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[2009] ACTSC 63
procedural. The application to exclude the evidence was refused. Higgins CJ found no demonstrated breach of Australian law or impropriety enlivening Evidence Act s 138; alternatively, he would have admitted...
Stubbs asked the ACT Supreme Court to keep out online conversations with a police officer who had pretended to be a 14-year-old girl. The judge found that the officer's conduct did not break Australian law or cross the line into improper entrapment. The judge added that, even if the officer had participated in the alleged offending, the conversations were important and reliable evidence and the public interest in investigating online sexual grooming supported admitting them. The ruling dealt only with admissibility before trial, not whether Stubbs was guilty.
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2,327 words · generated 28/09/2026
In R v Stubbs [2009] ACTSC 63, Higgins CJ of the Supreme Court of the ACT decided a pre-trial application about whether online communications could be used as evidence at Stubbs's trial. The ruling was not a determination of guilt. It addressed the admissibility of communications gathered during an undercover investigation.
2 cited instruments linked from this judgment.
Stubbs faced two counts under the Criminal Code 1995 (Cth). The first alleged that, between 21 August 2007 and 21 January 2008, he used a carriage service intending to procure a person he believed was under 16 to engage in or submit to sexual activity with him. The second alleged that he used a carriage service in a way reasonable people would regard as offensive in all the circumstances ([2], [5]). Stubbs pleaded not guilty on 5 February 2009 ([3]).
The other participant in the online exchanges was Detective Stephen Waugh of the New Zealand Police. He used the fictitious identity “missTufsey14, Roxanne Taylor” and represented himself as a 14-year-old girl ([9]-[10]). The communications took place by email and online chat, including from Stubbs's workplace and public internet locations ([8]). The judgment records that Stubbs became increasingly sexually suggestive, asked for nude photographs and gave “Roxanne” detailed instructions about masturbation ([11]-[12]). He later referred to sexual activity if they met in Australia, including oral sex and a hotel room ([15]-[16]).
On 18 January 2008, Stubbs said the communications were wrong and that there should be no sexual activity or meeting. He nevertheless later arranged to meet “Roxanne” at the Jolimont Centre. Police apprehended him there. He admitted being at the centre to meet “Roxanne”, denied intending sexual activity, and acknowledged having indulged in fantasies and sending communications with sexual content ([17]-[20]).
Stubbs sought to exclude the communications under s 138 of the Evidence Act 1995 (Cth). His argument included that Detective Waugh's conduct was unlawful or improper, amounted to aiding and abetting, and involved entrapment ([21]-[23]). The court refused the application ([72]).
The court's primary reasoning was that the evidence had not been shown to have been obtained through a breach of Australian law or relevant impropriety. Section 138 applies to evidence obtained improperly or in contravention of Australian law and requires a balance between the desirability and undesirability of admission ([22]). Higgins CJ noted that the relevant considerations were generally similar to those identified in Bunning v Cross, including the evidence's importance and probative value and the gravity and deliberateness of any impropriety ([33]).
The court rejected the suggestion that Detective Waugh's receipt of communications directed to “Roxanne” itself breached s 474.5 of the Criminal Code. The accused intended to communicate with the person actually responding, although he mistakenly believed that person was a 14-year-old girl ([24]-[25]). The judge also distinguished the serious offence alleged in count one from the offensive-communications offence in count two when discussing provisions that concern using a carriage service to facilitate a serious offence ([26]-[28]).
The central question became whether the officer encouraged, enticed or procured the charged conduct. The judge accepted that “procure” for the relevant Criminal Code provisions could include encouraging or enticing activity. But continuing a conversation with someone who was already trying to encourage or entice the supposed recipient to engage in sexual activity did not, by itself, necessarily amount to procurement ([48]). The judge treated the content of the interaction as critical ([45]).
The judgment drew a distinction between providing an opportunity to offend and improperly inducing an offence. In a passage from Dau v Emanuele, quoted at [51], the court recognised that police investigations may legitimately involve subterfuge, deceit and the creation of opportunities for offending. It also recognised a boundary: conduct involving harassment or manipulation clearly inconsistent with minimum standards of acceptable police conduct may be improper. The passage further states that, in this setting, the conduct must have procured the charged offence before the discretion to exclude evidence arises.
