Entrapment
What is it? The use of deception to produce the performance of a criminal act (so that it can be observed by police/other law enforcement officers).
What is the remedy for improper entrapment? In Australia there is no substantive defence of entrapment, instead an evidential remedy exists, i.e. excluding evidence under the public policy discretion (Ridgeway v R (1995) 184 CLR 19). The United States of America provides for a substantive defence which requires consideration as to whether the accused had a predisposition toward such offending before the defence becomes available. The remedies in Canada and the United Kingdom are procedural - that is, stays of proceedings, on the basis that the trial that follows is an abuse of process.
Entrapment may be improper when:
Subsequent to the decision in Ridgeway v R (1995) 184 CLR 19, the Queensland Government introduced legislation to combat the exclusion of evidence obtained following certain police behaviour that would otherwise be considered illegal if it is in the course of an authorised controlled operation or controlled activity. See Chapters 10 and 11 of the Police Powers and Responsibilities Act 2000. A controlled activity generally involves a single meeting while an operation is ongoing.
What is the remedy for improper entrapment? In Australia there is no substantive defence of entrapment, instead an evidential remedy exists, i.e. excluding evidence under the public policy discretion (Ridgeway v R (1995) 184 CLR 19). The United States of America provides for a substantive defence which requires consideration as to whether the accused had a predisposition toward such offending before the defence becomes available. The remedies in Canada and the United Kingdom are procedural - that is, stays of proceedings, on the basis that the trial that follows is an abuse of process.
Entrapment may be improper when:
- an inappropriate target is faciltated to commit a crime (R v Mack [1988] 2 SCR 903). Someone may be an inappropriate target where police have no reasonable suspicion of criminal activity. Such reasonable suspicion may be based on information about the person targeted or about criminal activity in a certain location.
- someone is provided with exceptional inducements to entice them to commit a crime (police are usually a party to the offence). In those situations there is a presumption in favour of admission UNLESS the police misconduct 'is grave and either so calculated or so entrenched that it is clear that considerations of public policy...require exclusion' (Ridgeway v R (1995) 184 CLR 19.)
- police commit the primary offence (such as was found in Ridgeway v R (1995) 184 CLR 19). Here the presumption is in favour of exclusion UNLESS the conduct is disowned by superiors and proceedings are instituted against the responsible officer.
Subsequent to the decision in Ridgeway v R (1995) 184 CLR 19, the Queensland Government introduced legislation to combat the exclusion of evidence obtained following certain police behaviour that would otherwise be considered illegal if it is in the course of an authorised controlled operation or controlled activity. See Chapters 10 and 11 of the Police Powers and Responsibilities Act 2000. A controlled activity generally involves a single meeting while an operation is ongoing.
Controlled ActivityTo be authorised an application for a controlled activity must be reasonably necessary to obtain evidence about a controlled activity offence (a 7 year offence/indictable offence in Sch 2/simple offence in Sch 5 - these include offences under the Computer Games and Images Act, offences such as procuring children using the internet, certain prostitution offence, some weapons offences, stealing etc) and it must be authorised by a Senior Police Officer after having regard to the nature/extent of the offence.
Once authorised a relevant person is not criminally liable for conduct under the authority, as long as it is in accordance with police policy and procedures. The officer's conduct becomes lawful and evidence obtained by an authorised person will not be inadmissible only because it was unlawfully obtained. |
Controlled OperationTo be authorised an application for a controlled operation must be made by a law enforcement officer to the CEO of the relevant agency (i.e. the police or the Crime and Misconduct Commission) in relation to a relevant offence (a 7 year offence/indictable offence in Sch 2).
The CEO will only authorise the operation on the recommendation of a Committee (unless, for example, the matter is urgent). The Committee comprises the police Commissioner or their nominee, another person appointed by the Commissioner, and is chaired by a retired Supreme/District Court Judge. The Commttee may only recommend authorisation if, having regard to the nature and seriousness of the offence under investigation, it is satisfied that it is appropriate to engage in that conduct to collect evidence. Further, the CEO must not grant the authority unless satisfied on reasonable grounds that the unlawful conduct will be limited to the maximum consistent with an effective operation and that the conduct of the operation will minimise the risk that illicit goods will be under the control of civilians and that the operation will not make it likely that someone will be induced to commit an offence they would not otherwise commit and the conduct cannot seriously endanger health or safety or cause death or serious injuury or damage to property or involve a sexual offence. Once authorised a participant in the operation is not criminally responsible for the criminal conduct that they pursue in the course of or for the purpsoes of the operation, as long as, inter alia, it is in accordance with the authority and does not involve the participant intentionally inducing a person to commit an offence that they would not otherwise have committed and it is not likely to cause death, serious injury or involve a sexual offence. Further, in relation to admission of evidence, any illegality is to be disregarded if the person was acting in the course of the operation. |
The impact of the Queensland legislation on the law of entrapment
It will be less likely that situations such as Ridgeway will arise, as officers are not criminally responsible for otherwise illegal conduct if they act under a controlled activity or operation authorisation, as such the entrapment will not be improper and the public policy discretion will not fall to be exercised. On the other hand, if officers act outside the scope of an authority (and it is not a permitted expansion) it will more likely be found that any inducement they provide is exceptional and so the evidence will be more likely to be excluded under the public policy discretion. For further discussion of the interaction between the Queensland legislation and the common law of Entrapment see Eric Colvin, 'Controlled Operations, Controlled Activities and Entrapment' (2002) 14 Bond Law Review 227.
It will be less likely that situations such as Ridgeway will arise, as officers are not criminally responsible for otherwise illegal conduct if they act under a controlled activity or operation authorisation, as such the entrapment will not be improper and the public policy discretion will not fall to be exercised. On the other hand, if officers act outside the scope of an authority (and it is not a permitted expansion) it will more likely be found that any inducement they provide is exceptional and so the evidence will be more likely to be excluded under the public policy discretion. For further discussion of the interaction between the Queensland legislation and the common law of Entrapment see Eric Colvin, 'Controlled Operations, Controlled Activities and Entrapment' (2002) 14 Bond Law Review 227.