Post on 14-Dec-2015
transcript
ISRCL- Young LawyersISRCL- Young Lawyers
Anthony GettAnthony Gett
Barrister & Senior Legal OfficerBarrister & Senior Legal Officer
Commonwealth Director of Public Commonwealth Director of Public Prosecutions (Australia)Prosecutions (Australia)
Police Integrity Tests Police Integrity Tests in the State of Queensland, in the State of Queensland,
AustraliaAustralia1.1. Basic overview of Basic overview of
the Crime & the Crime & Misconduct Misconduct CommissionCommission
2.2. Police Integrity Police Integrity Tests (Factual Tests (Factual Scenario)Scenario)
3.3. Legal IssuesLegal Issues
The Queensland Crime & The Queensland Crime & Misconduct CommissionMisconduct Commission
Established under the Established under the Crime & Misconduct Act Crime & Misconduct Act 2001 (Qld)2001 (Qld)
Staffed by Staffed by multidisciplinary teamsmultidisciplinary teams
Two main stated legislative purposes are:
1) combat & reduce major crime
2) “to continuously improve the integrity of, and to reduce the incidence of misconduct in, the public sector.”
The Queensland Crime & The Queensland Crime & Misconduct CommissionMisconduct Commission
Operates on three fronts:Operates on three fronts:1.1. Fights major crimeFights major crime
– In partnership with the In partnership with the Queensland Police ServiceQueensland Police Service
– Combat major crime: Combat major crime: paedophilia & drug paedophilia & drug traffickingtrafficking
2.2. Raises public sector Raises public sector integrityintegrity– Investigate Investigate misconductmisconduct of of
public officialspublic officials
3.3. Protects witnessesProtects witnesses– Witness protection serviceWitness protection service
The Queensland Crime & The Queensland Crime & Misconduct CommissionMisconduct Commission
The CMC extraordinary investigative powers, not ordinarily available to the police service including: Covert search warrants “additional powers warrant”
Copy or extract financial documents from financial entities or associates
Seize passports or property documents
Compel affidavits from financial associates
The Queensland Crime & The Queensland Crime & Misconduct CommissionMisconduct Commission
extraordinary investigative powers (cont’d): Also include compulsory
powers of attendance, examination & production before the Commission;
Powers to holding hearings (open or closed) punishment for
contempt, failure to take oath or give evidence
Official MisconductOfficial Misconduct CMC’s “misconduct functions”
1) to raise standards of integrity and conduct in public administration (including police);
2) to ensure a complaints about misconduct are dealt with in the appropriate way
“Official misconduct” is conduct that could, if proved, be:(a) a criminal offence; or(b) a disciplinary breach providing reasonable grounds for
terminating the person’s services
Police Integrity TestsPolice Integrity TestsFactual Scenario Factual Scenario
Senior Constable SharpeSenior Constable Sharpe Criminal intelligence officerCriminal intelligence officer drug squaddrug squad
Given document called Given document called “target application” by “target application” by senior officersenior officer Classified secretClassified secret Proposed investigation into Proposed investigation into
heroin distributionheroin distribution 3 targets named including 3 targets named including
Stephen DealerStephen Dealer
Police Integrity TestsPolice Integrity TestsFactual ScenarioFactual Scenario
No actual No actual investigation into investigation into heroinheroin
Actually “integrity Actually “integrity test” of Sharpetest” of Sharpe
Constable Sharpe (& Constable Sharpe (& brother):brother): BodybuilderBodybuilder Other police suspected Other police suspected
steroid use steroid use Suspicion of purchase Suspicion of purchase
of steroids from Dealerof steroids from Dealer
Police Integrity TestsPolice Integrity TestsFactual ScenarioFactual Scenario
Sharpe under surveillanceSharpe under surveillance Telephone interceptsTelephone intercepts Listening devicesListening devices
Sharpe advises other Sharpe advises other policepolice Knows dealerKnows dealer Wants to avoid target Wants to avoid target
applicationapplication Other police advise him to Other police advise him to
avoid Dealer & don’t avoid Dealer & don’t disclose target applicationdisclose target application
Police Integrity TestsPolice Integrity TestsFactual ScenarioFactual Scenario
Constable Sharpe:Constable Sharpe: Concerned about:Concerned about:
discovery of his discovery of his relationship with Dealerrelationship with Dealer
Purchase & use of Purchase & use of steroidssteroids
Informs brother of Informs brother of target application and target application and his concernshis concerns
Conversation is Conversation is covertly recordedcovertly recorded
Police Integrity TestsPolice Integrity TestsFactual ScenarioFactual Scenario
Sharpe:Sharpe: InterviewedInterviewed Denies disclosing any Denies disclosing any
information to Dealerinformation to Dealer Fails to mention Fails to mention
conversation with conversation with brotherbrother
Sharpe in meeting with Sharpe in meeting with Dealer Dealer Discloses target Discloses target
applicationapplication Purchase & supply of Purchase & supply of
steroids over the yearssteroids over the years
Integrity Tests- PolicyIntegrity Tests- Policy General purpose to General purpose to
