THE COMMISSIONER OF THE SOUTH AUSTRALIAN POLICE [2025] SADC 130

Applicant: THE COMMISSIONER OF THE SOUTH AUSTRALIAN POLICE Counsel: MR W SCOBIE Accused: HEATH WAYNE TONKIN Counsel: MR R WALKER - Solicitor: PATSOURIS & ASSOCIATES Prosecution: R Counsel: MR C WEIR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/10/2025 File No/s: DCCRM-23-032267 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) 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 TONKIN [2025] SADC 130 Reasons for Decision of her Honour Judge Telfer 30 October 2025 CRIMINAL LAW - APPLICATION TO VACATE GUILTY PLEA - APPLICATION TO SET ASIDE SUBPOENA The Commission of Police has applied to set aside a subpoena issued for the production of documents forming part of an application for an authority under the Criminal Investigation (Covert Operations) Act 2009. The Commissioner argues that no legitimate forensic purpose has been demonstrated in obtaining the documents in circumstances where the scope of collateral challenge to the authority is limited. Consideration of the scope of collateral challenge to an authority issued under the Criminal Investigation (Covert Operations) Act 2009 and the lawfulness of the operative’s actions even in the absence of a valid covert operation authority. Application to set aside the subpoena is granted. Criminal Investigation (Covert Operations) Act 2009 (SA) s 4(2) (b), (c) and (d); Criminal Procedure Act 1921 (SA); Criminal Law Consolidation Act 1935 (SA) s 63C, referred to. Central Adelaide Local Health Network v Whitehouse [2024] SASCA 22; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; Australian Federal Police v XYZ (2015) 123 SASR 274; Police v Stacey (2016) 125 SASR 50; R v M, I and Ors [2018] SASC 24; R v Taleb (2019) 276 A Crim R 9 192; Ridgeway v The Queen (1995) 184 CLR 19; Question of Law Reserved (No 1 of 1998) 70 SASR 281, applied. -- 1 of 9 -- -- 2 of 9 -- R v TONKIN [2025] SADC 130 1 This is an application made by the Commissioner of Police for a subpoena issued to the South Australian Police to be set aside. On 11 August 2025 I granted leave for a subpoena to be issued for various documents relevant to an approval for an undercover operation pursuant to the Criminal Investigations (Covert Operations) Act 2009 (CICO Act). Prior to the date for production of the documents, the Commissioner brought an application to set aside the subpoena, on the basis that the subpoena is not underpinned by any legitimate forensic purpose, its only purpose being an impermissible collateral attack on a regularly issued statutory approval. 2 To understand the context for this application it is necessary to set out some historical background. 3 On 29 January 2025 Mr Tonkin pleaded guilty to three counts of communicating with a child intending to make them amenable to sexual activity.1 The offences occurred in November and December 2022. The conduct on which the charges are based are conversations between Mr Tonkin and a police officer purporting to be a 14-year-old child. The charged conduct comprises sexualised conversations over the internet with the officer using that assumed identity. The use of that assumed identity, and associated behaviour, including potential criminal conduct, had been authorised by two approvals issued pursuant to the CICO Act. 4 By application filed on 11 June 2025 Mr Tonkin sought to withdraw his guilty pleas. The application is made on the basis that allowing the pleas to stand would result in a miscarriage of justice. It is submitted that Mr Tonkin entered his pleas to the three counts without the benefit of legal advice about a potential challenge to the admissibility of evidence of the conversations on which the three charges rely. That challenge depends on the lawfulness of the two approvals which governed the use of the assumed identity in electronic communications. The scope of permissible collateral challenge. 5 The power to authorise the issue of a subpoena is governed by section 126 of the Criminal Procedure Act 1921 (SA). It is well settled that leave should not be granted to issue a subpoena unless a clear legitimate forensic purpose for the material sought is established by the applicant.2 6 A legitimate forensic purpose is a standard which is more rigorous that establishing that the material sought is relevant, or that the material sought might assist an argument about illegality.3 1 Criminal Law Consolidation Act s63B (3). 2 Central Adelaide Local Health Network v Whitehouse [2024] SASCA 22. 