R v TB (No 6)
[2023] SASC 140
•29 September 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TB & ANOR (No 6)
[2023] SASC 140
Judgment of the Honourable Justice Kimber
29 September 2023
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
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 defendants seek an order that evidence not be admitted.
The evidence the subject of this application was obtained during an Australian Federal Police investigation known as Operation Ironside through the use of warrants under the Surveillance Devices Act 2004 (Cth) (SDA). The defendants submit that by virtue of s 44 of that Act, the evidence is protected information and is prohibited from being used in their trial.
The Prosecution contends that the evidence is able to be admitted because it is a relevant proceeding under s 45(5)(c) of the SDA, being a proceeding which concerns the prosecution of an offence against a State that has a federal aspect. The definition of a State offence that has a federal aspect is found in s 4AA of the Australian Federal Police Act 1979 (Cth) (AFPA).
Held:
1.The application is dismissed. The communications may be admitted in the trial. The proceeding concerns the prosecution of State offences that have a federal aspect.
Criminal Law Consolidation Act 1935 (SA) ss 83D, 83E(1); Firearms Act 2015 (SA) ss 9, 29, 31, 32, 39; Surveillance Devices Act 2004 (Cth) ss 44, 45, 65B; Crimes Act 1914 (Cth) s 3E; Mutual Assistance in Criminal Matters Act 1987 (Cth); Australian Federal Police Act 1979 (Cth) s 4AA; Commonwealth of Australia Constitution Act (Cth) s 51; Serious and Organised Crime (Control) Act 2008 (SA), referred to.
Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; Victoria v The Commonwealth (1996) 187 CLR 416; The Commonwealth v Tasmania (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Le Mesurier v Connor (1929) 42 CLR 481, applied.
R v TB & ANOR [2023] SASC 45, discussed.
R v TB & ANOR (No 6)
[2023] SASC 140Criminal: Application—Chapter 5A and Chapter 13A
KIMBER J:
Introduction
TB and CD (the defendants) are charged with the offences particularised below. The Mr Wakefield mentioned is a former co‑accused. The absence of Counts 6 and 7 in the offences below is explained by the fact that only Mr Wakefield was charged with those offences.
First Count
Participation in a Criminal Organisation. (Section 83E(1) of the Criminal Law Consolidation Act, 1935).
Particulars of the offence
Rohan Peter Wakefield, TB and CD on or about the 12th day of January 2020 at Newton and other places in the State of South Australia, participated in a criminal organisation, namely, the Comancheros Motorcycle Club, in that Rohan Peter Wakefield, TB and CD did support the said organisation by storing and controlling access to a white Holden Commodore utility, bearing registration number S299 BOP, containing unlawful firearms and controlled drugs, knowing or being reckless as to whether it was a criminal organisation and knowing or being reckless as to whether his participation in that organisation contributed to the occurrence of any criminal activity.
Second Count
Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of the offence
Rohan Peter Wakefield, TB and CD on the 12th day of January 2020 at Newton, possessed a Category H firearm, namely a modified Bruni 9mm handgun, without holding a firearms licence authorising possession of that firearm.
Third Count
Possessing a Firearm Without a Licence. (Ibid).
Particulars of the offence
Rohan Peter Wakefield, TB and CD on the 12th day of January 2020 at Newton, possessed a prescribed firearm, namely a W.E. Ekins & Co sawn‑off shotgun, without holding a firearms licence authorising possession of that firearm.
Fourth Count
Possessing a Sound Moderator Without the Approval of the Registrar of Firearms. (Section 39(1) of the Firearms Act, 2015).
Particulars of the offence
Rohan Peter Wakefield, TB and CD on the 12th day of January 2020 at Newton, possessed a sound moderator without the written approval of the Registrar of Firearms.
Fifth Count
Possessing Ammunition Whilst not being the Holder of a Firearms Licence or a Permit granted by the Registrar of Firearms. (Section 31(1) and 31(12) of the Firearms Act, 2015).
Particulars of the offence
Rohan Peter Wakefield, TB and CD on the 12th day of January 2020 at Newton, possessed ammunition (PPMS 20/A12253-6, 7, 8, 9, 10, 72, and 102) whilst not being the holder of a firearms licence or a permit granted by the Registrar under s 31(1) and 32 of the Firearms Act 2015.
Eighth Count
Aggravated Possessing a Firearm Without a Licence. (Section 9(1) and 9(7) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a prescribed firearm, namely Steyr F88 self-loading rifle, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was in the immediate vicinity of ammunition suitable for use in that firearm.
Ninth Count
Aggravated Possessing a Firearm without a Licence. (Ibid).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category D firearm, namely a Colt AR-15 self‑loading rifle, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was in the immediate vicinity of ammunition suitable for use in that firearm.
Tenth Count
Aggravated Possessing a Firearm without a Licence. (Ibid).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category H firearm, namely a Glock 26 self‑loading handgun, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was in the immediate vicinity of ammunition suitable for use in that firearm.
