during the course of Detective Sgt White's evidence in the pre‑trial hearing which had the potential to affect the decision I had given on the special witness applications. Those applications relied on supporting affidavits of Detective Sgt White. During his evidence in the expert evidence hearing, it became apparent that an aspect of his affidavits was false. I will deal with the relevance of that development more generally below. However, the development raised for consideration the obvious question, whether my decision on the special witness applications should be revisited. Neither accused sought to reopen the issue. Nevertheless, in the course of my reasons I will explain why I would still be satisfied the orders should be made, putting aside the impugned aspect of the officer's affidavit.
In order to address the issues raised, it is necessary to provide a brief outline of the State's case against the accused.
The State's case
The State's case relies on the witness statements provided by Tule and his partner, Rachel Crystal Agnew.
Tule has given three statements. The first deals with events from 23 July 2016 to 31 July 2016. The second deals with the events the subject of the indictment on 3 August 2016, and the last explains certain aspects of his previous statements. Tule states that on 23 July 2016, he was at a friend's home when he was made aware by another acquaintance, Kyle, that there was a Harley Davidson motor cycle at the front of Tule's house. Tule went home and found a Harley Davidson motorcycle (the Harley) lying on its side in front of a neighbour's home. He also found a mobile telephone which apparently belonged to Kyle. The Harley had some damage. He took it into his home, where he secured it in his shed. He says he did this in case the owner came looking for it. He then went looking for and found Kyle, who took his mobile telephone from Tule, but left the scene when Tule became angry with him.
Tule says that he subsequently decided he should get rid of the Harley and enquired with a friend if he knew anyone who might want it. He states that on the evening of 27 July 2016 the Harley was collected from his home by that friend and another person, whom he had not previously met, but who was introduced to him as Ringray. He was led to understand that Ringray would take possession of the Harley. Tule states that later that evening some 12 males wearing clothing that indicated that they were 'gang members' came to his home, in three 'car loads'. Having been alerted about this by Ms Agnew, he first tried to enlist the assistance of the friend who had collected the Harley, to no avail. When he returned home he was confronted by the gang members, who demanded to know where the Harley was. Threats were made to him and he was assaulted, including having a knife held at his throat. He was told to get into one of the vehicles, which he did, and was driven to a location where he was allowed to leave, after he said he would try to retrieve the Harley. He was given a deadline for later that evening.
It is sufficient to note in respect of events between that incident and 3 August 2016 that Tule's attempts to find out Ringray's whereabouts failed. He passed on Ringray's name to one of the 'bikies' who called him persistently on 28 July 2016, but was told he needed to find out where that person lived.
Tule and Ms Agnew stayed at a friend's house for a few days, but eventually returned home. Tule says they were no longer wanted at the friend's house; Ms Agnew says she wanted to be in her own home. On one occasion, while they were staying at the friend's house, they went home to collect clothing and found their home had been broken into and property had been stolen.
In the early hours of the morning of 31 July 2016, persons came to Tule's house in a vehicle and threw a brick through a front window. Tule provided his first statement to police after that incident, on 1 August 2016.
On 3 August 2016, two men came to his home in a small vehicle. He subsequently heard one of them referred to as 'Jackson'. The State alleges that is Namnik. The other male was wearing a beanie. The State alleges that person was Martin. After Tule had allowed them to look in his backyard and shed for the Harley, Martin told him they were taking him back to 'the bar'. When he asked where that was, he was told that 'the bar' was all he needed to know. Martin told him to give Ms Agnew a kiss, and that if he was lying he would not be coming back. That is the threat that the State relies on in support of the first count in the indictment, the threat to kill.
Tule was then driven by Martin and Namnik to the GJMC clubhouse where the vehicle was allowed to enter through the front gate after Namnik pushed a buzzer. Tule was then taken to an outside area at the back of the building. He refers to four men, other than the two accused, coming out to that area. The State's case is that, from all the circumstances, it can be inferred that they were all GJMC members. The circumstances include what is known of Outlaw Motorcycle Club Gang (OMCG) culture.
Of the six men who were present, four of them, including Martin, were armed with weapons, being two steel poles, a wooden bat and a steel baseball bat. One male, who seems to have been older than the others, appeared to be the leader of the group. He was armed with the wooden bat and struck Tule several times when he tried to speak, telling him he was not to talk unless told to do so. During the confrontation, Tule was struck in the head numerous times with the weapons and fists. He was struck by everyone who was present except Namnik. He was also threatened to be 'put in a box' if he 'ran his mouth off'. One of the men who was present (who the State allege was also a GJMC member) was also assaulted by the older man, on the basis that he had lied. There had been an earlier incident in which Tule had encountered that person, but it is not necessary to go into the details of that incident for present purposes.
Tule says he was hit at least 20 times while he was at the clubhouse. He suffered injuries which included swelling of his right cheekbone and bruising of his left ear. After the older man had left, saying he had had enough, one of the other men, who was wearing a cap with a star stitched on it, gave Tule instructions on what he was going to have to do to retrieve the Harley. Tule says that the man said:[1]
You've got a deadline of tomorrow. If it's not here then we're going to put you in a box with your ass up to your face. Then we're going to get your missus and your kids and kill them too. Until my brother gets his bike back, no cunt is safe.
[1] Tule's statement of 4 August 2016 at [135].
Tule says that the same person subsequently said, 'I think I'm going to kill this cunt.' However, after discussions with the others who were present, he told Tule to get into the car. He was then driven from the GJMC clubhouse by the male with the beanie (who the State allege is Martin). Namnik and the male with the cap with the star were also in the car. Before leaving the clubhouse, Tule saw what he believed to be a handgun, which was handed in a case to one of the males who remained at the clubhouse. Tule was told by the male with the cap, 'If you saw anything, I'll fucking kill you.'
Tule was eventually dropped off at a location away from his home. As he started to walk home, the vehicle was driven in his direction, requiring him to dive out of the way to avoid being hit. The occupants of the vehicle were laughing. Tule made his way home, where police were already waiting, having been called by Ms Agnew.
Ms Agnew's statements (dated 1 and 3 August 2016) corroborate significant aspects of Tule's statement concerning the incident of 27 July 2016 when he was taken from his home in a vehicle, and the incident of 3 August 2016 when two men came to her home and Tule was again taken in a vehicle. As for the first incident she describes arguing and yelling when Tule came home and was confronted by the group of males outside his home. She saw 10 to 12 men surrounding Tule. She saw one of the men punch Tule in the face. She saw five or six men holding Tule against one of the vehicles the men had come in. She heard the men telling Tule to get in their car, and pulling and pushing him to get him into the car. Although Tule got into the car himself, the men were surrounding him and telling him to get in. Tule was then driven from the area in one of the cars. The men had come in three cars and on motorbikes, all of which left.
Ms Agnew describes the incident of 31 July 2016, when a brick was thrown through one of the windows of her house. She says that the men were calling to Tule in abusive terms to come outside, and said they were going to kill him.
Ms Agnew corroborates essential aspects of Tule's account about the visit by the two men to her home on the evening of 3 August 2016. She says Tule was told he was going back to 'the bar' with them, and that, if his story did not 'match up', he would not be coming back, but if it did he would be dropped off. She says that when Tule asked for their word that they would bring him back, they refused to give it. She says they told Tule, 'go kiss your wife goodbye, you're coming with us.' She says that when Tule came to her, she told him she would call the police, and he agreed.
Special witness applications
The applications for orders declaring Tule and Ms Agnew as special witnesses are in identical terms. Each of the applications is supported by an affidavit of Detective Sgt White. Each of the affidavits is in identical terms, save for the name of the subject of the application.
Section 106R of the Evidence Act provides, relevantly:
106R.Special witnesses, measures to assist
(1)A judge of a court may make an order ‑
(a)declaring that a person who is giving, or is to give, evidence in any proceeding in that court is a special witness; and
(b)directing that one or more of the arrangements referred to in subsection (4) are to be made for the giving of that evidence; and
(c)providing for any incidental or related matter.
(2)An order may be made under subsection (1) on application by a party to a proceeding, on notice to the other parties, or of the court's own motion.
(3)The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court's opinion ‑
(a)by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or
(b)be likely ‑
(i)to suffer severe emotional trauma; or
(ii)to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily,
by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence, or any other factor that the court considers relevant.
…
(4)The arrangements that may be made under this section are ‑
(a)that the person have near to him or her a person, approved by the court, who may provide him or her with support;
(b)that the person have a communicator while he or she is giving evidence;
(c)in any proceeding for an offence, that an arrangement of the kind described in section 106N(2) or (4) is to be made.
(4a)Where an arrangement under subsection (4)(c) is directed to be made, section 106N applies, with any necessary changes, as if the special witness were an affected child.
…
(7)Where in any proceeding on indictment a person is declared to be a special witness, the judge is to instruct the jury that the making of the declaration is a routine practice of the court and that they should not draw any inference as to the accused's guilt from it.
For the purposes of subsection (4)(c), the State's application is for the evidence of the witnesses to be taken in accordance with arrangements in s 106N(2)(a), which is to say that 'he or she is to give evidence outside the courtroom but within the court precincts, and the evidence is to be transmitted to the courtroom by means of video‑link'. It is not necessary to consider the arrangements under s 106N(4), because those arrangements are to be utilised only if the video‑link facility is not available.[2] A video‑link facility will be available for this trial.
[2] Section 106N(4) allows for the use of a screen or one-way glass while the witness gives evidence in the courtroom. The screen would prevent the witness from seeing the accused, but would allow the judge, the jury and the accused or their counsel to see the witness.
Section 106N is concerned with the taking of evidence of an 'affected child', as defined in the Evidence Act. Section 106R extends the application of s 106N to adults who are declared to be special witnesses. One of the consequences of s 106R(4a) is that the provisions of s 106N(3a) apply, so that the witness's evidence 'is to be recorded on a visual recording'. The State applied in each case for an order in those terms. It also applied in each case for an order in terms of s 106R(4)(a), that the witness have near to him or her a person, approved by the court, who may provide him or her with support.
Before proceeding to deal with the merits of the application, in each case, it is appropriate to note that, although the State intends to adduce evidence that the GJMC is an outlaw motorcycle gang, it did not seek to rely on s 106R(3B), which is concerned with proceedings for a 'criminal organisation offence'.[3]
[3] The definition of 'criminal organisation' for the purposes of s 106R engages the definition in s 221D of the Criminal Code, which refers to an entity that is a declared criminal organisation (s 221D(1)(a)), or one that meets certain criteria. There is no suggestion the GJMC is a declared criminal organisation and, although the evidence the State seeks to adduce might support some of the criteria in s 221D(1)(a), it would not support all of those criteria.
The applications, therefore, come to be dealt with under s 106R(3), and the party making the application has the burden of persuading the court of the matters in that subsection.
The State relied on the affidavits of Detective Sgt White, sworn 2 February 2018. In the affidavit concerning Ms Agnew, he deposes at [4]:
The facts deposed here are true to the best of my knowledge, information and belief based on discussions between myself and Agnew, which took place throughout the course of the investigation.
