R v TB (No 5)

[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 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

4. During Operation Ironside, the Australian Federal Police (AFP) obtained two controlled operation authorities pursuant to Part IAB of the CA (Part IAB). 

5. The first authority was granted by, as he was then, Deputy Commissioner Gaughan (DC Gaughan)[3] of the AFP on 25 September 2018 for a period of three months (the first authority).  The first authority was varied on 11 occasions between 10 December 2018 and 22 June 2020 (on three occasions by DC Gaughan, one occasion by Deputy Commissioner McCartney of the AFP (DC McCartney) and seven occasions by members of the Administrative Appeals Tribunal (AAT)).  The second authority was granted by DC McCartney on 25 September 2020 for a period of three months (the second authority).  The second authority was varied on four occasions between 18 December 2020 and 23 April 2021 (twice by DC McCartney and twice by a member of the AAT).  

   [3]    DC Gaughan is now Chief Police Officer for the Australian Capital Territory, but I will refer to him as DC Gaughan in this judgment.  

6. The two authorities and their variations are set out in the following table: 

Type	MCO Number	Authorised Date	Authorised By	AFP Applicant
Application	AFP 18-19/24	25 September 2018	DC Gaughan, AFP	D/Supt. Kelly Mansfield
AFP variation	AFP 18-19/24/01	10 December 2018	DC Gaughan, AFP	D/Sgt Timothy Dawe
AAT variation	AFP 18-19/24/02	12 December 2018	Deputy President Gary Humphries, AAT	D/Sgt Timothy Dawe
AFP variation	AFP 18-19/24/03	8 March 2019	DC Gaughan, AFP	D/LSC Dave Wright
AAT variation	AFP 18-19/24/04	22 March 2019	Deputy President Gary Humphries, AAT	D/LSC Dave Wright
AAT variation	AFP 18-19/24/05	21 June 2019	Deputy President Gary Humphries, AAT	D/LSC Dave Wright
AAT variation	AFP 18-19/24/06	19 September 2019	Senior Member Adria Marissa Poljak, AAT	SC Jess Neilson
AFP variation	AFP 18-19/24/07	13 December 2019	DC Gaughan, AFP	SC Jess Neilson
AAT variation	AFP 18-19/24/08	19 December 2019	Deputy President Gary Humphries, AAT	SC Jess Neilson
AAT variation	AFP 18-19/24/09	17 March 2020	Deputy President Gary Humphries, AAT	SC Jess Neilson
AFP variation	AFP 18-19/24/10	17 June 2020	DC McCartney, AFP	LSC Tim Collins
AAT variation	AFP 18-19/24/11	22 June 2020	Deputy President Gary Humphries	D/SC Garreth Harms
Application	AFP 20-21/37	25 September 2020	DC McCartney, AFP	LSC Tim Collins
AFP variation	AAT 20-21/37/01	18 December 2020	DC McCartney, AFP	LSC Tim Collins
AAT variation	AAT 20-21/37/02	23 December 2020	Deputy President Gary Humphries, AAT	LSC Tim Collins
AAT variation	AAT 20-21/37/03	24 March 2021	Deputy President Gary Humphries, AAT	LSC Tim Collins
AFP variation	AAT 20-21/37/04	23 April 2021	DC McCartney, AFP	D/SC Garreth Harms

1. To the extent evidence has been given relevant to Chapter 2, I will refer to that evidence when dealing with the grounds upon which the defendants seek exclusion of the evidence.

   The terms of the authorities

   The first authority

2. The first authority is headed ‘Formal Authority for Major Controlled Operation’ and beneath that the words ‘Crimes Act 1914 - Part IAB Section 15GI’ appear.  The following then relevantly appears:[4] 

   [4]    VD D2, tab 2.

   Controlled Operation Number: AFP-18-19/24

   To:The principal law enforcement officer Federal Agent Kelly Mansfield of the Australian Federal Police, a law enforcement agency within the meaning of section 15GC of the Crimes Act 1914.

   A formal application has been made to me by Federal Agent Kelly Mansfield under section 15GH of the Crimes Act 1914, for the issue of an authority to conduct a controlled operation under section 15GI of the Act.

   Members of the Australian Federal Police (AFP) are currently investigating:

   Directing activities of a criminal organisation under section 390.6(2) of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) (including but not limited to controlled substances and money laundering) which is punishable on conviction by imprisonment for a period of 15 years.

   Supporting a criminal organisation, under section 390.4 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) (including but not limited to controlled substances and money laundering) which is punishable on conviction by imprisonment for a period of five years.

   Conspiracy to import a commercial quantity of border controlled drugs, under section 307.1 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both.

   Conspiracy to traffic commercial quantities of controlled drugs, under section 302.2 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both.

   Dealing in proceeds of crime etc.—money or property worth $100,000 or more, under section 400.4 of the Criminal Code (Cth), being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for 20 years or 1,200 penalty units, or both.

   Using equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, a serious offence (being an offence with a penalty of five years imprisonment or more) under section 474.14 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) which is punishable on conviction by a penalty not exceeding the penalty applicable to the serious offence.

   Conducting transactions so as to avoid reporting requirements relating to threshold transactions under section 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for five years or 300 penalty units, or both.

   The investigation is targeting the activities of:

   ·[Supressed];  

   ·Kale Robert DEMPSEY (DEMPSEY), born 10 March 1989; and

   ·Users of the mobile devices operating the new platform.

   And a person or persons as yet unknow who have been responsible for or will be involved in the illegal activity that is the subject of this authority.

   The nature and quantity of illicit goods to which the operation relates are:

   Currency suspected to be in excess of AUD50,000 which is reasonably suspected of being the proceeds of crime as defined under section 400.1 of the Criminal Code (Cth) possession of which is in contravention of section 400.5 of the Criminal Code (Cth).

   Encrypted communications devices intended for sale and/or use to support the activities of a criminal organisation which constitutes an offence under section 390.4 of the Criminal Code (Cth).

   The illicit funds suspected to be used to finance the purchase of hardened, encrypted devices are suspected to be derived in Australia from drug related or other criminal activity. Illicit funds will not physically pass through a foreign country. Funds are likely to remain in Australia after being deposited into bank accounts controlled by the AFP and eventually be subject to proceeds of crime action. 

   The encrypted communications devices will be either imported into Australia or purchased locally in Australia prior to being sold to customers. If the communications devices are imported it is not know when or where they enter Australia.

   I, Deputy Commissioner Neil GAUGHAN, AFP Deputy Commissioner Operations, am satisfied by information given to me:

   a)    that a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being, or is likely to be committed; and

   b)    the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and

   c)    that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

   d)    that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

   e)    that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and

   f)     that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law or State or Territory that the person would not otherwise have intended to commit; and

   g)    any conduct involved in the operation will not:

   i)seriously endanger the health or safety or any person; or

   law of a State or Territory that the person would not otherwise have intended to commit; and

   g) [sic] any conduct involved in the operation will not:

   i)seriously endanger the health or safety of any person; or

   ii)cause the death of, or serious injury to, any person; or

   iii)involve the commission of a sexual offence against any person; or

   iv)result in loss of, or serious damage to, property (other than illicit goods); and

   h)    that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.

   I certify that the participants set out below are authorised to conduct a controlled operation in relation to supporting a criminal organisation and money laundering in accordance with the provisions of Part IAB of the Crimes Act 1914. The nature of the controlled conduct which the participants may engage in is set out below.

