Ridgeway v the Queen - [1995] HCA 66

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

JOHN ANTHONY RIDGEWAY v. THE QUEEN

(1995) 129 ALR 41

19 April 1995

Headnote

Hearing

ADELAIDE, 22-23 August 1994
#DATE 19:4:1995, CANBERRA

Counsel for the Appellant: M.L. Abbott QC and C.J. Caldicott

Solicitors for the Appellant: Caldicott and Co

Counsel for the Respondent: M. Rozenes QC, Commonwealth
Director of Public Prosecutions
and E.J. Lorkin

Solicitor for the Respondent: Commonwealth Director of Public
Prosecutions

Orders

Appeal allowed.
Set aside the decision of the Full Court of the Supreme Court of South Australia and in lieu thereof order that the appeal to that Court be allowed, and the appellant's conviction be quashed and that there be a permanent stay of further proceedings in relation to the two alleged offences under s.233B(1) of the Customs Act 1901 (Cth).

Decisions

MASON CJ, DEANE AND DAWSON JJ The appellant was convicted in the District Court of South Australia, pursuant to an information filed by the Commonwealth Director of Public Prosecutions, of an offence under s.233B(1)(c) of the Customs Act 1901 (Cth) ("the Act"). His conviction of that offence made it unnecessary for the jury to consider an alternative charge of an offence under s.233B(1)(ca). An appeal to the Full Court of the Supreme Court of South Australia against his conviction was dismissed, by majority (Matheson and Duggan JJ; Legoe J dissenting). He now appeals to this Court.

2. Section 233B(1)(c) of the Act reads:

"Any person who ...without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act ... shall be guilty of an offence."

The appellant's alleged offence, as identified by the information, was that he "without reasonable excuse had in (his) possession a prohibited import, namely 140.4 grams of heroin being not less than the trafficable quantity, to which section 233B of the Customs Act applies and which had been imported into Australia in contravention of the Customs Act 1901". Heroin is included among the narcotic goods to which s.233B applies. The allegation of the quantity of heroin being not less than the trafficable quantity was included in the information for the purposes of penalty (1). That means that the objective elements of the offence of which the appellant was convicted were: (i) possession of heroin; (ii) absence of reasonable excuse; and, (iii) prior importation of the heroin into Australia in contravention of the Act. There is no doubt that the first two of those elements were satisfied in the present case. The appellant was in possession of the heroin when he was taken into custody. There is no suggestion that he had any reasonable excuse for that possession. Obviously, he had acquired and was in possession of the heroin for unlawful purposes.

3. Nor is it argued on the appellant's behalf that the third objective element of the offence was not established. To the contrary, the illegality of the importation of the heroin was and is a central plank of the appellant's argument both in the South Australian Full Court and in this Court. That argument is that the proceedings against the appellant should have been stayed or the evidence of the appellant's guilt should have been excluded on discretionary grounds by reason of the fact that the heroin had been illegally imported into Australia under the auspices of, and with the active involvement of, the Australian Federal Police so that it could be supplied to the appellant.

Background facts
4. The appellant and a man named Lee were in prison together in South Australia during the years 1985 to 1987. Both were serving sentences for drug-related offences. On his release from prison in August 1987, Lee was deported to Malaysia where he became a "registered informer" for the Royal Malaysian Police Force. The appellant was released from prison on parole in February 1989.

5. In the latter half of 1989, the appellant, who was unaware of Lee's association with the Royal Malaysian Police Force, contacted Lee for the purpose of seeking to arrange, through him, the purchase of heroin for importation into and sale within Australia. During that period, the appellant, in breach of his parole conditions and using his brother's passport, made two trips to Singapore in the course of which he had personal contact with Lee. In his dealings with the appellant, Lee acted under the instructions of Assistant Superintendent Thian Soo Chong ("Chong") of the Anti Narcotics Branch of the Royal Malaysian Police Force who was, in turn, in contact with a Superintendent Butler ("Butler") who was the Liaison Officer for the Australian Federal Police in Kuala Lumpur. The information which had been received by Chong from Lee and passed on to Butler made clear that, if Lee could not arrange the supply of heroin, the appellant could "go to another person in another place".

6. In these circumstances, the Australian Federal Police, acting in conjunction with the Malaysian Police, set up "Operation Decade" which involved what has been described as a "controlled" importation and delivery of heroin. The starting point of the operation was the purchase by Lee, accompanied by Chong, of heroin in Malaysia. While the evidence is not clear, the money used for the purchase may, at least in part, have been obtained by Lee from the appellant during his second visit to Singapore. After the purchase, Chong took and retained physical possession of the heroin. In December 1989, pursuant to arrangements with the Singapore Police, Chong flew to Singapore with the heroin. He was accompanied by Lee. On their arrival in Singapore, the heroin was delivered into the custody of the Singapore Police. On the following day, the heroin was returned to Chong who, accompanied by Lee, flew with it to Australia. They arrived, with the heroin in Chong's physical possession, at Adelaide Airport on 29 December 1989.

7. Lee and Chong had each received a visa from the Australian High Commission in Malaysia. Those visas had been issued on the application of the Australian Federal Police on the basis that the two men were involved in a "controlled delivery" of narcotics to Australia and that the Royal Malaysian Police Force was in agreement with, and co-operating in, the delivery. Upon their arrival, Chong and Lee were met at the airport by officers of the Australian Federal Police. Chong was able to clear Customs at the airport with the heroin by virtue of arrangements made between the Australian Federal Police and the Australian Customs Service. Those arrangements were made pursuant to a Ministerial Agreement of June 1987 and a letter of request of 28 December 1989 from the Australian Federal Police to the Australian Customs Service. That Ministerial Agreement is directed to defining the relationship between, and areas of responsibility of, the Australian Customs Service and crime enforcement authorities, including the Australian Federal Police, with respect to "Narcotic Drug Law Enforcement". By paragraph D7, it provides, among other things, for a request to be made for the transfer of Customs control from the Australian Customs Service to the Australian Federal Police in circumstances "where certain persons, goods, ships or aircrafts, suspected or known to be carrying or having an involvement in drugs, are required by the Australian Federal Police ... to be exempted from detailed Customs scrutiny and control". The Australian Federal Police's letter of request of 28 December 1989 was made pursuant to paragraph D7.

8. From the time of the importation of the heroin, the appellant was under surveillance by the Australian Federal Police. Lee met the appellant on several occasions and provided him with very small samples of the heroin. On 31 December 1989, the appellant went to a hotel room for a meeting with Lee and Chong. A short time later the appellant and another person left the room carrying a camera bag containing 203 grams of heroin (140.4 grams pure heroin). The appellant and the other man were apprehended by officers of the Australian Federal Police. The sum of $9,000 cash, being an amount paid by the appellant on account of the purchase price for the heroin, was in the possession of Chong and Lee in the hotel room. Lee was paid the equivalent of the $9000 cash as a reward for his part in the operation.

9. It has, at all times, been common ground that the importation of the heroin was contrary to s.233B(1)(b) of the Act which provides that any person who imports into Australia any prohibited imports to which s.233B applies is guilty of an offence under the section. The person who unlawfully brought the heroin into Australia was Chong who, on the facts as disclosed at the trial, was guilty of an offence under s.233B(1)(b) in that he imported into Australia prohibited imports to which s.233B of the Act applied. In truth, however, the whole of the unlawful importation was arranged by and under the auspices of the Australian Federal Police and the police involvement reached upwards to a high level of command. Realistically speaking, the illegal importation of the heroin was "controlled" and effected (through the services of Chong) by the Australian Federal Police. Clearly enough, the objective acts of the members of the Australian Federal Police directly involved in the importation of the heroin by Chong came within s.233B(1)(d) of the Act which provides that any person who "aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies" is guilty of an offence. In that regard, the Commonwealth Director of Public Prosecutions expressly conceded that the Australian authorities "had either counselled or at least were prepared to aid and abet" the illegal importation. The effect of s.235 of the Act was that, in circumstances where a trafficable quantity of heroin was involved, the maximum penalty for each of the offences presumably committed by Chong and members of the Australian Federal Police was imprisonment for twenty-five years and a fine of $100,000.

A defence of entrapment?
10. The question whether the common law of this country recognizes a substantive defence of "entrapment" to a charge of a criminal offence has not been directly addressed in any case in this Court. It has, however, been considered on a number of occasions by State Supreme Courts which have consistently and emphatically answered it in the negative (2). Similarly, the courts of England (3), Canada (4) and New Zealand (5) have denied the existence of such a substantive common law defence. The decisions to that effect are not surprising since it is a central thesis of our criminal law that a person who voluntarily and with the necessary intent commits all the objective elements of a criminal offence is guilty of that offence regardless of whether he or she was induced to act by another, whether private citizen or law enforcement officer. And that is so even if the inducement involved criminal conduct on the part of a law enforcement officer. Where that is so, the result is not that the induced person is not guilty of the crime. It is that the law enforcement officer is also guilty of an offence.

