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 are admitted into evidence.
In addition to the grounds immediately above, the defendants reserve their position should any illegality be found consequent to any of the other interlocutory applications pursuant to r 39.1(d).
This ruling deals with Grounds 1 and 3 above. A separate interlocutory application (Chapter 13) also seeks a stay on the ground of lack of disclosure by the prosecution. Chapter 13 is yet to be the subject of submissions. Ground 2 of Chapter 15 should be dealt with at the same time as Chapter 13.
Relevant factual background
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.
The categories of circumstances which may amount to an abuse of process justifying a permanent stay of proceedings are not capable of strict definition, nor are they closed. Mason CJ observed in Rogers v The Queen[7] (Rogers) that ‘the circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories’.[8] That is not to suggest that the concept is at large. Mason CJ went on to identify two aspects of an abuse of process:[9]
… first, the aspect of vexation, oppression and unfairness to the other party to the litigation and secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
[7] (1994) 181 CLR 251.
[8] Ibid, 255.
[9] Ibid, 256.
In relation to the first aspect, where the basis for an application for a permanent stay of proceedings on abuse of process grounds is said to be the inability of a defendant to receive a fair trial, the Court must be satisfied that there will be an unfair trial unless the prosecution is stayed. It must be demonstrated that there exists both ‘a fundamental defect which goes to the root of the trial’,[10] and that there are no available means of remedying the defect, such as procedural orders or directions, in order to bring about a fair trial.[11]
[10] Jago, 34.
[11] Spautz, 529.
In Jago v District Court (NSW) (Jago), in the course of confirming the refusal of an application for a stay on the ground of undue delay amounting to an abuse of process, Gaudron J observed that there is no power to grant a stay as a consequence of ‘some general, but unspecified, prejudice or damage’[12] termed by her Honour ‘presumptive prejudice’.[13] What is required to enliven the power is that proceeding with a trial would cause ‘actual prejudice… the mere possibility of prejudice is insufficient.’[14]
[12] Jago, 78.
[13] Ibid.
[14] Thompkins v Medical Board of Australia [2018] SASC 72, [33].
Deane J acknowledged in Jago that ‘the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment’.[15] His Honour considered that the factors most relevant to determining whether the continuation of a prosecution in circumstances of undue delay, would amount to an abuse of process were: the length of the delay; the reasons for the delay; the accused’s responsibility for and past attitude to the delay; the proven or likely prejudice to the defendant; and, the public interest in the disposition of charges of serious offences and the conviction of those guilty of crime.[16] Although formulated in the context of undue delay, these factors are capable of broader application to circumstances said to amount to an abuse of process.
[15] Ibid, 57.
[16] Ibid, 60-61.
In relation to the second aspect of abuse of process identified in Rogers, Kiefel CJ, Bell and Nettle JJ observed in Strickland v Commonwealth Director of Public Prosecutions and Ors (Strickland) that:[17]
There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
[17] Strickland v Commonwealth Director of Public Prosecutions and Ors (2018) 266 CLR 325, 370 (Strickland).
Where the discretion to order a stay is enlivened, a determination must be made as to what the interests of justice require. The plurality in Walton v Gardiner described the weighing process which must be undertaken as involving:[18]
… a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[18] Walton v Gardiner (1993) 177 CLR 378, 396.
Consistent with the circumstances in which an abuse of process may arise not being limited to fixed categories, there does not need to be unlawful conduct before the discretion to exclude evidence may be exercised. In Ridgeway, the plurality stated: [19]
Strictly speaking, it is unnecessary for the purposes of the present case to determine whether the discretion to exclude evidence extends to circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on the part of the authorities. It does, however. seem desirable that we indicate that we are of the view that it does.
… circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed provide possible examples. As the Supreme Court of Canada pointed out in R v Mack, ‘there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions’. The rationale of the discretion requires that it extend to cases where those ‘inherent limits’ are exceeded.
