R v TB (No 6)

Case [2023] SASC 140

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 140

Criminal: Application—Chapter 5A and Chapter 13A

KIMBER J:

Introduction

  1. 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…

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AGLC
R v TB (No 6) [2023] SASC 140
Case
[2023] SASC 140
Decision Date

CaseChat Overview and Summary

The case of R v TB (No 6) involved the defendants TB and CD, who were charged with various firearms and criminal organisation-related offences. These charges included participation in a criminal organisation, possession of firearms without a licence, possession of ammunition without a licence, and possession of firearms without lawful identifying marks. The case was heard in the Supreme Court of South Australia, and the primary issue before the court was the admissibility of certain evidence obtained from the defendants' ANOM communications, specifically data from the first dataset, which was obtained under warrants under the Surveillance Devices Act. The defendants sought to exclude this evidence on the grounds that it was unfairly obtained or improperly procured.

The court considered the legal principles surrounding the admissibility of evidence and the exercise of judicial discretion to exclude evidence that is unfair to admit or improperly obtained. It was noted that the evidence in question was obtained through surveillance devices, and the court had to balance the defendants' rights against the public interest in obtaining and using the evidence to prosecute serious crimes. The court examined the manner in which the evidence was obtained and whether any rights of the defendants were breached during the process.

After careful consideration of the legal arguments and the evidence presented, the court found that the evidence in question was lawfully obtained and did not breach any rights of the defendants. The court held that the evidence was relevant and probative to the charges against the defendants and that its probative value outweighed any prejudice it may cause. The court exercised its discretion not to exclude the evidence on the grounds that it was fairly obtained and should be admitted in the interests of justice.

As a result of the court's decision, the applications to exclude the ANOM communications within the first dataset with respect to Counts 1–3 and 8–14 were dismissed. The question of the admissibility of the ANOM communications within the first dataset with respect to Counts 4, 5, and 15 was reserved for a later decision if pressed by the prosecution. The court's ruling allowed the evidence to be used in the trial, and the case proceeded to the next stage.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 CountParticipation in a Criminal Organisation. (Section 83E(1) of the Criminal Law Consolidation Act, 1935). Particulars of the offenceRohan 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 offenceRohan 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 offenceRohan 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 CountPossessing a Sound Moderator Without the Approval of the Registrar of Firearms. (Section 39(1) of the Firearms Act, 2015). Particulars of the offenceRohan 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 offenceRohan 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 CountAggravated Possessing a Firearm Without a Licence. (Section 9(1) and 9(7) of the Firearms Act, 2015). Particulars of the offenceTB 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 offenceTB 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 offenceTB 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 offenceTB 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 CountPossessing a Firearm without a Licence. (Section 9(1) of the Firearms Act, 2015). Particulars of the offenceTB 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 offenceTB 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 offenceTB 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 CountPossessing 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 offenceTB 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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