R v TB (No 8)
[2025] SASC 125
•4 August 2025
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 125Criminal: Application — Chapter 13
KIMBER J:
Introduction
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 the ground that the prosecution obligation of disclosure has not been met.
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
In this application, the defendants seek an order that the prosecution be the subject of at least a temporary stay. The defendants submit ‘it would be an abuse of process to allow the prosecution to continue in circumstances where the prosecution has failed to make full and proper disclosure’.[2]
[2] Outline of Submissions on Behalf of [CD] – Chapter 13: Stay of Proceeding for Non-Disclosure (filed 10 March 2023, FDN 280).
The application has two aspects.
First, that the AFP ‘holds documents relevant to the creation, operation and management of the operation from inception to completion in June 2021’ and that the AFP ‘have failed or refused to provide to [the prosecution] … copies of all relevant documents in their possession, custody or control’.
Second, the defendants submit the prosecution has not met its duty of disclosure, not because it has relevant material in its possession but for other reasons. The defendants submit that there has been what they describe as ‘apparent failure’ to request certain documents from the AFP and others. The defendants submit the prosecution is obliged to request those documents because of what has been referred to as the duty to inquire; obliged to review what is provided; and, subject to any public interest immunity claim, disclose any material caught within the prosecution obligation of disclosure.
For the reasons which follow, I decline to order that there be a stay of the prosecution of the defendants because of this application.
The documents
In their written submissions the defendants identified, as the subject of this application, a very substantial number of documents or possible documents.[3] However, as I understood the submissions ultimately advanced by the defendants, the application relates to 13 documents or categories of documents (the documents) – all but two of which are listed in the ‘National Disclosure Certificate Operation Ironside’ dated 27 January 2022 (NDC).[4] If that understanding is not correct, I can be told. The defendants have described the documents in the way set out below (the paragraph numbering below reflects what appears in the written submission of the defendants):[5]
[3] Outline of Submissions on Behalf of [CD] – Chapter 13: Stay of Proceeding for Non-Disclosure (filed 10 March 2023, FDN 280), [111].
[4] T2056; The National Disclosure Certificate (NDC) is an exhibit to Exhibit VD D48.
[5] Outline of Submissions on Behalf of [CD] – Chapter 13: Stay of Proceeding for Non-Disclosure (filed 10 March 2023, FDN 280), [111].
[111.3]The Strategic Intent document authored by Superintendent Mansfield and referred to in the course of his evidence on the voir dire:
[111.3.1]Aside from its obvious prima facie general relevance, it is noted that this document was provided to the issuing officer, Deputy Commissioner Gaughan, before he approved the first MCO and he used that document to brief the Commissioner of the AFP indicating, obviously, the knowledge by the Commissioner of the Operation and presumably therefore also its strategic intent.
[111.3.2]The Strategy adopted by the AFP is relevant to Chapters 12, 15, 16.
[111.4]The overarching ‘Memorandum of Understanding’ between the AFP and the FBI pursuant to which the Operations were conducted.
111.4.1This is a crucial document because Superintendent Mansfield said that it was that document which guided the AFP’s interaction with CHS.
111.4.2The document is also potentially relevant to enabling the accused to understand the legal basis for the relationship between the FBI and the AFP.
111.4.3The document is also relevant because of section 15HA(2)(e).
[111.5]The documents on the National Disclosure Certificate published by the AFP:
111.5.1On its face, the AFP assert that the documents referred to are potentially relevant. This includes various documents which formed the subject of the first Subpoena issued by the accused.
111.5.2The accused contend that on this basis alone, the documents are liable to disclosure and even if not served on the accused, they should be provided to the Director so that he may make an assessment of their significance to the case.
111.5.3As things stand, there are a range of such documents which the Director has not even seen.
[111.6] Records of engagement between the AFP and the FBI.
111.6.1The documents are disclosed on the National Disclosure Certificate and that alone establishes their relevance.
