POLICING
the POLICE
Michael Cook
The disturbing ramifications
of using covert surveillance
and 'wired' informers to
expose corrupt officers.
When NSW Senior Constable Matthew Jasper presented his girlfriend
with a new DVD player, she was delighted -until she realised it didn't
work. She insisted that they return it to the shop where Jasper had
bought it, while he argued that he would handle the unexpected problem
himself. It was a typical discussion between two people over a broken
electronic appliance, with the exception of two details: unbeknown to
his girlfriend, Jasper had recently confiscated the DVD player from a
drug dealer in return for continuing protection of his illegal trade; and,
more importantly, their every word was being recorded by a Police
Integrity Commission (PIC) investigation into police corruption.]
The tape of this argument, played to general laughter at the recent
PIC hearing, demonstrates far more than the fact that the NSW police
force contains a number of corrupt officers. It illustrates the insidious
reach law enforcement agencies now have, under legislation designed
to smoke out criminal offenders, to peer into the unguarded moments of
our private lives. Increasingly prevalent surveillance nets are catching
more than conupt officials - families, friends, acquaintances and
professional associates of official 'targets' have also been held up to
scrutiny and imputations of criminal conduct.
Of course, many would argue that such official 'observation' is
acceptable when it results in a reduction in police corruption, as in this
case, or perhaps the dismantling of terrorist networks. This sacrifice of
individual rights for a somewhat nebulous conception of community
wellbeing, however, only serves to undermine Australian society. It
leads to the legally sanctioned corruption of human rights of those kept
under surveillance, such as the right to a fair trial, or the privilege to
avoid self-incrimination - or even the freedom to have a private
argument without being held up to public ridicule.
Technology outpaces effective regulation
Michael Cook is an Arts/Law student at the Australian
National University.
O 2002 Michael Cook (text)
O 2002 John Lynch (cartoon)
VOL. 27,NO. 3, JUNE. 2002
Surveillance technology has improved dramatically over the last two
decades, with rudimentary listening devices evolving into extremely
effective monitoring mechanisms. This improvement corresponds with
a dramatic expansion in the range of suspected criminal activities that
can be legally monitored, under a combination of Commonwealth and
state law, by law enforcement officials. For example, standard
wiretapping was originally confined to protecting the 'interests of
national security,' but now Commonwealth agencies can intercept calls
relating to anything from narcotics offences to serious property
damage.2
Many operations involving covert surveillance and undercover
officers in NSW rely on the Law Enforcement (Controlled Operations)
Act 1997 (NSW). The Act, while explicitly forbidding certain activities,
provides immunity in s.19 for anyone involved in an authorised
operation -from the chief executive officer to any participant acting in
'good faith' - from any criminal or civil action, claim, liability or
demand. This effectively nullifies any suggestion that inciting suspects
P O L I C I N G T H E
to commit crime can lead to pro~ecution.~
Notably, the Act
also leaves the decision to conduct such an operation to the
chief executive officer of the very agency seeking to run it
(s.5).
Even those actions prohibited under the Act -such as the
entrapment of suspects by 'inducing or encouraging' them to
engage in criminal activity and then using surveillance
methods to collect evidence for their prosecution - would
not necessarily stop such evidence from being used in court.
Under the Evidence Act 1995 (NSW and Cth), improperly or
illegally obtained evidence is prima facie inadmissible, but a
judge has the (rather vague) power to include it if 'the
desirability of admitting the evidence' outweighs the
negatives associated with its collection (s.138).
Yet this narrow limitation on the power over undercover
operations often fails to protect the target of its scrutiny almost inevitably a judge favours adducing evidence
obtained by entrapment. Simon Bronitt, a Reader in Law at
the Australian National University and an Associate at the
Australian Institute of Criminology, points out that judicial
remedies, though based on a respect for the rule of law and
human rights, are apparently reserved for the 'exceptional
case' that rarely, if ever, arrives. Judges, while bemoaning
the illegalities committed by law enforcement officials,
seem to ultimately favour the concept of crime control over
public policy consideration^.^
'It would appear', Bronitt argues, 'that the courts uphold
the rhetoric of policy and justice, while simultaneously
finding reasons to deny its applicability to the particular facts
before them7.5
Disregard for international obligations
A number of international treaties, such as the International
Covenant on Civil and Political Rights (ICCPR), appear to
present the right to privacy as fundamental and indisputable.
This sentiment is reflected in the Australian Privacy Charter,
which states that 'Privacy is a key value which underpins
human dignity . .. [It] is a basic human right and the
reasonable expectation of every p e r s ~ n . ' ~
Such a right may not be as absolute as these documents
suggest. And perhaps some Australians who support our
right to privacy may reconsider their position if that right
unconditionally protected corrupt police officers from
covert investigation. As a recent NSW Law Reform
Commission report on surveillance acknowledges, covert
surveillance 'can be a valuable tool' in investigating and
prosecuting serious, otherwise insoluble offences7
Despite this qualification, Australian law governing
electronic surveillance in general - and the current PIC
investigation into suspect officers and individuals in
particular - have arguably breached privacy protections
established by the ICCPR. Possible infringements of the
guarantee against 'unlawful attacks on [an individual's]
.~
honour and reputation' are aparticular area of ~ o n c e r nOne
such example, already aired at the PIC inquiry, is a
conversation between a solicitor and a witness codenamed
B5 (an alleged drug dealer). Like much of the talk captured
by PIC agents, as the parties involved are not police officers,
it is therefore outside the primary focus of the Commission.