Paragraph 4 of the affidavit concerning Tule is in identical terms, substituting Tule's name for that of Agnew.
Detective Sgt White goes on to state in each affidavit that the witness is fearful of giving evidence at the trial because the witness is concerned for his or her safety: [5]. In particular he states that the witness is fearful of the accused and their associates for three reasons: [6].
First, the accused are 'members of an Outlaw Motorcycle Gang, the Gypsy Joker', which 'have (sic) a reputation for violence and revenge against those who they perceive have wronged them': [6a]. Secondly, '[t]he facts of the case involve allegations of a violent assault upon Tule and have the potential to result in a term of immediate imprisonment for the [accused] if convicted': [6b]. Thirdly, the witness 'genuinely believes the [accused] and their associates are capable of physically endangering [the witness] and [the witness's] family's personal safety if [the witness] gives evidence at their trial': [6c].
In each affidavit, Detective Sgt White states that the witness 'feels that if [the witness] were compelled to give evidence in the physical presence of the [accused], [the witness] would be so intimidated and distressed as to be unable to give evidence, or to give evidence satisfactorily': [7].
The State submitted that there is a basis in the prosecution case for the sort of fear spoken about in the affidavits, and the concern that if the witness in each case had to face the accused in open court, it would affect the 'evidence‑giving process'. The State noted that Ms Agnew was present when Tule was taken away. It also referred to the quote from Tule's statement at [135] of his statement of 4 August 2016, which I have set out at [17] above. His evidence will be that, while at the GJMC clubhouse on 3 August 2016, he was threatened to be killed, and that his wife and his children would also be killed, if he did not meet the deadline for returning the motorcycle.
The special witness applications were opposed on behalf of each of the accused. Both counsel for the accused indicated they were in two minds about that opposition, because, as they perceived it, 'generally speaking a video‑link works against the party calling the witness'. Nevertheless, as arguments were put in opposition of the application, it is necessary for me to deal with them. The arguments for both accused essentially were that:
1.The court should be sceptical about the contents of the affidavits of Detective Sgt White about the extent of any fear held by the witnesses and whether they would be so intimidated or distressed as to be unable to give evidence satisfactorily, because the contents of the affidavits were in identical terms, the implication being they could not reflect the individual circumstances of each witness, which the court is required to consider;
2.The two witnesses are key to the prosecution case, especially Tule. The case against the accused depends on the jury's acceptance of their evidence. Their credibility will be in issue. The jury will be at a significant disadvantage in assessing the witnesses' credibility if their evidence is given by CCTV or video‑link. That may operate unfairly against the accused if the witnesses' lack of credibility is harder to discern; and
3.Tule's size will be a relevant factor in the defence case. The jury will be asked to consider the likelihood of the accused making a threat to Tule or assaulting him, or being able to detain him against his will, given his size. It will be easier for the jury to assess Tule's size if they can see him in court.
As to the first argument, neither counsel for the accused wished to cross‑examine Detective Sgt White. In those circumstances, I was of the view that the identical wording of the affidavits was not a ground for rejecting the contents or giving them little weight. The reasons attributed to the witnesses for being fearful, while identifying specific subject matters, were at a level of generality that, in my view, was not inconsistent with each of them having the beliefs attributed to them and expressing them as reasons why they would be intimidated and would not be able to give evidence satisfactorily in the courtroom. The affidavits set out in effect the tenor of the witnesses' beliefs. Further, in my view, they were consistent with beliefs that had been expressed by both witnesses in their statements on the prosecution brief. To say so is not to make any assessment of the truthfulness of their evidence, but I must proceed at this stage on the basis that there is a foundation for their fears in the evidence that they would give.
Having relied on the affidavits sworn by Detective Sgt White, it subsequently transpired, in evidence he gave in the pre‑trial hearing to determine the admissibility of his evidence as an expert, that the reasons attributed to the witnesses in his affidavits were conveyed to him by officers who have been dealing with the witnesses on his behalf in the country where they are now located.[4] He had not had personal contact with the witnesses.[5] Contrary to the statement in his affidavit that the facts to which he deposed were based on discussions between him and Tule and Ms Agnew respectively, which took place throughout the course of the investigation, Detective Sgt White gave evidence that he had not had discussions with Tule or Ms Agnew since the investigation started.[6] He said he had met Ms Agnew once and he had spoken to both witnesses before the investigation commenced.
[4] ts 195.
[5] ts 195.
[6] ts 216 - 217.
Detective Sgt White was cross‑examined in the pre‑trial hearing about the discrepancy. While he sought to explain it as an infelicity of language,[7] and denied he had deliberately told an untruth or withheld the fact that he had not had discussions with the witnesses,[8] his evidence in that regard was neither convincing nor consistent with other aspects of his evidence. In explaining why he caused the conversation to take place between the police in the foreign location and the witnesses, rather than speak with them himself, he said that there was a risk that if the GJMC knew where the witnesses were, they would interfere with or intimidate them, and there would be security concerns. He admitted:[9]
The affidavit kept some information in relation to the conversation that I caused rather than having it in person in order to protect the witness's security and to prevent interference with the witness.
[7] ts 196 - he said it was 'a language thing'.
[8] ts 199 - 200.
[9] ts 199.
He went on to admit that he worded the affidavit in such a manner as to protect the security of the witnesses and prevent interference with them.[10]
[10] ts 202.
It is understandable that Detective Sgt White would consider there was a need for caution in the amount of information he put in the affidavit which could put the security of the witnesses at risk. However, the truth, namely that he had caused other officers to speak with the witnesses and that the information had been conveyed to him by those officers, could have been articulated without identifying who or where those officers were. If issue had been taken with the additional layer of hearsay (which would not be a legal barrier for an application of this kind, but could go to weight), Detective Sgt White's explanation concerning security risks would have been taken into account. His affidavit went beyond withholding the fact that the information had been obtained by other officers; it falsely stated that the information came from discussions he had had with the witnesses. The falsehood was apt to mislead the court as to the weight that should be given to the information attributed to the witnesses. The inclusion of the falsehood in the affidavit is inexcusable and a matter of significant concern to the court. However, it will be for others to determine what further action should be taken.
As I noted earlier, neither counsel for the accused sought a reconsideration of my decision to make the special witness declarations. It is sufficient for me to indicate that if the evidence in support of the applications had been in the terms which I have suggested would have been appropriate, I would have been prepared to rely on it, in the absence of specific challenge, notwithstanding the additional layer of hearsay, because the beliefs attributed to Tule and Ms Agnew are consistent with aspects of their statements and not unexpected, given the nature of the allegations. That said, it is preferable in applications of this kind for the intended special witness to depose directly to the facts on which the prosecution relies, unless it is not reasonably practicable to do so. Given the availability of electronic transmission of documents, the fact that the witness may be in a foreign location should not be a barrier. If the location is not to be disclosed, any information in the affidavit that could result in disclosure could be redacted.
As the accused did not wish to revisit the evidentiary basis for the applications, I will give my reasons for rejecting the second and third arguments put on their behalf.
The decision to be made under s 106R of the Evidence Act involves the exercise of discretion and, therefore, the weighing of considerations for and against the making of an order. If the criteria are met for the making of an order, there remains the question whether it is appropriate to make the order, having regard to the need for the accused to have a fair trial.
Underpinning the accused's second argument is the fact that each of Tule and Ms Agnew is a key witness in the prosecution case. However, that is a relevant consideration in the arguments both for and against the special witness declaration. The critical importance of Tule's evidence, for instance, underscores the need for the jury to be able to properly assess his credibility. However, it also underscores the need to ensure that he is able to give his evidence satisfactorily, without the effect of intimidation he may feel in the presence of the accused or in a courtroom open to the public, because of fear of reprisals.
I am satisfied that both Tule and Ms Agnew hold the fears referred to in Detective Sgt White's affidavits. On that basis, I am of the opinion that each of them is likely to be so intimidated, because of those fears, as to not be able to give his or her evidence satisfactorily if he or she is not treated as a special witness and arrangements are not put in place to overcome the likely intimidation. The most obvious measure is to take their evidence by video‑link from a location outside the courtroom, but within the court precincts. No practical alternative was proposed.
The principal argument against making the special witness declaration in each case was that the jury would not be able to properly assess the witness's credibility. Counsel for Namnik submitted that the use of a video‑link creates a barrier to communication and that the jury needs the opportunity to 'look Mr Tule in the eye to gauge his response to certain questions, his reactions'. As I indicated at the time, while the idea of looking a witness in the eye may have been a flourish, it highlighted a flaw in the argument, namely the assumption that a jury would have a better view and be able to make a better assessment of the witness's demeanour if he or she was in the witness box. The distance of at least some of the jurors from the witness box, and the angle of vision, may not in fact place them in any better position to assess the witness's demeanour than if the witness appeared on a large monitor facing forward.
In any event, we are in an age in which members of the community from which a jury will be drawn are very much used to seeing and listening to people on a video screen, and the notion that it constitutes some kind of barrier that prevents a proper assessment of the witness's credibility does not carry a great deal of weight. The legislative imprimatur for the taking of evidence of children by video‑link as a default procedure is based on an acceptance that a jury can properly assess the demeanour and credibility of a witness by that process. In the case of children, evidence will also often be pre‑recorded, so that the immediacy of their evidence may be lost, yet it is accepted that proper assessments can be made of their credibility. In cases of alleged sexual offences, their evidence will usually, if not invariably, be critical.
The accused's third argument, which is related to the second, was that in Tule's case, his presence in court would better enable the jury to judge his size and, therefore, the weight to be given to the defence case that he would not be intimidated into going with the accused against his will, that the accused would not be likely to threaten him or be able to detain him against his will, and that it is unlikely they would be able to assault him. Counsel for Namnik submitted that defence counsel would also be at a disadvantage in not being able to assess how threatening Tule may appear, which would be necessary for the proper presentation of the defence case.
I accept that Tule's physical presence in court could assist the jury in the kinds of assessments referred to by counsel. However, the jury can be shown photographs of Tule (which are on the prosecution brief) and he can be asked about his height and his weight. The jury will also have some ability to judge his size from his appearance on the video monitor. In my opinion, it is not a factor that weighs sufficiently against the making of a special witness declaration, given my threshold finding that the witness is likely to be so intimidated as to be unable to give his evidence satisfactorily.
Finally, counsel for Namnik submitted that, in assessing the significance of the potential prejudice to the accused, the court should have regard to the fact that the accused are likely to be sentenced to a term of imprisonment if convicted. In my view, that is not a matter that can carry much weight. In most cases of the kind I referred to earlier, in which the evidence of children is given by video‑link, and in some cases pre‑recorded, the accused person is at risk of being imprisoned if convicted. There is nothing in this case that would place it in any special category, in terms of potential consequence for the accused.
