//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1995] HCA 66
High Court of Australia
1995-04-19
Mason CJ, McHugh JJ, Dawson JJ, Duggan JJ, Legoe J
Original judgment source is linked above.
High Court of Australia Mason CJ Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ Ridgeway v The Queen [1995] HCA 66
ORDER 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, that 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.
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.
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. 1. See the Act, s 235.
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.
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.
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".
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.
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 par 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 par D7.
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 $9,000 cash as a reward for his part in the operation.
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.
The question whether the common law of this country recognises 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.
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 [6] . Those cases established entrapment as a substantive, but "relatively limited" [7] , defence in a criminal trial in the federal courts of that country. The basis of the defence, as recognised 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" [8] . 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" [9] . As Rehnquist J said of the defence in delivering the opinion of the court in United States v Russell [10] :
Sorrells and Sherman both recognise "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" [11] . Nor will the mere fact of deceit defeat a prosecution, see, eg, Lewis v United States [12] , 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" [13] . 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 [14] . 1. Sorrells v United States (1932) 287 US 435; Sherman v United States (1958) 356 US 369; United States v Russell (1973) 411 US 423. 2. United States v Russell (1973) 411 US 423 at 435. 3. Sherman v United States (1958) 356 US 369 at 372. And see also Sorrells v United States (1932) 287 US 435 at 448. 4. See the District Judge's direction in United States v Russell (1973) 411 US 423 at 427, n 4. 5. (1973) 411 US 423 at 435-436. 6. Sorrells (1932) 287 US 435 at 441; Sherman (1958) 356 US 369 at 372. 7. (1966) 385 US 206 at 208-209. 8. Matthews v United States (1988) 485 US 58 at 63; Hampton v United States (1976) 425 US 484 at 497. 9. Matthews v United States (1988) 485 US 58.
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.
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] [15] , 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 [16] , in words which were subsequently quoted with approval by the Privy Council in Yip Chiu Cheung v The Queen [17] , 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 [18] , or clearly assumed [19] , 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.
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.
At least since Bunning v Cross [20] , it has been "the settled law in this country" [21] 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 [22] . The discretion extends to the exclusion of both "real" (or non-confessional) evidence [23] and confessional evidence [24] . As Barwick CJ pointed out in R v Ireland [25] in a judgment with which the other four members of the Court agreed [26] , 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" [27] . 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" [28] relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.
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.
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". [29] 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.
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 [30] or temporarily or permanently stay the overall proceedings to prevent abuse of its process. [31] 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.
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 recognise 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. [32] Overseas, the United States Supreme Court has, as has been seen, gone so far as to recognise 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 [33] and Frankfurter J (Douglas, Harlan and Brennan JJ joining) in Sherman v United States [34] , 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 [35] 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 [36] :
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 recognised jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts," McNabb v United States [37] , 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 [38] , Frankfurter J quoted with approval the substance of the following passage from the opinion of Roberts J in Sorrells [39] : The doctrine [ie 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 [40] 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. 1. R v Dugan (1984) 2 NSWLR 554; Hunt v Wark (1985) 40 SASR 489; R v Vuckov and Romeo (1986) 40 SASR 498; R v Romeo (1987) 45 SASR 212 at 218-220; R v D'Arrigo [1994] 1 Qd R 603; R v Stead [1994] 1 Qd R 665; R v Venn-Brown [1991] 1 Qd R 458; R v Papoulias [1988] VR 858; cf R v Hsing (1991) 25 NSWLR 685; R v Thompson & Thompson (1992) 58 A Crim R 451; Coward v The Queen (1985) 16 A Crim R 257; R v Weston and Lee (unreported; Supreme Court of Tasmania; Crawford J; 11 July 1991). 2. (1932) 287 US 435 at 453-459. 3. (1958) 356 US 369 at 378-385. 4. Sorrells v United States (1932) 287 US 435 at 457; Sherman v United States (1958) 356 US 369 at 385. 5. (1958) 356 US 369 at 380. 6. (1943) 318 US 332 at 341. 7. Sherman (1958) 356 US 369 at 385. 8. (1932) 287 US 435 at 457. 9. (1973) 411 US 423 at 436ff, 439ff.
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 [41] . 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 R v Mack [42] . It is true that the House of Lords in R v Sang [43] emphatically rejected the existence of even a discretion to reject illegally procured evidence on public policy grounds. In that case, Lord Diplock said [44] :
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 [45] . In any event, it is clearly inconsistent with the law of this country as settled by R v Ireland [46] and Bunning v Cross [47] and explained in Cleland v The Queen [48] and Pollard v The Queen [49] . 1. See R v O'Shannessy (unreported; Court of Appeal; 8 October 1973); R v Capner [1975] 1 NZLR 411; R v Pethig [1977] 1 NZLR 448 at 450; Police v Lavalle [1979] 1 NZLR 45 at 48; R v Katipa [1986] 2 NZLR 121 at 125. 2. (1988) 44 CCC (3d) 513. 3. [1980] AC 402. 4. R v Sang [1980] AC 402 at 436. 5. See Police and Criminal Evidence Act 1984 UK, ss 78, 82(3); R v Smurthwaite and Gill [1994] 1 All ER 898 at 903; (1994) 98 Cr App R 437 at 440-441. 6. (1970) 126 CLR 321. 7. (1978) 141 CLR 54. 8. (1982) 151 CLR 1. 9. (1992) 176 CLR 177.
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.
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.
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 authorising 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 R v Mack [50] , "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.
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 R v Ireland [51] , 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" [52] . Their Honours did, however, indicate a preference for the phrase "improper conduct" [53] pointing out that "unfair" is largely meaningless when considering certain types of evidence (eg 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 [54] .
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.
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 [55] . 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 [56] . Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.
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" [57] involved in the illegal conduct.
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 organised by the police for the purpose of obtaining the conviction of the person to whom it is supplied [58] . 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 [59] "at what point would it ever be appropriate to demur and offer objection?"
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" [60] 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" [61] . That approach finds support in some judgments in State Supreme Courts in this country [62] . With due respect, we are unable to accept it.
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.
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 [63] . 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.
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.
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.
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" (s 233B(2)). 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 organised 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 - ie "imported into Australia in contravention of this Act" - would not have existed. The illegal police conduct itself provided and constituted that element.
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.
In these circumstances, the above-mentioned factors - ie 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: $2,000 and two years' imprisonment) [64] 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) [65] . 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.
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 (eg 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 [66] 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.
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.
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.
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 [67] . 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.
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:
(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 [68] 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 [69] or to a stay of prosecution. 1. 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." 2. (1978) 141 CLR 54.
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 [70] . Subject to the possible defence of duress [71] , 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 authorisation 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 [72] , in England [73] , in Canada [74] and, on one analysis of the judgments in the Supreme Court of the United States [75] , in that Court also. It must be rejected here.
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 [76] . 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 (NSW) [77] , I said:
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. 1. Williams v Spautz (1992) 174 CLR 509 at 533-537. 2. (1989) 168 CLR 23 at 47-48.
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 [78] . Rejecting a literal interpretation of the statute, the majority in that case said [79] :
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 [80] : 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.
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 [81] . 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."
If there be jurisdiction to stay the prosecution of an offender, it must be on some ground other than entrapment. It would be anomalous to deny a defence of entrapment yet admit a jurisdiction to grant a permanent stay of a prosecution on the ground of entrapment. Such a jurisdiction would create a discretionary power to try a case or to decline to try a case according to whether the court "desires to let the defendant go free". It follows that I would respectfully decline to accept the approach taken in at least some Australian courts that prosecution of an offender entrapped into the commission of an offence is an abuse of process enlivening a judicial discretion to stay the prosecution [83] .
In Bunning v Cross [84] , Stephen and Aickin JJ with the concurrence of Barwick CJ asserted the existence of a judicial discretion to exclude evidence that had been unlawfully obtained. Barwick CJ had first enunciated the principle in R v Ireland [85] :
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. In Bunning v Cross, Stephen and Aickin JJ [86] clearly distinguished the discretion to exclude evidence for unlawfulness from the discretion to exclude evidence for unfairness to the accused: What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking 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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. The purpose of the discretion to exclude evidence on the ground of unfairness is to ensure a fair trial for the accused; the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of - if not reward for - illegal conduct on the part of the law enforcement agency. 1. (1978) 141 CLR 54. 2. (1970) 126 CLR 321 at 335. 3. Bunning v Cross (1978) 141 CLR 54 at 74-75.
However, there are likely to be few occasions for exercising the Bunning v Cross discretion (as I shall call the discretion to exclude evidence on the ground of unlawfulness) divorced from considerations of fairness to the accused. The unlawful conduct of a law enforcement officer which might call for an exercise of the discretion will ordinarily occur in the course of gathering evidence for the prosecution of an offence. It was in that context that Barwick CJ in Ireland's case [87] spoke of "the protection of the individual from unlawful and unfair treatment". And in Bunning v Cross [88] , Stephen and Aickin JJ noted that the rubric of unfairness as discussed in King v The Queen [89] is a concept which "closely approaches what was said in Ireland's case". Of course, the same set of facts may enliven a discretion to exclude evidence on the grounds of both unlawfulness and unfairness.
