R v TB (No 2) - [2023] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v TB & ANOR (No 2)
[2023] SASC 60
Judgment of the Honourable Justice Kimber
27 April 2023
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
The defendants are alleged to have committed various offences. Part of the evidence the prosecution seeks to adduce in the trial are communications using an encrypted communication application called ANOM (the ANOM application). In the interlocutory application the subject of this judgment, the defendants seek an order that the prosecution be permanently stayed. In the alternative, the defendants seek an order that evidence of the communications not be admitted. The grounds are that the ANOM was in breach of the Telecommunications Act 1997 (Cth) and that the administration of justice will be brought into disrepute if the communications are admitted into evidence.
Whether the ANOM application was in breach of the Telecommunications Act 1997 (Cth). Whether the administration of justice will be brought into disrepute if the ANOM communications are admitted into evidence.
Held, dismissing the application:
1. The ANOM application did not breach the Telecommunications Act 1997 (Cth).
2. The interlocutory application for a stay is refused.
3.On the grounds dealt with in this interlocutory application, the application to exclude the communications is refused.

Telecommunications Act 1997 (Cth) ss 5, 15, 16, 87, 97; Telecommunications (Interception and Access) Act 1979 (Cth) s 5G, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23; Rogers v The Queen (1994) 181 CLR 251, applied.
Strikland v Commonwealth Director of Public Prosecutions and Ors (2018) 266 CLR 325, distinguished.
Ridgeway v The Queen (1995) 184 CLR 19; Walton v Gardiner (1993) 177 CLR 378, discussed.
The Queen v Swaffield (1998) 192 CLR 159; Rona v The District Court of South Australia 63 SASR 223; Grassby v The Queen 168 CLR 1; Williams v Spautz (1992) 174 CLR 509; R v Littler (2001) 120 A Crim R 512, considered.

R v TB & ANOR (No 2)
[2023] SASC 60
Criminal: Application - Chapter 15
KIMBER J:

TB and CD (the defendants) are charged with participating in a criminal organisation and offences involving firearms. This is one of several interlocutory applications pursuant to r 39.1(d) of the Joint Criminal Rules 2022 (SA) (the Rules). This application has been referred to as Chapter 15.
Chapter 15 seeks the following orders:
1.That the prosecution be permanently stayed as an abuse of process; and
2.In the alternative, the evidence of communications said to be obtained from the ANOM platform be excluded from evidence.
The above orders are sought on the following grounds:
1.The ANOM platform was in breach of the Telecommunications Act 1997 (Cth) (the TA);
2.The prosecution has failed to make full and proper disclosure; and
3.The administration of justice will be brought into disrepute if the communications on the ANOM platform…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TB (No 2)

Details

AGLC: R v TB (No 2) [2023] SASC 60
Case: [2023] SASC 60
Decision Date

CaseChat Overview and Summary

The case of R v TB (No 2) involves defendants who were charged with various offences stemming from their communications via an encrypted messaging application known as ANOM. The defendants sought to exclude evidence obtained from the ANOM application on the grounds that its collection constituted an abuse of process and brought the administration of justice into disrepute. The legal issues before the court included whether the Australian Federal Police (AFP) conduct in obtaining the evidence was improper, and if so, whether the evidence should be excluded or the prosecution stayed. The court was also required to consider whether the collection of the evidence breached any legal provisions, specifically the Telecommunications Act.

The court found that the conduct of the AFP was not improper, despite involving deception, because there was a genuine belief that the ANOM application was being used for criminal purposes. The court held that the AFP's actions were justified by the significant potential for criminal activity facilitated by encrypted communication platforms. The court further found that the collection of the evidence did not breach the Telecommunications Act, as the defendants had not demonstrated a fundamental defect in the investigation. The reasoning of the court emphasised that the investigation of crime is not governed by a code of fair play, and that deception by investigators does not automatically render their conduct improper. The court concluded that there were no proper grounds for refusing to exercise jurisdiction by granting a permanent stay or excluding the evidence.

