New South Wales Consolidated Acts

LAW ENFORCEMENT (CONTROLLED OPERATIONS) ACT 1997 - SECT 14

14 Retrospective authority

(1) If a participant in an authorised operation engages in unlawful conduct (other than unlawful conduct that is a controlled activity) in the course of the operation, the principal law enforcement officer for the operation may, within 24 hours after the participant engages in that conduct, apply to the chief executive officer for retrospective authority for the conduct.

(2) An application under this section may be made in such manner as the chief executive officer may permit.

(3) The chief executive officer may require the principal law enforcement officer to furnish such information concerning the relevant conduct as is necessary for the chief executive officer’s proper consideration of the application.

(4) After considering an application under subsection (1), and any additional information furnished under subsection (3), the chief executive officer:

(a) may grant retrospective authority in accordance with the application, or

(b) may refuse the application.

(5) Retrospective authority may not be granted unless the chief executive officer is satisfied:

(a) that the following circumstances existed when the relevant conduct occurred:

(i) the participant who engaged in the conduct believed on reasonable grounds:

(A) that there was a substantial risk to the success of the authorised operation, or

(B) that there was a substantial risk to the health or safety of a participant in the operation, or any other person, as a direct result of the conduct of the authorised operation, or

(C) that criminal activity or corrupt conduct other than the criminal activity or corrupt conduct in respect of which the authorised operation is being conducted had occurred, or was likely to occur, and that there was a substantial risk that evidence relating to that criminal activity or corrupt conduct would be lost,

(ii) the participant could not avoid that risk otherwise than by engaging in the relevant conduct, and

(b) that, at all times prior to those circumstances arising, the participant had been acting in good faith and in accordance with the relevant code of conduct, and

(c) that the participant had not foreseen, and could not reasonably be expected to have foreseen, that those circumstances would arise, and

(d) that, had it been possible to foresee that those circumstances would arise, authority for the relevant conduct would have been sought, and

(e) it was not reasonably possible in those circumstances for the participant to seek a variation of the authority for the operation to authorise the relevant conduct.

(6) Subsection (5) does not allow retrospective authority to be granted with respect to conduct giving rise to any of the following:

(a) the offence of murder,

(b) any other offence for which the common law defence of duress would not be available.