From a practical perspective, I raised with the prosecutor whether exhibits would be shown to the witnesses. I was informed that photographs and perhaps other material may need to be shown to them. I am satisfied that measures can be put in place to enable that to occur without any significant disruption of the evidence of the witnesses while being given by video‑link.
Accordingly, I was satisfied that the special witness declarations should be made and that the evidence of both Tule and Ms Agnew should be taken by video‑link from a location outside the courtroom, but within the court precincts.
However, I do not consider that the fears and beliefs of the witnesses outlined in the affidavits of Detective Sgt White provide a sufficient basis for either of them to have a support person present during the giving of his or her evidence. The fears relate to giving evidence in the physical presence of the accused and in a courtroom that would be open to the public. They do not relate to the giving of evidence per se. In the circumstances of this case I would require further evidence directly from the witnesses before I would consider there was a need for a support person. Therefore, I was not prepared to make an order in terms of s 106R(4)(a) of the Evidence Act.
Similarly, I do not consider that it is necessary or appropriate that the evidence of Tule and Ms Agnew be video‑recorded. That is an arrangement provided for in s 106N(3a). It is mandatory in the case of witnesses who are children. The policy reasons are obvious, as the mandatory provisions concerning child witnesses recognise their vulnerability in giving evidence at all, and are intended to minimise the trauma of that process. Without seeking to limit the categories, an example where video recording of an adult witness's evidence would be appropriate would be where the witness is likely to suffer severe emotional trauma from giving evidence at all. The desirability of avoiding the need for such a witness to give evidence again if there was to be a retrial is understandable. The circumstances in this case are not of that kind. In my opinion, if the need were to arise for the evidence of Tule and Ms Agnew to be given again, they should not be treated any differently to any other adult witness. Therefore, I did not make an order in terms of s 106N(3a).
Proposed expert evidence from Detective Sgt White
Detective Sgt White's statements
The evidence proposed to be adduced from Detective Sgt White as expert evidence is set out in two statements made by him, dated 12 January 2018 and 12 February 2018. The first statement sets out the basis of his expertise in relation to Outlaw Motorcycle Gangs (OMCGs) and the GJMC in particular, which, he explains, has adopted the indicia of an OMCG and fits the characteristics of an OMCG. That statement then sets out the evidence he would give about OMCGs generally and the GJMC in particular, based on that expertise. It is expansive in the breadth of the topics covered and the detail provided over 82 pages. Much of it is not relevant to the issues in this trial. The basis of some of the opinions expressed by Detective Sgt White is also not clear. Those concerns were acknowledged by the prosecutor at the hearing on 1 February 2018, at which time he indicated that a very limited part of the contents would be led. The second statement is described as an addendum to the first statement and purports to provide clarification of Detective Sgt White's experience and qualifications specifically in relation to the GJMC.
The first statement sets out Detective Sgt White's experience, training and qualifications that are relied upon to qualify him as an expert in respect of OMCGs and the GJMC in particular. The contents of the statement in that regard were augmented by the evidence given by Detective Sgt White on 13 February 2018. I will outline the details later. In essence, however, his evidence is that he has gained expertise in respect of OMCGs and the GJMC by on‑the‑job training and involvement in investigations, including the monitoring and reviewing of covert recordings of members of OMCGs, the reading of literature about OMCGs, and involvement in and training with an international organisation of investigators concerned specifically with OMCGs.
In combination, Detective Sgt White's statements include information about:
1.the history of OMCGs;
2.the culture common to them, in particular a culture of loyalty between members ('brotherhood' - which may also be seen as an obligation of membership) and of violence to resolve conflicts. In this context, there is also information about the initiation process for membership;
3.the culture of silence within OMCGs;
4.the wearing of patches by members of OMCGs, including the GJMC, and the significance of that, in particular the 1% patch, and the meaning attributed to various aspects of such patches. Some of these are connected with a culture of intimidation;
5.the hierarchy of OMCGs, including the GJMC, and the roles of members in particular positions;
6.the fact that OMCG's have constitutions and rules and the significance of particular aspects of the constitution and rules, with specific reference to those applicable to the GJMC, especially the need for ownership of a motorcycle of particular specifications;
7.the territoriality of OMCGs, and the significance of the clubhouse as a meeting place to the exclusion of others; and
8.the involvement of OMCGs in criminal activity.
Although, as I have said, the prosecutor indicated that a limited part of the evidence will be led, I have outlined the breadth of the material in the statements because it is relevant to a consideration of Detective Sgt White's expertise.
The purported relevance of the evidence
The State's argument for the admission of parts of the evidence as expert evidence can be encapsulated in the following propositions:
1.Both Martin and Namnik were members of the GJMC at the relevant time.
2.The constitution of the GJMC required each member to own a particular type of motorcycle. Loss of his motorcycle by a member rendered him liable to be expelled from the club or punished.
3.Namnik's motorcycle was stolen. He and others in the GJMC believed Tule to be in possession of the motorcycle or to know its whereabouts.
4.It was imperative for Namnik to recover his motorcycle.
5.Because of the obligation or culture of loyalty within the GJMC, as an OMCG, other members of the club would be expected to assist Namnik to recover the motorcycle. The reference by one of the persons who assaulted Tule to his 'brother' getting his bike back, needs to be understood in that context.
6.Because of the culture of the GJMC, as an OMCG, its members would be likely to resort to intimidation and violence to recover the motorcycle, rather than rational and sober enquiry or negotiation.
7.The clubhouse is an exclusive place, and members of the GJMC would not have brought Tule, a stranger, there unless they intended to use the seclusion of the club to conceal the means by which they intended to recover the motorcycle from him.
8.The evidence to be given by Tule is consistent with Martin and Namnik (and others who were also involved, but are not charged) acting in accordance with their membership of the GJMC as an OMCG.
9.Proof of the matters referred to in 5 to 7 above would render it more likely that events occurred as described by Tule, in respect of the threats made to him, the fact he was forced to go in the vehicle, and the fact he was assaulted at the GJMC clubhouse by a number of persons.
10.Proof of those matters would be relevant to establishing a motive for Martin to be involved in the commission of the alleged offences to assist Namnik to recover his motorcycle.
11.Proof of those matters would also be relevant to establishing Namnik's motive for taking Tule to the clubhouse and to the jury's determination of his criminal responsibility for the assault occasioning bodily harm, as a party to the offence who did not actually inflict the assault.
12.The proposed expert evidence would be capable of establishing those matters.
The parts of the evidence sought to be adduced
On 6 February 2018, the prosecutor indicated that the evidence on which the State sought to rely from Detective Sgt White's first statement was confined to the following:
1.That there are motorcycle clubs that regard themselves as 'outlaw' motorcycle clubs and wear patches (hence 'patch clubs') which include the 1% logo to signify that members do not regard themselves bound by the norms and laws of the rest of society. The evidence would include an explanation of various aspects of the patch and its significance for members of club, in particular that the wearing of the patch is regarded as empowering the individual and providing him with the backing of the club, which will readily support him: [69] - [80], [83] of the statement.
2.That members of an OMCG risk punishment, including expulsion, if they break the rules of the OMCG: [127] - [128].
3.The use of clubhouses by OMCGs as a gathering point and the layout of such clubhouses, including the centrality of the bar (which is relevant to Tule's evidence that he was told he was being taken to 'the bar'): [153] - [154]. In relation to the GJMC, the officer would give evidence that the clubhouse is commonly referred to as the 'Bar': [296] - [297].
4.That there is a general culture of violence among OMCGs for the resolution of conflict: [171].
5.The history of the GJMC, including a brief history of its formation and its presence in Western Australia, evidence about the GJMC patch (also referred to as 'colours'), which signifies that the club regards itself as an 'outlaw' club, and evidence about the GJMC clubhouse, which is described as a compound surrounded by an eight‑foot‑high brick with gates that obstruct any view into the compound: [187], [193], [208] - [211] and [213] - [220]. The vehicle access gate bears the words, 'Joke with the Joker and the jokes (sic) on you', which is said to be the GJMC motto.
6.The GJMC's constitution and rules: [222] - [228], [241] - [246]. Images of the constitution were obtained during a police search of the clubhouse in December 2009. Images of the rules were obtained during a police search of the Perth chapter clubhouse in January 2006. Rules of a similar kind were located in the GJMC Sydney chapter clubhouse during a police search in January 2018.
7.The three things that a GJMC member values above all is his club, his 'colours' and his motorcycle: [250]. In this context, there would be further evidence obtained from discussion with members of the GJMC about the importance of ownership of a motorcycle of the correct specifications and the potential for a member to be expelled if they no longer own such a motorcycle: [251] - [252].
8.Membership of the club can only be achieved after a rigorous selection process, after which they are subjected to an initiation or 'christening', which includes violence being inflicted on the new member by other members, as well as other distasteful things, at the end of which the newly initiated member is told that, having been subjected to the 'christening', 'no one will ever shit on [the member] again': [253], [260] and [266]. This is said to underline the bond between the members and their preparedness to assist each other in the event any particular member has a conflict with a third party. It goes to the notion of 'brotherhood' and loyalty referred to earlier in these reasons.
9.Evidence specifically going to establish Martin's and Namnik's membership of the GJMC: [346] - [353] and [354] [358].
In respect of item 5, Detective Sgt White offered an opinion in his statement about the meaning to be attributed to the cracked skull image that appears on the GJMC patch, suggesting it conveys the tendency to violence. He also offered an opinion about the meaning to be attributed to the motto on the gate of the GJMC clubhouse, again suggesting that it conveyed a threat of violence. These opinions are not based on information from any source connected with the GJMC. They are inferences he draws, albeit in a context of knowledge and experience with OMCGs generally. In my opinion, on the assumption that Detective Sgt White is qualified as an expert in respect of OMCGs and the GJMC, the expression of such opinions would be beyond the scope of expert evidence. The same applies to an opinion expressed by Detective Sgt White about the intimidation that is likely to be caused to members of the public by the GJMC 'colours' and the motto on the gate. Those are matters about which the jury will draw its own inferences.
In respect of item 8, the information contained in Detective Sgt White's statement includes graphic details of the initiation process. As I have noted, the process as described is very distasteful and would likely give rise to a significant degree of prejudice. Although the prosecutor indicated he did not wish to adduce those details, it is necessary to identify that, if evidence of the initiation process is held to be admissible, it will be within very strict limits.
In addition to the matters listed above, the State proposes to lead evidence from Detective Sgt White that the GJMC has adopted the culture of violence generally found in OMCGs, and that the loyalty expected from each member often leads to a tendency to violence to resolve issues: Detective Sgt White's second statement, [44]. Detective Sgt White says, in his second statement, that this conclusion is drawn from personally listening to GJMC members' conversations by means of lawful telephone service interceptions or listening devices: [45].
