Is Entrapment a Defence in Australia? Exploring the Case Law and Legislation

Court Appearances
4 minute read

Many fans of American television shows or films focusing on crime would be somewhat familiar with the concept of entrapment. For those who may not know what entrapment is, it simply refers to actions by a police officer who induces a person to commit a crime, that may not have been contemplated but for the actions of the police. Entrapment can also mean that a police officer provided an opportunity for a person to commit an offence, in which they would have committed during their usual cause of dealings irrespective of the involvement of the police. Thanks to television and film, many of us will also probably be aware, that a police officer who induces a person to commit a crime that was not within their contemplation, is a defence in the United States, but what about Australia? Can entrapment also be used as a defence here?

The action of entrapment has generated quite a bit of commentary and the resulting case law and legislation makes for some rather interesting reading.

The 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 judges 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 become 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, although Ridgeway's conviction was quashed and there was a permanent stay of proceedings, the High Court in Ridgeway still stated, 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 an agent provocateur.

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.

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.