11. The principal support for the recognition of a substantive defence of entrapment lies in the majority judgments in three cases in the Supreme Court of the United States: Sorrells v. United States (6); Sherman v. United States (7); and United States v. Russell (8). Those cases established entrapment as a substantive, but "relatively limited" (9), defence in a criminal trial in the federal courts of that country. The basis of the defence, as recognized in those majority judgments, is a presumption of legislative intent, namely, that "Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations" (10). The elements of the defence are essentially subjective, namely, that there was an absence of previous intent or purpose on the part of the accused to commit an offence of the kind charged and that the accused actually did what is alleged to be the offence "only because he was induced or persuaded by some officer or agent of the government" (11). As Rehnquist J said (12) of the defence in delivering the opinion of the court in United States v. Russell:

"Sorrells and Sherman both recognize 'that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution' (13). Nor will the mere fact of deceit defeat a prosecution, see, e.g., Lewis v. United States (14), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play."

As a general rule, the question of entrapment in the United States is "one for the jury, rather than for the court" (15). The defence can be raised and relied on notwithstanding that the accused disputes that he committed one or more of the elements of the crime (16).

12. Analysis of the majority judgments in the United States Supreme Court discloses that they provide no satisfactory conceptual basis for the acceptance of entrapment as a substantive defence to a criminal charge under our law. In particular, those judgments do not identify any common law principle which is capable of sustaining the proposition that an otherwise guilty person is not guilty if, lacking previous intent or purpose, that person was induced or persuaded to do what he or she did by some government officer. As has been seen, their basis is a presumption of legislative intent, namely, that it was not the intention of Congress that "otherwise innocent" persons should be entrapped into the commission of criminal offences. That basis is not, however, adequate to sustain the creation of a substantive defence of entrapment in this country. Even if it be assumed that it would not have been the legislative intent that persons should be induced by government officials to commit crimes which they otherwise would not have committed, it is a very long step to the conclusion that, if a person does in fact commit a crime as a result of such inducement, he or she is nonetheless not guilty of it for the reason that there should be read into the express terms of every provision creating a statutory offence an unexpressed qualification establishing an applicable defence which is unknown to, and quite contrary to, our common law. Whatever may be the position in the United States, the principles of statutory construction provide no warrant for the taking of such a step by our courts.

13. Moreover, the existence of a substantive defence of government persuasion or inducement would, upon analysis, be at odds with the emphatic denial in judgments in this Court, in A. v. Hayden (No.2) (17), of the existence of any substantive defence in the stronger circumstances of government directions or orders. In Hayden, a number of part-time members of the Australian Secret Intelligence Service were alleged to have committed breaches of the criminal law in the course of participating, "at the direction of the Government", in a security training exercise. In the course of his judgment, Gibbs CJ pointed out (18), in words which were subsequently quoted with approval by the Privy Council in Yip Chiu-Cheung v. The Queen (19), that it is "fundamental to our legal system ... that it is no excuse for an offender to say that he acted under the orders of a superior officer". The other members of the Court all expressly stated (20), or clearly assumed (21), that the fact that the part-time officers were acting at the direction of the Commonwealth and under orders of government officers provided no defence to the allegation of criminal offences for the reason that, to quote Murphy J, "it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of ... the government". Government "orders", if obeyed, go much further than mere inducement. If obedience to actual orders is not a substantive defence to a criminal charge, it is difficult to see any logical basis for a conclusion that persuasion by mere inducement constitutes such a defence.

Discretionary exclusion of evidence
14. The conclusion that the law of this country knows no substantive defence of entrapment does not dispose of the present case. While senior counsel for the appellant did suggest that there may be "room in Australian law for a limited defence of entrapment based on subjective principles", the primary argument advanced on the appellant's behalf was that, in all the circumstances of the case, the effect of the police involvement in the illegal importation of the heroin was that the proceedings against the appellant should have been stayed or the evidence of his guilt should have been excluded on discretionary grounds. In support of that submission, the appellant placed particular reliance, by way of analogy, upon the cases in this Court dealing with the discretion of a trial judge to exclude, on public policy grounds, evidence which has been procured by unlawful police conduct. He also relied upon the judgments in a number of cases in State Supreme Courts and in the courts of other common law countries.

15. At least since Bunning v. Cross (22), it has been "the settled law in this country" (23) that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. That discretion is distinct from the discretion to exclude evidence of a confessional statement on the grounds that its reception would be unfair to the accused (24). The discretion extends to the exclusion of both "real" (or non-confessional) evidence (25) and confessional evidence (26). As Barwick CJ pointed out in Reg. v. Ireland (27), in a judgment with which the other four members of the Court agreed (28), the rationale of the discretion is that convictions obtained by means of unlawful conduct "may be obtained at too high a price". In its exercise, a trial judge must engage in a balancing process to resolve "the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law" (29). The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of "high public policy" (30) relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.

16. Clearly enough, in a criminal trial there is a distinction between a discretion to exclude particular evidence and a discretion to exclude any evidence at all which tends to establish the accused's guilt of the alleged crime or of an element of it. Nonetheless, the existence of the discretion to exclude evidence procured by unlawful conduct on the part of law enforcement officers provides strong support, by way of analogy, for the recognition of a discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct. Indeed, the distinction between the two discretions can, in some circumstances, be of theoretical rather than practical importance. Thus, in a case where a course of unlawful conduct on the part of the police has procured both the commission of the offence and evidence of it, there will be little practical significance in the distinction between an exclusion of that particular evidence on the ground that it was procured by the illegal conduct and the exclusion of all evidence on the ground that the commission of the offence was itself procured by that conduct if the only evidence against the accused is that which was unlawfully procured.

17. More importantly, the considerations of "high public policy" which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be "demeaned by the uncontrolled use of the fruits of illegality in the judicial process" (31). Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.

18. Moreover, the two principal considerations weighing against the recognition of a judicial discretion to reject evidence of an offence procured by illegal conduct on the part of law enforcement officers were also the principal considerations which weighed against the recognition of the discretion to reject unlawfully procured evidence. The first of those considerations is that to which reference has already been made, namely, the legitimate public interest in the conviction of those guilty of crime. In Ireland and Bunning v. Cross, that consideration was rightly seen as not justifying a denial of the existence of a discretion to exclude unlawfully procured evidence but as constituting the primary factor to be put in the balance against the considerations favouring a rejection of the evidence in determining how the discretion should be exercised in all the circumstances of a particular case. It should be similarly seen in relation to a discretion to exclude evidence of an offence procured by unlawful conduct. The second of those considerations lies in the separation, under our system of the administration of criminal justice, of executive and judicial functions. The function of determining whether, in the circumstances of a particular case, a criminal prosecution should be initiated and maintained is essentially that of the Executive. The function of hearing and determining the prosecution, when initiated and while maintained, is that of the courts. Nonetheless, it has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds (32) or temporarily or permanently stay the overall proceedings to prevent abuse of its process (33). One such discretion is the discretion to exclude unlawfully procured evidence on public policy grounds. That discretion is properly to be seen as an incident of the judicial powers vested in the courts in relation to criminal matters. Neither its existence nor its exercise involves any intrusion into the exclusive sphere of the Executive. Nor, in our view, does the existence or exercise of a judicial discretion to exclude, on public policy grounds, all evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement officers.

19. The weight of common law authority both in this country and overseas also favours the recognition of such a judicial discretion. On balance, the judgments in relevant cases in the Australian State Supreme Courts accord with what has been written above. In the main, those judgments recognize the existence of such a discretion and find its conceptual basis in the principles underlying the Bunning v. Cross discretion to exclude unlawfully procured evidence (34). Overseas, the United States Supreme Court has, as has been seen, gone so far as to recognize a substantive defence of entrapment which focuses upon the disposition and subjective mental processes of the particular accused and which falls to be determined not in the discretion of a trial judge but by a verdict of the jury. The minority opinions of Roberts J (Brandeis and Stone JJ concurring) in Sorrells v. United States (35) and Frankfurter J (Douglas, Harlan and Brennan JJ joining) in Sherman v. United States (36), while speaking of "a defense of entrapment", explain the doctrine of entrapment as resting not upon a perception of the innocence of, or unfairness to, the induced offender but upon the inherent powers of the courts to protect the integrity of their own processes. That being so, the question whether entrapment had been made out was seen by those minority justices (37) as being ultimately for the court, and not for the jury, to determine by reference to essentially objective considerations of public policy relating to the administration of criminal justice. As Frankfurter J wrote in Sherman (38):

"Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply 'proper standards for the enforcement of the federal criminal law in the federal courts,' McNabb v. United States (39), an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake."

Subsequently (40), Frankfurter J quoted with approval the substance of the following passage from the opinion of Roberts J in Sorrells (41):

"The doctrine (i.e. of entrapment) rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention."

In our view, the reasoning in those minority opinions and in the minority opinions of Douglas J (Brennan J concurring) and Stewart J (Brennan and Marshall JJ joining) in United States v. Russell (42) provides persuasive support for the recognition in this country of a judicial discretion to exclude evidence of an illegally procured offence analogous to the Bunning v. Cross discretion to exclude illegally procured evidence.

20. In New Zealand, judicial statements also support the existence of a judicial discretion to exclude evidence in a case where a criminal offence has been procured by illegal conduct on the part of police (43). In Canada, a judicial discretion to grant a stay of proceedings in such circumstances is clearly established by the judgment of the Supreme Court of Canada in Reg. v. Mack (44). It is true that the House of Lords in Reg. v. Sang (45) emphatically rejected the existence of even a discretion to reject illegally procured evidence on public policy grounds. In that case, Lord Diplock said (46):

"It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial."