On the facts, Waugh used a fictitious persona but did not represent that “Roxanne” wanted to engage in sexual activity with an adult ([53]). The judgment records that the accused's communications became sexually explicit and that he proposed sexual activity. It also acknowledges that “Roxanne's” responses might include some persuasion rather than simply passive acceptance ([60]). Nevertheless, Higgins CJ concluded that the conduct remained within permissible investigative bounds and that no breach of Australian law or relevant impropriety had been demonstrated ([65]-[66]).
The judge gave a separate, alternative reason for the outcome. Even if Waugh could be regarded as aiding and abetting the alleged offensive communications, the judge would have admitted the evidence under s 138 ([67]). The communications were electronically recorded, had high probative value, were central to the prosecution case and were unlikely seriously to be disputed ([68]). The judgment also considered the public importance of detecting online attempts to groom and sexually exploit children, and the difficulty of obtaining evidence without a covert operation ([69]-[71]). In that balance, any impropriety was not grave and the accused remained free to stop communicating or choose the content of his communications ([71]).
The judgment did not purport to create a general legal permission for any undercover tactic. It applied existing principles about entrapment, improper evidence gathering and s 138 to a specific factual record. Its treatment of Ridgeway v The Queen is important: the court described Ridgeway as rejecting entrapment as a defence at common law, while recognising that entrapment-like conduct can have consequences for law enforcement and may lead to evidence being excluded ([28]-[32]).
The judgment also distinguished the facts of Ridgeway. There, police agents had purchased and imported heroin to create a situation in which the accused might be induced to take delivery. The conduct was itself unlawful, although sanctioned by police authorities ([52]). By contrast, Higgins CJ found that Detective Waugh did nothing unlawful merely by pretending to be a 14-year-old girl, and he did not represent “Roxanne” as a young person seeking sexual activity with adult men ([53]).
The judgment placed this reasoning alongside statutory provisions for controlled operations and assumed identities in the Crimes Act 1914 (Cth). It considered that those provisions could protect authorised officers from criminal liability, but would not automatically prevent s 138 from applying if police conduct were otherwise improper ([31], [50]). Conversely, if officers had not contravened a law or acted improperly, an authorisation was not needed to preserve admissibility in this case ([62]-[66]). The judge also relied on Gedeon for the observation that the controlled-operations regime was directed principally to illicit goods and did not displace s 138 ([63]).
The decision's stated “after” position is therefore limited: on the facts before Higgins CJ, a decoy profile and continued online communications did not engage s 138 where the police conduct was not unlawful or sufficiently improper, and the evidence would in any event have been admitted on the statutory balance. The judgment does not establish that every online decoy operation is lawful or that any degree of inducement is acceptable. It emphasises the context, the conduct's degree, and whether the police procured the particular offence charged ([51], [65]-[68]).
At [51], the judgment quotes the proposition that it is “neither practicable nor desirable” to define precisely the boundary between acceptable and improper police conduct. In plain English, the assessment is contextual. The court must examine what the officers did, the nature of the suspected conduct, the justification for the investigation and the degree of pressure or manipulation. That passage is quoted from Dau v Emanuele, which in turn applies Ridgeway; it is not a new standalone test formulated wholly within Stubbs.
At [53], Higgins CJ says Detective Waugh “did nothing unlawful in pretending to be a 14 year old girl”. The significance is narrow. The court did not treat the false identity alone as unlawful. It also noted that the officer did not portray Roxanne as wishing to engage in sexual activity with adult men. The statement should not be detached from those factual qualifications.
At [66], the judge states that there was no demonstrated breach of Australian law or impropriety that should enliven s 138. This is the primary conclusion on the exclusion application. It does not decide whether the accused committed either offence.
At [67]-[68], the judge sets out the alternative admissibility reasoning. Even assuming some involvement by Waugh in the alleged offending, the recorded communications were highly probative and central to the prosecution case. In plain language, the evidence was important, directly relevant to what the accused said, and preserved electronically.
At [71], Higgins CJ considers the seriousness and consequences of any possible impropriety. He reasoned that the accused could choose whether to chat and what to say, and that any encouragement to expose intentions would not be grave in the circumstances. The paragraph also expresses the view that an adult decoy avoids exposing an actual child to the communications. These are the judge's evaluative observations supporting the alternative s 138 balance, not a guarantee that every decoy operation will satisfy that balance.
The case is most closely relevant where a court is considering s 138 and the evidence comes from an undercover online investigation using an adult police officer's fictitious child identity. Its relevance is strongest where the issue is whether the officer merely created an opportunity to communicate, or instead crossed into pressure, manipulation or procurement of the charged offence.