Entrapment may involve both an element of contravention of a law by a law enforcement officer and an element of unfairness. Both elements can be seen in the concept of entrapment defined by Gleeson CJ in R v Sloane [90] :
the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit: see, for example, Police v Lavalle [91] . In the context of an ongoing course of criminal activity, such as dealing in drugs, the reference to committing a crime which otherwise would not have been committed is a reference to a form of conduct rather than to a particular transaction A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. To use the language of an American case on the subject, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal": Sherman v United States [92] . This concept of entrapment is subjective in the sense that it focuses attention on the general criminal intentions of the offender. Thus it highlights the element of unfairness when the offender was an "unwary innocent". If this case involved no more than an objection to the admission of evidence showing that Ridgeway and Harvey took possession of the heroin from Assistant Superintendent Chong and Lee at a motel, the fact that Ridgeway and Harvey were "unwary criminals" would be sufficient to warrant an overruling of the objection or, at the least, sufficient to warrant a refusal by this Court to overrule a discretionary decision to admit that evidence. Evidence that has been unlawfully obtained is not necessarily inadmissible [93] . 1. (1990) 49 A Crim R 270 at 272-273. 2. [1979] 1 NZLR 45. 3. (1958) 356 US 369 at 372-373. 4. Ireland (1970) 126 CLR 321 at 334; Bunning v Cross (1978) 141 CLR 54 at 66; Cleland v The Queen (1982) 151 CLR 1 at 9.
Nevertheless, the Bunning v Cross discretion may be exercised - albeit only in rare cases - when an entrapped offender falls into the category of an "unwary criminal". There may be no unfairness to the accused in admitting the evidence but the illegality of the conduct engaged in by the law enforcement agency may be so grave that the conviction of the offender would be bought at "too high a price" if the evidence obtained by the illegal conduct were admitted.
When an exercise of the Bunning v Cross discretion involves no element of unfairness to the accused, the court must simply weigh "against each other two competing requirements of public policy, thereby seeking 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" [94] . This is no easy task and it must be performed by reference to the circumstances and nature of the particular case [95] . Stephen and Aickin JJ said [96] :
In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part" - per Holmes J in Olmstead v United States [97] . Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. 1. Bunning (1978) 141 CLR 54 at 74. 2. Bunning (1978) 141 CLR 54 at 77. 3. Bunning (1978) 141 CLR 54 at 78. 4. (1927) 277 US 438 at 470.
To exercise the discretion appropriately in a case where exclusion of evidence would be fatal to a prosecution case, the court must evaluate the nature and gravity of the offence with which the alleged offender stands charged and the nature and gravity of the unlawful conduct engaged in by the law enforcement agency in order to obtain the evidence in question. In making this evaluation, the questions posed by Kingsmill Moore J in The People (Attorney-General) v O'Brien [98] are relevant. His Lordship said -
a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances. On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action? 1. [1965] Ir R 142 at 160.
These questions will ordinarily be answered by the judge at trial who is informed as to the nature and gravity both of the unlawful conduct of the law enforcement agency and of the offence with which the accused stands charged. Exclusion of the evidence to which objection is taken might have little impact on the prosecution case or exclusion might be fatal to the case. In either event, it is inappropriate to stay the proceedings. If, after exclusion, there remains sufficient evidence to get the case to the jury, no stay should be ordered; if there remains insufficient evidence, either the Crown will enter a nolle prosequi or the trial judge will direct an acquittal. In some States, where pre-trial rulings on admission of evidence can be given, it is possible that a judge in the pre-trial proceedings could have sufficient information about the case to be tried to permit the weighing of the competing requirements of public policy. If evidence vital to the prosecution case were excluded at a pre-trial hearing and the Crown declined to enter a nolle prosequi, the continued prosecution of a futile case could be prevented by a stay. Such a stay would not be on the ground of entrapment or other unlawfulness; it would be on the ground that the futile prosecution would be an abuse of process in the strict sense of that term.
The present case raises no question of unfairness to the accused. The appellant submits that "the evidence (the heroin)" ought to have been excluded - a submission which appears to assume that if the heroin were not produced and tendered, there would have been no case against the accused. That submission is misconceived. The principal area of operation of the Bunning v Cross discretion is in relation to "what might loosely be called "real evidence", such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on" [99] . But the discretion would ordinarily be enlivened by unlawfulness in the manner in which evidence of a completed crime is ascertained or procured. But there was nothing unlawful in the police seizing the heroin when it was in the possession of Ridgeway and Harvey.
Nevertheless, the basic principle applies in this case. If an element of the crime with which Ridgeway and Harvey were charged consisted of the unlawful conduct of a law enforcement agency, the question is whether evidence of that element should be excluded because admission of that evidence to inculpate the accused would be too high a price to pay for their conviction. Thus, a more substantial version of the objection is that the trial judge ought to have excluded evidence of the conduct of Ridgeway and Harvey, particularly in taking possession of the heroin, and evidence of what was done by Assistant Superintendent Chong in illegally importing the heroin into Australia. In my opinion, such a submission in relation to all evidence of importation must be upheld.
Assistant Superintendent Chong committed the crime of importing the heroin into Australia in contravention of s 233B(1)(b) of the Customs Act in order to create one of the elements of the offence with which it was hoped to charge Ridgeway and with which he was in fact charged under s 233B(1)(c) of the Customs Act. Assistant Superintendent Chong's crime was intentional, it was committed in execution of a settled and deliberate policy on the part of the Australian Federal Police, it was a grave offence for which the Parliament has prescribed a maximum penalty of a fine not exceeding $100,000 or imprisonment for a period not exceeding twenty-five years, or both [100] . To admit evidence of the commission of that offence in order to establish as against Ridgeway that the heroin of which he and Harvey were in possession had been imported into Australia in contravention of the Customs Act by Assistant Superintendent Chong would be an encouragement to the Australian Federal Police to continue to flout the Parliament's unqualified prohibition against the importation of heroin, especially in trafficable quantities (that is, 2 grams) (Sch VI). This was not a case where the evidence related to the conduct of the offender; it was a case where the offender was charged by reason, inter alia, of the criminal conduct of an agent of the Australian Federal Police. All evidence of the illegal importation ought to have been excluded by the trial judge [101] . If all evidence of illegal importation had been excluded, the prosecution could not have succeeded. If the evidence had been excluded, either the Crown would have entered a nolle prosequi or there would have been a verdict of acquittal by direction. As the evidence was not excluded and Ridgeway was convicted, the appropriate order to make is to allow the appeal and therefore to quash the conviction. There is no other option. Once the appeal is allowed, the mandatory provisions of s 353(2) of the Criminal Law Consolidation Act 1935 SA govern the order to be made. It reads:
Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. 1. s 235(2)(d)(i) and Sch VI of the Customs Act. 2. 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.
This result is manifestly unsatisfactory from the viewpoint of law enforcement. As a technique of law enforcement, the so-called "controlled" importation of prohibited imports may be an acceptable technique for the detection and breaking up of drug rings but, if that be so, the law enforcement agencies must address their concerns to the Parliament. So long as the unqualified terms of s 233B(1)(b) reveal the Parliament's intention to prohibit all persons, including the law enforcement agencies, from importing heroin, it is not for the courts to encourage the Executive branch of government to sanction a deliberate course of contravention. The Executive branch of government cannot dispense its officers from the binding effect of the laws prescribed by the Parliament [102] . If law enforcement agencies apply for an amendment of the laws to permit the employment of detection methods such as those used in this case, it will be for the Parliament to consider whether controls should be legislatively prescribed. The Parliament might impose conditions upon the employment of those methods. The Parliament might place responsibility for authorising the importation of prohibited imports for detection purposes upon specified officers who will be liable if they fail to exercise supervision over the operations of the law enforcement agencies. It is manifest that there will be anomalies, if not corruption, in the conduct of such operations in the absence of adequate supervision. But provisions of that kind cannot be prescribed by courts; they are appropriate matters for consideration by the Parliament.
I would allow the appeal, set aside the judgment of the Full Court of the Supreme Court and in lieu thereof allow the appeal to that Court, quash the appellant's conviction and enter a verdict and judgment of acquittal.
The notice of appeal asserts that the "Court of Criminal Appeal erred in not overturning the conviction where the conviction resulted from an abuse of the Court proceedings by the Police obtaining evidence by illegal means". The notice further asserts that the Court erred "in not finding illegality per se is sufficient for an order that an abuse of process has occurred and that the process of the Court should be stayed permanently".
The notice of appeal lacks specificity, a defect which is exacerbated by the fact that the issues seem to have changed character somewhat as they were argued by the appellant before the trial judge, the Court of Criminal Appeal and before this Court. In particular, the argument that the proceedings against the appellant should have been stayed as an abuse of process has expanded to include reliance upon entrapment as a substantive defence to the charge on which he was convicted.
The circumstances giving rise to the appeal appear in the judgment of Gaudron J. There is no need to repeat all that is said there though reference to particular facts is necessary because of the bearing they have on the outcome of the appeal.
The appellant was convicted on a charge of possessing heroin imported into Australia contrary to the provisions of the Customs Act 1901 Cth (the Act) (s 233B(1)(c)). The heroin was imported by Assistant Superintendent Chong of the Royal Malaysian Police Force in accordance with an arrangement made with members of the Australian Federal Police Force. The importation was part of a controlled delivery, designed to catch the appellant red-handed in the act of buying the heroin. The heroin was not imported for any other purpose. The importation was not authorised by law. Hence, the appeal must be approached on the footing that Assistant Superintendent Chong imported the heroin into Australia in breach of the Act (s 233B(1)(aa)) and that certain members of the Federal Police were also in breach of the Act by reason of being knowingly concerned in the importation of the heroin (s 233B(1)(d)).
The appeal against conviction to the Court of Criminal Appeal [103] was argued by the appellant on the basis that the trial judge had a discretion, either to stay the indictment as an abuse of process or to exclude the prosecution evidence on public policy grounds but that he failed to exercise that discretion.
Matheson and Duggan JJ dismissed the appeal because they would not have exercised the discretion in favour of the appellant, principally because in their view the Federal Police officers did not overreach their responsibility, bearing in mind that it was the appellant who initiated the importation. Legoe J, who dissented, would have allowed the appeal and ordered a new trial on the ground that the trial judge had not weighed the illegal conduct of the prosecution witnesses against the illegal conduct of the appellant and exercised the discretion accordingly.