However, the conclusion expressed in that passage would appear to have been substantially reversed by legislation (47). In any event, it is clearly inconsistent with the law of this country as settled by Reg. v. Ireland (48) and Bunning v. Cross (49) and explained in Cleland v. The Queen (50) and Pollard v. The Queen (51).

21. The judgments in State Supreme Courts supporting the recognition of such a judicial discretion disclose a divergence of views about a number of important questions. In particular, there is a divergence of views both in relation to the question of the considerations by reference to which the discretion falls to be exercised and in relation to the question whether the discretion extends beyond a mere exclusion of evidence and encompasses a grant of a permanent stay of proceedings. Those questions are addressed subsequently in this judgment. At this stage, it suffices to say that, for the reasons given above, it should be accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or of an element of an offence in circumstances where its commission has been brought about by unlawful conduct on the part of law enforcement officers.

Conduct which is not unlawful but is improper
22. Strictly speaking, it is unnecessary for the purposes of the present case to determine whether the discretion to exclude evidence extends to circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on the part of the authorities. It does, however, seem desirable that we indicate that we are of the view that it does.

23. In a context where ancillary offences - such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring - exist, in one form or another, in all Australian jurisdictions and where no laws exist authorizing law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal. Nonetheless, circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed provide possible examples. As the Supreme Court of Canada pointed out in Reg. v. Mack (52), "there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions". The rationale of the discretion requires that it extend to cases where those "inherent limits" are exceeded.

24. Moreover, the Bunning v. Cross discretion to exclude illegally procured evidence provides, by analogy, support for the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement authorities extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper. Thus, in Reg. v. Ireland (53), Barwick CJ made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by "unfair" as well as "unlawful" conduct on the part of law enforcement officers. In their judgment in Bunning v. Cross, Stephen and Aickin JJ did not qualify their acceptance of Barwick CJ's judgment in Ireland by confining the discretion to a case of unlawful conduct. To the contrary, their Honours plainly accepted that the discretion extended to "unfair ... conduct on the part of the authorities" (54). Their Honours did, however, indicate a preference for the phrase "improper conduct" (55), pointing out that "unfair" is largely meaningless when considering certain types of evidence (e.g. improperly obtained finger print evidence). In subsequent cases, the words "improper" and "impropriety" have been generally preferred to the words "unfair" and "unfairness" and it has been accepted as established that the Bunning v. Cross discretion extends to cases of either unlawful or improper conduct on the part of the authorities (56).

25. The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.

Exercise of the discretion
26. In what has been written above, the existence of the Bunning v. Cross discretion to exclude illegally procured evidence has been relied upon as supporting, by way of analogy, the recognition of a discretion to exclude evidence of an illegally procured offence or an element thereof. It is arguable that the preferable view is that the two discretions are not distinct and independent but represent complementary aspects of a single discretion which encompasses them both. Regardless of whether that be so, there is, at the least, a broad correspondence between the considerations, both positive and negative, to which regard should be had by a trial judge in determining whether the challenged evidence should be excluded in a case where either discretion exists and is invoked. Those considerations were identified in judgments in this Court in cases in which the Bunning v. Cross discretion was established and explained (57). The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances (58). Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.

27. In one important respect, the factors militating against the exclusion of all evidence of an illegally procured offence are likely to be more weighty than the factors militating against exclusion of illegally procured evidence. The discretion to exclude all evidence will ordinarily fall to be exercised on the assumption that the offence has been committed and that the effect of the exclusion of the evidence is that the prosecution will be shut out completely from proving guilt and that a guilty person will walk free. In contrast, the discretion to exclude illegally procured evidence will ordinarily be exercised on the basis that guilt or innocence remains an open question to be determined by reference to any other admissible evidence which the parties may see fit to place before the court. On the other hand, in the worst cases of entrapment by illegal police conduct, the weight to be given to the public interest in the conviction and punishment of those guilty of crime may be lessened by the diminution in the heinousness of the accused's conduct resulting from (for example) the fact that he or she was an otherwise law-abiding person who would not have offended were it not for the "inordinate inducements" (59) involved in the illegal conduct.

28. References in this judgment to an offence being "procured" by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organized by the police for the purpose of obtaining the conviction of the person to whom it is supplied (60). In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused's offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. Indeed, if the courts were prepared to allow curial advantage to be derived from the police illegality in such circumstances, there could be no satisfactory answer to Macrossan CJ's rhetorical question (61) "at what point would it ever be appropriate to demur and offer objection?"

Stay of proceedings
29. In Canada, the Supreme Court has held that the appropriate immediate remedy in an entrapment case is a stay of prosecution. The basis of that approach is that "the rationale for recognition of the entrapment doctrine lies in the inherent jurisdiction of the court to prevent an abuse of its own processes" (62) and that, in a case where relief should be granted on entrapment grounds, a stay is necessary to avoid "the improper invocation by the State of the judicial process and its powers" (63). That approach finds support in some judgments in State Supreme Courts in this country (64). With due respect, we are unable to accept it.

30. Once it is concluded that our law knows no substantive defence of entrapment, it seems to us to follow that the otherwise regular institution of proceedings against a person who is guilty of a criminal offence for the genuine purpose of obtaining conviction and punishment is not an abuse of process by reason merely of the circumstance that the commission of the offence was procured by illegal conduct on the part of the police or any other person. To the contrary, to institute and maintain proceedings in a competent criminal court for that purpose is to use the process of that court for the very purpose for which it was established. If the commission of the crime was procured by illegal conduct on the part of another person, one would prima facie expect that criminal proceedings would also be instituted against that person. If that other person is a police or other government officer, a failure to institute such criminal proceedings might be a relevant consideration favouring the exercise of the discretion to exclude evidence of the illegally procured crime or of an element thereof. Such a failure would not, however, of itself convert the use of a criminal court's process for the trial and conviction of the person who committed the charged offence into an abuse of that process.

31. Nonetheless, the appropriate ultimate relief in a case where the commission of the charged offence has been procured by illegal police conduct may well be a permanent stay of further proceedings. Ordinarily, the question whether evidence of an offence or of an element of an offence should be excluded pursuant to the discretion to exclude evidence on entrapment grounds should be raised and determined in the course of a preliminary hearing. If, on such a hearing, a ruling is made that evidence of the charged offence or of an element of it should be so excluded, it will be apparent that it would be an abuse of process for the Crown to proceed with the trial. The reason why that is so is not that the commission of the charged offence was procured by illegal conduct on the part of the police. It is that the proceedings will necessarily fail with the consequence that a continuance of them would be oppressive and vexatious. It is true that there is an appearance of artificiality in the distinction between an exclusion of all evidence and a stay of proceedings (65). There is, however, a significant distinction in principle between staying criminal proceedings on the ground that the proceedings in themselves constitute an abuse of process and staying further steps in the proceedings on the ground that, due to the effect of evidentiary rulings made in them, they must fail.

The present case
32. In the Full Court in the present case, it was agreed by the parties that that court should consider afresh the application made to the trial judge for a permanent stay of proceedings or the exclusion of evidence of the alleged offence "and exercise its own discretion". Notwithstanding some procedural difficulties, the members of the Full Court adopted that approach and concluded, by majority, that evidence of the alleged offences, including evidence of the illegal importation, was properly received and that a stay of proceedings should not have been granted. As we followed the argument, it is common ground between the parties that, if that conclusion of the Full Court was vitiated by error, this Court should itself determine whether the evidence should have been excluded or a stay of proceedings should have been ordered.

33. Examination of the judgments of Matheson J and Duggan J who constituted the majority in the Full Court discloses that their Honours placed disproportionate weight on the question of unfairness to the particular accused. As should be clear from what has been written above, the question of unfairness to a particular accused is ordinarily of but peripheral importance in deciding whether evidence of an illegally procured offence should be excluded on public policy grounds. In the present case, where the illegal importation of heroin and the subsequent supply of it to the appellant had been instigated by the appellant, there was no real question of any unfairness to him being involved in the receipt of evidence of his guilt. The critical question was whether, in all the circumstances of the case, the considerations of public policy favouring exclusion of the evidence of the appellant's offence, namely, the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the appellant of and for the crime against s.233B(1)(c) of the Act of which he was guilty. With due respect, it appears to us that neither of their Honours directly or adequately addressed that question.

34. Viewed in its context in a customs statute, the legislative purpose to be discerned in s.233B of the Act, and in the punishment of the offences which it creates, is the prevention of the illegal importation or exportation of the prohibited imports or exports to which the section applies, namely, prohibited imports or exports which are "narcotic goods" (66). Indeed, it is at least questionable whether the enactment of s.233B(1)(c) creating the offence of which the appellant was convicted would have been within the legislative power of the Commonwealth Parliament if that had not been the underlying legislative purpose and illegal importation had not constituted an element of the offence. Once that is appreciated, it becomes apparent that the present case falls within the second, more serious, category mentioned above. The illegal importation of the heroin which members of the Australian Police Force organized and in which they were involved was the very conduct against which the legislative provision creating the offence of which the appellant was convicted was primarily directed. The illegality of that importation was not only calculated. It was necessary to procure the commission of the appellant's offence. If the heroin had been obtained from supplies lawfully within Australia for medical or research purposes or if its importation under police control had been lawful, an essential element of the appellant's offence - i.e. "imported into Australia in contravention of this Act" - would not have existed. The illegal police conduct itself provided and constituted that element.