3 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; Australian Federal Police v XYZ (2015) 123 SASR 274 at [40]. -- 3 of 9 -- [2025] SADC 130 2 7 The subpoena seeks documents falling into the descriptions set out below: 1. Any and all documents which formed part of an application by Detective Brevet Sergeant Jacob O’Callaghan for approval to conduct a Covert Investigation submitted to James Andrew Jeffrey and approved on 27 October 2022 at 1.40 pm. 2. Any and all documents which formed part of an application by Detective Brevet Sergeant Jacob O’Callaghan for approval to conduct a Covert Investigation submitted to James Andrew Jeffrey and approved on 28 November 2022 at 2 pm. 3. Any and all documents which set out or contain grounds for consideration relative to covert operations approvals for the Joint Anti Child Exploitation Team motherhood undercover operation approval. 8 The documents sought are each referred to on the face of the two approvals issued pursuant to section 4 of the CICO Act. What is sought is documents which formed part of the application placed before approving officer James Jeffery. They are documents that he had regard to when authorising the operation. 9 Counsel for Mr Tonkin accepted that the scope of collateral challenge to an administrative decision of the kind under consideration here is restricted. The precise scope of the limitation is a complex and vexed issue. To illustrate the scope of permissible challenge in the circumstances of the statutory scheme in the CICO Act it is necessary to set out the relevant provisions of section 4(2): (2) An approval may not be given unless the senior police officer or the Independent Commissioner Against Corruption (as the case may be)— (a) suspects, on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate; and (b) is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and (c) is satisfied on reasonable grounds that the means are proportionate to the end; that is, that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and (d) is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons who have engaged, or are engaging or about to engage, in serious criminal behaviour an opportunity— (i) to manifest that behaviour; or (ii) to provide other evidence of that behaviour, without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided. -- 4 of 9 -- [2025] SADC 130 3 10 No collateral challenge is permitted to the sufficiency of the information relied upon to reach the state of satisfaction described in section 4(2)(a).4 Criteria 4(b)-4(d) however concern a state of satisfaction about the design of the undercover operation and may be the subject of collateral challenge. 11 In R v Taleb, Hamill J in the Supreme Court of New South Wales made the following observations (emphasis added): Whether or not there is any real distinction between the principles applying to warrants and those applying to a controlled operation authority, the fundamental issue remains whether the accused has established a legitimate forensic purpose in seeking production of the material. There is no such purpose in an attempt to discover material that will support an argument that there was insufficient material upon which to grant the authority. There may be a legitimate forensic purpose in uncovering material that is relevant to the validity of the certificate (beyond the sufficiency of the material upon which it was granted) and the lawfulness of the operation including the propriety of the application for the authority. However, there must be some basis or foundation upon which the material is sought. A party is not entitled to seek such material to discover whether there is any material that might support a case of impropriety or illegality.5 12 The relevance of the comments highlighted above to the CICO Act is confirmed implicitly by Lovell J in R v M, I and Ors.6 In that case Lovell J heard and determined a collateral challenge to an authority issued pursuant to section 4 of the CICO Act which authorised a covert operation into the suspected criminal activities of members of a team of investigators within South Australian Police. The identity of the membership of that team was not identified and changed over time. 13 His Honour concluded that the criteria in section 4(2)(b) and (d) were not satisfied because of the authorising officer’s failure to properly appreciate the state of satisfaction required by those paragraphs. The authorities relied on for the covert operation were invalid therefore, which meant that aspects of the operation which involved illegal acts being committed by investigators were affected. The discretion to exclude evidence was enlivened.7 14 I am satisfied that the law does not prohibit collateral challenge to be made to an authority issued pursuant to the CICO Act on the basis of section 4(2)(b), (c) and (d). It does not follow necessarily from that conclusion that there is a legitimate forensic purpose in seeking production of material forming part of the application for that authority. That question requires an examination of the basis or foundation on which the material is sought. It is not enough to submit that the material sought may support a case of impropriety or illegality.8 4 The principles concerning the permissible scope of collateral challenge are conveniently located in Police v Stacey (2016) 125 SASR 50 at [83]-[100] (Parker J). 