R v TB (No 9) - [2025] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v TB & ANOR (No 9)
[2025] SASC 139
Judgment of the Honourable Justice Kimber
29 August 2025
EVIDENCE - ADMISSIBILITY - DECLARATIONS
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - DEALING IN INFORMATION - AS EVIDENCE
The defendants are alleged to have committed various offences while members of the Comanchero Motorcycle Club (the Comancheros). Count 1 is an offence of Participating in a Criminal Organisation. The remaining counts are offences relating to firearms and ammunition. The criminal organisation in Count 1 is alleged to be the Comancheros.
The Director intends to seek a declaration under s 83G of the Criminal Law Consolidation Act 1935 (SA) (CLCA) that the Comancheros is a criminal organisation. The defendants seek an order that the evidence relied upon in support of the declaration cannot include the evidence obtained using a warrant under the Surveillance Devices Act 2004 (Cth) (SD Act). The defendants contend that the use of the evidence is limited by the SD Act which does not permit the use of the evidence in an application pursuant to s 83G of the CLCA.
Held:
1.In the application pursuant to s 83G of the CLCA, regard may be had to the evidence obtained pursuant to a warrant under the SD Act.

Criminal Law Consolidation Act 1935 (SA) ss 83D, 83E, 83G; Surveillance Devices Act 2016 (SA) ss 6, 44, 45, 65, referred to.
Johns v Australian Securities Commission & Ors (1993) 178 CLR 408, applied.
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (2003) 216 CLR 161; Legal Services Commission v W, JH [2012] SASCFC 47, distinguished.
R v TB & Anor (No 6) [2023] SASC 140; Questions of Law Reserved (Nos. 1 and 2 of 2023) [2024] SASCA 82, considered.

R v TB & ANOR (No 9)
[2025] SASC 139
Criminal: Application
KIMBER J:

This is one of several interlocutory applications in this matter. The issue in this application is whether evidence lawfully obtained pursuant to warrants under the Surveillance Devices Act 2004 (Cth) (SD Act) (the evidence) may be used in support of an application for a declaration pursuant to s 83G of the Criminal Law Consolidation Act 1935 (SA) (CLCA) that a particular group is a criminal organisation. The group said to be a criminal organisation is the Comancheros Motorcycle Club (the Comancheros).
For the reasons that follow, the evidence may be used in an application pursuant to s 83G of the CLCA.
Background
TB and CD (the defendants) are jointly charged with the offence of Participating in a Criminal Organisation contrary to s 83E(1) of the CLCA (Count 1) and offences involving firearms and ammunition contrary to the Firearms Act 2015 (SA) (Counts 2-5 and 8-15).
The particulars of the offence of Participating in a Criminal Organisation are:[1]
Rohan Peter Wakefield, [TB] and [CD] on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TB (No 9)

Details

AGLC: R v TB (No 9) [2025] SASC 139
Case: [2025] SASC 139
Decision Date: 29 August 2025