Participant	Category	Controlled conduct
FBI CHS S00088667	Civilian	The particulars of conduct that the civilian participant is authorised to engage in under the direction of law enforcement: Engage in communications, negotiations and discussions with [supressed] and DEMPSEY and/or their representatives/associates concerning the supply of hardened encrypted devices for ultimate distribution to and use by person in support of criminal activities; Provide SIM cards and enable encrypted communications devices to [supressed] and DEMPSEY and/or their representatives/associates for ultimate distribution to and use by persons in support of criminal activities; Receive and/or engage in financial transactions reasonably suspected of being the proceeds of crime as provided by [supressed] and DEMPSEY and/or their representatives/associates; Engage in communications, discussions and meetings with FBI and AFP employees regarding the design, distribution and other relevant aspects of the new platform; Provide as required technical assistance to [supressed] and DEMPSEY and any of their unknown representatives/associates and customers using the new platform; Engage in communications, negotiations and discussions with other unidentified distributors or resellers regarding the new platform in support of criminal organisations; Assist in the ongoing operation and management of the new platform, including access to and modification of data located on the devices (whether protected by security mechanisms or otherwise) without the consent of the user; Impairment of communications from devices using the new platform where it is considered its ongoing use will endanger a person’s life; and By virtue of the above activities, facilitate a range of criminal conduct including but not limited to activities relating to the importation and trafficking of controlled drugs, and money laundering.
UCC597003	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
UCC809898	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
UCO297100	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
UCO490039	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
UCO118921	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
UCO470036	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the new platform.
FBI Special Agent Brett FENOGLIO	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
FBI Special Agent Nicholas CHEVIRON	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
AFP Member Covert Identity Number 325	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
Federal Agent Tim DAWE	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
Federal Agent Kelly MANSFIELD	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
Federal Agent David WRIGHT 10380	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.
Federal Agent Steven SCOTT-YOUNG	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with the FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the new platform; and Give instructions to FBI CHS S00088667 regarding the new platform.

The second authority

1. The second authority is also headed ‘Formal Authority for a Major Controlled Operation’.  Beneath that heading appear the words ‘Crimes Act 1914-Part IAB Section 15GI’. 

2. The following then relevantly appears:[5] 

   [5]    VD D2, tab 13. 

   Controlled Operation Number: AFP-20-21/37

   TO:The principal law enforcement officer Federal Agent Darren WILLIAMSON of the Australian Federal Police, a law enforcement agency within the meaning of section 15GC of the Crimes Act 1914.

   A formal application has been made to me by Federal Agent Tim COLLINS under section 15GH of the Crimes Act 1914, for the issue of an authority to conduct a controlled operation under section 15GI of the Act.

   Members of the Australian Federal Police (AFP) are currently investigating:

   Directing activities of a criminal organisation under section 390.6(2) of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2), including but not limited to controlled substances and money laundering, which is punishable on conviction by imprisonment for a period of 15 years.

   Supporting a criminal organisation, under section 390.4 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2), including but is not limited to controlled substances and money laundering, which is punishable on conviction by imprisonment for a period of five years.

   Conspiracy to import a commercial quantity of border controlled drugs, under section 307.1 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both.

   Conspiracy to traffic commercial quantities of controlled drugs, under section 302.2 by virtue of section 11.5(1) of the Criminal Code (Cth), being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for life, or 7,500 penalty units, or both.

   Dealing in proceeds of crime etc.—money or property worth $100,000 or more, under section 400.4 of the Criminal Code (Cth), being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for 20 years or 1,200 penalty units, or both.

   Using equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, a serious offence (being an offence with a penalty of five years imprisonment or more) under section 474.14 of the Criminal Code (Cth), being a Commonwealth offence that involves matters of the same general nature as a matter listed in section 15GE(2) which is punishable on conviction by a penalty not exceeding the penalty applicable to the serious offence.

   Conducting transactions so as to avoid reporting requirements relating to threshold transactions under section 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, being a Commonwealth offence that involves money laundering which is punishable on conviction by imprisonment for five years or 300 penalty units, or both.

   The investigation is targeting the activities of:

   ·Joseph Hakan AYIK, born 31 January 1979;

   ·[Supressed]; and

   ·Users of the mobile devices operating on the Anom platform.

   And a person or persons as yet unknow who have been responsible for or will be involved in the illegal activity that is the subject of this authority.

   The nature and quantity of illicit goods to which the operation relates are:

   Currency suspected to be in excess of AUD50,000 which is reasonably suspected of being the proceeds of crime as defined under section 400.1 of the Criminal Code (Cth) possession of which is in contravention of section 400.5 of the Criminal Code (Cth).

   Encrypted communications devices intended for sale and/or use to support the activities of a criminal organisation which constitutes an offence under section 390.4 of the Criminal Code (Cth).

   The illicit funds suspected to be used to finance the purchase of hardened, encrypted devices are suspected to be derived in Australia from drug related or other criminal activity. Illicit funds will not physically pass through a foreign country. Funds are likely to remain in Australia after being deposited into banks controlled by the AFP and eventually be subject to proceeds of crime action. 

   The encrypted communications devices will be either imported into Australia or purchased locally in Australia prior to being sold to customers. If the communications devices are imported it is not known when or where they will enter Australia. Encrypted communications devices used by those for the commission of offences will be seized as evidence where possible.

   The operation will be conducted in a way that ensures that, to the maximum extent possible any illicit goods involved in the controlled operation will be under the control of an Australia law enforcement officer at the end of the controlled operation. 

   I, Deputy Commissioner Ian McCartney, Deputy Commissioner Investigations am satisfied by information given to me:

   a)    that a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being, or is likely to be committed; and

   b)    the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and

   c)    that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

   d)    that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

   e)    that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and

   f)     that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law or State or Territory that the person would not otherwise have intended to commit; and

   g)    any conduct involved in the operation will not:

   i)seriously endanger the health or safety or any person; or

   ii)cause the death of, or serious injury to, any person; or

   iii)involve the commission of a sexual offence against any person; or

   iv)result in loss of, or serious damage to, property (other than illicit goods); and

   h)    that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.

   I certify that the participants set out below are authorised to conduct a controlled operation in relation to supporting a criminal organisation and money laundering in accordance with the provisions of Part IAB of the Crimes Act 1914. The nature of the controlled conduct which the participants may engage in is set out below.

Participant	Category	Controlled conduct
FBI CHS S00088667	Civilian	The particulars of conduct that the civilian participant is authorised to engage in under the direction of law enforcement: Engage in communications, negotiations and discussions with the targets and/or others identified and as yet unidentified concerning the supply of hardened encrypted devices for ultimate distribution to and use by persons in support of criminal activities; Provide SIM cards and enable encrypted communications devices to the targets and/or others identified and as yet unidentified for the ultimate distribution to and use by persons in support of criminal activities; Receive, engage in transactions related to and otherwise deal with money, property and/or cryptocurrencies reasonably suspected of being the proceeds of crime as provided by the targets and/or others identified and as yet unidentified; Engage in communications, discussions and meetings with FBI and AFP employees regarding the design, distribution and other relevant aspects of the new platform; Provide as required technical assistance to the targets and/or others identified and as yet unidentified and customers using the platform; Engage in communications, negotiations and discussions with other unidentified distributors or resellers regarding the platform in support of criminal organisations; Support the ongoing operation and management of the platform, including access to and modification of data located on the devices (whether protected by security mechanisms or otherwise) without the consent of the user; Impairment of communications from devices using the new platform where it is considered its ongoing use will endanger a person’s life; and By virtue of the above activities, facilitate a range of criminal conduct including but not limited to activities relating to the importation and trafficking of controlled drugs, and money laundering as directed by law enforcement.
UCC597003	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
UCC809898	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
UCO297100	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
UCO490039	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
UCO118921	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
UCO470036	Law Enforcement	The nature of the controlled conduct that the law enforcement participant will be engaged in: Receiving, engaging in financial transactions related to and otherwise dealing with proceeds of crime, including but not limited to the creation of appropriate facilities with financial institutions and/or cryptocurrency providers to facilitate such transactions concerning the platform.
AFP Special Member Covert Identity Number 325	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Act as a middleman for FBI S00088667 by engaging in engage in communications, negotiations and discussions with potential distributors/customers concerning the Anom platform and assisting with distribution of devices; Receive, engage in transactions related to and otherwise deal with money, property and/or cryptocurrencies reasonably suspected of being the proceeds of crime as provided by the targets and/or others identified and as yet unidentified; and Give instructions to FBI CHS S00088667 regarding the platform.
Federal Agent Darren WILLIAMSON AFP 11256	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the platform; and Give instructions to FBI CHS S00088667 regarding the platform.
Federal Agent Robert DZAJA AFP 16404	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the platform; and Give instructions to FBI CHS S00088667 regarding the platform.
FBI Special Agent Stephanie FINNICUM	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the platform; and Give instructions to FBI CHS S00088667 regarding the platform.
FBI Special Agent Nicholas CHEVIRON	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the platform; and Give instructions to FBI CHS S00088667 regarding the platform.
FBI Special Agent Brett KALINA	Law Enforcement	The nature of controlled conduct that the law enforcement participant will be engaged in: Engage in communications, discussions and meetings with FBI CHS S00088667, regarding the design, distribution and other relevant aspects of the platform; and Give instructions to FBI CHS S00088667 regarding the platform.