Facts that mattered to the judge included the accused's progression to sexually explicit communications, his proposals about meeting and sexual activity, the officer's use of a fictitious identity, and the nature of the officer's responses ([9]-[16], [43], [45]-[48]). The court also considered that the officer did not offer sexual activity on behalf of Roxanne and did not portray her as seeking sex with an adult ([53]). It acknowledged the argument that there was some persuasion in the responses ([60]-[61]).
The decision may be less directly comparable if police initiate contact, solicit contact, post sexual references on a profile, offer sexual acts, apply substantial pressure, persist after a clear withdrawal, or otherwise induce conduct that the suspect would not have undertaken. The judgment describes the New Zealand policy as prohibiting investigators from initiating or soliciting contact, posting sexual references, offering sexual acts, or procuring an offence ([37]-[39]). It does not decide the legal consequences of every departure from that policy. It states that a statutory authorisation or internal policy does not itself settle the separate question of s 138 admissibility ([50], [63]-[66]).
The case is also relevant to a second-stage analysis where impropriety is assumed. It illustrates consideration of probative value, importance, gravity, effects on the accused's rights and the practical difficulty of obtaining evidence by other means ([67]-[71]). It should not be read as deciding the admissibility balance in a different case with materially more serious misconduct or weaker evidence.
The supplied judgment does not identify any later court treatment of R v Stubbs. It was delivered on 26 May 2009 and refers to other authorities available to Higgins CJ at that time. On the material provided, it is not possible to say whether later courts have followed, distinguished, applied or criticised this decision.
The judgment itself discusses earlier decisions. It explains Ridgeway and quotes Dau v Emanuele on the boundary between legitimate investigative tactics and impropriety ([30]-[33], [51]-[53]). It considers R v Gajjar, R v McGrath and R v Podger as examples involving police or fictional child personas in online grooming investigations ([54]-[55]). It also considers Sundai Sloane and Albert Salem in relation to the admissibility of evidence despite alleged police participation or encouragement ([57]-[58]).
For the statutory balance, Higgins CJ refers to Bunning v Cross ([33]) and Robinson v Woolworths Ltd ([59]-[61]). The judge uses R v Ladocki to explain the relationship between controlled-operation legislation and admissibility ([62]), and Gedeon when discussing the scope of that regime ([63]). These authorities are the judgment's own legal context, not evidence of how later courts treated Stubbs.
Several matters are expressly left to other decision-makers or are not resolved by the ruling. First, whether Stubbs's communications were “offensive” within s 474.17 was for a jury to decide ([12], [67]). The judge did not determine that element. The judgment also records the question whether Stubbs intended to carry through with what he proposed or was engaging in obscene conversation for self-gratification as a matter for the jury ([67]).
Second, the ruling did not decide guilt on either count. It addressed only whether the communications could be admitted at trial. The ultimate meaning and application of the evidence remained part of the trial process.
Third, the judgment's reasoning depends on its assessment of the interaction between Waugh and Stubbs. The decision recognises that some persuasion may have occurred ([60]-[61]), but does not provide a numerical or categorical point at which persuasion becomes improper. Instead, it adopts the contextual approach quoted at [51].
Fourth, the ruling does not comprehensively decide the legal consequences of an officer acting outside an internal policy, or of a foreign officer's conduct in every possible circumstance. The New Zealand policy was relevant evidence about investigative boundaries, but Higgins CJ's conclusion was framed around whether the conduct breached Australian law or constituted impropriety engaging s 138 ([37]-[39], [66]).