advance investigationadvance investigation Broader information Broader information
gathering aimsgathering aims TargetedTargeted Methodology:Methodology:
Lawful conduct: CMC Act Lawful conduct: CMC Act provisionsprovisions
Unlawful conduct: police Unlawful conduct: police legislation for “controlled legislation for “controlled operations” (e.g. actually operations” (e.g. actually committing offence: buying committing offence: buying & selling drugs)& selling drugs)
Integrity Tests- Integrity Tests- Threshold IssuesThreshold Issues
Conduct in question Conduct in question must amount to must amount to “official “official misconduct”misconduct”
Practical Practical considerations:considerations:
1.1. SeriousnessSeriousness
2.2. Resources and Resources and naturenature
3.3. Justifiable use of Justifiable use of resources in the resources in the circumstancescircumstances
Integrity Tests- Integrity Tests- Threshold IssuesThreshold Issues
Concept of suspicion Concept of suspicion not part of assessment not part of assessment to approve integrity to approve integrity testtest
Legislation: activities Legislation: activities are reasonably are reasonably necessary to obtain necessary to obtain evidence of misconductevidence of misconduct
Practically:Practically:1)1) Sufficient evidence;Sufficient evidence;2)2) Raises reasonable Raises reasonable
suspicionsuspicion
Integrity Tests- Integrity Tests- Threshold IssuesThreshold Issues
Operational issues Operational issues prior to execution:prior to execution:
1)1) Verify possible Verify possible allegationsallegations
2)2) Other investigative Other investigative activity or target activity or target development: not development: not first option first option investigative toolinvestigative tool
Integrity Tests- Integrity Tests- Threshold IssuesThreshold Issues
Assistance may be Assistance may be rendered for lawful rendered for lawful conductconduct
Unlawful conduct requires Unlawful conduct requires use of police “controlled use of police “controlled operation” legislationoperation” legislation
Vetting process of Vetting process of enlisting other officersenlisting other officers
CMC controllerCMC controller Indemnities can be given Indemnities can be given
by Attorney-General & by Attorney-General & through State prosecuting through State prosecuting authorityauthority
Integrity Tests- Prosecution Integrity Tests- Prosecution IssuesIssues Upon CMC assessment Upon CMC assessment
of Integrity Test of Integrity Test resultsresults
1.1. Counselling optionCounselling option
2.2. Managerial actionManagerial action
3.3. Disciplinary chargesDisciplinary charges
4.4. Official misconduct Official misconduct chargescharges
5.5. Criminal chargesCriminal charges
Integrity Tests- Prosecution Integrity Tests- Prosecution IssuesIssues
Entrapment issuesEntrapment issues Integrity tests form of controlled Integrity tests form of controlled
operationoperation Legislation prescriptiveLegislation prescriptive Activity must not be likely to Activity must not be likely to
result in a person being induced result in a person being induced to engage in criminal activity of to engage in criminal activity of a kind the person could not a kind the person could not reasonably be expected to have reasonably be expected to have engaged in if not encouraged or engaged in if not encouraged or induced to engage in it. induced to engage in it.
Regard had to common law & Regard had to common law & rules of evidencerules of evidence
Integrity Tests- Prosecution Integrity Tests- Prosecution IssuesIssues
Disclosed Criminal OffencesDisclosed Criminal Offences Upon a prima facie case- Upon a prima facie case-
report may be made to report may be made to prosecuting authority prosecuting authority (DPP)(DPP)
Not all referred & advice Not all referred & advice often sought from often sought from prosecuting authorityprosecuting authority
Fact scenario: Fact scenario: Disclosure of target Disclosure of target
application: police application: police misconductmisconduct
Possible criminal offences Possible criminal offences regarding steroidsregarding steroids
Integrity Tests- Prosecution Integrity Tests- Prosecution IssuesIssues
Disclosed MisconductDisclosed Misconduct CMC has standing to prosecute CMC has standing to prosecute
misconduct in the Misconduct misconduct in the Misconduct TribunalTribunal
Decided on the balance of Decided on the balance of probabilitiesprobabilities
If concerns of meeting higher If concerns of meeting higher standard of proof but there is prima standard of proof but there is prima facie misconduct- misconductfacie misconduct- misconduct
Misconduct proceedings may follow Misconduct proceedings may follow unsuccessful criminal prosecution unsuccessful criminal prosecution actionaction
Disclosed Misconduct v Disclosed Misconduct v Criminal OffencesCriminal Offences
Relevant factors:Relevant factors: Seriousness of alleged Seriousness of alleged
conductconduct Strength of evidenceStrength of evidence
Issues of admissibility in Issues of admissibility in criminal & disciplinary criminal & disciplinary forumsforums
Forensic capabilities of Forensic capabilities of tribunaltribunal
Testing the evidence through Testing the evidence through cross-examination v on the cross-examination v on the papers in internal papers in internal disciplinary proceedingsdisciplinary proceedings