1. The tables headed ‘Participant’, ‘Category’ and ‘Controlled conduct’ in each authority have been referred to as ‘boxes’ and I will do the same. 

   The legislative scheme

2. Part IAB of the CA regulates the conduct of controlled operations.

3. Before the introduction of Part IAB, the High Court ruled in Ridgeway v The Queen that evidence of the importation and later sale of heroin by law enforcement operatives should have been excluded in the trial of a person to whom the drugs had been sold on the grounds of public policy.[6]  Although the importation and sale had been carried out for the purposes of conducting an undercover operation, the law enforcement officers had illegally imported the heroin into Australia. 

   [6]    Ridgeway v The Queen (1995) 184 CLR 19 (Ridgeway).

4. Section 15G of the CA sets out the objects of Part IAB. Those objects reflect an intention on the part of the legislature to create a restrictive regime for the authorisation, conduct and monitoring of controlled operations. Section 15G provides:

   The main objects of this Part are:

   (a)     to provide for the authorisation, conduct and monitoring of controlled operations; and

   (b)     to exempt from criminal liability, and to indemnify from civil liability:

   (i)law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and

   (ii)certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.

5. Section 15GA(2) provides that in deciding whether to admit evidence of a controlled operation, the fact that an authorised participant engaged in criminal activity is to be disregarded if the person was authorised and the activity was ‘controlled conduct’ as defined.

6. Section 15GC defines ‘conduct’ and ‘controlled conduct’ as follows:

   conduct has the same meaning as in the Criminal Code.

   controlled conduct means conduct constituting an offence for which a person would, but for section 15HA, be criminally responsible.

7. Section 4.1(2) of the Criminal Code Act 1995 (Cth) (Criminal Code) defines ‘conduct’ in the following way: 

   ‘conduct’ means an act, an omission to perform an act or a state of affairs.

8. Section 15HA provides protection from criminal responsibility for controlled conduct during controlled operations. Section 15HA provides:

   (1)This section applies if:

   (a)     a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and

   (b)     engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory.

   (2)Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if:

   (a)     the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and

   (b)     the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and

   (c)     the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and

   (d)     the conduct does not involve the participant engaging in any conduct that is likely to:

   (i)cause the death of, or serious injury to, any person; or

   (ii)involve the commission of a sexual offence against any person; and

   (e)     if the participant is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.

   The effect of an authority

9. Section 15GZ of the CA sets out the effect of an authority:

   (1)Subject to subsection (2), an authority:

   (a)     authorises each law enforcement participant in the controlled operation to which the authority relates who is identified in the authority to engage in the controlled conduct specified in the authority in respect of that participant; and

   (b)     authorises each civilian participant (if any) in the controlled operation to which the authority relates who is identified in the authority to engage in the particular controlled conduct (if any) specified in the authority in respect of that participant.

   (2)A person identified in an authority as being authorised to engage in controlled conduct for the purposes of the controlled operation is authorised to do so for the period of effect of the authority, unless:

   (a)     the authority specifies a shorter period during which the person is so authorised; or

   (b)     the authority is varied to provide that the person is no longer so authorised; or

   (c)     the authority is cancelled before the end of that period.

   (3)The authority to engage in controlled conduct given to a participant cannot be delegated to any other person

   The meaning of controlled operation and major controlled operation

10. Section 15GD of the CA sets out the meanings of ‘controlled operation’ and ‘major controlled operation’:

    (1)A controlled operation is an operation that:

    (a)     involves the participation of law enforcement officers; and

    (b)     is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and

    (c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.

    (2)A major controlled operation is a controlled operation that is likely to:

    (a)     involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or

    (b)     continue for more than 3 months; or

    (c)     be directed against suspected criminal activity that includes a threat to human life.

    The requirement of satisfaction on reasonable grounds

1. Pursuant to s 15GF, as Deputy Commissioners of the AFP, DC Gaughan and DC McCartney were ‘authorising officers’ for controlled operations and major controlled operations.[7] 

   [7] CA s 15GF(1)(a).

2. Section 15GI(2) provides:

   (2)An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:

   (a)     that either:

   (i)a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or

   (ii)an integrity testing authority is in effect in relation to an offence that it        is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and

   (b)     that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and

   (c)     that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

   (d)     that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

   (e)     that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and

   (f)     that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

   (g)     that any conduct involved in the controlled operation will not:

   (i)seriously endanger the health or safety of any person; or

   (ii)cause the death of, or serious injury to, any person; or

   (iii) involve the commission of a sexual offence against any person; or

   (iv)result in significant loss of, or serious damage to, property (other than illicit goods); and

   (h)     that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. 

   The form of a formal authority

3. Each of the first and second authorities was a ‘formal authority’. Section 15GK(1) sets out the required content of a ‘formal authority’:

   (1)     A formal authority must:

   (a)     state the name and rank or position of the person granting the authority; and

   (b)     identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and

   (c)     state that the application was a formal application; and

   (d)     identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and

   (da)   in the case of an integrity testing controlled operation authority—identify the integrity testing authority concerned; and

   (e)     state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and 

   (f)     specify:

   (i)with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and

   (ii)with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and

   (g)     identify (to the extent known) the person or persons targeted; and

   (h)     specify the period of effect of the authority, being a period not exceeding 3 months; and

   (i)specify any conditions to which the conduct of the controlled operation is subject; and

   (j)    state the date and time when the authority is granted; and 

   (k)     identify the following details (to the extent to which they are known and are relevant):

   (i)the nature and quantity of any illicit goods that will be involved in the controlled operation;

   (ii)the foreign countries through which those goods are likely to pass in the course of the controlled operation;

   (iii)the place or places at which those goods are likely to be dealt with by an officer of Customs;

   (iv)if subparagraph (iii) does not apply—the place or places where those goods are likely to enter into Australia;

   (v)the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs.

   Variations

4. Subdivision B of Part IAB provides for the variation of authorities by authorising officers. Relevant to this matter, a Deputy Commissioner of the AFP may vary an authority. Section 15GO(1) and (2) provide:

   (1)An appropriate authorising officer may vary an authority:

   (a)     at any time on the authorising officer’s own initiative; or

   (b)     on application under subsection 15GP(1).

   (2)A variation may:

   (a)     extend the period of effect of the authority (subject to subsections (3) and (4)); or

   (b)     authorise additional persons to engage in controlled conduct for the purposes of the controlled operation and specify:

   (i)with respect to additional law enforcement participants—the nature of the controlled conduct that those participants may engage in; and

   (ii)with respect to additional civilian participants—the particular controlled conduct (if any) that each such participant may engage in; or

   (c)     provide that specified persons are no longer authorised to engage in controlled conduct for the purposes of the controlled operation; or

   (d)     authorise participants in the controlled operation to engage in additional or alternative controlled conduct.

