R v TB (No 4)

Case [2023] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v TB & ANOR (No 4)

[2023] SASC 76

Judgment of the Honourable Justice Kimber  

19 May 2023

CRIMINAL LAW - PROCEDURE - MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The defendants are alleged to have committed various offences. The defendants have sought an order pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) seeking certification that it is in the interests of justice for the Attorney-General to make a request to the United States of America that documents be produced and a witness be made available to give evidence.

The defendants contend the documents and evidence of the witness are relevant to issues to be advanced in various interlocutory applications and/or at trial as the documents and evidence pertain to aspects of the investigation of the offences and the obtaining of certain evidence during controlled operations pursuant to Part IAB of the Crimes Act 1914 (Cth).

Held, dismissing the application:  

1.It is not in the interests of justice to make an order pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

Crimes Act 1914 (Cth) s 15HA; Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 7, 10, 39A; Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth); Surveillance Devices Act 2004 (Cth) s 34B; Telecommunications (Interception and Access) Act 1979 (Cth), referred to.

BA v Attorney-General (Cth) (2017) 319 FLR 329, applied.

Ragg v Magistrate’s Court of Victoria (2008) 18 VR 300, discussed.

R v TB & ANOR (No 4)
[2023] SASC 76

Criminal: Application-Mutual Assistance

KIMBER J: 

  1. TB and CD (the defendants) are jointly charged with participating in a criminal organisation and firearms offences. The defendants have filed an interlocutory application (the mutual assistance application) seeking an order pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act).  This interlocutory application is one of several that have been filed by the defendants.  The mutual assistance application seeks a certificate in the following terms: 

    1.I certify it would be in the interests of justice for the Attorney-General for the Commonwealth of Australia to make an appropriate request to the United States of American under Part II of the Mutual Assistance in Criminal Matters Act 1987 (Cth) so that arrangements may be made for the following documents to be produced to this Court:

    a.     Documents relevant to and evidencing the engagement between the United States Federal Bureau of Investigations and the Australia Federal Police in respect of the Federal Bureau of Investigation Investigation [sic] know [sic] as ‘Operation Trojan Shield’ and/or the Australian Federal Police investigation known as ‘Operation Ironside’.

    b.    Documents relevant to and evidencing all steps taken in the establishment of the ‘ANOM Platform’ established and managed in the course of Operation Trojan Shield, as referred to in the affidavit of FBI Special Agent Nicholas Cheviron in an affidavit sworn by him on 17 May 2021 out of…

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AGLC
R v TB (No 4) [2023] SASC 76
Case
[2023] SASC 76
Decision Date

CaseChat Overview and Summary

In the case of R v TB (No 4), the primary focus was on the application for a certificate under section 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) for specific documents and evidence related to the FBI operation known as Trojan Shield and the AFP investigation known as Operation Ironside. These operations were conducted to infiltrate an encrypted communication application, ANOM. The application sought material related to the establishment of the ANOM platform, the engagement between the FBI and AFP, and the functionality of the ANOM platform. The defendants argued that this material was crucial for their defence, particularly in relation to the validity of the controlled operation authorities obtained by the AFP.

The court had to determine whether it was in the interests of justice to grant the certificate, considering the mandatory factors in section 39A(3) of the Act. These factors included the likelihood of the USA granting the request, the admissibility and probative value of the evidence, and the balance of public interest considerations. The defendants contended that the AFP had previously acceded to requests under the Act, and given the uniqueness of Operation Ironside, they should be permitted to explore any potential illegality. However, the court found that the defendants had not provided detailed or persuasive submissions regarding the relevance and admissibility of the sought material or the evidence of Federal Agent Cheviron.

