TB v THE KING [2025] SASC 124

Accused/Applicant: TB Counsel: MR C CALDICOTT (23/08/2022), MR D AGRESTA (27/04/2023) - Solicitor: CRAIG CALDICOTT LAWYERS Accused/Applicant: CD Counsel: MR M ABBOTT KC (23/08/2022), MR D AGRESTA (27/04/2023) - Solicitor: ILES SELLEY Prosecution/Respondent: THE KING Counsel: MR M HINTON KC DPP (23/08/2022, 27/04/2023) WITH MS A CAIRNEY AND MS E MACGREGOR (27/04/2023) - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/08/2022, 27/04/2023 File No/s: SCCRM-21-460 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v TB & ANOR (No 7) [2025] SASC 124 Judgment of the Honourable Justice Kimber 4 August 2025 CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS CRIMINAL LAW - EVIDENCE - RELEVANCE CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE The defendants are alleged to have committed various offences while members of the Comanchero Motorcycle Club (the Comancheros). Count 1 is an offence of Participating in a Criminal Organisation. The remaining counts are offences relating to firearms and ammunition. The criminal organisation in Count 1 is alleged to be the Comancheros. On the prosecution case, the remaining offences were connected to the Comancheros and committed as an aspect of the membership of the defendants of that club. -- 1 of 39 -- The prosecution seeks the admission of discreditable conduct evidence in the respective cases of each defendant. That evidence includes, but is not limited to, evidence of their alleged membership of the Comancheros and their respective involvement in uncharged offences, including drug trafficking. The evidence of discreditable conduct is sought to be admitted for a use which relies upon propensity (the alleged propensity use) and uses which do not (non-propensity uses). In so far as the alleged propensity use is concerned, the prosecution submits that the evidence can establish the defendants have a propensity to engage in organised criminal activity, including drug trafficking, commercial drug manufacturing and firearms offending, in furtherance of the objects and purpose of a criminal organisation. The defendants submit the evidence sought to be admitted for non-propensity uses does not have a probative value which outweighs any prejudicial effect it may have. The defendants submit that the evidence sought to be admitted for a propensity use does not establish the propensity alleged or, in the alternative, does not have strong probative value having regard to the issues arising at trial. The defendants also seek the exclusion of other specific identified evidence on the grounds that it is irrelevant or, if relevant, is more prejudicial than probative. The defendants further seek an order that Count 1 should be tried separately from the remaining counts. Held: 1. The discreditable conduct evidence sought to be admitted for non-propensity uses is admitted pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (the Act). 2. The discreditable conduct evidence sought to be admitted for the alleged propensity use is admitted for that use pursuant to s 34P(2)(b) of the Act. 3. With respect to the defendants’ application for the exclusion of specific identified evidence, some evidence is admitted; some evidence is excluded; and some evidence may need to be the subject of further submissions. 4. With respect to the defendants’ application for Count 1 to be tried separately, the application is dismissed. Crimes Act 1914 (Cth) Part IAB; Criminal Procedure Act 1921 (SA) s 102(5); Evidence Act 1929 (SA) ss 34P, 34T; Firearms Act 2015 (SA) s 6(2); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 66(1), 88, 92, 95, 238(1); Law Enforcement (Powers and Responsibilities) Regulations 2016 (NSW) reg 6(1), referred to. Ahern v The Queen (1988) 165 CLR 87; Barnes (a pseudonym) v The King [2025] SASCA 53; Cantanzariti v The Queen [2021] SASCA 110; Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Eddy (a pseudonym) v The King [2024] SASCA 115; Hammer v The Queen [2022] SASCA 75; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Myers v The Queen [2015] UKPC 40; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Cluse (2014) 120 SASR 268; R v Corak & Palmer (1982) 30 SASR 404; R v Garner; R v Webb (2021) SASR 454; R v Heinze [2017] SASCFC 155; R v Mayfield (1995) 63 SASR 576; R v Sidaros [2019] ACTSC 177; R v Soteriou [2013] SASCFC 114; Sadler v The King [2023] SASCA 63; TL v The King (2022) 275 CLR 83; Tripodi v The Queen (1961) 104 CLR 1; Sutton v The Queen (1984) 152 CLR 528; Western Australia v Martin [2018] WASC 151, applied. R v TB & Anor (No 6) [2023] SASC 140, discussed. R v TB & Anor [2023] SASC 45, considered. -- 2 of 39 -- R v TB & ANOR (No 7) [2025] SASC 124 Criminal: Application – Chapters 3, 10 and 11; discreditable conduct and separate trials KIMBER J: 1 TB and CD (the defendants) are jointly charged with several counts on a single Information. Both defendants have elected for trial by judge alone. 2 The counts are: Participation in a Criminal Organisation (Count 1); Possessing a Firearm Without a Licence (Count 2); Possessing a Firearm Without a Licence (Count 3); Possessing a Sound Moderator Without the Approval of the Registrar of Firearms (Count 4); Possessing Ammunition Whilst not being the Holder of a Firearms Licence or a Permit granted by the Registrar of Firearms (Count 5); Aggravated Possessing a Firearm Without a Licence (Count 8); Aggravated Possessing a Firearm without a Licence (Count 9); Aggravated Possessing a Firearm without a Licence (Count 10); Possessing a Firearm Without a Lawful Identifying Mark (Count 11); Possessing a Firearm Without a Licence (Count 12); Possessing a Firearm Without a Lawful Identifying Mark (Count 13); Aggravated Possessing a Firearm without a Licence (Count 14); and Possessing Ammunition Whilst not being the Holder of a Firearms Licence or a Permit granted by the Registrar of Firearms (Count 15).1 3 The explanation for the absence of Counts 6 and 7 is that a former co-accused, Mr Wakefield, was charged with those two counts on his own but has pleaded guilty. 4 The defendants have filed several interlocutory applications seeking the exclusion of certain evidence and the determination of other issues. This ruling deals with the following issues: discreditable conduct; an amended interlocutory application referred to as Chapters 3, 10 and 11;2 and applications that Count 1 be tried separately from the remaining counts. An outline of the prosecution case 5 The following outline is taken from a draft opening address provided by the prosecution.3 For this ruling, I have assumed the facts set out in the draft opening can be established by admissible evidence taking the prosecution case at its highest. To decide the issues raised in the applications the subject of this ruling, the defendants did not submit that approach was inappropriate. Nothing within 1 There is a possibility that Counts 4, 5 and 15 might not proceed if certain evidence is not admissible with respect to those counts (see R v TB (No 6) [2023] SASC 140, [15]). Nevertheless, Counts 4, 5 and 15 are still referred to in this ruling. If those were ignored, it would not be material to any issue dealt with in this ruling. 2 Amended Interlocutory Application (dated 17 February 2023, FDN 260). 3 Draft Opening Address (received 17 June 2022). -- 3 of 39 -- [2025] SASC 124 Kimber J 2 this ruling should be taken to reflect any view as to what will ultimately be established at trial. 6 On the morning of 12 January 2020, police officers attended a unit at Newton (the Newton unit). Mr Wakefield rented the Newton unit and lived there with his partner. Mr Wakefield had been under police surveillance over a period of some months before 12 January 2020. Mr Wakefield, TB and CD had been linked to a substantial methamphetamine laboratory at Harold’s Cross in New South Wales (Harold’s Cross). Harold’s Cross had been raided by police on 11 January 2020. On 12 January 2020, when they attended the Newton unit for the first time, the police told Mr Wakefield they had uncovered a laboratory in New South Wales and referred to it as ‘Slug’s lab’. ‘Slug’ is a nickname for CD. After police left the Newton unit on this occasion, communications followed between Mr Wakefield, the defendants and others about the attendance of police. Those communications included the topic of whether the police might return to search the Newton unit. Later the same day, the police did precisely that. 7 The search of the Newton unit led to the discovery of the firearms and ammunition the subject of each of the charges on the Information. It also led to the discovery of methamphetamine which is within the particulars of Count 1 in addition to evidence of the disposal of other methamphetamine by Mr Wakefield. 8 In the garage was a white Holden utility (the Holden utility). There was a blue esky in the rear tray of the Holden utility. Within the esky was a handgun (Count 2) and a shotgun in two parts (Count 3). In the same location, police found a sound moderator (i.e. – silencer) (Count 4) and a large amount of ammunition (Count 5). In the rear tray of the utility, police also located about 250 grams of methamphetamine. There is no count charged specifically with respect to that methamphetamine but, as set out below, it forms part of the particulars of Count 1. 9 Police removed the Holden utility from the unit and conducted a more thorough search on 13 January 2020. During that search, police found two concealed compartments in the wall separating the cabin of the utility from the rear tray. One compartment was behind the driver’s seat and the other was behind the passenger seat. The two compartments were custom built for the purpose of transporting firearms and drugs without detection. Within the hidden compartment behind the driver’s seat, there were two handguns, two rifles and a revolver. Those five firearms are the subject of Counts 8, 9, 10, 12 and 14. Counts 11 and 13 reflect that identifying marks had been removed from one handgun and the revolver. Within the same compartment, police also found a large amount of ammunition (Count 15). 10 As of 12 January 2020, TB and CD were members of the Comanchero Motorcycle Club (the Comancheros). On the prosecution case, Mr Wakefield was knowingly storing the Holden utility and the firearms in the rear tray on behalf of TB and CD while also knowing that TB and CD were acting on behalf of the Comancheros. The prosecution accepts Mr Wakefield might not have known of -- 4 of 39 -- [2025] SASC 124 Kimber J 3 the hidden compartment and the items within it. On the prosecution case, the presence of the items within the hidden compartment was known to both TB and CD. 11 The storage of the Holden utility and relevant contents is the conduct the subject of Count 1. The particulars of that offence are: Rohan Peter Wakefield, TB and CD on or about the 12th day of January 2020 at Newton and other places in the State of South Australia, participated in a criminal organisation, namely, the Comancheros Motorcycle Club, in that Rohan Peter Wakefield, TB and CD did support the said organisation by storing and controlling access to a white Holden Commodore utility, bearing registration number S299 BOP, containing unlawful firearms and controlled drugs, knowing or being reckless as to whether it was a criminal organisation and knowing or being reckless as to whether his participation in that organisation contributed to the occurrence of any criminal activity. 12 To establish Count 1, the prosecution submitted it must establish beyond a reasonable doubt: 1. The defendants were part of a criminal organisation (i.e. – the Comancheros). 2. Each defendant participated in the criminal organisation. On the prosecution case, Mr Wakefield was storing the Holden utility containing the firearms, methamphetamine and ammunition on behalf of TB and CD, and TB and CD controlled access to the Holden utility containing those items on behalf of the Comancheros. 3. Each defendant knew he was participating in a criminal organisation. 4. Each defendant knew his participation contributed to the occurrence of criminal activity.4 13 The searches of the police were not limited to the Holden utility. On 12 January 2020, police searched the Newton unit. The kitchen sink was full of water — pieces of a plastic bag and a drink bottle were in that water. The bag and bottle appeared to have been cut open. Methamphetamine was detected in the water. Wet plastic bags were in the bin in the kitchen along with disposable gloves which were also wet. Methamphetamine was detected on the outside of some of those gloves. On the prosecution case, there is extremely strong support for the hypothesis Mr Wakefield was a contributor to DNA profiles detected inside some of the gloves. 