Eleventh Count
Possessing a Firearm Without a Lawful Identifying Mark. (Section 29(5)(b) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category H firearm, namely a Glock 26 self‑loading handgun, which did not have an identifying mark that complied with the requirements of the Firearms Act 2015.
Twelfth Count
Possessing a Firearm without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category H firearm, namely a Strum Ruger & Co revolver, without holding a firearms licence authorising possession of that firearm.
Thirteenth Count
Possessing a Firearm Without a Lawful Identifying Mark. (Section 29(5)(b) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category H firearm, namely a Strum Ruger & Co revolver, which did not have an identifying mark that complied with the requirements of the Firearms Act 2015.
Fourteenth Count
Aggravated Possessing a Firearm without a Licence. (Section 9(1) and 9(7) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed a category H firearm, namely a DWM Luger P‑08 handgun, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was in the immediate vicinity of ammunition suitable for use in that firearm.
Fifteenth Count
Possessing Ammunition Whilst not being the Holder of a Firearms Licence or a Permit granted by the Registrar of Firearms. (Section 31(1) and 31(12) of the Firearms Act, 2015).
Particulars of the offence
TB and CD on the 12th day of January 2020 at Newton, possessed ammunition (PPMS 20/A12457‑6, 20/A12457‑10. 20/A12457‑11) whilst not being the holder of a firearms licence or a permit granted by the Registrar under s 31(1) and 32 of the Firearms Act 2015.
The evidence the subject of this application
Pursuant to r 39.1(d) of the Joint Criminal Rules 2022 (SA), the defendants seek the exclusion of what can be referred to as ANOM communications. This application is one of several interlocutory applications in this matter seeking exclusion of the ANOM communications. This application is referred to as Chapter 5A and Chapter 13A.[1]
[1] FDN 346.
In relation to the background of the investigation which resulted in the development of the ANOM communication application, it is sufficient to adopt what was set out in an earlier judgment with respect to another interlocutory application:
In approximately March 2018, officers within the Organised Crime section of the Australian Federal Police (AFP), in concert with the Federal Bureau of Investigation (FBI) in the USA, took overt action in respect of a joint investigation called Operation Safecracking. Operation Safecracking was aimed at a dedicated encrypted communications provider known as Phantom Secure. Phantom Secure was a Canadian company which provided a dedicated encrypted communications platform which enabled secure communications. Platforms which provide secure communications were trusted by those involved in criminal activity.[2] As a result of action being taken in respect of Phantom Secure (effectively shutting it down and arresting its owner), the AFP became aware that another application called ANOM, which also intended to provide end to end encryption, was being developed by a person associated with Phantom Secure. That person may be referred to as a confidential human source (CHS).
[2] DS Mansfield T497.
The AFP, having become aware of the ANOM application, recognised it presented an opportunity. In the view of at least the AFP and the FBI, that opportunity was the possibility of attempting to lawfully obtain communications between users of the ANOM platform.[3] The AFP sought to establish whether a capability could be injected into the ANOM application to enable law enforcement monitoring of communications using the application.[4] It was that capability which ultimately resulted in the AFP obtaining the evidence the subject of this interlocutory application.
The capability sought by the AFP was developed in liaison with CHS and with the assistance of a person within the AFP referred to in these proceedings as CIN 325.[5] An officer within the Organised Crime section of the AFP was Detective Superintendent Mansfield (DS Mansfield). DS Mansfield led the initial stages of what became Operation Ironside and, with CIN 325 and others, ensured that the ANOM application was modified to suit the capability requirements of the AFP, which were to be able to obtain a copy of all the communications passing between users of the ANOM application.[6]
CIN 325 is a special member of the AFP.[7] CIN 325 was asked by DS Mansfield to ascertain the veracity of claims made by CHS with respect to the ANOM application.[8] CIN 325 communicated with CHS and other developers working with CHS from April 2018 through to June 2021. CIN 325’s role was, among other things, to ensure that the AFP’s desire to collect and retain communications was built into the functionality of the ANOM application.[9]
CIN 325 met with CHS more than once between April 2018 and April 2019. He did so in company with DS Mansfield and other AFP officers.[10] CIN 325 and CHS also communicated online. In May 2018, CIN 325 commenced testing a ‘proof of concept’ provided by CHS for access, collection and decryption of messages which had been sent using the ANOM application. The proof of concept demonstrated the ability for handsets with the ANOM application to covertly send communication content to a party other than the person(s) to whom the user thought a communication was being sent.[11] CIN 325 has described that realisation as a ‘pivotal moment in the progress of Operation Ironside’.[12] Between June and September 2018, CIN 325 had ‘almost daily communications’ with CHS. [13]
As the ANOM application was being further developed toward the goal of covertly sending communication content to a party in addition to the person(s) to whom the user thought the communication was being sent, steps were taken to enable devices to be distributed once the ANOM application was developed to a point where it could be deployed. In order to permit the ANOM enabled devices to be distributed to potential users when the expectation was the devices distributed would be used by people engaged in criminal activity, the AFP sought and obtained an authorisation for a major controlled operation (MCO) within the meaning of s 15GD of the CA. The first MCO was authorised by Deputy Commissioner Gaughan of the AFP on 25 October 2018. The second MCO was authorised by Deputy Commissioner McCartney of the AFP on 25 October 2020. The operation was named Operation Ironside. The legality of the two MCO’s and other issues relating to those MCO’s are the subject of other interlocutory applications.