35. As has been seen, the criminality of the police conduct was grave in that the maximum penalty for being involved in the illegal importation of a trafficable quantity of heroin was imprisonment for twenty-five years and a fine of $100,000. There is nothing before the Court to suggest that the conduct of the police officers involved has been received with other than acquiescence or approval at higher levels of the Australian Federal Police. There is no suggestion that any of those police officers has been charged with a criminal offence or otherwise reprimanded. Even in the course of argument of the case in this Court, the Director of Public Prosecutions appeared somewhat reluctant to concede that the illegal conduct of those involved was unjustifiable. The receipt of evidence tending to show that the heroin was illegally imported meant that the prosecution was allowed by the court to derive the curial advantage which constituted the objective of the criminal conduct of the police.

36. In these circumstances, the above-mentioned factors - i.e. grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted - combine to make the case an extreme one in which the considerations favouring rejection of evidence on public policy grounds are extremely strong. Against those considerations, one must weigh the legitimate public interest in the conviction and punishment of the appellant for the criminal offence of which he is guilty. The weight of that consideration in the present case is reduced by the fact that the appellant's possession of the heroin at the time he was apprehended constituted any one of a variety of offences against the law of South Australia of which illegal importation was not an element and which range from knowing possession of a prohibited substance or drug of dependence (maximum penalty: $2000 and two years' imprisonment) (67) to possession of more than the prescribed quantity of a prohibited substance or drug of dependence for the purpose of sale or supply (maximum penalty: $500,000 and life imprisonment) (68). That being so, the effect of a stay of the prosecution of the appellant for offences against the Commonwealth Act would be that the appellant remained liable to be prosecuted under State law. In all the circumstances, the considerations of public policy favouring an exclusion of evidence of the illegal importation of the heroin clearly outweigh the considerations of public policy favouring the conviction of the appellant of an offence under s.233B(1) of the Act.

37. It follows that the learned trial judge should have ruled that all evidence tending to show that the heroin supplied to the appellant had been, or was reasonably suspected of having been, illegally imported should be rejected on public policy grounds. The evidence so excluded should have included any evidence from which any inference of illegal importation might be drawn (e.g. that heroin is not produced in Australia). The result of that ruling would have been that a necessary element of both the offence of which the appellant was convicted and the alternative offence (69) with which he was charged could not have been proved. Accordingly, further proceedings should have been stayed for the reason that they would inevitably fail.

38. There are two further matters which should be mentioned. The first is that, in the context of the fact that deceit and infiltration are of particular importance to the effective investigation and punishment of trafficking in illegal drugs such as heroin, it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be government officer or ordinary citizen. To do otherwise would be to undermine the rule of law itself.

39. The second further matter is that, as has been indicated, a quashing of the appellant's conviction and the imposition of a stay of proceedings in respect of the offence against the Act will not preclude the appropriate authorities from instituting proceedings against the appellant for an offence or offences against the law of South Australia. In the event that such proceedings are instituted, it may be that the appellant will seek to have the whole of the evidence of any alleged offence excluded on public policy grounds by reason of the illegal police conduct. This Court has not heard argument on the question whether a proper exercise of the discretion would require the exclusion of the evidence in those circumstances. It should, however, be clear from what has been written above that the fact that illegal importation would not be an element of the charged offence would greatly reduce the weight of the considerations favouring an exclusion of evidence.

40. The appeal should be allowed. As we have said, the judgment which ought to have been given in the first instance was that further proceedings against the appellant be stayed. No such order was made and the prosecution proceeded to conviction. It is therefore necessary to quash that conviction in order to give such judgment as ought to have been given in the first instance (70). The decision of the Full Court dismissing the appeal to it should be set aside and in lieu thereof it should be ordered that the appeal to that court be allowed, that the appellant's conviction be quashed and that there should be a permanent stay of further proceedings in relation to the two alleged offences under s.233B(1) of the Act. It will be a matter for the appropriate authorities to determine whether proceedings should be brought against the appellant for an offence or offences against the law of South Australia.

BRENNAN J The appellant Ridgeway and another offender, Harvey, were convicted of having in their possession without reasonable excuse 140.4 grams of heroin, a prohibited import, which had been imported into Australia in contravention of the Customs Act 1901 (Cth). The circumstances are set out in other judgments. Section 233B(1)(c) creates the relevant offence:

" Any person who -

...
(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;
...

shall be guilty of an offence."

The prosecution succeeded in proving each of the elements of the offence but it is submitted that, because the heroin was illegally imported (71) by Assistant Superintendent Chong of the Royal Malaysian Police Force and by an informer, Lee, under an arrangement with the Australian Federal Police and was delivered by Chong to Ridgeway and Harvey pursuant to that arrangement, the conviction should be quashed. The submission is founded on three distinct but related grounds: (i) that entrapment is a defence and Ridgeway was entrapped into committing the offence; (ii) that the prosecution of Ridgeway for possession of heroin that was illegally imported under an arrangement with the Australian Federal Police is an abuse of process warranting a permanent stay of the prosecution; and (iii) that the illegal importation under an arrangement with the Australian Federal Police ought to have led either to the exclusion of "the evidence (the heroin)" in the exercise of the judicial discretion referred to in Bunning v. Cross (72) or to a stay of prosecution.

Entrapment
2. The offences created by pars (b) and (c) of s.233B(1) of the Customs Act are not committed unless the offender acted with the requisite mens rea (73). Subject to the possible defence of duress (74), a person who contravenes either par.(b) or par.(c) of s.233B(1) with the necessary mens rea is liable to conviction and to the punishment prescribed. An offender does not escape liability merely because he was induced to commit the offence by another, whether the other be a friend, a business associate or a member of a police force. Duress apart, the fact that an offender commits an offence upon inducement by a law enforcement officer provides no authorization nor justification nor excuse. If entrapment were a defence, liability to conviction and punishment would depend on the identity and conduct of the party who induced the commission of the offence, not on the culpability of the offender. In principle, there is no basis on which entrapment can be admitted as a defence. It does not affect mens rea. Nor does it have the historical basis of the defence of duress. Entrapment has been rejected as a defence in the Courts of the States (75), in England (76), in Canada (77) and, on one analysis of the judgments in the Supreme Court of the United States (78), in that Court also. It must be rejected here.

Abuse of process
3. The process of a court which has jurisdiction to try an offender for an offence is not abused by the exercise of that jurisdiction for that purpose (79). Therefore it is not an abuse of process to prosecute an offender who has been induced to commit an offence in order to procure his conviction. In Jago v. District Court (N.S.W.), I said (80):

"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. ... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."

4. In the United States Supreme Court, the "defence" of entrapment is not seen as a means of declining the jurisdiction to convict and punish an offender who has acted in contravention of a law of the Congress. To the contrary, the "defence" of entrapment arises from a rule of statutory construction: Sorrells v. United States (81). Rejecting a literal interpretation of the statute, the majority in that case said (82):

"We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them."

Their Honours construed the general words of the offence-creating statute as containing an exception from liability where the alleged offender is entrapped into a contravention of the statute. Their Honours distinguished the construction they placed on the Act of Congress from the notion of abuse of process (83):

"This view does not derogate from the authority of the court to deal appropriately with abuses of its process and it obviates the objection to the exercise by the court of a dispensing power in forbidding the prosecution of one who is charged with conduct assumed to fall within the statute.

5. We are unable to approve the view that the court, although treating the statute as applicable despite the entrapment, and the defendant as guilty, has authority to grant immunity, or to adopt a procedure to that end. It is the function of the court to construe the statute, not to defeat it as construed. Clemency is the function of the Executive. Ex parte United States (84). In that case, this Court decisively denied such authority to free guilty defendants, in holding that the court had no power to suspend sentences indefinitely. The Court, speaking by Chief Justice White, said - 'if it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments and hence leave no law to be enforced.'"

"a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society."

Frankfurter J went on to formulate an objective test of entrapment. His Honour said (234):

"This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only those persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime."

26. In Reg. v. Hsing (235), Samuels JA said that he preferred the objective test but was bound by Sloane to apply the subjective test.

Criticisms of the subjective and objective tests
27. The principal objections to the subjective test are:

(a) the focus is on the pre-disposition of the accused and not the conduct of the law enforcement authorities;

(b) if the accused is pre-disposed to commit the offence, it is virtually impossible for the accused to prove that he or she was induced to commit the offence by the conduct of the police officers;

(c) pre-disposition is almost invariably proved by the accused's record and it is extremely difficult for a person with a record to show that he or she had in fact reformed and had no pre-disposition to commit the offence;

(d) in practice, the defence only protects those who have not been convicted for that class of offence;

(e) no clear line can be drawn between conduct that merely provides an opportunity for the commission of a crime and conduct that induces a person to commit a crime.