In Foster v The Queen [104] the Court recently considered (in the context of the admissibility of a confessional statement) the discretion to exclude evidence on the ground that its reception would be unfair to the accused and the discretion to exclude evidence on public policy grounds. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ pointed out that, while the discretions overlap to no small extent, the focus in each case is different. Their Honours continued [105] :
In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on "large matters of public policy" [106] and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case [107] . 1. (1993) 67 ALJR 550; 113 ALR 1. 2. Foster (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7. 3. Bunning v Cross (1978) 141 CLR 54 at 77, per Stephen and Aickin JJ. 4. Bunning v Cross (1978) 141 CLR 54 at 77-78; Pollard v The Queen (1992) 176 CLR 177 at 203.
In Foster the Court held that the accused's confessional statement should have been excluded under the first of the two discretions mentioned. But their Honours observed [108] :
It is, however, appropriate that we indicate that we consider that the circumstances of the present case are such that the evidence should also have been excluded on the ground that the seriousness of the unlawful conduct on the part of the police was such that considerations of public policy precluded its reception. In that regard, the case manifests "the real evil" at which the discretion to exclude unlawfully obtained evidence on public policy grounds is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" [109] . 1. Foster (1993) 67 ALJR 550 at 557; 113 ALR 1 at 10. 2. Bunning v Cross (1978) 141 CLR 54 at 78; Pollard v The Queen (1992) 176 CLR 177 at 204.
What has come to be known as the Bunning v Cross discretion seeks to ensure that those concerned with the enforcement of the law observe the law in the manner in which they secure evidence. If a court considers that there has been a failure to observe the law in that respect, the discretion may be invoked to exclude any evidence so obtained. But the discretion has not been exercised to exclude the whole of the prosecution evidence, including evidence properly obtained. And it could hardly be otherwise since what is involved is a discretion to reject evidence "procured by means of unlawful or unfair acts" [110] . Of course, it may be that the evidence excluded is critical to the success of the prosecution and an acquittal inevitably follows. That is a matter referred to later in these reasons. The appellant's principal argument in relation to Bunning v Cross was that all the evidence against him should be excluded. That argument cannot succeed. However, in answer to questions from the Bench, the argument embraced an alternative proposition, namely, that evidence showing that the heroin the subject of the charge was a prohibited import should be excluded. It will be necessary to return to this aspect after considering questions relating to entrapment and abuse of process.
So far as the argument put by the appellant that entrapment is a substantive defence to a charge is concerned, I agree with Gaudron J's conclusion that entrapment does not constitute a substantive defence in this country. And I agree with her Honour's reasons for reaching that conclusion. I have nothing to add in that regard. The circumstances said to constitute entrapment remain, of course, for whatever part they play in the argument that there was an abuse of process.
The view generally taken in this country is that "the proper course for an accused seeking to raise a case of entrapment is to make an application for a stay of the indictment upon the ground that it constitutes an abuse of process" [111] . In 1986 Cox J said [112] :
Where the court is satisfied in an entrapment case that the prosecution ought to be stopped on policy grounds, it is preferable, in my opinion, that it should avoid the artificiality of evidentiary exclusion and simply make an order that the proceedings be stayed as an abuse of process. In R v Hsing [113] Samuels JA pointed out that the exclusion of evidence vital to a conviction presumably results in acquittal whereas a stay of proceedings does not. Entrapment, his Honour said [114] , "depends fundamentally upon conduct offensive to the administration of justice which thus amounts to an abuse of process. Accordingly, the proper remedy is to stop the proceedings". I respectfully agree with the approach taken by their Honours in circumstances where entrapment is relied upon to support the argument that there has been an abuse of process. I approach the question of entrapment accordingly. 1. R v Thompson & Thompson (1992) 58 A Crim R 451 at 453, per Hunt CJ at CL. 2. R v Vuckov and Romeo (1986) 40 SASR 498 at 518. 3. (1991) 25 NSWLR 685 at 694. 4. R v Hsing (1991) 25 NSWLR 685 at 696. See also R v Sloane (1990) 49 A Crim R 270.
The facts in this case go beyond a situation in which the police have merely provided the opportunity for an offence to be committed. If the Federal Police had not arranged with the Malaysian Police for the importation of the heroin into Australia, it is unlikely that the importation would have taken place at the particular time and the appellant may not have been in possession of that heroin in the particular circumstances in which he was charged.
On the other hand, it was the appellant who initiated the importation of the heroin. He had met Lee in prison in South Australia and, on Lee's discharge from prison and return to Malaysia, the appellant, while on parole, travelled to Singapore. There he discussed with Lee the prospects of obtaining heroin, leaving with him $4,000 for that purpose. After his (the appellant's) return to Australia he wrote to Lee indicating his wish to import heroin. Lee, with Chong, bought heroin in the north of Malaysia and, in accordance with arrangements made with Federal Police officers, travelled to Adelaide with the heroin. Before the importation, the appellant sent to Lee an aerogram which included the following cryptic note:
Just get your friend over here for a holiday as soon as possible; or at least let me know if you cannot so that I can if need be go to another person in another place. The meaning is obvious enough. The Customs Service was alerted to the arrival of Lee and Chong and, pursuant to a Customs Exemption Notice, its officers did not check the baggage of Chong who was carrying the heroin and who then delivered it to Federal Police officers. The appellant was later arrested at the handover of the heroin.
The concept of entrapment has been the subject of much discussion, particularly in the United States and Canada. The judgment of the Supreme Court of Canada in R v Mack contains a detailed analysis of what entrapment involves. I am content to rely on what was said by Estey J in R v Amato [115] and adopted in Mack [116] :
The principal elements or characteristics of the defence are that an offence must be instigated, originated or brought about by the police and the accused must be ensnared into the commission of that offence by the police conduct; the purpose of the scheme must be to gain evidence for the prosecution of the accused for the very crime which has been so instigated. The expression "defence" in relation to entrapment is used in Amato and Mack to refer to abuse of process rather than to any substantive defence. 1. (1982) 69 CCC (2d) 31 at 61. 2. (1988) 44 CCC (3d) 513 at 526.
The offence of which the appellant was convicted was not instigated by the Federal Police. It was not originated by them. The appellant was not ensnared into the commission of the offence. Certainly, the Federal Police, with the co-operation of Assistant Superintendent Chong, helped to bring about the commission of the offence by facilitating the importation of the heroin. But, as was said in Sherman v United States [117] : "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." The appellant may have been an unwary criminal; certainly he was no unwary innocent. The appellant bore the onus of establishing, on the balance of probabilities, that there was an entrapment [118] . He failed to do so.
That, however, is not the end of the matter. Although the appeal was argued largely in relation to entrapment, there was an underlying submission that the importation of the heroin with which the appellant was charged was the result of breaches of the Act by Assistant Superintendent Chong and more particularly by members of the Federal Police and that this tainted the proceedings. The officers had committed offences, it was said, and to allow the indictment to proceed was to condone those offences and bring the administration of justice into disrepute. In A v Hayden [No 2] [119] , Gibbs CJ observed:
It is fundamental to our legal system that the executive has no power to authorise a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer. 1. (1984) 156 CLR 532 at 540.
The respondent answered that the Federal Police operation was conducted in accordance with Australia's international obligations. Australia is a signatory to the United Nations Single Convention on Narcotic Drugs 1961 and enacted the Narcotic Drugs Act 1967 Cth in pursuance of the Convention. Article 35 of the Convention provides that, having "due regard to their constitutional, legal and administrative systems", the parties shall make arrangements at the national level for the co-ordination of prevention and repressive action against illicit drug traffic. The balance of Art 35 emphasises co-operation between the parties. The Court was told that, as international drug trafficking escalated in the 1970s, a number of the participants adopted the technique of "controlled delivery" as a means of catching those engaged in trafficking. Australia also became a party to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Pursuant thereto, it enacted the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 Cth which creates a number of offences to give effect to the Convention.
The material furnished to the Court evidences Australia's readiness to participate at an international level in the fight against the illicit trade in drugs. Nothing in that material, however, would seem to endorse breaches of the law by Australia's own police officers. As noted, Art 35 of the 1961 Convention requires that regard be had to the legal systems of the participants. The Act is part of Australia's legal system. So the matter must be approached on the basis that the importation of the heroin involved breaches of the Act by Federal Police officers. There was no legal justification for what they did.
The essential question then is whether, in the circumstances, the trial judge should have stayed the proceedings against the appellant [120] . There is no doubt that a court may intervene to prevent an abuse of its process, in criminal as well as civil proceedings [121] . The concept of abuse of process is not a precise one. Nor can it be; it gives effect to a concern on the part of courts that may arise in a variety of circumstances. But at the heart of the concept lies the legitimate power of the courts to stay prosecutions brought in exercise of the prerogative of the Crown. In Connelly v Director of Public Prosecutions [122] Lord Devlin addressed the fundamental issue in this way:
Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused. That passage asserts the power of the courts to act; it does not, and does not purport to, identify the scope of the power. 1. 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. 2. Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378. 3. [1964] AC 1254 at 1354.
Generally, abuse of process derives from a concern that judicial process be not invoked for an improper purpose (the issue in Williams v Spautz) and that the process be not abused in a way that interferes with the conduct of a fair trial (the issue in Jago v District Court (NSW) and Walton v Gardiner). There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt that the accused will receive a fair trial. Equally, an accused may not receive a fair trial, by reason of delay for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior court to stay its proceedings on grounds of abuse of process is not confined to those situations [123] . A stay of criminal proceedings gives effect to the view that it "would offend the courts' sense of justice" [124] if the accused had to stand trial in those circumstances. In the more precise terms articulated by Lord Diplock in Hunter v Chief Constable [125] :
It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. 1. Walton v Gardiner (1993) 177 CLR 378 at 395. 2. R v Mack (1988) 44 CCC (3d) 513 at 525. 3. [1982] AC 529 at 536.
