Questions of Law Reserved (1 and 2 of 2023) [2024] SASCA 82 (27 June 2024).
Background
In 2018 the Australian Federal Police (the AFP) launched a ‘sting’ operation dubbed ‘Operation Ironside’ which was aimed at organised crime generally and in particular drug trafficking. This was part of a joint operation between the Organised Crime section of the AFP and the United States Federal Bureau of Investigations (FBI).
The two law enforcement agencies devised a plan whereby a communications application platform (the ANOM platform) was developed with the assistance of a confidential source who had been associated with a criminal communications network which had been shut down by the FBI. The platform the confidential source devised was such that users of the platform could send encrypted text messages and photographs to each other by what looked to be an ordinary mobile phone. What the users would not know was that the ‘phone’ would send a copy of the message to a computer server to which the police had access. Every message sent over the platform could be read by the police.
By use of a subterfuge the devices were distributed to dozens of underworld figures who had been convinced as part of the sting that the system would provide them absolute protection against their messages being decoded and read. Because of that belief, the users took no steps to attempt to disguise the nature of the communications between each other and their texts provided a rich vein of information for the police as regards drug dealing and money laundering measured in the millions of dollars.
The police in various states, armed with the evidence provided by the text messages, then moved to arrest dozens of alleged offenders. The evidence against them would, in the main, be provided by the text messages sent between the alleged offenders. Those people charged with offences based on the text messages challenged the legality of the police operation. If the courts were to find that the operation was not legal, then the evidence obtained would not be admissible in criminal proceedings.
The legislation governing communications
Generally speaking it is an offence to intercept a communication over the telecommunications system without the knowledge to the parties to that communication, be it a phone call, text message, a photograph or data of some kind. A law enforcement agency however may apply to a judicial officer for an ‘interception’ warrant which allows the agency to make a lawful interception of a communication. However, if an agency makes an interception without a warrant, then any evidence provided by the communication is not admissible in criminal proceedings.
The ANOM system
When a user pressed the ‘send button’ to transmit a text message two things occurred. First a copy of the message was made on the device itself and before the original message was sent over the communications system. Following that occurring, the copy message was sent to the server to which the police had access and the original message sent to the ANOM user for whom it was intended.
The result of the challenge to the police operation
The AFP had not sought an interception warrant. However, the Director of Public Prosecutions, who had brought charges against dozens of alleged offenders based on the content of the text messages sent between them, argued that, based on technical evidence, no ‘interception’ of the communications had occurred and thus no interception warrant had been necessary. The copy of the original message sent to the server to which the police had access had been made within the ANOM device itself and prior to the original message being transmitted over the system. What had occurred was, therefore, not an ‘interception’ of a message being carried over a communications system.
The Court of Appeal agreed with the DPP’s argument.
Comment
The decision of the Court of Appeal in this case means that the evidence of alleged offences provided by the messages sent between the ANOM users will be admissible in evidence during the course of a trial.
However, the decision of the Court of Appeal could be overturned in the High Court of Australia. An application for leave to appeal to the High Court has been lodged. The parties await further developments.