111.6.2It is recognised that McDonald J ruled that there was no legitimate forensic purpose for their return. However, it is submitted that that ruling was made prior to the filing of the Second Amended Rule 49 Notice and prior to the more recent ‘Chapters’ under Rule 39;
111.6.3That ruling was also made prior the expert evidence and the evidence of Superintendent Mansfield;
111.6.4Moreover, notwithstanding her Honour’s findings, she did consider that there was a legitimate forensic purpose in respect of first, fourth, fifth, sixth and seventh categories of LFP asserted at the hearing before her Honour. Importantly also, her Honour said as follows at [36]:
[36] “In considering the various categories of documents that are the subject of the subpoena, I am mindful that I am not making an ultimate decision as to whether documents could ever become relevant on the voir dire or at trial. My role is confined to a consideration of the legal principles surrounding the requirement for production of documents in answer to two subpoenas that have been filed and served. It may well be that documents that fall into these categories take on a legitimate forensic purpose as the issues on the voir dire take on further clarity, or if the ambit of the request was narrowed. My role is, however, to consider the subpoenas I have in front of me.”
111.6.5It is therefore submitted that, on proper construction, her Honour’s ruling does not operate as a determination that the documents sought are not relevant. On the contrary, her Honour left open the possibility that the documents may assume a more clarified LFP as the matter progresses. Since her Honour’s ruling, this Court has heard significant additional evidence, especially evidence from Superintendent Mansfield and various experts, which throws significantly more light on the relevance of the documents sought.
[111.7] Records, notes and copies of engagement between the FBI’s covert human source, developers of AN0M and law enforcement agencies.
111.7.1The documents are disclosed on the National Disclosure Certificate and that alone establishes their relevance.
111.7.2Superintendent Mansfield said in evidence that, insofar as the AFP was able to have any input into or give directions to the CHS, that was done through the FBI, and it was on the basis of the ‘overarching Memorandum of Understanding’ between the FBI and the AFP which regulated that involvement.
111.7.3The Memorandum of Understanding has not been disclosed;
111.7.4It is submitted that it is plainly relevant.
[111.8] Documents evidencing executive briefings, minutes, decisions and related administrative documents in relation to Operation Ironside, including AFP Board of Management records.
111.8.1The documents are disclosed on the National Disclosure Certificate and that alone establishes their relevance.
111.8.2If nothing else, the briefings, which were regular, are relevant because a decision was made by the AFP to continue the Operations for almost three years. In that circumstance, the reasoning behind why it was decided to do so is relevant to an assessment of the legality of doing so.
111.8.3Thus, for example, it is probably clear by now the use of the devices involved significant criminality, including drug and firearm offences. By the nature of the Operation, it was essential that the functionality of the device be kept secret, and this meant that even where an offence was identified by the AFP – because they were listening in real time – they took no steps to stop the identified offence from occurring in most cases.
111.8.4As well, the evidence from Deputy Commissioner Gaughan suggests that insofar as he had a suspicion that offences would be committed, that suspicion was only ever a generalised suspicion not dissimilar to an assertion that any person knows that crimes will be committed in the future. Whether or not the type of suspicion held by DC Gaughan was sufficient to justify the issuance of a MCO in that circumstance is a live question in this case. The records of executive briefings will be relevant to these questions.
111.8.5However, the relevant documents will also be relevant to an assessment of why no decision was ever taken, until Resolution in June 2021, to stop the Operation if, as is suspected, there were multiple very serious offences, including threats to life, being committed right under the nose of the AFP.
111.8.6It is also relevant in this category that the Prosecution tendered documents considered by the Controlled Operations Committee and yet there are no additional documents generated by or provided to that Committee and which evidence its deliberations. If the Prosecution intends to conduct its case on the basis that a procedure was followed in relation to the approval of the Controlled Operation Authorities, it is submitted that better disclosure on that question is required.
111.8.7Finally, it is submitted that it would defy belief that the AFP did not keep records of the number of offences actually committed or as disclosed by monitoring the AN0M Platform. The AFP has published statistics of crimes prosecuted, but not of the degree and scale of other offences committed but not charged.
[111.11]Documents in the possession of Commander Peter Bodel:
111.11.1These documents are disclosed on the National Disclosure Certificate and therefore it is presumed that an assessment has been made as to their possible relevance;
[111.12]Documents in the possession of Sergeant Darren Williamson.
111.12.1These documents are also disclosed on the National Disclosure Certificate;
[111.13]Documents in possession of Detective Sergeant Anthony Brown.