…. in R v Ireland, Barwick CJ made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by “unfair” as well as “unlawful” conduct on the part of law enforcement officers. In their judgment in Bunning v Cross, Stephen and Aickin JJ did not qualify their acceptance of Barwick CJ's judgment in Ireland by confining the discretion to a case of unlawful conduct …. In subsequent cases, the words “improper” and “impropriety” have been generally preferred to the words “unfair” and “unfairness” and it has been accepted as established that the Bunning v Cross discretion extends to cases of either unlawful or improper conduct on the part of the authorities.
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, 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 and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.
(Footnotes omitted)
Alleged illegality – breaches of Telecommunications Act 1997 (Cth)
[19] Ridgeway v The Queen (1995) 184 CLR 19, 36-37 (Ridgeway).
The illegality alleged by the defendants with respect to the TA is said to involve two aspects: First, the ANOM platform came within the definition of a ‘carrier’ for the purpose of the TA where no attempt was made to obtain a licence pursuant to the TA. Second, the ANOM platform came within the definition of a ‘service provider’ for the purposes of the TA, but no attempt was made to abide by the rules governing service providers in the Act and the ANOM platform failed to fill many of the obligations imposed on carriers and service providers pursuant to the TA including the mandatory requirement to protect the confidentiality of communications.
Obviously enough, essential to the submissions of the defendants is the ANOM platform being a ‘carrier’ and/or a ‘service provider’.
The legislative scheme
Section 5 of the TA provides a simplified outline of that Act. Section 5 provides:
·This Act sets up a system for regulating telecommunications.
·The main entities regulated by this Act are carriers and service providers.
·A carrier is the holder of a carrier licence granted under this Act.
·The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless responsibility for the unit is transferred from the owner to a carrier.
·There are 4 types of network unit:
(a)     a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;
(b)     multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;
(c)     a designated radiocommunications facility;
(d)     a facility specified in a Ministerial determination.
·Carrier licences are subject to conditions.
·There are 2 types of service provider:
(a)     a carriage service provider;
(b)     a content service provider.
·A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.
·A content service provider is a person who supplies, or proposes to supply, certain content services.
·Service providers must comply with the service provider rules.
…
·Carriers and carriage service providers must protect the confidentiality of communications.
Given the above, to be obliged to hold a carrier licence, the ANOM application must be a network unit. Section 7 of the TA provides that: ‘carriage service’ means a service for carrying communications by means of guided and/or unguided electromagnetic energy’; ‘carriage service provider’ has the meaning given by s 87; ‘content service’ has the meaning given by s 15; ‘content service provider’ has the meaning in s 97; and ‘listed carriage service’ has the meaning in s 16.
Section 15 provides:
(1)     For the purposes of this Act, a content service is:
(a)     a broadcasting service; or
(b)     an on-line information service (for example, a dial-up information service); or
(c)     an on-line entertainment service (for example, a video-on-demand service or an interactive computer game service); or
(d)     any other on-line service (for example, an education service provided by a State or Territory government); or
(e)     a service of a kind specified in a determination made by the Minister for the purposes of this paragraph.
(2)The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(e).
Section 16 provides:
(1)For the purposes of this Act, the following carriage services are listed carriage services:
(a)     a carriage service between a point in Australia and one or more other points in Australia;
(b)     a carriage service between a point and one or more other points, where the first-mentioned point is in Australia and at least one of the other points is outside Australia;
(c)     a carriage service between a point and one or more other points, where the first-mentioned point is outside Australia and at least one of the other points is in Australia.
(2)For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.
(3)     For the purposes of this section, a point that is:
(a)     in the atmosphere; and
(b)     in or below the stratosphere; and
(c)     above Australia;
is taken to be a point in Australia.
(4)     For the purposes of this section, a point that is:
(a)     on a satellite; and
(b)     above the stratosphere;
is taken to be a point outside Australia.