28. However, the objective test, as formulated by Frankfurter J, is also open to criticism (236):

(a) the objective test is not available to the accused person whose strength of resistance is lower than the average person. In this respect, it suffers from the same deficiencies as the common law test of provocation;

(b) the purpose of an entrapment test is not to protect hypothetical persons but to protect those who should not be convicted according to the community's sense of justice;

(c) it is difficult to measure the resistance of an average person when faced with the inducement offered;

(d) there is likely to be little difference in result between the subjective test of inducement and the test, as formulated by Frankfurter J, of "the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime".

The test for entrapment in Canada
29. The Supreme Court of Canada has extensively examined the doctrine of entrapment in a number of cases (237). The test formulated by that court rejects the subjective test formulated by the majority of the United States Supreme Court in Sorrells (238). The Canadian test focuses on the conduct of the police. In Mack (239), Lamer J said:

"Since I am of the view that the doctrine of entrapment is not dependent upon culpability, the focus should not be on the effect of the police conduct on the accused's state of mind. Instead, it is my opinion that as far as possible an objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable."

Lamer J held (240) that entrapment is established when:

"(a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides ... or (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence".

30. In Canada, therefore, although the accused must show that the conduct of law enforcement authorities induced him or her to commit the crime in question, inducement is merely a condition precedent to the main inquiry which concentrates on the conduct of the law enforcement authorities. If the conduct of those authorities falls short of the judicially declared standard, the prosecution will be stayed irrespective of whether the accused would have committed the offence in question or some similar offence.

31. I have found the judgment of Lamer J in Mack of great assistance. But the second limb of the Mack test arguably departs from the rationale for staying a prosecution that is based on evidence of an offence which was induced by or was the result of the misconduct of law enforcement authorities. The rationale of the jurisdiction to stay such prosecutions is that the administration of justice is brought into disrepute when the courts allow their procedures to be used to prosecute crimes that have been artificially created by law enforcement authorities. Consistently with that rationale, I do not think that a prosecution should be stayed merely because the law enforcement authorities, while having a reasonable suspicion or acting in the course of a bona fide investigation, have done more than provide an opportunity for the commission of the offence. In such a case, the pre-disposition of the accused to commit the crime in question must be relevant. While the conduct of the authorities is clearly of great importance, its effect on the accused's inclination to commit criminal offences is of equal importance. The supervision of police conduct is not by itself a function of the courts of justice (241). Such conduct becomes the concern of the courts only when it impinges upon the administration of justice. And I do not think that the administration of justice is always brought into disrepute when the accused is induced to commit a crime by conduct that goes beyond the provision of an opportunity to commit the crime. Thus, I do not think that the administration of justice is necessarily brought into disrepute by the prosecution of a wary drug dealer who has been importuned or deceived into selling drugs to an undercover agent.

The test to be applied
32. If the courts of justice are to prevent the entrapment of offenders becoming abuses of their processes, the courts need to impose stringent conditions on the use of entrapment techniques. In a society predicated on respect for the dignity and the rights of individuals, noble ends cannot justify ignoble means (242). Governments are the agents of the people. Since the enactment of the Australia Act 1986 (U.K.), the powers of government in this country are derived from the people who are the ultimate sovereign (243). No government in a democratic state has an unlimited right to test the virtue of its citizens (244). Testing the integrity of citizens can quickly become a tool of political oppression and an instrument for creating a police state mentality (245). Moreover, when the authorities use entrapment techniques that induce a person to commit an offence, they increase the incidence of crime. That being so, the use of an entrapment technique can only be justified when there is reasonable suspicion that the person so induced would have committed that offence or some similar offence, or the technique has been used in the course of a bona fide investigation of criminal or suspected criminal activity and has ensnared the accused. Furthermore, if crime is not to be artificially increased by entrapment techniques, the nature of the inducement cannot go beyond what is likely to be replicated in carrying out the criminal activity in question (246). The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable (247). But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means. The courts of justice cannot countenance the use of their processes to prosecute offences that in substance have been artificially created by the misconduct of those whose duty is to uphold the law.

33. I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters:

(1) Whether conduct of the law enforcement authorities induced the offence.

(2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.

(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.

(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.

The appellant was not entitled to a stay of the proceedings

34. Nothing in the facts of the present case leads me to the conclusion that the appellant was entitled to a stay of the prosecution against him. The prosecution of the appellant does not bring the administration of justice into disrepute. On the contrary, I think that the administration of justice will speedily fall into disrepute if courts stay prosecutions based on facts similar to the facts in this case. Nor do I think that in any realistic sense can it be said that the law enforcement authorities created the offence for which the appellant was convicted.

35. It seems likely that the members of the Australian Police Force who facilitated the importation of the heroin into Australia have committed offences against the Customs Act. But they acted with the best of motives. Moreover, it seems clear that they thought that they were acting lawfully in accordance with the Ministerial Agreement. In those circumstances, I would find it unsurprising that, in the exercise of his discretion, the Director of Public Prosecutions would not prosecute the police officers involved. Even if the view is taken that the conduct of the officers requires prosecution, I fail to see how their conduct could justify staying the prosecution of the appellant. Indeed, nothing would be more likely to bring the administration of justice into disrepute than the spectacle of the police officers being prosecuted and convicted and the proceedings against the appellant being stayed.

36. True it is that but for the conduct of the police officers, the particular quantity of heroin would not have entered Australia. Their conduct clearly had a causal connection with the appellant's possession of the heroin. But nothing that the police officers did induced the appellant to commit the offence. He was the architect of the scheme of importation and went to considerable lengths to carry it out. While on parole for a long sentence involving drug dealing and in breach of his parole conditions, he twice journeyed to Singapore for the purpose of inducing Lee to import the heroin. He made it plain that if Lee did not participate in the scheme he would find someone who would. Neither the federal police nor Superintendent Chong or Lee set out to induce the appellant to import the heroin. They did no more than carry out the requirements of his scheme. Apart from failing to reveal to the appellant that Lee had become a police informer, they do not appear to have deceived the accused and thereby induced him to embark upon his criminal enterprise. Nor except as a step in the appellant's plan did Lee or Chong do anything to induce the appellant to take possession of the heroin in Australia. Long before the federal police intervened, he had planned and was ready and willing to take possession of heroin that was imported into Australia in contravention of the Customs Act.

37. As the result of his own plan, therefore, the appellant, without reasonable excuse, had possession of heroin which had been imported into Australia in contravention of the Customs Act. That constituted the offence for which he was convicted. He had even obtained that heroin from the person whom he had asked to import it. The fact that unlawful conduct of Australian Federal Police officers may have assisted that person to carry out the appellant's instructions does not mean that they have created the offence for which he was convicted. Possession of the heroin without lawful excuse was the essence of the offence. The appellant's possession of the heroin was the result of his own initiatives, formed without any inducement from the police officers.

Order
38. The appeal should be dismissed.

1 See the Act, s.235.

2 Reg. v. Hsing (1991) 25 NSWLR 685 at 689; Thompson and Thompson (1992) 58 A Crim R 451; Reg. v. Steffan (1993) 30 NSWLR 633 at 643; Coward (1985) 16 A Crim R 257; Hunt v. Wark (1985) 40 SASR 489 at 492; Reg. v. Vuckov and Romeo (1986) 40 SASR 498 at 511; Reg. v. Romeo (1987) 45 SASR 212 at 218, 239 (cf. at 227); Papoulias (1987) 31 A Crim R 322 at 327; Reg. v. Venn-Brown (1991) 1 Qd R 458; Reg. v. Weston and Lee, unreported, Supreme Court of Tasmania, Crawford J, 11 July 1991.

3 Reg. v. Sang (1980) AC 402 at 432, 441, 443, 445, 451.

4 Amato v. The Queen (1982) 69 CCC (2d) 31; Reg. v. Mack (1988) 44 CCC (3d) 513.

5 Reg. v. O'Shannessy, unreported, Court of Appeal, 8 October 1973; Reg. v. Capner (1975) 1 NZLR 411; Reg. v. Pethig (1977) 1 NZLR 448 at 450; Police v. Lavalle (1979) 1 NZLR 45 at 48; Reg. v. Katipa (1986) 2 NZLR 121 at 125;.

6 (1932) 287 US 435.

7 (1958) 356 US 369.

8 (1973) 411 US 423.

9 ibid. at 435.

10 Sherman v. United States (1958) 356 US at 372. And see also Sorrells v. United States (1932) 287 US at 448.

11 See the District Judge's direction in United States v. Russell which is set out at (1973) 411 US at 427, n.4.

12 (1973) 411 US at 435-436.

13 (1932) 287 US at 441; (1958) 356 US at 372.

14 (1966) 385 US 206 at 208-209.

15 Matthews v. United States (1988) 485 US 58 at 63; Hampton v. United States (1976) 425 US 484 at 497.

16 Matthews v. United States (1988) 485 US 58.

17 (1984) 156 CLR 532.

18 ibid. at 540.

19 (1995) 1 AC 111 at 118.

20 (1984) 156 CLR at 550 per Mason J, 562 per Murphy J, 580-581 per Brennan J and 593 per Deane J

21 ibid. at 574 per Wilson and Dawson JJ

22 (1978) 141 CLR 54.

23 ibid. at 69 per Stephen and Aickin JJ (with the concurrence of Barwick CJ).