To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily distinct. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are seen as understood as bearing on each other. Abuse of process does not necessarily lead to a stay; there may be other ways of remedying the abuse. But the argument in the present case largely turns on whether or not the District Court of South Australia should have stayed the proceedings against the appellant. 1. (1989) 168 CLR 23 at 72.
On what basis can the appellant properly assert that the indictment against him and the proceedings that followed amounted to an abuse of process of the District Court? The indictment was not filed for an improper purpose. There is no complaint that the appellant did not receive a fair trial, in the sense that proper procedures were not observed. However, the appellant relies upon the events said to constitute his entrapment, for the purpose of arguing that there has been an abuse of process. The contention is that to allow the appellant to stand trial in those circumstances would offend the court's sense of justice. The matter was put this way by Lamer J delivering the judgment of the Supreme Court of Canada in Mack [127] :
[C]entral to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. The same point was made, though in different language, by Richardson J in Moevao v Department of Labour [128] : The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. 1. (1988) 44 CCC (3d) 513 at 539. 2. [1980] 1 NZLR 464 at 482.
In rejecting entrapment as a substantive defence in R v Sang [129] Lord Scarman took a somewhat narrower view of abuse of process than passages from the judgments of Lord Devlin and Lord Diplock quoted earlier might suggest. Lord Scarman said [130] :
The judge's control of the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. The decision in Sang limited the discretion of judges to reject relevant, admissible evidence on the ground that it was unfairly or improperly obtained. In that regard the decision does not accord with Bunning v Cross or with Foster and other Australian decisions since Bunning v Cross. 1. [1980] AC 402. 2. R v Sang [1980] AC 402 at 455. See also Director of Public Prosecutions v Humphrys [1977] AC 1 at 46, per Lord Salmon; at 24-26, per Viscount Dilhorne.
However, care is needed when it is the actions of persons not directly responsible for the laying of the indictment and playing no direct part in the actual conduct of the proceedings that are said to bring the administration of justice into disrepute. Richmond P warned in Moevao [131] :
However it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of. 1. [1980] 1 NZLR 464 at 470-471.
In the present case one has to ask: in what respect was the process of the District Court of South Australia being wrongly made use of so as to bring the administration of justice into disrepute? One answer suggested during the hearing of the appeal was that no charges had been laid against the Federal Police officers who had been concerned in the importation of the heroin. But that does not constitute an abuse of the process of the District Court. There are many situations in which a participant in an offence is not charged or the charge is withdrawn. The giving of an indemnity to a Crown witness is an obvious example. Indeed, in Williamson v Trainor [132] the Court of Criminal Appeal in Queensland held that proceedings before a magistrate should have been stayed as an abuse of process because the defendant had earlier been given an indemnity by the police in respect of the matter.
A stay can be warranted only on the footing that the charge against the appellant was the result of actions by police officers, involving breaches of the Act, and that to proceed against the appellant in those circumstances was to bring the administration of justice into disrepute. It was the importation of the heroin which involved police officers in themselves committing breaches of the Act. Had the appellant been charged under a State law with being in possession of heroin, the circumstances in which the heroin came to be in Australia would not have been crucial to the charge. It would perhaps be ironical if the present proceedings should be stayed when, subject to questions of double jeopardy, a prosecution under the laws of South Australia would almost certainly not be stayed. But that is not an argument of much weight. The question is not one of fairness or unfairness to the appellant but rather the implications for the process of the court in allowing the proceedings to continue.
While the conduct of the police officers cannot be condoned and left them open to being charged with breaches of the Act, I do not think that to proceed with the charge against the appellant was to make an improper use of the process of the District Court. The conduct of the police officers must attract criticism. The decision of the prosecuting authorities to charge only the appellant may give rise to criticism of those authorities. But it is a big step to conclude that if the charge against the appellant proceeded, the District Court would appear to be sanctioning unlawful conduct by the Federal Police officers. "Because a stay of proceedings has the effect of stopping the prosecution, it is a rational remedy solely where the prosecution itself constitutes or contributes to the damage or mischief sought to be addressed." [133] To proceed against the appellant did not constitute damage or mischief that might result from the actions of the Federal Police officers. Nor, in my view, did it contribute to any such damage or mischief. The damage or mischief was done at the time the heroin was imported. To allow the charge against the appellant to proceed would not have carried any endorsement by the District Court of the actions of the police officers. In any event, and this seems to me to be of great importance, the Bunning v Cross discretion remained as a basis for excluding evidence obtained by unlawful means. In that way the Court could ensure that a conviction was not obtained through such evidence. Furthermore, it must be remembered that, on the approach I have taken, a case of entrapment was not made out. Therefore, a stay of proceedings would really amount to allowing the appellant to go free without a trial by reason of the Court's disapprobation of the conduct of the police in the events leading up to the appellant being charged. In my view, the circumstances of this case do not warrant that step.
In light of these conclusions it is necessary to return to the matter mentioned early in these reasons, that is, whether the Bunning v Cross discretion should be applied to exclude evidence obtained by unlawful means, in particular the evidence showing that the heroin was a prohibited import. It is a quite different matter because, depending on the circumstances, the prosecution may proceed to a conviction without the excluded evidence.
There is no justification for excluding evidence on the ground of unfairness to the appellant. The importation of the heroin in his possession was as a result of his own initiative. But what of the other basis referred to in Foster v The Queen , the true Bunning v Cross discretion, where the issue is whether evidence should be excluded because "the seriousness of the unlawful conduct on the part of the police was such that considerations of public policy precluded its reception" [134] . In this respect I agree with Dowsett J when, in D'Arrigo [135] , his Honour said:
There may be a theoretical distinction between evidence obtained by illegal means and evidence obtained in the course of illegal conduct. The policy considerations underlying the discretion to exclude (as explained in Bunning v Cross) indicate that such discretion should be available in either case. No doubt a critical factor in the exercise of the discretion will often be the closeness of the connection between the illegality and the obtaining of the evidence. In D'Arrigo the evidence excluded was that of a witness who participated as a police agent in the theft of a large number of motor vehicles in order to catch receivers of stolen cars [136] . 1. Foster (1993) 67 ALJR 550 at 557; 113 ALR 1 at 10. 2. [1994] 1 Qd R 603 at 611. 3. cf R v Stead [1994] 1 Qd R 665.
In considering the exercise of the discretion, "two competing requirements of public policy" [137] are involved. Those requirements are, on the one hand, that a wrongdoer be convicted and, on the other, that the courts should not be seen to lend approval to unlawful conduct on the part of law enforcement authorities. In the present case the evidence of importation of the heroin, which was an essential element of the charge against the appellant, was of an importation arranged by police officers in contravention of the Customs Act. The actions of the police officers were a deliberate breach of the Act, designed to produce that element. Their actions bore directly on the evidence of importation. That evidence should have been excluded.
The respondent did not contend that, nevertheless, there was evidence on which the appellant could properly have been convicted of the offence charged. That is not surprising since proof of illegal importation depended on the excluded evidence. If there were such evidence the appeal should be dismissed. But in the circumstances the appeal must be allowed and the conviction quashed [138] . An order for a new trial is not warranted, there being no suggestion that other evidence not led at the appellant's trial and not subject to exclusion is available. A verdict of "not guilty" should therefore be entered.
The appellant, John Anthony Ridgeway, stood trial in the District Court of South Australia on two charges under s 233B of the Customs Act 1901 Cth (the Act). The first was a charge under sub-s (1)(c) of possession of heroin imported into Australia contrary to the provisions of the Act; the second was a charge under sub-s (1)(ca) of possession of heroin reasonably suspected of having been imported contrary to the Act [139] . Both charges related to the same heroin, being heroin found in the appellant's possession at the Old Adelaide Inn on 31 December 1989 (the heroin). He was convicted on the first charge and it was, thus, unnecessary for the jury to consider the second.
There is no doubt that the heroin was imported in contravention of the Act. It was imported by an Assistant Superintendent of the Royal Malaysian Police Force with the assistance of members of the Australian Federal Police Force (the Federal Police) as part of a plan to sell it to the appellant and catch him "red handed". It is now conceded by the Director of Public Prosecutions, who appeared for the respondent, that it was not possible to import heroin legally for this purpose. It is also conceded that Assistant Superintendent Chong imported the heroin into Australia in breach of s 233B(1)(b) of the Act and that, in breach of s 233B(1)(d), individual members of the Federal Police were knowingly concerned in its importation. The genesis and details of the plan to catch the appellant, which police and prosecution authorities have referred to as a "controlled delivery" and which the appellant claims constitutes "entrapment", will be discussed later.
There was a pre-trial application for a stay of proceedings or, alternatively, a ruling that the prosecution evidence should be excluded in its entirety because it was tainted by illegality. It seems that this alternative submission was directed to the evidence in its entirety because, even if the evidence as to importation were excluded, the remaining evidence would have been sufficient to support a conviction: importation can be inferred [140] from the fact that heroin is not produced in Australia. The application for a stay was dismissed by Judge Burnett on the ground that it was not made within time [141] . His Honour was not asked to, and did not, consider whether time should have been extended. Apparently, the ruling was also taken as a rejection of the alternative submission that the prosecution evidence should be excluded in its entirety.
Following his conviction, the appellant appealed to the Full Court of the Supreme Court of South Australia on various grounds, but the only grounds that remain relevant are those concerned with the role of the Federal Police in the events leading to his arrest. The Full Court considered the substance of those grounds accepting, as did the Director of Public Prosecutions, that procedural difficulties should not be raised against the appellant. By majority (Matheson and Duggan JJ, Legoe J dissenting), the appeal was dismissed. The appellant now appeals to this Court.
