Ridgeway V. R: Entrapment In Australia

Introduction

International entertainment industries have profited billions directly from motion pictures concerning entrapment. The basic premise is alike throughout each title, an alpha and occasionally rogue officer of the law accepts an undercover mission to detain a notorious criminal of the underworld, though enjoyable the legality and morality of the protagonist’s actions are rarely examined. Entrapment is the term used to describe cases of which police induce or facilitate a person to commit a crime he or her are unlikely to commit, then proceed to subsequently prosecute said person. The term entrapment is often applied to both proper and improper conduct, it is in the latter sense the term shall be used in this paper. The mortality

and legality of statute law governing entrapment in the commonwealth and Queensland shall be examined while Australian common law intends to be distinguished against other international jurisdictions.

Ridgeway v R
Prior to 1995, entrapment mentioned as a defence was uncommon.

A landmark case in Australia remains Ridgeway v R, a case considerably substantial as it caused a vast echo sufficient enough to cause legislation to be enacted. The facts in Ridgeway revolved around John Anthony Ridgeway, participating in controlled importation of 140.4 gram of Heroin into Australia. An informant remained unscathed by customs and delivered the drugs to Mr Ridgeway, leading to an arrest by the Australia Federal Police. Chief Justice Mason delivered a decision of Ridgeway not guilty, due to no evidence of the heroin being imported into Australia. The effect of the Ridgeway decision was that all evidence of the commission of an offence is liable to be excluded if that offence was the product of entrapment by law enforcement officers or agents. Presently in Commonwealth common law and statute systems it must be clarified that there is no defence for entrapment. Ridgeway caused an implementation of numerous statutory protections for police officers at Queensland and Commonwealth levels of government. Since Ridgeway, the Crimes Act 1994 has been amended to enact a scheme to authorize participation in otherwise unlawful activities for investigative purposes. Section 15G of the crimes act seeks ‘to provide for the authorisation, conduct and monitoring of controlled operations; to exempt from criminal liability and to indemnify from civil liability law enforcement officers.’ Consequent to this

section of law, a substantive criminal defence of entrapment is greatly unlikely.

Ridgeways Legislative Echo in Commonwealth and Queensland Legislation:
Entrapment does not provide a substantive defence in Queensland, both under the Criminal Code or at common law. In a number of cases the offensive actions have come directly from the inducement of the officer. Chapters 10 and 11 of the Police Powers and Responsibilities Act 2000 (Qld) govern controlled operations as well as controlled activities. Controlled refers to an action containing a purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence. The Police Powers and Responsibilities Act establishes a scheme for authorising law officers to engage in covert affairs and commit offences for the purpose of obtaining evidence.
The implementation of the Police Powers and Responsibilities Act in Queensland was enacted to remove a purpose for excluding evidence. Section 226 of the Police Powers and Responsibilities Act states:
It is declared that evidence gathered because of a controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this chapter.
Section 226 eradicates the prospect of a debacle similar to Ridgeway from reoccurring as criminal activity conducted by an officer conducting covert affairs generates admissible evidence. The Police Power and Responsibilities Act provide rights and boundaries for controlled operations subsequently causing a defence of entrapment of the kind to exclude criminal liability improbable in Queensland.

The ‘Ridgeway Discretion’
It has been thoroughly established entrapment is not a substantial defence in Queensland, though an evidential remedy exists, as demonstrated in Ridgeway . There is discretion, however, based on public policy grounds, to exclude evidence of an offence, or of an element of an offence, where that evidence has been procured by the illegal/improper conduct of a law enforcement agent officer. By way of manipulating this direction certain pieces of evidence can be excluded, as was the case in Bunning v Cross. This discretion, aptly labelled as the ‘Ridgeway discretion’, excludes evidence in its entirety provided inducement to a crime is committed unlawfully/improperly. The ‘Ridgeway discretion’ has provided the major groundwork for a catalogue of cases concerning entrapment.

For the ‘Ridgeway discretion’ to be a protection criminal liability must not be exempt for the officers. In Queensland there two types of activity exempted from criminal liability. First, there are activities falling within the specific terms of an authorisation for a controlled operation or activity, section 193 (4) of the Police Power and Responsibilities Act exempts officers from criminal liability in this situation. Secondly, an officer is exempt from liability for certain activities that are reasonably necessary to be taken advantage of to gather evidence or protect the safety of any person, section 193 (5) of the Police Power and Responsibilities Act provides this exemption. The purpose of a controlled activity or operation must be to obtain evidence of an offence and the activity must be reasonably necessary for this purpose. A purpose of a controlled activity or operation must be to investigate 1.serious indictable offences 2.misconduct offences 3.organised crimes . The Police Power and Responsibilities Act provides protection for officers of the law provided the strict guidelines outlined in the legislation are followed, failure to follow may lead to inadmissible evidence and a dismissal of a trial under the ‘Ridgeway discretion’.