5. A Deputy Commissioner cannot vary a formal authority in such a way that the period of effect of the authority will, after the variation has been made, exceed three months (including any previous extensions). 

6. Relevant to the variations made by DC Gaughan and DC McCartney in this case, s 15GQ sets out the requirements for the variation of an authority. Section 15GQ(2) provides:

   (2)An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer’s own initiative, unless the authorising officer is satisfied on reasonable grounds:

   (a)     that either:

   (i)a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or

   (ii)an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and

   (b)     that the nature and extent of the suspected criminal activity are such as to justify the variation; and

   (c)     that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

   (d)     that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

   (e)     that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and

   (f)     that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

   (g)     that any conduct involved in the controlled operation will not:

   (i) seriously endanger the health or safety of any person; or

   (ii)cause the death of, or serious injury to, any person; or

   (iii)involve the commission of a sexual offence against any person; or

   (iv)result in significant loss of, or serious damage to, property (other than illicit goods); and

   (h)     that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.

   Note 1:Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).

   Note 2:The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).

7. Also relevant to the variations by DC Gaughan and DC McCartney, s 15GS provides for the form of variation of an authority:

   (1)A variation of an authority by an appropriate authorising officer (whether formal or urgent) must: 

   (a)     identify the controlled operation to which the authority relates; and

   (b)     state the name and rank or position of the person varying the authority; and

   (c)     if the authority was varied on an application made under section 15GP, state:

   (i)the name of the applicant; and

   (ii)whether the application was a formal variation application or an urgent variation application; and

   (d)     state the date and time when the variation of authority is or was granted; and

   (e)     describe the variation having regard to the matters referred to in subsection 15GO(2); and

   (f)     if the variation extends the period of effect of a formal authority—state the period of the extension.

   (2)For the purposes of paragraph (1)(f), the period of the extension must not exceed:

   (a)     in the case of a formal variation of authority—the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and

   (b)     in the case of an urgent variation of authority—the lesser of:

   (i)7 days; and

   (ii)a period that would result in the period of effect of the authority        exceeding 3 months (including any previous extensions).

8. Section 15GG empowers the Minister administering the Administrative Appeals Tribunal Act1975 (Cth) to nominate, in writing, AAT members who may deal with applications under s 15GU(1). Section 15GU(1) provides for the extension of authorities beyond three months upon application to a nominated AAT member. Section 15GT provides that a ‘nominated tribunal member’ may vary an authority and may extend the period of the effect of the authority. Section 15GT(3) provides:

   (3)For the purposes of subsection (2), the period of the extension must not exceed the lesser of:

   (a)     3 months; and

   (b)     a period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B).

9. Section 15GX sets out the required form of a variation of a formal authority by a nominated AAT member. It provides:

   (1)A variation of a formal authority by a nominated Tribunal member (whether formal or urgent) must:

   (a)     identify the controlled operation to which the authority relates; and

   (b)     state the name and position of the person varying the authority; and

   (c)     state the name of the applicant; and

   (d)     state whether the application for the variation was a formal variation application or an urgent variation application; and

   (e)     state the date and time when the variation of authority is or was granted; and

   (f)     state the period of the extension.

   (2)The period of the extension:

   (a)     must not exceed the period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B); and

   (b)     must not exceed:

   (i)in the case of a formal variation of authority—3 months; and

   (ii) in the case of an urgent variation of authority—7 days.

10. Pursuant to s 15GV(1) of the CA, a nominated AAT member may dismiss an application for the variation of an authority or grant such an application unconditionally or conditionally. Section 15GV(2) provides the nominated AAT member must not grant the variation unless satisfied on reasonable grounds of the same criteria contained in s 15GQ(2).

11. Section 15GW(1)(a) provides a formal variation authority, like a formal authority, must be in writing and must be signed by the nominated AAT member.

    Defects in authorities

12. Section 15H of the CA provides with respect to defects in an authority or variation:

    Defect in authority

    An application for an authority or variation of an authority, and any authority or variation of an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.

    Evidence of authorities

13. Section 15HZ provides with respect to authorities granted under s 15GI:

    Evidence of authority

    A 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

14. 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.

15. I make a further observation. 

16. 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

17. The defendants contend the two authorities are invalid on several grounds.  Those grounds may be referred to as Grounds 3–30. 

    Ground 3 — no reasonable grounds

18. Ground 3 is in the following terms:  

    No reasonable grounds: the authorities are invalid on their face and disclose that the issuing officers were only satisfied about the relevant criteria in s 15GI(2) of the Crimes Act 1914 (Cth) (i.e. – preconditions to the issue of an authority), ‘on information’ given to them, as opposed to their being satisfied about the relevant criteria on ‘reasonable grounds’.

19. Section 15GI(2) provides an authorising officer must not grant an authority to conduct a controlled operation unless ‘satisfied on reasonable grounds’ of the matters set out in that sub-section. As set out above, each authority states the authorising officer was ‘satisfied by information given to me’ of the relevant matters. The authorities are documents purporting to be authorities granted under s 15GI. Section 15HZ provides that, in the absence of evidence to the contrary, the authorities are proof the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority. The onus is upon the defendants to establish the two authorising officers were not satisfied of the relevant facts.

    The submission of the defendants

20. The defendants accept that s 15GK(1) provides for the form of an authority and does not require any ‘state of satisfaction’ to be stated. Nonetheless, the submission of the defendants focuses upon the words ‘satisfied by information given to me’ on the face of the two authorities. The defendants contrast that to the words ‘satisfied on reasonable grounds’ in s 15GI(2). The defendants submit the authorities stating on their face a state of satisfaction in different terms to that in s 15GI(2) establishes jurisdictional error and the authorities are invalid. The defendants submit the authorising officers framed their satisfaction ‘on a misconstruction of the applicable law’ and that is sufficient to establish jurisdictional error.

    What must appear in an authority

21. As Gummow J held in Ousley v The Queen (Ousley),[11] the proper inquiry as to the validity of a warrant where the requisite form of a warrant and the preconditions for its issue are prescribed by statute is a matter of statutory interpretation.[12] There is no reason to take a different approach with respect to a controlled operation authority. In this case, what must appear in an authority is governed by s 15GK(1).

    [11] (1997) 192 CLR 69.

    [12] Ibid, 118.

22. In so far as the defendants may be understood as advancing a submission the authorities were invalid on their face because of the absence of the words ‘satisfied on reasonable grounds’ in each authority, that submission must be rejected. As s 15GK(1) does not demand that the ‘state of satisfaction’ of the authorising officer appear in the formal authority, an authority is not invalid on its face because the satisfaction of the authorising officer is stated in different terms to that in s 15GI(2). Properly understood, the submission of the defendants is there is evidence of jurisdictional error which appears on the face of the authority.

    Jurisdictional error

1. In an earlier ruling,[13] I held that s 15HZ contains a presumption of regularity with respect to authorities pursuant to s 15GI(2). That remains my view. Following an application by the Director, I also held that evidence may be called on the question of whether the authorising officers applied a requirement of ‘satisfied on reasonable grounds’ when granting the respective authorities. Put another way, I permitted the authorising officers to give evidence of whether, at the time each granted the authority, they considered whether they were satisfied on reasonable grounds. It is not necessary to detail that evidence at this point. I will refer to the evidence of the authorising officers below.

   [13] R v TB and CD (Supreme Court of South Australia, Kimber J, 10 November 2022) at [24]; for reasons, see R v TB and CD (Supreme Court of South Australia, Kimber J, 7 December 2022).  

2. The defendants have consistently objected to such evidence being admitted.  The two authorising officers having given evidence, and being bound to accept my earlier ruling, the defendants submitted that evidence should be given no weight and treated as irrelevant. 

