R v TB (No 3)
[2023] SASC 61
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TB & ANOR (No 3)
[2023] SASC 61
Judgment of the Honourable Justice Kimber
27 April 2023
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION
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 ANOM application). The defendants seek an order that evidence not be admitted.
The defendants contend the communications were involuntary; the right to silence was infringed and it would be unfair to admit the evidence.
Held, dismissing the application:
1. Any communications by the defendants were not involuntary.
2. There was no infringement of the right to silence.
3. It is not unfair to admit the evidence of the communications.
Summary Offences Act 1953 (SA) ss 74D, 74E; Surveillance Devices Act 2004 (Cth), referred to.
Pavitt v The Queen (2007) 169 A Crim R 452; The Queen v Swaffield (1998) 192 CLR 159; McDermott v The King (1948) 76 CLR 501, applied.
Lindsay v The King; Rankine v The King; Woods v The King [2022] SASCA 138, distinguished.
Davies v The Queen (2021) 289 A Crim R 156, discussed.R v Herbert [1990] 2 SCR 151, considered.
R v TB & ANOR (No 3)
[2023] SASC 61Criminal: Application – Chapter 16
KIMBER J:
TB and CD (the defendants) are jointly charged with participating in a criminal organisation and offences involving firearms.
Pursuant to r 39.1(d) of the Joint Criminal Rules 2022 (SA) (the Rules) the defendants seek exclusion of certain evidence in the exercise of the unfairness discretion. This application is one of many interlocutory applications seeking the exclusion of evidence that the Director seeks to adduce at trial. This interlocutory application may be referred to as Chapter 16. The relevant evidence is communications involving CD and TB using the ANOM application during an operation conducted by the Australian Federal Police (AFP). That operation was called Operation Ironside. The defendants submit the evidence was the product of a calculated strategy by investigators to cause them to engage in conversations with the intention of recording those communications without CD or TB being cautioned even though there was a reasonable cause to suspect they were committing, or likely to commit, an offence. It is submitted the strategy undermined the defendants’ right to silence.
Assumptions
For the purposes of this application, I will make the following assumptions. First, the defendants believed their communications using the ANOM application were private. This is not in dispute. Second, that at least some communications were recorded after investigators had a reasonable cause to suspect that both TB and CD had committed offences. Although it is not currently clear to me when it might be said that such a reasonable cause to suspect could have existed (as opposed to investigators having communications available to them without having a reasonable cause to suspect who was responsible for those communications), I will make this second assumption as it is in favour of the defendants and the submissions they make in this application. If the existence of a reasonable cause to suspect is important in any other interlocutory application, I will need to be taken to the evidence in more detail and hear further submissions. Third, that the recordings were not obtained in breach of any relevant legislation. This is in dispute. It is appropriate to make this third assumption as there are some interlocutory applications yet to be determined. In other interlocutory applications, the defendants seek exclusion of the evidence on many different grounds. This third assumption does not reflect any concluded view with respect to any other interlocutory application yet to be the subject of a ruling.
Background
The ANOM application
For the factual background of this interlocutory application, I commence by respectfully adopting most of McDonald J’s summary of the prosecution case about the ANOM application in a ruling with respect to a subpoena in this matter:[1]
[1] Ruling of McDonald J dated 29 July 2022, [7]-[16].
… the prosecution case implicating … CD and TB, involves reliance on communications exchanged between the … men over an encrypted communication network known as ‘ANOM’.
It is necessary to say something about the ANOM communications network. On or about 30 August 2018, the Australian Federal Police (‘AFP’) commenced a covert investigation involving the collection of communications exchanged over an encrypted communications network known as ANOM. The ANOM communications network provided an end to end encrypted messaging capability between the users of the network. The AFP began gathering data from the ANOM devices under the authority of a warrant issued to the AFP under the Surveillance Devices Act 2004 (Cth) on 16 October 2018.
ANOM was a subscription based service requiring the purchase of smartphones which were specifically configured to communicate on ANOM. Only handsets that were set up accordingly could participate on that platform. A user could only obtain a handset from a distributor of ANOM devices. The ANOM application was disguised as a functioning calculator. A phone would give the appearance of a standard mobile phone to any user not familiar with the ANOM program. Users could send text messages, photos, short videos and record voice clips similar to other social networking platforms.