Ridgeway was the principal Australian case to apply the ‘Ridgeway discretion’; this landmark case provided a legal reasoning for evidence to be excluded due to improper conduct. Ridgeway has been applied throughout Australia. The High Court of Australia has applied and affirmed the ‘Ridgeway discretion’ by means of multiple cases, the most recent case heard in 2008. Dowe V Commissioner of the New South Wales Crime Commission and Another applied the ‘Ridgeway discretion’ allowing evidence to be dismissed due to improper conduct by an officer under a ‘controlled activity’. Dowe provides a protection for accused peoples from illegitimate ‘entrapment’. Queensland case R v Swift affirmed by Dowe, asserts the existence of the ‘Ridgeway discretion’ in Queensland, providing protection in Queensland from illegitimate entrapment. The ‘Ridgeway discretion’ is not a substantive defence in Queensland, though provides protection in cases in which the legality of the controlled activity and operations is questionable.

Entrapment in and International Scene
Entrapment does not provide a substantive defence in Australia; nevertheless every country has a right to their own position in this matter.

Entrapment gain prominence in the Commonwealth system in England by means of a case in the House of Lords. Said case is R v Sang. A case heard in 1980, Sang firmly expressed the position that entrapment did not provide a power to exclude evidence which may well articulate a dismissal of a trial. Sang’s position remained and applied through English and Australian uppermost courts. As aforementioned Ridgeway distinguished Sang and formed jurisprudence in the Australian legal system. England’s breakthrough case in respect to entrapment was House of Lords case R v Loosley, heard in 2001. A dismissal of the case (grant of stay in English terms) is granted if the conduct of the officers was improper, the question of improper conduct is decided on whether the police did more than present the defendant with an unexceptional opportunity to commit a crime. Varying factors are outlined by Lord Hoffman to decide for or against a dismissal on grounds of entrapment; these vitiating factors have yet to be applied in a future case, however was distinguished by R v Priest in an Australian Capital Territory Supreme Court. It remains transparently evident that alike to Australia, England is ‘on the fence’ in regards to entrapment, though the Queensland state seems to be the front runner in regards to regulating entrapment accusations by means of the

Police Powers and Responsibilities Act.

Remaining inside the Commonwealth, entrapment laws in Canada shall be distinguished. Canada’s Supreme Court developed an authentic doctrine of entrapment, as opposed to the ‘Ridgeway discretion’ adopted in Queensland. Canada’s doctrine of entrapment was developed in three major decisions: Amato v R, R v Mack and R v Barnes. Aligned with the Queensland law a remedy for ‘entrapment’ is a dismissal of proceedings; however entrapment is fixed to merely two forms. ‘Random virtues testing’, in which an officer induces a person to commit a crime without reasonable suspicion, and a scenario of which police go beyond merely providing an opportunity to commit an offence. Amato v R did not give rise to entrapment as per Ritchie J ‘the mere fact that the crime was committed at the "solicitation" of anagent provocateur does not, standing alone, support a defence of entrapment’. However Amato is an essential case since its application in the Australian case of Ridgeway triggered the ‘Ridgeway discretion’ movement providing a degree of protection in Australia.

R v Mack provided a defence for entrapment in Australia, affirming Amato in the fact that mere solicitation does not form entrapment. The ratio decidendi in this case is an element of violence, as delivered per Dickson CJ:
Perhaps the most important and determinative factor in my opinion is the appellant's testimony that the informer acted in a threatening manner when they went for a walk in the woods, and the further testimony that he was told to get his act together after he did not provide the supply of drugs he was asked for. I believe this conduct was unacceptable.
Mack creates the second form of entrapment, and a scenario of which police go beyond merely providing an opportunity to commit an offence. The first form of entrapment, ‘random virtue testing’ was evident in an R v Barnes. The majority ruled in favour of entrapment, applying Mack’s principles concurring to the reasoning of ‘The police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity.’ Principles in Amato, Barnes and Mack echo throughout Canadian and Australia common and statute law to this present time.