Controlled Operations Law Enforcement Controlled Operations Act 1997

Controlled Operations Law Enforcement (Controlled Operations) Act 1997 Some practical tips Jason Hale Hunter Street Chambers www. hunterstreetchambers. com. au CLE Legal Aid NSW Newcastle 11 March 2015

Three points for today… 1. The Authority to conduct the controlled operation 2. Cross examining the undercover operative 3. Cross examining the police ‘expert’

General information regarding Controlled Operations in NSW Governed by the Law Enforcement (Controlled Operations) Act 1997 Controlled operation defined in section 3 • It’s an operation conducted for the purposes of: - Obtaining evidence of criminal activity or corrupt conduct - Arresting a person involved in the above - Frustrating criminal activity or corrupt conduct

General information regarding Controlled Operations in NSW Section 6(3) – what the Commissioner of Police has to consider in dealing with an application for the authority to conduct a controlled operation • that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency, • that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation, • that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct

General information regarding Controlled Operations in NSW Generally, a controlled operation allows: • Police officers and others to engage in specific activities that would otherwise be unlawful • The Authority states that those activities are not unlawful • Protects the participants from criminal liability

The Authority - Law Enforcement (Controlled Operations) Act s 8 – The form of the Authority Among other things the Authority must: • Be signed by the relevant CEO (for example an assistant commissioner of police) • Identify each person who may engage in the controlled activities • State whether or not that person may operate under an assumed name • Specify when the Authority ends (must not be more than 6 months)

The Authority - Law Enforcement (Controlled Operations) Act s 13 A – to some extent protects the Authority from a defect in the Authority ‘An application for an authority or variation of authority, and any authority or variation of authority granted on the basis of such an application, is not invalidated by any procedural defect, other than a defect that affects the substance of the application, authority or variation in a material particular. ’

The Authority - Law Enforcement (Controlled Operations) Regulation 2012 Schedule 1 Form 1 Authority to conduct controlled operation (other than a cross -border controlled operation)

The Authority - Law Enforcement (Controlled Operations) Regulation 2012 Form 1 Authority – some things to look for • Is it signed and dated by the CEO or delegate? • Does it list the names of those authorised to participate in the controlled operation? • Does it list the assumed names of those authorised to participate in the controlled operation? • What is the nature of the activity that those authorised are allowed to engage in? • Check the expiry date

Section 13 A – protection from defects • Remember that any procedural defect in the Authority does not invalidate the authority • Only those defects which affect the substance of the Authority will invalidate it So what would be a substance defect? • An unsigned Authority? • An Authority that does not list the name of the undercover operative? • An Authority that does not list the operative’s assumed name?

Defects in Authorities and section 138 of the Evidence Act R v Hoang [2015] ACTSC 17 FACTS: • NSW Police conducting a cross border controlled operation • Authorising a UCO to purchase drugs from two people in the ACT • During the course of the transactions, a third person and then a fourth person was identified (Hoang) • Hoang was never added to the controlled operation Authority • Charged with heroin supply

Defects in Authorities and section 138 of the Evidence Act R v Hoang [2015] ACTSC 17 DEFENCE ARGUMENT: • Hoang was never added to the controlled operation Authority despite police having sufficient time to do so • Absence the name of any new suspect the Authority was limited to activities that “can be directly traced back to one of the named suspects” • What’s the nature of this limitation?

The nature of the limitation… • Her Honour stated that the remaining question is whether the relevant activities of the UC (ie those that provided evidence against Hoang) were authorised by the terms of the Authority • Her Honour ultimately found that the UC, in negotiating the purchase of heroin from a third person identified during the controlled operation, then driving that third person to conduct a transaction with Hoang was within the scope of the Authority • This was because this activity could be directly traced back to one of the suspects named in the Authority

Her Honour’s findings… • On the balance of probabilities the actions of the UC were within the scope of the Authority • Had the evidence been obtained unlawfully by the UC acting outside the scope of the Authority then the court would look at section 138(3) • Her Honour went through each of the points in 138(3) • Found that she would have allowed the evidence in anyway despite a UC acting outside the scope of the Authority!

