[2025] ACTMC 26

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment - Decision - Resist territory public official - Remain or re-enter vicinity or premises - Adjournment, Stay of Proceedings or Order Restraining Proceedings - demonstrated unfairness not required - Destruction of potential evidence by the operation of an automatic delete function - Signal and encrypted messaging applications - irremediable unfairness and abuse of process - Permanent stay granted.

Archives Act 1983 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Liquor Act 2010 (ACT)

AJ v R [2010] VSCA 331

Crimmins v Pearson (2016) 77 MVR 185

Dupas v R [2010] HCA 20; (2010) 241 CLR 237

GJL v Trustee of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442

Grassby v R [1989] HCA 45; (1989) 168 CLR 1

Hocking v Director-General of the National Archives of Australia [2020] HCA 19; (2020) 271 CLR 1

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Lee v R [2014] HCA 20; (2014) 253 CLR 455

Mallard v R [2005] HCA 68

Moti v R [2011] HCA 50; (2011) 245 CLR 456

Strickland (a pseudonym) v Commonwealth Director of Public

Prosecutions [2018] HCA 53; (2018) 266 CLR 325

R v Carroll [2002] HCA 55; (2002) 213 CLR 635

R v Griffin [2006] ACTSC 77

R v Trong Ruyen Bui [2011] ACTSC 102; (2011) 5 ACTLR 230

Law Enforcement Conduct Commission (NSW), Operation Harrisdale, Final Report (2024)

1. By application in proceeding dated 8 September 2025, the defendant seeks that the criminal proceedings against him be permanently stayed. The alternative application is that the proceedings be temporarily stayed pending compliance by the Director of Public Prosecutions with her disclosure obligations. That alternative basis has effectively fallen away.
2. The charges against the defendant are that:

(a) he did intimidate a public official, namely Sergeant Christian Phelan, on 16 September 2024, contrary to section 36(1) of the Criminal Code 2002 (ACT); and

(b) he did remain in the vicinity of premises on 16 September 2024, contrary to section 138(1) of the Liquor Act 2010 (ACT).

1. The circumstances of the allegation, as summarised by the defence in written submissions prepared by Mr Boland of Counsel, are that "the offences are alleged to have been committed on 16 September 2024 at the Raiders Club in Gungahlin. The accused is alleged to have been intoxicated at the relevant time. Several AFP officers (Phelan, Tully and James) attended and asked the accused to leave the premises, pursuant to section 143B of the Liquor Act 2010 (ACT). The accused's alleged actions towards Officer Phelan constitute the 'intimidation' charge. The accused having remained in the vicinity of the Raiders Club after having been turned out is said to constitute the Liquor Act offence."
2. Relevantly, the intimidation charge requires proof of both an objective element, namely that the conduct was intimidatory, and a subjective element, that is that the complainant was in fact intimidated by the conduct. Credibility has been flagged by the defence as a live issue in the proceeding.

1. This application arose as a result of the defendant's request for disclosure to the prosecution and, following non-compliance with that request, the issue of a subpoena to the Australian Federal Police dated 14 April 2025 (the first subpoena). Mr Boland noted that it was a single word in 455 pages of material returned in response to the subpoena on 30 May 2025 that alerted the defendant to the fact that police officers involved in the proceeding used an encrypted messaging application known as 'Signal' to communicate, referencing in this proceeding.
2. There followed a somewhat untidy procedural history. Whilst the defence placed some weight on this in submissions, as my determination is made on different grounds, I do not intend to address this at length. It is correct to note, however, that evidence in respect to the use of Signal by police officers involved in this matter was provided piecemeal and late in the proceedings.
3. The evidence relied upon in this application consists of two affidavits of Thomas Xavier Taylor, solicitor for the defendant, dated 4 August 2025 and 8 September 2025, in addition to numerous police statements, AFP policy and procedure documents, and evidence of interstate practice, to which I will advert where relevant.

