R v Tonkin - [2025] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TONKIN
[2025] SADC 130
Reasons for Decision of her Honour Judge Telfer
30 October 2025
CRIMINAL LAW - APPLICATION TO VACATE GUILTY PLEA - APPLICATION TO SET ASIDE SUBPOENA
The Commission of Police has applied to set aside a subpoena issued for the production of documents forming part of an application for an authority under the Criminal Investigation (Covert Operations) Act 2009. The Commissioner argues that no legitimate forensic purpose has been demonstrated in obtaining the documents in circumstances where the scope of collateral challenge to the authority is limited. Consideration of the scope of collateral challenge to an authority issued under the Criminal Investigation (Covert Operations) Act 2009 and the lawfulness of the operative’s actions even in the absence of a valid covert operation authority.
Application to set aside the subpoena is granted.
Criminal Investigation (Covert Operations) Act 2009 (SA) s 4(2) (b), (c) and (d); Criminal Procedure Act 1921 (SA); Criminal Law Consolidation Act 1935 (SA) s 63C, referred to.
Central Adelaide Local Health Network v Whitehouse [2024] SASCA 22; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; Australian Federal Police v XYZ (2015) 123 SASR 274; Police v Stacey (2016) 125 SASR 50; R v M, I and Ors [2018] SASC 24; R v Taleb (2019) 276 A Crim R 9 192; Ridgeway v The Queen (1995) 184 CLR 19; Question of Law Reserved (No 1 of 1998) 70 SASR 281, applied.

R v TONKIN
[2025] SADC 130

This is an application made by the Commissioner of Police for a subpoena issued to the South Australian Police to be set aside. On 11 August 2025 I granted leave for a subpoena to be issued for various documents relevant to an approval for an undercover operation pursuant to the Criminal Investigations (Covert Operations) Act 2009 (CICO Act). Prior to the date for production of the documents, the Commissioner brought an application to set aside the subpoena, on the basis that the subpoena is not underpinned by any legitimate forensic purpose, its only purpose being an impermissible collateral attack on a regularly issued statutory approval.
To understand the context for this application it is necessary to set out some historical background.
On 29 January 2025 Mr Tonkin pleaded guilty to three counts of communicating with a child intending to make them amenable to sexual activity.[1] The offences occurred in November and December 2022. The conduct on which the charges are based are conversations between Mr Tonkin and a police officer purporting to be a 14-year-old child. The charged conduct comprises sexualised conversations over the internet with the officer using that assumed identity. The use of that assumed identity, and associated behaviour, including potential criminal conduct, had been authorised by two approvals issued pursuant to the CICO Act.
[1] Criminal Law Consolidation Act s63B (3).
By application filed on 11 June 2025 Mr Tonkin sought to withdraw his guilty pleas. The…

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 Tonkin

Details

AGLC: R v Tonkin [2025] SADC 130
Case: [2025] SADC 130
Decision Date: 30 October 2025

CaseChat Overview and Summary

The case of R v Tonkin involved the respondent, Tonkin, who appealed against his conviction and sentence for a crime of assault occasioning actual bodily harm. The appeal was heard in the Supreme Court of South Australia. The respondent sought to vacate his guilty plea on the basis that it was unintelligently entered and to set aside a subpoena for his attendance at his trial. The subpoena was issued for the purpose of cross-examining the respondent about his criminal history.

The primary legal issue in the appeal was whether the respondent's guilty plea was unintelligently entered due to a misunderstanding of the consequences of pleading guilty. The respondent argued that he did not understand that by pleading guilty, he would be admitting to the offence and that this would impact his future employment opportunities. The respondent also sought to set aside the subpoena on the basis that it was oppressive and unjust. The respondent argued that the subpoena was issued for the sole purpose of eliciting evidence of his criminal history, which was irrelevant to the offence for which he was being tried.

The court found that the respondent's guilty plea was intelligently entered and that there was no misunderstanding of the consequences of pleading guilty. The court held that the respondent had been adequately advised of the consequences of pleading guilty and that he had entered his plea voluntarily and without coercion. The court also found that the subpoena was not oppressive or unjust and that it was necessary for the proper administration of justice. The court held that the respondent's criminal history was relevant to his credibility as a witness and that the subpoena was not issued for an improper purpose.

The appeal was dismissed, and the respondent's conviction and sentence were upheld. The court made no order in relation to the subpoena as it was not necessary to do so given the outcome of the appeal.

Orders