CaseChat Overview and Summary

In the case of R v TB (No 9), the defendants TB and CD were charged with multiple offences, including Participating in a Criminal Organisation and various firearms-related offences. The Director of Public Prosecutions sought a declaration under section 83G of the Criminal Law Consolidation Act 1935 (SA), concerning the Comancheros Motorcycle Club. The defendants contested the admissibility of certain evidence obtained through warrants under the Surveillance Devices Act 2007 (SA). They argued that the SD Act precluded the use of such evidence in the application for the declaration. The central legal issue before the court was whether evidence obtained under the SD Act could be used in an application for a declaration under section 83G of the CLCA. The court examined the provisions of the SD Act, which restrict the use of "protected information" obtained through surveillance devices. It held that once such evidence is lawfully disclosed in open court during the trial of the underlying offences, it can be used in subsequent proceedings, including the application for the declaration under section 83G of the CLCA. The reasoning was based on the principle that statutes defining the purposes for which information is obtained impose a duty of confidentiality and limit the use or disclosure of the information to those purposes. The court concluded that the SD Act does not prohibit the admission of evidence once it has been lawfully disclosed in open court during the trial. Consequently, the evidence obtained under the SD Act could be used in the application for the declaration. The court ruled that the defendants' application to exclude the SD Act evidence from the declaration application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the evidence may be used in an application pursuant to s 83G of the CLCA. Background TB and CD (the defendants) are jointly charged with the offence of Participating in a Criminal Organisation contrary to s 83E(1) of the CLCA (Count 1) and offences involving firearms and ammunition contrary to the Firearms Act 2015 (SA) (Counts 2-5 and 8-15). The particulars of the offence of Participating in a Criminal Organisation are:[1] 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. [1] Ex Officio Information (filed 17 November 2021). The person other than the defendants named in the particulars above has entered guilty pleas and has been sentenced. At the end of the Information setting out the offences with which the defendants are charged, the following appears:[2] AND the Director will seek a declaration under s 83G of the Criminal Law Consolidation Act, 1935 (SA) in relation to the Comancheros Motorcycle Club and any, and all, names by which that club us [sic] known. [2] Ibid. While several interlocutory applications have been heard and determined, the trial of the defendants has not commenced. The Director submits that he will seek the above declaration either at the conclusion of the evidence led in the trial of the above offences or after the verdicts. The defendants seek an order that the evidence relied upon in support of the declaration cannot include the evidence obtained using a warrant under the SD Act. The defendants contend that the use of the evidence is limited by the SD Act which does not permit the use of the evidence in an application pursuant to s 83G of the CLCA. The evidence – ANOM communications The evidence is what can be referred to as ANOM communications obtained by investigators under a warrant issued pursuant to the SD Act. The application proceeds on the assumption that the evidence was lawfully obtained and is admissible in the trial of at least Counts 1-3 and 8-14 (the offences). Whether the evidence can be admitted in proof of Counts 4, 5 and 15 is unresolved,[3] but that is not material in this application. [3] R v TB & Anor (No 6) [2023] SASC 140, [15]. The circumstances in which the evidence was obtained by investigators is set out in detail in other judgments and rulings.[4] For the purposes of this ruling, it is not necessary to repeat that detail. [4] See, for example, Questions of Law Reserved (Nos. 1 and 2 of 2023) [2024] SASCA 82.The SD Act and s 83G of the CLCA

Evidence

Evidence Before The Court

While several interlocutory applications have been heard and determined, the trial of the defendants has not commenced. The Director submits that he will seek the above declaration either at the conclusion of the evidence led in the trial of the above offences or after the verdicts. The defendants seek an order that the evidence relied upon in support of the declaration cannot include the evidence obtained using a warrant under the SD Act. The defendants contend that the use of the evidence is limited by the SD Act which does not permit the use of the evidence in an application pursuant to s 83G of the CLCA. The evidence – ANOM communications The evidence is what can be referred to as ANOM communications obtained by investigators under a warrant issued pursuant to the SD Act. The application proceeds on the assumption that the evidence was lawfully obtained and is admissible in the trial of at least Counts 1-3 and 8-14 (the offences). Whether the evidence can be admitted in proof of Counts 4, 5 and 15 is unresolved,[3] but that is not material in this application. [3] R v TB & Anor (No 6) [2023] SASC 140, [15]. The circumstances in which the evidence was obtained by investigators is set out in detail in other judgments and rulings.[4] For the purposes of this ruling, it is not necessary to repeat that detail. [4] See, for example, Questions of Law Reserved (Nos. 1 and 2 of 2023) [2024] SASCA 82.The SD Act and s 83G of the CLCA As mentioned, the evidence was obtained using a warrant under the SD Act. As a result, the purpose(s) for which the communications may be used depends upon the provisions of that Act. In Johns v Australian Securities Commission (Johns),[5] Brennan J stated the principle in the following way:[6] A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence.[5] Johns v Australian Securities Commission & Ors (1993) 178 CLR 408 (Johns).[6] Ibid, 424. Given the terms of the SD Act and the way in which the evidence was obtained, several matters are not disputed in this application. The evidence is ‘protected information’ within the meaning of that term in s 44(1) of the SD Act. As ‘protected information’, ss 45(1) and (2) of the SD Act provide for a general prohibition against its use, recording, communication or publication. Section 45(3) provides that the communications cannot be admitted as evidence in any proceedings, subject to certain exceptions within ss 45(4), (5) and s 65B of the SD Act. The exceptions in this matter which may be relevant are those in ss 45(4) and (5). It is helpful to begin with s 45(5).

Decision

Reasons for decision

If the evidence is admitted in open court, s 45(4)(a) disapplies the prohibition upon the admission of the evidence. Once lawfully disclosed in proceedings in open court, the SD Act does not prohibit the evidence being admitted in other proceedings. That is, even if the application pursuant to s 83G is not a stage in the prosecution of the offences, the evidence may be used in that application once it is led in the trial of the offences, provided that occurs in open court. Conclusion For the above reasons, in this matter, I decline to order that in considering whether to grant the application pursuant to s 83G of the CLCA, regard cannot be had to the evidence obtained pursuant to a warrant under the SD Act.

Ratio Decidendi

Legal Principle Established

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