1. Drawing on the affidavit of Mr Taylor dated 4 August 2025, as supplemented by his affidavit of 8 September 2025, an open search of the internet disclosed the following information in respect to the Signal application.
2. Signal is an end-to-end encryption messaging application. It allows messages to be sent between individuals or a group. Documents can be uploaded and sent through Signal and thereafter downloaded by the recipient whether sent to an individual or group of individuals. It allows users to delete messages manually or cause them to be automatically deleted after a period of time, such that the user can delete individual messages or entire "chats", that is a series of exchanged messages. Signal does not retain a copy of messages on its server after they are delivered or when they are deleted by a user. Access to Signal messages is difficult, providing to the participants a level of comfort that access is restricted.

1. Signal is not owned or operated by the Australian Federal Police.
2. The "Better Practice Guide on AFP Managed Mobile Devices and Social Media", endorsed 14 August 2024 and last reviewed by the AFP's Chief Information Security Officer on 24 January 2025, states:

This better practice guide [BPG] provides AFP members with direction in relation to mobile device procedures for the access, control and acceptable use of the AFP's managed issued mobile devices [i.e. Apple iPhone and iPad as well as social media usage] (at 3).

Apple messages and Signal are approved for use no higher than official (at 6).

The use of disappearing messages is prohibited (at 6).

1. A list of the approved iPhone apps for use on the standard AFP iPhone includes Signal described as "a secure message service approved by [redacted] for intergovernmental message". The application type is categorised as "operational".

1. The document which alerted the defence to the use of Signal in relation to this prosecution was dated 23 September 2024. It was authorised by Sergeant Phelan, the complainant, and addressed to Constable Madelin McMahon, the informant, and Beth Tully, a police eyewitness. The subject line read "Raiders job [SEC = OFFICIAL]".
2. The email stated that:

I know Beth has the prescription job to do over the next couple of shifts but I would recommend making a start on the SoF (abbreviation for Statement of Facts) for Papali'i if you get a chance. The bosses will want to see a draft SoF prior to making a decision to charge. I would also recommend putting in the SoF appropriate quotes e.g. police heard the defendant say three times (sic) as he was walking outside the club "I'm going to get you".

Also if you get the CCTV from the club please let me know via signal.

1. This email was sent seven days after the incident out of which the charges arose, but prior to any charges having been laid. The disclosed document raised the possibility that Signal was, or may have been, used more widely to communicate about the prosecution.
2. Whilst Sergeant Phelan provided a statement in respect to his use of Signal, he did not provide any explanation as to why he requested that he be advised via Signal if CCTV footage was obtained. There appears to be no obvious reason why he would make this request.
3. Also produced in response to the subpoena was a Signal text message exchange over the period 31 December 2024 to 1 January 2025 between First Constable Madelin McMahon and Constable Justin James as follows:

JAMES: in my Papalii statement am I mentioning that the security guard told me he saw Papalii later?

JAMES: or someone else doin (sic) that; too much to do

MCMAHON: but yes please. No one else is providing a statement

JAMES: I haven't made notes of that... I'll fix that

MCMAHON: unless I need to get Luke to write a statement? Or can you cover off on it all

JAMES: I'll cover it but I'll just need to write something in my notebook about it

MCMAHON: please have a day off. You need to have days off!

MCMAHON: I'm so proud of you for writing what you did in your Papalii statement. I know it hurts

JAMES: I'm disgusted in myself haha; do I cover everything?

MCMAHON: yeah I'm pretty sure. It was a good statement. Just need your notes at some point and you're free ha ha.

1. Following his realisation that the text message exchange between First Constable McMahon and Constable James occurred on Signal, Mr Taylor sought further disclosure from the Director of Public Prosecutions on 29 July 2025 (the disclosure request) including:

(a) Disclosure of all electronic messages (whether text messages, Signal messages or messages by any other encrypted messaging application), involving any police witnesses in these proceedings in relation to the investigation and/or prosecution of Joshua Papali'i or John Papali'i; and

(b) Statements from all police officers who engaged in electronic communications via Signal or any other encrypted application in relation to the prosecution.