Cross examining the UC – some tips The duty of a UC is not simply to gather evidence of illegal activity (purchasing drugs, firearms, admissions from a murder suspect) A UC has additional duties: • Gather intelligence • Gather corroborating evidence • Remembering conversations as close to word for word as possible (particularly if the UC is not wearing a listening device) • Their own safety

Cross examining the UC – some tips • The safety of other participants (for example a police source) • Their own ‘cover story’ • Remembering where their surveillance operatives are • Remembering where the support operatives are • And many other factors

Cross examining the UC – some tips • The UC’s you will deal with have a range of experience • Some are new UC’s (street level type operations) • Others are very experienced (full time UC’s) • No matter their level of experience they will be anxious during the deployment • Nervous • Adrenalin pumping • They are human – mistakes can be made • Inaccuracies in their observations

Cross examining the UC – some tips Identifying a suspect • Briefing of a UC • Intelligence package • Photo of ‘target’ • Meeting the ‘target’ • Can the UC be really sure that the person they are dealing with is the person shown to them in a small photo of poor quality?

Cross examining the police expert – some tips • Police officers with experience in drug investigations • Some have also previously been UC’s or UC supervisors • A lot of them don’t like providing expert statements because it takes a lot of time! • Opinion is generally based on reading the police facts; looking at photographs of drugs; and reading SOME of the listening device material; drug weight and purity

Cross examining the police expert – some tips • Like all experts police officers are bound to the Code of Conduct which is found in Schedule 7 to the Uniform Civil Procedure Rules • They are supposed to be impartial Section 79 of the Evidence Act: Exception: Opinions based on specialised knowledge. (1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge

Cross examining the police expert – some tips I’ve stolen the next table from the head of our chambers - Simon Harben SC It must be good – it’s in his paper titled ‘EXPERT EVIDENCE: PRACTICALLY SPEAKING’ www. hunterstreetchambers. com. au

Cross examining the police expert – some tips Opinions Expressed Training, Study and Experience Assumptions/Foundation Caller is asking accused if he is holding any drugs at the moment ‘Are you holding? ’ ‘ 8 ball’ refers to an amount of drugs – 1/8 of an ounce = 3. 5 grams ‘How much for an 8 ball? ’ Could be 3 points (0. 1 gram per point); Could be 3 ounces; Could be 3 actual bottles of LPG ‘I want three gas bottles’ I’d like to buy the same drug I bought off you last week ‘I’d like to borrow that DVD. The same one I borrowed last week. ’ I would like to purchase drugs from you ‘I wanna’ get on. ’

Cross examining the police expert – some tips I’d like to again refer to Simon Harben’s paper at paragraphs [32] to [33] 1. Extract the relevant opinions from the police officer’s statement. These should be then written in the relevant column. 2. Look at whether the training, study and experience provides the officer with the specialised knowledge entitling the expert to express that opinion. 3. If it does not then deal with it appropriately.

Cross examining the police expert – some tips 4. Against each opinion write down the relevant training, study and experience and the specialised knowledge relied upon to enable that opinion to be expressed. 5. If the training, study and experience question is satisfied in favour of the expert, then… 6. Look at the assumptions that are made and the foundation upon which the opinions are expressed to be formed. 7. The foundation/assumption issue is the usually the most contentious ie. is the suspect talking about drugs or gas bottles?

Closing… • CHECK the Authority • DON’T ASSUME that the UC’s observations and records of conversation are entirely accurate. This doesn’t mean that the UC is dishonest; she may simply be mistaken • DON’T SIMPLY ACCEPT the evidence of the police expert • AND – if you’re going to commit crime, DON’T talk about it on the phone!

An old pic….