The appellant was in prison in South Australia from 1985 until he was released on parole in 1989. During that time he struck up a friendship with a fellow prisoner, Kim Chuan Lee (Lee). On his release from prison in 1987, Lee was deported to Malaysia where, unknown to the appellant, he became an informant for the Royal Malaysian Police Force, working for Assistant Superintendent Thian Soo Chong.
The appellant's parole conditions required that he not leave South Australia without prior written permission from his parole officer. However, he made contact with Lee soon after his release and travelled to Singapore without permission on 14 September 1989, using a passport issued to his brother, Alan Ridgeway. He stayed there until 20 September and, apparently, met with Lee and discussed the possibility of obtaining heroin. He returned to Adelaide on 21 September and remained in contact with Lee. On 4 October, he wrote to Lee in terms entirely consistent with his wishing to import heroin. Meanwhile, Lee had contacted Assistant Superintendent Chong and, apparently, informed him of the appellant's wishes in that regard.
On 26 October, the appellant again travelled to Singapore without permission, remaining there until 1 November 1989. He again used his brother's passport and again met with Lee. Lee made further contact with Assistant Superintendent Chong and met with him and Superintendent Butler, a Federal Police Liaison Officer stationed in Kuala Lumpur.
On his return to Adelaide, the appellant remained in contact with Lee who indicated that he was making arrangements to come to Australia. On 19 December, the appellant sent him a telegram in the following terms: "Lee urgent you ring me tonight. Are you coming on holiday or not. Cannot wait - ring me. JR." Lee arrived in Australia on 29 December 1989 with Assistant Superintendent Chong and Mrs Chong.
It is clear that Lee informed Assistant Superintendent Chong and, later, Superintendent Butler of the Federal Police that the appellant wished to obtain heroin for importation into Australia. It seems, but it is not conceded by the respondent, that Superintendent Butler was authorised by officers of the Federal Police in Canberra to arrange and did arrange for Assistant Superintendent Chong to buy and import heroin as part of a plan to trap the appellant. However, Superintendent Butler's role is of no great importance. What is important is that Lee and Assistant Superintendent Chong travelled to the north of Malaysia, near the Thai border, where they purchased the heroin for the equivalent of $A4,000 or thereabouts, and that they then brought it to Australia pursuant to arrangements made with members of the Federal Police. As part of those arrangements, members of the Federal Police organised for them to obtain visas, to travel to Singapore and catch a Qantas flight to Adelaide, arriving at 7.05 am on Friday, 29 December 1989. Arrangements were also made for a visa for Mrs Chong who, as already indicated, travelled to Adelaide with them.
Assistant Superintendent Chong was advised by officers of the Federal Police to bring the heroin to Australia in a camera bag. He was instructed to complete a Customs Declaration on the basis that he had nothing to declare. In the meantime, Detective Sweeney of the Federal Police prepared an Authority for Exemption from Detailed Customs Scrutiny (Customs Exemption Notice), had it signed by his superior officer, Superintendent Guest, and handed it to Customs officers at Adelaide International Airport. A Customs Exemption Notice is a document which members of the Federal Police can present to Customs officers so that persons carrying drugs can be "exempted from detailed Customs scrutiny and control" in accordance with a Ministerial Agreement with respect to narcotic drugs [142] . If Customs officers agree to the exemption, "total responsibility for compliance with all Customs statutory requirements [rests] with the Australian Federal Police" (par D8). It seems that the Ministerial Agreement is intended to operate to enable members of the Federal Police to pursue drug importers and their contacts, not, as it did in this case, to enable members of the Federal Police to become involved in illegally importing drugs. The effect of the Customs Exemption Notice in this case was that, although Customs officers were aware of the heroin in Assistant Superintendent Chong's possession, he was directed to the "Nothing to Declare" barrier and his baggage was not checked.
After they cleared Customs, Lee, Assistant Superintendent Chong and Mrs Chong travelled to the O'Connell Inn in North Adelaide where rooms had been reserved for them next to rooms already occupied by members of the Federal Police. Lee and Assistant Superintendent Chong were kept under surveillance at all times.
Lee apparently rang the appellant from the O'Connell Inn and, eventually, made arrangements for him and another man, Harvey, to purchase the heroin. It seems that the appellant was not expecting Lee to arrive when he did and was not able to raise the money which Lee wanted. (Lee wanted $A65,000 but this amount may have included a sum for an additional quantity of heroin to be supplied later.) Eventually, the appellant and Harvey agreed to buy the heroin for $9,000. It is common ground that that is much less than it was worth, there being 140.4 grams of pure heroin involved. It was arranged for the money to be handed over in exchange for the heroin at the Old Adelaide Inn on Sunday morning, 31 December. The transaction was completed as arranged and, shortly afterwards, the appellant and Harvey were arrested.
On his return to Malaysia, Lee was paid the equivalent of $A9,000 by the Federal Police as a reward for his part in the matter.
As already indicated, the Full Court determined the substance of the appeal notwithstanding the procedural difficulties with which the appellant might have been confronted. It proceeded on the basis that there was a discretion, either to stay the proceedings as an abuse of process or to exclude the prosecution evidence on public policy grounds, and that Judge Burnett should have exercised that discretion but failed to do so. Legoe J, dissenting, took the view that the discretion required "the illegal conduct of the prosecution witnesses [to] be assessed and compared with the extent of the appellant's alleged illegal conduct" [143] and, because that had not been done, the matter should be remitted for retrial. On the other hand, Matheson and Duggan JJ proceeded to consider whether they would have exercised the discretion in favour of the appellant and concluded that they would not. The appeal was, thus, dismissed.
Matheson J, with whom Duggan J expressed his agreement, reached his decision on the basis that the appellant instigated the importation and the police, whose actions were neither "high-handed [n]or misconceived" [144] , did not over-reach their responsibility. His Honour also concluded that there was no unfairness, apparently because the police actions did not amount to an attempt to induce him "to travel beyond the boundaries of his criminal disposition" [145] . In his separate but concurring judgment, Duggan J emphasised that "the appellant needed no persuasion to become involved in [the] illegal activity" [146] .
The oral argument for the appellant was directed, in the main, to the proposition that the indictment should have been stayed as an abuse of process. However, the written submissions extended to an alternative argument that the prosecution evidence should have been excluded in its entirety and, as well, canvassed the question whether entrapment is a substantive defence.
The argument that the indictment was an abuse of process was developed by reference to the illegality of the importation which, according to the argument, Federal Police instigated, or, at the very least, aided and abetted. It was put that that illegality gives rise to public policy considerations of the kind which found the discretion to exclude illegally obtained evidence [147] . Concentration on police illegality led to the submission that the question whether a prosecution should be stayed as an abuse of process is not to be answered by a subjective test which focuses on the disposition or criminal propensities of the accused but by reference to an objective test of the kind advanced by Frankfurter J in Sherman v United States [148] , namely, whether the illegal conduct, objectively considered, would be likely to "entrap only those ready and willing to commit crime". The difference in practical effect is, perhaps, not as great as the argument assumes.
On the other hand, the respondent argued that there was no entrapment and no abuse of process because, as was said by Gleeson CJ in R v Sloane [149] , "the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit". Alternatively, the respondent argued that the question whether there has been an abuse of process involves a weighing or balancing process of the kind identified by Legoe J in the Full Court and that, given the insidious nature of drug trafficking, the initiative taken by the appellant and the "non-serious" nature of the illegal activities of the Federal Police (in my view, a wholly inappropriate description given the deliberate nature of those offences), that balancing process must favour the respondent.
Consideration of " entrapment " by Australian courts and developments overseas
Leaving aside the special leave application in Sloane v The Queen [150] , this is the first occasion on which this Court has considered "entrapment". "Entrapment" is not a term of art; nor is it a term with any precise meaning. It has been used to cover a variety of situations in which law enforcement agents resort to undercover activity. It is not used to cover all situations of that kind; for example, it is not generally used where all that has happened is that an undercover agent has infiltrated a criminal organisation [151] or a police officer, posing as a member of the public, has purchased contraband in circumstances where it is clear that it is generally available [152] . It is commonly used when law enforcement agents or persons who are "authorised" by them in that regard incite the commission of an offence or participate in some more positive way in the criminal enterprise giving rise to the offence with which the accused is charged.
"Entrapment" has been considered in a number of recent Australian cases. Naturally, the cases have taken account of the law of the United Kingdom and of developments in Canada and the United States of America. As well, they have taken account of and, outside New South Wales, have generally proceeded on the basis that "entrapment" engages the principles elaborated in Bunning v Cross [153] with respect to the discretion to exclude illegally or improperly obtained evidence.
The Australian cases favour the view that there is no substantive defence of entrapment [154] and arguments in favour of a substantive defence, as exists in the United States of America, were expressly rejected in several cases [155] . In New South Wales, the cases have usually proceeded on the basis that, in some circumstances, a prosecution based on entrapment may constitute an abuse of process requiring the prosecution to be stayed [156] . In other Australian jurisdictions, the cases have generally proceeded on the basis that there is a discretion based on Bunning v Cross to exclude some or all of the prosecution evidence and that the discretion involves a balancing exercise which takes account of the illegal activities of the law enforcement agents and the criminality of the accused [157] . In all jurisdictions and regardless of the approach adopted, the cases favour the view that relief should only be granted if the accused "otherwise would not have committed or would have been unlikely to commit [the offence]" [158] .
The Australian decisions to the effect that there is no substantive defence of entrapment accord with the decision of the House of Lords in R v Sang [159] and that of the Supreme Court of Canada in R v Mack [160] . The view that there may be circumstances in which prosecution of an "entrapped" person constitutes an abuse of process is also in line with the Canadian decision in Mack. The generally accepted test as to whether relief should be granted, namely, whether the accused would not otherwise have committed the offence, is similar to the approach adopted by the Supreme Court of the United States. That approach - "the subjective approach" - focuses upon the predisposition of the accused to commit the crime charged or to commit crimes of that nature, with the consequence that there is a defence of entrapment only if law enforcement agents "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission" [161] .