1. On 5 August 2025, defence served a subpoena for production of documents and things on the Australian Federal Police (the second subpoena) requiring the production of all electronic messages (including Signal messages, messages via any other encrypted messaging application, text messages or emails not already produced) in relation to the investigation and/or prosecution of Joshua Papali'i or John Papali'i concerning the alleged events at the Raiders Club Gungahlin on 16 September 2024, sent by Christopher Phelan, Elizabeth Tully, Justin James, Luke Simmonds, Lynette Fong, Madeline McMahon or Chris Davidson to any member of the Australian Federal Police or any civilian witness identified in the prosecution brief of evidence, or received by any of those officers from any member of the Australian Federal Police or civilian witness identified in the prosecution brief of evidence. The subpoena also sought certain AFP policies and standing operating procedure documents.
2. No Signal or other encrypted messages were produced in response to the second subpoena.

Police statements in relation to the use of the Signal application in response to the disclosure request

1. A number of statements from police officers who were engaged in a Signal chat group established by members who work, at some time, at the Gungahlin Police Station were produced in response to the disclosure request.
2. I extract information and the most pertinent excerpts from each of these as follows:

(a) Constable Madelin McMahon, informant, 26 August 2025:

(i) Communicated with Constable Justin James on Signal 5:36 pm 31 December 2024 and 9:18 pm 1 January 2025; and

(ii) Those conversations were not deleted.

(b) On 17 September 2025:

(i) The text exchange with Constable James utilised Signal on her personal mobile phone;

(ii) Throughout the course of the incident and subsequent investigation, she was a part of a Signal group chat named "GRT 2";

(iii) This chat contains the members of Gungahlin Response Team 2;

(iv) This chat is utilised as a supplementary communication option to ensure members of the team are informed of time critical information;

(v) This group is mostly used as a social chat between team members;

(vi) She holds administrative privileges on this group chat;

(vii) On 7 June 2023, she set the automatic deletion setting of this chat to be one week;

(viii) She did not have any collection of any discussion surrounding the investigation into Mr Joshua Papali'i occurring in this group chat;

(ix) She has not discussed members' evidence or their statements within this group chat; and

(x) The chat was often used to post sports news.

(c) Sergeant Christian Phelan, complainant, 18 September 2025:

(i) Stated that he was a member of the GRT2 Signal chat group;

(ii) The group discussed football on occasions;

(iii) He never discussed the evidence he or any other members would be providing in the defendant's matter on this chat group or any other encrypted applications; and

(iv) He did not discuss with the other police who attended the incident, being First Constable Justin James and Constable Beth Tully, the evidence they or he provided.

(d) This statement does not address why Sergeant Phelan requested to be notified by Signal when CCTV from the location of the alleged incident became available. Nor does it address whether the group chat was on his personal or an AFP device.

(e) Constable Elizabeth Tully 25 August 2025:

(i) Has a Signal account;

(ii) It is on her personal phone;

(iii) It is in the Gungahlin Police Station group chat;

(iv) That chat automatically deletes and has done since 2023;

(v) Conversations relating to the defendant are likely to have occurred in the aforementioned group chat following the incident;

(vi) This is normal procedure following police attendance; and

(vii) She could not recall the content of any of those messages.

(f) On 18 September 2025:

(i) She did not recall any conversations in the group chat regarding the investigation into the defendant;

(ii) Conversations relating to the defendant were likely to have occurred in the group chat; and

(iii) She could not recall the content of those messages.

(g) Constable Justin James, eyewitness, 29 August 2025:

(i) Exchanged a number of direct messages with Constable McMahon on signal on 31 December and 1 January 2025;

(ii) The Signal account is associated with his personal phone number;

(iii) He is unsure of the phone number associated with Constable McMahon's signal account;

(iv) Messages were retained on his phone and not automatically deleted;

(v) Screenshots of the conversation were uploaded onto AFP indices;

(vi) To the best of his knowledge, he had not sent any other Signal messages in relation to this prosecution.

(h) On 24 September 2025:

(i) He is a member of the GRT2 group chat on Signal;

(ii) This account is associated with his personal phone number on his personal mobile device;

(iii) He has no recollection of conversations occurring in that group chat regarding Joshua Papali'i or the investigation of this proceeding.