In his first statement, Detective Sgt White also set out a number of violent incidents involving members of the GJMC, some of which resulted in prosecution, some of which did not. In at least one prosecution, the accused were acquitted. Although the incidents were said to form part of the foundation for the conclusion drawn by Detective Sgt White about the culture of violence, and were disclosed on that basis, the prosecutor said on 6 February 2018 that he did not intend to adduce any of the evidence of specific incidents. At that stage, the basis of Detective Sgt White's knowledge of those matters was not clear from his statement. When Detective Sgt White gave evidence on 13 February 2018, it became apparent that he was involved in the investigation of at least one of the incidents he referred to. As I understood the State's position at the end of that hearing, it may wish to adduce evidence from Detective Sgt White about the general nature of the incident he investigated.
In his second statement, Detective Sgt White also referred to a statistical analysis that had been done about the number of GJMC members who had been convicted of violent offences. This was provided after a submission was made on behalf of Mr Martin on 8 February 2018 that Detective Sgt White's evidence about a culture of violence within the GJMC was not based on reliable data and lacked any statistical analysis that would suggest members of the GJMC had been convicted of violent offences to any greater extent than members of the population of Western Australia generally. In his evidence at the pre‑trial hearing, Detective Sgt White indicated that the statistical analysis he had caused to be done was consistent, in his view, with the conclusion he drew about the culture of violence. However, apart from being disclosed as part of the material on which Detective Sgt White relied, the State does not intend to adduce that evidence.
Detective Sgt White's expertise
Detective Sgt White's experience, training and qualifications that are relied on to qualify him as an expert are set out at [8] to [55] of his statement of 12 January 2018. The following is a summary of the most salient aspects of that material and the additional evidence given by Detective Sgt White on 13 February 2018.
Detective Sgt White has been a police officer with the Western Australia Police Force (WA Police) for 15 years and has been a detective for seven years.
Prior to becoming a police officer, he did work experience at the Meekatharra Police Station in 1998, at which time he received instruction on the identification of patches and club structure in respect of the GJMC during an event concerning that club, and developed an awareness of OMCG culture. Since then, apart from the training and experience he has gained in his work as a police officer, he has read literature and open source articles and watched a number of documentaries in relation to OMCGs.
Soon after he joined the WA Police in 2003, he was transferred to the Geraldton police station where he developed his awareness and knowledge of OMCGs by assisting in the gathering of intelligence, conducting overt surveillance and low‑level investigations of members attached to the Geraldton chapter of a different OMCG. However, this was not specialised work in respect of OMCGs. His contact with the GJMC during that time was limited to a single 'run' by members of that club to Dongara.[11]
[11] ts 179.
Detective Sgt White completed the gang awareness course in 2006. He was transferred to the Gang Crime Squad in 2007 as a uniformed officer. A function of that squad is to investigate matters involving OMCGs.[12] During his initial attachment to the Gang Crime Squad, he gained knowledge in relation to a number of other OMCGs, including the GJMC. His roles and responsibilities included conducting road management duties during OMCG runs, executing search warrants on OMCG premises and conducting vehicle checkpoints during OMCG runs. He was also required to assist investigation teams with monitoring and reviewing recordings from lawfully intercepted telephone communications and lawfully installed surveillance devices relating to members, nominees and associates of OMCGs. He was also required to conduct surveillance of such persons. By that process he gained an understanding of 'many of the indicators of OMCG culture and traditions'.
[12] ts 178.
Detective Sgt White also outlines investigations that he has been involved in concerning OMCGs, in particular the GJMC, both when he was a uniformed officer and subsequently as a detective. He was seconded to one such investigation at the end of 2007. After that he returned to the Gang Crime Squad as a Field Intelligence Officer. That role included identifying and photographing OMCG members, conducting surveillance, collating and recording information onto the WA Police intelligence databases and preparing intelligence reports concerning those matters.
He was transferred from the Gang Crime Squad to the Perth Rail Unit in July 2009, and he was with that Unit for two years. During that time he completed detective training.
After been appointed a Detective in 2011, Detective Sgt White returned to the Gang Crime Squad in 2012 for part of that year, on rotation, as a Detective Investigator attached to the investigation team charged with investigating the GJMC. During the time he was on that team, he developed particular knowledge in relation to the GJMC.
In 2013, Detective Sgt White was promoted to the position of Detective Sergeant and was then attached to the Albany Detectives office. Although he was involved in the investigation of two other OMCGs while he was at that office, he maintained his knowledge of OMCGs more generally by maintaining contact with colleagues who were actively involved in OMCG investigations, attending the annual training conference of an international organisation (about which I will say more shortly) and reading police intelligence reports and incident reports, as well as open source material specifically relating to OMCGs.
He returned to the Gang Crime Squad in 2016, when he assumed the position of Team Leader for the investigation team responsible for investigating the activities of members of the GJMC and another motorcycle club. In June 2017, he assumed the role of Intelligence Manager in the intelligence team within the squad.
Detective Sgt White's duties in respect of investigating OMCGs over the years have included, reviewing the product of listening and optical surveillance devices lawfully installed within premises occupied by OMCG members, nominees and associates; monitoring communications on lawfully intercepted telecommunication services used such persons; interviewing and charging such persons; obtaining information from such persons who have wanted to assist police or have been prepared to divulge information for other reasons; executing search warrants at premises occupied by such persons and at OMCG clubhouses, including the GJMC clubhouse; policing and monitoring OMCG 'runs', including the GJMC National Run in 2008; and coordinating and managing major investigations into serious criminal activity alleged to involve OMCG members, nominees and associates.
In 2007, Detective Sgt White became a member of the International Outlaw Motorcycle Gang Investigators Association (IOMGIA), which is a non‑profit professional organisation started in 1974, consisting of federal, state and local law enforcement and prosecution officers from North America, Europe and Australasia. The annual IOMGIA training conferences are attended by specialist law enforcement officers involved in the investigation of OMCG crime. It serves as a training institute. The membership includes other police officers from Australian jurisdictions.[13] Detective Sgt White has attended annual conferences since 2007 and in 2016 was asked to give a presentation in respect of the developing trends and activities of OMCGs in Western Australia and southern Australia. The presentations at the conferences have an international flavour and include case studies.[14] The presentation given by Detective Sgt White included references to the GJMC.[15]
[13] ts 184.
[14] ts 184.
[15] ts 184.
As a result of his membership of the IOMGIA, Detective Sgt White has established a network of law enforcement officers involved in the investigation of OMCGs around the world. Information is exchanged regularly with those officers concerning OMCGs, including the GJMC.[16] Further, through the IOMGIA, Detective Sgt White has been able to speak with patched members of OMCGs in the United States who have become 'human sources' or informants.[17]
[16] ts 185.
[17] ts 184.
Between 2016 and 2018, he attended meetings with OMCG experts from other Australian jurisdictions. During those meetings, he received further training in relation to OMCG culture, as well as training in respect of giving expert evidence. He has regular teleconferences with other OMCG experts in Australia to discuss 'trends and tensions'.[18]
[18] ts 185.
Detective Sgt White has given numerous presentations to WA Police and external agencies in relation to OMCG structure, culture and activity.
From the training, personal study and experience outlined above, Detective Sgt White says he has developed specialised knowledge of OMCGs in Western Australia, particularly in relation to their identifying characteristics, culture and norms of conduct.
Detective Sgt White's evidence at the hearing of 13 February 2018
Detective Sgt White was called at the pre‑trial hearing primarily to elaborate on the basis of his knowledge in respect of some aspects of his statements, and to be cross‑examined on matters going to whether he is an expert in respect of OMCGs and the GJMC in particular.
His evidence‑in‑chief was largely in accordance with the contents of his statements, to the extent that relevant topics were touched upon, including in respect of his expertise. He said that there was no one else who could give expert evidence in respect of the Western Australian chapters of the GJMC.
He said that the requirement for members to own a motorcycle satisfying specifications, as detailed in the GJMC Constitution, had not changed. That was based on his experience. The information about the consequences of not having such a motorcycle came from information in lawfully intercepted telecommunications that he had listened to and from members of the GJMC.
His knowledge of the significance of the 1% patch comes from training with the IOMGIA, various international authorities and speaking to law enforcement officers who were undercover in various OMCGs in the United States. The adoption of the 1% patch and its implications by the GJMC is evident from the fact that the 'colours' worn by its members include the patch, which he has observed.
The information about the initiation process, including the infliction of violence, came from his own observations of new members before and after an initiation ceremony was believed to be taking place, from lawfully intercepted telephone communications and from presentations in respect of OMCGs during training he has received.[19] The information that a newly initiated member would be told 'no one else will shit on you again' came from a member of the GJMC in discussion with Detective Sgt White about the meaning of a particular aspect of the initiation process. Detective Sgt White denied, in cross‑examination by Mr Bullock on behalf of Namnik, that he had taken the detailed information in his statement about the initiation process from a 1966 book called 'Hell's Angels: A Strange and Terrible Saga' by Hunter S Thompson. He said he had not read that book.[20]
[19] ts 173 - 174.
[20] ts 207.
Detective Sgt White said that his knowledge about the OMCG culture of silence comes from experience in dealing with GJMC members and executing search warrants at their addresses. It also comes from lawfully intercepted telephone communications he has personally monitored. He acknowledged in cross‑examination that the 'code of silence' does impede his knowledge of the GJMC to some extent. Members can be guarded in their conversations on telephones and try to use code if they are suspicious the service may be intercepted.[21] However, they sometimes let their guard down and say things that may reveal the culture of the GJMC, including a culture of violence. Similarly, while they tend to be paranoid about listening devices in the clubhouse and will sometimes go outside to talk club business, members will often be more relaxed in their homes where they are unaware that listening devices are being used.[22] Detective Sgt White denied that a lot of his evidence, including opinions, about the GJMC is based on guesswork.[23]
[21] ts 182.
[22] ts 183 - 184.
[23] ts 201.
He agreed in cross‑examination that there are differences between chapters of the same club in different regions and different states.[24] However, he said the Perth chapter of the GJMC is a 'traditional OMCG', and the cultural factors he has described apply to that chapter.
[24] ts 188.
Detective Sgt White was cross‑examined about the violent incidents he described in his first statement which occurred from 1988 until 2017, upon which he relied in part for his opinion about the culture of violence within the GJMC. It is not necessary to traverse the details of that evidence. It is sufficient to say that the following points emerged:
1.With respect to most of the incidents, Detective Sgt White was not directly involved with the investigation.
2.His awareness and understanding of some of the incidents was based on consulting police records, police intelligence databases and open source information such as newspaper articles of the period. Some of the incidents were described in presentations during the Gang Crime Awareness course in 2006. Those presentations were made by officers involved in the investigations.
3.He had not reviewed trial transcripts or the prosecution briefs to gain a full understanding of the facts and what transpired at trial.
4.Detective Sgt White was not aware that in some instances either a charge was discontinued or an accused was acquitted.
5.At least one of the cases did not involve an offence connected with 'club business'.
6.In one of the cases, involving a murder, the accused who were tried were acquitted. However, a person who pleaded guilty was a GJMC member and gave evidence that he was involved in that capacity.