One tape was played as evidence of a corrupt connection
between the solicitor and a police officer under investigation.
The (somewhat ambiguous) proof comes from a statement
by the solicitor that he will see 'how much you might get
128
P O L I C E
back', and 'if the money comes I mean I don't mind him
giving me the money and I'll just pass it on to YOU'.^
Another form of surveillance employed by the
Commission involved M5, a police officer who secretly
recorded hundreds of hours of conversations with other
officers.'O This method qualified as 'participant
surveillance' - where a party to a conversation makes a
covert recording. Accordingly, M5 did not need to establish
the necessity of his covert recordings to an independent
evaluation, because his purpose satisfied a test of 'public
interest'." As the NSW Law Reform Commission notes,
'public interest' is a 'fluid and amorphous concept' that
cannot be objectively defined or applied.12 Thus, in many
cases of participant surveillance (such as that conducted by
M5 for the PIC) the ICCPRYsguarantee that everyone has
'the right to protection of the law against . . . interferences or
attacks [on their privacy]' is arguably denied.
The personal effect of these recorded tapes on the officers
involved has been severe. One officer under investigation
was admitted to a psychiatric ward three hours into the first
day of the Inquiry. Many of the officers' legal and human
rights have been effectively circumvented. When law
enforcement officials had enough evidence to charge the
suspects, to continue to allow M5 to record conversations
concerning corrupt activity practically denied the suspect
officers the right to remain silent, or access to effective legal
counsel, during questioning.I3
Stephen Maxwell: a case in point
From early 1998 to his arrest in October 1999, he was known
on the Australian National University campus as Stephen
Martyn, the Students' Association Queer Officer and a
political activist. His real name, however, was
Stephen Maxwell - a drug dealer who fled Queensland
after becoming an informer for the 1997 Criminal Justice
Commission inquiry into drugs and corrupt officers.14
With the help of Maxwell's testimony, as well as
extensive electronic surveillance, the CJC investigation
identified several cases of 'corrupt and improper conduct by
police', and ultimately led to 39 people (including six police
officers) being convicted for drug dealing, theft, the
protection of drug dealers, and the presentation of false
material to a court.
In one case, a police officer and local businessman stole
$100,000 worth of marijuana from a police watch-house.
Their convictions rested primarily on the evidence provided
to the Inquiry by 'M' -later revealed to be Maxwell -who
the men hired to sell the stolen drugs under police
supervision. CJC spokesman Alex Smith acknowledges that
Maxwell was 'apivotal witness to the Inquiry'. By providing
evidence to the Inquiry Maxwell ensured his criminal
partners spent a long time in prison, and is now (belatedly)
serving a reduced sentence ofhis own for official corruption,
drug trafficking, production and possession.
Maxwell's case sharply illustrates the positives and
negatives associated with the use of informers. Informers
have played an important role in the administration of
criminal justice simply because of their effectiveness in
convicting more serious offenders. But as Sybil Sharpe, a
Senior Lecturer in Law at Coventry University, argues the
current, largely informal system of rewards for informers either financial incentives or promises of immunity from
prosecution - presents an 'enormous potential for
ALTERNATIVE LAW JOURNAL
POLICING T H E
c ~ r r u p t i o n ' .The
~ ~ informer has a powerful motive to
fabricate favourable evidence to appease his overseers, and
may become effectively immune from prosecution despite
committing serious offences.
As has been made clear at the PIC Inquiry, M5 continued
to participate in criminal conduct for more than two years
after 'rolling over'. Philip Cornford, ajournalist covering the
current Inquiry, believes M5 probably only agreed to become
an informer to avoid being charged himself.
'[The] counsel assisting the commissioner has been
careful not to reveal whether M5 "rolled over" to save his
own skin, although that is the strong suspicion,' Cornford
says. 'Evidence [has been presented] that M5 was involved
in corrupt behaviour even while the [Wood] royal
commission was tearing the police service asunder. 'I6
The entire informer system, meanwhile, often serves to
mask corrupt activities by police. This problem is illustrated
by a recorded conversation between the two men Maxwell
helped to convict. Discussing the consequences of their plan
to get Maxwell charged with drug offences, the businessman
tells the officer that, 'my concern is getting exposed -I can
talk my way out of it. You know. But if you get exposed, it's
going to be hard for you. Because they're going to grab you
. .. [you say] he [Maxwell] was the informant and we were
milking him blah blah blah ...'I7 As this conversation
indicates, close contact between criminals and law
enforcement officers, in an apparent effort to extract
information, often serves to simply cover illegal activities of
the officers themselves.