(i) Police Constable Luke Andrews, witness, 19 September 2025:

(i) Joined the GRT2 Signal group chat in July 2024;

(ii) Became involved in the Papali'i prosecution as a result of engagement with a civilian witness after the event;

(iii) Did not recall any discussions about the investigation occurring in the Signal application in the GRT2 group chat.

(j) Police Constable Luke Powell, 19 September 2025:

(i) Was a member of the GRT2 Signal group chat at the relevant time and ongoing;

(ii) Was not involved in the Papali'i prosecution;

(iii) Learned about the Papali'i matter through sports news outlets, recalled conversations in the chat group in relation to Mr Papali'i and his capacity as a football player;

(iv) Did not recall any conversation in the GRT2 Signal group chat in relation to the investigation involving Mr Papali'i.

(k) Police Constable Scott Girvan, 17 September 2025:

(i) Had been a member of the GR2 Signal chat group since approximately January 2021;

(ii) Recalled seeing messages within the GR2 Signal group chat around September 2024 in relation to Joshua Papali'i;

(iii) Had no recollection of the details of those messages.

(l) First Constable Hannah Solly, 19 September 2025:

(i) Was a member of the GRT2 Signal group chat in a period around 2023 to 2024;

(ii) Remained a member although being moved out of the team into a non-operational role in September 2023;

(iii) Did not receive notifications of communications within the chat from around September 2023;

(iv) In compiling her statement found that she was removed from the group on 28 November 2024;

(v) Was aware of the arrest of Mr Papali'i because of a case note entry published by Sergeant Phelan;

(vi) Could not recall any specific mention of the defendant within the group chat or any discussion about the investigation following.

(m) Police Constable Samuel Pilon, 19 September 2025:

(i) Was also a member of the GRT2 Signal group chat group the period of March 2022 and continuing;

(ii) Was posted outside of the team in August 2024 but remained a member of the chat group; and

(iii) could not recall "any conversation being had or having any personal involvement in matters relating to Mr Papalii during this time within the Signal group".

(n) Constable Meg Reeves 22 September 2025:

(i) Was added to GRT2 Signal group chat when she joined the team in April 2024 and remains a member;

(ii) The chat was set to delete all sent messages and media after seven days and had that setting since she joined the group chat; and

(iii) Had no recollection of any discussion on the group chat relating to the prosecution of Mr Papali'i.

(o) Constable Simon Cocks 19 September 2025:

(i) Has the Signal app downloaded on his personal mobile phone;

(ii) Was added to the GRT2 Signal chat group in May 2023;

(iii) It automatically deleted messages after one week;

(iv) The chat is "primarily used to coordinate members when attending jobs where communicating over the radio is difficult or deemed not necessary, plus general social banter between members";

(v) Travelled overseas between 11 September 2024 and 10 October 2024;

(vi) Whilst overseas he was not aware of any communications on Signal regarding an incident involving Joshua Papali'i.

(p) Senior Constable James Boardman 24 September 2025:

(i) Became a member of the GRT2 Signal chat group in 2023;

(ii) The group chat was primarily used for discussing work related administrative issues such as tasking, timings and trainings as well as for social purposes;

(iii) At one stage he had administration privileges for the group but could not recollect what changes he may have made to the settings;

(iv) Could not recall the specifics of any discussions in the group chat relating to Joshia Papali'i.