4 Having had to consider s 83E for the purpose of another matter, it might be that the elements of Count 1 can be stated as: (i) the defendants stored and controlled access to the Holden utility, knowing it contained controlled drugs and/or unlawful firearms (the act); (ii) the defendants did that act knowing it was in support of the Comancheros; (iii) at the time of the act, the Comancheros was a criminal organisation – and – the defendants knew, or were reckless, about that; and (iv) at the time of the act, the defendants knew, or were reckless, as to whether the act contributed to the occurrence of any criminal activity. However, for the purpose of this ruling, if there is a difference, it is not material. -- 5 of 39 -- [2025] SASC 124 Kimber J 4 14 On the prosecution case, Mr Wakefield had disposed of methamphetamine into the kitchen sink after the first attendance of police officers on 12 January 2020 and before the return of the police later that day. Count 7 with which Mr Wakefield was charged related to that methamphetamine. The prosecution says Mr Wakefield was in possession of that methamphetamine for the Comancheros and disposed of it at the direction of TB and/or CD. As I have noted, TB and CD are not charged with any offence with respect to the methamphetamine the subject of Count 7. However, evidence which may indicate they knew of that methamphetamine, and approved of its disposal, is relied upon to shed light on their knowledge of the items in the Holden utility and their respective roles in the counts with which they have been charged. 15 Police also located items commonly associated with drug dealing in the unit. There were several sets of digital scales in the kitchen. Methamphetamine was on two of those sets of scales. In locations around the garage where the Holden utility had been parked, police found significant amounts of dimethyl sulfone — a cutting agent used to dilute methamphetamine prior to sale. An impression matching the left middle finger of Mr Wakefield was located on a shopping bag containing some of that dimethyl sulfone. Police searched the roof space of the Newton unit. In that roof space was a shopping bag containing ammunition (Count 6). ANOM communications 16 Other than the evidence found at the unit and within the Holden utility, the primary evidence upon which the prosecution relies is communications obtained from an encrypted communication platform known as ANOM (the ANOM communications). The ANOM communications were collected by the Australian Federal Police (AFP) as part of a controlled operation pursuant to Part IAB of the Crimes Act 1914 (Cth). That operation was known as Operation Ironside. Detail with respect to the ANOM platform is set out in a separate judgment,5 and need not be repeated. 17 In short, the ANOM communication platform was a network of specifically configured encrypted mobile phone devices (ANOM devices) capable of running the ANOM communication application which exchanged end-to-end encrypted communications with other ANOM devices. The ANOM devices were standard smart phone devices specifically configured to operate the ANOM application to the exclusion of other standard telecommunication functionality. The application was disguised as a functioning calculator and a user had to enter a Personal Identification Number (PIN) code into the calculator to open the application. The prosecution seeks to have admitted communications between Mr Wakefield, TB, CD and others (including persons said to be members of the Comancheros other than TB and CD) in the period 1 December 2019 to 10 April 2021. A volume of the messages sought to be led has been tendered on the voir dire.6 5 R v TB [2023] SASC 45. 6 Exhibit VD P1A. -- 6 of 39 -- [2025] SASC 124 Kimber J 5 Three alleged agreements 18 Challenges to the admissibility of the ANOM communications on the grounds they were unlawfully or otherwise improperly, obtained have been, or are, the subject of several separate interlocutory applications. Challenges to admissibility on those grounds are not the subject of this ruling. At this stage, it assists in understanding some of the alleged factual background to set out aspects of the submissions of the prosecution about alleged agreements which make certain communications to which a defendant was not a party admissible in the case against that defendant. For the purposes of this ruling, the defendants do not dispute the existence of the three alleged agreements nor that communications to which he is not a party, but which are said to be admissible for the truth of what is communicated, are admissible in that way. CD did not press a ground within Chapters 3, 10 and 11 which challenged this approach.7 CD nonetheless emphasised that issues such as relevance and/or the meaning of specific messages may be the subject of dispute at trial.8 TB has not made any relevant application. 19 The prosecution relies upon what may be described as the ‘co-conspirator’s rule’.9 The prosecution has submitted there were three agreements which make certain communications admissible even if the relevant defendant was not a party to the communication or conduct. The prosecution contends the three agreements are as follows. 20 First, it is the prosecution case that Mr Wakefield was a ‘worker’ or ‘driver’ for TB and CD who were senior members of the Comancheros. In that capacity, it is alleged that there was an overarching, or foundational, agreement as between Mr Wakefield, TB and CD that Mr Wakefield would store, adulterate and transport controlled drugs on behalf of the criminal organisation of which TB and CD were principal members (the first agreement). 21 Second, against the background of the first agreement, the prosecution case is that there was a particular agreement between Mr Wakefield, TB and CD to store the Holden utility at the Newton unit. The Holden utility was used by the criminal organisation for its unlawful activities, including the couriering of drugs and storage of firearms. The agreement included that the Holden utility would contain unlawful items, including firearms (the second agreement). 22 Third, as between TB and CD, the agreement extended beyond the second agreement and included the fact that the utility would be stored at Mr Wakefield’s address at Newton with unlawful firearms and ammunition stowed in the concealed compartment within the vehicle (the third agreement). It is not suggested Mr Wakefield was a party to the third agreement. 7 Amended Interlocutory Application - Chapters 3, 10 and 11, [45]. 8 Email from Mr D Agresta dated 14 May 2023. 9 Tripodi v The Queen (1961) 104 CLR 1, 7; Ahern v The Queen (1988) 165 CLR 87, 100; R v Corak & Palmer (1982) 30 SASR 404; Cantanzariti v The Queen [2021] SASCA 110, [14], [166] and [169]. -- 7 of 39 -- [2025] SASC 124 Kimber J 6 Discreditable conduct evidence 23 The Director seeks the admission of evidence of discreditable conduct by TB and CD. Four bodies of evidence have been identified using the descriptions below: 1. Involvement in the Harold’s Cross laboratory and interstate drug trafficking; 2. Control of Mr Wakefield through legal practitioners; 3. The use of ‘Sky ECC’ and ‘Cipher’ encrypted mobile devices; and 4. Membership and association with the Comancheros. 24 I will adopt the same descriptions of the evidence. The prosecution submits the only evidence which might involve a propensity use is the evidence of membership and association with the Comancheros. Section 34P of the Evidence Act 1929 (EA) 25 Section 34P of the EA regulates the admission of discreditable conduct evidence. Section 34P provides:10 (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct 10 Evidence Act 1929 (SA) (EA), s 34P. -- 8 of 39 -- [2025] SASC 124 Kimber J 7 from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. 26 The approach to be adopted by a Judge in considering the admissibility of discreditable conduct evidence was discussed by Hinton J in R v Heinze (Heinze).11 Section 34P has been amended since Heinze, but the approach of Hinton J remains instructive: It should be observed that, unlike ss 97 and 98 of the Evidence Act 1995 (Cth), s 34P of the Evidence Act 1929 steers away from the use of labels to describe chains of reasoning reliant upon evidence of discreditable conduct. The focus is upon use. Descriptive labels mask analysis and risk error. The nature of the evidence with which s 34P is concerned has traditionally been treated with great care by the common law because of the prejudicial risk associated with its admission – the risk that the trier of fact will be persuaded to convict because the accused has offended in the past (the impermissible use). Section 34P approaches the risk of prejudice arising from the impermissible use by requiring that the prosecutor articulate clearly the use or uses for which he or she intends to deploy discreditable conduct evidence. That way a trial Judge can determine: i. whether the permissible use or uses proffered fall within s 34P(2)(a) only or ss 34P(2)(a) and (b); ii. the probative value the evidence attracts; iii. the risk of its impermissible use; iv. if the proffered use is one falling within s 34P(2)(a), whether the probative value of the evidence admitted for the permissible use or uses substantially outweighs any prejudicial effect it may have on the defendant. In arriving at this conclusion the Judge is to consider whether the permissible use or uses is/are, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that (the impermissible use) purpose; v. if the proffered use is one falling within s 34P(2)(b), whether in addition to the probative value of the evidence substantially outweighing any prejudicial effect it may have, it has strong probative value having regard to the particular issue or issues arising in the trial; vi. whether despite the evidence being admissible, reason arises to exclude it nonetheless in the exercise of the residual discretion; vii. superintend the use of the evidence in the event of its admission in the light of the basis for its admission (i.e. for the articulated permissible use or uses); and 11 [2017] SASCFC 155. -- 9 of 39 -- [2025] SASC 124 Kimber J 8 viii. fashion the appropriate direction required by s 34R.12 (footnotes omitted) 27 A similar approach was adopted in R v Garner; R v Webb (Garner & Webb) where the Court, although also dealing with a previous version of s 34P and only dealing with s 34P(2)(a), observed:13 Section 34P(1) of the Act provides that evidence of discreditable conduct is inadmissible subject to the decision of a trial judge to admit it pursuant to s 34P(2). The impermissible use identified in s 34P(1) is the drawing of an inference of guilt from the fact that an accused has engaged in other conduct which has no relevant connection to the offence. Evidence of this kind is often referred to “general propensity” or “bad person” evidence. Section 34P(2)(a) provides for the admission of discreditable conduct evidence that does not have a general propensity use. Section 34P(2)(b) expressly provides for the admission of specific propensity or disposition evidence. As with the admission of any evidence, in assessing the probative value of a particular item of evidence for the purposes of s 34P of the Act, it is necessary to identify the particular issue or issues to which it is said to be relevant, and the use sought to be made of the evidence. In making that determination, a trial judge will need to identify the impermissible and permissible uses of the evidence. Once the permissible uses of the evidence are identified, the probative value of the evidence must be assessed in accordance with the appropriate criteria. The probative value of evidence of discreditable conduct can only be assessed in the context of all of the evidence on which the prosecution relies and to which it has a relevant connection. Having identified the probative value of the evidence (if any), a trial judge must then determine whether they are satisfied that the probative value of the evidence substantially outweighs its prejudicial effect. When making that determination pursuant to s 34P(2)(a), the trial judge also has to consider whether the permissible use can be kept sufficiently separate and distinct from the impermissible use as required by s 34P(3). (footnotes omitted) 28 The approach of a trial Judge when considering the admissibility of evidence, whether discreditable conduct or not, is to be determined in the following way. It is to be assumed the fact finder will accept the evidence. The focus of the task of the Judge is on the capacity of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue.14 The task includes consideration of what is open for the fact finder to conclude.15 29 I now turn to assess each body of discreditable conduct sought to be adduced by the prosecution. 12 Heinze, [71]. 13 R v Garner; R v Webb (2021) SASR 454 (Garner v Webb), [31]-[34]. 14 Ibid, [24]. 