Supreme Court New South Wales Medium Neutral Citation: Sergeant Gary Broadhurst v Nomads Hunter Valley Motor Cycle Club Incorporated (ACN 076 396 391) [2018] NSWSC 256 Hearing dates: 26 February 2018 Date of orders: 26 February 2018 Decision date: 26 February 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The application be dealt with ex parte. (2) An order pursuant to UCPR r 1.26 and Schedule 10 that the Supreme Court deal with an application under sections 3(1) and 3(3) of the Restricted Premises Act 1943 (NSW)("Act") notwithstanding that this Summons has not been served on all persons who may have an interest in the proceedings. (3) A declaration under section 3(1) and 3(3) of the Act that premises identified by NSW Land Registry Services as Lot 16 in Deposited Plan 879207 and known as 177 Bridge Street, Muswellbrook in the State of New South Wales are premises to which Part 2 of the Act applies, for the predominant (but not sole) reason that reputed criminals have attended or are likely to attend the premises, and a reputed criminal has, or takes part or assists in, the control or management of the premises. The Court notes the terms of Section 4 of the Restricted Premises Act 1943 provide as follows; "4 Rescission of declaration (1) Any such declaration may be rescinded by the appropriate Court subject to such terms as the Court thinks fit, on application being made to it: (a) by the owner or occupier of the premises, the subject of the declaration, on proof that the owner or occupier has not at any time allowed any of the conditions referred to in subsection (1) of section 3 to obtain in relation to such premises, or (b) by a senior police officer on proof that there is no reasonable ground for suspecting that any of the conditions referred to in subsection (1) of section 3 obtain in relation to such premises." (4) Where an application under this section is made by the owner or occupier of the premises notice in writing of intention to make the same shall be served on a senior police officer two days at least before the hearing of such application. Catchwords: CRIMINAL PROCEDURE – restricted premises – reasonable suspicion that premises are being used for illegal purposes including sale and supply of alcohol when not licensed – possession of guns – managed by persons with a criminal record and reputed criminals resorting to premises – evidence of inter-gang violence related to premises – declaration that premises restricted under the Restricted Premises Act 1943 Legislation Cited: Restricted Premises Act 1943 Category: Consequential orders (other than Costs) Parties: Sergeant Gary Broadhurst (Plaintiff) Nomads Hunter Valley Motor Cycle Club Incorporated (ACN 076 396 391) (Defendant) Representation: Solicitors: N Regener (Plaintiff) Ex parte (Defendant) File Number(s): 2018/63451 Publication restriction: Nil Ex Tempore Judgment 1. HIS HONOUR: Before the court is an application ex parte to make orders pursuant to the Restricted Premises Act 1943 ("the Act"). In particular, orders are sought to deal with the matter ex parte and for a declaration under s 3 (1) or s 3(3) of the Act, that certain premises, being premises at 177 Bridge Street, Muswellbrook in the State of New South Wales be declared, pursuant to the provisions, a restricted premises. 2. The provision in question is in the following terms: "3 Declaration by Supreme Court or District Court in relation to premises (1) On a senior police officer showing reasonable grounds for suspecting that all or any of the following conditions obtain with respect to any premises, that is to say: (a) that drunkenness or disorderly or indecent conduct or any entertainment of a demoralising character takes place on the premises, or has taken place and is likely to take place again on the premises, or (b) that liquor or a drug is unlawfully sold or supplied on or from the premises or has been so sold or supplied on or from the premises and is likely to be so sold again on or from the premises, or (c) that reputed criminals or associates of reputed criminals are to be found on or resort to the premises or have resorted and are likely to resort again to the premises, or (d) that any of the persons having control of or managing or taking part or assisting in the control or management of the premises: (i) is a reputed criminal or an associate of reputed criminals … the Supreme Court or the District Court may declare such premises to be premises to which this Part applies." 1. It is unnecessary to repeat the other conditions. 2. In these circumstances, the Supreme Court and in some circumstances, the District Court, may declare such premises to be premises to which this part applies. 3. The Court takes into account the provisions of the Act. I should perhaps note, for the purposes of the record, that a "senior police officer" for the purposes of s 3 is defined in s 2 as a police officer of or above the rank of sergeant. 