24 See, e.g., McDermott v. The King (1948) 76 CLR 501 at 513-515; R. v. Lee (1950) 82 CLR 133 at 148-155.

25 Bunning v. Cross (1978) 141 CLR at 75; Cleland v. The Queen (1982) 151 CLR 1 at 19-20, 23; Pollard v. The Queen (1992) 176 CLR 177 at 196, 201; Foster v. The Queen (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7.

26 See Pollard v. The Queen (1992) 176 CLR at 196-197, 201.

27 (1970) 126 CLR 321 at 335.

28 ibid. at 336.

29 Bunning v. Cross (1978) 141 CLR at 74 per Stephen and Aickin JJ

30 ibid.

31 Pollard v. The Queen (1992) 176 CLR at 203.

32 See, e.g., when the prejudicial effect of evidence outweighs its probative value, Driscoll v. The Queen (1977) 137 CLR 517 at 523, 541; Alexander v. The Queen (1981) 145 CLR 395 at 402-403, 417-418, 428-430, 435; Sutton v. The Queen (1984) 152 CLR 528 at 534, 558-559, 565; Doney v. The Queen (1990) 171 CLR 207 at 212.

33 See, e.g., Barton v. The Queen (1980) 147 CLR 75 at 96, 103, 107, 109; Jago v. District Court (N.S.W.) (1989) 168 CLR 23 at 30, 56, 71, 77; Williams v. Spautz (1992) 174 CLR 509 at 518-519; Dietrich v. The Queen (1992) 177 CLR 292 at 311, 332.

34 Reg. v. Dugan (1984) 2 NSWLR 554; Hunt v. Wark (1985) 40 SASR 489; Reg. v. Vuckov and Romeo (1986) 40 SASR 498; Reg. v. Romeo (1987) 45 SASR at 218-220; D'Arrigo (1991) 58 A Crim R 71; Stead (1992) 62 A Crim R 40; Reg. v. Venn-Brown (1991) 1 Qd R 458; Papoulias (1987) 31 A Crim R 322; cf. Reg. v. Hsing (1991) 25 NSWLR 685; Thompson and Thompson (1991) 58 A Crim R 451; Coward (1985) 16 A Crim R 257; Reg. v. Weston and Lee, unreported, Supreme Court of Tasmania, Crawford J, 11 July 1991.

35 (1932) 287 US at 453-459.

36 (1958) 356 US at 378-385.

37 Sorrells v. United States (1932) 287 US at 457; Sherman v. United States (1958) 356 US at 385.

38 (1958) 356 US at 380.

39 (1943) 318 US 332 at 341.

40 (1958) 356 US at 385.

41 (1932) 287 US at 457.

42 (1973) 411 US at 436ff. and 439ff.

43 See Reg. v. O'Shannessy, unreported, Court of Appeal, 8 October 1973; Reg. v. Capner (1975) 1 NZLR 411; Reg. v. Pethig (1977) 1 NZLR at 450; Police v. Lavalle (1979) 1 NZLR at 48; Reg. v. Katipa (1986) 2 NZLR at 125.

44 (1988) 44 CCC (3d) 513.

45 (1980) AC 402.

46 ibid. at 436.

47 See Police and Criminal Evidence Act 1984 (U.K.), ss.78, 82(3); Smurthwaite and Gill (1994) 98 Cr App R 437 at 440-441.

48 (1970) 126 CLR 321.

49 (1978) 141 CLR 54.

50 (1982) 151 CLR 1.

51 (1992) 176 CLR 177.

52 (1988) 44 CCC (3d) at 541.

53 (1970) 126 CLR at 334-335.

54 (1978) 141 CLR at 75.

55 ibid., referring to the judgment of Dixon CJ in Wendo v. The Queen (1963) 109 CLR 559 at 562.

56 See, e.g., Cleland v. The Queen (1982) 151 CLR at 16-17, 19-20, 31-32; Pollard v. The Queen (1992) 176 CLR at 196.

57 See, in particular, Reg. v. Ireland (1970) 126 CLR at 334-335; Bunning v. Cross (1978) 141 CLR at 74-78; Pollard v. The Queen (1992) 176 CLR at 203-204.

58 See, e.g., Bunning v. Cross (1978) 141 CLR at 77-78; Pollard v. The Queen (1992) 176 CLR at 202-203.

59 A phrase used by Frankfurter J in Sherman v. United States (1958) 356 US at 383.

60 See, e.g., D'Arrigo (1991) 58 A Crim R 71.

61 ibid. at 73.

62 Reg. v. Mack (1988) 44 CCC (3d) at 542.

63 ibid., quoting Estey J in Amato v. The Queen (1982) 69 CCC (2d) at 73.

64 Sloane (1990) 49 A Crim R 270; Reg. v. Hsing (1991) 25 NSWLR 685; Thompson and Thompson (1992) 58 A Crim R 451; Reg. v. Steffan (1993) 30 NSWLR 633; Reg. v. Vuckov and Romeo (1986) 40 SASR 498.

65 cf. Reg. v. Vuckov and Romeo (1986) 40 SASR at 518 per Cox J

66 s.233B(2).

67 See Controlled Substances Act 1984 (S.A.) (as at December 1989), s.31(1)(a) and 2(b).

68 ibid., s.32(1)(e) and (5)(b)(i). And note that, under s.32(3), possession of more than a prescribed amount of heroin leads to a prima facie deeming of possession for the purpose of sale or supply. Further, the evidence discloses that the appellant viewed on-sale of the heroin as a viable method of providing Lee with the balance of the originally negotiated purchase price.

69 The offence under s.233B(1)(ca) of being in possession of heroin "reasonably suspected of having been imported into Australia in contravention of this Act".

70 See Judiciary Act 1903 (Cth), s.37.

71 In contravention of s.233B(1)(b) which reads:

"imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies".

72 (1978) 141 CLR 54.

73 He Kaw Teh v. The Queen (1985) 157 CLR 523.

74 Reg. v. Tawill (1974) VR 84 at 88-89. It is unnecessary to consider whether duress does or can overbear the will so as to negative mens rea or whether duress is a distinct defence recognized historically by the common law: see D.P.P. v. Lynch (1975) AC 653 at 679-680.

75 See, for example, Reg. v. Hsing (1991) 25 NSWLR 685 at 689; Reg. v. Venn-Brown (1991) 1 Qd R 458 at 467; Hunt v. Wark (1985) 40 SASR 489 at 492; Reg. v. Vuckov (1986) 40 SASR 498 at 511; Reg. v. Romeo (1987) 45 SASR 212 at 218, 239 (cf. at 227); Papoulias (1987) 31 A Crim R 322 at 327 (Victoria); Coward (1985) 16 A Crim R 257 at 260-261, 267-268 (Western Australia).

76 Reg. v. Sang (1980) AC 402 at 432, 441, 443, 445, 451.

77 Reg. v. Mack (1988) 44 CCC (3d) 513 at 525-526.

78 Sorrells v. United States (1932) 287 US 435; Sherman v. United States (1958) 356 US 369.

79 Williams v. Spautz (1992) 174 CLR 509 at 533-537.

80 (1989) 168 CLR 23 at 47-48.

81 (1933) 287 US 435 at 446-448.

82 ibid. at 448.

83 ibid. at 449; but cf. the basis of the minority concurring opinion in Sherman v. United States (1958) 356 US at 380.

84 (1916) 242 US 27 at 42.

85 ibid. at 450.

86 Reg. v. Vuckov (1986) 40 SASR at 518, 519; Reg. v. Hsing (1991) 25 NSWLR at 694-696; Thompson and Thompson (1992) 58 A Crim R 451 at 453-454.

87 (1978) 141 CLR 54.

88 (1970) 126 CLR 321 at 335.

89 (1978) 141 CLR at 74-75.

90 (1970) 126 CLR at 335.

91 (1978) 141 CLR at 76.

92 (1969) 1 AC 304.

93 (1990) 49 A Crim R 270 at 272-273.

94 (1979) 1 NZLR 45.

95 (1958) 356 US at 372-373.

96 Ireland (1970) 126 CLR at 334; Bunning v. Cross (1978) 141 CLR at 66; Cleland v. The Queen (1982) 151 CLR 1 at 9.

97 (1978) 141 CLR at 74.

98 ibid. at 77.

99 ibid. at 78.

100 (1927) 277 US 438 at 470.

101 (1965) Ir R 142 at 160.

102 (1978) 141 CLR at 75; see also Ireland (1970) 126 CLR at 334-335.

103 s.235(2)(d)(i) and Sched. VI of the Customs Act.

104 Sched.VI.

105 Accordingly, as a matter of law no inference of illegal importation based on the foreign source of heroin found in Australia could have been drawn.

106 Clough v. Leahy (1904) 2 CLR 139 at 155-156; A. v. Hayden (No.2) (1984) 156 CLR 532 at 540, 562, 580-582, 588-589, 592.

107 s.233B(1)(c).

108 s.233B(1)(aa).

109 s.233B(1)(d).

110 Reg. v. Ridgeway (1993) 60 SASR 207.

111 (1993) 67 ALJR 550; 113 ALR 1.

112 ibid. at 554; ALR at 7.

113 Bunning v. Cross (1978) 141 CLR 54 at 77 per Stephen and Aickin JJ

114 ibid. at 77-78; Pollard v. The Queen (1992) 176 CLR 177 at 203.

115 (1993) 67 ALJR at 557; 113 ALR at 10.

