Court of Appeal begins Australian-first Operation Ironside AN0M messages question of law hearings

A lawyer for two South Australian alleged crime kingpins caught up in Operation Ironside is a step closer to having millions of AN0M messages thrown out as evidence.

In a nation leading case, South Australia’s Court of Appeal has been asked to rule on the legality of millions of messages sent and received by users of the encrypted AN0M app.

On June 7, 2021, the AN0M app was disabled and police across the world arrested hundreds of alleged users of the subscription devices.

In Australia the massive crack down was codenamed Operation Ironside, while in the US it was known as Trojan Shield.

Charges included conspiracies to murder and bash as well as actual shooting and stabbings and the trafficking and laundering of vast amounts of drugs and cash.

On Thursday, the SA Court of Appeal begun the first in the nation hearings based on an appeal from a test case run before Justice Adam Kimber in the Supreme Court.

SA has lead the legal challenges to the Ironside arrests after the case of two men charged with firearms offences was fast tracked to the Supreme Court for legal argument.

In April this year Justice Kimber ruled that Australian Federal Police had not been illegally intercepting the messages, but had been legally surveilling copies of the messages sent to a server in Sydney.

Justice Kimber referred a question of law to the Court of Appeal, asking the state’s highest court to confirm whether his decisions were correct.

The question of law is considered another step on the inevitable march of the Ironside test case to the High Court in Canberra.

On Thursday and in front of a court packed with detectives, lawyers and Ironside accused, Damian O’Leary SC, who is acting for two men, launched his argument.

While defence lawyers are challenging multiple aspects of Operation Ironside, potentially the most devastating decision is whether police were intercepting the messages.

Mr O’Leary argued that police had intercepted the messages three times during the near instantaneous process of an AN0M user pressing send on a message and it being received by the AFP servers – codenamed “Rick” and “Morty” – in Sydney.

The AN0M devices were secretly designed to send an exact copy of each message sent – along with other data such as the users location – to the servers each time the send button was pressed.

The AFP then had a surveillance warrant to monitor those servers and from which they recovered millions of messages.

Mr O’Leary argued that if the messages were “intercepted” then police required a phone intercept warrant and would have needed an individual warrant for each and every one of the thousands of AN0M devices operating in Australia.

The argument comes down to when the copy of the message was made. If it was made before the data comprising the message had entered a telecommunication system, then the copy travelled uninterupted to the servers in Sydney.

If the copy was made after entering the system, then it would be an illegal interception and the millions of messages would be ruled inadmissable at trial.

Director of Public Prosecutions Martin Hinton KC and Brendan Lim, for the Commonwealth, will reply to Mr O’Leary’s argument on Friday.

Originally published as Court of Appeal begins Australian-first Operation Ironside AN0M messages question of law hearings