111.13.1These documents are also disclosed on the National Disclosure Certificate.
[111.14]Documents in the possession of Detective Superintendent Steven Hulbert.
111.14.1These documents are disclosed on the National Disclosure Certificate;
[111.15] Documents in the possession of Detective Superintendent Damien Appleby.
111.15.1These documents are disclosed on the National Disclosure Certificate.
[111.19] Material in the possession of foreign government agencies and in particular the United States of America.
111.19.1These documents are disclosed on the National Disclosure Certificate.
[111.20]Documents in the possession of other Australian government agencies including State and Territory law enforcement ‘partners’, the Australian Criminal Intelligence Commission and Australian Border Force.
111.20.1These documents are disclosed on the National Disclosure Certificate.
111.20.2There are also multiple references by SAPOL Officers to joint operations being conducted in relation to both Operation Ironside and Operation Trojan Shield.
111.20.3More recently, on 16 February 2023, the Director disclosed a document evidencing that there was a formal joint investigation known as Operation Ironside Central Spryte to which not insignificant SAPOL resources were devoted.
(footnotes omitted)
Previous rulings
The documents described in [111.3], [111.4] and [111.6] - [111.8] inclusive have been the subject of at least one subpoena filed by at least one of the defendants, with access to the defendants not being granted on the basis that there was no legitimate forensic purpose and/or because of a claim of public interest immunity being upheld.[6]
[6] R v TB & Anor (Supreme Court of South Australia, McDonald J, 29 July 2022); R v TB & Anor (Supreme Court of South Australia, Kimber J, 20 January 2023 and 10 March 2023).
I will return to the significance of the subpoenas and the NDC later.
The duty of disclosure
The criminal law recognises no right to discovery.[7] The obligation to make disclosure is imposed on the prosecutor, the impartial ‘minister of justice’.[8] The obligation recognises that, in the adversarial setting, the parties are not ‘evenly matched in resources’.[9]
[7] Noack v General Motors-Holden’s Ltd (1985) 11 FCR 122; Sobh v PoliceForce of Victoria [1994] 1 VR 41.
[8] Alister v The Queen (1984) 154 CLR 404, 429-430 (Murphy J); Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121, 122.
[9] R v McIlkenny (1991) 93 Cr App R 287, 312 (Lloyd, Mustill, Farquharson JJ).
In R v Brown, Lord Hope held:[10]
The rules of disclosure which have been developed by the common law owe their origin to the elementary right to every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor of Gosforth C.J. observed in Reg v Keane [1994] 1 W.L.R. 746, 750G, the great principle is that of open justice. It would be contrary to the principle for the prosecution to withhold from the defendant, material which might undermine their case against him or might assist in his defence.
[10] [1998] AC 367, 374.
In this application, it is the common law obligation of disclosure which is relevant. In Edwards v The Queen, Edelman and Steward JJ stated that obligation as follows:[11]
The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as "an issue in the case" or "all relevant evidence of help to the accused", must be given a broad interpretation.
(footnotes omitted)
[11] (2021) 273 CLR 585, 600-601 [48].
A precondition to the application of the duty is that the material is in the possession of, and known to, the prosecution.[12] The duty to disclose does not permit the defence ‘to make general and unspecified allegations and then seek far‑reaching disclosure in the hope that material may turn up to make them good’.[13]
[12] Ibid, see also the authorities referred to therein and also Visser v DPP (Cth) [2020] VSCA 327, 12 [36].
[13] Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 320 [78], citing R v H [2004] 2 AC 134, 155.
The duty to inquire
It has been held that an aspect of the obligation to disclose includes, in an appropriate case, the obligation to make enquiries. While that obligation has been held to exist with respect to material relevant to the credibility of a prosecution witness,[14] I see no reason to limit the obligation to material of that type.
[14] Brawn v The Queen (2022) 141 SASR 465, 472-473 [35]; Roberts v The Queen (2020) 60 VR 431; AJ v The Queen (2011) 32 VR 614, 620 [22].
