Entrapment law in Australia


Entrapment laws in Australia: Can it be raised as a defence?

Any person who has ever read a British tabloid, or consumed a crime related television program, may have some awareness of the concept of entrapment. Entrapment is essentially when a police officer induces someone to commit a criminal offence which they may not have contemplated undertaking but for the actions of the police. However, entrapment can also signify that a police officer presented an opportunity for a person to commit an offence which they would have done during their usual cause of dealings, even without police intervention. Thanks to American television programs, many people may be familiar with the fact that entrapment may be used as a defence in the United States, but what about Australia?  

Entrapment law in Australia

Unlike our common law counterparts in the US, there is no defence of entrapment available under Australian law. However, the defence is available in the States, and American case law has stated that the reason for the existence of the law of entrapment is that a distinction must be made between trapping the unwary innocent, as opposed to the unwary criminal. So the question that needs to be asked is: why isn’t there a similar distinction made in Australian law?

Again, although, there is no defence of entrapment, Mason CJ in Ridgeway v The Queen did note, that if the circumstances surrounding the committing of an offence by an individual was procured by the illegal conduct of the police or any other person, it is still ultimately up to the courts to decide on a person’s innocence or guilt resulting from the trapping.

The facts in Ridgeway revolved around the arrest of John Anthony Ridgeway, who was participating in a ‘controlled importation’ of 140.4 grams of heroin into Australia which was the result of a tipoff from an informer who notified the Australian Federal Police (AFP) of Ridgeway’s intentions. With the assistance of the AFP and the Australian Customs Service, the informer was allowed to pass through customs uninhibited, and delivered the heroin to Ridgeway, which then resulted in his arrest by the AFP.

The High Court Justices in Ridgeway expressed some concerns with the actions of the AFP with McHugh J stating for example:

“In a society predicated on respect for the dignity and rights of individuals, noble ends cannot justify ignoble means ... No government in a democratic state has an unlimited right to test the virtue of its citizens. Testing the integrity of citizens can quickly be-come a tool of political oppression an instrument for creating a police state mentality.”

What was most interesting about the Ridgeway case was the general acknowledgement that in facilitating with the importation of heroin into Australia from Malaysia, the AFP had also committed a serious offence against the Customs Act.

Ultimately, the High Court in Ridgeway did state that there was no substantive defence of entrapment as long as a person voluntarily commits the criminal act, and had the necessary intent, irrespective of any inducement by law enforcement officials.

As a result of the High Court action in Ridgeway, the Government amended the Commonwealth Crimes Act, allowing for law enforcement officers to engage in a “controlled operation” to obtain evidence against a person who is involved in a serious State or Commonwealth offence.

Matters involving entrapment and sentencing

Although, there is no substantive defence of entrapment available in Australia, numerous judgments in case law has suggested that in circumstances where a person would normally not have committed an offence, but for, the activities of an agent provocateur, there may be a significant reduction in the sentence imposed by the courts.

It should be noted that the courts will generally take a commonsense approach in cases involving entrapment, and will make an assessment of the surrounding circumstances of a case, and if there was a reasonable possibility that the person would not of committed the offence, but for, the behaviour of an agent provocateur, a reduction in the overall sentence might suffice.