R v TB (No 4)
[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 76Criminal: Application-Mutual Assistance
KIMBER J:
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 the United States District Court for the Southern District of California Case No: ’21 MJ01948.
c. Documents relevant to and evidencing the functionality of the ANOM Platform as referred to in the affidavit of FBI Special Agent Nicholas Cheviron in an affidavit sworn by him on 17 May 2021 out of the United States District Court for the Southern District of California in Case No: ’21 MJ01948.
2.I certify that 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 a witness, namely Federal Agent Nicholas Cheviron, a Special Agent based at the San Diego Field Office of the Federal Bureau of Investigations of the United States of America, to be made available to give evidence to this Court by way of an audio-visual link in respect of the maters relevant to this Action and that the legal representatives of the Defendants and of the Director of Public Prosecutions be afforded an opportunity to examine and cross-examine Mr Cheviron through a video-link from Australia.
Background
I respectfully adopt aspects of McDonald J’s summary of the prosecution case in a ruling with respect to a subpoena in this matter:
[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.
The legislative scheme
The objects of the Act are set out in s 5:
The objects of this Act are:
(a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and
(c) to facilitate the obtaining by Australia of international assistance in criminal matters.
Where the Act authorises Australia to make a request for international assistance in a criminal matter, it is the Attorney-General or his or her delegate who must make that request.[1] The Act applies in respect of all foreign countries,[2] although regulations may provide that it applies to a foreign country subject to any mutual assistance treaty or multilateral mutual assistance treaty referred to in the regulations.[3] In such circumstances, the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the Treaty in relation to that country.[4] Relevant to the present application, the Mutual Assistance in Criminal Matters (United States of America) Regulations 1999 (Cth) (Regulations) provide that the Act is subject to the Treaty between the Government of Australia and the Government of the United States of America on Mutual Assistance in Criminal Matters signed 30 April 1997.[5] A copy of that Treaty is set out as sch 1 to the Regulations, and an exchange of notes of that same day is set out in sch 2.[6] Two articles of the Treaty are particularly relevant for present purposes.
[1] The Act, s 10(1).
[2] The Act, s 7(1).
[3] The Act, s 7(2).
[4] The Act, s 7(3).
[5] [1999] ATS 19 (entered into force 30 September 1999).
[6] Regulations, reg 3; see exhibit TI-2 to the Inverarity affidavit (VD AG50).
Article 1.3 of the Treaty provides that:
This 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, suppress, or exclude any evidence, or to impede the execution of a request.
Article 7 provides relevantly that:
1.If the Central Authority of the Requested State so requests, the Requesting State shall not use any information or evidence obtained under this Treaty in any investigation, prosecution, or proceeding other than that described in the request without the prior consent of the Requested State.
2.The Central Authority of the Requested State may request that information or evidence furnished under this Treaty be kept confidential or be used only subject to terms and conditions it may specify. In such cases, the Requesting State shall use its best efforts to comply.
The procedure for a request on behalf of a defendant for criminal assistance is found in s 39A which provides:
(1)If a defendant in a proceeding relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that:
(a) evidence should be taken in a foreign country; or
(b) a document or other article in a foreign country should be produced; or
(c) a thing located in a foreign country should be seized; or
(d) arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding;
the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney‑General to make any appropriate request to the foreign country under Part II, III or IV so that:
(e) the evidence may be taken; or
(f) the document or article may be produced; or
(g) the thing may be seized; or
(h) the arrangements may be made.
(1A) For the purposes of subsection (1), the relevant court is:
(a) if the proceeding is being heard in the Federal Court of Australia—that Court; or
(b) otherwise—the Supreme Court of the State or Territory in which the proceeding is being heard.
(2)Before making a decision on the application, the court must give an opportunity to:
(a) all parties to the proceeding; and
(b) the Attorney‑General;
to appear before the court and be heard on the merits of the application.
