Friday, 5 September 2008

Ruling puts drug stings in jeopardy

IN ANOTHER embarrassing blow for the NSW Crime Commission that may have wider implications for undercover drug stings, the High Court ruled yesterday that invalid authorities were used for an unprecedented commission operation that sold cocaine imported via corrupt Sydney Airport baggage handlers.

Two pending cases - a trial and an appeal - may be immediately affected by the unanimous finding by six judges that the sale of six kilograms of the drug during operations authorised by the commissioner, Phillip Bradley, would be likely to seriously endanger the health or safety of some users.

Nearly four kilograms of the drug were allegedly sold to two men whose successful challenge to the validity of authorities for controlled operations by the commission - issued under the NSW Law Enforcement (Controlled Operations) Act 1997 [LECO Act] - has overturned a majority ruling by the NSW Court of Criminal Appeal.

Lawyers were last night considering the ramifications of the judgment, which could affect other undercover drug operations because of the danger posed to the health of users by illicit drugs.

The ruling also provided potential for a class action by anyone whose health was endangered from using cocaine sold during the crime commissions's Operation Mocha, lawyers said.

Mr Bradley was found to have no statutory power to grant authorities allowing drug stings using the majority of a 10-kilogram shipment from South America in 2004 - a large amount of which was never recovered. As a result, the evidence gathered from the time of the authorities may now be in doubt.

That may lead to claims of inadmissible evidence against the two men - one of whom has been jailed - in relation to alleged cocaine sale.

Two sales of cocaine totalling 2.75 kilograms and one sale of one kilogram were made under the authorities in early 2005.

"There is a considerable public interest in the observance of due process by law enforcement authorities by putting beyond doubt important questions of construction of the LECO Act," the judges found, noting that the Australian Federal Police had no involvement.

The High Court ruling is another blow for the NSW Crime Commissioner, following the arrest of his assistant commissioner, Mark Standen, in June. Standen is facing unrelated drug conspiracy charges.

Standen oversaw Operation Mocha, which involved the sale of cocaine by an informant codenamed Tom.

Although it was a controlled operation, the 3.75 kilograms in total allegedly sold by Tom to the two men involved up to 100,000 dosage units of cocaine.

The three sales had risked seriously endangering the health of at least some of the users, the High Court ruled.

That risk had rendered invalid the authorities issued by Mr Bradley under the LECO Act because the risk was prohibited by another section of the same act, the judges found.


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