In conclusion, the court refused to exclude the evidence of communications obtained through the ANOM application on the grounds that there was no breach of the Telecommunications Act. The court also refused to stay the prosecution as an abuse of process or to exclude the messages obtained from the ANOM application. The ratio of the case establishes that covert investigations involving deception by law enforcement can be justified if the potential for criminal activity is significant and the conduct of the investigation is otherwise lawful and reasonable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As may be obvious from the above summary, there are many features of Strickland which make it appropriate to be distinguished from this case. For present purposes, it is only necessary to identify one. As set out above, Strickland involved illegality. Having found the ANOM application did not breach the TA, this ruling proceeds on the assumption the ANOM application did not involve any illegality and is subject to what may be found with respect to any illegality alleged by the defendants in other Chapters. The remainder of this ruling addresses the defendants’ contention that the conduct of the AFP was improper and, on that basis, a stay should be granted or the evidence of the communications excluded. Ridgeway – exclusion of evidence of lawful but improper conduct In the absence of illegality, the approach of the plurality in Ridgeway to the circumstances in which evidence may be excluded when the conduct of investigators was lawful but improper assumes importance. For the purposes of this ruling, it may be accepted the conduct of the AFP with respect to the ANOM application was ‘deceptive’. Devices were distributed without disclosing that communications sent by users would be accessed by the AFP. Nonetheless, deception by investigators does not, without more, mean that conduct has been improper. The ‘investigation of crime is not a game governed by a sportsman’s code of fair play’.[26] [26] The Queen v Swaffield (1998) 192 CLR 159, [35] (Brennan J). As was stated by the plurality in Ridgeway, the mere existence of subterfuge or deceit by police will ordinarily not be improper notwithstanding that subterfuge or deceit may be conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity.[27] As the plurality observed, relevant will be the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention of criminal activity and any imminent danger to the community. Evaluation of the considerations outlined in Ridgeway does not support a finding of improper conduct by the AFP in this case. [27] Ridgeway, 37. In this case, the AFP had reason to believe the extent of the potential criminal activity facilitated by encrypted communication platforms was considerable. I am satisfied that during an operation immediately before Operation Ironside (Operation Safecracking) it was learned that about 80 per cent of the SIM cards using another platform for encrypted communications (Phantom Secure) used globally were used in Australia or being used by Australians overseas.[28] I accept that encrypted platforms such as ANOM are specifically designed for the ‘criminal environment… specifically the drug and money laundering environment’.[29] There is no reason to doubt the AFP genuinely held the view that no users of ANOM would be using the platform for other than criminal purposes.[30] The ANOM provisioned phones had limited functionality and came at a cost of about $2000‑$3000 every six months.[31] As a matter of common sense, the cost and limited functionality made such a phone unlikely to be sought after by persons who did not intend to use it for criminal conduct. [28] DS Mansfield, T499. [29] DS Mansfield, T505. [30] DS Mansfield, T574. [31] DS Mansfield, T576.

Decision

Reasons for decision

For the above reasons, on the matters advanced in this application, I am not satisfied that there was a fundamental defect, or any defect for that matter, in the conduct of the investigation that would deprive the accused of a fair trial and bring the administration of justice into disrepute. Therefore, in this application, there are no proper grounds disclosed on which this Court can refuse to exercise its jurisdiction by the grant of a permanent stay. Conclusion With respect to Chapter 15:1.I refuse to exclude the evidence of communications on the ANOM application on the ground there was a breach of the TA; 2.On the assumption the evidence of the communications on the ANOM application were obtained lawfully, I refuse: to stay the prosecution as an abuse of process or to exclude messages obtained as a result of the ANOM application.

Ratio Decidendi

Legal Principle Established

The charges faced by the defendants resulted from what is known as Operation Ironside. Operation Ironside was a covert Australian Federal Police (AFP) investigation in which communications exchanged via an encrypted messaging application known as ANOM, were monitored and collected by law enforcement agencies. During 2018, the AFP became aware that a confidential human source (CHS) had created the ANOM application which was in an advanced stage of development. The CHS subsequently modified the ANOM application to cause a copy of each message sent via the platform, also to be sent to a user known as ‘bot’. The AFP was able to access the copy messages sent to ‘bot’; this process not being apparent to users of the platform. The ANOM application was installed on mobile telephones, disguised as a functioning calculator. ANOM devices (mobile phones on which the ANOM application was installed) were configured to allow users to send and receive encrypted communications via the platform in the form of text messages, images, short videos and voice recordings. Many of the features typically found on a mobile telephone, such as internet browsing, were often disabled on the ANOM devices. Individuals known to have been previously involved in the distribution of similar dedicated encrypted communications devices to persons engaged in criminal activity had expressed an interest in promoting and selling ANOM devices. The CHS provided ANOM devices to these individuals. Later, the AFP also provided ANOM devices to these individuals. Operation Ironside was novel in the sense that the ability to view the content of communications exchanged via dedicated encrypted communications platforms had previously eluded Australian law enforcement agencies Abuse of process - principles The relevant principles are not in dispute. A superior court possesses the power to control and supervise proceedings brought in its jurisdiction. That power extends to permanently staying criminal proceedings in order to protect its own processes from abuse.[1] The power is discretionary.[2] It is for the defendants to satisfy the Court of both the existence of facts which have the capacity to enliven the discretion to order a stay and that, in all the circumstances, a stay is the only remedy available in order to prevent abuse of process.[3] The onus has been described as ‘a heavy one’.[4] [1] Jago v District Court (NSW) (1989) 168 CLR 23 (Jago), 25; Williams v Spautz (1992) 174 CLR 509 (Spautz), 518; Rona v District Court of South Australia 63 SASR 223, 226; Grassby v The Queen 168 CLR 1, 16. [2] Jago, 31. [3] Spautz, 529. [4] Ibid. In R v Littler (2001) 120 A Crim R 512, 513 Hodgson JA considered that in discharging the onus, the applicant should ordinarily give evidence on oath by way of affidavit. A permanent stay is a remedy of last resort, only to be granted in the most rare or exceptional circumstances.[5] Underlying this is the principle that the granting of a stay amounts to a refusal to exercise jurisdiction, such that a Court which grants a stay without sufficient reason abuses itself by declining to exercise its constitutional function of determining disputes.[6] [5] Jago, 31 and 34 (Mason CJ), 60 (Deane J), and 76 (Gaudron J); Spautz, 529 (Mason CJ, Dawson, Toohey and McHugh JJ). [6] DPP v Shirvanian (1998) 44 NSWLR 129, 134.