Finally, the alternative balancing conclusion is specific to evidence the judge regarded as highly probative, central to the case and electronically recorded, and to an investigation the judge regarded as addressing a serious public concern ([68]-[71]). The judgment leaves open how the balance would operate where the evidence is less reliable or important, the officer's conduct more coercive, the impropriety more grave, or the practical alternatives to the operation different.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
[2009] ACTSC 63 (26 May 2009)
CRIMINAL LAW - The Commonwealth Criminal Code 1995 (Cth) - procuring a person under 16 years of age to engage in or submit to sexual activity - using a carriage service to transmit offensive communications
EVIDENCE - Evidence Act 1995 (Cth) - discretion to exclude improperly or illegally obtained evidence - application to exclude telecommunications evidence - whether actions of police officer constituted "aiding and abetting" - whether actions of police officer constituted entrapment
EVIDENCE - covert operation - internet chat between undercover police operative and accused - overseas police officer - "controlled operations" - use of an assumed identity - appropriate principles and practice for the investigation of on-line grooming - public importance of such investigation - actions of police officer not unlawful
Commonwealth Criminal Code 1995 (Cth), ss 11.2(1), 473.1, 474.5(1)(b), 474.14(2), 474.17, 474.26, 474.27
Telecommunications Act 1997 (Cth), s 7
Evidence Act 1995 (Cth), s 138
Crimes Act 1914 (Cth), Pts 1AB, 1AC, 15 HB
The Holy Bible, Authorised Version, Matthew 18:6
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Emanuele v Dau (1996) 84 A Crim R 197;
Dau v Emanuele (1995) 60 FCR 270
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
R v Gajjar [2008] VSCA 268
R v McGrath [2005] QCA 463; [2006] 2 Qd R 58
R v Tyrell [1894] 1 QB 710
R v Whitehouse [1977] EWCA Crim 2; [1977] 1 QB 868
Sundai Sloane (1990) 49 A Crim R 270
Albert Salem (1997) 96 A Crim R 421
Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426; (2005) 227 ALR 353
R v Ladocki [2004] NSWCCA 336
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
R v Burdon; ex parte Attorney-General (Qld) [2005] QCA 147; (2005) 153 A Crim R 104
1. The application to exclude evidence be refused.
1. This is an application by the accused for a pre-trial ruling seeking the exclusion of certain evidence proposed to be led at trial.
2. By indictment dated 24 July 2008, the accused is charged on two counts:
... THAT between 21 August 2007 and 21 January 2008 at Canberra ... [he] ... being at least 18 years of age, used a carriage service to transmit communications to a person who [sic] he believed to be under the age of 16 years with the intention of procuring that person to engage in or submit to sexual activity with himself
AND FURTHER THAT between 21 August 2007 and 18 January 2008 he used a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive.
3. On 5 February 2009, the accused entered pleas of not guilty to those charges.
4. The facts alleged are contained in the "Case Statement" filed in this matter on behalf of the Commonwealth Director of Public Prosecutions (Cth DPP).
5. The allegations engage ss 474.26 and 474.17 of the Commonwealth Criminal Code 1995 (the Code), namely:
464.26 (1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.17 (1) A person is guilty of an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.
6. The term "carriage service" has nothing to do with transportation. It is defined by reference to the Telecommunications Act 1997 (Cth). In s 7 thereof, "carriage service" is defined as "... a service for carrying communications by means of guided and/or unguided electromagnetic energy."
7. "Communications" are widely defined to include transmission and receipt of "data", "text" or any other form or forms of communication.
8. The circumstances alleged to give rise to the offences in question arise out of operations conducted between 21 August 2007 and 21 January 2008 during which, utilising the internet, the accused communicated by way of email and online chat via computer not only at his work place but also from internet cafes and a library.
9. The other party to the communications was Detective Stephen Waugh of New Zealand Police based in Auckland who used a false identity, namely, "missTufsey14, Roxanne Taylor". For the purposes of this ruling it is assumed that the communications were in fact as represented by the case statement and proposed exhibit.
10. During the subsequent exchanges the accused revealed certain personal details about himself. Detective Waugh, in responding, represented himself to be a 14 year old girl. The accused gradually became more sexually suggestive.
11. During communications between 25 October 2007 and 14 December 2007, the accused was recorded as saying that he had been thinking about the sexual activity he would like to engage in with "Roxanne" if they could be alone together. He requested "Roxanne" to send naked pictures of herself to him.
12. On 16 November 2007 he gave "Roxanne" detailed instructions on how to masturbate. The terms of those communications could, in my view, properly be regarded as "offensive" to "reasonable persons". It is, of course, a question of fact for a jury whether they were so.
13. As to the first count, it is alleged that the communications relevant thereto commenced with "Roxanne" on 27 November 2007 referring to "Sam", a female friend, asking "Roxanne" to go to Australia with her. The accused responded during that and later communications expressing a desire to meet with "Roxanne" when she came to Australia.
14. Communications concerning secrecy urged by the accused would support a conclusion that the accused was aware that his communications were, at least, likely to be considered offensive. He referred, for example, to wanting to shower and undress "Roxanne".
15. On 8 January 2008 the accused communicated further explicit sexual references including stating he would like them to perform oral sex on each other when she came to Canberra. He included references to finding a hotel room near the bus terminal.