(3)In deciding whether to issue a certificate, the court must have regard to the following matters:
(a) whether the foreign country is likely to grant such a request made by the Attorney‑General on behalf of the defendant;
(b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;
(c) whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding;
(d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;
(e) whether the defendant would be unfairly prejudiced if the material were not available to the court.
(4)Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant.
(5)If the court issues a certificate:
(a) the court must send a copy of the certificate to the Attorney‑General; and
(b) the Attorney‑General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.
Section 39A was inserted into the Act in 1996 by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth) (Amending Act). The Explanatory Memorandum accompanying the Bill that became the Amending Act explained that the Bill inserted a new provision, namely s 39A, to:[7]
provide, subject to safeguards, that a court may require the Attorney-General to make application for mutual assistance to a foreign country on behalf of a defendant …
[7] Explanatory Memorandum, p 1.
In BA v Attorney‑General (Cth) (BA),[8] Bell J held that the purpose of the Act is to permit requests for assistance to be made on behalf of defendants to ‘assist in ensuring the fair hearing and determination of trials and other proceedings in relation to criminal matters under Australia’s system of justice’.[9] The provisions give effect to the principles of equality of arms and prosecution disclosure which are fundamental to all criminal proceedings. In Ragg v Magistrate’s Court of Victoria,[10] Bell J discussed the equality of arms principle by the reference to the inequality of power and resources which usually exist between the prosecution and defence:
The application of the equality of arms principle in the criminal law context takes account of the prosecutorial setting. Usually, the prosecution enters the trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought. That gives rise to the issue of disclosure — voluntary or enforced — of material by the prosecution to the defence. That issue lies at the heart of the controversy in the present case. I would adopt these introductory comments on that subject of Martin Hinton in an article in the Criminal Law Journal:
The resources that are mobilised by the state for the purpose of gathering evidence to prove beyond reasonable doubt that an accused has committed a particular offence are immense by comparison to those generally available to the accused. Listening devices, telephone intercepts, forensic scientists, surveillance, powers to search and seize, powers to compel answers to questions, informants and the sheer number of people devoted to the detection of crime, result inevitably in the creation of a significant repository of information related to the offence under investigation. From this repository of information the prosecution selects what it requires to prove the case against the accused. Invariably, the accused is made aware of what is to be actually used against him or her. The accused does not, however, have access to the information that the prosecution decides not to use, and is therefore unable to determine whether it contains any material that may assist him or her in the presentation of a defence … Access to that unused material … may be crucial to the accused’s defence.[11]
[8] (2017) 319 FLR 329.
[9] BA, [49].
[10] (2008) 18 VR 300.
[11] Ibid, [50] quoting Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121, 121.
Jurisdiction
There is no dispute that pursuant to s 39A(1A) of the Act, this Court has jurisdiction to determine the mutual assistance application. The issue is whether I should grant the application of the defendants.
The material before me
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.
As for paragraph 2, that relates to a request that Federal Agent Cheviron be made available to give evidence by video-link. As I understand it, this aspect of the application is based substantially upon an affidavit Federal Agent Cheviron provided in respect of an application to the United States District Court of the Southern District of California for a ‘warrant by telephone or other reliable electronic means’.[15] As I understood the submissions of the defendants, the relevant aspects of the affidavit are said to be with respect to: the resolution of the Phantom Secure investigation; the recruitment of CHS; the commencement of Trojan Shield; the FBI working with the AFP and others; Federal Agent Cheviron’s knowledge of the functionality of the ANOM platform; things CHS did and steps taken by the FBI to gain access to ANOM communications from a third country. Federal Agent Cheviron also provides an overview of the nature of the alleged crimes investigated by the FBI.
[15] MFI VD D7.