7.In respect of an incident involving members of the GJMC assaulting a person at a night club in Gosnells in May 2007, Detective Sgt White said:[25]
I wasn't part of the investigation team itself, but I did sit through the trial or the majority of the trial in relation to that matter to provide court security and also provide information back to my superiors in relation to how the trial was going …
He had also watched the CCTV footage. His opinion that the case was an example of the 'brotherhood' and the culture of violence in the GJMC was based on the information he obtained in that way. He had not reviewed the trial transcript. Two of the three accused had been convicted.
8.An incident in April 2017, in which two police officers were assaulted by members of the GJMC when the police intervened after the GJMC members had assaulted a patron in a hotel at Dongara, was one about which he had direct knowledge because he was in the vicinity of the location where the offence occurred, he subsequently spoke with the police officers who were involved and he assisted the investigation team. The incident involved GJMC members who were at a campsite near the hotel coming to the assistance of GJMC members in the hotel and being violent towards police who attended the scene, including hurling projectiles at the police and their vehicles.
9.In forming his opinion about the culture of violence in the GJMC, Detective Sgt White also relied his 'experience and observations as a police officer and detective generally, experience as a detective sergeant of the gang crime squad, years of listening to lawfully intercepted telecommunication services and listening devices, and discussing information with a member of another club in relation to a GJMC event.[26]
[25] ts 192.
[26] ts 216.
Detective Sgt White was cross‑examined about the need for impartiality required by the Code of Conduct for experts, with which he was familiar. It was suggested to him that because of his involvement in the case, he could not be impartial and, in effect, that he was tailoring his evidence to strengthen the prosecution case. His role in the investigation had been to supervise the investigation,[27] attend the GJMC clubhouse during the execution of a search warrant,[28] be present during the search of the premises of another suspect in the case,[29] and be present during the electronically recorded interviews of the two accused.[30] Although I was not asked to view those interviews, I was informed that Detective Sgt White was not the principal interviewing officer; rather, he was in the role of 'corroborator', although he may have asked some questions.[31]
[27] ts 193.
[28] ts 193.
[29] ts 194.
[30] ts 194.
[31] ts 248.
Detective Sgt White agreed that part of his role and objective as a member of WA Police and the Gang Crime Squad in particular is to disrupt and contain the criminal activities of OMCGs.[32] However, he said he was aware of his obligations as an expert, and that, in that capacity, he was a 'servant of the court' and was trying to assist the court to draw inferences and make a determination on the basis of his experience and training and dealing with the GJMC.[33] He denied he could not be impartial or that he was slanting his evidence. When it was put to him that police officers called to give expert evidence about drugs in prosecutions for drug offences will ordinarily be independent of the investigation, he disputed that was the case, indicating that he had previously been called as a drug expert. He said:[34]
[I]t is preferable for independence to be given to drug expert evidence, but I'm a police officer of 15 years' experience, I've been a detective sergeant for four and a half years. My role is to supervise. And in my training experience, I'm able to separate myself from the investigation to look at the evidence objectively. And that's what I'm employed to do.
[32] ts 196.
[33] ts 196.
[34] ts 195.
In respect of this case, he said:[35]
I wasn't the investigating officer, I was the supervising officer. I assisted with some of the investigative actions because of resourcing and because of timing of those investigations. However, it does not exclude me and it hasn't excluded other experts in various other jurisdictions and various other authorities from providing that evidence.
[35] ts 195.
Detective Sgt White said he was the pre‑eminent expert in Western Australia in relation to the GJMC.
He rejected the proposition put by counsel for Namnik that the majority of his evidence and knowledge about 'outlaw motorcycle culture' comes from American and European sources.[36] He also rejected the proposition that information in his first statement about reward patches to which GJMC members were entitled for particular sexual acts, including sexual violence, had come from books by Dr Arthur Veno and Hunter S Thompson.[37] While he had read Dr Veno's book, Detective Sgt White explained again that the source of his information was the WA Police Intelligence database. In short, he maintained the evidence he had given about his experience and training, which includes but is not limited to his involvement in IOMGIA and his interactions with international experts.
[36] ts 207.
[37] ts 204.
As I said in dealing with the special witness applications, Detective Sgt White was cross-examined about the contents of his affidavits in support of the special witness applications. The context initially was the proposition that he could not be impartial because of his involvement in the investigation and his contact with Tule and Agnew. Detective Sgt White said that he had not spoken to either of the witnesses for the purposes of preparing the affidavits. I have summarised the relevant exchanges and the effect of Detective Sgt White's evidence at [37] - [39] above.
I have not dealt with all of the matters raised in cross‑examination of Detective Sgt White. A number of propositions were put to him by counsel for Namnik which sought to compare his reasoning in reaching his opinion about the culture of violence in the GJMC, including the statistical analysis, with reasoning that would be patently absurd in respect of other segments of the community. The comparisons were inapt and do not warrant further consideration.
I consider that the above summary adequately sets out the salient aspects of Detective Sgt White's evidence.
Before dealing with the parties' arguments, it is necessary to examine the relevant legal principles, as they were raised during submissions.
Legal principles in relation to expert evidence
The conditions for admissibility of expert opinion evidence are conveniently set out in Cross on Evidence (11th ed)[38] at [29045], referring to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) NSWLR 705 at [85], as follows (footnotes omitted):
The conditions for admissibility of expert opinion evidence may be summarised as follows. First, it must be demonstrated that there is a field of specialised knowledge. Secondly, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. Thirdly, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness's expert knowledge. Fourthly, the expert must identify the assumptions of primary fact on which the opinion is offered ("the assumption identification rule"). Fifthly, the opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of primary fact which are "sufficiently like" those factual assumptions "to render the opinion of the expert of ... value" ("the basis rule"). Sixthly, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it. Seventhly, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. It is not, however, necessary for the expert's opinions to be described as such: it is sufficient if in substance they are inferences from assumed facts drawn with the aid of the expert's expertise.
[38] J D Heydon, Cross on Evidence, 11th ed, 2017.
The threshold issue, therefore, is whether the evidence concerns a field of specialised knowledge upon which expert evidence can be given. To be admissible, the evidence must concern a subject matter that is:
1.likely to be outside the knowledge or experience of ordinary members of the community on the jury; and
2.of such a nature that the jury would be unlikely to be able to form a sound judgment upon an issue affected by the subject matter without the assistance of a witness who possesses special knowledge or experience in the area.[39]
[39] See Clark v Ryan (1960) 103 CLR 486 at 491 (Dixon CJ); [1960] ALR 524, 526; Murphy v R (1989) 167 CLR 94, 111, 130; 86 ALR 35, 47, 62, approving R v Turner [1975] QB 834, 841; [1975] 1 All ER 70, 74; R v Bonython (1984) 38 SASR 45, 46 - 47 (King CJ).
Further, the subject matter must form 'part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.'[40] It is well established that the 'special acquaintance' (expertise) can be achieved by a course of education and training or by special experience.[41]
[40] R v Bonython (1984) 38 SASR 45, 46‑7 (King CJ).
[41] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [2] (Kourakis CJ), referring to Weal v Bottom (1966) 118 CLR 696 (note); Nickisson v The Queen [1963] WAR 114, 119; R v Duncan [1969] 2 NSWR 675, 678; Cooper v Bech (No 2) (1975) 12 SASR , 152.
Of course, like any other witness, an expert is under an obligation to tell the truth and the whole truth, which includes disclosure of any qualification to the expert's opinion.[42] Further, it follows from the principles derived from Makita (Australia) Pty Ltd v Sprowles, as outlined above, that unless the process of inference by which an expert opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight.[43] It is not adequate for an expert to make bare assertions about a matter, resting simply on the expert's authority.[44] The evidence must be in a form that can be tested in cross‑examination and its reliability must be capable of being assessed by the triers of fact.
[42] Hillstead v R [2005] WASCA 116 [48] ‑ [49] (Pullin JA).
[43] Hillstead v R [2005] WASCA 116 [48] ‑ [49] (Pullin JA).
[44] Hillstead v R [2005] WASCA 116 [48] ‑ [49] (Pullin JA).
Referring to the principles in Makita (Australia) Pty Ltd v Sprowles, the author of Cross on Evidence goes on to say:[45]
These principles apply in a more qualified way where the expert chooses not to give an opinion on the basis of facts proved or assumed by that expert, but rather simply gives an explanation of scientific or other principles relevant to the case without seeking to apply them to the factual controversies in suit, and leaves that task entirely to the trier of fact.
[45] Cross on Evidence, p 1092 [29045].
In many respects, the proposed evidence of Detective Sgt White in this case falls into the latter category. That is, it purports to be expert evidence about a phenomenon that is likely to be outside the knowledge or experience of a jury, but which is relevant to a proper understanding of the events described in the evidence of Tule and Ms Agnew, such that Detective Sgt White's explanation of that phenomenon will assist the jury to properly resolve the factual controversies, without Detective Sgt White expressing an opinion about those factual matters. In such circumstances, the legal principles apply to the expert's evidence about the specialised subject matter, the threshold questions being whether it is an area on which the jury requires expert assistance and whether the witness has the necessary expertise. The principles include the need for transparency about the foundations for assertions in respect of the subject matter.
Evidence of the kind the State seeks to adduce in this case concerning the indicia, culture and practices of criminal gangs has been held to be admissible by appellate courts in other jurisdictions.[46] Such evidence has been received from police officers with particular training and experience in the subject area and has been regarded as being in a similar category to expert evidence from police officers concerning drugs and the drug trade.[47] Contrary to the submission made on behalf of Namnik, a police officer may be no less an expert than an academic who has researched in the area. In some respects, a police officer with the appropriate experience, including, for instance, access to covert recordings, surveillance and informants, may be better placed to give expert evidence about a specific organisation such as the GJMC than an expert who has conducted relevant academic research but does not have direct access to the same information. As was noted in R v Abadom,[48] an expert is not limited to referring to published works; part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it.[49]
[46] See, for instance, R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 and the cases referred to therein, and Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214.
[47] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268, [3] - [6] (Kourakis CJ); Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214, [57]. For the admissibility of evidence concerning characteristics, prices, packaging and terminology used in respect of illicit drugs, see Marinovich v The Queen (1990) 46 A Crim R 282 and Italiano v State of Western Australia [2012] WASCA 260.
[48] R v Abadom [1983] 1 WLR 126; [1983] 1 All ER 364; 76 Cr AppR 48.
[49] R v Abadom [1983] 1 WLR 126 at 131; [1983] 1 All ER 364, 368; 76 Cr AppR 48, 53 - 54.
The fact that a police officer may be involved in the investigation of a matter or more generally is engaged in law enforcement does not disqualify him from being accepted as an expert. As the Privy Council explained in Myers v The Queen:[50]
Police officers have been accepted as expert witnesses in several different contexts and in many common law jurisdictions. A simple example is the police officer who has special training (and considerable experience) in the investigation and reconstruction of road traffic accidents. He may well be as much an expert in his field as any consulting accident engineer, and he is accepted as such routinely in both civil and criminal trials: see for example R v Oakley [1979] RTR 417, 420 where Lord Widgery CJ held in emphatic terms:
'we would like to make it quite clear straight away that there is no question of a police officer being prevented from giving evidence as an expert if the subject in which he is giving evidence as an expert is a subject in which he has expert knowledge, and if it is restricted and directed to the issues in the case.'
