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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.[1]
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 corrupt 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.
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 to commit crime can lead to prosecution.[3] 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 considerations.[4]
‘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 them’.[5]
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 person.’[6]
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 offences.[7]
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 a particular area of concern.[8] One 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 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’.[9]
Another form of surveillance employed by the Commission involved M5, a police officer who secretly recorded hundreds of hours of conversations with other officers.[10] 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’.[11] 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 ICCPR’s guarantee 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.[13]
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 prominent 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 ‘a pivotal 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 of his 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 corruption’.[15] 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, a journalist 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.’[16]
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 …’[17] 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 numerous occasions law enforcement officials engage in the very illegal activities they seek to stop, is the most worrying aspect of the informant system.
‘Police have [often] not simply relied upon information or surveillance to obtain evidence’, Sharpe says, ‘but have incited 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 part in drug deals, bribed and extorted, lied in court and then secretly informed on others for doing the same.[19] M5’s active, prominent involvement is reflected in his one-third share of all 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 discovered.[20]
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.[21] Such 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.
As the PIC Inquiry continues, it is clear that a number of police officers face prosecution for their numerous corrupt activities. Again captured on tape, Jasper observed (after pocketing $10,000 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.
[*] Michael Cook is an Arts/Law student at the Australian National University.© 2002 Michael Cook (text)© 2002 John Lynch (cartoon)
[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 Reality: Sociolegal and Republican Perspectives on Entrapment’, (2000) 4 International Journal of Evidence and Proof 80.
[4] For a rarely followed exception, see Ridgeway v The Queen (1995) 184 CLR 19. See also Sharpe, Sybil, ‘Covert Police Operations and the Discretionary Exclusion of Evidence’, (1994) Criminal Law Review 793-804.
[5] Bronitt, Simon, ‘Entrapment, 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, University of New South Wales Law School 1994, p.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 of Human 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 M5’, 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] SASC 4874; (1994) 75 A Crim R 327; but note decision in O’Neill [1995] QCA 331; (1995) 81 A Crim R 458
[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.
[17] Cook, Michael, ‘Model Student’ (2000) 52 Woroni 1.
[18] Sharpe, above, ref 10 at 794.
[19] Kidman, John, above, ref 10.
[20] Masters, Chris, ‘Directing Traffic’, Four Corners, 9 October. For a transcript, see <www.abc.net.au/4corners/archives/2001b_ Tuesday9October2001.htm>
[21] Robertson, Geoffrey, QC, ‘Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?’ (1994) Criminal Law Review 811.
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