To Professor Sharpe, this 'very likely possibility' that on
occasions law enforcement
engage in the
very illegal activities they seek to stop, is the most worrying
aspect of the informant system.
have Loften]not
reliedupon information Or
surveillance to obtain evidence', Sharpe says, 'but have
incite$' or participated in the offence either directly or
through the use of agents'.18 The overall permissiveness of
the law surrounding entrapment (as mentioned above)
allowed M5 to effectively act as an agent provocateur by
actively encouraging other officers to commit crimes. With
high-level sanction, he has taken paq, in drug deals, bribed
and extorted, lied in court and then secretly informed on
others for doing the same.~g~ 5 active,
' ~prominent
is
in his one-third share
proceeds
from the corrupt activities.
A telling moment at the Inquiry, and an indictment on the
methods employed by M5 for the PIC, came when Matthew
Jasper decided to confess. After he had recited a litany of
crimes in which he had participated, counsel assisting the
Inquiry asked why he had done so.
'Jasper had trouble explaining why he became corrupt',
Cornford recalls. 'He did it because his mates [particularly
M5, whom he saw as a policing role model] were doing it,
that is all. '
Another method the PIC utilised to capture evidence of
corruption was 'integrity tests' whereby police would be
encouraged to search an extensively monitored and wired
household. As Chris Masters reported in the ABC Four
Corners program 'Directing Traffic', a stash of money,
drugs and scales would be secreted, not very stealthily, in a
cupboard -providing the officers involved with a choice to
report, or steal, what they d i ~ c o v e r e d . ~ ~
VOL. 27, NO. 3, JUNE 2002
P O L I C E
To the disgust of viewers, one police officer the subject of
the enquiry emphatically failed this test. Geoffrey Robertson
QC, however, argues that such condemnation should lay
more on the law enforcement techniques designed to 'persuade,
cajole and incite the commission of [such] offences'.
'The principal question [should always be] whether the
trick was so alluring or so dirty that the offenders should not
be punished for falling for it', Robertson argues.21Such tests
are legal, and allegedly commonplace, but this does mask the
fact that scenarios such as the one that captured the above
officer are simply crude, debasing efforts at temptation.
Conclusion
As the PIC Inquiry continues, it is clear that a number of
police officers face prosecution for their numerous compt
activities. Again captured on tape, Jasper observed (after
pocketing $1 0,000 stolen from a drug dealer) that 'Greed's a
bad thing'. His was a base, financial greed. Unfortunately,
the determination exhibited by the PIC to track down official
corruption results in the theft of something more valuable
than Jasper could ever grasp: our human rights.
References
1. Cornford, Philip, 'Even crooked cops stop at besmirching a woman's
name', Sydney Morning Herald, 18 October 2001, p.3.
2. Australian Security Intelligence Organization Act 1979 (Cth);
Telecommunications (Interception) Act 1979 (Cth).
3. Bronitt. Simon and Roche. Declan. 'Between Rhetoric and Realitv:
~ociolegaland ~ e ~ u b l i c a~ne r s ~ e c t i v eons Entrapment', (2000).4
International Journal ofEvidence and Pmof 80.
4. For ararely followed exception, see Ridgeway v The Queen (1 995) I84
CLR 19. See also Sharpe, Sybil, 'Covert Police Operations and the
Discretionary Exclusion of Evidence', (1994) Criminal Law Review
793-804.
5, Bronia, Simon, 'Enaapment, Human Rights and Criminal Justice: A
Licence to Deviate? (1999) 29 Hong Kong Law Journal 216.
6. Australian Privacy Charter Group, The Australian Privacy Charter,
Universitv of New south Wales Law School 1994,. u.
. 1.
7, New south Wales Law Reform Commission, Surveillance: An Interim
Report, February 2001, p.205.
8, Section 17. See Bronitt, Simon, 'Electronic Surveillance, Human
Rights and Criminal Justice', (1997) 3 Australian Journal ofHuman
Rights 192.
9. Mercer, Neil, 'Cash split with police after raid: drug man', Sydney
Morning Herald, 10 October 2001, p.5.
10, Kidman, John, 'Inside the shadowy world that hides M53, Sun-Herald
14 October 2001, p.3.
11. Listening Devices Act 1984 (NSW), s.5(3).
12. NSW Law Reform Commission, Surveillance: An Interim Report,
p.253.
13. See Smith (1994) 75 A Crim R 327; but note decision in 0 'Neil1(1995)
81 A Crim R458.
14. Cook, Michael, 'Model Student, Perfect Prisoner', (2000) 52 Woroni,
the ANU Student Newspaper 1.
15. Sharpe, above, ref 4 at 795.
16. Cornford, Philip, 'New nark emerges from the dark to shed light on
crooked cops', Sydney Morning Herald, 9 October 2001, p.5.
Cook, Michael, 'Model Student' (2000) 52 Woroni 1.
Sharpe, above, ref 10 at 794.
Kidman, John, above, ref 10.
Masters, Chris, 'Directing Traffic', Four Comers, 9 October. For a
transcript, see ~www.abc.net.au/4corners/archives/2001bb
Tuesday90ctober2001 .htm>
Robertson, Geoffrey, QC, 'Entrapment Evidence: Manna from
Heaven. or Fruit of the Poisoned Tree?' (1994) Criminal Law Review
811.
129