It remains to be noted that in Canada the question whether a stay should be granted is answered by reference to the actions of the law enforcement agents and, in cases where they are acting on a reasonable suspicion or in the course of a bona fide inquiry, the question is whether "they [have gone] beyond providing an opportunity and induce[d] the commission of an offence" [162] . In that context, it has been said that "it is useful to consider whether the conduct would have induced the average person in the position of the accused, ie, a person with both strengths and weaknesses, into committing the crime" [163] . A somewhat similar approach is adopted in some States of the United States, including Alaska, where the test is whether a law enforcement agent has induced "another person to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who is ready and willing, to commit such an offense" [164] .
Insanity and duress aside, the criminal law has developed in this and other common law countries on the basis that criminal liability attaches if a person "intends to commit a crime and actually commits it" [165] . Whether entrapment is approached from the perspective of public policy or from the perspective of unfairness to the accused, there is, in my view, no basis for the development of a substantive defence of entrapment. Neither public policy nor considerations of fairness bear on the questions which determine criminal liability, namely, whether the accused intended to commit the crime charged or whether he actually committed it.
It may also be noted, in this context, that the substantive defence of entrapment recognised by the Supreme Court of the United States is not founded on public policy considerations - at least not directly - but is based on a rule of statutory construction which implies an intention on the part of Congress to allow an exception from the words of the statute which creates the offence, the exception beingco-extensive with the notion of entrapment as judicially developed [166] .
" Entrapment ", public policy and the Bunning v Cross discretion
As already indicated, the appellant's primary argument with respect to "entrapment" was made from a public policy perspective. The argument concentrated on the serious nature of breaches of the criminal law by those whose duty it is to uphold it. In my view, that aspect of public policy, if viewed in isolation, is of little significance.
As already indicated, the criminal law has developed on the basis that criminal liability attaches if a person "intends to commit a crime and actually commits it" [167] . And that is so no matter that the person concerned is acting for or on behalf of a law enforcement agency or some other arm of executive government [168] . Thus, and as a matter of legal principle, law enforcement agents who engage in criminal activity are criminally liable for their actions and liable to punishment accordingly. Public policy is expressed in the principles that hold them responsible for their criminal acts and, in my view, no other form of condemnation is necessary.
There is no doubt that public policy considerations of the kind relied on by the appellant have a significant role in the Bunning v Cross discretion, which the appellant argued should be extended to permit the prosecution evidence to be excluded in its entirety. Clearly, there may be entrapment cases involving illegally obtained evidence and calling for the exercise of the Bunning v Cross discretion. However, the argument that that discretion should be extended to provide, in an appropriate case, for the exclusion of the prosecution evidence in its entirety does not, in my view, warrant extensive consideration.
The Bunning v Cross discretion involves the balancing of the public interest in ensuring that law enforcement agents observe the law in the course of their investigations with the public interest in the detection and prosecution of crime. The discretion allows that, as a result of that exercise, evidence may be excluded if it is illegally or improperly obtained. It seems to me that the argument that the prosecution evidence should be excluded in its entirety, even though some or all of it was obtained quite properly, proceeds on an assumption that the balancing exercise involved in the Bunning v Cross discretion may lead to the conclusion that the prosecution should not have been brought. If it does not involve that assumption, it certainly permits of the possibility that, for reasons of public policy, a court will prevent the prosecution from proceeding.
The courts can intervene to prevent an abuse of process, whether in the exercise of their civil or criminal jurisdiction [169] . But it is well settled that, abuse of process apart, it is not for the courts to concern themselves with the question whether criminal proceedings should be instituted or maintained [170] . And that is as it must be: it would be completely incompatible with the judicial process and with public confidence in the administration of the criminal law if, there being no abuse of process, the courts were to involve themselves in that issue. It follows, in my view, that there is no scope for the extension of the Bunning v Cross discretion to bring a prosecution to a halt by the exclusion of the prosecution evidence in its entirety: if a prosecution is to be brought to a halt it can only be because, in the circumstances, it constitutes an abuse of process.
The inherent [171] powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice [172] . And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice [173] .
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose [174] , as well as proceedings that are "frivolous, vexatious or oppressive" [175] . This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard [176] . That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" [177] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case [178] . That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose [179] and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" [180] or "productive of serious and unjustified trouble and harassment" [181] .
There is a preliminary issue involved in the question whether a prosecution based on entrapment can constitute an abuse of process, namely, whether, in criminal cases, that concept is limited to the situation where the accused cannot receive a fair trial [182] . It was acknowledged in Williams v Spautz [183] that the public interest in ensuring that the courts exercise their jurisdiction - particularly their criminal jurisdiction - rather than refrain from so doing, means that it cannot often be the case that criminal proceedings constitute an abuse of process if a fair trial can be had. This notwithstanding, it was held in that case that proceedings brought for an improper purpose constitute an abuse of process whether or not a fair trial is possible [184] . And the view of the majority in Walton v Gardiner [185] was that that is also true in the case of oppression. However, the latter case was not concerned with criminal proceedings but with the proceedings of a disciplinary tribunal.
As already indicated, criminal proceedings constitute an abuse of process if brought for an improper purpose even though it is possible for the accused to receive a fair trial. There is no logic in a distinction which would allow that criminal proceedings must be stayed on the ground of improper purpose, even if a fair trial can be had, but may not be stayed, for example, for oppression. Moreover, that distinction is untenable in the face of the examples given by Deane J in Jago v District Court (NSW) where his Honour observed that "[m]ultiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and, depending on the particular facts, provide examples [of an abuse of process]" [186] . That is because prosecutions brought or maintained in such circumstances might serve the ends of injustice, rather than justice, and might adversely affect public confidence in the courts and in their proceedings.
Public confidence could not be maintained if the courts were to permit prosecutions to proceed in circumstances where a fair trial was impossible. However, and although there is a clear public interest in ensuring that the courts exercise their criminal jurisdiction rather than refrain from so doing, it is simply not possible to say that, so far as criminal proceedings are concerned, the inability of a court to ensure a fair trial is the only matter which could or might adversely affect public confidence. That being so, the question whether a prosecution based on entrapment involves an abuse of process is to be approached on the basis that, in criminal proceedings, abuse of process does not depend exclusively on whether or not a fair trial can be had.
As already indicated, the word "entrapment" is used in various different situations. For present purposes it is sufficient to concentrate on the situation in which the accused person could not or would not have committed the offence with which he is charged if law enforcement agents or those acting on their behalf had not acted illegally, whether by aiding, abetting, procuring or inciting him to commit the offence or by participating in some more positive way in its commission. (The theoretical possibility that an offence might be committed as a result of the lawful actions of police or other law enforcement agents can be considered if and when a case of that kind occurs.) It may be convenient to refer to cases involving offences committed as a result of the illegal acts of law enforcement agents as "entrapment", but the critical consideration, in my view, is whether the offence results from the criminal acts of law enforcement agents or those acting on their behalf.
Cases involving offences committed as a result of the illegal acts of law enforcement agents may conveniently be contrasted with those recognised as falling outside the concept of "entrapment" by the Supreme Court of Canada in R v Mack, namely, cases in which police or other law enforcement agents merely provide the opportunity for the commission of crime. In cases of "mere opportunity", the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it. But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances the accused and society in general may well view prosecution as a serious injustice.
But what is more important is that the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.
So far as public confidence in the administration of justice is concerned, the position is even worse if, as is usually the case, the law enforcement agents or those acting on their behalf are not brought to account for their criminal acts. In cases of that kind, the courts are brought into greater disrepute because they give the appearance of sanctioning illegality. And that appearance is given even if criticism is made of the police conduct involved. Indeed, criticism may well appear to be mere humbug and, itself, lead to a further erosion of confidence in the courts.
The prosecution of an offence which results from the illegal acts of law enforcement agents is not vexatious or oppressive, in the sense that those terms are generally understood. Nor is it properly described as a proceeding the predominant purpose of which is improper, that being the accepted test whether proceedings have been brought for an improper purpose [187] . That is because, ordinarily, law enforcement agents will have acted, as they say they did in this case, solely or mainly for the purpose of investigating or detecting crime. Equally, prosecution authorities will ordinarily have acted, as they also say they did in this case, solely or mainly for the purpose of ensuring the prosecution of those who perpetrate crime. But those considerations are beside the point when the inevitable consequence of the proceedings is to weaken public confidence in the administration of justice. Proceedings of that kind are, on that account, an abuse of process. And that is so no matter the purpose or motive with which they are brought and no matter that a fair trial is possible.
The question whether an accused would not have committed the offence charged if law enforcement agents had not in some way incited or participated in its commission is a question of causation. It may be that, in some cases, it is more accurately described as a question of the causative influence of an inducement. But however it is described, it is a question to be decided as a matter of common sense and experience [188] , not by some hard and fast test which focuses on the disposition of the accused. Of course, disposition will be relevant in some cases, but even then, it may not be decisive. And in some cases - the present case is one - disposition may be of no relevance at all.
It may be accepted that the appellant did no more than he was disposed to do and that he, himself, took the initiative to bring about an importation of heroin. But initiative, without more, would not have resulted in the commission of the offences with which he was charged. That depended on the heroin being imported illegally. That is so even in relation to the lesser charge of possession of heroin reasonably suspected of having been illegally imported, for, as already indicated, heroin is not produced in Australia. It is not to the point that the appellant would have involved himself in the illegal importation of heroin if he could have arranged it. The fact is that the heroin which was the subject of the charges was imported illegally for or on behalf of members of the Federal Police who took advantage of the appellant's criminal intent. They took advantage of that intent to the point that they involved themselves in illegally importing the heroin so that he would commit and would be caught committing an offence under the Act. They achieved their purpose and, in those circumstances, the offences with which he was charged can readily be seen as resulting from their criminal acts.
