R v TB (No 5)

Case [2023] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v TB & ANOR (No 5)

[2023] SASC 118

Judgment of the Honourable Justice Kimber  

11 August 2023

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

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 evidence was obtained from an Australian Federal Police investigation known as Operation Ironside. That investigation was purportedly authorised by two Major Controlled Operation Authorities issued under Part IAB of the Crimes Act 1914 (Cth). The defendants contend that these Authorities contained various defects and by virtue of these defects, were invalid. On this basis, the defendants contend the evidence should not be admitted.

Held, dismissing the application: 

1.      The defendants have not shown the Authorities to be defective in any material particular. 

2.      The evidence should not be excluded on this basis. 

Crimes Act 1914 (Cth) Part IAB, ss 15G, 15GA, 15GC, 15GD, 15GE, 15GF, 15GG, 15GH, 15GI, 15GK, 15GO, 15GQ, 15GS, 15GT, 15GU, 15GV, 15GW, 15GX, 15GZ, 15H, 15HA, 15HM, 15HZ; Criminal Code Act 1995 (Cth) s 4.1(2); Customs Act 1901 (Cth) s 219B; Law Enforcement (Controlled Operation) Act 1997 (Cth), referred to.

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; Murphy v The Queen (1989) 167 CLR 94; R v Hoang (2015) 248 A Crim R 282; R v M, I [2018] SASC 24, applied.
R v Nicholas (2000) 1 VR 356, distinguished.
Bradley v The Commonwealth (1973) 128 CLR 557; Ousley v The Queen (1997) 192 CLR 69; Wu v The Queen; Phan v The Queen [2020] VSCA 94; R v TB and Anor [2023] SASC 45; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403; Ridgeway v The Queen (1995) 184 CLR 19, discussed.

George v Rockett (1990) 170 CLR 104, considered.

R v TB & ANOR (No 5)
[2023] SASC 118

Criminal: Application – Chapter 2

KIMBER J:

  1. 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 the following orders:[1] 

    1.The evidence of messages sent or transmitted via the ANOM platform be excluded from evidence; and 

    2.Such further orders as the Court deems fit.  

    [1]    Amended interlocutory application dated 1 February 2022. 

  2. This application is one of several separate interlocutory applications filed by the defendants and is referred to as Chapter 2. Chapter 2 is directed to two controlled operation authorities granted pursuant to Part IAB of the Crimes Act 1914 (Cth) (CA). 

    The prosecution case

  3. I have set out an overview of the…

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AGLC
R v TB (No 5) [2023] SASC 118
Case
[2023] SASC 118
Decision Date

CaseChat Overview and Summary

In the case of R v TB (No 5), the parties involved were the Crown and three defendants, TB, CD, and a third party, Wakefield. The dispute centered on the admissibility of evidence obtained through the covert operation known as Operation Ironside, which involved the collection of communications exchanged over an encrypted communication network called ANOM. The court had to decide whether the evidence obtained from ANOM was admissible in the proceedings, particularly in light of concerns about the legality and propriety of the operation.

The primary legal issue was whether the evidence obtained from ANOM was admissible under the relevant legislation, specifically Section 15HZ of the Act, which deals with the admissibility of authorities granted under Section 15GI. The court had to determine if the evidence was obtained in strict compliance with the legislative requirements and whether it was fair to admit such evidence. The court also had to consider whether the evidence was obtained improperly, which could lead to its exclusion under judicial discretion.