The court concluded that while it was a possibility that some of the requested material could be relevant, the generality of the request and the lack of specificity in the submissions made it difficult to assess the admissibility and probative value of the evidence. Additionally, there was evidence that the USA would not execute any mutual assistance request if made. Given these considerations, the court was not satisfied that it was in the interests of justice for the Attorney-General to make the request. Consequently, the application for the certificate was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There is no dispute that I am to have regard to the following material: 1.Affidavit of Domenic Agresta filed on 23 June 2022; 2.Affidavit of Domenic Agresta sworn 8 July 2022; 3.Affidavit of Domenic Agresta sworn 22 December 2022; 4.The evidence of Detective Superintendent Mansfield on the voir dire; 5.The affidavits of Commander Richard Chin; 6.The affidavits of Detective Superintendent Kelly Mansfield within the brief; 7.Exhibits NPR 2, NPR 3, NPR 4, NPR 5 to the affidavit of Nigel Patrick Ryan dated 1 July 2022; 8.The affidavit of Federal Agent Cheviron of the FBI sworn 17 May 2021; 9.Affidavit of Tara Inverarity affirmed 13 February 2023; and 10.The evidence with respect to other interlocutory applications. Further background Before turning to the mandatory considerations in s 39A(3), I will make some observations about the draft certificate and other matters. The certificate refers to the FBI operation known as Trojan Shield and the AFP investigation known as Operation Ironside. On the evidence, Operation Trojan Shield and Operation Ironside followed Operation Safecracking. Operation Safecracking was conducted by the AFP and the FBI with respect to an encrypted communication application called Phantom Secure. Operation Safecracking ended in March 2018 as a result of actions by the AFP and FBI. At least the Chief Executive Officer of Phantom Secure was arrested. Around that time a source (CHS) provided information about a new, dedicated encryption application being readied for the international market. That application was the ANOM application (ANOM). The FBI and the AFP conducted the operations referred to as Trojan Shield and Ironside respectively. CHS has been described as the head of the ANOM business working for the FBI and the AFP.[12] CHS was a source controlled by the FBI but members of the AFP had considerable access to CHS.[13] [12] Mansfield T579. [13] Mansfield T592. During Operation Ironside, the AFP obtained two controlled operation authorities pursuant to Part IAB of the Crimes Act 1914 (Cth). The validity of the two authorities is the subject of a separate interlocutory application. The first authority was granted on 25 September 2018. The second authority was granted on 25 September 2020. Both were the subject of several variations. CHS and Federal Agent Cheviron were named ‘participants’[14] in both controlled operations. Each authority purported to permit CHS and Federal Agent Cheviron to engage in certain controlled conduct. Federal Agent Cheviron has knowledge of the FBI investigation of Phantom Secure, the operation Trojan Shield and of CHS. [14] Crimes Act 1914 (Cth), s 15GK(1)(f). Some observations about the draft certificate At this point, I turn to make some observations about the draft certificate as they are observations which inform the mandatory considerations. With respect, paragraph 1(a) is very broad and imprecise. It refers to any documents ‘relevant to and evidencing the engagement between’ the FBI and the AFP with respect to the matters then set out. With respect, paragraph 1(b) is also very broad and imprecise. It refers to all documents ‘relevant to and evidencing all steps taken in the establishment of the ANOM platform established in the course of Operation Trojan Shield’. On its terms, it captures all relevant steps taken before the ANOM application was distributed and could have been used by the defendants. With respect, paragraph 1(c) is also very broad and imprecise. It refers to all documents ‘relevant to and evidencing the functionality of the ANOM platform’ as referred to in the affidavit of Federal Agent Cheviron sworn 17 May 2021.

Evidence

Evidence Before The Court

I will proceed on the basis that at least some of what is sought is not otherwise available. That approach is logical given what is sought is in the possession of the FBI and/or Federal Agent Cheviron. It is a safe assumption the FBI and/or Federal Agent Cheviron will have a ‘document’, ‘article’ or ‘thing’ which is not in the possession of the AFP or otherwise available. This is not to say that at least some of any such material might not also be in the possession of the AFP and available on request or in response to a subpoena. Having made these observations, with respect, the defendants have not submitted in any detailed or persuasive way what the material is and how it may be relevant to these proceedings. Section 39A(3)(c) – the admissibility of the evidence Given the generality of what is sought, I am unable to conclude whether the material sought, or the evidence of Federal Agent Cheviron, might be admitted. The documents sought have not been described in terms which suggest they may be admissible and nor has what Federal Agent Cheviron might say in evidence been the subject of any precise and persuasive submission. For example, it is not obvious to me that Federal Agent Cheviron may have a document to which any witness who is to give evidence might have had regard or which might be a basis for cross‑examination or which might provide the defendants with a legitimate line of enquiry. As set out above, my review of Federal Agent Cheviron’s affidavit,[21] does not permit of any certain conclusion that anything he may be able to say might be admissible. [21] MFI VD D7. An aspect of the submissions of the defendants was that Federal Agent Cheviron may know whether CHS followed directions. As I understand it, that submission is made given s 15HA(2)(e) of the Crimes Act 1914 (Cth) which provides that a civilian participant in a controlled operation is exempt from criminal liability for conduct amounting to an offence only if he/she acted in accordance with the instructions of a law enforcement officer. Section 15HA(2)(e) might only have relevance if CHS failed to follow directions. The defendants have not directed my attention to any material, nor made any persuasive submission, about why I might conclude CHS failed to follow a direction. That CHS might not have followed a direction is just speculation. Section 39A(3)(d) – the probative value As set out above, with respect, the submissions of the defendants did not rise above generalised assertions about the link between what was sought and the interlocutory applications which have been filed. As an example of the non-specific nature of the submissions, it was said: ‘because [CHS] was an FBI registered informant and because he was a participant in the major controlled operations, the documents are clearly relevant. We say it provides your Honour with good reason why an order should be made’. There was no attempt to link that submission to specific documents which might exist, to the evidence which Federal Agent Cheviron might give, or to detail how such things might have specific relevance to the interlocutory applications or possible issues in any trial.