The appeal should be allowed and the conviction quashed. It should be ordered that there be a permanent stay of proceedings on the indictment [189] .
The appellant was convicted in the District Court of South Australia of an offence of having, without reasonable excuse, possession of a prohibited import, namely 140.4 grams of heroin which had been imported into Australia in contravention of the Customs Act 1901 Cth (s 233B(1)(c)). He appealed to the Full Court of the Supreme Court of South Australia against his conviction contending that the trial judge had erred in refusing to order a stay of the charge. The appellant contended that the trial judge should have stayed the indictment because the heroin had been imported into Australia with the assistance of members of the Australian Federal Police who had obtained the agreement of Customs officials not to apprehend the person bringing the heroin into Australia. Alternatively, the appellant alleged that his conviction should be quashed on the ground that, in the exercise of his discretion, the trial judge should have rejected evidence concerning the appellant's possession of the heroin. By majority (Matheson and Duggan JJ, Legoe J dissenting), the Full Court dismissed the appeal. Pursuant to the grant of special leave, the appellant now appeals to this Court contending that the charge against him should have been stayed or, alternatively, that the trial judge should have rejected evidence concerning the possession of the heroin. In my opinion, the appeal should be dismissed.
The appellant and Kim Chaun Lee were imprisoned together in South Australia during 1985-1987. The appellant was serving a long sentence for offences involving the drug cannabis. Lee had been imprisoned for importing heroin into Australia. He was released from prison in August 1987 and deported to Malaysia. The appellant was released from prison in February 1989. In September and October 1989, he travelled to Singapore under a false name and in breach of his parole conditions. In Singapore, he met Lee and solicited him to import heroin into Australia. Unbeknown to the appellant, Lee had become an informer for the Royal Malaysian Police Force. The officer who "ran" Lee was Thian Soo Chong, an Assistant Superintendent of Police. Lee kept Superintendent Chong informed of his dealings with the appellant. In turn Superintendent Chong alerted Superintendent Butler, an Australian Federal Police officer stationed in Kuala Lumpur, as to the plans of the appellant. With the knowledge, if not the encouragement of the Australian Federal Police, Superintendent Chong and Lee purchased heroin in north Malaysia for about $4,000 on 18 December 1989 for the purpose of delivering it to the appellant in Australia.
On 19 December 1989, the appellant sent a telegram to Lee which stated: "Lee urgent you ring me tonight. Are you coming on holiday or not. Cannot wait - ring me." Arrangements were made by members of the Australian Federal Police and the Royal Malaysian Police Force for Superintendent Chong and Lee to travel to Australia carrying the heroin in a plastic bag inside a tissue box which was in a camera bag. Australian Federal Police officers took steps to ensure that Superintendent Chong - who was carrying the heroin - was not searched or detained by Australian Customs officers. In taking these steps, the Federal Police officers appear to have thought that they were acting in accordance with a Ministerial Agreement that provides that, with the agreement of Customs officials, "total responsibility for compliance with all Customs statutory requirements" lies with the Australian Federal Police. However, whatever the legal effect of the Ministerial Agreement may be, it seems to be directed at the surveillance of drug importers and their associates. It is not, and could not lawfully be, intended to authorise members of the Australian Federal Police or their agents to import drugs in breach of the Customs Act.
Lee and Chong arrived at Adelaide airport on the morning of 29 December 1989. Later that day and on the following day, Lee met the appellant and another man. On 31 December, the appellant purchased the heroin for the sum of $9,000 which was substantially less than the true value of the heroin. It seems likely that the heroin would have been sold to the appellant for whatever amount he was prepared to pay. Shortly after the sale had taken place, the appellant was arrested by Australian Federal Police officers. Subsequently, he was charged over his possession of the heroin.
(1) Is it a "defence" to a prosecution under Australian law that the offence that is the subject of the prosecution was induced by or was the direct result of unlawful or improper conduct of law enforcement officers?
(2) If not, are there any circumstances where a trial judge is entitled to reject or refuse to act upon evidence proving that a person has committed an offence which was induced by or was the direct result of the unlawful or improper conduct of law enforcement officers? If there are, should the trial judge reject the evidence or order a stay of the prosecution?
At common law, a person of full age and sound mind is liable to be punished for any voluntary act or omission that the law forbids or requires on pain of punishment unless the act was done or omitted without wrongful intent or guilty mind. In some cases - usually offences of a minor nature - the element of intent or guilty mind may not be a condition of liability. And, murder apart, a person will not be liable even for a voluntary act or omission if it was the result of duress. But, in the absence of a statutory justification, it is no defence to a criminal charge that the accused was induced by others to commit it. In R v Sang [190] , Lord Salmon remarked that:
A man who intends to commit a crime and actually commits it is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom. In Sang, the House of Lords held that it was not a defence to a criminal charge that the accused was induced by a police informer to commit an offence which he would never have committed but for the inducement of the informer. The House of Lords also held that a trial judge has no discretion to exclude evidence of an offence that is induced by an agent provocateur. 1. [1980] AC 402 at 443.
Nor is the position any different when the accused has been induced to commit an offence by the conduct of law enforcement officials. Law enforcement officials are not exempted from the operation of the criminal law. If their acts or omissions induce a person to commit a crime, they are liable to be punished as principals or accessories. It is no answer that they acted with the best of motives. In A v Hayden [No 2] [191] , Gibbs CJ said that it "is fundamental to our legal system that the executive has no power to authorise a breach of the law". When a law enforcement official induces a person to commit a crime, both are in breach of the criminal law and are liable to be punished accordingly.
For these reasons Australian courts have rejected a substantive defence of entrapment [192] . So have courts in New Zealand [193] and Canada [194] .
A different view is taken in the United States where a substantive defence of "entrapment" is recognised [195] . In Sorrells v United States [196] , Hughes CJ, delivering the judgment of the majority, said that there was a defence to a criminal charge "when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute". In Sherman v United States [197] , Warren CJ, speaking for the majority of the Court, said:
However, the fact that government agents "merely afford opportunities or facilities for the commission of the offense does not" constitute entrapment. Entrapment occurs only when the criminal conduct was "the product of the creative activity" of law-enforcement officials To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an "appropriate and searching inquiry into his own conduct and predisposition" as bearing on his claim of innocence. 1. 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. 2. (1932) 287 US 435 at 442. 3. (1958) 356 US 369 at 372-373.
In the United States, the defence of entrapment is based on the theory that Congress could not have intended that its statutes were to be enforced by inducing innocent people to commit crimes. But it would not accord with the Anglo-Australian approach to statutory construction to construe the statutes of the federal and State parliaments in accordance with that or any similar theory. Moreover, no similar theory is recognised by the common law, and many criminal offences in this country are either based on the common law or constitute statutory modifications of the common law.
Accordingly, neither the existing law nor any legitimate modification of the principles of criminal responsibility provides any basis for a claim that Australian law recognises a substantive defence of entrapment by law enforcement officials.
The appellant contends that, where evidence tendered for the prosecution is the product of unlawful or improper conduct on the part of law enforcement authorities, the trial judge has a discretion to exclude the evidence on the grounds of public policy. Accordingly, the appellant contends that public policy required that evidence proving his possession of the prohibited import should have been excluded because it was imported with the assistance and encouragement of the Federal Police for the purpose of inducing him to commit the offence for which he was convicted. In my opinion, the first contention of the appellant is correct, but the second is not.
A trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused [198] . The discretion to exclude such evidence is grounded in public policy. The trial judge must weigh two aspects of the public interest. First, the judge must weigh the admission of the evidence against the public interest in convicting those who break the law in question. Second, the judge must weigh the admission of the evidence against the public interest in ensuring that public confidence in the justice system is not undermined by the perception that the courts of law condone or encourage unlawful or improper conduct on the part of those who have the duty to enforce the law [199] . Ultimately, the judge must determine whether the public interest will be advanced or impaired by admitting the evidence. Any unfairness to the accused in admitting such evidence is a factor which is relevant to the exercise of the discretion, but it is only a factor [200] which might tilt the balance in a close case. Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused's defence.
In Bunning v Cross [201] , Stephen and Aickin JJ thought that the principal area of operation of this public policy discretion would be "in relation to what might loosely be called "real evidence", such as articles found by search, recordings of conversations, the result of breathalyser tests, fingerprint evidence and so on". But, as the recent judgment of this Court in Foster v The Queen [202] demonstrates, the discretion is exercisable in respect of any form of evidence [203] . However, the present case is different from the four cases where this Court has examined the public policy discretion [204] . Those four cases were concerned with conduct whose purpose or effect was to obtain evidence to prove a crime that had already been committed. The present case is concerned with the admissibility of evidence concerning conduct that induces a person to commit a crime.
In R v D'Arrigo [205] , the Court of Criminal Appeal of the Supreme Court of Queensland saw no difference between the two classes of case [206] . It held that the public policy discretion was exercisable in a case where the evidence against the accused consisted of the testimony of a government witness who was participating in a police undercover operation and who had participated in the crimes with which the accused was charged. Dowsett J, who gave the leading judgment, said [207] that although there "may be a theoretical distinction between evidence obtained by illegal means and evidence obtained in the course of illegal conduct [t]he policy considerations underlying the discretion to exclude indicate that such discretion should be available in either case". Because his Honour was satisfied that the undercover agent had committed offences which "were counselled or procured" by persons in authority and that "this illegality led directly to the obtaining of the evidence given against the [accused]", the conviction was quashed and a verdict of acquittal entered. In R v Stead [208] , on the other hand, the Court of Appeal of Queensland held that a trial judge had not erred in admitting evidence from the same undercover witness that was obtained in similar circumstances.