In such a case the expertise in question is as to the behaviour of motor cars, the effects of road surfaces and the like. In other cases, however, a police officer has been permitted to give expert evidence about criminal behaviour. An example is evidence of the customary practices of drug users, in relation to such matters as packaging, methods and quantities of usage and supply, and prevailing price: see R v Hodges [2003] 2 Cr App R 15, in which this type of evidence was held admissible. Evidence of the practices, mores and associations of gangs, whether general or particular, is in a similar category. It has been received in several jurisdictions and there can in principle be no objection to it being given by a police officer, providing that the ordinary threshold requirements for expertise are established, and providing that the ordinary rules as to the giving of expert evidence are observed.
[50] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [57]. Although expressed in a different context (involving scientific evidence), the remarks of Barr J in R v Gallagher [2001] NSWSC 462 [138] are also apposite. His Honour said in respect of the proposition that an expert witness's evidence lacked objectivity because it derived from the use of a scientific system he was responsible for installing, maintaining and using: 'In my opinion far more is needed to demonstrate bias than that a witness gives evidence about results from a system with which he or she is intimately connected'.
The Board cautioned in Myers v The Queen that 'care must be taken that simple, and not necessarily balanced, anecdotal experience is not permitted to assume the robe of expertise.'[51] It is necessary for the police officer to have made 'a sufficient study, whether by formal training or through practical experience, to assemble what can properly be regarded as a balanced body of specialised knowledge which would not be available to the tribunal of fact.'[52]
[51] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [58].
[52] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [58].
However, the fact that the evidence of a police expert may include factual evidence of the officer's personal experience and observations and hearsay evidence is no bar to the evidence being received as expert evidence. As Malcolm CJ and Kennedy J said in their joint judgment in Marinovich v The Queen:[53]
In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observation. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. With respect, for those reasons we are not prepared to follow Gardner. In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observation and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other.
[53] Marinovich v The Queen (1990) 46 A Crim R 282 at 301. See also Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [65].
As that passage indicates, expertise can be attained by the combination of personal observation and experience and reliance on the accumulated body of knowledge collected by others, and, in giving evidence, a witness who qualifies as an expert can draw on both personal observation in specific cases and the general body of knowledge and understanding in which he is expert.[54] Evidence of personal observations or experience alone would not be sufficient to qualify the witness as an expert who could give opinion evidence, although the evidence might still be relevant and admissible to provide context for the jury's assessment of evidence concerning the specific allegations in the case.[55]
[54] See also Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [63], [65].
[55] Examples were referred to by Kourakis CJ in R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [3] ‑ [4].
In the context of expert evidence about criminal gangs, Kourakis CJ addressed that issue in Cluse as follows:[56]
When it is proposed that a police officer give opinion evidence about the practices of criminals, it is important to distinguish between evidence of facts relating to those practices observed in the course of that police officer's duties, to which I will refer as direct evidence, and the giving of opinion evidence about matters of which the police officer has no direct personal knowledge. Evidence of the latter kind must be founded in a course of study or special experience and must be informed by reliable data.
[56] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [2].
His Honour later discussed the consequences of the distinction where the expert relies on specific incidents of violence in support of the conclusion that a culture of violence is a characteristic of a particular gang, which resonates with one of the purposes of the evidence in this case. The context in that case was violent conflict between gangs, rather than towards other members of the community. Nevertheless, the points made by his Honour are apt in the present case. He said:[57]
There is also a distinction between evidence of the general purposes, nature and structure of a gang on the one hand and evidence of particular offending or gang conflicts on the other. Opinion evidence of the former kind is admissible when it is founded on the study of systematically collected and validated data confirmed from a variety of sources which may include personal experience. On the other hand evidence of a particular conflict or incident is, speaking generally, unlikely to be sufficiently based on information verified by multiple sources over time. However, if direct evidence is adduced of a particular conflict or incident, as it was in this case, the opinion evidence of a properly qualified police expert on the ways in which gangs are known to wage their internecine conflicts will be admissible to provide the jury with the context in which to evaluate that direct evidence.
[57] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [15].
Vanstone J in that case did not consider the evidence given by the police officer of 'the culture of the two clubs and their operations' to be opinion evidence, but held it was properly admitted as evidence of 'knowledge gleaned from long observation and study'.[58] However, in a similar manner to Kourakis CJ, her Honour also drew a distinction between hearsay evidence of violent conflicts that formed part of a 'mass of information' on which an expert was entitled to rely and hearsay evidence of specific incidents of violence that did not fall into that category. Her Honour was of the opinion that the police expert in that case should not have been permitted to give evidence of the specific instances of violence between motorcycle gangs, in circumstances where he was neither a direct observer nor involved in the investigation of those incidents.[59] Her Honour explained:[60]
It is one thing to allow a police officer to give evidence of his knowledge of practices in the drug trade or his knowledge of the culture of motorcycle gangs where the witness's knowledge of such matters may well be based on a mass of information, some of it hearsay. Yet, it is quite another to allow a witness simply to relate the details of specific incidents which he has learned from secondary sources. Even expert witnesses in the traditional sense do not do that as a basis for expression of an opinion. I consider that the evidence given by Featherby of specific episodes of inter-gang conflict was, with some possible exceptions based on direct observation, inadmissible.
[58] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [48].
[59] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [49].
[60] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [49].
The Privy Council in Myers v The Queen drew a similar distinction:[61]
In some cases the dividing line is between opinion evidence, which may be informed by hearsay information (admissible) and specific evidence of observable fact, which has to be proved in a manner which satisfies the ordinary rules of evidence.
[61] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [65].
The Board referred to Cluse as an example.[62]
[62] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [64].
I note that, like Vanstone J, the Privy Council in Myers v The Queen was of the view that '[t]he police officer's evidence in Cluse about the existence, culture and rivalries of particular gangs was not evidence of opinion, but could nevertheless be given on the basis both of personal experience and data collected by others.' In my respectful opinion, it does not matter whether the evidence is characterised as opinion evidence or explanatory expert evidence as I discussed earlier. It is still expert evidence, in that it involves specialised knowledge that would not otherwise be available to the tribunal of fact, and it is subject to the principles applicable to expert evidence. Provided the evidence satisfies those principles and is relevant to an issue in the trial, it will be admissible and it will be a matter for the jury to decide what weight it gives to the evidence. In Cluse, the expert evidence was adduced in part to prove that the accused was a member of a particular gang. As Kourakis CJ observed:[63]
[T]here is no doubt that a properly qualified expert can give evidence, in general terms, about the significance of certain indicia of gang membership in the context of the general nature, hierarchy, rules and practices of the criminal gang concerned. It would then be a matter for a jury to determine whether or not to draw an inference of membership.
[63] R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 [14].
The evidence will be relevant in the trial if it could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the trial. Where it is alleged that two or more accused acted together in the commission of an offence, evidence tending to establish the existence of a shared motive for the commission of the offence would be highly relevant.[64] Expert evidence about the culture and practices of an organised group would then be relevant if it has the capacity to support the existence of such a motive.[65]
[64] Myers v The Queen [2015] UKPC 40; [2016] 1 AC 214 [45].
[65] R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452 [46] (RA Hulme J).
In R v Hawi,[66] the prosecution case was that the eight accused were members of the Comanchero motorcycle club who had joined in a criminal enterprise to inflict grievous bodily harm on one or more members of the Hells Angels motorcycle club who were at Sydney Airport. It was alleged that the accused had in fact inflicted such violence and that a member of the Hells Angels club was killed in the course of that violence. One of the accused was the president of the Comanchero club. He was alleged to have initiated the violence. The other seven accused were alleged to have then joined in.
[66] R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452.
The prosecution sought to rely on expert evidence about the 'strong culture of group loyalty' in OMCGs, the hierarchy of the Comanchero club and the club's rules, which included obligations to obey orders and protect the club president. It argued that the evidence was relevant to the jury's task of determining the existence and scope of the joint criminal enterprise alleged and the state of mind of each of the accused. RA Hulme J, ruling on objections to the evidence by four of the accused, concluded that the evidence was admissible in part, on the basis submitted by the prosecution. His Honour was of the opinion that the evidence was capable of providing an explanation for the conduct of the individual accused which was relevant to whether there was a joint criminal enterprise and, if so, the scope of it.[67] That extended to all twelve men involved in the incident at the airport. His Honour said:[68]
In my view, the fact that these twelve men were members of an organisation with the attributes described earlier could be important evidence for the jury's determination of some of the critical issues in the trial.
[67] R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452 [46].
[68] R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452 [46].
His Honour also noted that the prosecution case was that the violence was initiated by the president of the Comanchero club, Mr Hawi, and that all of the Comanchero members who were present joined in. The proposed expert evidence was also relevant in that context on the following basis:[69]
The fact that they were members of an organisation which had rules from which it may be inferred that a strong sense of loyalty to fellow members, and particularly the president, was required, may be regarded as making this allegation more likely to be true. The evidence is relevant in a similar way to the allegation that each of the individual accused joined in in various ways, upon an assault of Hells Angels members in the departure hall where the fatal attack upon the deceased took place.
[69] R v Hawi [2011] NSWSC 1647; (2011) 220 A Crim R 452 [48].
If evidence of this kind is relevant and admissible, having regard to the issues in the trial, there remains the need to consider whether the evidence should be excluded in the exercise of discretion on the basis that the prejudice it is likely to engender outweighs the probative value of the evidence.
I should note finally that the State does not rely on s 31A of the Evidence Act for the admissibility of any of the evidence of Detective Sgt White.[70] That provision is concerned with propensity and relationship evidence. Those terms are defined as follows:[71]
propensity evidence means ‑
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
[70] ts 105 ‑ 106.
[71] Evidence Act 1906 (WA) s 31A(1).
The admissibility of such evidence is dependent on it having significant probative value, and the probative value of the evidence, compared to the degree of risk of an unfair trial, must be such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.[72] The evidence the State intends to adduce is not similar fact evidence or evidence specifically about the conduct of either of the accused. Nor is it evidence specifically about the character or reputation of the accused. It might be thought to give rise to an inference about the tendency of each of the accused by virtue of their membership of the GJMC, but it seems to me that such a connection with s 31A would be tenuous.
[72] Evidence Act 1906 (WA) s 31A(2).
Therefore, although the evidence was at times referred to as propensity evidence in the submissions of the accused's counsel, I do not consider that s 31A has application. However, it is evidence of a kind that has the potential to give rise to prejudice of a similar kind as evidence of bad character that may come within s 31A. In my opinion, that issue can appropriately be addressed by consideration of the discretion to exclude the evidence if it is otherwise relevant and admissible as expert evidence, but its probative value is outweighed by unfair prejudice. In assessing the probative value of the evidence, I do not consider that any different approach should be taken from that applicable under s 31A. The evidence must be capable of affecting in a significant manner the jury's assessment of the probability of the existence of a fact in issue.