The covert investigation centred on exploiting ANOM by inserting devices into criminal networks and working with international law enforcement agencies, including the AFP, to monitor and collect evidence and intelligence on criminal syndicates using the ANOM platform. The AFP investigation was named ‘Operation Ironside’. The platform was used for open discussion, organisation and the conduct of criminal activity. Users of the platform would assign themselves a user name or handle, that would correspond to a user ID linked to a specific mobile device. This user ID was an alphanumeric number that corresponded with an international mobile equipment identity (‘IMEI’) number, a serial number unique to each individual handset. A user could change their handle or user name, but not the user ID linked to the IMEI and therefore it allowed communications to be attributed to particular devices, despite a change in user name or handle. Some users had more than one device over the relevant period.
On 7 June 2021, the ANOM network was shut down by the FBI and the AFP following the resolution of the investigation.
The background and history leading up to the commencement of Operation Ironside is relevant to the resolution of a number of the issues arising in relation to the subpoenas.
Phantom Secure was a dedicated encrypted communications platform that preceded ANOM. Between 2010 and 2018 Phantom Secure became a popular provider of dedicated encryption communication devices to criminal groups. That company and in particular its Chief Executive Officer, Vincent Ramos, became a subject of the FBI operation ‘Safe Cracking’ which targeted the Phantom Secure company and the dedicated encrypted communication platforms that they distributed.
In March 2018 the FBI arrested Ramos. He was subsequently imprisoned which put an end to the distribution of Phantom Secure devices. This created a gap in the market. Following the investigation into Phantom Secure, the FBI recruited a human source whom they assigned a confidential number ending 88667. The source had developed a new secure communications platform known as ANOM. The source offered ANOM to the FBI to use in ongoing and new investigations. The source also agreed to offer to distribute ANOM devices to some of the source’s existing network and distributors of encrypted communication devices, some of whom were located in Australia and had direct links to organised crime.
The FBI invited the AFP to assist in the development of a technical strategy to facilitate access to platform communications given the FBI’s intention to distribute the platform to criminal networks. It would seem that both members of the FBI and the AFP, along with the source, were involved in the high level technical developments required to establish the ANOM platform.
In June 2018, the AFP commenced Operation Ironside to target organised crime operating in Australia through their access to the ANOM platform. The FBI commenced Operation Trojan Shield to pursue their investigation strategies as they related to the platform.
On the prosecution case, the defendants and others known to one or both were users of the ANOM application (sometimes also referred to as ANOM devices or the ANOM platform).
Attendance of SAPOL at Newton
What follows is an outline of aspects of the prosecution case with respect to the offences alleged to have been committed by the defendants. The Mr Wakefield mentioned is a former co-accused.
On 12 January 2020, South Australian police officers attended the home of Mr Wakefield at Newton. Police told Mr Wakefield they had uncovered a clandestine laboratory in New South Wales. On the prosecution case, CD and TB had knowledge of, and involvement in, that laboratory. The police then left. On the prosecution case, that visit by police to the home of Mr Wakefield was the catalyst for communications using the ANOM application between Mr Wakefield, TB and CD, who realised the precautions they had taken to hide their criminal activities from law enforcement had failed. On the prosecution case, those three men also considered that the police might return to search Mr Wakefield’s home. Those concerns were well founded. Later that day police attended Mr Wakefield’s home again, this time to conduct a search. It is that search that gave rise to the discovery of the firearms which are the subject of the offences with which CD and TB are charged. Within a holden utility was a handgun, a shotgun, a sound moderator and a large amount of ammunition. CD and TB are charged with offences relating to each of those items. The holden utility was taken to a police compound to allow police to conduct a more thorough search. When that search was conducted the following day, two hidden compartments were found in the wall separating the cabin from the tray — one behind the driver’s seat and one behind the passenger seat. On the prosecution case, both compartments had been custom built into the utility to allow the driver to transport firearms and drugs for a group known as the Comancheros Motorcycle Club (the Comancheros). Within the hidden compartment behind the driver’s seat, police found further items the subject of charges with respect to both defendants. Located in the hidden compartment were two further handguns, two rifles and a revolver.
