Supreme Court dismisses ‘unfairness’ and ‘forensic disadvantage’ challenges to the AN0M app and messages

Alleged crime figures fighting to have millions of intercepted messages thrown out of court have been hit with a huge legal setback.

Accused drug dealers, bikies and organised crime figures fighting to have millions of intercepted messages thrown out of court have been dealt a legal blow after the Supreme Court ruled Australian Federal Police had not acted “improperly” during the years long investigation.

Supreme Court Justice Adam Kimber has been hearing a series of legal challenges to the admission of messages sent and received over the AN0M app which was secretly being surveilled by the AFP.

Lawyers for two men who are alleged to be senior organised crime figures have argued that the AN0M app was an illegal interception and the AFP were acting unlawfully in monitoring the conversations between their clients and others.

Late last month Justice Kimber rejected two grounds of the legal challenge.

In separate published judgments, he ruled the AFP had not acted improperly during the investigation and also that the accused were not placed at an “unfair disadvantage” by having the messages admitted.

The Supreme Court of South Australia is hearing multiple legal challenges to the compromised AN0M app and the international law enforcement investigation behind its surveillance. Photo: Olivier Morin.

Lawyers for the accused asked Justice Kimber to permanently stay the prosecution against their clients because the AFP had been involved in the “deception” of their clients.

The argument was the users of the phone were having their “unguarded and involuntary” conversations tendered in court.

Justice Kimber agreed the conduct of the AFP in respect of the AN0M app had been “deceptive”.

“Devices were distributed without disclosing that communications sent by users would be accessed by the AFP,” he said.

“Nonetheless, deception by investigators does not, without more, mean that conduct has been improper. The ‘investigation of crime is not a game governed by a sportsman’s code of fair play’.”

The second argument was the messages should be excluded at trial because the police had breached the fundamental right against self incrimination.

The lawyers referred to a recent case in which an accused armed robber had made confessions when questioned by two undercover officers posing as prisoners in a police station cell.

The evidence was ruled inadmissable by the Court of Appeal.

However, Justice Kimber ruled police did not elicit conversations over the app and were not participants in the interactions.

The conversations were voluntary over the app with no interference.

The test case continues with more argument still scheduled and multiple rulings yet to be handed down.

The fate of hundreds of prosecutions across Australia hinges on the challenges in South Australia with all parties acknowledging that the High Court, the nation’s top court, will be the final destination for the test case.