4. Mr Regener, who appears for the plaintiff, relies on the Affidavits of Gary Broadhurst and Andrew Barwick and also an Expert's Certificate of Anthony Macken. Dealing with them in reverse order, Mr Macken is involved, and has been for significant time, in intelligence in relation to the New South Wales Police Force Criminal Group Squad. He is an expert, amongst other things, in the structure and operations of outlaw motor cycle gangs, and relies on his experience in making the statement as to the structure and operations of the Nomads outlaw motor cycle gang, the relevance of which I will come to shortly. 5. The Court is aware, from the many proceedings before the Court that have occurred over the years, to some extent but not to the extent of Mr Macken, of the structure of motor cycle gangs and, indeed, some of their operations. Mr Macken, in the course, of his statement, refers to a number of persons, the relevance of which will become obvious. 6. Senior Constable Barwick, whose Affidavit I have referred to, has been a member of New South Wales Police for the past eleven years and is a member of that part of the police force Raptor, which has dealt with and is dealing with outlaw motor cycle gangs. He is, in many respects a person who is most familiar with some of the situation that is before the court. I do not intend to recite all of that information, but I certainly rely on the Affidavit of Senior Constable Barwick, sworn 26 February 2018. 7. Attached to that Affidavit is a conflict history between the Finks and the Nomads, which is annexure AB2 to the Affidavit, and the truth of which is otherwise the subject of testimony by the aforesaid Senior Constable. 8. I will deal only with the last three or four entries. On 25 January 2018, the Finks president and a number of the Finks outlaw motor cycle gang were involved in an altercation at a tattoo parlour that was the subject of a recent attack by Molotov cocktail. Sometime afterwards, a number of rounds of gunfire were fired into the residence of a family at a residential house. The family is not a member of an outlaw motor cycle gangs, that is either the Finks or the Nomads, but a member of the household used to be in a relationship with a Nomads member, Blake Martin, and her sister is in a relationship with another Nomads member. 9. On 13 February 2018, at least seven rounds were fired into the residence of a Finks outlaw motor cycle gang member. The bullets were fired from a high-powered rifle that travelled through a number of walls, and would have been otherwise still able to fatally wound a person with whom it came in contact. The bullets penetrated into the house through the lounge room and ultimately into a kitchen cabinet. 10. The police have reasonable suspicion, and the basis of that reasonable suspicion has been seen by the Court and is accepted by the Court. They believe that members of the Nomads outlaw motor cycle gang are responsible for that shooting. Police intelligence informs us that about a week-and-a-half ago six members of the Finks outlaw motor cycle gang had a meeting at a licensed venue, during which there was discussion relating to planned shootings that would occur within the two weeks thereafter. Those shootings were to be of members of the Nomads outlaw motor cycle gang. 11. I turn to the Affidavit of Gary Broadhurst. Gary Broadhurst is a Sergeant of Police and therefore is a senior officer pursuant to the terms of the Restricted Premises Act 1943 and he, on the basis of information provided to him and also his own information, attests to a number of matters. 12. He annexed to his Affidavit photographs and criminal histories that are source documents to some of the material and some of the suspicions that Sgt Broadhurst has. 13. Sergeant Broadhurst testifies that he has a suspicion that alcohol is being unlawfully sold or supplied from the premises that are the subject of this Summons: that reputed criminals have resort at the premises and are likely to resort at the premises; and that he is aware that a reputed criminal, in fact more than one, is responsible for the management and control of the premises and an associate of other reputed criminals that take part in the control and management of the premises. 14. Further, the sergeant testifies that he suspects that reputed criminals have attended and are likely to attend the premises in question and/or a reputed criminal has or takes part in the control and management of the premises. Those two suspicions are the suspicions to which ss 3(1) and 3(3) of the Restricted Premises Act 1943 refer. 