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Is Entrapment a Defence?

Entrapment occurs when police or law enforcement agents improperly induce a person to commit actions that amount to a criminal offence. Entrapment often involves illegal activity by police. This means that police can and should be held criminally liable for their actions unless legislation specifically states otherwise.

What is entrapment in Australia?

It is a fundamental principle of the criminal justice system that persons who voluntarily commit criminal offences are held accountable for their actions. This is generally the case regardless of whether they were induced to act by another person. In some very limited cases though, having been induced to commit offences can amount to a defence. However, entrapment does not provide a full substantive defence to criminal charges.

This is because treating entrapment as a full substantive defence would be to treat the offender as if they were lacking in free will as a direct result of the inducement. 

What does Australian case law say about entrapment?

The 1995 Australian decision of Ridgeway v The Queen, is one of the leading cases on entrapment as a defence.

In that case, the offender was charged with a contravention of section 233B(1)(c) of the Customs Act 1901 (Cth) for importing 140.4 grams of heroin. The charge resulted from a ‘controlled operation’ between the Australian Federal Police and Malaysian Federal Police.

The offender had contacted Lee, an old friend, who he had met while serving a prison sentence in a South Australian prison for drug offences. Upon his release, Lee was deported to Malaysia and subsequently became an informant for the Malaysian Federal Police.

Once the offender was released from prison, he contacted Lee to arrange to buy heroin to import into Australia. Lee and a Malaysian police officer, acting with the knowledge and co-operation of the Australian Federal Police, were given visas by the Australian High Commission in Malaysia, and imported heroin into Australia. The heroin was cleared through customs as the AFP and the Australian Customs Service had arranged and upon its delivery the offender was arrested.

What did the High Court consider?

When deciding the matter of Ridgeway, the High Court of Australia held that there was no practical defence of entrapment. However, the court did recognise that as a matter of public policy, courts need to exercise their discretion to exclude any evidence of an offence that was brought about by the unlawful conduct of law enforcement officers. This discretion exists to discourage unlawful conduct by police and to preserve the integrity of the administration of justice.

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

The court further held that this discretion extends to situations where a criminal offence has been induced through improper conduct, not just unlawful conduct, by police or law enforcement agencies. If either discretion is exercised, the offender may apply to ‘stay’ the proceedings, which means the offender can use the doctrine of entrapment as a way to halt the proceedings.

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

What was the outcome?

In the Ridgeway decision, the High Court ultimately held that the evidence which established that the heroin had been illegally imported should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ nature of the AFP’s actions, especially that:

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

The court weighed these factors up against the public interest of a finding of guilt against Ridgeway. It determined that the public interest could be satisfied by the availability of a variety of offences that the offender could be prosecuted for that did not involve illegally importing the drug.

What does this mean for entrapment in Australia?

The Ridgeway case established that entrapment does not provide a full defence to criminal charges. However, it can be relied on to the extent that the integrity of the administration of justice will be preserved. The court will not condone illegal and improper acts by police or other law enforcement agents and will use its discretion to refuse to admit evidence where appropriate.  

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

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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