15 Ibid, [27]. -- 10 of 39 -- [2025] SASC 124 Kimber J 9 Harold’s Cross and interstate drug trafficking 30 On 11 January 2020, New South Wales Police discovered an industrial scale clandestine drug laboratory at a rural property at Harold’s Cross in New South Wales (NSW). On the prosecution case, TB and CD were involved in that laboratory. On the prosecution case, this was ‘Slug’s lab’ with ‘Slug’ being an alias used by CD. 31 Between 9 September 2019 and 10 January 2020, police observed the movements of two NSW residents — ML (ML aka [redacted] using the Anom handle [redacted]) and CW (CW aka [redacted] using the Anom handle [redacted]). Both CW and ML were observed in South Australia meeting with Mr Wakefield. On the prosecution case, ML, CW and Mr Wakefield were engaging in interstate drug couriering activity on behalf of TB and CD. 32 On and before 6 January 2020, Mr Wakefield had been specifically soliciting ‘work’ from TB via ANOM and was advised by TB, ‘Will have heaps of work for you starting next week, over 50kg’. 33 Communications between Mr Wakefield, TB and CW on 8 January 2020 described a transaction where half a kilogram of cocaine and 20kg of iodine in five vacuum sealed bags was transported from NSW by CW and delivered to Mr Wakefield and stored at Mr Wakefield’s home address. On 9 January 2020, the iodine was delivered via a driver to MC (MC aka [redacted] using the Anom handle [redacted]). It is also alleged that MC worked for TB and CD. 34 On 11 January 2020, the Harold’s Cross laboratory was searched by NSW Police at the conclusion of the manufacturing process. LD (LD aka [redacted]) and KR (KR aka [redacted]) were located at the premises and subsequently arrested and charged under NSW law. Approximately 46.4 litres of methylamphetamine oil was in their possession and seized. Discussions over ANOM suggest that the oil was intended to be delivered to MC via Mr Wakefield, CW and/or ML. 35 Following the discovery of Harold’s Cross, communications were exchanged over ANOM. On the prosecution case CD, TB and other users of ANOM openly discussed how police identified the laboratory and whether the wider syndicate had been compromised. TB informed MC of the occurrence in NSW and advised MC to ‘clean up’. 36 On 12 January 2020, police from the State Intelligence Branch attended the home address of Mr Wakefield. Police advised Mr Wakefield that ‘Slug’s lab’ in NSW had been located by police. Mr Wakefield messaged TB via ANOM informing him of the police attendance and the mention of ‘Slug’s lab’. TB and CD subsequently discussed the attendance of police between themselves and others. Specifically discussed was whether Mr Wakefield knew CD as ‘Slug’. Significantly, discussions followed about the Holden utility in Mr Wakefield’s premises and plans for its urgent removal. -- 11 of 39 -- [2025] SASC 124 Kimber J 10 37 It is in the wake of these events that TB informed Mr Wakefield of the likelihood of an imminent search of his premises by police. In that setting, a discussion occurred about the need to move the Holden utility and conceal items that were in Mr Wakefield’s possession. It is also in this context that the search of Mr Wakefield’s premises on 12 January 2020 arose, ultimately resulting in the discovery of the firearms and controlled drugs the subject of the charges. The potential relevance 38 The prosecution submits the evidence of the finding of the laboratory at Harold’s Cross and the other events described before 12 January 2020 is admissible for the following non-propensity purposes:16 (i) To establish relevant background and the context in which the messages on 12 January 2020 arose, specifically to explain the catalyst for the search of the Newton unit and the relevance and significance of ‘Slug’s lab’ — also to demonstrate the events did not arise ‘out of the blue’; (ii) To establish the provenance of the ANOM messaging insofar as the platform accurately records the time and subject matter of the messages — this is circumstantially proved in part by the timing of known events, including the arrest of LD and KR at the Harold’s Cross laboratory and the attendance by police at the Newton unit where ‘Slug’s lab’ is mentioned to Mr Wakefield; (iii) To establish the relationship between TB and CD as co-principals in their criminal enterprise; (iv) To establish the role of Mr Wakefield as a ‘worker’ beholden to, and acting at the direction and instruction of, TB and CD in the enterprise — also to explain the relative power dynamic between TB/CD and Mr Wakefield; (v) To explain how it was, and the purpose for which, the use of the ANOM devices by the defendants arose; (vi) To explain esoteric references contained within the ANOM material, namely the ‘nicknames’ used to describe various other parties (i.e. – [redacted], [redacted], [redacted], [redacted] and others) which is necessary to contextualise messages relevant to the charged offending which denote a consciousness of guilt or contain admissions. 39 As to (iv), the prosecution submits that use is of particular significance to all counts due to the reliance of the prosecution on the extended definition of ‘possession’. The prosecution submits that the trier of fact may only find a defendant guilty if satisfied beyond a reasonable doubt the relevant defendant was 16 Prosecution Written Submissions on Separate Trial Applications and Discreditable Conduct (filed 19 August 2022), [32]. -- 12 of 39 -- [2025] SASC 124 Kimber J 11 in possession of the firearms in a manner other than physical possession. That is, within one of s 6(2)(a)–(c) of the Firearms Act 2015 (SA) which provides: (2) For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if— (a) the person has physical possession or control of the item or has the item in the physical possession or control of another; or (b) the person has and exercises access to the item; or (c) the person controls access to the item. 40 The prosecution submits that evidence of the events and circumstances preceding the discovery of the Holden utility containing the firearms the subject of the counts is therefore relevant to prove several facts in issue. Those issues include that the defendants exercised control and authority over Mr Wakefield and controlled access to the firearms held by Mr Wakefield on their behalf (including firearms and ammunition in a concealed compartment without the presence of these items being known to Mr Wakefield). The submissions of the defendants 41 The defendants advance two separate submissions. First, that the evidence of Harold’s Cross should not be admitted as the search of that property was under the authority of a warrant which was invalid. It is submitted that, as a result, the search was unlawful, and the evidence should be excluded. Second, CD submits that he is not charged with respect to Harold’s Cross and it is not suggested he was in possession of anything manufactured there, or any other drug. CD submits the evidence is more prejudicial than probative. As I understood it, TB initially accepted the evidence was relevant and admissible with respect to him for non- propensity purposes. However, I have since taken him to have adopted the submissions of CD. The legality of the search at Harold’s Cross 42 The search of Harold’s Cross was conducted under the authority of a crime scene warrant granted pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).17 That warrant was granted on 10 January 2020. In submitting the warrant was invalid, the defendants rely upon two separate matters.18 First, the expiry date of the warrant had been typed on the face of the warrant as 10 January 2020 (the day before the search conducted under the purported authority of the warrant) but that date had been crossed out in handwriting and replaced with the date of 16 January 2020 (the handwritten amendment) without that amendment being initialled. It is said that this means that the warrant is ambiguous as to the expiry date and the warrant is invalid as the 17 Exhibit VD P51. 18 Further and Better Particulars of Paragraph 2.3 in respect of Amended Interlocutory Application – Chapters 3, 10 and 11 (filed 13 April 2023, FDN340). -- 13 of 39 -- [2025] SASC 124 Kimber J 12 handwritten amendment needed to be initialled (the first error).19 The submission is not that the handwritten amendment was not approved by an appropriate authorising officer. The submission is that the officer was obliged to initial the handwritten change but did not do so. The defendants submit the failure to initial the handwritten amendment makes the search on 11 January 2020 unlawful (i.e. – the warrant was only valid until the original date typed on the face of the warrant, 10 January 2020). 43 Second, the defendants submit that paragraph two of the warrant was left blank (the second error).20 Paragraph two read as follows: 2. To exercise all reasonably necessary crime scene powers as listed in paragraphs (d)-(s) below, at, or in relation to: 44 Immediately below those words, there is an empty box in which an address might be written or premises otherwise detailed. Below that empty box, the following words appear: The applicant has reasonable grounds for suspecting that it is necessary to exercise crime scene powers at the crime scene for the purpose of persevering, or searching for and gathering, evidence of the commission of: (a) Manufacture Prohibited Drug – Section 24 Drug Misuse and Trafficking Act 1985 Supply Prohibited Drug – Section 25 Drug Misuse and Trafficking Act 1985 45 The warrant then sets out the crime scene powers which could be exercised in paragraphs in (d)-(s) respectively. The first error 46 The defendants submit that any handwritten amendment to the warrant needed to be initialled for that amendment to have any effect. The defendants direct attention to a footnote to the warrant within which the following words appear: The authorised officer should sign and date the warrant and initial any corrections. 47 The defendants submit those words within the warrant obliged that any corrections to the warrant be initialled and, in the absence of that being done, the purported amendment would have no effect. 48 There is no dispute the warrant is in the prescribed form. There is also no dispute that the words upon which the defendants rely appear in that prescribed form within the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (the Regulations). 19 Ibid, [1.1], [1.3] and [2.1]. 20 Ibid, [1.2] and [2.2]. -- 14 of 39 -- [2025] SASC 124 Kimber J 13 49 Section 66(1) of the LEPRA provides a warrant ‘is to be in the form prescribed by the regulations’. 50 Section 238(1) of the LEPRA provides: (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (emphasis added) 51 Regulation 6(1)(f) then provides that Form 16 is the form for a crime scene warrant issued pursuant to Part 7 of the LEPRA. As set out above, Form 16 within the Regulations then contains the words which are the foundation for the submission with respect to what the defendants submit is the first error. 52 In my view, the handwritten amendment did not need to be initialled, and the search conducted after 10 January 2020 was not unlawful because it was not initialled. My reasons follow. 53 There is nothing in the LEPRA which requires authorising officers to initial before such an amendment can have effect. While s 238(1) of the LEPRA provides for regulations to be made, that power is limited to the making of regulations which are not inconsistent with the Act. It might be doubted that the regulations could provide an obligation not expressly set out in the Act. 54 Nevertheless, that is not necessary to decide. If the Regulations and the words within the warrant had some effect, I do not construe them as making it mandatory that amendments be initialled. That approach would not be consistent with the use of the word ‘should’ rather than the word ‘must’. The choice of the word ‘should’ is more consistent with providing guidance as to what is good practice, rather than imposing a mandatory obligation. For that reason, the failure of the authorising officer to initial the change made in handwriting did not render that change without effect. I reject that the first error is made out and I reject the warrant is invalid for that reason. The second error 55 In my view, it was not necessary to complete the box appearing immediately after the words ‘to exercise all reasonably necessary crime scene powers as listed in paragraphs (d)-(s) below, at, or in relation to:’. It follows the warrant was not invalid for that reason. My reasons follow. 56 On its face, the warrant authorised Detective Senior Constable Ledger to enter premises known as Lot 59 of DP 754886 Vernelly Road, Harold’s Cross 2622. As the warrant made it lawful to be on those premises, a crime scene could be established, and crime scene powers could be exercised without completing the box within the warrant which was left blank. There was no need to state on the -- 15 of 39 -- [2025] SASC 124 Kimber J 14 face of the warrant that crime scene powers could be exercised at the premises. This follows due to the terms of ss 88 and 92 of the LEPRA. Section 88 provides: A police officer who is lawfully on premises (whether by authority of a crime scene warrant or for any other lawful reason) may— (a) establish a crime scene, and (b) exercise crime scene powers in accordance with this Part, and (c) stay on the premises for those purposes. 