The phones provisioned and distributed were mobile phones which ran on the Android Operation System (AOS). Disabled from those phones were the usual features of a mobile phone such as the ability to make standard telephone calls, send standard messages and access the internet via standard applications. The phones were readied for the installation of the ANOM application by the end user by installing Mobile Data Management (MDM) software (FieldX or MobileIron). That software enabled the ANOM application to be administered and managed as selected by the administrator. It also included the capacity to delete the data on the phone by an external administrator.
Provisioned phones were distributed in Australia from about 16 October 2018. CIN 325 has deposed that he/she organised for the distribution of Android mobile devices to be provided to named people identified by CHS between January and May 2021. CIN 325 has deposed to having distributed 921 provisioned mobile devices to 21 named persons and/or entities in different States in Australia.[14]
The development of the ANOM application enabled the AFP to receive data from ANOM. That data included a record of text messages, photos and voice memos sent between users, as well as additional data retrieved from the ANOM‑provisioned phone such as username, a unique message ID, the International Mobile Equipment Identity (IMEI) attached to the telecommunications device, the Mobile Country Code (if the device was using a SIM card), location data (from about April 2020),[15] audio pitch adjustment, and quoted or forwarded messages, all of which was transmitted over a telecommunications system to the user(s) selected by the sender of the message. The IMEI is a unique 15-digit number assigned to phones when they are manufactured.[16]
The operation of the ANOM application may be described in the following way. An ANOM user (A) would prepare a message for another ANOM user(s) (B). The message A intended to send to B would be sent, but after A had typed a message (or attached a photo or voice memo) and pressed the ‘send’ button intending to send the message to B, the data in A’s message was copied (i.e. – recorded) to create a separate message before the message to B was encrypted and sent. That is, as a result of pressing the send button, the message created by A, as well as the additional data including A and B’s usernames, location data and so on, was re-packaged (as packets of information) and, as with A’s message to B, transmitted as a separate message over a telecommunication system via an Extensible Messaging and Presence Protocol (XMPP) server. An XMPP server is a server functioning as an instant messaging protocol. XMPP is an ‘open source’[17] instant messaging protocol. The XMPP server used the same Transport Layer Security (TLS) channel that was used to send the message A intended to send to B. As A intended, the message created by A would be sent to B. However, without the knowledge of A or B, a separate message (a copy of A’s message to B with some additional data) would be sent to the servers in NSW which were able to be accessed by the AFP.
What the ANOM application enabled was a means of recording and retrieving encrypted messages (and additional data) that were able to be decrypted by the AFP because it had the relevant ‘key’ for decrypting the data which had been encrypted by the ANOM application and which remained encrypted until its receipt at the servers in NSW. The AFP’s capacity to receive the copy of A’s message (with additional data) and unlock the encryption so it could read and interpret the message the application had copied was the product of the programming of the ANOM application.[18]
[3] DS Mansfield T502-503.
[4] DS Mansfield T502.
[5] See DS Mansfield T502; T506.
[6] DS Mansfield T508.
[7] Affidavit of CIN 325 dated 23 May 2022, [1] – VD P46.
[8] Affidavit of CIN 325 dated 23 May 2022, [6] – VD P46; see also Affidavit of CIN 325 dated 1 July 2022, [14] – VD P46.
[9] Affidavit of CIN 325 dated 23 May 2022, [8] – VD P46.
[10] See Affidavit of CIN 325 dated 1 July 2022 [17], [20], [22], [24] – VD P46.
[11] Affidavit of CIN 325 dated 1 July 2022, [29] – VD P46.
[12] Affidavit of CIN 325 dated 1 July 2022, [29] – VD P46.
[13] Affidavit of CIN 325 dated 1 July 2022, [21] – VD P46.
[14] See Affidavit of CIN 325 dated 23 September 2022, [27]-[131].
[15] Affidavit of Matthew Lindsay Smith dated 22 July 2021, [69(d)].
[16] Ibid, p 43.
[17] ‘Source code’ is software code available to all developers – Professor Seneviratne T698.
[18] R v TB & ANOR [2023] SASC 45, [5]–[15].
The copy messages were received by both servers in New South Wales (NSW) operated by Google and a server located overseas. A subset of the data received by the servers in NSW was obtained by the AFP through the use of an Application Programming Interface (API) which was able to select, verify and download data from the NSW servers operated by Google to the AFP retrieval servers.[19] This subset was obtained pursuant to surveillance device and computer access warrants issued under the Surveillance Devices Act 2004 (Cth) (SDA) (the first dataset). The first dataset is the evidence the subject of this interlocutory application.
[19] T1779, T2182–3; VD-P16, Report of Yogeshkumar Khatri (30 September 2022), 14.
