ISRCL- Young Lawyers Anthony Gett Barrister & Senior Legal Officer Commonwealth Director of Public...

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.”


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 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


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


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


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


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


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


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


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


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


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 misconductmisconduct

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

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