16. Up until 18 January 2008, when "Roxanne" was to meet the accused at Canberra, the communications were more sexually explicit and would support a conclusion that the accused was proposing to engage in sexual activity with "her".
17. During that day, the accused appears to have had a change of heart. He advises "Roxanne" that their communications were "wrong" and that there should not be any sexual activity nor should he meet with her.
18. "Roxanne" responded, accepting the "sex stuff" should not occur but stating that "she" would still like to meet him.
19. The accused subsequently arranged to meet "her" at the Jolimont Centre. "She" sent an email to the accused stating that "she" had arrived there. The accused was then seen apparently responding to this message.
20. He was apprehended by police and, on being questioned, admitted to being at the Jolimont Centre to meet "Roxanne". He denied any intention to engage in sexual activity with "Roxanne", though he conceded he had "indulged in fantasies" concerning such activity with "Roxanne". He agreed that some of his communications with "Roxanne" had "sexual content".
21. Clearly, central to the prosecution case, is the content of the communication between the accused and "Roxanne". That is the evidence the accused seeks to have excluded.
22. The grounds cited for the application to rule that the evidence of those communications should be excluded rely on s 138 of the Evidence Act 1995 (Cth) (Evidence Act):
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
23. The conduct of Detective Waugh is alleged to have constituted a breach of s 474.5 of the Code and s 474.14(2) as well as "aiding and abetting" the offences allegedly committed by the accused contrary to s 11.2(1) of the Code.
24. Section 474.5(1)(b) of the Code proscribes causing a "communication to be received by a person other than the person to whom it is directed". That suggests it was an offence under the Code for Detective Waugh to receive a communication directed to "Roxanne".
25. That suggestion can be immediately dismissed. It is clear that the accused, assuming him to be the responder to "Roxanne", could be found to have intended to correspond with that person, in truth being Detective Waugh, but mistakenly believed by the accused to be a 14 year old girl.
26. Sections 474.14(2) and 474.26 of the Code proscribe the use of a "carriage service" to facilitate the commission of a "serious offence". Under s 473.1 "serious offence against a law of the Commonwealth" means an offence punishable by imprisonment for a period of five or more years.
27. The offence in count one is such an offence. Count two is not.
28. The gravamen of the alleged breach of an Australian law is therefore the conduct of Detective Waugh in encouraging or facilitating the commission by the accused of the offences with which he is charged. It is further submitted that the evidence was obtained "improperly". That contention relies on Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 (Ridgeway). Ridgeway was concerned with the law's response to "entrapment".
29. "Entrapment" is defined as a situation in which a public official, usually a police officer, counsels or procures a person to commit an offence and that person is then charged with committing that offence. Evidence procured by that public official or officials would often be critical in the proof of the offence so counselled or procured.
30. Mason CJ, Deane and Dawson JJ at 27, firmly rejected the notion that the common law recognises entrapment as a defence to a charge. That is so, whether or not, the public officials in question have also committed an offence.
31. However, that does not imply that conduct amounting to entrapment has no adverse consequence for law enforcement agencies. It is clearly improper, indeed outrageous, for law enforcement agencies to procure criminal conduct even if it is believed that those procured had committed or would otherwise commit serious offences. That is so whether or not the conduct constitutes an offence by officers of such an agency. In that context, recent amendments to the Crimes Act 1914 (Cth) (Crimes Act) (Parts IAB and IAC) referring to "controlled operations" and "assumed identities", exempt authorised officers from criminal liability for, say, participating in operations involving importing illicit drugs or the giving of false names or the assumption of false identities. Nevertheless, whilst that conduct may not, as a result be in breach of an Australian law it could still amount to an impropriety engaging s 138 of the Evidence Act.
32. The consequences of such conduct may be to exclude evidence obtained. That is the relief sought by this application. I note that even where the evidence has been received, and a conviction recorded that conviction may be set aside and further proceedings stayed if the evidence is admitted but should have been excluded (see, for example, Emanuele v Dau (1996) 84 A Crim R 197; Dau v Emanuele (1995) 60 FCR 270). A decision to proceed by way of exclusion of evidence, or the grant of a stay, is a discretionary decision.
33. That discretion is defined by s 138 (1), (2) and (3). Generally, the matters there referred to are the same as those identified by the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 as relevant to the exclusion of evidence illegally or improperly obtained.
34. Prior to the hearing of this application the prosecution provided material detailing the correspondence between the accused and Detective Waugh posing as "Roxanne".