1. From Sergeant Phelan's email, the Signal message exchange between Constables McMahon and James, and the above statements, I am able to draw a number of conclusions.
2. Signal is used by a number of officers from the Gungahlin police station. Some use it for person-to-person communication. All those above are part of a group chat. That membership primarily arises from being part of the Gungahlin Response Team 2 (GRT2) but may continue when the officer is either temporarily absent or has left the station.
3. That group chat is, and was during the period that this prosecution commenced, administered by the informant in this matter, Constable McMahon. Constable McMahon holds administrative privileges on the group chat. In that capacity she set the automatic deletion arrangements for one week.
4. Some of the officers involved in the group chat use their personal devices to access the application. There is no evidence as to whether any of those who have provided statements in this matter use APF issued devices for Signal communications, either individually or as part of the group chat.
5. The chat was utilised for both work related purposes and social interactions. The extent of the work-related usage is not clearly delineated.
6. The Signal application was utilised by the informant, the complainant and other witnesses in this prosecution through the period covering the alleged offences and preparation of the brief of evidence for these proceedings.
7. In the group chat, activation of the one week auto delete function means that there is no record of what was communicated in relation to this defendant. There is evidence, however, that he was discussed in some capacity in that group chat. Those discussions likely took place during the period of the investigation and preparation for these proceedings.
8. There is no evidence to suggest that this group chat has ceased, or the automatic delete arrangement has changed.
9. Communications occurred between Constable McMahon and James using the Signal application on their personal mobile phones other than in the group chat and for work related purposes.
10. The exchange between Constables McMahon and James shows that Signal was used to discuss how evidence would be produced, and in fact modified. That is, Constable McMahon provided advice to Constable James as to what he should include in his statement and Constable James indicated that he would consequently amend his notebook, retrospectively. This evidence was not initially disclosed. That failure to disclose suggests that the officers involved did not consider that communications of this type regarding the prosecution were in fact disclosable records.
11. Sergeant Phelan, the complainant in this matter and superior officer of the informant and eyewitnesses, requested that information regarding the investigation, that is that he be informed by Signal when closed circuit television footage relevant to the prosecution was obtained, be provided in that way. The reason for that request is unclear. The outcome of that request is unknown.
12. Sergeant Phelan states that he had never discussed the evidence in this prosecution on the chat group or on any other encrypted application. However, the remaining evidence regarding any discussions is not so definitive. The majority of those who have provided statements simply do not recollect.
13. Constable Tully stated that conversations regarding the defendant were likely to have occurred in the group chat and that this was normal following police attendance, although she had no recollection of the content of any such message.

The use of encrypted applications in other jurisdictions

1. The defence tendered a copy of a report of the Law Enforcement Conduct Commission of NSW ('LECC'): Operation Harrisdale, a report under section 132 of the Law Enforcement Commission Act 2016 (NSW) dated July 2024. The matter addressed the situation of a senior serving police officer who was involved in a single motor vehicle accident. In an unmarked police vehicle following his consumption of alcohol, which he failed to report. Relevantly, when senior colleagues became aware that he was the driver of that vehicle, he was contacted via Signal, which in this instance was set to delete communications after 24 hours. In providing its report to government, the LECC made the following observations:

[18.1] During evidence before the Commission, it became apparent that some officers had adopted the practice of deleting messages, records of messages and calls from encrypted applications.

[18.2] The practice appears to have been partially instituted to avoid the need to produce records under either Standing Order 52s or requests under the Government Information (Public Access) Act 2009. Several of the officers involved did not appear to have given any consideration to the question of whether this practice complied with their obligations under the State Records Act 1998 or might amount to an offence against s 120 of the Government Information (Public Access) Act 2009.

[18.3] However, this issue was not a primary focus of this investigation, and the Commission chose not to spend further time investigating it. The Commission does not make any adverse findings against the officers who adopted the practice.

[18.4] However, the Commission does recommend that the Commissioner of Police consider whether the practice of (automatically) deleting work related electronic messages is consistent with the provisions of the statutory regime dealing with record retention and issued guidance to her officers on the use of encrypted applications and the deletion of messages from police issued phones.

1. This was followed by recommendation 20.1 (c) which provided:

Consideration should be given to whether the practice of (automatically) deleting electronic messages is consistent with the provisions of the statutory regime dealing with record retention and issue guidance to officers on the use of encrypted applications and the deletion of messages from police issued phones.

1. A response from the New South Wales Police Assistant Commissioner, Peter Carter, APM to the Chief Commissioner of the LECC noted that a corporate policy was being developed for consideration of the Commissioner's Executive Team in response to the LECC recommendation. That policy is not in evidence. However, two news articles touching upon it are:

(a) A WhatsApp article from the Australian Associated Press dated 30 September 2024, which reported the New South Wales Police had introduced security software preventing social media and other personal applications from working on New South Wales Police force-issued devices, noting that about 17,000 officers had been ordered to remove all communications software from their work issued phones.