On my reading of the affidavit, it is unclear whether what is set out by Federal Agent Cheviron would be admissible. For example, it is unclear whether the affidavit is based upon what Federal Agent Cheviron has been told by others or learned from documents. Putting issues of admissibility to one side, with respect, the submissions of the defendants have not addressed in any meaningful detail how, what I have described above as what are said to be the relevant aspects of the affidavit of Federal Agent Cheviron may be relevant to the issues the subject of the many interlocutory applications in this matter or any future trial. Given the breadth of the interlocutory applications in this matter and need for the defendants to establish the certificate is in the interests of justice, the lack of specificity does not assist the defendants.
Against that background, I make some further observations about what were submitted to be the relevant aspects of the affidavit of Federal Agent Cheviron as set out in [18] above. These observations are not meant to traverse everything which may be relevant to the current application but are, in my view, illustrative of the absence of detail given in support of the application.
Phantom Secure was a different investigation, involving a different encrypted communication platform.
There is clearly a link between Operation Trojan Shield and Operation Ironside, but the significance of that link must be considered bearing in mind the following matters (particularly as one of the relevant matters in the affidavit of Federal Agent Cheviron said by the defendants to be relevant is the FBI accessing communications from a third country). The issues in the voir dire are the admissibility of the communications obtained from the operation of the ANOM application and the validity of the controlled operation authorities granted pursuant to Part IAB of the Crimes Act 1914 (Cth). Should the communications be admitted, the real issues in the trial are likely to be whether the defendants were responsible for communications which the prosecution seeks to attribute to them and, if so, the inferences to be drawn from any communication admissible in the case with respect to them. CHS and Federal Agent Cheviron were both ‘participants’ in the controlled operation. With respect, no persuasive submission was made about how Federal Agent Cheviron may shed light on issues surrounding Part IAB.
As for the communications themselves, on the material before me, I am not prepared to conclude that Federal Agent Cheviron is someone who is able to explain the operation of the ANOM application, at least not in a way which might be relevant and admissible. The ANOM application was software installed by users onto specially provisioned mobile phones. At least in so far as it is in possession of the AFP, the source code of that application has been reviewed by experts. Detailed evidence as to its functionality has been given on the voir dire. As I understand it, the evidence as to that functionality is not in dispute. I will not set out in detail my understanding of that functionality. That understanding is set out in a separate judgment with respect to whether there was a breach of the Telecommunications (Interception and Access) Act 1979 (Cth).[16]
[16] The King v TB and Anor [2023] SASC 45.
In this interlocutory application, the defendants submit, in part, that there may have been some variation in how the ANOM application worked when making communications directly available to the AFP (the first two data sets) compared to how it may have worked when making communications available to the FBI (the third data set). Assuming there to be a relevant variation, the following observations may made. Communications in the possession of the FBI (the third data set) have been provided to the AFP and the defendants following a different mutual assistance request not made by the defendants. Currently, the prosecution does not propose to lead that data set. Unless that changes, it is not clear how it may be relevant to explore the circumstances in which the third data set was obtained. What appears potentially relevant at present is what the third data set might say about the accuracy of the first and second data sets. If I am right about that, that check can be made on the material already available. If there is a relevant difference, it might be that more information about the third data set might be relevant. It has not been submitted that there is a difference. Further, on the material before me, it is not clear that Federal Agent Cheviron may be able to shed light on the reliability of the third data set. Further still, if the third data set is sought to be led in evidence and the defendants submit that data set was obtained illegally, it is not clear to me what that illegality might have been. I note that no submission was directed to s 43B of the Surveillance Devices Act 2004 (Cth) which may be relevant in this context but it is not appropriate to reach any view about the relevance of that section as it was not the subject of full submissions. Finally, the defendants did not dispute in submissions the third data set came from a server accessed by the AFP overseas and that there has been disclosure of a document titled ‘Operation Trojan Shield technical details’ which detailed the operation of the FBI server.