5 R v Taleb (2019) 276 A Crim R 9 192 at [50]. 6 [2018] SASC 24. 7 Ibid at [152]-[153]. 8 R v Taleb (2019) 276 A Crim R 9 192 at [50]. -- 5 of 9 -- [2025] SADC 130 4 15 In this case, each authority permitted authorised persons to (relevantly) engage in the following illegal behaviour: • Access and take steps to access child exploitation material [by] entering into an agreement or arrangement to do so contrary to the Criminal Law Consolidation Act 1935 (SA). • To possess child exploitation material, in accordance with section 63C of the Criminal Law Consolidation Act 1935 (SA) for evidentiary purposes. 16 The legality of the conduct engaged in by SA Police Officers participating in the operation did not however rely solely on the lawfulness of the CICO Act authorities. The protection of section 63C of the Criminal Law Consolidation Act. 17 Section 63C(2a) of the Criminal Law Consolidation Act 1935 (SA) provides that no offence is committed against Division 11A by reason of the production, dissemination or possession of, or dealing with, material in good faith by a police officer acting in the course of his or her duties.9 This provision means that the officers participating in the operation did not commit any offence if an offence against any provision of Division 11A was committed.10 So long as the officer concerned was acting in the course of her duties, she committed no unlawful act if she behaved contrary to the identified provisions in Division 11A. In those circumstances no discretion to exclude evidence because of police illegality arises. 18 In those circumstances it is difficult to identify any legitimate forensic purpose in obtaining material to challenge the lawfulness of the authorities issued pursuant to the CICO Act, because pursuant to 63C(2a) the officer committed no illegal act in any case. Improper Conduct and the Discretion 19 The relevant authorities do not restrict the application of the public policy discretion to the exclusion of evidence obtained by illegal acts. The discretion also arises where the evidence has been obtained as a result of improper, but not illegal, conduct.11 The conclusion that no illegality attended the obtaining of the relevant evidence, is not, therefore a complete answer to the question of a legitimate forensic purpose. 20 Counsel for Mr Tonkin did not submit that the legitimate forensic purpose for obtaining the documents related to improper conduct which tainted the evidence relied upon or procured the commission of the offences to which Mr Tonkin has pleaded guilty. No legitimate forensic purpose was identified in respect to improper conduct associated with the authority. 9 Criminal Law Consolidation Act 1935 (SA) s 63C (2a) (a). 10 Subject to the specific carve out for an offence against section 63AB (7). 11 Ridgeway v The Queen (1995) 184 CLR 19; Question of Law Reserved (No 1 of 1998) 70 SASR 281. -- 6 of 9 -- [2025] SADC 130 5 The Legitimate Forensic Purpose identified 21 Counsel for Mr Tonkin submitted that the known circumstances mean that it is ‘on the cards’ that the documents show no connection between the authorising officer’s suspicion pursuant to section 4(2)(a) and his approval of the scope of the operation. Counsel pointed out that the first contact between the police officer using an assumed identity and the accused was not until the final day of the operation of the first authority. The suspicion held by the authorising officer could not have relied on conduct by Mr Tonkin. This, he submitted, raises the prospect that the suspicion attached to a class of persons which did not include Mr Tonkin, and the operation was too widely framed to provide reasonable grounds to reach the state of satisfaction required in section 4(d) of the CICO Act. That is, the scope of the operation was not sufficiently protective of persons without a disposition to engage in criminal behaviour. 22 If the material sought supports that conclusion, then the authority will be invalid, and will not authorise unlawful acts by police officers. As noted above, the police officer’s acts would not be unlawful however because of the protection in section 63C(2a) of the Criminal Law Consolidation Act. A finding that the authority was invalid would not, of itself, enliven the discretion to exclude the evidence relied on in proof of the charged acts. Accordingly, there can be no legitimate forensic purpose in seeking to challenge the lawfulness of the section 4 authority in those circumstances. 