57 Section 92(1) and (2) provide: (1) A police officer may exercise any of the crime scene powers set out in section 95(1)(a)-(l) if— (a) a crime scene has been established under this Part, and (b) the police officer exercising the power suspects on reasonable grounds that it is necessary to do so to preserve evidence of the commission of an offence in relation to which the crime scene was established. (2) A police officer may exercise any of the other powers set out in section 95(1), but only if— (a) a crime scene has been established under this Part, and (b) the police officer or another police officer applies for a crime scene warrant in respect of the crime scene, and (c) the police officer suspects on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence. 58 On its face, the warrant establishes that ‘the applicant has reasonable grounds for suspecting that it is necessary to exercise crime scene powers at the crime scene for the purpose of preserving, or searching for and gathering, evidence of the commission of’ the offences identified. The crime scene powers which may be exercised were listed in the warrant and correspond to the matters in s 95(1) of the LEPRA. Whether the evidence is more prejudicial than probative 59 Taking the evidence at its highest, the evidence with respect to Harold’s Cross is part of the evidence which can establish that Mr Wakefield believed, before 12 January 2020, that TB and CD had knowledge of and a connection to ‘Slug’s lab’; that TB and CD had some involvement in ‘Slug’s lab’; and that CD was known as ‘Slug’ by Mr Wakefield, TB and others who were subsequently involved in communications about that lab. -- 16 of 39 -- [2025] SASC 124 Kimber J 15 60 With respect to both defendants, and with respect to all counts, I am satisfied the evidence with respect to Harold’s Cross has a probative value which outweighs any prejudicial effect it may have. I am also satisfied the permissible uses are, and can be kept separate, and distinct from the impermissible use (i.e. – rank bad person reasoning). I am satisfied the evidence has at least the following permissible uses which do not rely upon propensity reasoning: 1. To explain the catalyst for the police attendance at Newton and subsequent searches; 2. To establish that CD is ‘Slug’ and was known by that name by Mr Wakefield, TB and others which places communications after the first attendance of the police at the Newton unit into a proper context; 3. To place into a proper context the ANOM communications which referred to ‘Slug’s lab’ after the first attendance of the police; 4. As part of the evidence which establishes the role of Mr Wakefield with respect to the items at the Newton unit (i.e. – that he was acting at the direction of TB and/or CD); and 5. To establish the provenance of the ANOM messages (i.e. – as part of the evidence which establishes the times and content of relevant messages are accurate). 61 Further, as will be later addressed, this evidence is part of the evidence which establishes the propensity for which the prosecution contends. Use of Sky ECC and Cipher encrypted devices 62 As I understand it, I am to determine whether this evidence should be admitted accepting the summary of this evidence by the prosecution. The following is drawn from that summary. 63 The ANOM communications sought to be admitted contain statements by the defendants which admit the use of the encrypted communications platforms Sky ECC (Sky) and Cipher or from which that may be inferred. Evidence is sought to be led explaining the nature and existence of Sky and Cipher as encrypted communications network service providers with similar functionality to ANOM. 64 Prior to the events the subject of the charged offending in January 2020, there are fewer ANOM messages sent by the defendants. It is evident from the content of the communications exchanged via ANOM that prior to January 2020, the Comancheros, including the defendants, were communicating via Sky and had commenced transitioning to ANOM. The ANOM communications sought to be admitted by the prosecution contain references to the defendants’ use of Sky to communicate about Harold’s Cross and what the prosecution refers to as ‘the broader enterprise’. -- 17 of 39 -- [2025] SASC 124 Kimber J 16 65 On the prosecution case, the evidence of the use of Sky and Cipher up to the time of the charged offending potentially discloses conduct capable of being described as discreditable conduct as it is either the use of encrypted devices that has a reputation for being associated with criminal activity or, as an inference open that the defendants were using Sky and Cipher to communicate in relation to the drug enterprise. On that basis, the Director submits the evidence potentially falls within the s 34P of the EA. 66 The Director submits the above evidence has the following permissible uses which do not rely upon a propensity:21 1. To explain the prior association and relationship between TB, CD and Mr Wakefield in that their relationship predated the ANOM communications relevant to the charged offending and did not arise ‘out of the blue’ or from an innocent or new association. 2. To explain the context and meaning of specific messages which refer to the use of Sky (and the use of Cipher by at least TB and CD), being necessary to contextualise the relatively few messages exchanged prior to the events of 12 January 2020. 3. To explain the meaning of messages which state that certain associates in New South Wales use Sky; this being necessary to contextualise messages which contained admissions and content consistent with a consciousness of guilt, as well as to explain the scope of the enterprise. 67 The Director also submitted that, if admitted for one or more of the purposes above, any content which referred to unrelated or irrelevant offending could be kept separate. I have taken that to mean that content which might reveal, or give rise to an inference, that the applications were being used to discuss or engage in criminal acts did not need to be led. That said, at least some of the communications outlined as examples by the prosecution in later submissions22 appear to give rise to an inference that both defendants might have been using at least Cipher to engage in discreditable conduct and knew that Sky was being used by what the prosecution describes as the criminal organisation. The submission of the defendants 68 TB submitted it was not evidence of discreditable conduct but did not articulate why the evidence should not be admitted. CD submitted that the evidence was discreditable because it would involve evidence that the relevant communications application was being used to engage in discreditable conduct (or would involve evidence from which that could be inferred). 21 Prosecution Written Submissions on Separate Trial Applications and Discreditable Conduct (filed 19 August 2022), [56]. 22 Prosecution Reply to the Accused [CD]’s Submissions on Discreditable Conduct (filed 7 September 2022), [9]-[10]. -- 18 of 39 -- [2025] SASC 124 Kimber J 17 Discussion 69 Using an encrypted device is not, of itself, discreditable conduct. However, in the context of a trial in which substantial evidence will be led that a different encrypted device (i.e. - ANOM) was allegedly used to engage in discreditable conduct, I am satisfied that it is appropriate to treat the use of Sky and Cipher as discreditable conduct. That approach is further confirmed by the messages used as examples which tend to confirm that approach and appear to evince an intention to lead evidence of at least some potentially discreditable conduct. 70 Nevertheless, I find that evidence of the use of Cipher and/or Sky by the defendants has the permissible uses above and that the probative value of the evidence outweighs any prejudicial effect it may have on the defendants. Further, I find that the permissible uses are, and can be kept, sufficiently separate and distinct from the impermissible use of rank bad person reasoning to remove any appreciable risk of the evidence being used for that purpose. 71 For the above reasons, I decline to exclude this aspect of the evidence. ‘Control’ of Mr Wakefield through legal practitioners 72 After the search of the Newton unit and the Holden utility, there are communications about legal representation for Mr Wakefield. In his written submissions, the Director described this material in the following way:23 The ANOM material sought to be admitted contains statements by the accused that denote an ability to control [Mr] Wakefield through specific legal practitioners acting on behalf of, and in the interests of, TB and CD. The material also infers a suspicion held by TB and CD of Mr Wakefield following the events of 12 January 2020 and an intention or ability by TB and CD to coerce or unduly influence Mr Wakefield to conceal their own involvement in the offending through Mr Wakefield’s legal practitioner. 73 In other written submissions, the prosecution detailed specific communications between 13 January 2020 and 21 January 2020.24 Among these communications, there are references to the arrest of Mr Wakefield; arranging legal representation for him; and assurances that legal fees will be paid and discussions about what version of events Mr Wakefield might advance for the items found. 74 The term ‘discreditable conduct’ is not limited to conduct which amounts to an offence,25 but arranging legal representation for another person is not discreditable conduct. Insofar as the communications might suggest the defendants were concerned about what Mr Wakefield may say, evidence which might establish that concern is also not discreditable. 23 Prosecution Written Submissions on Separate Trial Applications and Discreditable Conduct (filed 19 August 2022), [59]. 24 Exhibit VD P1A, message numbers 393, 404-405, 508-518, 542-572, 821-823, 828-835 and 879-884. 25 See Sadler v The King [2023] SASCA 63, [27] and Barnes (a pseudonym) v The King [2025] SASCA 53, [2]. -- 19 of 39 -- [2025] SASC 124 Kimber J 18 75 However, the prosecution goes further and submits there were communications about falsely concealing the involvement of the defendants (false concealment) and evidence giving rise to an inference of ‘an ability to control [Mr] Wakefield through specific legal practitioners’ (control through legal practitioners).26 76 Regardless of whether the evidence is discreditable conduct, the Director submits the evidence has the following permissible uses:27 1. To establish the relationship between TB and CD as co-principals in their criminal enterprise and to demonstrate functions and activities consistent with the characteristics and behaviours of the criminal organisation – being directly relevant to Count 1; 2. To establish the provenance of the ANOM messaging insofar as the platform accurately records the time and subject matter of the messages — circumstantially proved in part by the timing of known events, including, but not limited to, proceedings relating to the defendants, bail, the subsequent police attendances and arrest of Mr Wakefield and the raising and payment of legal fees for legal services issued to Mr Wakefield; 3. To demonstrate the nature of the relationship between TB and/or CD and Mr Wakefield as one involving a power imbalance whereby Mr Wakefield was wholly compliant, subservient and loyal to TB and CD; and 4. To contextualise allegedly incriminating statements made by the defendants bearing directly on facts relevant to the charged offences. The submissions of the defendants 77 CD submitted that the evidence relies on propensity reasoning (at least with respect to the counts other than Count 1). I reject that submission. None of the uses above involve propensity reasoning. CD also submitted that the evidence is not relevant and does not establish the matters for which the prosecution contends. 78 TB initially submitted the evidence was not relevant and, for that reason, not admissible. However, I understand him to have later accepted the communications between at least himself and Mr Wakefield might be admissible to establish that TB was prepared to assist Mr Wakefield both following the search of the Newton unit and following Mr Wakefield’s subsequent arrest. That preparedness to assist being relevant to whether TB was acting in a way consistent with having been involved in what had been found at the Newton unit. In the case of CD, any 26 Prosecution Written Submissions on Separate Trial Applications and Discreditable Conduct (filed 19 August 2022), [59]. 27 Prosecution Written Submissions on Separate Trial Applications and Discreditable Conduct (filed 19 August 2022), [60]. -- 20 of 39 -- [2025] SASC 124 Kimber J 19 evidence admissible in the case against him demonstrating the same preparedness to assist will also be relevant in the same way. Discussion 79 I find that the subject communications have at least four permissible uses identified above. If the evidence is discreditable conduct, it has a probative value which outweighs any prejudicial effect it may have upon the defendants and that the permissible uses identified above are, and can be kept, sufficiently separate and distinct from the impermissible use of rank bad person reasoning. 