It must be accepted that CHS was a key figure in both Operation Trojan Shield and Operation Ironside. In oral submissions in this interlocutory application, the defendants sought to draw upon what had been said by a special member of the AFP (CIN 325). As CIN 325 communicated with the FBI and CHS, I will set out what is in evidence from CIN 325 about CHS. CIN 325 refers to CHS as the ‘Source’ and has deposed:[17]
From April 2018 through to the resolution in June of 2021, I communicated with the FBI and the Source relating to Operation Ironside. The communications were in some instances exclusively between myself and the Source, myself and developers employed by the source, the FBI and in most cases communications were between the FBI, the Source and myself. The Source’s knowledge and experience in the development, implementation and operation of dedicated encrypted communications platforms was apparent to me and as a result he recommended and designed a lot of the functionality whilst the FBI endorsed these actions. My role was not to control or endorse the activities of the Source, but was rather advisory in terms of opportunities for law enforcement which often involved consultation with Mr Matthew SMITH where the functionality could impact on evidential collection. My engagement with the source was in accordance with Major Controlled Operations authorities AFP18-19/24 and AFP20-21/37.
As part of my advisory role, in May 2018 I began testing the functionality of the platform. I was able to report to both the AFP, the FBI and the Source that I had successfully sent encrypted messaged between two ANOM phones and could see the decrypted messages in computer software made available to me.
The Source introduced me via online communications to developers of the ANOM platform. The Source advised me that the ANOM platform had employed developers to assist in the development and ongoing support of the platform. I would communicate with the platform developers via online communications. I did not know their real names nor did I know the locations of these developers, simply their online handles. The Source informed the developers that I was a potential client that was proposing to use the platform and that I had a requirement to collect and retain those communications whilst ensuring the communications remained confidential. With the approval of the FBI, the Source informed the developers that they could engage directly with me in relation to my requirements. I communicated online with these developers on an ad hoc basis in relation to collection of communications and features on the platform. Where I required technical advice or received technical information such as source code, I communicated and provided this to Mr Mathew SMITH and or his team. I do not believe that the developers were made aware that I worked for the AFP or law enforcement.
[17] Exhibit VD P46.
The Matthew Smith to whom CIN 325 refers is also a member of the AFP. Mr Smith has provided several affidavits.
As can be seen, CHS has knowledge of how the ANOM application functioned and those involved it its development. As set out above, how the ANOM application functioned with respect to any data set currently sought to be led by the prosecution has been reviewed by more than one expert. As set out above, I do not understand that how the source code operated is in dispute. As for the possibility that the third data set available to the FBI could have been the result of a different source code (or at least one not precisely the same), the existence of that possibility is not clear to me. Assuming that the relevant source code has some differences, I have made some observations about that data set above. As for the developers to whom CIN 325 refers, documents which may tend to identify them have previously been the subject of a claim of public interest immunity. Efforts to obtain documents relating to developers which were the subject of a public interest immunity claim were efforts that were either not pressed, or the claim has been previously upheld. The defendants did not seek to revisit my ruling on public interest immunity nor to press a claim previously not pressed in the light of this application.
During submissions, I invited the defendants to take me to the affidavit material which may provide a foundation for satisfaction that the certificate sought was in the interests of justice. The defendants referred to more than one affidavit during submissions. With respect, other than in relation to CIN 325, those references were in very general terms. The only affidavit to which I was specifically taken was the affidavit of CIN 325. With respect, the approach taken to this affidavit illustrates that the order sought is based on no more than a hope of obtaining documents which might be of relevance.
I will set out in full the paragraphs within the affidavit of CIN 325 to which I was taken:[18]
4.I have prepared this statement by reference to notes taken contemporaneously to certain events by me and others and by reference to correspondence between myself, various Federal Bureau of Investigation (FBI) agents, an FBI Cover Human Source (the Source), various AFP staff members and other interested parties. Due to the use of ‘timed messages’ (see below) by the Source I did not capture every communication but I believe that majority of communications were captured. I have retained copies of any notes or correspondence created by me or directed to me. I am unaware of the status of any notes or correspondence created by other people.
