Page 3100 - Week 08 - Thursday, 7 August 2008

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An interesting case occurred during the prohibition era in the United States. In 1930, a factory worker in North Carolina was convicted of supplying liquor under the National Prohibition Act after an undercover officer posed as a fellow war veteran and gradually wore him down by repeatedly entreating him to try to get his fellow soldier some liquor. The case ended up going to the United States Supreme Court in the case Sorrells v United States, where the justices unanimously recognised entrapment as a defence against prosecution and reversed the man’s conviction. This kind of case and many others show us the dangers that can occur when police officers, perhaps even through over-zealously undertaking their duties, are involved undercover in criminal conduct.

Of course, controlled criminal operations are often a necessary part of breaking organised crime activities, and some provision must be made to ensure that police can operate in an effective way. In order to deal with organised criminal activities, undercover officers often have to infiltrate groups and convince those groups that they are participating as fellow criminals.

In this role, it would be virtually impossible to maintain one’s cover and to avoid breaking any aspect of the law. The very nature of the activity means that one is associated with habitual law breakers and is attempting to earn their trust as a fellow conspirator. This is certainly a difficult and dangerous job, and I would not want to see the brave men and women who operate as undercover police smeared by instances of abuse of power that have occurred in the past. I know Dr Foskey has dwelt on those, but I think the examples are probably heavily outweighed by the good work done by most.

Officers working in this environment need to have their minds on the job, without anxiety about whether they themselves may be the subject of prosecution. However, there must be strict limits imposed to ensure that any special powers are not abused and to ensure that police do not become so central to a criminal operation that they may in fact be entrapping others into criminal conduct that they would not otherwise have committed. This is a balancing act, and a fine one at that.

The main effect of this bill is that it establishes a statutory system to allow for the authorisation and conduct of controlled operations in which police officers are given authorisation to commit crimes in the course of their investigations. The bill provides protection to officers from prosecution for crimes committed in the course of an authorised controlled operation, other than for offences likely to cause death, serious injury or a sexual assault against a person.

The bill requires courts, in deciding on the admissibility of evidence, to disregard the fact that evidence was obtained as the result of engaging in criminal activity if the participant is part of a controlled operation. This provision still allows a court the discretion to exclude evidence or stay proceedings on the grounds of justice, such as in cases of entrapment or incitement of a crime by police. The bill is part of a model law developed at federal level to deal with controlled operations.

The statutory position proposed by this bill differs from the previous system in which officers relied on prosecutorial discretion and common law judicial discretion to avoid

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