The dataset from the servers operated by Google in NSW has also been obtained pursuant to warrants under s 3E of the Crimes Act 1914 (Cth) (CA) (the second dataset). The dataset from the server located overseas was obtained pursuant to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth), from the Government of the United States of America (USA) (the third dataset). The evidence the subject of the second and third datasets is not the subject of this interlocutory application.
The contentions in this application
In this application, the defendants contend:
1.They are not charged with any offences that are ‘relevant offences’ as defined by s 6 of the SDA, namely, ‘an offence against the law of the State that has a federal aspect that is punishable by a maximum term of imprisonment of three years or more or for life’;
2.The prosecution is not a ‘State or Territory relevant proceeding’ within the meaning of s 45(9) of the SDA; and
3.The prosecution is thus prohibited from admitting at trial, pursuant to s 45(3) of the SDA, the evidence of the ANOM communications (the ‘protected information’)[20] in the first dataset.[21]
[20] See Section 44 of the SDA.
[21] Surveillance Device Warrant SD7584 and Computer Access Warrant SDC0020 admitted as VD P3.
The legislative framework
There is no dispute the ANOM communications in the first dataset are ‘protected information’. Section 44(1)(a) and (aa) of the SDA provide that information obtained from the use of a surveillance device under a warrant or under a computer access warrant is protected information.
Sections 45(1) and (2) provide for a general prohibition against the use, recording, communication or publication of protected information punishable by criminal sanction. Section 45(3) provides that protected information may not be admitted in evidence in any proceeding, subject to certain exceptions within ss 45(4) and (5) and s 65B. Section 65B is not relevant in this application.
Relevant to this application, s 45(4)(a) provides:
(4)Subsections (1), (2) and (3) do not apply to:
(a) the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully.
Section 45(5) sets out more than one exception. The exception which may be relevant in this case is within s 45(5)(c) which provides:
(5)Protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:
…
(c) a relevant proceeding (not including a relevant proceeding in respect of a relevant offence referred to in paragraph (d) or (i)) or a State or Territory relevant proceeding.
Paragraphs (d) and (i) are not relevant to this application.
Relevant to this application, ‘relevant offence’ is defined in s 6 to mean ‘an offence against a law of a State that has a federal aspect and that is punishable by a maximum term of imprisonment of 3 years or more or for life’.
Section 45(9) defines a ‘State or Territory relevant proceeding’ to include:
(a) The prosecution of a State or Territory relevant offence.
Section 45(9) defines a ‘State or Territory relevant offence’ as follows:
State or Territory relevant offence means a relevant offence against the law of a State or self‑governing Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life.
The offences in these proceedings are offences against laws of a State (i.e. – South Australia). Counts 1–3 and 8–14 inclusive are punishable by a maximum of imprisonment of three years or more. In this application, the prosecution concedes that Counts 4, 5 and 15 are not ‘relevant offences’ as the maximum penalties for each of those three offences is less than three years’ imprisonment. The parties agree that whether the ANOM communications can be used in a trial of those three offences is not an issue that I need resolve in this application. In this application, I am only concerned with the admissibility of the ANOM communications in a trial of Counts 1–3 and 8–14.
The issue in this application
In order for the ANOM communications the subject of this application to be admissible in these proceedings, Counts 1–3 and 8–14 must be offences against the law of South Australia that have a federal aspect.[22]
[22] SDA s 6 (definition of ‘relevant offence’)(b).
Section 7 provides for what is taken to be a State offence that has a federal aspect. That section provides:
An offence against a law of a State is taken, for the purposes of this Act, to be a State offence that has a federal aspect:
(a)in a case where the offence is being investigated by the Australian Federal Police—if it would be taken to be a State offence that has a federal aspect under section 4AA of the Australian Federal Police Act 1979; and
(b)in a case where the offence is being investigated by the Australian Crime Commission—if it would be taken to be a State offence that has a federal aspect under section 4A of the Australian Crime Commission Act 2002; and
(c)in any other case—if it would be taken to be a State offence that has a federal aspect if either of the sections referred to in paragraphs (a) and (b) were to apply.
The prosecution submits it is only s 7(c) that may have application to this matter. Given the evidence was provided as a result of an AFP investigation, the relevant definition of a State offence that has a federal aspect is that which is found in s 4AA of the Australian Federal Police Act 1979 (Cth).
The Australian Federal Police Act 1979 (Cth) (AFPA)
Section 4AA(1A) of the AFPA defines the object of that provision:
Object
(1A)The object of this section is to identify State offences that have a federal aspect because:
(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
Section 4AA(1) of the AFPA provides the circumstances in which a State offence will have a federal aspect:
State offences that have a federal aspect
(1)For the purposes of this Act, a State offence has a federal aspect if, and only if:
(a) both:
(i)the State offence is not an ancillary offence; and
(ii)assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(b) both:
(i)the State offence is an ancillary offence that relates to a particular primary offence; and
(ii)assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
(d) both:
(i)the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and
(ii)if the Australian Federal Police is investigating, or were to investigate, the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).