…
10.In 2017 as part of my role with the AFP I worked with the FBI on Operation Safecracking, a joint operation targeting the company Phantom Secure and the DECDs they had distributed.
11.In March 2018 Operation Safecracking went into an overt phase of activity resulting in the FBI arresting the Chief Executive Officer of the company Phantom Secure, Mr Vincent RAMOS. My role up to and during this phase of the investigation involved providing advice to the FBI regarding the technical and business operations of Phantom Secure. Detective Superintendent Kelly Mansfield (D/Supt MANSFIELD) was also assigned to Operation Safecracking as the AFP investigations Manager.
[18] Exhibit VD P46.
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.
The approach of the Director of Public Prosecutions to this interlocutory application confirmed that it was not supported by him. I accept the submission of the Attorney-General the reasons for the USA taking the position expressed in the above letter were expressly foreshadowed in the Explanatory Memorandum to the Amending Act. Namely, that:
[s]ome countries have indicated that they regard mutual assistance in criminal matters arrangements as restricted to ‘government to government’ requests and that they would be unwilling or unable to grant assistance to defendants to proceedings.[20]
[20] Explanatory Memorandum, [51].
The defendants submitted there is some reason to believe the US Government would grant the request as it granted two previous requests made by the Attorney‑General at the request of the AFP. That does not cause me to doubt the clear indication in the above letter that any request would not be executed. With respect, the submission of the defendants overlooks Article 1.3 in the Treaty and the terms of the letter. On my reading, that letter is clear. If a mutual assistance request was submitted in the same terms on which the indication was sought, it would not be executed.
I am satisfied that the USA is not likely to execute the mutual assistance request which is sought.
Section 39A(3)(b) – evidence not otherwise available
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.
When asked what Federal Agent Cheviron or the documents might shed light upon, bearing in mind the issues in the voir dire and any potential issues at trial, the submission of the defendants was:
AThe difficulty is that at present we have half of the investigation. I think it's established and not controversial that this started out as Operation Safecracking in relation to Phantom Secure, that led to the Operation Trojan Shield investigation and that led in Australia to Ironside. We only have half of the operation. The other half obviously is in the United States but, given that Superintendent Mansfield asserts a partnership or a joint operation, we should be entitled to see the other half. And your Honour should take a broad approach to questions of relevance for the reasons I referred to at the outset of my submissions; namely effectively the equality of arms principle which my learned friend the Director was alluding to in the passage cited by Bell J. I don't, and I should say quite frankly can't, tell your Honour the specifics of what is going to be revealed in the documents but, given that your Honour is here effectively dealing with half of an operation, the prosecution case relies heavily on that operation, the international nature of it is highly relevant because, insofar as there was Surveillance Devices Act warrants dealt with, and this is something your Honour will probably hear next week, insofar as there might have been interception in a foreign jurisdiction, that is somewhere other than Australia, ie, on either the XMPP or iBot server, then, in the absence of evidence the consent of a foreign country, which we don’t know, that material is not admissible under that Act s 43B. And I am telling you that’s one of the issues that again your Honour we will deal with in chapter 5. Now, that was all programmed by CHS under the auspices of the FBI. They controlled everything he did.[22]
[22] T1720-1721.
I have made some observations above about Operation Safecracking, Phantom Secure and the third data set. I will not repeat those observations. In my view, the balance of the above submission goes no further than identifying that the FBI was also involved in the investigation of the use of the ANOM application; involved with the AFP; and can be expected to have material. There is no detail with respect to what that material might be nor how it might be relevant to any interlocutory applications other than it being submitted, in only a general way, that it may enable further interlocutory applications to be considered or existing applications to be strengthened. No submission was directed towards how the evidence might be relevant to issues in the trial, other than a general submission that it might be in some unspecific way relevant to the cross-examination of a prosecution witnesses.