15. I will deal with some of the matters. The first matter to which I refer is referred to in paragraph 19 of the Affidavit of Sgt Broadhurst which refers to the wearing of colours. An Expert Certificate of Mr Macken explains generally the purpose and situation in which the colours are worn. 16. The Affidavit of Sgt Broadhurst further testifies that the premises in question has no current or past liquor licence. The development application is for a covered hall with covered living quarters and his observations, which I accept and with which I agree, are that the premises are being used as the Nomads outlaw motor cycle gang club house for that area. He refers to the Affidavit and information possessed by Mr Barwick and to a conversation with the president of the Nomads club house and its sergeant-at-arms. 17. On 23 February 2018, Strike Force Raptor conducted an inspection of the aforesaid premises under the Gaming and Liquor Administration Act 2007. During that inspection Sgt Broadhurst observed that the premises had been set up exactly the same as it was in 2017 at which time, I hasten to add, material had been seized pursuant to the illegal conduct that was there in question. In the Sergeant's experience he had never seen a club refurbish their premises in such an exact likeness to that which had been in existence before. 18. The club house, of which there are photographs, consisted of at least one industrial fridge, located behind the bar, and various types of bars. There were approximately 150 containers of alcohol. The alcohol was grouped with the labels displayed outwards. I suppose I could take judicial notice of the fact that it looks like the kind of industrial fridge one sees in a pub. It also had a pool table, six bar stools against the bar, twenty middy glasses in the server area, a large fixed stage next to the door with a set of lights and a number of other such lights, a lounge area, a small kitchen with a sink, a disposal into the holding stacks and other equipment. 19. At the first paragraph 34, Sgt Broadhurst testifies to events that occurred on 23 February 2018, during the execution of a search of the premises, when he spoke to the persons whom I had earlier identified, the President of the club, the Hunter Valley club, said the following words to him: "All members have access to the club house. Multiple keys are given to members. There are around 10 keys floating around. Five of us that come from here from time to time. I have not seen any other chaps up here over a long time. December was the last time I saw other members up here." 1. Further, he identifies two of the nine as members of the Hunter Valley Chapter of the Nomads, each of whom has been convicted of serious criminal offences. 2. At the second paragraph 25, Sgt Broadhurst testifies to police observations of other persons who are reputed criminals having attended the premises, and at the second paragraph 31 he refers to the fact that on 12 February 2016 there was a police action relating to a number of Nomads in which two persons, each of whom is a reputed criminal, were seen to be either in attendance at the premises or in attendance nearby to the premises with the obvious intention of attending. 3. Based on the Sergeant's observations during the search, and relying on his knowledge and experience of the conduct of outlaw motor cycle gangs; the presence of lockers containing personal items; and the information and intelligence gathered by police over a considerable period of time, the Sergeant strongly suspects and believes that reputed criminals have resort and will again resort to the premises. 4. It is clear that the shooting in particular renders the matter extremely urgent and of sufficient urgency that the matter should be dealt with ex parte and orders made ex parte. 5. The second aspect is that the suspicion of the sergeant, who is, as I have earlier said, a senior police officer for the purposes of the Restricted Premises Act has a reasonable suspicion that liquor is being unlawfully sold. I hasten to add that the supply of liquor from a premises other than licensed premises may not be a criminal offence but, given the amount and nature of the supply and the set-up of the premises, there is a reasonable suspicion that liquor is being sold, either directly or indirectly. As a consequence of that suspicion I am satisfied that para (b) of subs (1) of s 3 is in fact the situation. 6. I am certainly satisfied of paras (c) and (d)(1), that is that reputed criminals are to be found on or resort to the premises so that the person having control or that persons having control or management of the premises is a reputed criminal or an associate of reputed criminals. 7. I am also satisfied on the evidence provided that drunkenness, disorderly or indecent conduct or entertainment (and I refer in particular to the strippers pole that was found on the premises) has taken place and is likely to take place on the premises and as a consequence I firstly make the order that the matter be dealt with instanter and ex parte and, secondly, make a declaration under s 3(1) and s 3(3) of the Restricted Premises Act 1943 that premises being identified as 177 Bridge Street, Muswellbrook in the State of New South Wales is a premises to which pt 2 of that Act applies and I make the orders in prayers 1 and 2 of the Summons. 8. The orders may be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2018