3. Having reflected on my earlier ruling, I believe that I was wrong to permit the authorising officers to give evidence of whether they were satisfied on reasonable grounds. Given the terms of s 15HZ and the judgments to which I will turn in a moment relevant to Ground 3, I should have limited the evidence to whether the authorising officers were satisfied of the matters in s 15GI(2). For that reason, I will first approach this ground based upon what appears on the face of the two authorities and without regard to the evidence of the two authorising officers.

   Whether the officers were required to ask themselves whether their satisfaction was on reasonable grounds before granting the authorities

4. As I have understood the submission of the defendants and the ground as drafted, the contention is that there is a difference between being ‘satisfied by information given to me’ and being ‘satisfied on reasonable grounds’. From that premise the defendants submit that the authorities establish that the authorising officers were not satisfied on reasonable grounds. The submission and ground as drafted are premised on the authorising officers needing to be subjectively ‘satisfied on reasonable grounds’ at the time of granting the respective authorities. In this way, the defendants submit that the words ‘satisfied by information given to me’ on the face of each authority is the evidence to the contrary of the presumption of regularity created by s 15HZ and is the evidence which establishes jurisdictional error.

5. I commence with whether the premise of a need for subjective satisfaction on reasonable grounds is correct.  In my view, it is not. 

6. In advancing the submission, the defendants rely upon the following statement of the High Court in George v Rockett:[14] 

   When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example Attorney-General v. Reynolds.[15]  Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.[16] 

   [14] (1990) 170 CLR 104 (‘George’). 

   [15] (1980) A.C. 637.

   [16] George, 112.

7. However, the above statement is not to be understood as requiring the authorising officers to be subjectively satisfied on reasonable grounds.  

8. Statutes which confer a power conditioned on the existence of reasonable grounds for a state of mind such as satisfaction are common.[17]  As set out in George, what is required is ‘the existence of facts which are sufficient to induce that state of mind in a reasonable person’. That is not to be understood as meaning that a person granting an authority must ask themselves whether the grounds which cause them to be satisfied of the matters in s 15GI(2) are reasonable grounds. Put another way, an authorising officer is not required to examine their state of satisfaction and determine if it is reasonable. That obligation cannot be reconciled with the test being objective. As Gleeson CJ and Kirby J noted in McKinnon v Secretary, Department of Treasury: 

   The statutory formula … is widely used.  The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds.[18] 

   [17] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 429 [9]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403, [84].

   [18] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 429 [10] citing Bradley v The Commonwealth (1973) 128 CLR 557, 574–575.

9. The above is consistent with the terms of s 15HZ. Section 15HZ establishes a presumption ‘that the person granting the authority was satisfied of the facts he was required to be satisfied of to grant the authority’. The presumption created is not of satisfaction on reasonable grounds.

10. When the exercise of the power of a decision maker is conditioned on the existence of reasonable grounds for a state of mind of a decision maker, the task of the Tribunal or Court reviewing the exercise of that power is to examine the material before the decision maker and examine whether that decision maker did not have reasonable grounds.  If they did not, the decision is invalid.  As Lovell J held in R v M, I:[19] 

    Where a statute prescribes that there must be ‘reasonable grounds’ for a state of mind including a ‘suspicion’ it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person … [In] answering the question of whether the information afforded reasonable grounds … regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.[20] 

    [19] [2018] SASC 24.

    [20] Ibid, [97].

11. As I understand it, whether there existed facts sufficient to induce satisfaction in a reasonable person is not a matter sought to be advanced under Ground 3.  That issue is the subject of Grounds 22–24 inclusive.  I will deal with those grounds later. 

12. For the above reasons, the words ‘satisfaction by information given to me’ on the face of the authorities does not establish the jurisdictional error for which the defendants contend. The authorising officers were empowered to grant the respective authorities if they were satisfied of the matters in s 15GI(2). What appears on the face of the respective authorities establishes, in the absence of evidence to the contrary, that the authorising officers were so satisfied. Ground 3 must be dismissed for that reason.

13. Notwithstanding Ground 3 must be dismissed, as set out above, I erroneously permitted the authorising officers to give evidence of their subjective state of satisfaction.  Although I have ignored that evidence in dismissing Ground 3, as a matter of completeness, I will refer to some aspects of the evidence of the authorising officers. 

    The evidence of the authorising officers

14. The two authorising officers provided affidavits which were admitted into evidence.[21] The affidavits were prepared after the defendants had raised the contention based upon the words ‘satisfied by information given to me’ and in the expectation that the prosecution would seek to call the authorising officers. Both authorising officers also gave oral evidence. As I have said, at best, any evidence should have been limited to whether the authorising officers were satisfied of the matters in s 15GI(2).

    [21]  Affidavit of Deputy Commissioner Gaughan dated 31 August 2022 – VD P20; Affidavit of Deputy Commissioner McCartney dated 31 August 2022 and annexures – VD P33.

15. The two authorities were not drafted by the relevant authorising officer.  The drafts, which were not amended by the authorising officers before being signed, were prepared by the officers who made the applications for each authority.  For the first authority, the applicant was Detective Superintendent Kelly Mansfield (DS Mansfield).  For the second authority, the applicant was Leading Senior Constable Collins (LSC Collins). 

    The evidence of DC Gaughan

16. DC Gaughan said his affidavit was true and correct to the best of his knowledge and belief.[22] 

    [22] Gaughan T1484.

17. In his affidavit sworn 31 August 2022 DC Gaughan states:[23] 

    [37]I have recently reviewed the Formal Authority.  Where that document refers on page 2 to me being ‘satisfied by information given to me’, I confirm this means I was satisfied on reasonable grounds of the matters outlined in paragraphs (a) - (h) below that sentence in the Formal Authority prior to authorising the Application.  This is based not only on my recollection of the test I applied in this particular instance but also on my training and experience as outlined in this affidavit. 

    [23] VD P20.

18. During his evidence in chief, DC Gaughan was taken to the passage within that authority within which the words ‘satisfied by information given to me’ appear.  He gave the following evidence:[24] 

    [24] Gaughan T1494-1495. 

    QCould you just read that through to the end of the line for me.

    A'I, Deputy Commissioner Neil Gaughan, AFP Deputy Commission Operations, as [sic] satisfied by information given to me.'

    QWas that the task you undertook.

    AAbsolutely.

    QAnd satisfied by information given to you, what were you satisfied of.

    AThat that criteria had been met.

    QAnd on what basis.

    AFrom (a) to (h).

    QAs part of the training that you mention in your affidavit that you undertake you understand the task involved.

    ACorrect.

    QAnd what is the task involved.

    AWell, to be satisfied on reasonable information provided to me that the criteria is met and a major controlled operation can be issued.

    QI go back to that sentence in the authority. It doesn't use the words 'reasonable information' which you just used, does it.

    ANo, it doesn't.

    QWere you satisfied on the basis of reasonable information.

    AI was. And the training is very specific in relation to –

    His Honour

    QReasonable grounds isn't it?

    Counsel

    QIt is if your Honour pleases. I was just using the witness's words.

    His Honour

    QSorry, I apologise.

    DC Gaughan

    ACertainly the training does talk about the issue around reasonable grounds being required. And I had undertaken the training seven months prior to the application being authorised.

    Counsel

    QIs it the case that you had reasonable grounds.

    AAbsolutely.

    QYou just failed to pick up -

    ANot just myself but a number of people had failed to pick up.

    QYou say, 'a number of people had failed to pick up', can you explain that to his Honour.

    AThe document had been through the controlled operations committee where three people oversighted the document, it had been to the manager or its commander Organised Crime, it had also been to the Assistant Commissioner Organised Crime prior to its finding its way to me.

19. In cross-examination, DC Gaughan confirmed that, as set out in his affidavit, he considered the application for six days before granting it.[25]  He denied taking that time because of an absence of satisfaction.  He said that time was taken because of the unique nature of the matter and the importance of giving it due consideration.[26]  DC Gaughan conceded his memory of signing the authority was ‘not perfect considering it was a considerable period of time ago’ but said he was ‘pretty clear’.[27]  DC Gaughan conceded that aspects of his memory may have been ‘reconstructed’.[28] 

    [25] Gaughan T1532.

