CD & Anor v. Director of Public Prosecutions (SA) & Anor
CD & Anor v. The Commonwealth of Australia

Lower Court Judgment

27/06/2024 Supreme Court of South Australia (Court of Appeal) (Acting Livesey CJ, Doyle and David JJ)

[2024] SASCA 82

Catchwords

Constitutional law – Statutes – Construction – Telecommunications (Interception and Access) Act 1979 (Cth) (“the Act”) – Admissibility of evidence of  communications obtained through encrypted application “AN0M” installed on mobile devices – Where appellants charged with participating in criminal organisation and firearms offences – Where prosecution seeks to lead evidence of communications obtained through “AN0M” application – Where “AN0M” operated such that when mobile device user pressed ‘send’ on text message separate second message created in AN0M application with copy of message and additional data and sent via XMPP server to an “iBot” server which then re-transmitted to servers accessible by Australian Federal Police – Whether AFP’s conduct in obtaining evidence of AN0M communications involved interception of communication passing over telecommunications system contrary to s7(1) of Act and thereby inadmissible – Where Court of Appeal found use of AN0M application and platform did not involve interception of communication – Where s 5F of Act provides communication taken to start passing over telecommunications system when sent or transmitted by person send communication and taken to continue to pass over system until accessible to intended recipient – Whether Court of Appeal erred in failing to find under s 5F(a) of Act that having composed text message and pressing ‘send’ on mobile device connected to telecommunications system start of process for sending message over that system – Whether Court of Appeal erred in failing to find covert copying of text message and covert transmission of message upon pressing ‘send’ unlawful interception – Whether Court of Appeal erred in construction of term “intended recipient” by finding “iBot” server intended recipient under ss 5F(b) and 5GH of Act – Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (“the Confirmation Act”) – Where the Confirmation Act operates retrospectively to confirm that: (a) information or records obtained by the AFP under specified warrants in connection with the operation were not intercepted while passing over a telecommunications system; and (b) information obtained in reliance on those warrants was obtained under the Surveillance Devices Act 2004 (Cth) or the Crimes Act 1914 (Cth) – Whether the Confirmation Act is invalid in whole or in part because it is an impermissible exercise by the Parliament of the judicial power of the Commonwealth – Whether the Confirmation Act is invalid in whole or in part because it impermissibly interferes with and undermines the institutional integrity of courts vested with federal jurisdiction.