80 As for the contention of the prosecution that the evidence can establish that TB and/or CD were able to ‘control’ Mr Wakefield through solicitors, I have perused the ANOM communications with that submission in mind. I have done so bearing in mind that it is not submitted that any solicitor behaved inappropriately by breaching legal professional privilege or in some other way. If the submission about ‘control’ is pressed by the prosecution, I will need to be taken to the communications in more detail. 81 As for the suggestion the communications give rise to an inference of the defendants encouraging a false account to be given by Mr Wakefield, that is evidence of discreditable conduct.28 Encouraging Mr Wakefield to give a false account is evidence which might shed light on whether the defendant offering that encouragement was acting in a way consistent with being involved in what had been found at the Newton unit. I find that evidence has that permissible use; that the evidence outweighs any prejudicial effect it may have on the relevant defendant; and that the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use of rank bad person reasoning so as to remove any appreciable risk of being used for that purpose. Membership and association with the Comancheros The alleged propensity 82 The prosecution submits that the evidence can establish the defendants have a particular propensity. The prosecution describes the propensity as a ‘propensity to engage in organised criminal activity, including drug trafficking, commercial drug manufacture and firearms offending, in furtherance of the objects and purpose of that criminal organisation’ (the alleged propensity).29 83 As I understand the approach of the prosecution, it is submitted that propensity is established in the following way. First, by establishing that the Comancheros was a ‘business’ with a ‘propensity’ – with that ‘propensity’ being demonstrated through the activities of its members. Put another way, that the existence and purpose of the Comancheros was to engage in criminal activity in 28 See Sadler v The King [2023] SASCA 63, [27] and Barnes (a pseudonym) v The King [2025] SASCA 53, [2]. 29 Notice of Intention by Director to Adduce Discreditable Conduct Evidence (filed 17 June 2022). -- 21 of 39 -- [2025] SASC 124 Kimber J 20 furtherance of the overall objects (or business) of that criminal organisation (i.e. – the objects being to make money through criminal activity). It is submitted that the organised criminal activity that formed the business of the Comancheros included to manufacture and traffic in illicit drugs and the acquisition and storage of firearms (as part and parcel of at least the unlawful drug activities) (the first step). Second, the prosecution contends that by virtue of their membership of, and other involvement in, the activities of the Comancheros, TB and CD had the propensity to adhere to, work for and promote the unlawful business activities and objects of the Comancheros (the second step). The prosecution submits that to describe the evidence as having a non-propensity use (e.g. – motive) will create ‘an artificial narrative about the activities of the Comancheros generally, and the substance and effect of the evidence which goes to prove the charged offences’.30 The relevant fact(s) in issue 84 The prosecution submits that the alleged propensity makes it more likely that the possession of the Holden utility by Mr Wakefield, at the direction of TB and CD, was the business of the Comancheros; that the contents of the Holden utility was part of the Comancheros’ unlawful activities; and that each defendant was knowingly participating in a criminal organisation (Count 1). The prosecution also submits the alleged propensity makes it more likely that TB and CD were in possession of the items the subject of Counts 2-5 and 8-15. The submissions of the defendants 85 As I understand it, the submissions of TB and CD are to the same effect. Namely, that the evidence does not establish the propensity and that the sole use of the evidence is the impermissible use (i.e. – rank bad person reasoning). The first step 86 As set out above, the evidence is to be taken at its highest for the prosecution. 87 On the assumption the three witnesses mentioned immediately below can give admissible evidence of the matters set out, I am satisfied the evidence can establish that a key purpose of the Comancheros was to engage in organised criminal activity, including drug trafficking and manufacturing and offences involving firearms. The evidence assumed to be admissible for this ruling is as follows.31 88 It is proposed that Detective Sergeant Tuplin (DS Tuplin), a SAPOL officer within the Crime Gangs Task Force, give evidence in relation to the criminal activities common to many motorcycle groups and the Comancheros in particular. It is proposed that he explain the origins of the ‘1%’ symbol often displayed by members of the Comancheros and what the symbol is intended to convey. Namely, 30 Prosecution Written Submissions – Discreditable Conduct – R v Alzuain & Ors (filed 1 September 2022), [19]. 31 The submissions proceeded on the assumption that the evidence summarised was both relevant and could be given by the three police officers. -- 22 of 39 -- [2025] SASC 124 Kimber J 21 that those who subscribe to that mentality do not consider themselves to be bound by the laws of society. It is proposed DS Tuplin will give evidence that it is common for a high proportion of members of the Comancheros to have criminal histories. It is said by the prosecution that DS Tuplin can substantiate that observation by reference to statistical information in relation to the number of members of the Comancheros, past and present, who have been convicted of offences relating to drugs and firearms. 89 The prosecution also proposes to lead evidence from Detective Acting Sergeant O’Hearn (DS O’Hearn). DS O’Hearn is an AFP officer attached to the National Anti-Gangs Squad. DS O’Hearn can give evidence about the connection between criminal motorcycle gangs and criminal activity; specifically, drug manufacture, importation and distribution, and firearms offending. DS O’Hearn can say that the possession and use of illegal firearms is an ‘ingrained element in [motorcycle gang] culture’ and that possession and use of illegal firearms is critical to the maintenance and expansion of their criminal enterprises. In addition, the prosecution intends to adduce evidence from Detective Sergeant Groenewegen (DS Groenewegen), a NSW police officer. It is proposed that he give evidence about the connection between motorcycle gangs and criminal activity, including drug manufacture and distribution, and firearms offending. It is proposed that he give evidence of the proclivity of those associated with motorcycle gangs to possess and use firearms, and of the culture of violence, particularly of that involving firearms, within the Comancheros. 90 In addition, on the prosecution case, it is also said to be apparent from the ANOM messages that it was a purpose of the Comancheros as a group to manufacture and traffic illicit drugs. On the prosecution case, the activities of the Comancheros included the manufacture of methamphetamine in a large laboratory at Harold’s Cross and the couriering of that methamphetamine, and other associated items, to South Australia with the assistance of drivers associated with the Comancheros, including Mr Wakefield.32 The second step 91 As I understand it, the prosecution submits this step can be established in two ways. 92 First, as each defendant was a member of the Comancheros, the prosecution submits that a propensity of the relevant defendant to adhere to, and participate in, 32 During the investigation, two NSW residents were identified as drug and cash couriers suspected to be transporting methamphetamine manufactured at the NSW laboratory to South Australia. Between the 9th of September 2019 and the 10th of January 2020, police observed the movements of the two NSW residents when they entered South Australia and were seen to meet with the accused, Mr Wakefield, on 9, 20 and 24 September 2019, and on 5, 12 and 22 October 2019. See the affidavits of: Samuel Cheek, dated 22 March 2020 (surveillance on 9 September 2019 and 24 September 2019); Jason Burner dated 23 September 2021 (surveillance on 20 September 2019); Luke Sibbons dated 21 March 2020 (surveillance on 24 September 2019); Adam Crouch dated 11 January 2022 (surveillance on 30 September 2019); Christopher Dunworth, dated 21 March 2020 (surveillance on 23 October 2019); Andrew Irvine, dated 19 August 2021 (surveillance on 9 January 2020). -- 23 of 39 -- [2025] SASC 124 Kimber J 22 the unlawful activities of the Comancheros (more specifically drug trading and offences relating to firearms) may be inferred from that membership when viewed in the context of the evidence of the three police officers referred to above. 93 On the prosecution case, TB and CD were members of the Comancheros. CD became a ‘patched’ member on 12 July 2019 and was member up until at least 7 June 2021 (the date of his arrest). CD held more than one office with the Comancheros. He was at least the Secretary of the Adelaide Chapter and Treasurer of the Thailand Chapter. TB became a ‘patched’ member of the Comancheros on 12 July 2019 and remained a ‘patched’ member up until 7 June 2021 (the date of his arrest). The Director proposes to lead evidence about the role of the Treasurer and Secretary within the Comancheros and the ‘patch’ system. It is said the Treasurer manages the finances of the Comancheros, including the proceeds of any illegal activity. It is said the Secretary maintains the club records and corresponds with other Chapters of the same club and other like clubs. It is said that a ‘patched’ member is a full member of the Comancheros who has earned the right to wear the patch or colours of the Comancheros. 94 However, in evaluation of whether TB and/or CD had behaved in a way capable of showing the propensity alleged, the prosecution relies upon more than just their membership. 95 Second, the prosecution submits that there is evidence that TB and CD had themselves participated in the unlawful activities of the Comancheros. Bearing in mind the particulars in Count 1, the offences in Counts 2-5 and 8-15, and the alleged propensity, it is evidence of involvement with drugs and firearms that has significance. 96 There is evidence from which it can be inferred that TB and CD had both been involved in offending involving drugs beyond the drugs found at the Newton unit. It is not necessary to be comprehensive. With respect to TB, on the prosecution case, there is evidence, at least, that before 12 January 2020, TB had been involved in some way in the Harold’s Cross laboratory;33 TB arranged for the delivery of drugs and iodine to South Australia, with at least iodine being delivered to Mr Wakefield;34 and that, on 25 March 2020, he communicated with CD and two other members of the Comancheros about drug activities.35 With respect to CD, on the prosecution case, there is evidence that he was involved in Harold’s Cross in some way,36 as well as the communications on 25 March 2020 to which reference has just been made. 97 As for involvement with firearms, I do not understand it to have been submitted that evidence sought to be adduced in the trial of this matter can establish TB had any involvement with a firearm outside of the charged conduct. The 33 See the messages within VD P1 commencing at session number 530586. 34 Exhibit VD P1A – Chapter 1. 35 Affidavit of DS Tuplin, 10 February 2022, page 238–239 [16]. 36 Exhibit VD P1A, message [132] and the messages in footnote 25 above. -- 24 of 39 -- [2025] SASC 124 Kimber J 23 prosecution referred in submissions to the involvement of CD with a firearm outside of the counts charged. It is not clear to me that all the ANOM communications referred to by the prosecution in support of that submission with respect to CD necessarily bear that out in an admissible way.37 There are communications on 25 May 2020 which might support that CD had an interest in firearms and that any such interest was linked to his involvement with the Comancheros,38 but those communications were not the subject of submissions so I have put them aside. However, there is a communication in which CD makes what may be an implied admission to a preparedness to deal in or possess firearms. On 12 January 2020, he indicates that he does not have any firearms available to supply to another because of ‘huge hits last few days’.39 An inference from his reference to more than one ‘hit’ is that CD is referring not only to the firearms the subject of the alleged offences, but also to firearms seized at the laboratory in NSW.40 Given his position within the Comancheros, and the inference that he was involved in the laboratory in NSW, an inference is that CD was in the habit of selling firearms (beyond the firearms at the Newton unit) but had to reject the request on 12 January 2020, in part, as a result of what had been seized in NSW. Some authorities 98 As set out above, for the purposes of this ruling it is assumed the evidence can establish the matters the subject of the first step. 99 It is necessary to say something about the second step. As mentioned, the evidence the subject of this step is not limited to the defendant being a member of the Comancheros. CD is said to have held leadership roles and both defendants are said to have participated in unlawful activities connected to the Comancheros. 