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 or about the 12^th 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
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).
Relevantly, s 45(5)(c) provides that the evidence may be used, recorded, communicated or published, or may be admitted in evidence if it is necessary to do so for the purpose of a ‘relevant proceeding … or a State or Territory relevant proceeding’. Under s 45(9)(a), a ‘State or Territory relevant proceeding’ is defined as the ‘prosecution of a State or Territory offence’.[7] Counts 1-3 and 8-14 are State offences.[8] Within s 6 of the SD Act, ‘prosecution’ is given the following meaning: ‘prosecution, in relation to a criminal offence, includes all stages in the prosecution of that offence, including a committal hearing’ .[9]
[7]    Emphasis added.
[8]    Questions of Law Reserved (Nos. 1 and 2 of 2023) [2024] SASCA 82, [366]-[370].
[9]    Emphasis in original.
Relevantly, s 45(4)(a) disapplies the prohibition within s 45(3) upon the admission of protected information in evidence in any proceedings. Section 45(4)(a) provides that the prohibition does not apply to the ‘use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully’.
The CLCA
To establish Count 1, the prosecution must prove that at the time of the conduct alleged in that count, the Comancheros was a ‘criminal organisation’. Within s 83D of the CLCA, ‘criminal organisation’ is defined to have a meaning which includes a ‘criminal group’. Relevantly, s 83D provides the following with respect to the meaning of a ‘criminal group’:
criminal group—a group consisting of 2 or more persons is a criminal group if—
….
(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.
Section 83G provides:
83G—Evidentiary
(1)If, in any criminal proceedings, the court is satisfied beyond reasonable doubt that a particular group was, at a particular time, a criminal group within the meaning of this Division, the court may, on the application of the Director of Public Prosecutions, make a declaration to that effect.
(2)If a declaration is made in relation to a group under this section, that group will, for the purposes of any subsequent criminal proceedings, be taken to be a criminal group in the absence of proof to the contrary.
The issues
As mentioned, it is accepted for the purposes of this application that the evidence may be lawfully admitted in the trial of the offences. There can be no question that the trial is a ‘stage in the prosecution’ of the offences. Further, for the purposes of this application, there is no dispute that it can be assumed that the evidence will be led in open court.
In my view, it follows from the terms of the SD Act that there are two issues in this application. First, whether the application pursuant to s 83G of the CLCA is a stage in the prosecution of the offences such that the SD Act permits the use of the evidence in the application (the first issue). Separately, or in the alternative, once the evidence is admitted in the trial in open court, whether it may be used in the application pursuant to s 83G as it will have been disclosed in proceedings in open court lawfully (the second issue).
The position of the parties
The first issue
As to the first issue, the defendants submit the communications are not admissible on an application for a declaration pursuant to s 83G. The defendants submit that the use of the evidence is not permitted as the uses of the evidence are limited by the SD Act which does not provide that an application, such as that pursuant to s 83G of the CLCA, is a ‘relevant proceeding’ as it is not within ‘all stages of the prosecution of [the offences]’.[10] The defendants contend that the application is one which is civil in nature as the order sought is a declaration by the Court. In a submission which can be accepted, the defendants contend that a civil proceeding is not a ‘relevant proceeding’ pursuant to the SD Act.[11]
[10] Submissions on Behalf of [CD] Re: Section 83G and ANOM Admissibility (filed 18 July 2025).
[11] Ibid.
The Director submits that s 83G provides the court with a discretion to grant the application. The Director submits that s 83G conditions that discretion being exercised ‘in any criminal proceeding’; the application being made in that proceeding; and the court being satisfied beyond a reasonable doubt that a particular group was, at a particular time, a criminal group within the meaning of that term in s 83D.[12] The Director submits that the application is made at a stage of the prosecution of the offences as it is made in the criminal proceeding (i.e. – in this case, as an aspect, or incident, of the trial).
[12] Written Submissions of the Prosecution for Hearing before the Honourable Justice Kimber on 4 August 2025 (filed 28 July 2025).
Authorities relied upon by the defendants
In submitting that the application should be characterised as a civil proceeding, the defendants sought to draw analogies from two authorities.
The first was Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (CEO of Customs).[13]
[13] (2003) 216 CLR 161.
