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 1. Basic overview of the Crime & Misconduct Commission 2. Police Integrity Tests (Factual Scenario) 3. 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: 1) combat & reduce major crime 2) “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: 1. Fights major crime – In partnership with the Queensland Police Service – Combat major crime: paedophilia & drug trafficking 2. Raises public sector integrity – Investigate misconduct of public officials 3. 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” 1) 1) to raise standards of integrity and conduct in public administration (including police); 2) 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

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

9. Police Integrity Tests Factual 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 Tests Factual 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 Tests Factual 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 Tests Factual Scenario Sharpe: Sharpe: Interviewed Interviewed Denies disclosing any information to Dealer Denies disclosing any information to Dealer Fails to mention conversation with brother Fails to mention conversation with brother Sharpe in meeting with Dealer Sharpe in meeting with Dealer Discloses target application Discloses target application Purchase & supply of steroids over the years 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: 1. Seriousness 2. Resources and nature 3. 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: 1) Sufficient evidence; 2) Raises reasonable suspicion

16. Integrity Tests- Threshold Issues Operational issues prior to execution: 1) Verify possible allegations 2) Other investigative activity or target development: not first option investigative tool

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

18. Integrity Tests- Prosecution Issues Upon CMC assessment of Integrity Test results 1. Counselling option 2. Managerial action 3. Disciplinary charges 4. Official misconduct charges 5. Criminal charges

19. Integrity Tests- Prosecution Issues Entrapment issues Entrapment issues Integrity tests form of controlled operation Integrity tests form of controlled operation Legislation prescriptive 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. 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 Regard had to common law & rules of evidence

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

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