On the prosecution case, Mr Wakefield had been storing the utility and the firearms contained therein at his home at the behest of CD and TB and for the Comancheros. On the prosecution case, both CD and TB were members of the Comancheros. On the prosecution case, the defendants were aware of the firearms concealed in the hidden compartment, but Mr Wakefield was not.
Mr Wakefield was arrested on 12 January 2020. He was given bail a few days later. Following his release, Mr Wakefield continued to use his ANOM device and police continued recording. On the prosecution case, some of those communications were with CD and TB. On the prosecution case, CD and TB were also parties to other communications in which Mr Wakefield was not a participant. CD and TB were arrested in June 2021.
The period over which ANOM communications took place
The Director is yet to identify with precision the communications he will seek to lead in evidence. That is not a criticism. That identification is not needed to resolve this interlocutory application. The issue is whether the communications should be excluded on the grounds advanced by the defendants. It is sufficient to make the assumptions referred to earlier, to observe that there are communications in which CD and TB are said to be participants commencing on 6 January 2020 and that such communications continued well after the first items were found and Mr Wakefield’s arrest on 12 January 2020. As I understand it, CD’s final communication is said to be on 10 September 2020 and TB’s final communication is said to be on 22 October 2020.[2]
[2] See VD P1.
The defendant’s submissions
The submissions of the defendants supporting their application for the communications to be excluded in the exercise of the unfairness discretion drew heavily on the approach of Kourakis CJ (Doyle and David JJA agreeing) in Lindsay v The King; Rankine v The King; Woods v The King (Rankine)[3] and the judgments referred to therein.
[3] [2022] SASCA 138 (Rankine).
It is instructive to recall the facts of that case and some observations made by the Chief Justice. Mr Rankine was charged with offences arising out of an aggravated robbery at a hotel on 9 October 2019. On the prosecution case, he was one of the three offenders. The issue in the trial was identity. Mr Rankine was a man known to police. On 29 October 2019 Mr Rankine was arrested for breach of bail offences. He refused to answer questions and was refused bail. On the same day an application to conduct an undercover operation pursuant to the Criminal Investigation (Covert Operations) Act 2009 (SA) was made. That application was granted. As a result, two undercover police officers were placed in the cells with Mr Rankine. The Court of Appeal held that by the time that occurred, police had a reasonable cause to suspect Mr Rankine had been involved in the robbery on 9 October 2019. Before entering the cells, the two undercover officers were advised by a more senior officer that they could ask questions about alleged robberies, including the robbery of the relevant hotel, but those questions were to be open ended. It was held that the plan of the police was to elicit admissions. Obviously enough, Mr Rankine was not cautioned. The prosecution alleged Mr Rankine made the admissions sought to the undercover officers.
It was held the decision of the trial judge to admit the conversation with the undercover officers was wrong. Chief Justice Kourakis held the conversation was in breach of s 74D of the Summary Offences Act 1953 (SA) (SOA) and it was not open to admit the conversation pursuant to s 74E of that Act. The SOA has no application to the present case, but the reasons given in Rankine as to why the interests of justice did not require the admission of the conversation are important. Those reasons are relied upon by the defendants.
Chief Justice Kourakis made several important observations about how Mr Rankine’s right against self-incrimination had been compromised. It was held that: police had reasonable grounds to suspect Mr Rankine before the conversation; the investigation had reached the accusatory stage; had a caution been administered, the alleged admissions were unlikely to have been made; the alleged admissions were elicited pursuant to a police strategy; and the content and form of the admissions was a direct product of the nature of the questions asked by the undercover officers.[4]
[4] Ibid, [308].
What the police did with respect to Mr Rankine is very different to what was done in this case. In short, in Rankine the police officers spoke to and elicited alleged admissions from Mr Rankine after police had a reasonable cause to suspect him of having participated in the offence charged. Notwithstanding that, Mr Rankine was not cautioned. That provides an immediate and important contrast to this case. In the present case, the police did not elicit any statement from CD or TB. Neither the police nor an agent of the police was a participant in any communication.