The court's reasoning centered on the need for strict compliance with the legislation, as highlighted in previous cases such as R v Hoang. The court emphasized that the policy aims of the legislation are to be achieved by adhering to the specified qualifications found in the legislation rather than reading unstated qualifications into it. The court held that the authorities provided law enforcement and civilian participants with certainty about the conduct in which they could engage, and any errors or defects of a technical nature that did not affect the material purpose of the authority should not invalidate it. The court found that the evidence obtained from ANOM was admissible as it was in strict compliance with the legislation, and there were no material defects that would render it inadmissible. The court rejected the argument that the term "conduct" should be interpreted more narrowly than "activity" and dismissed the remaining grounds of appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 15HZ provides with respect to authorities granted under s 15GI: Evidence of authorityA document purporting to be an authority granted under section 15GI or under a corresponding State controlled operations law:(a) is admissible in any legal proceedings; and(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.The need for compliance with the legislative requirements and how that policy aim is achieved As Penfold J observed in R v Hoang[8] with respect to an authority to conduct a cross-border controlled operation pursuant to the Law Enforcement (Controlled Operation) Act 1997 (LEOCOA), but instructive with respect to Part IAB of the CA, there must be strict compliance with the legislation.[9] However, as Penfold J further observed, the policy aims of the LEOCOA, and in my view, Part IAB of the CA, are[10] … not to be achieved by reading assorted unstated qualifications into the plain words of the legislation, but by paying full regard to the specified qualifications found in the legislation.That is, an authority [pursuant to the LEOCOA] protects identified participants in the operation from criminal liability for activities identifiable by reference to the contents of the authority. Activities not authorised by reference to the contents of the authority are not protected. That is how the legislation enforces the limits of the authority, and that is the point at which external scrutiny is useful. If the authority has been granted in accordance with the legislation, then the role of a court is to ensure that protection is not extended to activities not covered by the authority — it is not to give directions about whether some further authority, extending to other activities, could or should have been sought or granted.[8] R v Hoang (2015) 248 A Crim R 282 (Hoang).[9] For the need for strict compliance with Part IAB see also Wu v The Queen; Phan v The Queen [2020] VSCA 94, [81]–[82].[10] Ibid, 295. I make a further observation. As set out above, s 15G provides that the main objects of Part IAB are to make certain conduct exempt from criminal liability and indemnified from civil liability and s 15GZ sets out the effect of an authority. In my view, those sections inform the purpose of the grant of any authority and, subject of course to the terms of s 15GK, what must appear in a formal authority. The main objects set out in s 15G, and the effect of an authority as set out in s 15GZ, are consistent with a key purpose of a formal written authority being to provide law enforcement and civilian participants with certainty as to the conduct in which they may engage with the exemption and indemnity. What is sufficient for strict compliance with s 15GK must be evaluated in the context of what I have described as a key purpose of the authority. Participants are entitled to rely upon what is set out in an authority to advise them of the conduct in which they may engage. It would be inconsistent with that key purpose if errors of a technical nature invalidated an authority or if an authority was invalidated because compliance with s 15GK might also have been achieved using different words in the authority, including more specificity. To take that approach would be to expose participants to criminal and civil liability because of errors (or defects) in an authority of an immaterial nature for which they were not responsible. This is reflected in s 15H. The exemption and indemnity will not be lost when errors (or defects) are not material. The Grounds

Decision

Reasons for decision

If this complaint is maintained by the defendants, I reject it. Section 15H provides that a variation is not invalidated by a defect which is not material. I reject that there is a material difference between ‘conduct’ and ‘activity’. Conclusion Grounds 19–21A of Chapter 2 have been dealt with in an earlier judgment. Grounds 25–28 will be dealt with separately. I dismiss the remaining grounds within Chapter 2.

Ratio Decidendi

Legal Principle Established

I have set out an overview of the prosecution case in previous rulings. It is sufficient to respectfully adopt a summary given by McDonald J in a ruling she gave with respect to a subpoena in this matter at a time when there was a co‑accused, Mr Wakefield:[2] [2] Ruling of McDonald J dated 29 July 2022, [6]–[16]. In one sense the prosecution case is relatively straightforward. It involves the accused Wakefield being in possession of a Ute, in an enclosed garage at his home premises. Found within that Ute was a quantity of methylamphetamine, and a number of firearms and associated items. Whilst some of the firearms and parts were located in an esky in the tray of the Ute, a number of others were concealed within purpose built storage panels in the area between the cabin and the Ute tray. It is the prosecution case that at around this time Wakefield disposed of a quantity of methylamphetamine by washing it down a drain, which is the subject of the trafficking charge. The complicating factor in this matter is that the prosecution case implicating all three accused, but in particular CD and TB, involves reliance on communications exchanged between the three 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 controlled operation authorities