(b) A further article from The Guardian, dated 12 October 2024, reported that Victoria, Queensland and South Australian polices forces had joined New South Wales in banning their officers from using messaging apps like WhatsApp and Signal. The Australian Federal Police confirmed that a "limited number of communications applications" were approved for use by its officers but that "these have been security vetted and are regularly reviewed. For operational reasons the AFP will not disclose what those applications are".

1. It is apparent from the above that there is some concern in the policing community as to the use of encrypted applications to facilitate police work. I note that what is reported in respect to the NSW police policy deals with the use of the applications on police issued mobile phones.
2. I have referred already to the AFP "Better Practice Guide on AFP Managed Mobile Devices and Social Media", which provides direction in relation to the procedures for the access, control and acceptable use of the AFP managed mobile devices (including iPhones and iPad). As indicated, it provides that Signal is approved for use for communications on such devices to a level no higher than "official". It also notes that decisions made on such platforms must be recorded in AFP ICT systems, for example PROMIS or Outlook (except for AFP Teams) for record keeping purposes and again the use of disappearing messages is prohibited.
3. There is no indication that Signal was approved for official communications on personal devices.

1. The defence applies for a permanent stay of proceedings on the grounds that there has been a "deliberate destruction of evidence by police officers involved in the investigation of the offences before the court".
2. The defence submits that there are two types of abuse of process which warrant the Court's intervention. The first consists of conduct which creates a circumstance in which there is an identifiable, irremediable unfairness to the defendant. The second (which may encompass but does not rely on the first) is the circumstances in which some aspect of the process has been so egregiously breached, whether negligently or otherwise, that to allow the prosecution to proceed would undermine public confidence in the integrity of the judicial process. This distinction, the defence submits, is addressed particularly in the decisions of Lee v R ('Lee') [2014] HCA 20; (2014) 253 CLR 455 and Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions ('Strickland') [2018] HCA 53; (2018) 266 CLR 325.
3. Both of these cases dealt with the unquantifiable impact on the right to silence of a defendant through disclosure to the prosecution, other than in accordance with the law of evidence given under compulsion, in Lee to the New South Wales Crime Commission and in Strickland to the Australian Crime Commission.
4. It is the latter of these two forms of abuse which the defence submits infects these proceedings.
5. The processes which the defence submits have been irreparably subverted in this proceeding are, firstly, the prosecution duty of disclosure which cannot be met in the face of evidence having been destroyed and, secondly, the mechanism of compulsory production pursuant to a court-issued subpoena which also cannot be complied with where evidence has been destroyed.
6. The conduct pointed to by the defence to support this submission is the use by the complainant (Sergeant Phelan) and investigating police of the Signal application in September 2024 to address issues relevant to this prosecution in an arrangement, the group chat, with an operative 7 day auto-delete setting, such that it is now impossible to access what communications may have occurred, meaning that there is no ability to assess the significance thereof to the case. This cannot be cured by cross-examination as to do so would rely on the honesty of those involved in the conduct, which the defence submit is a fact in issue in respect particularly to Sergeant Phelan and the required state of mind to prove the intimidate offence.
7. Further, it is submitted that it is not acceptable to cross-examine in a way that suggests impropriety absent evidence supporting the allegation put. Having been deprived of evidence by its destruction what is put in cross-examination is inherently curtailed.
8. Whilst this may amount to an irremediable unfairness in the conduct of proceedings, that is difficult to establish for the very reason that the potentially relevant evidence has been destroyed by deletion.
9. Whilst the defence also points to the issue of credibility, notably Sergeant Phelan's, and questionable dealing with and, an appreciation of, the issue by the prosecution, the submission is that it is the very existence of a non-traceable form of communication which raises an unanswerable spectre of what communication did in fact take place about the prosecution in this forum, which removes the availability of court processes of disclosure and subpoena. It is submitted that if this is not condemned by the court, the conduct is sufficient to bring the administration of justice into disrepute and erode public confidence in it.
10. It is further submitted that the deletion of such communications may constitute a criminal offence as legislation in relation to deletion of Commonwealth records may apply to Signal communications, even if the record is on a personal device (Hocking v Director-General of the National Archives of Australia ('Hocking') [2020] HCA 19; (2020) 271 CLR 1 at [44]).