23 If I am wrong about the conclusion that section 63C would protect the covert officer’s actions (for example if they were not acting in the course of his or her duties), I turn to consider whether, in any case, there is a proper basis or foundation identified upon which the material is sought. 24 Section 4(2)(a) of the CICO Act anticipates that an authority may be granted where the suspicion attaches to persons whose identity may not be known. It permits the suspicion to relate not only to persons who have committed offences, but also to persons “about to engage in serious criminal behaviour”.12 25 The fact that persons are identified in the course of an authorised operation whose identity is not known at the time of the authority being granted does not provide a basis or foundation for the conclusion that there is a legitimate forensic purpose in obtaining the material sought. Section 4 anticipates authorisation of a covert operation targeting persons whose identity are not known at the date of authorisation. The fact that a person is identified behaving in a prohibited way during the investigation when their identity or behaviour could not have formed the basis for the suspicion reached pursuant to section 4(2)(a) is a result which is anticipated by the structure of the authorising process. That such behaviour is identified is not evidence of an operation design which might transcend the restrictions in section 4(2)(b)-(d). 12 Criminal Investigation (Covert Operations) Act 2009 (SA) section 4(2)(a). -- 7 of 9 -- [2025] SADC 130 6 26 I am satisfied that no proper basis or foundation has been identified for the material sought. I conclude that the subpoena does no more than seek material to discover whether there is any material that might support a case of impropriety or illegality. This does not meet the requirement that a legitimate forensic purpose be identified. Are the documents part of the written authority? 27 Counsel for Mr Tonkin argued that the documents sought pursuant to the subpoena formed part of the written authorities which had already been disclosed by the prosecution. 28 Each authority contains the following statements: “I am reliably informed that: Refer to Application to conduct a covert investigation of Detective Brevet Sergeant Jacob O’Callahan. … Refer to grounds for consideration document relative to the COAC for the JACET motherhood undercover operation approval”. 29 The references on the face of the authority to those documents, it was argued, incorporates those documents into the totality of material the authorising officer intended to represent the approval record. 30 Counsel for the Commissioner of Police argued that the reference to the material on which a state of satisfaction is based cannot, by implication, incorporate those documents into the authority record itself. That conclusion, it was argued, is supported by a reading of section 4(4) which sets out what must be stated in writing on the face of any authority issued under that provision: (4) The approval must— (a) be in writing; and (b) be signed by the person giving the approval; and (c) specify— (i) the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and (ii) the persons who are authorised to participate in the operations; and (iii) the nature of the conduct in which the participants are authorised to engage; and (iv) a period (not exceeding 3 months) for which the approval is given. -- 8 of 9 -- [2025] SADC 130 7 31 There is no requirement to record the grounds on which the approval has been granted. 32 I am not satisfied that the reference to the two documents on the face of the approval incorporates them into the approval document and makes them subject to disclosure. I do not consider the reference to the documents on the face of the authority adds any force to the submissions already outlined identifying the legitimate forensic purpose. Conclusion 33 For the reasons I have outlined I conclude the following: 1. There is no legitimate forensic purpose in seeking the documents sought in paragraphs 1-3 of the subpoena issued to South Australian Police. This is because a finding that the authority to conduct the covert operation is found to be invalid could not result in a discretionary exclusion of the evidence obtained during the operation, due to the operation of section 63C(2a) of the Criminal Law Consolidation Act. 2. If I am wrong about the conclusion in paragraph 1, there is no proper basis or foundation for the documents sought so as to establish a legitimate forensic purpose. 3. The documents sought do not form part of the written authority record so as to require their disclosure. 34 I order therefore that the subpoena issued to South Australian Police, paragraphs 1-3 inclusive, be set aside. I note production of items sought pursuant to paragraphs 4 and 5 of the subpoena is not pressed by Mr Tonkin. -- 9 of 9 --