116 Bunning v. Cross (1978) 141 CLR at 78; Pollard v. The Queen (1992) 176 CLR at 204.

117 The Queen v. Ireland (1970) 126 CLR 321 at 334 per Barwick CJ

118 Thompson and Thompson (1992) 58 A Crim R 451 at 453 per Hunt CJ at CL.

119 Reg. v. Vuckov and Romeo (1986) 40 SASR 498 at 518.

120 (1991) 25 NSWLR 685 at 694.

121 ibid. at 696. See also Sloane (1990) 49 A Crim R 270.

122 (1982) 69 CCC (2d) 31 at 61.

123 (1988) 44 CCC (3d) 513 at 526.

124 (1958) 356 US 369 at 372.

125 Sloane (1990) 49 A Crim R 270.

126 (1984) 156 CLR 532 at 540.

127 In strictness, it should be said that the Court of Criminal Appeal was invited by the parties to look afresh at the application made for a stay in the District Court and to exercise its own discretion.

128 Barton v. The Queen (1980) 147 CLR 75; Jago v. District Court (N.S.W.) (1989) 168 CLR 23; Williams v. Spautz (1992) 174 CLR 509; Walton v. Gardiner (1993) 177 CLR 378.

129 (1964) AC 1254 at 1354.

130 Walton v. Gardiner (1993) 177 CLR at 395.

131 Mack (1988) 44 CCC (3d) at 525.

132 (1982) AC 529 at 536.

133 (1989) 168 CLR at 72.

134 (1988) 44 CCC (3d) at 539.

135 (1980) 1 NZLR 464 at 482.

136 (1980) AC 402.

137 ibid. at 455. See also Reg. v. Humphrys (1977) AC 1 at 46 per Lord Salmon, 24-26 per Viscount Dilhorne.

138 (1980) 1 NZLR at 470-471.

139 (1992) 2 Qd R 572.

140 Paciocco, "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept", (1991) 15 Criminal Law Journal 315 at 341.

141 (1993) 67 ALJR at 557; 113 ALR at 10.

142 (1991) 58 A Crim R 71 at 79.

143 cf. Stead (1992) 62 A Crim R 40.

144 Bunning v. Cross (1978) 141 CLR at 74.

145 As in D'Arrigo (1991) 58 A Crim R 71.

146 The prohibited imports to which s.233B applies are "narcotic goods" (sub-s.(2)). These are defined in s.4 to be goods consisting of a "narcotic substance", which in turn is defined to be a substance so declared by the regulations or a substance named in Sched.VI to the Act. By that Schedule as in force in 1989, heroin was a "narcotic substance", a "trafficable quantity" of which was 2 grams.

147 See, for example, in relation to the reasonable suspicion required by s.233B(1)(ca), Tucs v. Manley (1985) 62 ALR 460 at 461, 465; cf. at 477-478.

148 It is unclear whether the ruling that the application was out of time was made by reference to r.26 of the District Criminal Court Rules 1986 (which were in force when the information was filed) or r.8.02 of the District Court Rules 1992 (which were in force at the time of the application before Burnett J). Each of those provisions substantially provides that unless the Court otherwise directs, the application is to be made before the accused pleads to the charges which are the subject of the application.

149 Ministerial Agreement made in June 1987, between the Minister for Industry, Technology and Commerce and the Special Minister of State concerning the relationship between the Australian Customs Service on the one hand, and the National Crime Authority and the Australian Federal Police on the other, with respect to Narcotic Drug Law Enforcement, par.D7.

150 Par.D8.

151 (1993) 60 SASR 207 at 215.

152 ibid. at 239. This was seen as a material consideration in D'Arrigo (1991) 58 A Crim R 71 at 79 per Dowsett J, a case in which evidence was excluded because of the illegal activities of an informant who, at the request of law enforcement agents, had infiltrated a ring of car thieves.

153 ibid. citing Samuels JA in Reg. v. Hsing (1991) 25 NSWLR 685 at 697.

154 ibid.

155 See Reg. v. Ireland (1970) 126 CLR 321 at 334-335; Bunning v. Cross (1978) 141 CLR 54 at 74-80; Cleland v. The Queen (1982) 151 CLR 1 at 19-20, 23; Pollard v. The Queen (1992) 176 CLR 177 at 184, 196, 201-205; Foster v. The Queen (1993) 67 ALJR 550 at 554, 557; 113 ALR 1 at 7, 10.

156 (1958) 356 US 369 at 384.

157 (1990) 49 A Crim R 270 at 272-273.

158 Unreported, 5 March 1991.

159 Note that no claim of "entrapment" was made in D'Arrigo (1991) 58 A Crim R 71 or Stead (1992) 62 A Crim R 40, where there had been infiltration of this kind. See also Reg. v. Chow (1987) 11 NSWLR 561 at 565, 568-569.

160 See, for example, Reg. v. Hsing (1991) 25 NSWLR at 697; Thompson and Thompson (1992) 58 A Crim R 451 at 455; Reg. v. Steffan (1993) 30 NSWLR 633 at 643; Papoulias (1987) 31 A Crim R 322 at 328. cf. Reg. v. Veneman and Leigh (1970) SASR 506 at 507. See also Jacobson v. United States (1992) 118 L Ed 2d 174 at 185.

161 (1978) 141 CLR at 74-80. See also fn.155 supra.

162 See, for example, Reg. v. Hsing (1991) 25 NSWLR at 689; Reg. v. Venn-Brown (1991) 1 Qd R 458 at 467; Hunt v. Wark (1985) 40 SASR 489 at 492; Reg. v. Vuckov and Romeo (1986) 40 SASR 498 at 511; Reg. v. Romeo (1987) 45 SASR 212 at 218, 239 (cf. at 227); Papoulias (1987) 31 A Crim R at 327; Coward (1985) 16 A Crim R 257 at 260-261, 267-268; Reg. v. Steffan (1993) 30 NSWLR at 643.

163 See, for example, Reg. v. Vuckov and Romeo (1986) 40 SASR at 510-511; Reg. v. Romeo (1987) 45 SASR at 218, 239 (cf. at 227); Papoulias (1987) 31 A Crim R at 327; Reg. v. Steffan (1993) 30 NSWLR at 643. See also Reg. v. Hsing (1991) 25 NSWLR at 689-690.

164 See, for example, Sloane (1990) 49 A Crim R at 272; Reg. v. Hsing (1991) 25 NSWLR at 696; Yooyen (1991) 57 A Crim R 226 at 234; Thompson and Thompson (1992) 58 A Crim R at 453-454; Reg. v. Steffan (1993) 30 NSWLR at 643. See also Reg. v. Vuckov and Romeo (1986) 40 SASR at 522.

165 See, for example, Hunt v. Wark (1985) 40 SASR at 492-493; D'Arrigo (1991) 58 A Crim R at 77, 78-79; Reg. v. Vuckov and Romeo (1986) 40 SASR at 514, 523-524; Reg. v. Romeo (1987) 45 SASR at 218-220, 239; Reg. v. Venn-Brown (1991) 1 Qd R at 466-469; Papoulias (1987) 31 A Crim R at 327-328; Coward (1985) 16 A Crim R at 261, cf. at 263-264, 265-267; Reg. v. Weston and Lee unreported, Supreme Court of Tasmania, 11 July 1991 at 9 per Crawford J See also Reg. v. Dugan (1984) 2 NSWLR 554 at 558-559, 563-564. See further Reg. v. Pethig (1977) 1 NZLR 448 at 450; Police v. Lavalle (1979) 1 NZLR 45 at 48; Reg. v. Katipa (1986) 2 NZLR 121 at 125.

166 Sloane (1990) 49 A Crim R at 273. See also Reg. v. Hsing (1991) 25 NSWLR at 693, 696; Thompson and Thompson (1992) 58 A Crim R at 454; Reg. v. Steffan (1993) 30 NSWLR at 643. See further, Reg. v. Chow (1987) 11 NSWLR at 568; Yooyen (1991) 57 A Crim R at 234; Hunt v. Wark (1985) 40 SASR at 493; Reg. v. Vuckov and Romeo (1986) 40 SASR at 522-523; Coward (1985) 16 A Crim R at 260; Reg. v. Venn-Brown (1991) 1 Qd R at 469.

167 (1980) AC 402 at 432, 441, 443, 445, 451.

168 (1988) 44 CCC (3d) 513 at 525-526.

169 Sorrells v. United States (1932) 287 US 435 at 442. See also Sherman v. United States (1958) 356 US at 372-373; United States v. Russell (1973) 411 US 423 at 427 fn.4, 433-435; Hampton v. United States (1976) 425 US 484 at 488-491, 495, fn.7; Mathews v. United States (1988) 485 US 58 at 62-63, 67; Jacobson v. United States (1992) 118 L Ed 2d at 184-185, 187, 189-191.

170 Reg. v. Mack (1988) 44 CCC (3d) at 555.

171 ibid.

172 Grossman v. State of Alaska (1969) 457 P 2d 226 at 229. See further, Paton, "'The Government Made Me Do It': A Proposed Approach to Entrapment Under Jacobson v. United States", (1994) 79 Cornell Law Review 995 at 1002-1005.

