Is Entrapment Legal in Australia? - Criminal Defence Lawyers Australia

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Online networks have exploded in the last 20 years in Australia. With this increased interconnection between people, there have been innovations in the way law enforcement identify crime and arrest suspects.

The use of online aliases is an increasingly common tactic utilised by police, particularly in investigations for terrorism, drug-related and child sexual abuse offences. You really never can be sure who you are talking to online.

The following outlines the growth of online undercover operations, provides a questionable recent example of their use and concludes by outlining the legal limits of police pretending to be somebody else on the internet. This also then raises issues of entrapment and unfairness in Australia.

For more on the limitations of police powers in Australia, get in touch with our criminal solicitors for a confidential consultation.

Table Of Contents

Entrapment Meaning: What is Entrapment in Law?
Legal Elements of Entrapment: How Is Entrapment Proven in Court?
Types of Entrapment – Assumed Identity and Controlled Operations
Real Life Examples of Entrapment
Frequently Asked Questions
Is Entrapment a defence in Australia?
What is Entrapment in Australia?
What is the Leading Case on Entrapment in Australia?

Entrapment Meaning: What is Entrapment in Law?

Entrapment is a defence used in the United States of America and commonly applies when prior to committing a crime the defendant has no intention of committing it yet commits it due to the police officer’s deception and inducement that results in the defendant forming the criminal intention to commit the crime.

Unlike the United States, there is no legal defence of ‘entrapment’ in Australia. This means that if online undercover officers encourage or incentive illegal activity, that is not in itself contrary to the law. Moreover, merely tricking somebody into believing a fictitious identity is not sufficient for a police operation to be deemed illegal (see Tofilau v The Queen).

In short, there is no strict rule excluding evidence gathered as a result of online undercover operations unless there is clear evidence that the undercover officer acted illegal or inappropriately, and the court deems it necessary to exclude the evidence or stay the proceedings.

What Does Australian Case Law Say About Entrapment?

In Australia, entrapment may apply where there has been unlawful or improper conduct on the part of the police which has procured the commission of an offence and/or evidence of it. Courts in Australia have the power and discretion to exclude relevant and otherwise admissible evidence or even stay proceedings to prevent this type of abuse of process, including unlawfully procured evidence on public policy grounds. This power is an incidental judicial power vested in the courts in criminal matters to preserve the integrity of their processes. This is on the basis that continuing the proceedings would be oppressive and vexatious, after a finding that the evidence should be excluded following discretionary exclusion of illegally procured evidence on public policy grounds (Ridgeway v The Queen [1995] HCA 66).

Legal Elements of Entrapment: How Is Entrapment Proven in Court?

In summary, the courts in Australia may exclude the evidence or stay proceedings permanently if in all the circumstances of the case, as a result of police procurement involving improper or illegal conduct causing another person to commit a crime, the public interest to exclude the evidence outweighs the legitimate public interest in the conviction and punishment of the offender for the crime he or she is guilty of. If these elements are proven in court, then the court has the power to either or both exclude the incriminating evidence and permanently stay the court proceedings effectively putting a stop to the prosecution of the accused person.

Types of Entrapment – Assumed Identity and Controlled Operations

The typical types of entrapment are engaged in by police officer’s is through the use of assumed identities and controlled operations by undercover police officers.

Undercover operations began to occur more often in Australia following a 2003 summit on terrorism and multijurisdictional crime. This meeting of leaders from policing, national security and intelligence bodies concluded that there was a need for law enforcement to be able to utilise assumed identities as part of investigations resulting in fresh legislation in each State and Territory soon after.

Under these laws, before going undercover online, an investigating officer must seek authorisation for an assumed identity from a relevant senior official. For NSW police members, authorisation is given by the NSW Commissioner of Police. For Federal police operations, authorisation is by the Federal Police Commissioner. Once authorised, an officer may be provided with any legitimate identity documents required to go undercover, including false birth certificates, driver’s licenses and other official documents. In some operations, undercover officers will utilise multiple fictitious identities to gain a suspect’s trust.

Once authorised as an undercover operative, the investigator begins communicating with suspects online as part of an investigation, gaining their trust and gathering evidence which could uncover criminal activity or provide a case for a criminal charge. Online operations occur both on the ‘surface web’ – that is the standard indexed set of websites we are all familiar with – as well as the ‘dark web’ which constitute the more difficult to access networks requiring specialist tools to access, which are often networks for illegal activity.