In CEO of Customs, the appellant had brought proceedings in the Supreme Court in Queensland against the respondent and its directors alleging the commission of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). At first instance, it was held, among other things, that the standard of proof required to obtain convictions was the civil standard. On appeal, the Court of Appeal held that the standard of proof was beyond a reasonable doubt and that the proceedings were criminal proceedings notwithstanding that the proceedings were to be conducted using civil practices and procedures. The Chief Executive Officer of Customs appealed. On the issue of the standard of proof, the High Court unanimously agreed with the Court of Appeal.[14]
[14] Ibid, 166 [2] (Gleeson CJ); 166 [3] (McHugh J); 167 [6] (Gummow J); 190 [90] (Kirby J); 206 [138], 208 [145] (Hayne J).
In submitting that the application for a declaration pursuant to s 83G should be characterised as one which is civil in nature, the defendants particularly directed attention to Hayne J having observed, in the context of holding that the onus of proof relevant in that case was beyond a reasonable doubt, that if the proceedings do not involve a conviction being sought ‘it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice’[15] and significance is to be attached to the orders which are sought in the proceedings and, in particular, whether a conviction is sought.
[15] Ibid, 205 [135] (Hayne J).
CEO of Customs is not of assistance here. The issue in that case was not whether an application for a declaration of the type relevant in this case should be characterised as a criminal or a civil proceeding. The issue was the standard of proof which applied in proceedings that could be conducted in accordance with civil practice and procedure, but which sought proof of a conviction.
The second case relied upon by the defendants was Legal Services Commission v W, JH (LSC v W).[16]
[16] [2012] SASCFC 47.
In LSCv W, two defendants had been charged with murder. One defendant (the witness) pleaded guilty and was to give evidence in the trial of the other defendant (the co-accused). The co-accused issued a subpoena seeking documents held by the solicitor for the witness, the Legal Services Commission. Despite a claim of legal professional privilege, the trial Judge ordered that the defendant could inspect the documents which were produced. The Legal Services Commission appealed.
On appeal, a question arose as to the competence of the appeal. In holding that the appeal was competent, the Court observed that had the appeal been brought by a party in the criminal proceedings (i.e. – the prosecution or the co-accused), it would not have been competent. The Court observed that the only rights of appeal to such parties were those within Part 11 of the CLCA which would not permit an appeal against the order made by the trial Judge. Nevertheless, the Court held that the appeal was competent when brought by the Legal Services Commission as such an appeal was permitted pursuant the Supreme Court Act 1935 (SA) (SC Act). From LSC v W, the defendants seek to draw support for not characterising the application for declaration pursuant to s 83G as not being one that is ‘in any criminal proceeding’ as required by s 83G. On that premise, the defendants submit that to admit the communications in that application would be to proceed in breach of the SD Act.
LSC v W does not assist. LSC v W deals with the applicability of the appeal provisions in the CLCA to an appeal brought by a person who is not a party to criminal proceedings and the competency of such an appeal when it is made pursuant to the SC Act. The determination of that issue turned upon the terms of that Act.
The first issue – is the application a stage in the prosecution of the offences?
The starting point for whether the evidence may be used in support of an application pursuant to s 83G is the SD Act. Whether the evidence may be used depends upon what is permitted by the SD Act.[17] As relevant to the first issue, the issue is whether the application is construed as being within any stage of the prosecution of the offences.
[17] Johns, 423-424.
On any view, the application is materially different from what might be more clearly stages in the prosecution of an offence. In the absence of full submissions, it would not be appropriate to define in any complete way what is within ‘all stages in the prosecution’ of an offence. As just examples, perhaps they might at least include a committal (as expressly provided for in the SD Act); interlocutory applications with respect to the admissibility of evidence; the trial; and sentencing. Assuming that to be so, the application pursuant to s 83G is of a different character. It does not involve the evaluation of whether a person should be committed for trial; determination of evidence admissible in the trial; whether the offences have been proved at trial; or the factual basis for any sentence. The application pursuant to s 83G permits a declaration to be made with the result that there is a presumption in subsequent criminal proceedings, in absence of proof to the contrary.
Nevertheless, I construe the application pursuant to s 83G as a stage in the prosecution of the offences. On its terms, s 83G provides that the application is not separate to the criminal proceeding. It is an application within that proceeding. That is a strong textual indicator of the application being a stage in the prosecution of the offences.
For the above reasons, I decline to order that the evidence cannot be relied upon in an application pursuant to s 83G of the CLCA.
The second issue – once admitted in open court
Given my approach to the first issue, it is strictly unnecessary to deal with the second issue and it might be said to be premature as the evidence is yet to be led in the trial in open court. Nevertheless, as the second issue was raised and, if I am wrong in my approach to the first issue, it is appropriate to say something about it.
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.