100 There are several judgments in which membership of a group has been admitted for purposes other than a propensity use. Nevertheless, my searches have not uncovered a judgment in which it has been held that membership of a club, the membership of which engages in criminal activity, of itself, can establish an individual member has a relevant propensity. 101 In R v Cluse,41 the appellant was alleged to be one of several Hells Angels members or associates who forced their way into the home of Mr Sandery, a member of the Finks. During the break in, shots were fired and a child was wounded. The break in and shooting were alleged to be retaliation against Mr Sandery in the context of ongoing rivalry between the Hells Angels and the 37 The communications referred to were messages [232] and [311-312] within Exhibit VD P1A. In the absence of further submissions, it is not clear to me that message [232] establishes involvement with any firearm as opposed to knowledge that another had such involvement. 38 Affidavit of DS Tuplin, 10 February 2022, pages 135-136 (IX). 39 Exhibit VD P1A, message [311]-[312]. 40 See Images 1 and 2 within Chapter 3 of VD P1A. 41 (2014) 120 SASR 268. -- 25 of 39 -- [2025] SASC 124 Kimber J 24 Finks. An issue in the trial was identity. More particularly, whether Mr Cluse was one of the persons who committed the offences at the home of Mr Sandery. 102 A police officer gave evidence about the characteristics of bikie gangs, hierarchy and culture with specific reference to the Hells Angels. There was no effort to lead that evidence for a propensity purpose. It was held on appeal that the evidence had non-propensity uses: to prove motive; to interpret the scope of the plan and the execution of the crimes; and to help negate innocent explanations for other items of circumstantial evidence capable of being connected to Mr Cluse.42 103 In R v Hawi (No 1) (Hawi),43 members of the Comancheros were accused of being party to an agreement to inflict grievous bodily harm to a member(s) of the Hells Angels at Sydney Airport. Some defendants objected to evidence being led of the hierarchy and leadership positions, roles and responsibilities of club members, as well as club rules of the Comancheros. The evidence was not sought to be led for a propensity purpose. The trial Judge ruled that the evidence was admissible for at least the following non-propensity purposes: to explain the conduct of individual accused, that being relevant to the determination by the jury of the existence and scope of the joint enterprise alleged; relevant to the ‘reason for the attendance of the seven Comanchero members at the airport … [and] also to the reasons for the conduct of the twelve within the airport’ (i.e. – motive); and relevant as to whether the attendance of the accused at the airport was an innocent one.44 104 In rejecting the jury might use the evidence for a propensity purpose, the trial Judge held:45 The process of reasoning that the Crown will ask the jury to apply to the evidence does not involve the drawing of inferences that there was conduct that conformed with the accused’s previous character, reputation, or conduct, or tendency that the accused had. 105 In R v Alzuain (Alzuain),46 the prosecution case is that a man was killed when nine men associated with the Hells Angels attended an address in search of a member of the Finks (the intended target). The prosecution alleges each of the nine men had a link to the Hells Angels (one was a member, seven were ‘prospects’ and the ninth was said to be closely associated with a Chapter of the Hells Angels). On the prosecution case, possibly in a case of mistaken identity, the deceased was killed. On the prosecution case, the motive for the nine men attending the address in search of the intended target was ongoing hostilities between the Finks and the Hells Angels. To establish the ongoing hostilities, and the asserted propensity, the prosecution relied upon five previous incidents said to involve the Hells Angels and the Finks, and the links of the accused to the Hells Angels. One of the five incidents was the alleged fire-bombing by the Finks of what was described as the 42 R v Cluse (2014) 120 SASR 268, 285 [72]. 43 R v Hawi (No 1) (2011) 220 A Crim R 452 (Hawi). 44 Hawi, 459 [46]. 45 Hawi, 460 [51]. 46 R v Alzuain & Ors (No 2) [2022] SASC 162. -- 26 of 39 -- [2025] SASC 124 Kimber J 25 ‘Alzuain family home’. The prosecution sought to have the evidence said to establish ongoing hostilities between the Hells Angels and the Finks, other evidence about the characteristics of the Hells Angels and the links of the accused to the Hells Angels admitted for a propensity purpose. The alleged propensity was described as a specific propensity to react violently to the firebombing of the Alzuain family home by virtue of the defendants’ association with the Hells Angels. The Judge refused to admit the evidence for that purpose. 106 Among the reasons of the Judge for refusing to admit the evidence for a propensity purpose was that he was not satisfied that membership or association with the Hells Angels (without more) established the propensity alleged. The Judge held that three of the five previous incidents did not establish the Hells Angels were the instigators of the violent confrontations. As to a fourth, there was no evidence any defendant was involved. The fifth incident was the alleged fire- bombing which was not said to have been committed by any person connected to the Hells Angels. In the absence of evidence that any defendant had acted as an aggressor in the earlier incidents, the Judge refused to admit the evidence for a propensity purpose. The Judge held that mere membership or association with the Hells Angels was insufficient. The Judge held the evidence: … falls far short of demonstrating that any of these accused had previously acted in a manner which showed a propensity or disposition to act violently…47 107 As to whether the propensity of an individual defendant could be established on the basis that the individual had joined a group which had shown a propensity through the actions of other members, the Judge held that the previous actions of an associate of the club are not cogent evidence that other members have a propensity to act in such a manner.48 The Judge admitted the evidence for three non-propensity purposes: motive; to explain the number of persons who attended the address; and to explain an aspect of the evidence of a prosecution witness. 108 The approach above is consistent with other judgments in which evidence of the structure, nature and conduct of motorcycle gangs has been admitted for non-propensity purposes such as motive; to explain why the accused may have acted in a certain way; and to explain evidence which might seem unlikely.49 109 The judgments above do not set the limits of the permissible uses of evidence of this type. As was said in Myers v The Queen,50 it is not possible to lay down general rules and the ‘ambit of gang evidence will depend, in any particular case, on what legitimate role it may have in helping the jury to resolve one or more of the issues in the case’.51 47 Ibid, [88]. 48 Ibid. 49 Western Australia v Martin [2018] WASC 151; R v Sidaros [2019] ACTSC 177; Myers v The Queen [2015] UKPC 40. 50 Myers v The Queen [2015] UKPC 40. 51 Ibid, [56]. -- 27 of 39 -- [2025] SASC 124 Kimber J 26 110 Nevertheless, and although not necessary to decide, if the evidence relied upon to establish the alleged propensity was limited to the evidence to be given by the three police officers about the Comancheros and the respective defendant having been a member of that club, I doubt that I would find that the propensity existed or, that if it did, it had the strong probative value required. Respectfully, the practical effect of proceeding in a way inconsistent with the doubt just expressed would be that every member of a club such as the Comancheros shares the alleged propensity – and – that it has strong probative value regardless of the specific criminal activity the subject of the offence with which they are charged. However, as mentioned, that is not necessary to decide as there is evidence of the conduct of both defendants beyond them having joined the Comancheros. Section 34P of the Evidence Act 111 As set out in s 34P, whether evidence of discreditable conduct should be admitted requires attention to the probative value of that evidence, any prejudice caused and the issues in the trial. Probative value 112 Probative value is to be assessed taking the evidence at its highest52 and having regard to all other evidence in the case.53 113 The probative value of evidence is the extent to which the evidence ‘could rationally affect the assessment of the probability of the existence of a fact in issue’.54 Propensity evidence will have strong probative value if it could rationally affect the assessment of the probability of a fact in issue to a strong extent.55 114 In Hughes v The Queen (Hughes),56 Kiefel CJ, Bell, Keane and Edelman JJ held that the ‘trier of fact reasons from satisfaction that a person has a [propensity] to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue’.57 The starting point ‘requires identifying the [propensity] and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence’.58 115 In evaluating the probative value of the evidence, a consideration may be the proximity in time between the conduct the subject of the offence and the discreditable conduct evidence.59 52 IMM v The Queen (2016) 257 CLR 300, [44]; R v Bauer (a pseudonym) (2018) 266 CLR 56, [69]. 53 TL v The King (2022) 275 CLR 83, [28]. 54 See IMM v The Queen (2016) 257 CLR 300, [14]. The definition of ‘probative value’ in the EA is understood to be the same as the Uniform Evidence Acts. 55 Hughes v The Queen (2017) 263 CLR 338 (Hughes), [16]. 56 Ibid, [16]. 57 Ibid, [16]. 58 Ibid, [16]. 59 TL v The King (2022) 275 CLR 83, [37] -- 28 of 39 -- [2025] SASC 124 Kimber J 27 Prejudice 116 Section 34P(2)(a) of the EA demands that the probative value of the evidence outweighs any prejudicial effect that it may have on the defendant. The reception of propensity evidence may occasion prejudice in more than one way. In Hughes, it was held:60 … The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years. 117 It has been observed that the use of evidence for both propensity and non- propensity purposes may increase the risk of impermissible rank bad person reasoning and other potential sources of prejudice. In Eddy (a pseudonym) v The King,61 the Court of Appeal in this State referred with approval to the Victorian Court of Appeal having observed that it would be desirable that the prosecution only rely on the evidence for one purpose, in order to simplify the directions required to be given to the jury, and to simplify the task of the jury.62 Consideration 118 It is helpful to re-state the alleged propensity. It is that the defendants have ‘a propensity to engage in organised criminal activity, including drug trafficking, commercial drug manufacture and firearms offending, in furtherance of the objects and purpose of the Comancheros’. 119 I find that, taking the evidence at its highest, the evidence can show that both defendants had the alleged propensity at the time of the alleged offences. 120 First, there is evidence permitting the inferences that each defendant had been involved personally in activities involving drugs – and – that those activities were connected to the Comancheros. 121 Second, the evidence can show that both defendants had joined a group (i.e. – the Comancheros) the key purpose of which was to engage in offences involving drugs. 122 Put another way, the alleged propensity exists as the evidence can show that the membership of the Comancheros were in the business of dealing in illicit drugs; both defendants were members of the Comancheros; and both defendants had 60 Hughes (2017) 263 CLR 338, [17]. 61 Eddy (a pseudonym) v The King [2024] SASCA 115, [133]-[137]. 62 Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [104]. -- 29 of 39 -- [2025] SASC 124 Kimber J 28 involved themselves in that business.63 With respect to CD, the evidence goes further as it may be inferred that he had held leadership roles within the Comancheros and had also been involved in firearms with that conduct also being connected to the Comancheros. Permissible propensity uses – prejudicial effect 123 As set out in s 34P of the EA, whether evidence of discreditable conduct should be admitted for a propensity use requires attention to whether the evidence has strong probative value having regard to the issues in the trial and any prejudicial effect the evidence may have on the defendant. In evaluating probative value, a consideration may be the proximity in time between the conduct the subject of the offence and the evidence of discreditable conduct.64 In this case, the evidence of discreditable conduct is proximate to the offences. 