The prosecution position
The prosecution submits the federal aspect arises in three ways, permitting admission of relevant evidence pursuant to s 45(5)(c) of the SDA.
First, for Count 1 only, pursuant to s 4AA(1)(a) of the AFPA. Count 1 charges the offence of Participation in a Criminal Organisation, contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is submitted that had the Commonwealth Parliament enacted the provision, it would be a valid law of the Commonwealth given the Commonwealth Parliament has the legislative power to make laws with respect to criminal organisations.
Second, for all counts the subject of this application, pursuant to s 4AA(1)(c), by reason that s 4AA(3)(e) provides that a State offence is taken to be covered by s 4AA(1)(c) if the conduct constituting the offence ‘involved an electronic communication’. It is submitted that on the facts alleged by the prosecution in each of the offences charged, the conduct constituting the specific acts alleged to have been engaged in by the accused involved an electronic communication thereby giving each offence its federal aspect.
Third, for all counts the subject of this application, pursuant to s 4AA(1)(d) which provides that a State offence will have a federal aspect if both (i) the AFP is investigating an offence against the law of the Commonwealth or a Territory and (ii) if the AFP is investigating or were to investigate the State offence, that investigation is, or would be, incidental to the investigation referred to in (i). It is submitted the offending the subject of the proceedings before me was unearthed as an incident of Operation Ironside and as such, the State firearms offences have a federal aspect by virtue of being incidental to the investigation of Commonwealth offences.
Discussion
I will begin with the third contention of the prosecution.
Section 4AA(1)(d)
Section 4AA(1)(d) is set out above.
On the material before me, the AFP was investigating several offences against laws of the Commonwealth. The offences being investigated by the AFP are set out in the same terms in both Major Controlled Operation Authorities (the authorities), namely:
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. [23]
[23] VD D2.
There is no dispute that s 4AA(1)(d)(i) is satisfied. The AFP was investigating an offence against a law of the Commonwealth.
The issue is s 4AA(1)(d)(ii) and whether, if the AFP were to investigate the State offence, that investigation would be incidental to the investigation mentioned in subparagraph (i). The word ‘incidental’ is not defined in the AFPA.
In so far as I have been able to ascertain, there is no authority which has considered the meaning of ‘incidental’ in the context of s 4AA(1)(d). A starting point is that it should be given its ordinary meaning. The Macquarie Dictionary defines incidental as ‘happening or likely to happen in fortuitous or subordinate conjunction with something else’.[24] The Oxford English Dictionary defines incidental as ‘occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part; casual’.[25]
[24] Macquarie Dictionary (online at 5 September 2023) ‘incidental’ (def 1).
[25] Oxford English Dictionary (online at 5 September 2023) ‘incidental’.
In the context of s 51(xxxix) of the Constitution which confers upon the Parliament ‘power to make laws… with respect to matters incidental to the execution of any power vested by this Constitution in the Parliament… or in the Federal Judicature’, it has been held that something ‘incidental’ to that power is ‘something which attends or arises in [the exercise of the power]’.[26]
[26] Le Mesurier v Connor (1929) 42 CLR 481, 497 (Knox CJ, Rich and Dixon JJ).
The defendants submit that while the AFP was investigating offences relating to a criminal organisation, the conduct the subject of Count 1 is based upon conduct involving firearms. Attention was directed to the Commonwealth offences set out in the authorities being related to drugs and money laundering, not firearms. The defendants submit that Count 1 can only be supported if the firearms offences are proved. The firearms offences the subject of this application are State offences and it is submitted they were not ‘incidental’ to any of the Commonwealth offences being investigated. The defendants submit that any investigation into the firearms offences or the charge against s 83E(1) CLCA is not incidental to the investigation of the Commonwealth offences as set out in the MCOs because, using incidental in its strict legal sense, an investigation into the State offences was not necessary for the purpose of carrying out the Commonwealth investigation.
The Director submits that the incidental power in s 51(xxxix) of the Constitution, grants the Commonwealth power to make laws with respect to a subject matter that arises in the execution of a substantive law. The defendants contend, however, that the power is only for the Commonwealth to make laws with respect to that which is necessary for the execution of any power that is already vested by s 51.
In the particular circumstances of this case, it is not necessary to determine if the defendants are correct in their submissions about the approach to incidental power. That submission does not assist them in this instance.
The application of s 4AA(1)(d)(ii) does not, on its terms, involve or necessitate any consideration of the legislative power of the Commonwealth. Section 4AA(1)(d)(ii) only serves to identify State offences which have a federal aspect due to the State offence arising as an incident of — or in fortuitous or subordinate conjunction with — the investigation into the Commonwealth offences. Read this way, s 4AA(1)(d)(ii) cannot operate to expand the scope of an AFP investigation or the power of the AFP to investigate an offence. This is consistent with the provision’s purpose, as stated in s 4AA(1A)(c), being to identify State offences, the investigation of which is incidental to an investigation of an offence against a law of the Commonwealth. That is, where the investigation of a State offence would occur within the scope of, and as an incident to, an AFP investigation into an offence against the law of the Commonwealth.