173 Reg. v. Sang (1980) AC at 443 per Lord Salmon. See also Sherman v. United States (1958) 356 US at 379-380 per Frankfurter J; United States v. Russell (1973) 411 US at 434 per Rehnquist J And see the discussion of culpability, justification and excuse in Reg. v. Mack (1988) 44 CCC at 542-546.

174 See Sorrells v. United States (1932) 287 US at 446-449, 450-451, 452; Sherman v. United States (1958) 356 US at 372; United States v. Russell (1973) 411 US at 433-434; Jacobson v. United States (1992) 118 L Ed 2d at 187.

175 See fn.173.

176 See A. v. Hayden (No.2) (1984) 156 CLR 532 at 540, 550, 562, 573-574, 580-582, 592-593. See also Bropho v. Western Australia (1990) 171 CLR 1 at 21. By the Bill of Rights, the power to dispense with laws by executive authority was abolished: 1 Will. and Mar. 2 c.2.

177 See Metropolitan Bank Ltd. v. Pooley (1885) 10 App Cas 210 at 214, 220-221; Barton v. The Queen (1980) 147 CLR 75 at 96, 103, 107, 109; Jago v. District Court (N.S.W.) (1989) 168 CLR 23; Williams v. Spautz (1992) 174 CLR 509; Walton v. Gardiner (1993) 177 CLR 378.

178 See Reg. v. Humphrys (1977) AC 1 at 46, 53-55, cf. at 26; Barton v. The Queen (1980) 147 CLR at 94-97, 110-111. See also Jago v. District Court (N.S.W.) (1989) 168 CLR at 28-29, 39, 61, 77; Williams v. Spautz (1992) 174 CLR at 548.

179 See Williams v. Spautz (1992) 174 CLR at 518, fn.22.

180 See Moevao v. Department of Labour (1980) 1 NZLR 464 at 481, cited in Jago v. District Court (N.S.W.) (1989) 168 CLR at 30, in Williams v. Spautz (1992) 174 CLR at 520, in Walton v. Gardiner (1993) 177 CLR at 394.

181 See Walton v. Gardiner (1993) 177 CLR at 392-393.

182 Williams v. Spautz (1992) 174 CLR 509.

183 See, for example, Metropolitan Bank v. Pooley (1885) 10 App Cas 210.

184 See, for example, Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 at 242-243, 246-247, and the cases there cited.

185 Hamilton v. Oades (1989) 166 CLR 486 at 502, citing Jackson v. Sterling Industries Ltd. (1987) 162 CLR 612 at 639 and Tringali v. Stewardson Stubbs and Collett Ltd. (1966) 66 SR (NSW) 335 at 340, 344. See also Jago v. District Court (N.S.W.) (1989) 168 CLR at 25-26, 47-48, 74; Walton v. Gardiner (1993) 177 CLR at 393-395; Rogers v. The Queen (1994) 68 ALJR 688 at 689, 706, 123 ALR 417 at 419, 443.

186 See Dietrich v. The Queen (1992) 177 CLR 292 at 328-329, 364.

187 As to what constitutes improper purpose, see Williams v. Spautz (1992) 174 CLR at 526-530, 532-537, 553-556; see also at 543-551.

188 Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR at 247.

189 Hamilton v. Oades (1989) 166 CLR at 502.

190 As to the concept of "fair trial", see Dietrich v. The Queen (1992) 177 CLR at 299-300, 326-329, 353, 362-365 and the cases and authors there cited.

191 (1992) 174 CLR at 519-520; 552-553; cf. at 546-548.

192 ibid. at 519-521, 552-553; see also at 531.

193 (1993) 177 CLR at 392-393.

194 (1989) 168 CLR at 58, cited in Walton v. Gardiner (1993) 177 CLR at 394.

195 See Williams v. Spautz (1992) 174 CLR at 529.

196 As to questions of causation in another context, see March v. Stramare (E. and M.H.) Pty. Ltd. (1991) 171 CLR 506.

197 See Judiciary Act 1903 (Cth), s.37.

198 s.233B(1)(c).

199 (1980) AC 402 at 443.

200 (1984) 156 CLR 532 at 540.

201 Reg. v. Vuckov (1986) 40 SASR 498; Papoulias (1987) 31 A Crim R 322; Sloane (1990) 49 A Crim R 270; Reg. v. Hsing (1991) 25 NSWLR 685; Thompson and Thompson (1992) 58 A Crim R 451; Reg. v. Venn-Brown (1991) 1 Qd R 458; D'Arrigo (1991) 58 A Crim R 71; Stead (1992) 62 A Crim R 40; Reg. v. Steffan (1993) 30 NSWLR 633.

202 Reg. v. Katipa (1986) 2 NZLR 121 at 125.

203 Amato v. The Queen (1982) 69 CCC (2d) 31; Reg. v. Mack (1988) 44 CCC (3d) 513.

204 Sorrells v. United States (1932) 287 US 435; Sherman v. United States (1958) 356 US 369; United States v. Russell (1973) 411 US 423; Hampton v. United States (1976) 425 US 484; United States v. Myers (1982) 692 F 2d 823.

205 (1932) 287 US at 442.

206 (1958) 356 US at 372-373.

207 Reg. v. Ireland (1970) 126 CLR 321 at 335; Bunning v. Cross (1978) 141 CLR 54 at 72; Cleland v. The Queen (1982) 151 CLR 1 at 19-20, 23; Foster v. The Queen (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7.

208 Bunning v. Cross (1978) 141 CLR at 74.

209 ibid. at 74-75.

210 ibid. at 75.

211 (1993) 67 ALJR 550; 113 ALR 1.

212 In Foster, the public policy discretion was used as the ground for excluding confessional evidence.

213 Ireland (1970) 126 CLR 321; Bunning (1978) 141 CLR 54, Cleland (1982) 151 CLR 1; Foster (1993) 67 ALJR 550; 113 ALR 1.

214 (1991) 58 A Crim R 71.

215 In Vuckov (1986) 40 SASR 498, Cox J also thought that the public policy discretion was applicable in entrapment cases.

216 D'Arrigo (1991) 58 A Crim R at 79.

217 (1992) 62 A Crim R 40.

218 Amato (1982) 69 CCC (2d) at 61; Reg. v. Jewitt (1982) 21 CCC (3d) 7 at 23; Mack (1988) 44 CCC (3d) at 525-526; Hsing (1991) 25 NSWLR at 696.

219 (1957) 356 US at 384.

220 Reg. v. Kirzner (1977) 38 CCC (2d) 131 at 134 -136 cited in Vuckov (1986) 40 SASR at 502-504; Sherman (1958) 356 US at 372.

221 cf. Fisse, Howard's Criminal Law, 5th ed. (1990) at 580-581.

222 Controlled Substances Act 1984 (S.A.), s.32(1)(e) and s.32(5)(b)(ii).

223 Amato (1982) 69 CCC (2d) at 61; Jewitt (1982) 21 CCC (3d) at 23; Mack (1988) 44 CCC (3d) at 525-526; Hsing (1991) 25 NSWLR at 696.

224 Jago v. District Court (N.S.W.) (1989) 168 CLR 23.

225 (1964) AC 1254 at 1354.

226 (1932) 287 US at 457.

227 Sloane (1990) 49 A Crim R at 272; Hsing (1991) 25 NSWLR at 695-696; Thompson and Thompson (1992) 58 A Crim R at 454; Steffan (1993) 30 NSWLR at 641.

228 Amato (1982) 69 CCC (2d) at 61; Mack (1988) 44 CCC (3d) at 525-526.
229 (1988) 44 CCC (3d) at 542.

230 (1990) 49 A Crim R at 272-273.

231 Hsing (1991) 25 NSWLR at 693; Thompson and Thompson (1992) 58 A Crim R at 454; Steffan (1993) 30 NSWLR at 643.

232 Sorrells (1932) 287 US at 448; Sherman (1958) 356 US at 376; Russell (1973) 411 US at 428-429; Hampton (1976) 425 US at 488-489.

233 (1958) 356 US at 382-383.

234 ibid. at 383-384.

235 (1991) 25 NSWLR at 691, 693.

236 See generally Fisse, op. cit. at 578.

237 See, for example, Kirzner (1977) 38 CCC (2d) 131; Jewitt (1983) 21 CCC (3d) 7; Mack (1988) 44 CCC (3d) 513.

238 Mack (1988) 44 CCC (3d) at 552.

239 ibid. at 559.

240 ibid. at 555.

241 Reg. v. Dugan (1984) 2 NSWLR 554 at 558; D'Arrigo (1991) 58 A Crim R at 78.

242 cf. Mack (1988) 44 CCC (3d) at 539.

243 Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR 106 at 138.

244 Mack (1988) 44 CCC (3d) at 541.

245 United States v. Jannotti (1982) 673 F 2d 578 at 612-613, cited in Gershman, "Abscam, the Judiciary, and the Ethics of Entrapment", (1982) 91 Yale Law Journal 1565 at 1585.

246 Heydon, "The Problems of Entrapment", (1973) Cambridge Law Journal 268 at 283; Seidman, "The Supreme Court, Entrapment, And Our Criminal Justice Dilemma", (1981) Supreme Court Review 111 at 142.

247 See Heydon, op. cit. at 282-283 and cf. the facts in the Abscam entrapments in Myers (1982) 692 F 2d 823.