124 I am satisfied the evidence relied upon to establish the propensity has strong probative value having regard to the issues arising at trial. In Count 1, it makes it more likely that the possession of the Holden utility by Mr Wakefield was at the direction of CD and TB; that its contents were an aspect of the organised criminal activity of the Comancheros; and that each defendant was a knowing participant in a criminal organisation. In Count 2-5 and 8-15, it makes it more likely that each defendant was in possession of the items the subject of those counts. 125 I recognise that I am satisfied that the alleged propensity exits and has strong probative value, despite there being no evidence that TB had involved himself with firearms. That does not deprive the evidence of having strong probative value despite not all particulars within Count 1 relating to drugs and Counts 2-5 and 8- 15 not being drug offences. That is so as evidence will be led about the connection between drug offending and firearms offending,65 evidence which may be accepted for the purposes of this ruling. 126 It may be accepted that the evidence has a risk of having a prejudicial effect, only one form of which is the risk of rank bad person reasoning. There is the need to have regard to whether the propensity use is, and can be kept, sufficiently 63 R v Soteriou [2013] SASCFC 114, [16]; Hammer v The Queen [2022] SASCA 75, [37]-[38]. 64 TL v The King (2022) 275 CLR 83, [37]. 65 Affidavit of David Fahy, dated 30 August 2022 at [5]: ‘From my experience in conducting investigations into drug trafficking offences, I submit that the presence of weapons, including firearms, whilst not being an absolute certainty, can be a common occurrence. The reason for this is that drug trafficking is a clandestine business which carries a degree of risk to both the buyer and the seller. In the event of conflict between parties it is not considered appropriate to seek help from law enforcement. In my experience there are several reasons why weapons, including firearms, are commonly found in association with drug trafficking. Reasons may include: for self protection from other parties involved in the trade who may wish to steal their drugs or cash; for protection against any law enforcement intervention; as props to enhance an image of criminality and toughness; to specifically inflict harm against others involved in the drug trade, for example rival drug dealers or customers who are unable to pay debts; [and] in their own right firearms are a valuable commodity which can be traded for illicit drugs’. -- 30 of 39 -- [2025] SASC 124 Kimber J 29 separate and distinct from rank bad person reasoning.66 Further, by reference to Hughes, I have earlier set out other ways that prejudice may be occasioned. 127 I am satisfied that the propensity use is, and can be kept, separate and distinct from rank bad person reasoning. In this case, the other risks of prejudice are diminished in more than one way. First, the defendants have elected for trial by judge alone. Second, even if the evidence said to establish the propensity was not admitted to establish the propensity use, most of the evidence would still be led. A substantial proportion of the evidence would still be admitted as it has relevance beyond its ability to establish the alleged propensity (e.g. – as evidence of motive and, with respect to Harold’s Cross, for the non-propensity uses earlier identified). 128 For the above reasons, I find that the discreditable conduct evidence relied upon to prove the alleged propensity has a permissible use which outweighs any prejudicial effect it may have upon both TB and CD; has strong probative value having regard to the particular issues arising at trial; and that the permissible propensity use is, and can be kept, sufficiently separate and distinct from the impermissible use of rank bad person reasoning so as to remove any appreciable risk of the evidence being used for that impermissible purpose. Admissibility for non-propensity purposes 129 I add some further matters. 130 As set out in the judgments discussed, evidence of membership of a club, such as the Comancheros, can have non-propensity uses (e.g. – motive). I am satisfied the evidence is also relevant to establish a possible motive for the defendants to engage in the charged conduct (i.e. – to advance the aims and purposes of the Comancheros, a club of which they were at least members). In my view, that use of the evidence has probative force which outweighs any prejudicial effect and can be kept separate and distinct from the impermissible use of rank bad person reasoning. This is not to suggest that the only permissible non-propensity use of the defendants being members of the Comancheros is motive. Other matters 131 My earlier summary of the proposed evidence refers to the characteristics of groups other than the Comancheros. This is an aspect of Grounds 35, 36 and 38 within CD’s Amended Interlocutory Application - Chapters 3, 10 and 11. Evidence on that topic may be relevant as part of the experience of the relevant witnesses. However, I have not reached a concluded view about that, nor about whether such evidence is relevant in any other way. Full submissions have not been made. 132 Consistent with the above, as there has not been any submission by the defendants which has directed my attention to any specific aspect of the affidavits of DS O’Hearn and DS Groenewegen, I have not considered the relevance and 66 Evidence Act 1929 (SA), s 34P(3). -- 31 of 39 -- [2025] SASC 124 Kimber J 30 admissibility of every aspect of their respective affidavits. In contrast, the defendants have made submissions about specific aspects of the proposed evidence of DS Tuplin. I will deal with those aspects below. Amended Interlocutory Applications – Chapters 3, 10 and 11 133 The Amended Interlocutory Application - Chapters 3, 10 and 11 seeks the exclusion of specific identified evidence. I will not address all grounds. Some grounds have been referred to above. One ground was not pressed by the defendants,67 the evidence the subject of other grounds was not pressed by the prosecution.68 Ground 1 - Michael Randells 134 Detective Randells has accessed information from ANOM devices said to have been used by HB. On the prosecution case, at relevant times HB was a member of the Comancheros and participated in communications about relevant matters. No submissions by any party directed attention to the detail of anything said to have been accessed from the devices. However, the following summary appears in the affidavit of Detective Randells:69 The records were saved in the ‘Notes’ area of the device and consisted of either a list of movements of methamphetamine, a list of cash received or a list of cash paid out. The methamphetamine movements described the date, the weight of methamphetamine and their individual to whom it was supplied (individuals were almost always referred to via their AN0M ‘handle’ or other nickname). The cash received would be listed with a date, the amount (commonly in thousands of dollars) and the individual from whom it was received. The cash paid out would be listed with a date, a value, and to whom it had been paid. Records were also kept of ‘wages’ or other expenses paid to or on behalf of syndicate members (but primarily [HB] and [RH[). Further ‘Notes’ created on the device related to Comanchero OMCG club business and other information. 135 I have assumed that what may be sought to be led is evidence to the above effect. On that assumption, I understand the prosecution submits the evidence is relevant to Count 1. 136 The defendants submit the evidence is ‘more prejudicial than probative of all the offences except Count 1’, which I have taken to be a concession that the evidence is admissible with respect to that count. For reasons to be given below, Count 1 will be the subject of the same trial as the remaining counts. It follows that the issue is not whether the evidence should be excluded but whether it is admissible on more than Count 1. That being so, I have not carefully considered the evidence nor the submission of the prosecution as the question of the use of the evidence can be addressed later. 67 Amended Interlocutory Application (dated 17 February 2023, FDN 260), ground 45. 68 Ibid, grounds 13-17, 19, 25, 27, 29, 30 and 41. 69 Affidavit of Michael Randells, dated 18 February 2022 at [5]. -- 32 of 39 -- [2025] SASC 124 Kimber J 31 Ground 2 – Harold’s Cross 137 I have dealt with this evidence above. Grounds 4-6, 8 and 9 – the finding of drugs and drug-related items 138 As set out above, during the search of the unit, police found more than just the firearms and ammunition which are the subject of Counts 2–5 and Counts 8– 15. There were also drugs, dimethyl sulfone (a cutting agent) and scales. TB and CD submit, as they are not charged with any drug offence, this evidence is not relevant and therefore not admissible. In the alternative, CD submits that the evidence is more prejudicial than probative. 139 I find that the finding of drugs and drug-related items is relevant and has a probative value which outweighs any prejudicial effect and that the permissible use is, and can be kept, separate and distinct from the impermissible use of rank bad person reasoning. 140 The drugs and related items are part of the evidence which can be relied upon to establish that, before the arrival of police, Mr Wakefield was handling drugs on behalf of the defendants. On the prosecution case, before the first search, Mr Wakefield and TB communicated about work to be available to Mr Wakefield and they then communicate about the attendance of police immediately after their first attendance. On the prosecution case, Mr Wakefield then seeks approval to dispose of drugs and advises the defendants that he has done so. The drugs and other items shed light on at least whether Mr Wakefield was working in conjunction with TB and CD with respect to the items in the Holden utility; whether TB and CD were in possession of the items in the Holden utility the subject of Counts 2-5 and 8-15; and whether TB and CD were controlling access to the Holden utility which contained firearms and controlled drugs as particularised in Count 1. Ground 7 and 12 - Evidence about a link between drugs and guns 141 The prosecution seeks to lead evidence from experienced members of the police with respect to drug offending and the link between that offending and firearms. The defendants submit this evidence is irrelevant as the defendants are not charged with drug offending. In the alternative, the defendants submit the evidence is more prejudicial than probative. 142 I reject the submissions of the defendants. The evidence is, at least, relevant to the possession of the items in the Holden utility and the issues in Count 1. I find that it has a probative value greater than any prejudicial effect. Grounds 10 and 11 - DNA evidence 143 These grounds relate to the location of DNA said to be consistent with the DNA profile of CD on the steering wheel of the Holden utility and on a plastic bottle allegedly found in that vehicle. CD submits the evidence is more prejudicial than probative. CD submits the DNA on the steering wheel might have been -- 33 of 39 -- [2025] SASC 124 Kimber J 32 transferred by another. CD submits there might be uncertainty as to where the bottle was located and/or that the DNA profile and/or the bottle might have been deposited by another. 144 I decline to exclude this evidence. The matters advanced by CD go to the weight of the evidence and are not matters calling for the exclusion of the evidence. The evidence is part of a body of evidence which may connect CD to the Holden utility. The evidence may also shed light on whether a communication sought to be attributed to CD by the prosecution was made by him (i.e. – a communication to the effect that he had driven the Holden utility).70 Ground 15 - Surveillance of CD on 4 September 2020 145 The evidence the subject of this ground is sought to be led to establish that, on 4 September 2020, CD showed an interest in media coverage with respect to an arrest of Mr Wakefield. CD submits the evidence is irrelevant or, in the alternative, more prejudicial than probative. I decline to exclude the evidence. Along with other evidence, it is relevant to whether CD had a close interest in the arrest of Mr Wakefield and is part of a wider body of evidence that may shed light on whether CD was involved in, and responsible for, the items found at the Newton unit and in the Holden utility. Ground 18 - Russell Stanborough 146 On the prosecution case, on 7 June 2021, this witness found a mobile phone at a gym which the prosecution submits is connected to CD. The prosecution relies upon the IMEI number of that phone as part of its case that CD was responsible for certain ANOM communications. Given the purpose for which the evidence is led, I decline to exclude the evidence. Grounds 20–24, 26, 28 and 31–34 147 The evidence the subject of these grounds is part of a body of evidence sought to be led by the prosecution to establish CD was the user of a particular ANOM device(s). The prosecution says that it can be inferred from the content of communications and the evidence the subject of these grounds that CD sent and received certain communications. CD submits the evidence is irrelevant. In the alternative, he submits it is more prejudicial than probative. 