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 61
Criminal: 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…

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 3)

Details

AGLC: R v TB (No 3) [2023] SASC 61
Case: [2023] SASC 61
Decision Date

CaseChat Overview and Summary

In the matter of R v TB (No 3), the defendants challenged the admissibility of communications obtained through the covert operation targeting the ANOM encrypted communication network. The court was tasked with determining whether the recording of the communications was fair and if there was an obligation to caution the defendants under the circumstances. The defendants argued that the recordings were obtained unfairly and that they were entitled to be cautioned, akin to being in custody, during the recording of their communications.

The legal issues before the court involved the fairness of the recording process, the obligation to caution, and the application of relevant case law. The court considered whether the covert operation and the subsequent recording of the communications breached any legal standards and whether the defendants' rights were violated. The court had to balance the interests of law enforcement in combating organised crime with the defendants' rights to privacy and fair treatment under the law.

The court found that the recording of the communications was not unfair, as there was no direct interaction or eliciting behaviour by the police or their agents. The court held that there was no obligation to caution the defendants since the police were not participants in any communication. The court relied on the established legal principles that there is no requirement to caution individuals during the covert recording of communications unless there is a direct engagement with law enforcement. The court concluded that on the grounds presented by the defendants, there was no basis to exclude the communications.

The interlocutory application referred to as Chapter 16 was dismissed, and the recordings were deemed admissible in the trial. The court's decision upheld the validity of the evidence obtained through the covert operation, emphasising the importance of balancing law enforcement's need to combat serious crime with the protection of individual rights.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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