R v TB (No 8)

Case [2025] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v TB & ANOR (No 8)

[2025] SASC 125

Judgment of the Honourable Justice Kimber  

4 August 2025

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

The defendants are alleged to have committed various offences.  The defendants seek an order that the prosecution be stayed (at least temporarily) on the ground that it would be an abuse of process to allow the prosecution to continue in circumstances where the prosecution has failed to make proper disclosure.

The defendants contend that the Australian Federal Police (AFP) hold documents relating to Operation Ironside and that the AFP have failed or refused to provide the prosecution with copies of all relevant documents in their possession, custody or control.  The defendants further contend the prosecution has not met its duty of disclosure, not because it has relevant material in its possession, but due to what it characterises as an apparent failure to comply with its duty to inquire. 

Held, dismissing the application: 

1.The application is refused.  The submission of the defendants does not rise above one of presumptive prejudice. 

Crimes Act 1914 (Cth); Director of Public Prosecutions Act 1991 (SA) ss 10A, 11, referred to.

AJ v The Queen (2011) 32 VR 614; Alister v The Queen (1984) 154 CLR 404; Brawn v The Queen (2022) 141 SASR 465; Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; Edwards v The Queen (2021) 273 CLR 585; Grassby v The Queen (1989) 168 CLR 1; Jago v District Court of New South Wales (1989) 168 CLR 23; Noack v General Motors-Holden’s Ltd (1985) 11 FCR 122; R v Brown [1998] AC 367; R v McIlkenny (1991) 93 Cr App R 287; R v TB & Anor [2023] SASC 118; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Roberts v The Queen (2020) 60 VR 431; Rogers v The Queen (1994) 181 CLR 251; Rona v District Court of South Australia (1995) 63 SASR 223; Sobh v Police Force of Victoria [1994] 1 VR 41; Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 (2018) 266 CLR 325; Thompkins v Medical Board of Australia [2018] SASC 72; Visser v DPP (Cth) [2020] VSCA 327; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509, applied.

R v Littler (2001) 120 A Crim R 512, considered.

R v TB & ANOR (No 8)
[2025] SASC 125

Criminal: Application — Chapter 13

KIMBER J:

Introduction

  1. This is one of several interlocutory applications in this matter and may be described as Chapter 13.  In this application, the defendants seek at least a temporary stay of the trial on…

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R v TB (No 8) [2025] SASC 125
Case
[2025] SASC 125
Decision Date

CaseChat Overview and Summary

TB and CD are facing prosecution on various drug, firearm, and other charges stemming from a police operation at a Newton unit on 12 January 2020. The defendants applied for a stay of proceedings, arguing that the prosecution had failed to meet its disclosure obligations. The legal issues included whether the prosecution had a duty to request and disclose certain documents referenced in the National Disclosure Certificate (NDC) and whether the Director of Public Prosecutions had the authority to direct the Australian Federal Police (AFP) in this matter.

The court held that the NDC did not establish a duty to request or disclose the referenced documents, as it was prepared for all Operation Ironside prosecutions and not specifically for the defendants' case. The court also found that the defendants had not demonstrated that the alleged failure to inquire and disclose warranted a stay of proceedings. The defendants' argument about the Director of Public Prosecutions' authority was not resolved as it was not necessary to decide in the context of this application.

In conclusion, the application for a stay of proceedings was refused. The court found that the defendants had not shown that the assumed failure to make an enquiry and/or disclose the documents sought warranted the remedy of a stay. The court did not need to determine the competing submissions about the DPP Act.

Orders

Orders of the court

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Background

Background to the litigation

I refuse to order a stay of the prosecution. My reasons follow. Background TB and CD (the defendants) are charged with several alleged offences involving drugs, firearms and other items found by police after they attended a unit at Newton (the Newton unit) on 12 January 2020. The specific offences charged are set out in previous rulings and judgments and need not be repeated. Operation Ironside and the ANOM application The investigation which led to the attendance of police at the Newton unit and it being searched was a result of an operation of the Australian Federal Police (AFP) known as Operation Ironside. A substantial body of the evidence which the prosecution seeks to lead in the trial relates to communications on what can be referred to as the ANOM application. The nature of Operation Ironside and the workings of the ANOM application have been set out in other judgments and rulings. It is sufficient to repeat what I set out in R v TB & Anor [2023] SASC 45:[1][1] R v TB & Anor [2023] SASC 45, [5]-[15].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. 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). 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. 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. 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. 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. CIN 325 is a special member of the AFP. CIN 325 was asked by DS Mansfield to ascertain the veracity of claims made by CHS with respect to the ANOM application. 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. 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. 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. CIN 325 has described that realisation as a ‘pivotal moment in the progress of Operation Ironside’. Between June and September 2018, CIN 325 had ‘almost daily communications’ with CHS. 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. 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), 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. 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’ 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. (footnotes omitted)This application – Chapter 13

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Where the discretion to order a stay is enlivened, a determination must be made as to what the interests of justice require. The plurality in Walton v Gardiner described the weighing process which must be undertaken as involving:[34] … a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.[34] Walton v Gardiner (1993) 177 CLR 378, 396. Consideration As earlier set out, an aspect of this application is the contention of the defendants that the prosecution has not met what has been described as the obligation to inquire. The parties made detailed submissions with respect to that obligation and with respect to sections 10A and 11 of the Director of Public Prosecutions Act 1991 (SA) (DPP Act). More specifically, whether that Act empowered the Director of Public Prosecutions to give a direction to the AFP. The resolution of those issues can be left to a matter in which it is necessary that they be decided. For the reasons which follow, the defendants have not established that the assumed failure to make an enquiry and/or disclose the documents sought warrants the remedy of a stay. As a result, it is not necessary to determine the competing submissions about the DPP Act. The NDC Given the significance of the NDC in this application, it is appropriate to commence by making some observations about that document and the submissions of the defendants about it. An aspect of those submissions was that reference within the NDC to a document established relevance and that such reference immediately gave rise to a duty on the prosecution to request the document and to disclose it. I reject that submission. The NDC does not provide a sound basis to find what was submitted by the defendants. Accepting the defendants’ submissions in another application within this matter, Operation Ironside resulted in more than 2,200 offences being charged. While the defendants are charged with other alleged offences, other than those the subject of this application, there cannot be any dispute that the more than 2,200 other offences involve many other defendants and many other proceedings. Consistent with this, the NDC was not prepared in respect of the defendants nor, more relevantly, the alleged offences the subject of this application. This is obvious from the NDC itself. The NDC is addressed to the Commonwealth Director of Public Prosecutions and commences with the following:[35] This certificate relates to the briefs of evidence in respect of all those charged pursuant to Operation Ironside. The AFP has prepared this document as part of ‘national’ disclosure. ‘National’ disclosure in Operation Ironside captures disclosable material held/managed by AFP Headquarters. We have approached disclosure in this way due to the nature of Operation Ironside, and in particular, our understanding that there are matters/documents held in AFP Headquarters that will be disclosable across all Operation Ironside prosecutions in various jurisdictions.It has been signed off by the National Disclosure Coordinator for Operation Ironside. Case officers are otherwise responsible for disclosure as it relates to their own individual prosecutions in various jurisdictions. [35] Exhibit VD D48, ‘DA 18’, page 1.