148 I decline to exclude the evidence. It is relevant for the purpose submitted by the prosecution. To the extent the evidence might involve evidence of discreditable conduct by CD (e.g. – the commission of traffic offences and/or other relatively minor breaches of the law), the evidence has a probative value which outweighs any prejudicial effect it may have upon CD and the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use of rank bad person reasoning. 70 Exhibit VD P1A, message [697]. -- 34 of 39 -- [2025] SASC 124 Kimber J 33 Grounds 35 and 36 - DS Groenewegen and DS O’Hearn 149 I have mentioned this evidence above. The defendants submit the evidence should not be led because it is not limited to the Comancheros; even if relevant to Count 1, it is not relevant to the remaining counts; and that the evidence is more prejudicial than probative. There is no interlocutory application which challenges the qualifications of either witness to give the evidence the prosecution seeks to lead. 150 I decline to exclude the evidence, subject to any further submissions about the relevance of evidence about groups other than the Comancheros and any more submissions about specific aspects of the evidence proposed to be led, including the extent to which, if at all, the evidence should go beyond involvement in drugs and firearms. Ground 37 – DS Tuplin – 17 September 2021 151 The only part of the affidavit of DS Tuplin dated 17 September 2021 which the prosecution seeks to lead is paragraph [120]. An aspect of what DS Tuplin has done is review communications and other material said to be relevant to members of the Comancheros. Having done that, paragraph [120] contains the following: I do not have any evidence that would support [Mr] Wakefield being a member or nominee for the Comanchero OMCG. The ANOM material that I have reviewed shows that he performed tasks for both [CD] and [TB] at their request and he was in direct contact with both [TB] and [CD]. 152 It is not clear to me that the first sentence is relevant, but it also does not strike me that, if it is, it is in any way prejudicial to either defendant. As for the second sentence, subject to any further submissions, it is not clear to me that DS Tuplin can give that evidence if the relevant communications are to be tendered. That is, DS Tuplin is in no better position to express the conclusion in the second sentence than I am as the trial Judge.71 It follows that, in the absence of further submissions, I am not satisfied that the paragraph extracted above is admissible. Ground 38 - DS Tuplin – 10 February 2022 153 There is no interlocutory application which challenges the qualifications of DS Tuplin to give the evidence sought to be led. The defendants seek exclusion of specific aspects of his affidavit dated 10 February 2022. The grounds on which exclusion is sought include relevance and that certain evidence is more prejudicial that probative. I will only deal with those aspects which are not the subject of a concession by the prosecution. 154 I decline to exclude the evidence set out in paragraphs [6], [61], [62], [115] – [126], [130]. The matters in [6] are part of the relevant experience of DS Tuplin; the matters in [61]–[62] are relevant to the rules of the Comancheros and whether 71 Since the issues dealt with in this ruling were argued, both defendants elected for trial by Judge alone. -- 35 of 39 -- [2025] SASC 124 Kimber J 34 it is an organised group; the matters in [115]–[126] and [130] shed light on whether the organisation of which TB and CD are said to be members was a criminal one. 155 As for [12], [15 IV] and [58], further submissions will be necessary if evidence is sought to be adduced about the conduct of groups other than the Comancheros. 156 As to [23], if it is proposed to lead the first sentence of that paragraph, further submissions will be necessary. I decline to exclude the balance of [23]. As to [101], I decline to exclude this as it is part of the evidence which establishes the membership of CD of the Comancheros. If any other purpose is advanced, submissions will be necessary. I decline to exclude [132] – [135] provided there is no reference to the incidents set out within [133] – [134]. As to [138], I exclude only the final sentence. As to [141], I decline to exclude this provided what is led is limited to statistical information. I decline to exclude [148 VIII] and [149 V] as it is evidence which can show the membership of, and roles within, the Comancheros. I decline to exclude [148 IX] as it is evidence which can show the membership of CD of the Comancheros. Whether it is also admissible to show his interest in firearms as part of his involvement in that group will need to be the subject of further submissions. I decline to exclude [217 (1)-(38)] as it can show TB was a member of the Comancheros. Whether it is also admissible to shed light on his role in drug trafficking as part of his involvement in that group will need to be the subject of further submissions. 157 In addition, through DS Tuplin, the prosecution seeks to establish persons other than TB and CD were members of the Comancheros. Other than where there is more than one person with that surname, I will refer to these persons by their surname: [redacted]. The defendants seek exclusion of this evidence. The bases for the objection are relevance and that the evidence is more prejudicial than probative. 158 I find that this evidence is admissible. The evidence is relevant to establish each person was a member of the Comancheros. That is relevant as, on the prosecution case, each communicated with TB and/or CD and/or another member of the Comancheros about issues such as the search of the Newton unit; Mr Wakefield; and the support that might be provided to Mr Wakefield.72 It is an aspect of the evidence that can shed light on Count 1 (i.e. – whether what was found was connected to the Comancheros and whether the defendants were acting in support of a criminal organisation). It must be accepted that aspects of this evidence suggest that the persons named have engaged in discreditable conduct. I will not exclude the evidence for that reason. It is impermissible to reason to the guilt of a defendant from the character of persons with whom they may have associated. 72 Exhibit VD P1A. -- 36 of 39 -- [2025] SASC 124 Kimber J 35 159 Against the background of ruling that the evidence is relevant and admissible for the purposes identified, if there are specific aspects of the evidence which are sought to be excluded, those specific aspects can be identified with more precision and, if necessary, further submissions can be made. This includes the extent to which evidence of conduct not involving drugs and firearms should be admitted. Ground 39 – DS Tuplin – 6 May 2022 160 The defendants have not identified with any specificity which aspects of this affidavit are said to be more prejudicial than probative. In the absence of that occurring, I am not able to rule. Ground 40 - Heath Lienert 161 As I understand it, the prosecution is not seeking to lead this evidence.73 Ground 42 - CHS 162 During more than one interlocutory application, a person has been referred to as a confidential human source (CHS) who was involved in Operation Ironside. It is not necessary to set out in detail that involvement. Matters relevant to CHS are set out in other rulings.74 The prosecution is not calling CHS to give evidence but intends to call a member(s) of the AFP who had contact with CHS. The defendants object to evidence being led of anything said by CHS as it may breach the rule against hearsay. It can be accepted that anything CHS said to a member of the AFP is not admissible for the truth of what was said, but things said by CHS may be relevant for non-hearsay purposes. 163 The specific matters objected to by the defendants have not been identified. Until that occurs, it is not possible for me to rule. Ground 43 – the distribution of ANOM devices to certain networks 164 The defendants object to evidence being led of the distribution of ANOM devices to ‘criminals or criminal networks’. This objection has not been the subject of submissions beyond a contention that it is ‘highly prejudicial’. The prosecution submits that the issue can be dealt with in a ‘generalised way’. If the parties fail to reach an agreement as to the way this evidence will be led, further submissions will be necessary. Grounds 44 and 46 - ANOM messages which relate to ammunition 165 The grounds upon which CD submits this evidence should not be admitted is the subject of a separate interlocutory application (Chapter 5A) and, if necessary, will be dealt with in a separate ruling. 73 See Written Submissions of the Prosecution – Chapters 3, 10 and 11: Specific Objections (filed 6 April 2023, FDN339), page 22. 74 See, for example, R v TB [2023] SASC 45. -- 37 of 39 -- [2025] SASC 124 Kimber J 36 Ground 45 - Communications in which CD is not a participant 166 As set above, this ground was not pressed by CD. The items the subject of Counts 6 and 7 167 Before Mr Wakefield entered his pleas of guilty, the defendants submitted the two counts charged solely with respect to him (Count 6 and 7) were not properly joined and should be tried separately from any count involving them. For the reasons given above, the items the subject of Counts 6 and 7 are admissible in the trial of the counts with respect to the defendants and I decline to exclude that evidence. The applications that Count 1 be tried separately 168 The defendants submit that Count 1 should be tried separately from the balance of the counts. Separate trials – the law 169 Pursuant to s 102(5)(a) of the Criminal Procedure Act 1921 (SA), a Court may direct that charges contained in a single information be dealt with in separate proceedings. 170 Section 34T of the EA confirms the common law approach. That section provides: Where— (a) 2 or more defendants are charged in the same information; and (b) a party proposes to adduce discreditable conduct evidence; and (c) a defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information, the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by— (d) evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or (e) evidence proposed to be adduced by another defendant which is not admissible against the applicant; or (f) the applicant's inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P. 171 An order for a count to be tried separately from other counts is appropriate when a defendant may be prejudiced in his defence. When evidence on one count is admissible on another count, a defendant will not be able to show that -- 38 of 39 -- [2025] SASC 124 Kimber J 37 prejudice.75 The proper approach was described by Brennan J in Sutton v The Queen:76 When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. Discussion 172 The conduct alleged in Counts 2–5 and 8–15 is the possession of the items particularised in each count. Each item was in the Holden utility. The alleged possession of those items is admissible with respect to Count 1. It is the storage and control of the Holden utility containing those items that is the conduct alleged to have been in support of the criminal organisation. If a defendant was in possession of the items the subject of Counts 2–5 and 8–15, that possession and the circumstances of that possession, including, for example, the number of firearms; the fashion in which some items were stored in a hidden compartment and in proximity to drugs; and the parties to communications about what was found in the Holden utility; may shed light on whether the Holden utility was being knowingly controlled for a criminal organisation. 173 An aspect of the evidence directly relevant to Count 1 is the membership of — and the involvement in the activities of — the Comancheros by each defendant, combined with what the prosecution says is at least a motive held by each defendant to involve himself in the criminal activity of the Comancheros, an alleged criminal organisation. If it were concluded that the items in the Holden utility were because of organised criminal activity, then evidence that a defendant had an interest in supporting the Comancheros in its criminal activity may make the possession of the items the subject of Counts 2–5 and 8–15 more likely. 174 I decline to order a separate trial of Count 1. 75 R v Mayfield (1995) 63 SASR 576, 578. 76 (1984) 152 CLR 528, 541-542. -- 39 of 39 --