Many operations conducted online require undercover officers to do activities which would otherwise constitute a criminal offence. This could involve actions such as inciting terrorist activity or accessing child exploitation material. A police operation which may involve conduct that would result in criminal or civil liability is known as a ‘controlled operation’ with controlled operations requiring their own separate authorisation process from a senior official.

Both the use of online aliases and controlled operations are subject to strict reporting and oversight mechanisms to ensure, at least in theory, police do not overstep their powers as part of undercover operations.

Real Life Examples of Entrapment

Recently, online undercover operations have come under scrutiny after it was revealed Australian Federal Police (AFP) had encouraged an autistic 13-year-old-boy from Victoria to engage in terrorism related offences, receiving heavy criticism from a Children’s Court Magistrate who promptly threw out the case.

The case involved a boy named Thomas Carrrick who came to the attention of the AFP after showing terrorism-related material to another student at school. Victorian Police were also alerted to Carrick’s behaviour and had engaged both a therapist and a local Imam to assist in de-radicalising the youth.

Despite knowing state-level therapeutic interventions were showing promise, the AFP launched an online undercover operation targeting Carrick in July 2021. This operation involved an undercover officer assuming two fabricated online personas to engage Carrick in conversations on platforms like Instagram and Telegram. The aliases, known as OCO1 and OCO2, presented themselves as individuals sympathetic to or actively involved with ISIS.

OCO1 was portrayed as a 24-year-old Muslim man from New South Wales who was interested in the Islamic State but not directly involved in violent activities. OCO2, on the other hand, was depicted as an active member of ISIS based overseas, who encouraged Carrick to explore more extreme ideas. The conversations initiated by these personas began to shift towards more dangerous and radical topics over time, with OCO2 encouraging Carrick to consider violent acts, such as becoming a sniper or suicide bomber. Carrick, however, often attempted to steer the conversation back to more benign topics, such as food, girls, school, and aviation—interests consistent with his developmental age and cognitive limitations.

Eventually the operation resulted in sufficient evidence to charge Carrick with several offences under the Federal Criminal Code including being a member of a terrorist organisation, under section 102.3(1) of the Code and advocating terrorism, under section 80.2C(1) of the Code.

Although Carrick had shown some interest in extremist content before the operation, the evidence suggests that the actions of the undercover officers may have exacerbated or even instigated the thoughts and behaviours that led to his alleged offences. The officers’ interactions with Carrick, who had an IQ of just 71 and was on the autism spectrum, raised significant concerns about the appropriateness of their methods.

On October 24, 2023, Children’s Court Magistrate Lesley Fleming dismissed the charges against Carrick, ordering a permanent stay of proceedings. Magistrate Fleming found that the undercover operation had crossed ethical boundaries, describing the interactions between the officers and Carrick as akin to “grooming” for terrorist activities. This characterisation was particularly troubling given Carrick’s young age and significant cognitive impairments.

The case raises serious questions about the behaviour of police during online undercover operations and the potential for such investigations to incentivise rather than merely identify illegal activity.

Here is a quick outline on when can police arrest you.

When Are Online Undercover Operations Illegal?

Under section 138 of the Evidence Act 1995 (NSW), evidence gathered as a result of an online undercover operation may be excluded in any future trial if the evidence was ‘improperly or illegally’ obtained. In deciding whether such evidence should be excluded, the court will consider the following:

the probative value (“relevance”) of the evidence;
the importance of the evidence in the proceeding;
the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding;
the gravity of the impropriety or contravention;
whether the impropriety or contravention was deliberate or reckless;
whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights;
whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Generally, an online undercover operation will be illegal if the operation was not authorised under appropriate assumed identity or controlled operations legislation, or the actions of officers involved exceed what was authorised.

Click here for more on Australian miranda rights.

Frequently Asked Questions

Is Entrapment a defence in Australia?

Entrapment is not a legal defence in Australia. It is a defence in the United States of America and is commonly used by a defence attorney in circumstances where an undercover police officer induces or incites you to commit a crime that causes you to commit that crime.

What is Entrapment in Australia?

Entrapment is not a legal defence in Australia but if a police officer in Australia engages in illegal or improper conduct that incites or induces you to commit a criminal offence and the public interest to exclude the incriminating evidence outweighs the legitimate public interest in the conviction and punishment of the offender for the crime he or she is guilty of then the evidence can be excluded and the criminal proceedings against the offender can be stayed.