The parties' submissions
The State's submissions
The question of relevance depends on the issues in the trial. Counsel for both accused said it would not be in dispute that on 3 August 2016, the two accused went to Tule's house looking for Namnik's bike and asked Tule to come to the clubhouse in their vehicle. It would appear it is not in dispute, either, that the accused were members of the GJMC. What is in issue is the allegation that Tule was unlawfully detained. The defence case will be that Tule went voluntarily. Tule's version of what was said will also be in issue, in particular, that Martin made any threat to him. It will not be in dispute that Tule was taken to the clubhouse and that both accused were at the clubhouse while he was there. However, Tule's account that he was assaulted will be in dispute. As I understand the defence cases, his account of the number of persons who were present at the clubhouse will also be in dispute.
The basis on which the State submits the proposed evidence of Detective Sgt White is relevant is set out at [59] above. It appears to me that it takes into account the matters that will either be admitted on behalf of the accused or at least will not be in dispute, and the issues to which the evidence is said to relate remain live.
The State submitted that the evidence proposed to be adduced from Detective Sgt White is likely to be outside the knowledge or experience of ordinary members of the community on the jury. While jurors may have read, seen or heard information about motorcycle clubs referred to as OMCGs, and perhaps about the GJMC, they will be directed by the trial judge to disregard any such extra‑curial information or any preconception they may have about such clubs or the GJMC specifically. It is unlikely that jurors would have the depth of knowledge or experience that Detective Sgt White has about the culture of OMCGs, and the GJMC in particular, to enable them to give proper context to the events to be described by Tule and Ms Agnew and reach a sound judgment about the issues raised by their evidence.
The State submitted that, on the basis of Detective Sgt White's evidence, I can be satisfied that there is a body of knowledge or experience about OMCG's and about the GJMC which is recognised and has been accepted to be reliable, and which can properly be the subject of expert evidence. Cluse, Myers v The Queen and R v Hawi are all authorities that support that conclusion.
The State submitted that, having regard to his training, his experience, his personal study, his membership of the IOMGIA and his collaboration with other law enforcement officers having expertise in relation to the activities, culture and other aspects of OMCGs, within Australia and abroad, the court can be satisfied that Detective Sgt White is an expert in such matters and can give evidence that will assist a jury to form a sound judgment about the issues. The State pointed to the authorities I have referred to as supporting the proposition that a police officer can be an expert in this area, and that expertise can be gained substantially from on‑the‑job training and experience. Further, the fact that a police officer by virtue of his office is committed to the disruption and containment of criminal activity believed to be carried out by OMCGs does not mean the officer cannot be objective when called upon to give expert evidence, and is not an obstacle to that officer giving evidence as an expert. Nor could it be said that Detective Sgt White's involvement as a supervising officer in this case deprived him of the capacity to be impartial. The State submitted that where the pool of experts is so limited, it will be difficult to avoid the potential for the witness to also have some involvement in the case at hand.
Finally, the State submitted that the matters raised by the accused's counsel in respect of Detective Sgt White's credibility, concerning the false material in his affidavit, do not necessarily affect his credibility as an expert. In any event, those matters go to the weight of his evidence, which will be a matter for the jury to determine.
Submissions on behalf of Martin
Counsel for Martin conceded that, as a general proposition, the type of evidence sought to be adduced from Detective Sgt White might be admissible in an appropriate case. That followed from cases such as Cluse. However, he submitted this was not an appropriate case.
He submitted that one needed to exercise particular caution with such evidence because, unlike expert evidence in cases of drug offences, where the evidence often relates to physical evidence at a scene or on an accused constituting indicia of drug dealing, the evidence sought to be adduced in this case is referrable to the behaviour of a group of people to which the accused belongs,[73] and it has the potential to be regarded by the jury as a propensity on the part of any individual in that group to engage in criminal behaviour. With respect, the first part of the distinction, if it exists, is a fine one. It is true that in this case the court is not concerned with an explanation for physical evidence that is said to be directly related to the alleged offending. However, in both categories of case the expert evidence concerns the behaviour of persons of a particular class, on the one hand drug dealers, and on the other hand members of clubs that regard themselves as above the law or outside the norms of society. In any event, in Cluse and Myers v The Queen, the basis for the admission of expert evidence of this kind was considered to be analogous to the basis on which drug expert evidence is admitted. As for the second aspect of the argument, the potential for improper reasoning is a matter to be taken into account when considering the unfairness discretion, rather than when considering whether the evidence can properly be received as expert evidence.
[73] ts 253.
Counsel sought to distinguish the circumstances of this case from those in Cluse on the basis that the State was seeking to use the evidence in a different way in the present case.[74] However, it is not obvious to me that the distinction holds. In Cluse the importance of the hierarchy and the obligation of club members to assist the club president had some prominence, but similar considerations applied in respect of the 'brotherhood'. As in that case, although in a different context, the evidence will be relevant to inferences about the accused's state of mind.
[74] ts 131.
In any event, the judgments in Cluse do not suggest that the issues to which such evidence may be relevant are limited by closed categories. The significance of the authorities is the principles they reveal, as discussed above.
One of the objections raised by Martin is that Detective Sgt White's credentials as an expert relied upon things that were beyond the accused's ability to check. For example, Detective Sgt White relied on information he said he had obtained from telephone intercepts and listening device material. The accused does not have access to that material to test Detective Sgt White's evidence in that regard. In my opinion, that is not a basis for rejection of the evidence. In disciplines such as anthropology, where expertise about customs or usage, for example, may rely on the expert obtaining information from members of particular communities or upon observing them, experts routinely give evidence of such research without being required to produce the source information. Reliance on precisely such material as was referred to in this case, such as telephone intercepts and listening device material, routinely forms a part of the knowledge base on which police drug experts acquire expertise. In my opinion, the objection is not made out.
Counsel for Martin also submitted that the reliability of expert evidence in respect of OMCGs must be questioned when one of the characteristics attributed to the club is a culture of silence, which would suggest that those who were listening in to conversations or speaking to informants were likely to be obtaining an incomplete or distorted picture. Detective Sgt White dealt with that in cross‑examination, as I discussed earlier. I am satisfied that the breadth of information that has been acquired by Detective Sgt White, and the apparent consistency with the findings of experts in respect of OMCGs in other jurisdictions, is sufficient to enable a jury to find that the knowledge base is reliable. Of course, whether a jury in fact makes that finding will depend on its assessment of the evidence as a whole.
Counsel for Martin accepted that evidence about the culture of 'brotherhood' could be relevant to the issues in this trial, because of the fact that a group of persons attended Tule's home on the first occasion. However, he submitted that the evidence is not necessary because it would be obvious the group that attended Tule's home did so for a common purpose. The difficulty with that approach is that it addresses aspects of the case in a piecemeal way. As I have understood the State's submission, the expert evidence addresses the overall picture that emerges from the evidence of Tule and Ms Agnew, and is intended to assist the jury to understand that picture, which includes the initial visit, followed by the visit by the accused and the gathering of a group at the GJMC clubhouse when Tule was taken there.
The main submission made on Martin's behalf was that the evidence is primarily being led by the State to establish a culture of violence. It can only be relevant to the issues in the trial if such a culture can be sheeted home to the GJMC. The jury could not be assisted in its consideration of the issues in this trial, which concern specifically the conduct of members of the GJMC, unless the evidence is specific to that club. There must be reliable data or a reliable body of knowledge that members of the GJMC adhere to such a culture. Much of Detective Sergeant White's evidence relates to OMCGs generally and not specifically to the GJMC. The evidence fails to meet the requirement of reliable data or a body of knowledge and is not expert evidence in respect of the GJMC.
It was submitted that Detective Sgt White's evidence that is specific to the GJMC, on which he appears to rely to express an opinion about the adoption by the GJMC of a culture of violence, is unreliable. He was not aware of the outcomes for some of the persons who had been charged in respect of the incidents he relied on and he had not informed himself in a manner in which an expert might be expected to do, for instance by reviewing transcript of proceedings in those cases.
While I would accept that Detective Sgt White's approach to analysis of some of the material was less than satisfactory in terms of the rigour that would be expected from an expert, there were at least two instances, to which I referred in outlining his evidence, about which he had sufficient familiarity, and which did provide a basis for his conclusion, being the instance of the GJMC member who had pleaded guilty to murder and the incident that occurred at the Dongara Hotel in April 2017. Although the latter occurred after the alleged offences in this case, it is sufficiently close in time to inform the culture of the GJMC if the jury were satisfied it was indicative of a group mentality of loyalty and a preparedness to use violence to resolve conflict.
Another area in respect of which counsel for Martin submitted that Detective Sgt White's opinion was not based on reliable data, was his evidence about the initiation ceremony.[75] It was submitted that seeing inductees before and after a purported initiation is not a sufficient basis on which Detective Sgt White could give evidence of what occurred during the unobserved initiation. The difficulty with that submission is that it overlooks other aspects of Detective Sgt White's evidence on that topic. It was obvious he was also relying on information he had received from persons connected with the GJMC.
[75] ts 240 - 241.
Finally, on the threshold question of admissibility, it was submitted on Martin's behalf that the witness's credibility is a relevant consideration both to the evidence he gives about his expertise and his impartiality, both issues being relevant to whether he should be accepted as an expert.
Counsel for Martin contended that Detective Sgt White lied in his affidavits in support of the special witness applications, and those lies go to his credibility in relation to his purported expert evidence. At the very least, it was submitted, they demonstrate his lack of impartiality, and he should not be accepted as an expert unless the court can be satisfied that he will be impartial in giving that evidence.
I accept that Detective Sgt White lied in his affidavits. He made statements which he knew were not true about the source of the information in each affidavit. I also accept that the dishonesty revealed in that regard is relevant to a consideration of his evidence in the pre‑trial hearing. However, I have had the opportunity to make my own assessment of his credibility and reliability in respect of the matters he spoke about at the pre‑trial hearing. Apart from a degree of deflection when he was cross‑examined about the affidavits, he impressed me as being credible and reliable in the evidence he gave about his knowledge and experience in respect of OMCGs and the GJMC. Of course, it will be for the jury to make determinations about his credibility and reliability, but in my view it would be open for them to accept his evidence. As the State submitted correctly, the matters of credit raised by the accused go to the weight of his evidence, not its admissibility.[76] It seems to me that the credibility issues do not rise to such a level as to prevent Detective Sgt White being considered an independent expert.
[76] ts 224.
It was submitted for Martin that, if I were to rule that the evidence is otherwise admissible, I should exclude it on the basis that the prejudice it would engender in the jury would outweigh its probative value, and would result in an unfair trial for Martin.