Chief Justice Kourakis conducted a detailed review of authorities relevant to the obligation of police to caution when reasonable grounds exist to suspect there has been the commission of an offence by an accused and the consequences of a failure to caution when that is so. In this case, it is not necessary to conduct a similar review. It is sufficient to observe that Kourakis CJ referred with approval to Pavitt v The Queen (Pavitt).[5] Pavitt was also referred to with approval by the Court of Appeal in Davies v The Queen (Davies).[6]
[5] (2007) 169 A Crim R 452 (Pavitt).
[6] (2021) 289 A Crim R 156 (Davies).
In Pavitt, the appellant was convicted following a trial of sexual offences against a child. The New South Wales Court of Appeal held that a covertly recorded telephone conversation between the complainant and the appellant was properly admitted at his trial. That conversation had been recorded at the instigation of police after the complainant made allegations of historic sexual abuse. Police were present during the conversation and handed prompts to the complainant. The Court in Pavitt conducted a comprehensive analysis of Australian and Canadian authorities. Justice of Appeal McColl and Latham J summarised the relevant principles with respect to covertly recorded communications:[7]
[7] Pavitt, 487-488, [70].
In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:
(a)The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffıeld (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.
(b)If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffıeld (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases;
(c)Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffıeld (at [91]).
(d)The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e)The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?
(f)A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]);
(g)Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert;
(h)Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles.
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
Discussion
In my view, this case has none of the features discussed in Pavitt which might lead to the exercise of the discretion to exclude.
The obligation to caution does not arise simply because investigators have a reasonable cause to suspect a person has committed an offence. The obligation arises when that reasonable suspicion exists and the police (or an agent of the police) engage in a communication (usually but not necessarily a conversation) with the defendant about that offence. That second aspect does not exist in this case. Neither the police nor their agent was a participant in any communication.
There was no infringement of the right to silence in this case. That right is not infringed when the communication does not involve the police or their agent. As Brennan J observed in The Queen v Swaffield (Swaffield):[8]
… it would be a mistake to assume that there is some general “right to silence” wider than or different from the privilege that any person enjoys not to answer questions asked of him about an alleged offence by persons in authority, his entitlement to be treated in a lawful and proper manner by persons in authority engaged in investigating an offence and the immunity from the drawing of adverse inferences from the refusal to answer questions about the offence asked by persons in authority.
[8] (1998) 192 CLR 159, 185 [33] (Swaffield).
That the choice to communicate using the ANOM application was one made ignorant of the fact that the communications were being obtained by the AFP does not make what the defendants stated in any communication ‘involuntary’. The relevant principle with respect to voluntariness was stated by Dixon J in McDermott v The King in the following terms:[9]
If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.
[9] (1948) 76 CLR 501, 511.
In my view, none of the features identified by Dixon J which may make a statement involuntary are present in this case.
As no police officer (nor agent) was a participant in any communication, the communications were not ‘elicited’. The term ‘elicited’ refers to what occurs during an interview or interrogation by the police or their agent.[10] In Swaffield, the plurality referred with approval to the following passage from the judgment of Mclaughlin J in R v Herbert, a Canadian case involving an undercover agent:[11]
When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect’s constitutional right to silence: the suspect’s rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.
[10] Swaffield, [86], [101].
[11] [1990] 2 SCR 151, 185 — cited with approval by Toohey, Gaudron and Gummow JJ in Swaffield, [86].
In this case, there was nothing which might be characterised as akin to an interview, an interrogation or eliciting behaviour. As I have said, neither the police nor any agent of the police was a participant in any communication. That being so, there was no obligation to caution TB or CD regardless of what suspicion might have been held.
Conclusion
The recording of the communications was not unfair for the grounds advanced by the defendants in the interlocutory application referred to as Chapter 16. On the grounds advanced in Chapter 16, there is no basis to exclude the communications in the exercise of the discretion.
Orders
The interlocutory application referred to as Chapter 16 is dismissed.
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