    [26] Gaughan T1523.

    [27] Gaughan T1534. 

    [28] Gaughan T1535. 

    The evidence of DC McCartney

20. DC McCartney said his affidavit was true and correct to the best of his knowledge and belief.[29] 

    [29] McCartney T1562.

21. The affidavit of DC McCartney sets out:[30]

    [26]In light of the concern raised by Counsel for an Operation Ironside accused at the Directions Hearing, I have recently reviewed the Formal Authority in order to prepare for this affidavit. I note on page 2 of the document it states that I was ‘satisfied by information given to me’. Noting my extensive experience and training, as well as my recollection of the Application, I confirm when determining whether to authorise the Application, I applied the legislative test outlined in section 15GI(2) of the Crimes Act and I was satisfied on reasonable grounds of the matters listed in paragraphs (a)-(h) outlined on pages 2 and 3 of the Formal Authority.

    [30] VD P33.

22. In his oral evidence, DC McCartney stated the ‘test’ he applied was that he was ‘satisfied on reasonable grounds’.[31]  In cross-examination, DC McCartney accepted it had been a significant time since he granted the relevant authority and his memory may not be as good as it was when that authority was granted.[32]  In cross-examination, DC McCartney maintained he ‘applied the test of reasonable grounds’.[33] 

    [31] McCartney T1568–1569. 

    [32] McCartney T1618. 

    [33] McCartney T1619–1620. 

    The submissions of the defendants

23. On the assumption the evidence of the authorising officers as to their subjective state of mind when granting the respective authorities was relevant and admissible, the defendants submitted it was self-serving and should be given no weight.  On that approach, I am left with what appears on the face of each authority.  For reasons already given, what appears reveals neither an error on the face of the record nor jurisdictional error. 

24. The only other possible approach is that the evidence of the officers reveals that they were not satisfied of the essential matters in s 15GI(2) before granting the respective authorities. Put another way, that the evidence to the contrary required by s 15HZ is the affidavit and/or oral evidence of the relevant authorising officer. To the extent the defendants may be understood to submit the authorising officers were not satisfied of the matters in s 15GI(2), I am satisfied that each officer was so satisfied. First, their state of satisfaction is set out on the face of the authority. Second, having seen the officers give evidence, I have no doubt they were both honest witnesses who took their obligations seriously. I have no doubt each considered the material before them and were satisfied of the matters in s 15GI(2). Third, it is not necessary to determine whether they were subjectively satisfied on reasonable grounds or subjectively satisfied on information given to them. Satisfaction on reasonable grounds and satisfaction on information given both involved the respective officers being satisfied. It follows that on either approach, they were subjectively satisfied of the matters in s 15GI(2). As I have said above, whether there were facts sufficient to adduce satisfaction in a reasonable person is a separate issue and is the subject of Grounds 22–24.

    Grounds 4, 5, 6, 7 and 8

25. These grounds may be dealt with together and are in the following terms:

    4.    Section 15GI(2)(a): There is no evidence that, at the time he issued the first authority, the issuing officer had any or any sufficient information that a serious Commonwealth or State offence with a federal aspect had been, was being, or was likely to be committed.

    5.    Section 15GI(2)(b): There is no evidence that, at the time he issued the first authority, the issuing officer had any or any sufficient information that a serious Commonwealth or State offence with a federal aspect had been, was being, or was likely to be committed and therefore he had no or no sufficient basis upon which to conclude that the nature and extent of that activity was such as to justify the conduct of a controlled operation of the type applied for by the applicant, Superintendent Kelly Mansfield.

    6.    Section 15GI(2)(c): There is no evidence that, at the time they issued the authorities, the issuing officers had any means of determining that any unlawful conduct involved in conducting the operation would be limited to the maximum extent consistent with conducting an effective controlled operation.

    7.    Section 15GI(2)(d): There is no evidence that, at the time they issued the authorities, the issuing officers had any means of determining that the operation could be conducted in such a way that, to the maximum extent possible, any illicit goods involved in the operation would be under the control of an Australian law enforcement authority at the end of the operation.

    8.    Section 15GI(2)(f): There is no evidence that, at the time they issued the authorities, the issuing officers had any means of determining that, but for the AFP making available ANOM devices and an encrypted communications platform, persons using such devices might not otherwise have committed the offences they did. Alternately, there is no reason to think that persons who used the ANOM devices to commit offences would have committed such offences without access to the functionality offered by the ANOM Platform.

26. Grounds 4–8 include contentions that there ‘is no evidence that, at the time they issued the authorities [DC Gaughan and DC McCartney] had any means’ of being satisfied of identified limbs s 15GI(2) of the CA. The limbs identified within the grounds are ss 15GI(2)(a)–(d) and (f).

27. With respect to Grounds 4–8, the contentions the authorising officers had no means of being satisfied of the relevant matters, that there is ‘no evidence’ they were satisfied or that there was ‘no reason to think’ a certain matter, must be rejected. Section 15HZ provides that, in the absence of evidence to the contrary, each authority is evidence the authorising officer was satisfied of the facts he was required to be satisfied of to grant the authority. As set out above, each authority sets out the relevant authorising officer was satisfied of each of the matters in s 15GI(2)(a)–(h). In the absence of evidence the authorising officers were not satisfied of the matters in s 15GI(2), of which in my view there is none, the contentions identified within Grounds 4, 5, 6, 7, and 8 must be dismissed for that reason alone. Further, as set out above under Ground 3, the evidence of the authorising officers provides further confirmation of each authorising officer being satisfied of the matters in s 15GI(2)(a)–(h).

28. In so far as Grounds 4–8 assert that the authorising officers had ‘insufficient’ information, that is a challenge to the merits of the relevant decision.  That is not a permissible challenge on a collateral attack to a controlled operation authority.[34] 

    [34] Murphy v The Queen (1989) 167 CLR 94, 105–106; Ousley, 80, 87, 126–127.

    Grounds 9 and 10

29. Grounds 9 and 10 are in the following terms: 

    9.Section 15GI(2)(g): The issuing officers ought never to have approved the operation because by its nature and plan, it was or should have been obvious that the controlled operation would:

    a.     Seriously endanger the health or safety of persons using the devices;

    b.    Seriously endanger the health or safety of people in society insofar as the operation facilitated the distribution of harmful and dangerous drugs into society and by design it was not intended to disrupt such distribution;

    c.     Serious put at risk the life of people who used the ANOM devices.

    10.Section 15GI(2)(h): The issuing officers ought not to have approved the conferral of a role on any civilian in the operations because the role played by such civilians could have been performed by law enforcement officers who were members of the staff of the AFP.

1. I mention a further matter. Some of the submissions of the defendants with respect to Ground 15 sought to draw on the wording of some of the controlled conduct in which CHS was authorised to engage being expressed as ‘[with/to] the targets and/or others identified and as yet unidentified’. The defendants contrasted those words to the words ‘representatives or associates’ of the two named targets in the first authority. I reject that it is useful to draw upon the description of controlled conduct said to be authorised by an authority to determine whether there has been compliance with s 15GK(1)(g).

2. For the above reasons, I dismiss Ground 15. 

   Ground 16

3. Section 15GK(1)(k) provides:

   (1)     A formal authority must:

   (k)     identify the following details (to the extent to which they are known and are relevant):

   (i)the nature and quantity of any illicit goods that will be involved in the controlled operation;

   (ii)the foreign countries through which those goods are likely to pass in the course of the controlled operation;

   (iii)the place or places at which those goods are likely to be dealt with by an officer of Customs;

   (iv)if subparagraph (iii) does not apply—the place or places where those goods are likely to enter into Australia;

   (v)the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs.