1. The prosecution submits that there is no abuse of process established in these proceedings because, firstly, the duty of disclosure extends only to material that is potentially relevant to a fact in issue, which it submits does not arise on the facts of this case. Secondly, insofar as the existence or contents of such material is unknown, that can be remedied by cross-examination of those potentially involved in communications on Signal relevant to a fact in issue.
2. It is conceded factually that:

There were representations made through electronic communications that have since been deleted that may have related to Mr Papali'i but that as a professional sports person, he is a public figure who is routinely discussed. A mere conversation about him is not disclosable and that is the height of it.

1. Further, the prosecution submits that whatever representations may have been made in Signal communications between complainant and investigators could not have been concerned with a fact in issue because, according to Sergeant Phelan at [11] of his statement, there basically was no investigation because the entire incident was captured on his body worn camera and CCTV. Insofar as credibility may be in issue, that could be addressed by cross-examination.
2. It is further submitted by the prosecution that because the prosecution was unaware of the contents of any deleted communications, it could not be embroiled or implicated in the abuse, unlike the prosecutor in Strickland. Impliedly, therefore, the abuse could be cordoned off and a lesser remedy than a stay applied, namely cross-examination as to the existence of a relevant chat and its contents.
3. There being a remedy short of a stay, the stay must not be granted.
4. The prosecution submits that because the content of any Signal message (beyond those disclosed) is not known, the court could not conclude whether if they existed the messages would be disclosable, therefore cannot conclude that the duty of disclosure has been breached. It follows that the second form of breach, being an attack on the integrity of the court process must fail.

1. Did the use of Signal by investigating police and or police witnesses in this prosecution so profoundly disadvantage the defence that the effect cannot be remedied by means short of a stay?
2. Has the use of Signal by investigating police and or police witnesses so profoundly undermined the processes of disclosure or subpoena by virtue of destruction of evidence that even absent a finding of practical disadvantage allowing the prosecution to proceed would be tantamount to court approval, effectively undermining public confidence in the integrity of the judicial system so as to amount to an abuse of process?

1. I turn to a summary of the legal principles which in my view are applicable to the determination of these issues.
2. Lest there be any doubt, the Magistrates Court has an implied power to permanently stay proceedings in appropriate circumstances (Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at [15]- [16]; Crimmins v Pearson (2016) 77 MVR 185 at [40]).
3. Exercise of the Court's power to permanently stay proceedings as the result of an abuse of process is exceptional, and consequently rare (Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [33]).
4. That is because the abuse must constitute a fundamental defect which cannot be remedied by the court through some less extreme measure (Strickland at [291]).
5. The power is often described as "discretionary"; it is not.
6. Once the court determines that an otherwise irremediable abuse of process is established, it follows that a stay must be granted (R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at [73]).
7. In determining whether an abuse of process is found, the fact that the same end could have been achieved lawfully but was in fact achieved by impugned conduct does not negate the basis for a stay if the impugned conduct cannot thereafter be remedied (Moti v R [2011] HCA 50; (2011) 245 CLR 456; Strickland at [84]).
8. Whilst practical disadvantage may be apparent on the facts, it is not incumbent upon a defendant to identify such disadvantage in circumstances where the abuse itself creates the potential disadvantage (Strickland at [84]).
9. The term "administration of justice" incorporates the means by which a proceeding is prepare and brought as well as its presentation to the court (Strickland at [263]).
10. Disrepute refers to the undermining of public confidence which in this context "is a construct that is concerned with the systematic protection of the integrity of the court within an integrated system of justice" as opposed to a public perception or actual reputation (Strickland at [257]).
11. The impugned conduct may be entirely anterior to the proceedings but nonetheless satisfy the court that failing to stay the proceeding would allow an abuse of process (Moti v R [2011] HCA 50; (2011) 245 CLR 456).
12. The duty of disclosure extends not just to the prosecutor but also to investigating agencies (R v Trong Ruyen Bui ('Bui') [2011] ACTSC 102; (2011) 5 ACTLR 230 at [41]) and includes an obligation to make enquiries (AJ v R [2010] VSCA 331, cited in Bui at [43]; Mallard v R [2005] HCA 68 cited in Bui at [42]).
13. Access to information which bears or may bear upon the question of guilt, including relating to credibility of witnesses, is an incident of a fair trial: Bui at [39].
14. There are fundamental considerations outlined in GJL v Trustee of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442 at [3]:

As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.