The defendants submitted Federal Agent Cheviron could give evidence ‘relevant or potentially relevant to various aspects of [interlocutory applications] raised by the accused including Chapters 1, 2, 12, 13 and 15’. The reference to chapters is a reference to interlocutory applications. With respect, that submission is not persuasive. Chapter 1 relates to whether ANOM functioned in a way which breached the Telecommunications (Interception and Access) Act 1979 (Cth). I am not satisfied that Federal Agent Cheviron might say anything relevant about that. Chapter 2 relates to the controlled operation authorities. More particularly, alleged errors on the face of those authorities, satisfaction of jurisdictional facts and (possibly in the future) legal unreasonableness. I am not satisfied that Federal Agent Cheviron can say anything about those matters. On my reading of Chapter 15 and the written submissions of the defendants, the grounds for a permanent stay are said to be illegality or exclusion of the evidence on grounds of public policy. I am not satisfied that Federal Agent Cheviron can say anything about that. Chapter 12 seeks a permanent stay or the exclusion of the ANOM communications on the grounds of illegality or public policy. I am not satisfied Federal Agent Cheviron can say anything relevant about that. The conduct the subject of Chapter 12 is the conduct of the AFP. Chapter 13 seeks a permanent stay, on the grounds of inadequate disclosure. As the Director submitted, this application would appear to be one which might undermine the contention which is central to that chapter.
That what is sought might have probative value is just speculation. Section 39A requires more than that. It does not permit fishing expeditions. As Bell J stated in BA:[23]
As with the law ordinarily applying to summonses to produce and like coercive processes, the mutual assistance provisions in relation to requests made on behalf of defendants do not authorise fishing expeditions. Therefore it is the issues likely to be determined rather than issues of other significance that are of importance. The more probative is the material to those issues, the stronger will be the foundation for concluding that it would be in the interests of justice for the Attorney-General to make the request.
[23] BA, [54].
Section 39A(3)(e) – unfair prejudice
In BA, Bell J said the following about this limb:[24]
The consideration in s 39A(3)(e) is whether the defendant ‘would’ be ‘unfairly prejudiced’ if the material were not available to the court. It is not enough that the defendant might be unfairly prejudiced; the requirement is that the defendant would be so prejudiced. It is not enough that the defendant would be prejudiced; the requirement is that the prejudice would be unfair. From the context, it can be seen that the unfairness and the prejudice must arise in relation to the trial or other criminal proceeding. Unfair prejudice may encompass situations in which, without a certificate, the defence will not be able to seek to obtain access to material that it needs for the legitimate forensic purpose of advancing the case of the accused or damaging the case of the prosecution in the proceeding, especially where the prosecution has had access to material, or prosecution evidence has been prepared upon the basis of material, to which the defence has not had access. The expression ‘not available to the court’ includes situations where material is not available to a defendant for legitimate forensic purposes, for the court’s judicial powers extend to supervision of the processes pursuant to which defendants can seek to obtain access to such material in criminal proceedings.
[24] BA, [57].
The submissions with respect to this aspect of s 39A(3)(e) included the following matters. First, that the ANOM application may have breached laws overseas. As I understand it, that relates to the third data set. I have dealt with that above. Second, the involvement of CHS. I have dealt with that above. Third, the involvement of CIN 325. I have dealt above with the affidavit of CIN 325 in so far as it was the subject of submissions. Fourth, that the defendants are entitled to know how many other countries were involved in the operation. There was no persuasive submission as to why that might be necessary given the first two data sets of communications were obtained in Australia and the third data set, which was obtained in response to a mutual assistance request, may not be led in evidence. Further, and the basis on which that data might be tainted by illegality and, if so, the relevance of that illegality, is not clear. Fifth, that Federal Agent Cheviron was a participant in the controlled operations. I have dealt with Federal Agent Cheviron above. Sixth, that there were ‘unanswered questions’ about the investigation. There was no persuasive submission about how any ‘unanswered questions’ might be relevant.
Other considerations s 39A(4)
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.
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