In my view, the issue is whether, were the AFP to investigate the State offences set out on the Information, that investigation would be one properly characterised as incidental to the AFP investigation of the offences in the authorities. Put another way, would that investigation be one that should be characterised as one arising during the AFP investigation of offences against the Commonwealth law or one liable to occur in fortuitous conjunction with that investigation? I am satisfied that both are a proper characterisation of what occurred in this case.
The evidence of the alleged commission of the offences against the State law arose during the AFP investigation into Commonwealth offences. It is not suggested that the AFP was aware of the alleged commission of the relevant State offences at the time the investigation of the Commonwealth offences commenced. For present purposes, that date can be taken to be 25 September 2018 (i.e. – the date of the first Major Controlled Operation Authority). On the evidence before me, I am not satisfied that the AFP was aware of the alleged commission of the relevant State offences at the time the investigation of the State offences commenced.
I am satisfied that were the State offences to have been investigated by the AFP, that investigation would have been one that is properly characterised as incidental. The evidence is only consistent with the AFP investigating offences against laws of the Commonwealth. I am satisfied that, in the course of that investigation, the ANOM communications exposed that the particular State offences relevant in this application were allegedly being committed.
I find that if the AFP were to investigate the State offences, that investigation would be incidental to the investigation of the offences against the laws of the Commonwealth. In that event, it would have been something which arose during the course of the investigation of offences against laws of the Commonwealth and/or something occurring or liable to occur in conjunction with the investigation of offences of laws against the Commonwealth of which it formed no essential part.
The above means the application of the defendants must be rejected. The ANOM communications the subject of this application may be admitted in these proceedings pursuant to s 45(5)(c) of the SDA, at least with respect to Counts 1–3 and 8–14 inclusive.
In the event I am wrong in my approach to s 4AA(1)(d) of the AFPA and its application to this case, I turn to other aspects of s 4AA.
Section 4AA(1)(c)
Section 4AA(1)(c) is set out above.
Relevant to this matter, s 4AA(3)(e) provides:
(3)A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(e) included an electronic communication.
Section 4AA(5) provides that ‘conduct’ has the same meaning as in the Criminal Code Act 1995 (Cth), namely: an act, an omission to perform an act or a state of affairs.
There is no dispute that the ANOM communications the subject of this application were ‘electronic communications’. That term is defined within s 4AA(5) as follows:
electronic communication means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
The prosecution submits that s 4AA(2) permits regard to be had to the circumstances in which the offence was committed and that permits reference to be made to conduct which is beyond the elements of the offence. The prosecution submits that the electronic communications were an aspect of the way in which the defendants committed the alleged offences. As I understood the submission, the communications were the means by which at least access, as particularised in Count 1, was ‘controlled’ and how access was controlled or exercised in the other relevant counts.
With respect to all relevant counts other than Count 1, attention was directed to the definition of possession in s 6 of the Firearms Act 2015 (SA). Section 6 of that Act provides:
(1)This section applies to the following items:
(a) a firearm;
(b) a firearm part;
(c) a prohibited firearm accessory;
(d) a sound moderator;
(e) a restricted firearm mechanism;
(f) ammunition.
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a) the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b) the person has and exercises access to the item; or
(c) the person controls access to the item; or
(d) the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
The defendants submit that while the communications are part of the evidence relied upon by the prosecution to prove participation in Count 1 (including controlling access) and possession in the balance of the relevant counts, the communications are not the conduct the subject of the offences. The defendants submit that, as particularised by the prosecution, the conduct the subject of the participation offence is ‘storing and controlling access’ to a vehicle and the conduct the subject of the balance of the relevant offences is ‘possession’. The defendants submit it is not sufficient that electronic communications happen to be part of the circumstantial case relied upon by the prosecution to establish that a defendant was ‘storing or controlling’ the vehicle as alleged in the particulars of Count 1 or was in possession in the balance of the offences.
I reject the submission of the prosecution. I am not satisfied that it is sufficient to come within s 4AA(3)(e) that electronic communications are part of the circumstantial evidence which prove an element of the charged offending. Were that so, any offence which involved an act or omission, and which could be proved by electronic communications would be taken to be a State offence with a federal aspect. That is not consistent with conduct constituting the State offence involving the use of electronic communications.
Though the ANOM devices were allegedly used in a manner which demonstrated the conduct the subject of the State offences, the ANOM communications were merely the medium through which certain conduct evidencing the commission of the State offences was engaged. No aspect of the manner in which the ANOM devices were used in this case is the subject of a charged State offence.
In addition, sub‑s (2) does not operate to expand ‘specific acts or omissions involved in committing the State offence’ to conduct that is not the subject of a State offence. That would be inconsistent with sub‑s (3) which is directed to ‘conduct constituting the State offence’. The words of sub‑s (2) do not alter the scope of what acts or omissions can be considered to be those which are ‘involved in committing’ the State offence. It provides that the circumstances in which the offence is committed is relevant to determining the specificity required for identifying which acts or omissions are involved in committing the State offence and those which are not.