35. New Zealand police also provided details of their operation designed to track and identify paedophiles who used the world-wide web to target and groom children for sexual exploitation.
36. Detective Waugh was appointed to a trained police unit tasked with undertaking that operation. For that purpose he, and other police, would create an internet "decoy profile" of a child.
37. The unit adopted, in the absence of specific provisions under New Zealand law, a policy and procedure document entitled "Principles of Practice for Investigating On-Line Grooming of Children Under 16".
Objective
To develop and operate a safe and evidentially-robust capacity for pro-actively investigating and prosecuting the computer-facilitated sexual grooming of children under 16 in Auckland City District.
Authority
Auckland City District Crime Services Business Plan 2007-08, Strategy 3, Objective 10, Page 10. Tasks:
- Maintain partnerships with key stakeholders
- Increase in identification of paedophiles and prosecutions for their activity
Resources
To operative within the established staffing and funding of Auckland City District's Crime Services Business Group.
To seek the active co-operation of, and benefit from, the knowledge and experience of Department of Internal Affairs (DIA) Censorship Compliance Unit's internet crimes investigators.
Boundaries
(a) initiating contact with any person;
(b) soliciting contact with any person; or
(c) making or posting any sexual references of any sort on a profile page.
Administration
Responsibility for management of staff engaged in on-line child sexual grooming crime investigation remains with the Field Crime Manager at Crimes Services, Auckland City District Headquarters CIB.
39. The document does not directly address the issue of criminal conduct which might be committed overseas, though it clearly addresses the issue of entrapment. Police are, however, instructed not to engage in transmitting offensive material or to offer to engage in sexual acts. To quote the document:
Police investigators will not procure the commission of any offence, and will avoid any allegations that they have acted as "agent provocateur" by not:
(a) initiating contact with any person;
(b) soliciting contact with any person; or
(c) making or posting any sexual references of any sort on a profile page.
40. Evidence was tendered from Detective Sergeant Elias Petropolous of the Australian Federal Police. He was informed during September 2007 of New Zealand Police investigations involving the accused. He allocated Detective Senior Constable Simone Campbell to liaise with Detective Waugh on the matter.
41. He agreed that Detective Waugh conducted the investigation as he, Detective Waugh, saw fit though he kept Detective Sergeant Petropoulos informed.
42. Detective Sergeant Petropoulos was advised, he said, by the Commonwealth Director of Public Prosecutions that no authorisation for a "controlled operation" or use of a pseudonym by Detective Waugh was regarded as necessary. He did not consider, from the content of their conversations, that Detective Waugh was encouraging the accused to commit an offence. Thus he did not believe that any illegal act had been or was being counselled or procured nor, that there was any impropriety in Detective Waugh's dealings with the accused.
43. It is clear that Detective Waugh, in collaboration with Detective Sergeant Petropoulos, falsely represented to the accused that "Roxanne" was travelling to Australia and would meet with him at the Jolimont Centre. He was aware that the accused had suggested breaking off contact but that "Roxanne" had continued contact. He approved continued contact with a view to confirming that it was the accused who had been corresponding in a sexual manner with "Roxanne".
44. Detective Senior Constable Simone Louise Campbell was also called. So also was Federal Agent Anthony John Brennan.
45. Clearly, whether Detective Waugh counselled or procured the allegedly offending conduct of the accused can only be judged by the content of their interaction.
46. It was conceded by Mr Gill, I think rightly, that, for Detective Waugh to operate a fictitious persona to attract and deal with persons who may seek to procure young persons to engage in sexual activity with adult persons was a legitimate exercise.
47. However, it was Mr Gill's submission that, even if the conduct of Detective Waugh did not amount to entrapment, it was encouraging or enticing the accused to commit the offences in question.
48. Certainly, for the purposes at least of ss 474.26 and 474.27 of the Code, the term "procure" includes to "encourage or entice" the relevant activity. Is it doing so simply to continue correspondence with a person who clearly enough is endeavouring to "encourage or entice" the supposed recipient to engage in sexual activity?
49. An indication, Mr Gill submits, is that Part IAB of the Crimes Act expressly authorises a "controlled operation" including an operation by foreign police. That refers to an operation that would, otherwise constitute or involve an offence against Commonwealth law. Section 15 HB, Crimes Act, expressly refers to ss 474.26 and 474.27 of the Code though not s 474.17 although the latter may well be included in s 15 HB(1) Crimes Act.
