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ISRCL- Young Lawyers

ISRCL- Young Lawyers. Anthony Gett Barrister & Senior Legal Officer Commonwealth Director of Public Prosecutions (Australia). Police Integrity Tests in the State of Queensland, Australia. Basic overview of the Crime & Misconduct Commission Police Integrity Tests (Factual Scenario)

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ISRCL- Young Lawyers

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  1. ISRCL- Young Lawyers Anthony Gett Barrister & Senior Legal Officer Commonwealth Director of Public Prosecutions (Australia)

  2. Police Integrity Tests in the State of Queensland, Australia • Basic overview of the Crime & Misconduct Commission • Police Integrity Tests (Factual Scenario) • Legal Issues

  3. The Queensland Crime & Misconduct Commission • Established under the Crime & Misconduct Act 2001 (Qld) • Staffed by multidisciplinary teams • Two main stated legislative purposes are: • combat & reduce major crime • “to continuously improve the integrity of, and to reduce the incidence of misconduct in, the public sector.”

  4. The Queensland Crime & Misconduct Commission • Operates on three fronts: • Fights major crime • In partnership with the Queensland Police Service • Combat major crime: paedophilia & drug trafficking • Raises public sector integrity • Investigate misconduct of public officials • Protects witnesses • Witness protection service

  5. The Queensland Crime & Misconduct 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

  6. The Queensland Crime & Misconduct 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

  7. Official Misconduct • CMC’s “misconduct functions” • to raise standards of integrity and conduct in public administration (including police); • 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

  8. Police Integrity TestsFactual Scenario • Senior Constable Sharpe • Criminal intelligence officer • drug squad • Given document called “target application” by senior officer • Classified secret • Proposed investigation into heroin distribution • 3 targets named including Stephen Dealer

  9. Police Integrity TestsFactual Scenario • No actual investigation into heroin • Actually “integrity test” of Sharpe • Constable Sharpe (& brother): • Bodybuilder • Other police suspected steroid use • Suspicion of purchase of steroids from Dealer

  10. Police Integrity TestsFactual Scenario • Sharpe under surveillance • Telephone intercepts • Listening devices • Sharpe advises other police • Knows dealer • Wants to avoid target application • Other police advise him to avoid Dealer & don’t disclose target application

  11. Police Integrity TestsFactual Scenario • Constable Sharpe: • Concerned about: • discovery of his relationship with Dealer • Purchase & use of steroids • Informs brother of target application and his concerns • Conversation is covertly recorded

  12. Police Integrity TestsFactual Scenario • Sharpe: • Interviewed • Denies disclosing any information to Dealer • Fails to mention conversation with brother • Sharpe in meeting with Dealer • Discloses target application • Purchase & supply of steroids over the years

  13. Integrity Tests- Policy • General purpose to advance investigation • Broader information gathering aims • Targeted • Methodology: • Lawful conduct: CMC Act provisions • Unlawful conduct: police legislation for “controlled operations” (e.g. actually committing offence: buying & selling drugs)

  14. Integrity Tests- Threshold Issues • Conduct in question must amount to “official misconduct” • Practical considerations: • Seriousness • Resources and nature • Justifiable use of resources in the circumstances

  15. Integrity Tests- Threshold Issues • Concept of suspicion not part of assessment to approve integrity test • Legislation: activities are reasonably necessary to obtain evidence of misconduct • Practically: • Sufficient evidence; • Raises reasonable suspicion

  16. Integrity Tests- Threshold Issues • Operational issues prior to execution: • Verify possible allegations • Other investigative activity or target development: not first option investigative tool

  17. Integrity Tests- Threshold Issues • Assistance may be rendered for lawful conduct • Unlawful conduct requires use of police “controlled operation” legislation • Vetting process of enlisting other officers • CMC controller • Indemnities can be given by Attorney-General & through State prosecuting authority

  18. Integrity Tests- Prosecution Issues • Upon CMC assessment of Integrity Test results • Counselling option • Managerial action • Disciplinary charges • Official misconduct charges • Criminal charges

  19. Integrity Tests- Prosecution Issues • Entrapment issues • Integrity tests form of controlled operation • Legislation prescriptive • Activity must not be likely to result in a person being induced to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced to engage in it. • Regard had to common law & rules of evidence

  20. Integrity Tests- Prosecution IssuesDisclosed Criminal Offences • Upon a prima facie case- report may be made to prosecuting authority (DPP) • Not all referred & advice often sought from prosecuting authority • Fact scenario: • Disclosure of target application: police misconduct • Possible criminal offences regarding steroids

  21. Integrity Tests- Prosecution IssuesDisclosed Misconduct • CMC has standing to prosecute misconduct in the Misconduct Tribunal • Decided on the balance of probabilities • If concerns of meeting higher standard of proof but there is prima facie misconduct- misconduct • Misconduct proceedings may follow unsuccessful criminal prosecution action

  22. Disclosed Misconduct v Criminal Offences • Relevant factors: • Seriousness of alleged conduct • Strength of evidence • Issues of admissibility in criminal & disciplinary forums • Forensic capabilities of tribunal • Testing the evidence through cross-examination v on the papers in internal disciplinary proceedings

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