Bad grammar in Newman Government anti-gang legislation creates loophole for bikies to get out of toughened bail conditions
- 16 hours ago November 12, 2013
Attorney-General Jarrod Bleijie last night said "if our laws need amending, we'll amend them" after the flaw was exposed in a bail hearing for a trio of Hells Angels who skirted the laws after quitting the club as the legislation was being drafted.
The laws apply only to "a person (who) is a participant" of outlaw gangs, not "was", meaning bikies who hand in their club colours can avoid being prosecuted under them.
Justice Margaret Wilson found the laws read on its "plain grammatical meaning", dictated that accused drug traffickers Bruno and Nuno Da Silva and Michael Kenneth Spence were no longer "participants in a criminal organisation".
Despite the trio being members of the Hells Angels - now deemed a criminal organisation by law - for most of the time they were involved in an alleged multi-million dollar drug ring, their resignations from the club meant they did not have to "show cause" to be released.
Tougher bail conditions for criminal gang members are a key plank of the hastily-drafted Vicious Lawless Association Disestablishment act, which has already been back to parliament twice for amendments.
Justice Wilson criticised the wording of the laws, suggesting they were not clear on whether the reverse onus of proof for bail should apply to former bikies even if they had left a club long ago.
"Maybe the problem is if the legislature wanted to capture people (who were past members), they haven't done it very well," she said.
Mr Bleijie said it would be inappropriate to comment on the case but "if our laws need amending, we'll amend them".
"The criminal motorcycle gangs will try anything to try to get around our tough new laws and we will adapt the legislation accordingly," he said.
"We put these laws in place to protect the community."
Justice Wilson criticised the framing of the laws by Parliament, suggesting it was not clear whether the reverse onus of proof for bail should apply to bikies even if they had long ago left a club.
On Friday she ruled the trio had to be "participants in a criminal organisation" at the time of applying for bail to be forced to show why they should be released from custody.
She rejected the argument by prosecutor Todd Fuller QC that the new laws should apply, for example, even to an ex-bikie who had "cut all ties 15 years ago" from an outlaw motorcycle gang.
Mr Fuller argued an ex-bikie should have to prove he had cut ties with a group that "supported and encouraged participation in serious crime" and was no risk to the community.
But defence lawyers for the three former Hells Angels argued the laws spelled out an accused must be a present member of a criminal organisation for the new laws to apply.
Barrister Peter Callaghan, for the Da Silvas, said "By no amount of torturing can the word 'is' arrive at 'was'".
Ironically, Justice Wilson found it was police surveillance that proved the trio's departure from the Hells Angels - now declared a criminal organisation by Parliament - was genuine.
This included evidence of them returning their "colours" to the club interstate and the melting down of gold jewellery with Hells Angels imagery.