As I understand the submissions of the defendants with respect to ‘carriage service provider’, it is only sub-ss 87(1) and (2) which may be relevant. Sub‑sections 87(1) and 87(2) provide:
Basic definition
(1)For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using:
(a)     a network unit owned by one or more carriers; or
(b)     a network unit in relation to which a nominated carrier declaration is in force;
the person is a carriage service provider.
International carriage service providers
(2)For the purposes of this Act, if:
(a)     a person supplies, or proposes to supply, a listed carriage service to the public using:
(i)a line link connecting a place in Australia and a place outside Australia; or
(ii)a satellite-based facility; and
(b)     the carriage service is mentioned in paragraph 16(1)(b) or (c);
the person is a carriage service provider.
With respect to ‘content service provider’, s 97 provides:
(1)For the purposes of this Act, if a person uses, or proposes to use, a listed carriage service to supply a content service to the public, the person is a content service provider.
(2)For the purposes of subsection (1), a content service is supplied to the public if, and only if, at least one end-user of the content service is outside the immediate circle of the supplier of the content service.
The ANOM application was not obliged to hold a carrier licence
The ANOM application was a dedicated encrypted communication application installed on a mobile phone. It was not one of the first three types of network units outlined in s 5 of the TA. It was not submitted that it was a facility specified in any ministerial determination. As ANOM was not a ‘network unit’ it was not obliged to hold a carrier licence. The submission of the defendants that there was a breach of the TA because a carrier licence was not obtained must be rejected.
The ANOM application was not a ‘content service provider’
The ANOM application did not provide a content service within the meaning of s 15(1)(a)-(d) inclusive of the TA. It was not submitted the Minister had made any relevant determination pursuant to s 15(1)(e). It follows that the ANOM platform was not a ‘service provider’ on the basis that it was a ‘content service provider’.
The ANOM application was not a ‘carriage service provider’
Both ss 87(1) and (2) provide that to be a carriage service provider, a ‘listed carriage service’ must be supplied or proposed to be supplied by a person. The evidence does not establish the ANOM application was a ‘carriage service’.[20] The evidence with respect to how the application functioned is set out in my judgment with respect to the interlocutory application referred to as Chapter 1.[21] I will not repeat that evidence.
[20] Telecommunications Act 1997 (Cth) s 16 (TA).
[21] R v TB and ANOR [2023] SASC 45.
In short, the ANOM application was a communications application (i.e. – software) installed on a mobile phone. The application was programmed to give messages created in that application (including a copy made in the application to which additional data was added) as packets of data to the Android Operating System (AOS) on the phone. The AOS then passed those packets of data on so that they could be carried over the telecommunications system to the ‘intended recipients’ as defined in s 5G of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIAA). For the same reasons, the ANOM application was not a ‘listed carriage service’.[22]
[22] Ibid, s 87.
The submission of the defendants that the TA was breached on the grounds the ANOM application was a ‘service provider’ or ‘carriage service’ must be rejected.
I decline to exclude the evidence of communications on the ANOM application on the ground that there was a breach of the TA.
Improper conduct by the Australian Federal Police (AFP) – the stay application
This ruling is limited to whether the AFP engaged in ‘improper conduct’ which did not involve any illegality and, if so, whether a stay should be granted. As set out above, if any illegality is established, the consequence, if any, of that illegality must be dealt with separately.
The defendants submit that to permit the evidence of the ANOM communications to be adduced would bring the administration of justice into disrepute for more than one reason. The defendants submit that Operation Ironside and more particularly the support of, and use by, the AFP of the ANOM application: involved deception by the AFP because users of the platform believed their communications were private; and trespassed on the right to silence and the privilege against self-incrimination. It is also submitted the evidence sought to be admitted was the result of ‘unguarded’ and ‘involuntary’ communications and that if the evidence is admitted, the defendants will be placed at a ‘forensic disadvantage’ giving rise to the risk of an unfair trial.
In their submissions, the defendants placed reliance upon the approach of the High Court in Strickland.