50. However, those provisions, exempting an authorised police officer from criminal liability, would not, in my view, avoid the operation of s 138 of the Evidence Act if the conduct was either entrapment or otherwise an improper inducement or encouragement of a person to commit the offence charged. A similar observation may be made concerning Part IAC Crimes Act. Certainly, a certificate could have been applied for and was not, in respect of the correspondence between Detective Waugh, in his assumed identity of "Roxanne" and the accused.
51. The distinction to be made between merely gathering evidence and entrapment was explained by the Full Court of the Federal Court, applying Ridgeway, in Dau v Emanuele (1995) 60 FCR 270 at 284, citing Ridgeway:
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 offence 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.
52. In Ridgeway, police agents had purchased and imported heroin to set up a situation where the appellant might be induced to take delivery of it and, hence, be apprehended. The importation was illegal but sanctioned by police authorities. The appellant had contacted one police agent seeking to arrange the importation unaware that he was a registered police informant. Clearly, as was conceded, the police officers and agents involved in the "controlled operation" had aided and abetted the illegal importation that had been sought by the appellant.
53. In that case, the police conduct itself was unlawful, not merely deceitful. In the present case, the police officer, Detective Waugh, did nothing unlawful in pretending to be a 14 year old girl. He did not represent "Roxanne" to be a young person wishing to engage in sexual activity with adult men.
54. I note that in R v Gajjar [2008] VSCA 268, police posing as a 14 year old girl operated that persona within a "chat room" called "Family Sex". Gajjar pleaded guilty to communicating with the fictional girl to procure her to have sex with him. There was no suggestion that the inducements implicit in the "chat room" label and the conversation encouraging a meeting constituted entrapment. It was not suggested either that it was a mitigatory factor that the offender had been misled.
55. Similar subterfuges were used in R v McGrath [2005] QCA 463; [2006] 2 Qd R 58 and R v Podger [2009] VCC.
56. Although it is not entirely analogous, there is authority that protective provisions such as those in contention here do not involve criminal liability on the part of the underage person being procured, notwithstanding that the underage person aids, abets or even procures the offending behaviour on the part of the adult (see for example, R v Tyrell [1894] 1 QB 710; R v Whitehouse [1977] EWCA Crim 2; [1977] 1 QB 868). It is a moot point whether that immunity would extend to an adult pretending to be such a child but there seems to me to be no reason to suppose that criminal liability was intended to extend to such a circumstance.
57. Even if such activity is unlawful an issue then arises, as s 138 of the Evidence Act expressly addresses, whether the evidence should, in any event, be admitted. Where the undercover operatives, although aiding and abetting the offence in question, did not induce the accused persons to enter into criminal activity that they otherwise would not have done the evidence so obtained has been nevertheless admitted (see Sundai Sloane (1990) 49 A Crim R 270 at 272-3, per Gleeson CJ). The fact that the operatives so conducted themselves would not end an enquiry if it were to be concluded that the accused was no "unwary innocent". The conduct of police agents may, nevertheless, be so gravely unlawful as to warrant the refusal of the court to admit the evidence.
58. Despite encouragement to the accused, the evidence obtained by the procuring police officer was admitted as a matter of discretion in Albert Salem (1997) 96 A Crim R 421. That, per Gleeson CJ, Hunt CJ at CL and Hidden J, had been a proper exercise of the trial judge's discretion.
59. An analogous case, it seems to me, is Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426; (2005) 227 ALR 353. In that case, authorities procured an underage girl to purchase cigarettes. It was a random selection of target outlets. Basten JA, Barr and Hall JJ concurring, concluded that the conduct in question did not constitute "impropriety" for the purpose of s 138 Evidence Act (at 366 [46]):
46 In my view the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed above, but may be summarised as follows.
(a) The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation.
(b) The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment.
(c) The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes.
(d) In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.
(e) Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints.
(f) A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.
60. It might be said that there was, in this case, an element of persuasion in "Roxanne's" responses to the accused, not merely passive acceptance of the suggestions made by him.
61. However, Basten JA, at 366-7 [47] in Robinson noted:
47 In noting at (a) above that there was an absence of pressure or persuasion in the present case, it is not intended to suggest that the presence of pressure or persuasion would necessarily lead to a different result. These are matters of degree, and may need to be tested in accordance with the factor noted at (c), namely the likely behaviour of members of the public. If young people who are anxious to obtain tobacco products may be expected to apply some level of pressure or persuasion and seek to importune retailers, then the law will require retailers to resist such importuning and their willingness and ability to do so may also reasonably be tested.
