How NSW’s accused organised crime figures plan to have AN0M evidence ruled inadmissable

It was heralded as the global police sting of the century, but a growing band of people arrested in Operation Ironside is fighting to have evidence from AN0M phones thrown out in court.

They are known as the AN0M-50 — ­although their numbers are growing — and they are fighting to have evidence from the police sting of the century thrown out of court.

It was revealed in court this week that 51 accused drug smugglers and suppliers have pooled their collective wealth to launch a desperate bid to stop one of the most important organised crime cases in Australian history.

They were just some of those arrested as part of Operation Ironside, an unprecedented global sting where the supposedly encrypted AN0M phone app was last year revealed to be a program that ­allowed the Australian Federal Police and FBI to intercept millions of messages detailing criminal plots ranging from drug smuggling to murders.

The challengers started off as a small group who hired Australia’s top silk, Bret Walker SC, in an attempt to challenge the AFP’s processes and have the intercepted AN0M messages exclu­ded from being used in court against them. But on Wednesday, in the Downing Centre Local Court, it was revealed the group’s numbers have now swelled to 51, with even more tipped to join the legal fight.

Alleged drug kingpin Mostafa Baluch is brought back to NSW. Picture: Richard Dobson

The sting resulted in more than 340 arrests in Australia. And a large number of those cases, including that of high-profile accused drug smugglers Mark Buddle and Mostafa ­Baluch, will most likely fail if all the AN0M evidence is excluded.

It was also revealed in court that the group had been successful in seeking access to critical evidence for their case, thanks to a development in a similar AN0M challenge playing out in South Australia’s Supreme Court.

That critical evidence includes the “source code” behind the encrypted phone app.

Lawyers in South Australia argued the source code may not have translated the messages properly from what was actually typed by the user of the phones.

On July 29, Justice Sandi McDonald ruled in the SA Supreme Court the defendants should be granted access to the material.

That has paved the way for the NSW AN0M-50 to nominate a specialist expert to view the AN0M source code. The nominated expert will be subjected to a rigorous screening process and background check before they are allowed onto a secure site to view the code.

Equally important, the AN0M-50 are also seeking to challenge whether the AN0M platform that intercepted the messages was covered under the warrant used by police to legally jus­tify the investigation. If it was not, this could cause many AN0M cases to collapse.

If AN0M evidence is excluded, the case against Mark Buddle could fail. Picture: Australian Federal Police

In court on Wednesday, defence lawyers Kiki Kyriacou and Stephen Zahr asked Magistrate Robert Williams to order the AFP to serve any further material in the case by September 2. Magistrate Williams agreed and ordered the matter return to court on September 7.

Baluch, a northern beaches restaurateur who made headlines when he skipped bail on cocaine importation charges, was not previously part of the application.

But his lawyer Mustafa Kheir confirmed this week he had joined the application.

The legal fight over the admissibility of the AN0M messages as evidence has legal experts tipping it will result in the actual cases of the accused being delayed for several years.

“It will go all the way to the High Court,” one expert said. “And that’s even before the (criminal) trial starts. How long is that going to take? Three years? More?”

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