Introduction

In New South Wales (NSW), individuals facing a criminal charge might wonder about the role of entrapment, particularly when police conduct appears to have induced the alleged offence. Entrapment relates to situations where law enforcement officers improperly encourage a person to commit a criminal offence. It is important to understand from the outset that, unlike in the United States, entrapment is not recognised as a legal defence in Australian law.

However, the concept of entrapment is still relevant in the Australian criminal justice system. Australian courts acknowledge that improper or unlawful conduct by police during investigations can impact the admissibility of evidence. This means that while entrapment is not a substantive defence to a criminal charge, the court has discretion to exclude evidence if it has been improperly obtained, aiming to preserve the integrity of the administration of justice and to discourage unlawful police activity.

Understanding Entrapment in Australian Criminal Law

Entrapment: Not a Legal Defence in Australia

In Australia, it’s important to understand that entrapment is not recognised as a formal legal defence in criminal law. The fundamental principle in the Australian criminal justice system is that individuals who voluntarily commit a criminal offence are held accountable for their actions. This principle generally applies regardless of whether someone was induced by another person to commit the offence.

Therefore, even if a person is encouraged or incentivised into illegal activity by undercover police officers, this is not automatically considered contrary to the law, and it does not provide a legal defence. Merely deceiving someone into believing a false identity is also not sufficient to make a police operation illegal. The focus in Australian law is on whether a person voluntarily committed a criminal offence with the necessary intent, regardless of police inducement. It is important to not that the complainant has the burden of proof, meaning the accused is assumed to be innocent and must be proven guilty of having a criminal intent. The absence of entrapment as a defence does not negate this requirement.

Improper Police Inducement and its Implications

Entrapment in Australia is understood in the context of improper inducement by police or law enforcement agents that leads a person to commit a criminal offence. This often involves situations where police conduct may be considered unlawful or improper in procuring the commission of an offence. While entrapment is not a defence, Australian courts have a discretion to exclude evidence if it has been obtained through unlawful or improper conduct by law enforcement officers.

This discretion is exercised as a matter of public policy to discourage unlawful conduct by police and to preserve the integrity of the administration of justice. If a court finds that police have acted improperly to induce someone to commit an offence, it may choose to exclude the evidence obtained as a result of that conduct. In some cases, if the impropriety is significant, a court might even decide to induce a “stay of proceedings”, effectively halting the prosecution. This is because allowing the use of illegally or improperly obtained evidence could be seen as oppressive and vexatious, undermining the fairness of criminal proceedings. It should be noted that this capacity is discretionary, and depends on the court and presiding judicial officer. 

Improper or Illegal Police Conduct and Evidence Exclusion

Section 138 of the Evidence Act and Improperly Obtained Evidence

Section 138 of the Evidence Act 1995 (NSW) is crucial when discussing improperly obtained evidence in the context of potential entrapment. This section of the Act specifies that evidence obtained improperly or illegally, or as a consequence of impropriety or illegality, may not be admissible in court. Specifically, evidence gathered from online undercover operations might be excluded under this section if it is deemed to have been improperly or illegally obtained.

The Act dictates that such evidence must not be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that manner. This creates a balancing test for the courts to apply. Therefore, even if evidence is relevant to proving a criminal offence, it could be excluded if the methods used to obtain it were unlawful or improper.

Factors Courts Consider in Excluding Evidence

When deciding whether to exclude evidence under Section 138 of the Evidence Act 1995 (NSW), courts must consider several factors. These factors help the court to balance the public interest in admitting relevant evidence against the need to discourage unlawful or improper conduct by law enforcement. The key considerations include:

• The probative value of the evidence: This refers to how relevant and important the evidence is to proving a fact in the case. Evidence that is highly probative and crucial to the prosecution’s case may be less likely to be excluded, even if it was improperly obtained.
• The importance of the evidence in the proceedings: Courts consider how vital the evidence is to the overall case. Evidence that is central to proving a serious criminal offence may be given more weight.
• The nature of the offence: The seriousness of the alleged criminal offence is considered. Evidence related to serious offences might be treated differently than evidence for minor offences.
• The gravity of the impropriety or contravention: Courts assess how serious the police misconduct was in obtaining the evidence. More serious or deliberate impropriety is more likely to lead to exclusion of evidence.
• Whether the impropriety was deliberate or reckless: If the police acted deliberately in an improper or illegal way, it weighs more heavily against admitting the evidence compared to unintentional or inadvertent impropriety.
• Consistency with human rights: The court considers whether the impropriety or contravention infringed upon any rights recognised by the International Covenant on Civil and Political Rights.
• Other proceedings: Whether any other proceedings are likely to address the police impropriety is also a relevant factor.
• Difficulty of obtaining evidence lawfully: The court may consider whether it would have been difficult to obtain the evidence through proper and legal means.

In essence, the court must weigh the importance of the evidence in uncovering the truth and prosecuting potential criminal activity against the seriousness of the improper conduct used to obtain that evidence. This balancing act ensures that fairness remains at the core of the legal process.

Australian Case Law: Ridgeway v The Queen

Key Facts and Background of Ridgeway v The Queen

The case of Ridgeway v The Queen, decided in 1995, is a significant Australian case for understanding entrapment. The case revolved around the arrest of John Anthony Ridgeway, who was involved in importing heroin into Australia. This importation was part of a ‘controlled operation’ conducted jointly by the Australian Federal Police (AFP) and the Malaysian Federal Police.