There is no difficulty in the present case in identifying acts which were involved in committing the State offences and those which are not. The circumstances are clear and while electronic communications were the medium through which the conduct involved in committing the State offences was exercised, the use of the ANOM device for the purposes of that conduct is not the subject of any charged State offence in this matter.
This is not to overlook the prosecution has tendered a volume of communications in this application.[27] Nonetheless, I was not directed to specific communications within that volume which were said to particularly support the submission of the prosecution. Nor was I directed to specific communications which were said themselves the subject of any charged conduct.
[27] VD P1A.
Section 4AA(1)(a)
Section 4AA(1)(a) is set out above.
Section 4AA(1)(a) is only of potential relevance to Count 1 and s 83E of the CLCA. It is not submitted the firearm offences can be brought within this limb of potential State offences with a federal aspect.
There is no dispute that the offence created by s 83E(1) is not an ancillary offence. An ancillary offence is defined in s 4AA(5) as:
ancillary offence, in relation to an offence (the primary offence), means:
(a) an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.
The prosecution submits that Count 1 would have been a valid law of the Commonwealth. It is submitted the Commonwealth has the legislative power to make laws with respect to criminal organisations. It is submitted that power is supported by the external affairs power in s 51(xxix) of the Constitution which provides:
51. Legislative powers of the Parliament.
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—
…
(xxix.)External affairs:
The Convention
The prosecution directed attention to the United Nations Convention against Transnational Organized Crime (the Convention).[28] Article 5 of the Convention provides:
[28] 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003). nThe United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 19 December 1988, 1582 UNTS 165 (entered into force 11 November 1990) was also relied upon by the prosecution, but given my findings below, it is not necessary to refer to the submissions in relation to this treaty.
Article 5
Criminalization of participation in an organized criminal group
1Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:
(i)Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;
(ii)Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:
a.Criminal activities of the organized criminal group;
b.Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;
(b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.
2.The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances.
3.States Parties whose domestic law requires involvement of an organized criminal group for purposes of the offences established in accordance with 8 paragraph 1 (a) (i) of this article shall ensure that their domestic law covers all serious crimes involving organized criminal groups. Such States Parties, as well as States Parties whose domestic law requires an act in furtherance of the agreement for purposes of the offences established in accordance with paragraph 1 (a) (i) of this article, shall so inform the Secretary-General of the United Nations at the time of their signature or of deposit of their instrument of ratification, acceptance or approval of or accession to this Convention.
Relevant terms within Article 5 are defined in Article 2 as follows:
(a) "Organized criminal group" shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;
(b) "Serious crime" shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty;
Participating in a criminal organisation — S 83E(1) of the Criminal Law Consolidation Act 1935 (SA)
Section 83E(1) provides:
(1)A person who participates in a criminal organisation—
(a) knowing that, or being reckless as to whether, it is a criminal organisation; and
(b) knowing that, or being reckless as to whether, his or her participation in that organisation contributes to the occurrence of any criminal activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
Relevant terms within s 83E are defined in s 83D as follows:
criminal group—a group consisting of 2 or more persons is a criminal group if—
(a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or
(b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates;
criminal organisation means—
(a) a criminal group; or
(b) a declared organisation;
declared organisation has the same meaning as in the Serious and Organised Crime (Control) Act 2008;
participating in a criminal organisation includes (without limitation)—
(a) recruiting others to participate in the organisation; and
(b) supporting the organisation; and
(c) committing an offence for the benefit of, or at the direction of, the organisation; and
(d) occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation;
serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more;
serious offence of violence means a serious offence where the conduct constituting the offence involves—
(a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or
(b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
(c) perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b).
The defendants submit that had s 83E(1) been enacted by the Parliament of the Commonwealth, it would not have been a valid law. The defendants direct attention to differences between the terms of the Convention and the terms of s 83E(1). The defendants submit those differences mean that s 83E(1) is not reasonably capable of being appropriate and adapted to implementing the terms of the Convention. Therefore, s 83E(1) could not be a valid law of the Commonwealth supported by external affairs power and as a result, s 4AA(1)(a)(ii) is not satisfied.
In submitting the Convention does not support s 83E(1), the defendants directed attention to particular features of Article 5 and contrast them to the terms of s 83E(1), namely:
1.The reference to ‘financial or other material benefit’ (Article 5.1(a)(i));
2.The reference to ‘serious crime’ (Article 5.1(a)(i) and 5.2); and
3.The reference to ‘knowledge’ (Article 5(1)(a)(ii) and 5.2) and the absence of reference to being reckless within Article 5.
Section 83E(1) is not limited to participation knowing that it is a criminal organisation and/or with knowledge that participation in that organisation contributes to ‘serious crime’. In contrast to the Convention, s 83E(1) permits reliance upon ‘recklessness’ and reference is made to ‘any criminal activity’.
Discussion
The relevant principles concerning treaty implementation of s 51(xxix) of the Constitution as set out by the defendants in their submissions are not in dispute.
