A former ABC radio presenter allegedly attempted to sell drugs to an undercover police officer. He was caught with a $600,000 cache of narcotics, a Court has heard.
Ashley Norman Hall was the former executive producer of the national broadcaster’s flagship radio program AM. He is alleged to have used Sydney CBD hotel rooms to run a drug supply operation.
Hall was arrested in December 2022 as part of a New South Wales Police strike force aimed at dismantling drug supply rings. Operating across the city police arrested Hall and later raided two hotel rooms in the CBD.
Police revealed that during the raids they uncovered a stockpile of drugs with an estimated street value of $600,000. The seized goods included MDMA tablets, cocaine, 700g of methamphetamine and more than 1kg of cannabis.
The 52-year-old was hit with 23 charges. These included eight counts of supplying a commercial quantity of a prohibited drug. He was also charged with knowingly dealing with the proceeds of crime after police discovered more than $70,000 AUD in cash.
Undercover Policing and Covert Police Powers in New South Wales
The police powers to carry out undercover operations in NSW are contained in the Law Enforcement (Controlled Operations) Act 1997 (the Act). The legislation allows specific NSW law enforcement agencies to carry out controlled operations in situations where conventional measures are unlikely to work.
Section 3 of the Act defines a controlled operation as an operation conducted for the purposes of obtaining evidence of criminal or corrupt activity, or arresting a person involved in such activity, or frustrating this type of activity, or facilitating the achievement of any of these purposes.
Controlled operations are generally carried out by undercover operatives, i.e., police or officials from other law enforcement agencies acting under assumed identities. Sometimes, these operations can also involve civilian participants.
During the course of controlled operations, undercover operatives are able to engage in activities that would otherwise be unlawful. Section 16 of the Act provides that any activity that is authorised to be carried out as part of an operation “does not constitute an offence or corrupt conduct”.
Law enforcement agencies that are empowered to authorise and carry out controlled operations include the NSW Police Force, the Independent Commission Against Corruption, the NSW Crime Commission and the Law Enforcement Conduct Commission (LECC).
Certain federal agencies can also be afforded these powers. They include the Australian federal police (AFP), the Australian Crime Commission and the Commonwealth Department of Immigration and Border Protection.
Is this Entrapment?
In NSW, investigations into illegal drugs often involve the use of undercover officers who can encourage a person to commit an offence or participate in illegal activity. There is no substantive defence of entrapment in state laws. This means that if an undercover officer has encouraged an individual to supply them with drugs, in most circumstances, this cannot be used as a mitigating factor in sentencing. This is just one example of the unlawful conduct a law enforcement officer can participate in as part of a controlled operation.
In Australia, there is no “defence” of entrapment. It is recognised by Courts (see the High Court matter of Ridgeway v The Queen (1995) 184 CLR 19) that in some circumstances deception is the only technique available for law enforcement officers to detect crime.
A prime example of this is undercover officers adopting fake identities online to detect drug trafficking or child sex offences. The mere fact that a defendant has been tricked into committing an offence does not constitute a defence to a criminal charge.
There can be some protection against this type of behaviour by police officers in particular circumstances. While not operating as a defence, it may be the case that the evidence could otherwise be used to prove the offence is not admitted into evidence.
Use of Evidence Obtained
There can be some protection against this type of behaviour by police officers in particular circumstances. While not operating as a defence, it may be the case that the evidence could otherwise be used to prove the offence is not admitted into evidence.
Section 138 of the Evidence Act 1995 (NSW) holds:
(1) Evidence that was obtained
a) improperly or in contravention of an Australian law; or
b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
This means that if a police officer uses improper or unlawful means to obtain a piece of evidence, a Court may exclude that evidence and it will not form part of the case against the defendant.
Bear in mind that the Court must balance the importance of the evidence against the seriousness of the impropriety. If the evidence is significant and discloses a serious criminal offence, and meanwhile the impropriety by the police officer is relatively minor, the evidence is likely to be admitted.
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