Decision

Reasons for decision

With respect to s 39A(4), the defendants submitted that the AFP had made requests under the Act which had been acceded to. That is so but must be balanced with the mandatory considerations in s 39A(3). It was also submitted that Operation Ironside was unique and that if there is a risk of illegality, the defendants should be permitted to explore it. It may be accepted Operation Ironside was unique. Whether there has been illegality or improper conduct must be evaluated in the context of the other interlocutory applications to which the defendants referred in submissions. I will not repeat what is set out about the Chapters referred to in submissions. Conclusion The only evidence before me is that the request will not be executed should it be made. While it cannot be said that nothing the subject of the draft certificate could be relevant, that is no more than a possibility. What the document(s) is, or are and what evidence Federal Agent Cheviron might give, has not been identified with any specificity. With respect, the submissions of the defendants involve no more than speculation. Given the generality of what is requested and the evidence before me that any mutual assistance request will not be executed, I am not satisfied it is in the interests of justice for the Attorney‑General to make the request sought. The application for the certificate pursuant to s 39A of the Act is refused.

Ratio Decidendi

Legal Principle Established

As for paragraph [4], it was submitted there was an entitlement to material from which the affidavit had been prepared. Assuming that to be correct, on my reading of paragraph [4], CIN 325 has that material. I am not satisfied CIN 325 has used material not available to him/her, but which is in the possession of the FBI and/or Federal Agent Cheviron and/or CHS, in the preparation of his/her affidavit. As for paragraphs [10]-[11], those paragraphs set out the involvement of CIN 325 in Operation Safecracking. Operation Safecracking involved a different communication application and is no more than background to Operation Ironside. On the material before me, it is not clear how that particular communication application may have relevance to ANOM and its functionality or legality. Further, there is no suggestion of any engagement by CIN 325 with CHS, nor any other relevant person, during Operation Safecracking. The mandatory considerations in s 39A(3) Against the above background, I turn to the mandatory considerations in s 39A(3) of the Act. Sub-section 39A(3)(a) In BA, Bell J held: The mandatory requirement to take this consideration into account indicates the Court should not lightly issue a certificate when it concludes the foreign country is not likely to grant the request.[19] [19] BA, [55]. It is necessary to refer to the affidavit of Ms Inverarity. Ms Inverarity is employed by the Commonwealth Attorney‑General’s Department. She holds the position of the First Assistant Secretary of the International and Security Cooperation Division. The International Crime Cooperation Central Authority (the Central Authority) is located within the International Cooperation Unit which is within Ms Inverarity’s division. The Central Authority has overall responsibility for Australia’s formal government-to-government international crime cooperation relationships. The Central Authority makes and receives all mutual assistance requests under the Act. Mutual assistance is the process countries use to obtain government‑to‑government assistance in criminal investigations and prosecutions. Upon being notified of the application for mutual assistance, the Central Authority requested an indication of the position of the USA in relation to providing mutual assistance in response to the request of the defendants. This indication was sought from the Office of International Affairs within the Criminal Division of the United States Department of Justice (the DOJ) which is the central authority for mutual assistance matters within the United States Government. On 3 February 2023, the Central Authority received a letter from Mr Vaughn Ary, Director, Office of International Affairs, US Department of Justice. That letter includes the following: I write to advise that, there is no indication of adoption, support, and/or endorsement to obtain the Defense Request Materials by the Australian Central Authority or the Director of Public Prosecutions, were the Australian Central Authority to submit a mutual legal assistance request to the United States seeking the Defense Request Materials, the United States Department of Justice, as the Central Authority under the Treaty, would decline to execute such a request pursuant to Article (3), (stating that the “treaty is intended solely for mutual assistance between the Contracting Parties. The provisions of this Treaty shall not give rise to a right on the part of any private person to obtain, supress, or exclude any evidence, or to impede the execution of the request.”)The United States Department of Justice can and does decline to act on requests that fail to meet treaty standards.