A subpoena as a remedy
It is open to challenge the adequacy of disclosure by issuing a subpoena. In Director of Public Prosecutions (Cth) v Kinghorn,[15] it was held that:
… if the documents or materials the subject of the duty are not disclosed then a subpoena can be issued. Subject to claims for privilege and the like, it is likely the documents that fall within the duty will answer the test for production in response to a subpoena.
(citations omitted)
[15] (2020) 102 NSWLR 72, 108 [140].
In Brawn v The King, the South Australian Court of Appeal recognised the obvious interrelationship between the material that might be made the subject of a subpoena and the material that could be expected from prosecution disclosure.[16]
[16] Brawn v The King (2022) 141 SASR 465, 476 [55].
The power to order a stay — principles
A superior court possesses the power to control and supervise proceedings brought in its jurisdiction. That power extends to permanently staying criminal proceedings to protect its own processes from abuse.[17] The power is discretionary.[18] A permanent stay is a remedy of last resort, only to be granted in the most rare or exceptional circumstances.[19] Underlying this is the principle that the granting of a stay amounts to a refusal to exercise jurisdiction, such that a court which grants a stay without sufficient reason abuses itself by declining to exercise its constitutional function of determining disputes.[20]
[17] Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago), 25; Williams v Spautz (1992) 174 CLR 509 (Spautz), 518; Rona v District Court of South Australia (1995) 63 SASR 223, 226; Grassby v The Queen (1989) 168 CLR 1, 16.
[18] Jago, 31.
[19] Jago, 31 and 34 (Mason CJ), 60 (Deane J) and 76 (Gaudron J); Spautz, 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
[20] Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, 134.
It is for the defendants to satisfy the Court of both the existence of facts which have the capacity to enliven the discretion to order a stay and that, in all the circumstances, a stay is the only remedy available in order to prevent abuse of process.[21] The onus has been described as ‘a heavy one’.[22]
[21] Spautz, 529.
[22] Ibid. In R v Littler (2001) 120 A Crim R 512, 513, Hodgson JA considered that in discharging the onus, the applicant should ordinarily give evidence on oath by way of affidavit.
The categories of circumstances which may amount to an abuse of process justifying a permanent stay of proceedings are not capable of strict definition, nor are they closed. Chief Justice Mason observed in Rogers v The Queen[23] (Rogers) that ‘the circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories’.[24] That is not to suggest that the concept is at large. Chief Justice Mason went on to identify two aspects of an abuse of process:[25]
… first, the aspect of vexation, oppression and unfairness to the other party to the litigation and secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
[23] (1994) 181 CLR 251.
[24] Ibid, 255.
[25] Ibid, 256.
In relation to the first aspect, where the basis for an application for a permanent stay of proceedings on abuse of process grounds is said to be the inability of a defendant to receive a fair trial, the court must be satisfied that there will be an unfair trial unless the prosecution is stayed. It must be demonstrated that there exists both ‘a fundamental defect which goes to the root of the trial’,[26] and that there are no available means of remedying the defect, such as procedural orders or directions, to bring about a fair trial.[27]
[26] Jago, 34.
[27] Spautz, 529.
In Jago v District Court of New South Wales (Jago), in the course of confirming the refusal of an application for a stay on the ground of undue delay amounting to an abuse of process, Gaudron J observed that there is no power to grant a stay as a consequence of ‘some general, but unspecified, prejudice or damage’[28] termed by her Honour as ‘presumptive prejudice’.[29] What is required to enliven the power is that proceeding with a trial would cause ‘actual prejudice… the mere possibility of prejudice is insufficient.’[30]
[28] Jago, 78.
[29] Ibid.
[30] Thompkins v Medical Board of Australia [2018] SASC 72, [33].
Justice Deane acknowledged in Jago that ‘the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment’.[31] His Honour considered that the factors most relevant to determining whether the continuation of a prosecution in circumstances of undue delay would amount to an abuse of process were the length of the delay; the reasons for the delay; the accused’s responsibility for, and past attitude to, the delay; the proven or likely prejudice to the defendant; and the public interest in the disposition of charges of serious offences and the conviction of those guilty of crime.[32] Although formulated in the context of undue delay, these factors are capable of broader application to circumstances said to amount to an abuse of process.
[31] Jago, 57.
[32] Ibid, 60-61.