62. The Crimes Act, as noted, has been amended to permit the authorisation of "controlled operations". Similar legislation in New South Wales was considered in R v Ladocki [2004] NSWCCA 336. It was held that such legislation simply made clear that to breach the Code of conduct for the obtaining of an authorisation would not render the evidence obtained liable to be excluded merely by reason of that circumstance. The shield provided by the Act authorising a controlled operation might not be necessary for the evidence to be admitted. If police have contravened no law nor acted improperly to obtain the tendered evidence, the shield so provided would not be needed.
63. It follows that unless Detective Waugh's interaction with the accused was itself unlawful there was no need for him to obtain an authorisation for a "controlled operation" or an assumed identity. As noted in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, the regime for such an authorisation is intended to apply to the importation and possession of illicit goods rather than to the case of illicit communications. Such an authorisation, if granted, limits rather than excludes the operation of s 138 Evidence Act.
64. Nevertheless, it seems to me that Parts IAB and IAC of the Crimes Act demonstrate a legislative intention that "controlled operations" of the kind undertaken here, including the creation of an false persona to attract those who would corrupt children, are not regarded as inimical either to proper law enforcement or the public interest.
65. If the deceit and enticement used remains within the bounds of that which, if exceeded, would be entrapment as explained, for example, in Dau v Emanuele it will not attract the need for the discretion under s 138 to be exercised.
66. In my view, there is not demonstrated in this case any breach of Australian law or any impropriety in Detective Waugh's communications with the accused which should be regarded as enlivening the discretion provided for by s 138 Evidence Act.
67. I would only add this. Even if Detective Waugh could have been regarded as aiding and abetting the accused's allegedly offensive communications, I would have exercised the s 138 discretion in favour of the admission of the evidence he so obtained. It is, I recognise, for a jury to characterise or not the communications from the accused as being likely to cause offence as defined by s 474.17 of the Code or, to quote McKenzie J in R v McGrath at 60 [6], and to decide "whether the [accused] should be regarded as one who intended to carry through with what was proposed or whether he was merely engaging in the obscene conversation for self-gratification".
68. The probative value of the evidence from Detective Waugh is high. It is electronically recorded. The content of it is not likely seriously to be doubted. It is of the essence to the prosecution case.
69. The evil to be confronted by this kind of investigation is of high public importance. I refer to R v Burdon; ex parte Attorney-General (Qld) [2005] QCA 147; (2005) 153 A Crim R 104 where the facts were similar to those here alleged. As McMurdo P noted, at 108, the widespread use of the internet gives those disposed to corrupting and sexually exploiting children unprecedented access to vast numbers of potential victims. Such predators would be difficult to detect absent a complaint from an actual victim or an operation such as the present. The Gospel of St Matthew records Christ as condemning those who would corrupt the young in the following terms:
18:6 But who so shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea (see Mark 9:42; Luke 17:2)
70. That, I think reflects the community attitude toward such offences and such offenders. It would support the use of covert operations to detect them in a manner that does not place an actual young person at risk.
71. If there was an impropriety in the operation conducted by Detective Waugh it could only have been in encouraging the alleged offender to expose his intentions. In my view that would not be a grave impropriety nor one likely, as might be the case if a drug operation fails to contain the drug being used as bait, to cause harm to others. It does not curtail unreasonably the civil rights of the accused. He was free to "chat" or not and to choose the terms of his "chat" or emails. I accept that Detective Waugh, had he gone beyond the rules of engagement laid down by New Zealand Police, could have been counselled. I doubt he would have been disciplined. Evidence of the evil intentions of a sexual predator on the internet would be difficult to obtain otherwise without monitoring actual attempts at corruption of young people. That would be an appalling alternative though it may sometimes be necessary. Better, as commented in R v Burden, that the victim be an adult posing as a child than an actual young person who receives and responds to such communications.
72. It follows that the application to exclude this evidence is refused.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
Solicitor for the defendant: Legal Aid Office (ACT)
R
Stubbs [2009] ACTSC 63
(1995) 184 CLR 19
(1995) 60 FCR 270
(1978) 141 CLR 54
(2005) 227 ALR 353
The application to exclude the evidence was refused. Higgins CJ found no demonstrated breach of Australian law or impropriety enlivening Evidence Act s 138; alternatively, he would have admitted the evidence after balancing the relevant considerations ([66]-[72]).