The facts of Strickland were very different to this case. In Strickland, the High Court permanently stayed the prosecutions of four persons who had declined to participate in recorded interviews with the AFP in relation to criminal offending. The four persons were later compulsorily questioned by the Australian Crime Commission (ACC) in breach of numerous provisions of the Australian Crime Commission Act 2002 (Cth) (ACCA). In particular, the examiner had undertaken the examinations in the absence of a special ACC investigation, for the dual purpose of providing the AFP with ‘assistance in knowing what to look for in assembling any briefs for the prosecution from tens of millions of documents’[23] and ‘lock[ing] each of the appellants into a version of events on oath in an attempt to prevent them from providing an alternative version at any trial’.[24] Further, the examiner had permitted AFP personnel to secretly view the examinations without informing the examinees of their presence and permitted widespread dissemination of the transcript of the examinations without regard to its impact on the fairness of any trial of the appellants. It was held that to condone such an unlawful infraction of statute and the fundamental common law right to silence would bring the administration of justice into disrepute.[25]
[23] Strickland, 410.
[24] Ibid.
[25] Ibid, 369.
Strickland distinguished
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.
As for the difficulties posed by encrypted communications platforms to the effective investigation and prevention of crime, the evidence is that such platforms are regarded as impenetrable to investigators.[32] Further, I also accept that those involved in criminal activity held a high level of confidence that communications on such platforms could not be intercepted by investigators.[33]
[32] DS Mansfield, T537.
[33] DS Mansfield, T497.
It must also be observed that this is not a case in which there is reason to conclude that any person committed an offence he/she might otherwise not have committed but for the provision of the ANOM devices. On the evidence before me, I do not characterise the conduct of the AFP as inducing, manipulating or encouraging any person to commit any offence. I accept the evidence to the effect that those who may have been motivated to use the ANOM application were likely to engage in criminal activity with or without the device.[34] In my view, the appropriate characterisation of what occurred is that the AFP involved itself in providing a means by which persons could communicate in the expectation those persons would be involved in criminal activity and would utilise the platform for that purpose. I do not regard that as inducing, manipulating or encouraging a person to commit an offence.
[34] DC Gaughan T1534.
The AFP was not a participant in any communication. The decision to use the application and any decision to use it to engage in, or communicate about, criminal activity, were decisions made by each user. The users of the application were simply provided with a communication tool which they believed allowed them to communicate without those communications coming to the attention of any investigating authority. There was no relevant inducement or encouragement to communicate about the matters set out in the communications the prosecution seeks to adduce.
As for the contentions the communications were ‘involuntary’ and infringed the right to silence, these issues are dealt with in my ruling with respect to Chapter 16. For the reasons given in that ruling, the communications were not involuntary and the right to silence was not infringed.
Insofar as the defendants contend the admission of the evidence places them at a ‘forensic disadvantage’, the submission was that if the evidence was admitted at trial and it was established the defendants had sent a relevant communication(s) ‘it would lock them into a version of events from which they could not credibly depart at trial’.[35] I cannot see that the defendants are ‘locked in’ to any version. If a communication might be found to be one in which the defendants were involved but its meaning is said by a defendant to be different to that advanced by the prosecution, that may be put at trial. In so far as the defendants’ contention might be suggestive of some unfairness as a result of being limited in their ability to advance a falsehood to explain a communication(s), fairness to those suspected of crime does not extend to the giving of sufficient opportunity to ‘invent plausible falsehoods’.[36]
[35] Written Submissions of the defendants on Chapter 15, [21.17].
[36] The Queen v Swaffield (1998) 192 CLR 159, [35].
For the purposes of this application, it may be assumed the communications have the potential to be strong evidence for the prosecution. That is not a basis to conclude the administration of justice will be brought into disrepute if the evidence is admitted. It is also not a basis to exclude the evidence. If a communication sought to be adduced in evidence might be more prejudicial than probative, that submission may be made.
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.