SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TB & ANOR
[2023] SASC 45
Judgment of the Honourable Justice Kimber
5 April 2023
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - INTERCEPTION AND PROHIBITION THEREOF
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - WARRANTS AND AUTHORISATIONS
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES
The defendants are alleged to have committed various offences. Part of the evidence the prosecution seeks to adduce in the trial are communications sent using an encrypted communication application called ANOM. The defendants seek an order that evidence not be admitted. The defendants contend the evidence was obtained in breach of the Telecommunications (Interception and Access) Act1979 (Cth) (TIAA). No warrants pursuant to the TIAA were obtained. The defendants contend the communications were recorded (i.e. – copied) while passing over the telecommunication system.
The ANOM application was an application (i.e. – software) installed by users on mobile phones which used the Android Operating System. The mobile phones which enabled the ANOM application to be installed by users were distributed during controlled operations pursuant to Part IAB of the Crimes Act1914 (Cth). The ANOM application was programmed to function in the following way. When user A prepared a message in the application and pressed the send button with the intention of sending the message to user B, A’s message would be sent to B using the telecommunications system. However, when A pressed the send button and before A’s message left the application, a separate copy message was created within the application. The copy message was a copy of A’s message to B but with additional data added. The creation and existence of the copy message was unknown to A and B. The copy message having been created, that copy was sent using the telecommunications system to a server in New South Wales (NSW). The AFP then obtained the copy messages from that server. It is the copy messages that the prosecution seeks to adduce.
Whether the ANOM application, including, but not limited to, the processes by which that application created the copy message and caused that message to be sent to the server in NSW was an intercept in breach of s 7(1) of the TIAA.
Held, dismissing the application:
1.The way the ANOM application functioned did not amount to an interception in breach of s 7(1) of the TIAA. The prohibition in s 7(1) of the TIAA is upon recording (i.e. – copying) a communication in its passage over the telecommunications system. That prohibition was not breached. While the ANOM application caused A’s message to B to be copied, A’s message was copied in the application and before that message commenced its passage over the telecommunications system. There was also no breach of s 7(1) of the TIAA by anything which occurred after the copy message arrived at the server in NSW. Once the copy message arrived there, it was no longer passing over the…
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- R v TB [2023] SASC 45
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- [2023] SASC 45
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CaseChat Overview and Summary
The primary legal issue the court had to address was whether the interceptions of communications amounted to breaches of the Telecommunications (Interception and Access) Act 1979 (TIAA). Specifically, the court needed to determine whether the distribution of the ANOM-enabled phones to individuals constituted an interception under the TIAA and whether the authorisation for the major controlled operation (MCO) was lawful. The defendants argued that the installation of the ANOM application on the phones and the subsequent interception of communications without their knowledge or consent constituted unlawful interceptions.
The court found that none of the four alleged interceptions involved a breach of the TIAA. The reasoning hinged on the interpretation of the term "interception" within the context of the TIAA and the specific circumstances of the operation. The court held that the ANOM application did not constitute an interception as it was not designed to secretly record or access communications, but rather to facilitate encrypted communication between users. The court also found that the authorisation for the MCO was lawful, as it was granted by the appropriate authority under the Criminal Code Act 1995 (CA). Consequently, the application for the exclusion of the evidence was dismissed.
The court's decision concluded that the evidence obtained from the ANOM application did not result from an unlawful interception under the TIAA and was therefore admissible. The defendants' argument that the distribution of the ANOM-enabled phones constituted an unlawful interception was rejected. The court held that the operation was conducted within the legal framework provided by the TIAA and the CA, and that the authorisation for the MCO was valid. As a result, the application for the exclusion of the evidence was dismissed, and the evidence obtained from the ANOM application was deemed admissible in the proceedings against the defendants.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As the ANOM application was being further developed toward the goal of covertly sending communication content to a party in addition to the person(s) to whom the user thought the communication was being sent, steps were taken to enable devices to be distributed once the ANOM application was developed to a point where it could be deployed. In order to permit the ANOM enabled devices to be distributed to potential users when the expectation was the devices distributed would be used by people engaged in criminal activity, the AFP sought and obtained an authorisation for a major controlled operation (MCO) within the meaning of s 15GD of the CA. The first MCO was authorised by Deputy Commissioner Gaughan of the AFP on 25 October 2018. The second MCO was authorised by Deputy Commissioner McCartney of the AFP on 25 October 2020. The operation was named Operation Ironside. The legality of the two MCO’s and other issues relating to those MCO’s are the subject of other interlocutory applications. The phones provisioned and distributed were mobile phones which ran on the Android Operation System (AOS). Disabled from those phones were the usual features of a mobile phone such as the ability to make standard telephone calls, send standard messages and access the internet via standard applications. The phones were readied for the installation of the ANOM application by the end user by installing Mobile Data Management (MDM) software (FieldX or MobileIron). That software enabled the ANOM application to be administered and managed as selected by the administrator. It also included the capacity to delete the data on the phone by an external administrator. Provisioned phones were distributed in Australia from about 16 October 2018. CIN 325 has deposed that he/she organised for the distribution of Android mobile devices to be provided to named people identified by CHS between January and May 2021. CIN 325 has deposed to having distributed 921 provisioned mobile devices to 21 named persons and/or entities in different States in Australia.[14] [14] See Affidavit of CIN 325 dated 23 September 2022, [27]-[131]. The development of the ANOM application enabled the AFP to receive data from ANOM. That data included a record of text messages, photos and voice memos sent between users, as well as additional data retrieved from the ANOM‑provisioned phone such as username, a unique message ID, the International Mobile Equipment Identity (IMEI) attached to the telecommunications device, the Mobile Country Code (if the device was using a SIM card), location data (from about April 2020),[15] audio pitch adjustment, and quoted or forwarded messages, all of which was transmitted over a telecommunications system to the user(s) selected by the sender of the message. The IMEI is a unique 15-digit number assigned to phones when they are manufactured.[16][15] Affidavit of Matthew Lindsay Smith dated 22 July 2021, [69(d)]. [16] Ibid, p 43. The operation of the ANOM application may be described in the following way. An ANOM user (A) would prepare a message for another ANOM user(s) (B). The message A intended to send to B would be sent, but after A had typed a message (or attached a photo or voice memo) and pressed the ‘send’ button intending to send the message to B, the data in A’s message was copied (i.e. – recorded) to create a separate message before the message to B was encrypted and sent. That is, as a result of pressing the send button, the message created by A, as well as the additional data including A and B’s usernames, location data and so on, was re-packaged (as packets of information) and, as with A’s message to B, transmitted as a separate message over a telecommunication system via an Extensible Messaging and Presence Protocol (XMPP) server. An XMPP server is a server functioning as an instant messaging protocol. XMPP is an ‘open source’[17] instant messaging protocol. The XMPP server used the same Transport Layer Security (TLS) channel that was used to send the message A intended to send to B. As A intended, the message created by A would be sent to B. However, without the knowledge of A or B, a separate message (a copy of A’s message to B with some additional data) would be sent to the servers in NSW which were able to be accessed by the AFP. [17] ‘Source code’ is software code available to all developers – Professor Seneviratne T698.