In relation to the second aspect of abuse of process identified in Rogers, Kiefel CJ, Bell and Nettle JJ observed in Strickland v Commonwealth Director of Public Prosecutions (Strickland) that:[33]
There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
[33] Strickland v Commonwealth Director of Public Prosecutions and Ors (2018) 266 CLR 325 (Strickland), 370.
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.
Against that background, I turn to the specific documents.
Documents where the submission is solely based upon the document appearing in the NDC
Respectfully, the submissions of the defendants about the documents were often expressed at a high level of generality. With respect to [111.5], [111.11] - [111.15] and [111.19], the submission rose no higher than that the application should be granted as the documents were disclosed on the NDC. Bearing in mind the observations just made about the NDC, that is an insufficient basis to conclude, absent the prosecution assessing the documents or making an enquiry, a stay should be granted. Respectfully, there was no attempt by the defendants to identify the issue(s) to which the documents might relate in the context of the alleged offences; the evidence proposed to be led by the prosecution; nor any attempt to otherwise articulate why a stay is necessary to prevent an abuse of process. Respectfully, the submission was no more than that there was presumptive prejudice as the defendants have not been provided with everything which exists or as the prosecution has not asked to see everything. Presumptive prejudice is not enough.
The documents in [111.11] - [111.15] inclusive are said to be documents in the possession of the five police officers identified. The five officers are referred in the NDC under the heading ‘Persons who have not provided a statement in the brief however may be able to give evidence in relation to a matter which meets the disclosure test’.[36] The five officers are all described as a Senior Investigating Officer in Operation Ironside. Two are also described as the Principal Law Enforcement Officer for the Major Controlled Operation ‘at particular times’. Operation Ironside involved a Major Controlled Operation pursuant to the Crimes Act 1914 (Cth). Further detail about that is set out in R v TB & Anor [2023] SASC 118 and need not be repeated here.
[36] Ibid, page 5.
Three observations may immediately be made. First, if the NDC is any guide, none of the officers are witnesses as they have not provided statements. Second, and putting that entirely aside, the NDC does not set out what document(s) any of the officers might have. Respectfully, it is no more than speculation that any of the officers might have a document which should be disclosed. Third, perhaps more centrally, given the application of the defendants, it is speculation that, in the absence of an enquiry being made by the Director or disclosure of a document that one or more of the five officers have in their possession, a stay is appropriate. Again, respectfully, the submission rises no higher than that there is presumptive prejudice. Even if I was to assume that one or more of the five officers mentioned in [111.11] - [111.15] inclusive have a document(s) that should be disclosed, I decline to make an order for a temporary or permanent stay. There is insufficient reason to conclude that there is any more than presumptive prejudice.
A further observation may be made about the documents described in [111.5]. By relying upon the documents so described, the defendants submit, in effect, that there must be a stay until every document referred to in the NDC is disclosed or is at least the subject of a request by the prosecution. I reject that submission. Respectfully, the submission of the defendants rises no higher than one of presumptive prejudice.
Documents the subject of past subpoenas
As set out above, the documents in [111.3], [111.4] and [111.6] – [111.8] inclusive have been the subject of at least one subpoena with access not being granted either on the grounds of a finding of no legitimate forensic purpose or a claim of public interest immunity being upheld. It is accepted that the potential relevance of documents must be evaluated on an ongoing basis. An aspect of that is, since the rulings with respect to the subpoenas, there has been further evidence; further submissions; and further rulings and judgments. However, respectfully, notwithstanding such matters, the submissions of the defendants relied upon no more than generalities. To illustrate this with just one example, with respect to [111.6], a submission was that certain evidence ‘throws significantly more light on the relevance of the documents sought’.[37] There was no attempt to articulate the issue(s) said to have been illuminated by that light.
[37] Outline of Submissions on Behalf of [CD] – Chapter 13: Stay of Proceeding for Non-Disclosure (filed 10 March 2023, FDN 280), [111.6.5].