4. Illicit goods are defined in s 3 to be mean ‘goods the possession of which is a contravention of a law of the Commonwealth, State of Territory’. 

5. The defendants submit the authorities did not comply with s 15GK(1)(k) as the illicit goods set out in the authorities were limited to ‘currency’, ‘illicit funds’ and ‘encrypted communication devices’. The defendants submit validity required reference to ‘border controlled drugs’ as before each authority was granted, the AFP contemplated drugs would be imported and trafficked. The existence of that contemplation must be accepted. Each authority expressly set out that such offences were among the offences being investigated. In addition, the defendants again direct attention to the final sentence in the box with respect to CHS in each authority. Namely, the sentence beginning with ‘By virtue’ which refers to the importation and trafficking of controlled drugs.

6. The applicant for the first authority, DS Mansfield, provided the only evidence which might be relevant to this aspect of either authority.  His evidence as to why drugs were not set out in the first authority, which was drafted by him, was:[50] 

   They are not illicit goods for which I was seeking controlled conduct to be had over … I wasn’t proposing or seeking for any of the persons listed in the application … to be approved to conduct controlled conduct relating to illicit drugs. 

   [50] Mansfield T616–617.

7. While the evidence of DS Mansfield may explain why this approach was taken to this aspect of the drafting of the first authority, it is not of assistance on the question of whether there was a failure to comply with s 15GK(1)(k).

8. The defendants submit the words within s 15GK(1)(k)(i), ‘involved in the controlled operation’, are broad and capture any illicit goods which may be imported or handled by any person during the controlled operation, including targets. The defendants submit those words are not limited to goods imported, or handled, by a participant named in the authority in accordance with s 15GK(1)(f). The Director submits to the contrary. The Director submits that s 15GK(1)(k) is directed to goods which may be imported or handled by a participant, not to illicit goods which may be imported or handled by others. The Director submits there is no evidence that controlled drugs were to be imported or handled by a participant. The Director submits that construction of s 15GK(1)(k) is consistent with s 15HM(2) of the CA which obliges the Chief Officer to report on certain matters every six months. With respect to ‘illicit goods’ s 15HM(2)(q) provides:

   (2)The report must include the following details:

   …

   (q)     if any of the controlled operations involved illicit goods, a statement (to the extent known) of:

   (i)the nature and quantity of the illicit goods; and

   (ii)the route through which the illicit goods passed in the course of the operations; and

   (iii)all foreign countries through which the illicit goods passed in the course of the operation;

9. With respect to narcotic goods s 15HM(2A) provides:

   (2A)If the controlled operation involved illicit goods that are narcotic goods, the report is to:

   (a)    identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and

   (b)    identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and

   (c)    state whether the narcotic goods have been destroyed; and

   (d)    if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.

10. The Director submits the above provisions in s 15HM are consistent with s 15GK(1)(k) being construed in a way that is limited to drugs handled or imported by a participant.

    Discussion

11. The words ‘involved in the controlled operation’ permit of more than one construction. A possible construction is consistent with the submission of the defendants. Nonetheless, I do not construe s 15GK(1)(k) as being directed to goods which are not the subject of controlled conduct by a participant. My reasons follow.

12. First, a main object of Part IAB is to provide certainty to participants as to the conduct in which they may engage without being criminally responsible for that conduct.[51]  The effect of an authority is to authorise the conduct which may be engaged in.[52] That main object, and that effect, are not advanced by s 15GK(1)(k) being construed as being directed to goods which will not be handled or imported by a participant. Second, while it must be accepted that an object of Part IAB is also to provide for the monitoring of controlled operations, such operations are forward looking. That the conduct of targets is unlikely to always be predicted with certainty is more consistent with s 15GK(1)(k) being directed to the conduct of participants than the conduct of targets. Third, s 15GK(1)(k)(i) is to be construed in the context of the balance of s 15GK(1)(k)(ii)–(v). Section 15GK(1)(k)(ii)–(v) demand, to the extent known, considerable specificity. In my view, those demands are far more consistent with what will be known when a participant is to handle or import illicit goods at the time that a controlled operation is approved. Those demands are not consistent with being directed to what a target may do. A controlled operation is directed to events in the future and the conduct of a target may not be predicted with certainty.

    [51] CA, s 15G.

    [52] CA, s 15GZ.

13. For the above reasons, I reject that the authorities are invalid as they failed to comply with s 15GK(1)(k).

14. I make a further observation as a matter of completeness. The authorities must be read as a whole. Each authority set out the offences being investigated. Four of the offences in each authority contain references to ‘controlled drugs’. That may be regarded as sufficient to satisfy s 15GK(1)(k)(i). In the absence of evidence that something more was known at the time each authority was granted which may have allowed the specificity demanded in s 15GK(1)(k)(ii)–(v) to be met, when both authorities are read as a whole, s 15GK(1)(k) may be thought to be satisfied even if the construction urged by the defendants of that sub-section is correct as it only requires this information to be in the authorities ‘to the extent known [and relevant]’. Given the construction of s 15GK(1)(k) which I have preferred, it is unnecessary to consider that further.

    Ground 16A

15. Ground 16A is in the following terms: 

    The First and/or each of the Second to Twelfth Extensions could not, or could not reasonably, have been granted by the ordinary person consistently with the requirements of Part IAB of the Crimes Act 1914 (Cth) because the Authorities were required to “identify (to the extent to which they are known and are relevant) (a) the nature and quantity of any illicit goods that will be involved in the controlled operation and (b) the foreign countries through which those goods are likely to pass in the course of the controlled operation” but did not do so.

16. As I understand it, the above ground relies upon the construction of s 15GK(1)(k) for which the defendants contend. I dismiss Ground 16A for the same reasons given with respect to Ground 16.

    Ground 17

17. Ground 17 is in the following terms: 

    Section 15HA(2)(c): The authorities were granted or used for an unauthorised or improper purpose in that they involved the participants seeking to intentionally induce a person to commit a Commonwealth crime or a State offence which would not otherwise have been committed but for the availability of the device which the Australian Federal Police made available to them.

18. Section 15HA is set out earlier in these reasons. It provides controlled operation participants immunity from criminal responsibility in certain circumstances provided certain requirements are met. One of those requirements is compliance with s 15HA(2)(c). The defendants submit the provision of ANOM mobile phones was conduct which breached that sub-section.

19. I reject that either controlled authority was invalid on this basis. Section 15HA is directed to the circumstances in which a participant is not criminally responsible for an offence, not to the circumstances in which a controlled operation will be valid. Putting that aside, on the evidence and submissions to date, I am not satisfied any participant ‘intentionally induced’ a person to commit an offence the person ‘would not otherwise have intended to commit’. On the evidence and submissions to date, the relevant phones were provided in circumstances in which users were deceived into believing communications would be private. There was no inducement to use the phones for a particular purpose. The choice to use the phone, and the choice to use it to communicate about criminal activity (if that occurred), was the choice of the user.

    Ground 18

20. This ground is in the following terms: 

    Section 15HC: The authorities could never have been approved because the authorising officers failed or failed properly, to take into account there were other means available to the Australian Federal Police by which the operation could have been conducted in accordance with the law. 

21. The defendants did not make any submission in support of this ground.  The written submissions of the defendants received on/about 21 August 2022 assert it will be raised after documents are returned in answer to a subpoena.  As no submissions have been made in support of Ground 18, it is dismissed. 

    Grounds 19, 19A, 20–21 and 21A

22. Each of these grounds assert that the authorities were invalid as the operations involved the distribution of ANOM phones which functioned in a way which breached the Telecommunications (Interception and Access) Act 1979 (Cth) (TIAA). The contention the TIAA was breached has been dealt with in an earlier judgment.[53] 

    [53] R v TB and Anor [2023] SASC 45.