The facts of the case are as follows:

• Ridgeway contacted an old friend named Lee, whom he knew from prison.
• Lee, after being deported to Malaysia, became an informant for the Malaysian Federal Police.
• Ridgeway contacted Lee after his release from prison to arrange the purchase of heroin for importation into Australia.
• Lee and a Malaysian police officer, acting with the cooperation of the AFP, were granted visas by the Australian High Commission and imported 140.4 grams of heroin into Australia.
• The AFP and the Australian Customs Service facilitated the heroin’s clearance through customs.
• Upon delivery of the heroin, Ridgeway was arrested.
• Ridgeway was subsequently charged with importing 140.4 grams of heroin, contravening section 233B(1)(c) of the Customs Act 1901 (Cth).

High Court’s Decision and Discretionary Powers

In Ridgeway v The Queen, the High Court of Australia determined that entrapment is not a legal defence in Australia. However, the High Court recognised that courts have a discretion to exclude evidence if it was obtained through unlawful or improper conduct by law enforcement officers. This discretion is a matter of public policy, aimed at discouraging unlawful conduct by police and preserving the integrity of the administration of criminal justice.

The High Court emphasised the importance of maintaining the integrity of the criminal justice system. It was stated that if courts did not have the discretion to prevent police from benefiting from unlawful conduct, any disapproval of such actions would be meaningless. The court clarified that this discretion extends to situations where a criminal offence was induced by improper, not just unlawful, police conduct. If this discretion is used to exclude evidence, proceedings may be stayed, effectively halting the criminal proceedings.

In the Ridgeway case, the High Court ultimately decided to reject the evidence that established the illegal importation of heroin. The Court highlighted several critical factors in their decision:

• The AFP’s actions in allowing the heroin importation constituted a serious offence.
• The police officers involved in the illegal activity had not faced prosecution.
• There was no indication of official disapproval or retribution for the illegal conduct.
• The AFP’s objective would be achieved if the illegally obtained evidence was admitted.

The High Court weighed these factors against the public interest in securing a conviction against Ridgeway. Ultimately, the Court concluded that the public interest could be met through prosecuting Ridgeway for other offences not involving the illegal importation of heroin. The Ridgeway case clarified that while entrapment is not a substantive defence, Australian courts will not condone illegal or improper conduct by law enforcement and will exercise discretion to exclude evidence in appropriate circumstances to preserve the integrity of the justice system.

Real-Life Example: Online Undercover Operations and the Case of Thomas Carrick

AFP Undercover Operation and Allegations of “Grooming”

Online undercover operations have recently faced scrutiny, particularly after it was revealed that the Australian Federal Police (AFP) had encouraged a 13-year-old autistic boy from Victoria to engage in terrorism-related offences. This case involved Thomas Carrick, who came to the AFP’s attention after showing terrorism-related material at school. Despite state-level therapeutic interventions showing promise, the AFP initiated an online undercover operation targeting Carrick in July 2021.

In this operation, an undercover officer used two fabricated online personas to engage Carrick on platforms like Instagram and Telegram. These aliases, OCO1 and OCO2, presented themselves as sympathetic to or involved with ISIS. OCO1 posed as a 24-year-old Muslim man from NSW interested in the Islamic State, while OCO2 was depicted as an active ISIS member overseas, encouraging Carrick to explore extreme ideas. Magistrate Lesley Fleming, presiding over the Children’s Court, heavily criticised the AFP operation, describing the interactions as akin to “grooming” for terrorist activities.

Court Dismissal and Implications for Future Operations

On 24 October 2023, Children’s Court Magistrate Lesley Fleming dismissed the charges against Carrick and ordered a permanent stay of proceedings. Magistrate Fleming determined that the AFP’s undercover operation had crossed ethical boundaries. The Magistrate’s description of the police interactions with Carrick as “grooming” for terrorist activities was particularly concerning, given Carrick’s young age and cognitive impairments, including an IQ of 71 and autism spectrum disorder.

This case raises serious questions about police behaviour during online undercover operations and the risk of incentivising illegal activity rather than merely identifying it. The dismissal of charges against Carrick highlights the court’s willingness to scrutinise and, in certain circumstances, reject evidence obtained through online operations deemed improper or unlawful. This has significant implications for future police operations, suggesting a need for greater caution and ethical considerations, especially when dealing with vulnerable individuals.

Conclusion

In summary, entrapment is not recognised as a substantive defence to a criminal charge under Australian law, including in NSW. However, the landmark case of Ridgeway v The Queen clarified that Australian courts possess the discretion to exclude evidence if it has been obtained through improper or unlawful conduct by law enforcement officers. This discretion, underpinned by Section 138 of the Evidence Act 1995 (NSW), serves to preserve the integrity of the criminal justice system and to discourage any illegal activity or improper conduct by police.

If you believe you may have been induced to commit a criminal offence due to improper police actions, it is crucial to seek guidance from experienced criminal defence lawyers. Contact Daoud Legal today to explore your legal options and understand how our unparalleled expertise in criminal law can assist you in navigating these complex issues and protect your rights within the Australian legal system.

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