Setting aside the matters immediately above, with respect to documents which have been the subject of a subpoena, it is again not necessary to consider whether either the obligation to disclose or the obligation to make an enquiry has been breached. It is not necessary because the remedy sought is a stay of the proceeding. As set out above, it is for the defendants to satisfy the Court of both the existence of facts which have the capacity to enliven the discretion to order a stay and, that in all the circumstances, a stay is the only remedy available in order to prevent abuse of process.[38] Where the remedy of a subpoena has been attempted and it has been ruled that documents should not be produced (or should not be the subject of an order that they may be accessed by the defendants), I am not satisfied that the continuation of the prosecution would be an abuse of process.
[38] Spautz, 529.
Further, with respect to the documents the subject of past subpoenas and in respect of which it has been held that there is no legitimate forensic purpose, or a claim of public interest immunity has been upheld, on the submissions made, I am not satisfied that any previous ruling is wrong.
It follows that I refuse the application in so far as it relates to the documents in [111.3], [111.4] and [111.6] – [111.8] inclusive as I do not find that a stay is necessary to prevent an abuse of process.
The remaining documents – [111.19] and [111.20]
As described in [111.19], these documents are not in the possession of the AFP or South Australia Police (SAPol). I am not satisfied that the prosecution has any obligation to make an enquiry of those described in [111.19], let alone satisfied that, in the absence of doing so, the remedy appropriate is a stay.
This leaves the documents described in [111.20]. With respect to those documents, I make a preliminary observation. Given the description of the documents in [111.20], captured are documents beyond those which might be held by the AFP and/or SAPol. To the extent that is so, I am not satisfied that there is any obligation upon the prosecution to make an enquiry with respect to such documents. Further, on the submissions made, I am not satisfied that the absence of such documents warrants a conclusion that the appropriate remedy is a stay.
Putting agencies or bodies other than the AFP and SAPol aside, the submissions of the defendants have three limbs.
First, it is submitted the documents are referred to in the NDC [111.20.1]. As set out above, that a document appears in the NDC does not provide a sound basis to find that any failure to make an enquiry, or failure to disclose, warrants the remedy of a stay.
Second, it is submitted that there has been disclosure of a ‘formal joint operation known as Operation Ironside Central Spryte’.[39] The defendants did not challenge the prosecution submission that there was no formal joint operation between the AFP and SAPol relating to Operation Ironside Central Spryte. Putting that aside, there is nothing before me which establishes that the failure to provide such documents amounts to any more than presumptive prejudice. It follows that the defendants have not satisfied me that without an enquiry being made or without disclosure, a stay is the appropriate order.
[39] See 111.20.3.
Third, it is submitted that there are references to ‘joint operations being conducted in relation to Operation Ironside and Operation Trojan Shield’ in affidavits or statements of SAPol officers which have been disclosed to the defendants (the affidavits).[40] The defendants rely upon 15 such affidavits.[41] One of the affidavits appears to describe Operation Trojan Shield and Operation Ironside as the same operation.[42]
[40] Outline of Submissions on Behalf of [CD] – Chapter 13: Stay of Proceeding for Non-Disclosure (filed 10 March 2023, FDN 280), [111.20.2].
[41] Affidavit of Dominic Agresta sworn 23 June 2022, [49].
[42] Ibid, [49.1].
In terms of Operation Ironside and/or Operation Trojan Shield, each affidavit describes when the relevant officer commenced working on that operation(s). Otherwise, the affidavits describe the operation(s) in terms consistent with it being a joint task force (or operation) involving SAPol and the AFP. In one affidavit, it is described as an investigation commenced by the AFP and the Federal Bureau of Investigation (FBI). In two affidavits, the ANOM application is mentioned. Respectfully, by reference to what is described in [111.20], it is unclear what it is that the defendants say should be the subject of an enquiry or disclosed. There is no analysis of what evidence the relevant officer, or indeed any other officer, might give. There is no clear reason to conclude that a document described might have relevance to such evidence, an issue in the trial; or provide a basis for some legitimate line of enquiry. Respectfully, it is really a submission that unless there is a disclosure of every document that might touch on Operation Ironside and/or Operation Trojan Shield, a stay of the prosecution is the necessary remedy. That submission must be rejected. As with other documents the subject of the application, the submission of the defendants is no more than that there is presumptive prejudice.
Orders
On the grounds the subject of Chapter 13, I decline to stay the prosecution of the defendants.
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