    Grounds 22–24

23. With respect to these grounds, the defendants submit the decisions to grant the authorities were unreasonable as the material before the authorising officers ‘is incapable of establishing that a reasonable decision-maker could have formed the state of satisfaction required’ by s 15GI(2). As I understand the submissions, the defendants direct particular attention to s 15GI(2)(c), (d), (e) and (g) (the specific subsections).

24. As set out above, the authorising officers gave evidence.  In addition, at least some of the written material before each officer was tendered in a redacted form.  With respect to DC Gaughan that written material was VD P21–VD P23.[54]  With respect to DC McCartney that written material was VD P34–VD P35.[55] Both officers were cross-examined about their consideration of specific subsections within s 15GI(2).[56]

    [54] VD P21 (Controlled Operations Committee Consideration Form); VD P22 (National Manager Organised Crime) and VD P23 (Formal Application for a Major Controlled Operation dated 25 September 2020). 

    [55] VD P34 (Formal Application for a Major Controlled Operation dated 16 September 2021); VD P35 (Controlled Operations Committee Consideration Form).

    [56] See for example: DC Gaughan T1539–1540, 1547–1549, 1550–1557; DC McCartney T1581–1582, 1585–1586, 1559–1560, 1601–1605. 

25. Further, I understand that I am to assume that drugs were imported into Australia and trafficked during Operation Ironside.[57]  There is no agreement that any law enforcement or civilian participant engaged in such conduct and in the absence of evidence and submissions about any evidence which may be relevant to that possibility, I am not prepared to assume that occurred.  Both authorising officers gave evidence about conduct they expected to occur using ANOM devices before they granted the respective authorities.  DC Gaughan agreed that at the time he granted the first authority he anticipated that drugs would enter Australia during the operation without being intercepted.[58]  DC McCartney said that before he granted the second authority, he knew that significant crimes had been committed using ANOM devices and he expected that conduct to continue.  He disagreed with the suggestion that the point of the operation was not to interfere with crimes and said that some information with respect to firearms, drugs and conspiracy to murder was disseminated to investigation agencies.[59]

    [57] T1387–1388. 

    [58] DC Gaughan T1549–1550. 

    [59] DC McCartney T1585–1586. 

26. The onus is upon the defendants.  Notwithstanding that onus, after the material before the authorising officers was tendered and both had been cross-examined, no submission was directed to that evidence.  The absence of any submission is despite me raising that the defendants had failed to engage with the evidence.  Having considered the material before the authorising officers and the evidence they gave, the defendants have not established that no reasonable decision maker could have granted the respective authorities. 

27. I dismiss Grounds 22–24. 

    Grounds 25–27

28. The submissions of the defendants with respect to these grounds are the same submissions with respect to alleged breaches of the Surveillance Devices Act 2004 (Cth) made in a separate interlocutory application referred to as Chapter 5. Chapter 5 will be dealt with separately.

    Ground 28

29. The contention in this Ground is the evidence obtained as a result of the use of ANOM devices breached the Surveillance Devices Act 2016 (SA). That contention is the subject of a separate interlocutory application referred to as Chapter 6. Chapter 6 will be dealt with separately.

    Ground 29

30. Ground 29 is in the following terms: 

    The variations to the first authority are invalid because they entail an impermissible delegation of power which is not permitted by the Act. In particular:

    a.     The variations provide at pg. 2: “I hereby vary controlled operation … authorise you to (b) authorise additional persons to engage in controlled conduct for the purpose of the controlled operation”;

    b.    By the first authority the Authorising Officer purports to delegate authority to the Principal Officer who then purports to further delegate to other persons;

    c.     This is contrary to the requirements of section 15G(3) of the Crimes Act which provides: “The authority to engage in controlled conduct given to a participant cannot be delegated to any person.”

31. In the variations DC Gaughan granted on 10 December 2018 and 13 December 2019, the following words appear:[60] 

    I hereby vary controlled operation authority AFP 19/19/24 to authorise you to:

    a)    extend the period of effect of the formal authority

    b)    authorise additional persons to engage in controlled conduct for the purposes of the controlled operation.

    c)    provide that specific persons are no longer authorised to engage in controlled conduct for the purposes of the controlled operation.

    d)    authorise participants in the controlled operation to engage in additional or alternative controlled conduct. 

    (Emphasis added)

    [60] VD D2, tab 2 and tab 14.

32. Immediately after the above words, are the words ‘As detailed below’ and then both variations set out: a named person(s) who is no longer authorised to engage in specific controlled conduct; named persons who are authorised to engage in specific controlled conduct; and a named person who is authorised to engage in specific ‘additional or alternative conduct’. 

33. The defendants submit the words ‘I hereby vary controlled operation authority 18-19/24 to authorise you to:’ (emphasis added) invalidate the two variations.  It is submitted the words emphasised purport to authorise the applicant for the variation to do the matters set out in (b)–(d).  The defendants submit the applicant for the variation could not be authorised to do those things.  Put another way, DC Gaughan could not delegate his power to vary the authority. 

34. The words ‘authorise you to’ should not have appeared in the two variations. Section 15GZ(3) provides that the ‘authority to engage in controlled conduct given to a participant cannot be delegated to any other person’. Nonetheless, I am not satisfied the variations are invalid for the reason submitted by the defendants. Each variation must be read as a whole. Given what followed the words ‘to authorise you to’, it is clear the variations authorised the variations set out above in (b)–(d). When the variations are read as a whole, it is clear DC Gaughan was not delegating the approval of any variation to another person. In the circumstances, the inclusion of the words ‘to authorise you’ do not invalidate the variation.

35. I dismiss Ground 29. 

    Ground 30

36. Ground 30 contends the grant of the authorities, and all extensions, were legally unreasonable. To the extent the Ground repeats matters already in Grounds 1–29, the contentions under those grounds are dealt with under those grounds. 

37. To the extent this Ground raises matters not dealt with under Grounds 1–29, I dismiss the ground. In an earlier ruling I held that if a collateral attack upon an authority granted pursuant to Part IAB were permissible on the ground of legal unreasonableness, on the submissions and evidence made at that time, I would not exercise the discretion to permit that attack.[61]  Since that ruling, the defendants have not made any further submission with respect to that issue. 

    [61] Ruling of Kimber J dated 10 November 2022, [26].

    Other alleged errors

38. There were no other grounds in Chapter 2. In an earlier interlocutory application which was superseded by Chapter 2, a further alleged error was advanced by the defendants. This alleged error was the subject of submissions before Chapter 2 was filed and may still be pressed by the defendants. For that reason, I will deal with it.

39. Each variation of the two authorities sets out that the person authorising the variation was satisfied on reasonable grounds ‘that any unlawful activity involved in the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation’ (emphasis added). The defendants direct attention to the use of the word ‘activity’ and contrast that to the word ‘conduct’ in s 15GQ(2)(c) and s 15GV(2)(c). Section 15GQ(2)(c) provides:

    (2)An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer’s own initiative, unless the authorising officer is satisfied on reasonable grounds:

    …

    (c)     that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

1. Section 15GV(2)(c) provides:

   (2)The nominated Tribunal member must not grant the variation unless the nominated Tribunal member is satisfied on reasonable grounds:

   …

   (c)     that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

2. The defendants submit the use of the word ‘activity’ in the variations rather than ‘conduct’ as in ss 15GQ(2)(c) and 15GV(2)(c) invalidates the variations. The defendants direct attention to the definition of ‘conduct’ for the purposes of the CA (i.e. – an act, an omission or a state of affairs) and submit conduct is different to the ordinary meaning of ‘activity’ which is not defined. The defendants submit that the ordinary meaning of ‘activity’ is ‘a thing a person or group does or has done’.

3. 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

4. Grounds 19–21A of Chapter 2 have been dealt with in an earlier judgment. Grounds 25–28 will be dealt with separately.

5. I dismiss the remaining grounds within Chapter 2.