1. The latter principle may apply even to situations where the result is that a potential vile offence remains unresolved with the possibility of a potentially vile offender escaping individual justice because, unpalatable as it is, maintenance of the integrity of the system of the whole may require this (R v Griffin [2006] ACTSC 77 at [33]).
2. The court appropriately has in mind the risk of systemic abuse in determining whether or not to grant a permanent stay (Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Strickland at [107]).

1. Whilst interstate practice is not a directly relevant consideration is this matter; it is evident that there is concern about the use of encrypted messaging in law enforcement. That is also reflected in AFP policy, particularly in the clear prohibition on "disappearing" messages. That concern no doubt reflects a recognition of the need for appropriate transparency in criminal proceedings.
2. I do not determine the issue of whether the deletion of messages from the Signal chat group is capable of being characterised as criminal. The issue of what constitutes a record for the purpose of the Archives Act 1983 (Cth) is far from simple as Hocking demonstrates. There is "a grey area between personal and official" (Hocking at [63]). An item becomes a "record" not by "virtue of being created or received" but "in virtue of being 'kept by reason' of its informational content or its connection with any event, person or circumstance" (Hocking at [72]). However, in my view, determination of this matter does not require determination of any potential criminality. Rather, the court is to determine the effect of the impugned conduct on the court's process.
3. There is evidence that Signal was used to by investigating police, Constable McMahon and police eyewitness Constable James, in this prosecution to communicate about the investigation. There has been disclosure of the admitted use and its produce.
4. There is no evidence that the group chat or any other Signal forum beyond that which has been disclosed was utilised by witnesses to communicate about this prosecution, although it is a possibility.
5. There is evidence that the group chat was used for mixed operational and social purposes. The parameters of its utilisation for operational purposes are entirely unclear. The fact that Sergeant Phelan requested the notification about the production of evidence via Signal, whether to the group chat or individually being unknown, nonetheless indicates that Signal was an unexceptional method of communicating in relation to an investigation. Indeed, it was proposed that it be used in relation to this investigation.
6. Whilst the prosecution submit that this prosecution stands or falls on the existing evidence, this does not mean that observations which could have been the subject of communications, such as additional observations about the defendant's demeanour, or the complainant, or words or conduct attributable to them not caught on camera, et cetera, could be highly relevant, particularly where the defence put Sergeant Phelan's credibility as to whether he was in fact intimidated squarely in question.
7. There can be no effective cross-examination about the actual use of Signal for this investigation beyond that disclosed because of the lack of recollection asserted by a number of participants in the group chat, in particular Constables Tully, James and Andrews who are direct witnesses in these proceedings.
8. What is known, therefore, raises only the possibility of practical unfairness because of the destruction of evidence.
9. However, even though no actual practical unfairness can be demonstrated, the fact is that the unknown remains unknowable because of an intentional practice of the destruction of potential evidence by the operation of an auto-delete function on a mixed operational and social messaging platform.
10. Thus, whilst the court cannot be satisfied that there was in fact any further communication about this proceeding which has consequently been destroyed by deletion, the very real spectre of this is raised by the cavalier approach to the use of Signal in this way.
11. The foundational processes of disclosure and subpoena are rendered futile by this practice.
12. If this practice is not checked, relevant evidence may be created and subsequently destroyed without the fact ever being known in future cases by the very conduct impugned in this case.
13. I conclude that the defence has been unable to establish practical unfairness in this matter.
14. I am, however, satisfied that allowing the prosecution to proceeding in circumstances where there is evidence of the destruction of communications about this defendant, of an unknown and unknowable kind, during the investigation, between the informant, complainant and eyewitnesses, is an irremediable affront to the integrity of the process.
15. A permanent stay on this prosecution is granted.

I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Chief Magistrate Walker.