First, to be a ‘law with respect to ‘external affairs’, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty’.[29] Second, in order for the treaty implementation aspect of the power to be relied upon (and in this case, the State laws as hypothesised Commonwealth laws under s 4AA(1)(a)(ii) of the AFPA), the relevant Commonwealth ‘law must prescribe a regime that the treaty has itself defined with sufficient specificity to the general course to be taken by the signatory states’.[30] Third, ‘it is for the legislature to choose the means by which it gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’.[31]
[29] Victoria v The Commonwealth (1996) 187 CLR 416, 486–7 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
[30] Ibid.
[31] Ibid; Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54, 136; The Commonwealth v Tasmania (1983) 158 CLR 1, 130–1, 172, 232, 259; and Richardson v Forestry Commission (1988) 164 CLR 261, 288–9, 303, 311–12, 336, 342.
It is the third of the principles above which is important in this application. As set out above, for the law of the Commonwealth to be valid, there does not need to be precise correspondence between the Convention and, in this case, s 83E(1). As set out above, the High Court in Victoria v Commonwealth held ‘it is for the legislature to choose the means by which it gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’.
The ability of the legislature to choose means which are ‘reasonably capable of being considered appropriate and adapted’ is not consistent with a need for precise correspondence between the law enabled by the Commonwealth Parliament and the Convention. This is consistent with the approach in Airlines of NSW Pty Ltd v New South Wales (No 2), where Menzies J held:
When, as here, a party to litigation, and the Commonwealth supporting that party, rely upon s. 51 (xxix.) to authorize the making of the Commonwealth law in question, it must appear to this Court that the law is for the carrying out of obligations of that description. It will be so if the law can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the Parliament.[32]
[32] Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54, 136.
I turn to what are said to be the differences between the Convention and s 83E(1) which it is submitted deprive the prosecution of being able to rely upon s 4AA(1)(a)(ii).
In my view, the absence of reference to ‘serious crime’ in s 83E(1) does not lead to the result that s 4AA(1)(a)(ii) is not satisfied. Article 5.1(a)(ii) does not require that the criminal activity amount to ‘serious crime’. Even were that put aside, while s 83E(1)(b) only demands that a person participate knowing or being reckless that their participation contributes to the occurrence of any criminal activity, the act(s) of participation must be in a criminal organisation. A criminal organisation includes a criminal group which has the aim or activity set out in the definition of criminal group in s 83D. The ‘serious offence’ referred to in the definition of criminal group is defined to mean an indictable offence punishable by imprisonment for at least five years (i.e. – more than that required to be a ‘serious crime’ as defined in the Convention). The serious offence of violence referred to in the definition of criminal group also must be one which is a ‘serious offence’ (i.e. – again, an indictable offence punishable by imprisonment for at least five years).
Section 83E(1) clearly enables the elements of that offence to be established if a person is ‘reckless’ as to specific matters which are set out. Nonetheless, I find s 4AA(1)(a)(ii) is satisfied as the means chosen would be ‘reasonably capable of being appropriate and adopted’ to give effect to the Convention. While recklessness is less than knowledge, it requires awareness of certain probabilities. A person is reckless if they were aware it was probable their conduct supported a criminal organisation and aware it is probable that his or her participation contributes to the occurrence of any criminal activity.
I am also satisfied that s 83E(1) can be brought within Article 5.1(b) of the Convention.
Section 83D defines participating in a criminal organisation in the way set out above. The concepts in that non‑exhaustive definition are, in my view, consistent with Article 5.1(b). A person who commits the offence created by s 83E(1) will be, at least, ‘facilitating’ the commission of crime involving an organised criminal group. It must be observed that the ‘organised criminal group’ set out in the Convention requires three or more persons while the criminal organisation in s 83E(1) can be two or more persons. In my view, that is not a difference that means that had s 83E(1) been enacted by the Parliament of the Commonwealth, it would not have been a valid law. The means chosen would be ‘reasonably capable of being considered appropriate and adapted’ to give effect to the Convention.
Notwithstanding the differences between s 83E(1) and the Convention, I am satisfied that were the Parliament of the Commonwealth to enact s 83E(1), it would not be beyond power.
In the circumstances, it is not necessary to consider the words within Article 5.1(a)(i): ‘a financial or other material benefit’. As set out above, I am satisfied that s 83E(1) is supported by Article 5.1(a)(ii) and 5.1(b).
For the above reasons, I find that had s 83E(1) have been enacted by the Parliament of the Commonwealth, it would have been a valid law.
Conclusion
The application the subject of Chapters 5A and 13A relates only to the ANOM communications within the first dataset (i.e. – data obtained pursuant to the warrants under the SDA).
I dismiss the applications the subject of Chapters 5A and 13A in so far as those applications relate to the admissibility of the ANOM communications within the first dataset and with respect to Counts 1–3 and 8–14. Consistent with the approach of the parties, the question of the admissibility of the ANOM communications within the first dataset with respect to Counts 4, 5 and 15 is reserved, if pressed by the prosecution, for decision at a later time.
3
6
0