In the first place, it was submitted, as a general proposition, that just because someone is a member of a club does not mean he agrees with all of the positions taken by the club. However, the whole point of the expert evidence is that OMCGs are not ordinary clubs, and there are positions adopted by OMCGs that members are expected to adhere to. The fact that an ordinary member of the community may take the view that membership of a club does not necessarily bind one to all aspects of the club tends to underscore the need for assistance to understand that OMCGs do not operate in that way, which is part of the evidence to be given by Detective Sgt White.
The second point in respect of unfairness, made on Martin's behalf, was that he only has traffic offences in his court history. Counsel submitted that to make Martin's character referable to the fact that he belongs to the GJMC would be unfair to him.[77] He submitted that the type of prejudice that would flow from evidence relating to the club's predilection for violence would be very difficult to deal with adequately by directions to the jury intended to overcome improper prejudicial reasoning.[78]
[77] ts 109.
[78] ts 121.
Counsel submitted further that the State's intended use of the expert evidence as to OMCG culture amounts to an invitation to the jury to speculate as to how the GJMC would respond in circumstances where a members' bike was stolen.[79] He submitted that it would be reasonable to assume that anyone who lost their motorcycle would wish to recover it, and evidence about his obligations as a member of the GJMC added nothing.[80]
Submissions on behalf of Namnik
[79] ts 120.
[80] ts 120.
Counsel for Namnik also conceded that, as a general proposition, the type of evidence sought to be adduced from Detective Sgt White might be admissible in an appropriate case. However, he submitted this was not such a case. He largely relied on similar submissions to those put on behalf of Martin. He submitted that Detective Sgt White's evidence about sanctions for members who did not own a motorcycle meeting the required specifications was irrelevant and prejudicial.
In my opinion, while it may be accepted that anyone who had their motorcycle stolen would want to recover it, may take steps to interrogate someone who is believed to have knowledge of its whereabouts and may enlist assistance to do so, the relevance of the evidence sought to be adduced from Detective Sgt White about sanctions went to a wider issue. If a potential sanction is expulsion from the club, and if other members consider themselves to be in a brotherhood with the affected member, the combination of factors might be regarded by a jury to explain a preparedness by those fellow members to be involved in the kinds of measures alleged to have been adopted in the present case on Tule's evidence.
Counsel for Namnik also submitted that Detective Sgt White's evidence about loyalty to the patch and a proclivity for violence to support other members was irrelevant and unfairly prejudicial because it was too general and did not establish the existence of a practice of taking people to the clubhouse to interrogate or bash them, and certainly did not establish that Martin or Namnik had any such proclivity.[81] I earlier dealt with the tendency of some of the submissions to drift into arguments about propensity evidence, and why in my view that it is a misconceived approach, except to the extent that it is submitted a jury might engage in improper prejudicial reasoning. The evidence is sought to be led to assist the jury with inferential reasoning based on a number of characteristics that Detective Sgt White says can be attributed to OMCGs and their members, and to the GJMC in particular.
[81] ts 145.
Counsel for Namnik questioned the credibility of Detective Sgt White both in respect of his honesty (related to the affidavits) and the lack of rigour in his evaluation of purportedly 'validated sources'.[82] Referring to of the judgment of Kourakis CJ in Cluse at [15], counsel submitted that the test there set out had not been satisfied.[83]
[82] ts 259 ‑ 261, 266, 268 ‑ 270.
[83] ts 259.
Counsel for Namnik submitted that that much of Detective Sgt White's evidence was taken from the books counsel had referred to in cross‑examination, and that the court should not accept it to be relevant for Western Australia at the present time. There is no evidence before me of the contents of those books. In light of Detective Sgt White's responses, I am satisfied there is no merit to the submission.
Counsel for Namnik also submitted that it was clear that the written rules and the Constitution of the GJMC may not reflect the practices of the club (an example was given in regard to the race of members).[84] In my opinion that is a matter of weight and does not necessarily affect the general propositions about OMCGs and the GJMC that emerged in Detective Sgt White's statements and his evidence.
[84] ts 265.
Conclusions
I am satisfied that the evidence which the State seeks to adduce from Detective Sgt White is expert evidence. It is evidence concerning subject matter in respect of which ordinary members of the community would not be expected to have the knowledge or experience that would enable them to form a correct judgment about the facts without assistance.
While it may be accepted that media coverage of matters involving OMCGs would provide a basis for members of the community who are likely to be on the jury to have an opinion about such clubs and their members, and perhaps in relation to the GJMC, that is precisely the sort of thing that the jury will be directed to ignore and about which they will be directed they must not rely on preconceptions or prejudice.
As my review of the authorities demonstrates, it is possible for someone to attain expertise in relation to OMCG culture and practices.
I am satisfied that it is an area in respect of which expertise may be gained by police officers by research, training and experience in the course of their work, including specific methods of the kind described by Detective Sgt White in his evidence. Those methods include involvement in investigations concerning members of such clubs, and the GJMC in particular in this case, the use of listening devices and telephone interceptions, covert and overt surveillance, intelligence received from members or former members of such clubs, evidence including exhibits seized from club premises and from members of such clubs, and the sharing of information about such clubs through professional organisations. While it is a subject area that could also be the subject of academic research, that does not detract from the ability of someone in Detective Sgt White's position to acquire the relevant expertise in the manner I have described. It is a similar area of expertise as that concerning the illicit drug trade, about which properly qualified police officers routinely give expert evidence. As I have demonstrated, it has also been the subject of police expert evidence in other jurisdictions.[85]
[85] See R v Cluse(2014) 120 SASR 268.
While it may be preferable for such evidence to be given by an officer who is independent of the investigation, the fact that the expert witness is also involved in the investigation does not disqualify him from giving such evidence, particularly where the pool of experts is very small, as I was told is the case here.
On the evidence he gave in the pre‑trial hearing, I am satisfied that Detective Sgt White has the relevant expertise both generally in respect of OMCGs and in relation to the GJMC in particular.
I have given careful consideration to his evidence. As I indicated earlier, the issue that has been raised quite properly by counsel for the accused concerning Detective Sgt White's credibility because of the falsehood in his affidavits in support of the special witness applications is of significant concern. No doubt it may be used in cross‑examination to challenge Detective Sgt White's credibility generally.
However, having assessed his evidence in the pre‑trial hearing, I am satisfied that his evidence in relation to his expertise is credible and reliable. Further, I consider that it would be open to a jury to find that his evidence in respect of his area of expertise can be relied upon. Of course it will be a matter for the jury whether in fact it is prepared to rely on his evidence, having regard to what may emerge during the course of cross‑examination.
I have come to the conclusion, therefore, that the evidence sought to be adduced from Detective Sgt White as expert evidence is admissible as such.
I have also come to the conclusion that the probative value of the evidence is significant, for the reasons identified by the State in outlining its relevance. I am satisfied that its probative value outweighs the risk that the jury would use the evidence improperly to reason that the accused must be guilty simply because they are members of an organisation that engages in conduct that is of bad character. The probative value of the evidence outweighs any improper prejudicial effect it may have. The jury will be given strong directions prohibiting the use of improper prejudicial reasoning, in addition to the usual directions about prejudice and sympathy. In my opinion such directions will provide adequate protection against the risk of an unfair trial.
I rule, therefore, that Detective Sgt White will be allowed to give expert evidence in relation to the culture and operations of what have been referred to as OMCGs and the GJMC in particular.
He will be allowed to give evidence about the means by which he has gained his expertise, being the evidence he gave in the pre‑trial hearing in that regard, which to some extent was augmented by the contents of his first statement.
He will be permitted to give evidence about the origins of so‑called outlaw motorcycle clubs or OMCGs and, in particular, the significance of the 1% logo. That history, however, will need to be of a fairly limited nature. Unless it is obvious that the same evidence is applicable to the GJMC, evidence that strays into the history of other clubs would not be admissible.
Detective Sgt White will also be permitted to give evidence in relation to the wearing of specific patches and the significance of the particular parts of the patches and the proprietary nature of those patches, so far as each club is concerned. He is not entitled, and will not be permitted, to give evidence that is, in essence, his own conclusion about what one might infer from the indicia in those patches and the clothing worn by members of such clubs generally. That is a matter about which the jury can draw its own conclusions. However, it is within his expertise to describe the particular patch for the GJMC and the significance of the 1% logo, and he will be permitted to give that evidence.
I am also of the view that it is within his expertise to give evidence about the general hierarchy within the GJMC and the fact that it may reflect the hierarchy of clubs of the same nature generally, and he will be permitted to give that evidence. However, in my opinion, in the circumstances of this case, it is irrelevant to go into detail about the role of each member within the hierarchy, apart perhaps for the role of the Sergeant‑at‑Arms, but only to the extent that some aspect of that role can be related to the facts that are alleged by the prosecution in this case. That is not to say, however, that Detective Sgt White can express an opinion about those facts.
Evidence (contained in his first statement) about persons other than full‑patch members involved with the club, such as 'hang‑arounds' or 'prospects', is not relevant, because Detective Sgt White's evidence is that each of the accused was a full‑patch member.
I am of the view that he can give evidence about the significance of the club house and the exclusivity of access to that club house. He is not entitled to express any opinion about the meaning of the words on the gate or the wall. That is a matter for the jury, but obviously the jury will have evidence about that.
He will be permitted to give evidence about the culture of silence generally within the clubs. He will also be permitted to give evidence about the general culture of violence but limited to a form that will indicate to the jury that there are known cases in which violence is used in order to resolve issues or in order to intimidate persons with whom the club is in conflict.
The material in Detective Sgt White's statement concerning conflicts between motorcycle clubs is not relevant. The contents of his statement concerning the involvement of OMCGs and the GJMC in particular in criminal activity generally is also not relevant.
He will also be permitted to give evidence about the rules and the constitution of the GJMC. However there needs to be some limitation to the aspects of the rules and the constitution that are put before the jury, if indeed they are to be put before the jury in the form of an exhibit rather than simply being described. For instance, it is entirely irrelevant to the circumstances of this case that there is a rule concerning whether members of a particular ethnic or racial group would be admitted into the club. During the course of submissions and indeed in cross‑examination of Detective Sgt White, it became apparent that there might be some flexibility in relation to that particular rule anyway, but it seems to me that it is simply irrelevant to the facts of this case.
Related to that issue is the significance of the motorcycle to a member of the club. Whilst I accept the submission that was made on behalf of the accused that that might be obvious, nevertheless it seems to me that it is evidence that can be given by Detective Sgt White in the way that he spoke about it during the course of the pre‑trial hearing.
It follows from what I have said that I will not allow evidence of specific matters involving matters concerning the GJMC that Detective Sgt White was not involved in. That is an approach that was taken in Cluse which I consider to be appropriate for this case. He will be permitted to give evidence about a particular matter or matters that he was involved in investigating where it is apparent that the violence that was used in that matter related to the assailants' membership of the GJMC.
Subject to the qualifications I have expressed in these conclusions, I rule that the evidence outlined in [60] ‑ [65] of these reasons, which the State indicated it intended to adduce is admissible as expert evidence to be given by Detective Sgt White.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE FIANNACA17 MAY 2018
2
12
2