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Entrapment in Australia

Entrapment in Australia occurs in circumstances where a police officer or law enforcement agent has improperly induced a person to commit an offence.

Often, this will involve illegal activity by the police officer. This means that they can and should be held criminally liable for their actions, unless legislation specifically states otherwise.

What is entrapment in Australia?

It is a central part of our criminal justice system that those who voluntarily commit an offence will be held liable to the full extent of the law. This is regardless of whether they have been induced to act by another person.

In some very limited cases, being induced to commit an offence can amount to a defence. However, entrapment does not provide a full substantive defence.

To treat entrapment as a full substantive defence is to acknowledge that the offender was lacking in free will as a direct result of the inducement. In the American case of Sherman v United States, Justice Frankfurter highlighted the need to draw a line between trapping an innocent person and trapping a criminal.

What do the leading Australian cases say about entrapment?

The Australian case of Ridgeway v The Queen (1995) 184 CLR 19, is one of the leading cases in relation to entrapment as a defence.

In that case, the offender was charged with a breach of section 233B(1)(c) of the Customs Act 1901 (Cth) for the importation of 140.4 grams of heroin. The charge was as a result of a ‘controlled’ operation between the Australian Federal Police (AFP) and Malaysian Federal Police (MFP).Entrapment in Australia

The offender had contacted an old friend, Lee, who he had met whilst serving a jail term in a South Australian prison also for drug related offences. Upon release, Lee was deported to Malaysia and subsequently became an informant for the MFP. Once the offender was released, he contacted Lee to arrange to purchase heroin to import into Australia. Lee and a Malaysian police officer, acting with the knowledge and co-operation of the AFP, were given visas by the Australian High Commission in Malaysia, and imported a quantity of heroin into Australia. The heroin was cleared through Customs as arranged by the AFP and Australian Customs Service and upon delivery of the heroin the offender was apprehended.

What did the High Court consider?

The High Court of Australia held in the Ridgeway case that there was no practical defence of entrapment. Although, the court did recognise that as a matter of public policy, courts must exercise discretion to exclude any evidence of an offence that was brought about by unlawful conduct of law enforcement officers. The purposes of this discretion is to discourage such unlawful conduct and to preserve the integrity of the administration of criminal justice.

According to the Chief Justice of the High Court, if no judicial discretion existed to prevent the advantage derived from the unlawful conduct, any disapproval conveyed by the courts would be ‘hollow and unavailing.’ The administration of justice would therefore be disgraced by the uncontrolled use of such illegal mechanisms.

It was further held that this discretion extends to circumstances where a criminal offence has been induced by improper conduct, not just unlawful conduct, by law enforcement. If either discretion is exercised, the offender may make an application for a ‘stay’ of the proceedings. Meaning the offender can use entrapment as a way to halt the criminal proceedings.

The offender in the Ridgway case argued that the proceedings should be stayed on the grounds that the proceedings were an abuse of process. The court held that these grounds were inappropriate for this case. However, the court also held that, if there was good reason for excluding evidence of the forced or involuntary elements of the offence, this would necessarily mean that the proceedings will fail, and that any continuance would be oppressive and vexatious.

What was the outcome?

For Ridgeway, the High Court ultimately held that the evidence which proved that the heroin supplied to the appellant had been illegally imported and should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ actions of the AFP, especially that:

  • their actions constituted an offence in that the AFP allowed the drugs to be imported
  • the police officers involved had not been prosecuted though they, too, had committed an offence
  • there was no evidence of any official disapproval or retribution, and
  • the objective of the AFP’s criminal conduct would have been achieved if the evidence were admitted.

The court weighed these factors against the public interest in Ridgeway’s conviction. They determined that the public interest could be satisfied in this case by the availability of a variety of offences that could be applied against the offender which did not involve illegally importing heroin.

What does this mean for entrapment in Australia?

The result of the Ridgeway case is that entrapment does not provide a full defence. However, it operates to the extent that the integrity of the administration of justice will be preserved. The courts will not condone illegal and improper acts of law enforcement agents and will use their discretion to not admit evidence if the case requires.

It must be noted, though, that the purpose of entrapment as a defence is not to eliminate or entirely excuse the criminal liability of the accused. Criminal justice requires that the person be held accountable for their actions unless there truly was no other option available to them.

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