In my opinion, the public policy ground for excluding evidence that was recognised by this Court in Bunning v Cross and later cases should not be applied when an accused person seeks to exclude evidence of a crime on the ground that he or she was induced to commit the crime by reason of the unlawful or improper conduct of law enforcement officials. The policy considerations that are applicable in such a case are not identical with the considerations that are applicable in a case where the crime was not induced by police misconduct. Moreover, the focus of the decision and the weight to be given to identical policy considerations differ in each case. In addition, the remedy of excluding evidence that falls within the Bunning v Cross discretion does not deal satisfactorily with all the problems that arise when the conduct of law enforcement officials induces or results in the commission of criminal offences.
When the misconduct of law enforcement officials has induced or resulted in the commission of a crime that is the subject of a prosecution, the administration of justice is brought into disrepute [209] . But other issues are involved in such a case that are not present when the issue is whether, on public policy grounds, a judge should exclude evidence of a crime that was not induced by law enforcement officials. It is the function of the State to protect the citizen from the incidence of crime and it is contrary to that function for the State to engage in conduct that increases the incidence of crime in the community. As Frankfurter J pointed out in his concurring judgment in Sherman [210] :
The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptation without government adding to them and generating crime. Nevertheless, in their increasingly difficult battle against crime - particularly organised crime - law enforcement authorities cannot be criticised for taking initiatives to apprehend those who make a business of crime or are about to embark on a course of criminal activity [211] . Where there are no "victims" or there is none who is willing to co-operate with the law enforcement authorities, the taking of steps to apprehend such persons is often a social necessity. The State is entitled to protect itself against likely criminal activity [212] . Merely setting a trap for and consequently apprehending and charging a person whose business is criminal activity or who is about to commit a criminal offence does not in my view offend the community's sense of justice. Provided there is some basis for the entrapment and the means used have not induced the person to commit an offence that that person would not otherwise have committed, the public interest does not require the condemnation of methods of entrapment that result in the apprehension of those who make a business of crime or are about to embark on a course of criminal activity. 1. Amato (1982) 69 CCC (2d) 31 at 61; R v Jewitt (1985) 21 CCC (3d) 7 at 23; Mack (1988) 44 CCC (3d) 513 at 525-526; Hsing (1991) 25 NSWLR 685 at 696. 2. (1957) 356 US 369 at 384. 3. R v Kirzner (1977) 38 CCC (2d) 131 at 134-136 cited in Vuckov and Romeo (1986) 40 SASR 498 at 502-504; Sherman (1958) 356 US 369 at 372. 4. cf Fisse, Howard's Criminal Law, 5th ed (1990), pp 580-581.
When the misconduct of law enforcement officials induces or results in a crime, the two aspects of the public interest involved in the Bunning v Cross discretion, while of great importance, cannot be the focus of inquiry. The nature of the inducement to commit the offence and the reasons for offering the inducement must be the centre of the inquiry whether one considers the aspect of inducement, subjectively, by examining its effect on the particular accused or, objectively, by examining its effect on a hypothetical ordinary citizen. The public policy discretion, as formulated in Bunning v Cross, is not concerned with the cause of a crime. That discretion focuses on conduct that occurs after a crime is committed. The cause of the crime lies outside the scope of the inquiry as to how the discretion should be exercised. But when a court is asked to intervene - whether by substantive defence, rejection of evidence or stay of proceedings - to prevent the prosecution from proving a crime that was induced by or was the result of the misconduct of law enforcement officials, the effect of that misconduct on the accused or, alternatively, on an ordinary citizen must be central to the inquiry. The misconduct of the law enforcement official is obviously of great importance, and so is the need to maintain confidence in the administration of justice. But the effect of the conduct on the accused or on a hypothetical ordinary citizen is crucial.
Where a crime has been committed and evidence against the accused has been obtained by unlawful or improper conduct, the remedy, if public policy requires one, is to exclude the evidence. Neither public policy nor the administration of justice is offended if the trial proceeds on any other evidence that is available to prove the guilt of the accused. Where the conduct of law enforcement officers has had the consequence that a person has committed a crime, however, the Bunning v Cross remedy of excluding evidence obtained by the misconduct of law enforcement officials may not be sufficient to do justice to the case. In some cases, for example, the misconduct of the police officers may not touch the constituent elements of the crime. In the present case, the appellant could have been charged under South Australian law with possession of more than the prescribed quantity of a drug of dependence or prohibited substance for the purpose of sale or supply. That offence carried a maximum penalty of imprisonment for twenty-five years and a fine of $200,000 [213] . If the appellant had been charged under South Australian law, his possession might have been proved without any evidence concerning the means by which the heroin entered Australia and perhaps without the need to call any officer of the Australian Federal Police Force. If the public policy discretion, as formulated in Bunning v Cross governed the case, the misconduct of the law enforcement officials would not have been a factor to be considered. The public policy discretion is concerned only with the rejection of evidence obtained by unlawful or improper means and is not directed to the wider issues that are likely to be involved in cases of entrapment, one of which is whether a prosecution should be allowed to proceed at all.
For the foregoing reasons, it is unsatisfactory to apply the public policy discretion, as formulated in Bunning v Cross, to a case where an accused person contends that the prosecution should be prevented from proving the commission of a crime that was induced or was the result of the misconduct of a law enforcement official. What is required is a more comprehensive conceptual framework for identifying the cases which are likely to bring the processes of the courts into disrepute by reason of a perception that their processes are being used to prosecute people whose offences have been artificially created by the misconduct of law enforcement officials. What is also required is a remedy that will prevent such perceptions arising. It is convenient to turn at once to the question of remedy.
When the commission of an offence is induced by or resulted from the misconduct of law enforcement officials, the appropriate remedy is to stay any prosecution of the offence. As I have already pointed out, the administration of justice is brought into disrepute when the Crown prosecutes a person for an offence that was induced by or resulted from the misconduct of law enforcement officials [214] . Proceedings that bring the administration of justice into disrepute are an abuse of process. And it is settled law that the courts have jurisdiction to stay criminal proceedings on the ground that they are an abuse of process [215] .
When crimes induced by or which result from the misconduct of public officials bring the administration of justice into disrepute, the only effective sanction against that misconduct, apart from prosecuting the officers involved, is to grant a stay of the prosecution. And in my opinion the courts of justice cannot leave the protection of their processes to the remedy of prosecution. As Lord Devlin pointed out in Connelly v Director of Public Prosecutions [216] :
The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused. 1. [1964] AC 1254 at 1354.
In the United States, Roberts J expressed a similar view in Sorrells [217] when his Honour said:
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. 1. (1932) 287 US 435 at 457.
Consequently, the courts must protect themselves by making use of the remedy of the stay of proceedings. Australian [218] and Canadian [219] courts have already held that the jurisdiction to stay criminal proceedings extends to cases where the misconduct of law enforcement officials has induced or resulted in the accused committing a crime. In Mack [220] , Lamer J, delivering the judgment of the Court, said:
In the entrapment context, the court's sense of justice is offended by the spectacle of an accused being convicted of an offence which is the work of the state The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the court is primarily concerned with a larger issue: the maintenance of the public confidence in the legal and judicial process. The Australian and Canadian cases that have held that a stay is the appropriate remedy in entrapment cases are correct in principle and should be followed in this Court. Independently of any executive action taken against the law enforcement officials involved, the courts of justice must protect the administration of justice by staying any proceedings brought as the result of misconduct that induces a citizen to commit an offence that would not otherwise have been committed. 1. Sloane (1990) 49 A Crim R 270 at 272; Hsing (1991) 25 NSWLR 685 at 695-696; Thompson & Thompson (1992) 58 A Crim R 451 at 454; Steffan (1993) 30 NSWLR 633 at 641. 2. Amato (1982) 69 CCC (2d) 31 at 61; Mack (1988) 44 CCC (3d) 513 at 525-526. 3. (1988) 44 CCC (3d) 513 at 542.
In Sloane [221] , Gleeson CJ said that "whatever its precise legal effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit". This test has been followed in subsequent New South Wales cases [222] . It focuses on the disposition of the accused to commit the crime in question. Its formulation has been influenced by the debate in the United States where the subjective test applies [223] but has been strongly criticised by those who favour an objective test. The leading judicial critic of the subjective test in the United States is Frankfurter J, with whose concurring judgment in Sherman [224] Douglas, Harlan and Brennan JJ agreed. His Honour said:
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 [225] : 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. 1. (1990) 49 A Crim R 270 at 272-273. 2. Hsing (1991) 25 NSWLR 685 at 693; Thompson & Thompson (1992) 58 A Crim R 451 at 454; Steffan (1993) 30 NSWLR 633 at 643. 3. Sorrells (1932) 287 US 435 at 448; Sherman (1958) 356 US 369 at 376; Russell (1973) 411 US 423 at 428-429; Hampton (1976) 425 US 484 at 488-489. 4. (1958) 356 US 369 at 382-383. 5. Sherman (1958) 356 US 369 at 383-384.
In R v Hsing [226] , Samuels JA said that he preferred the objective test but was bound by Sloane to apply the subjective test.
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.
However, the objective test, as formulated by Frankfurter J, is also open to criticism [227] : (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 Supreme Court of Canada has extensively examined the doctrine of entrapment in a number of cases [228] . The test formulated by that court rejects the subjective test formulated by the majority of the United States Supreme Court in Sorrells [229] . The Canadian test focuses on the conduct of the police. In Mack [230] , 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 [231] 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.
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.
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 predisposition 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 [232] . 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.
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 [233] . Governments are the agents of the people. Since the enactment of the Australia Act 1986 UK, the powers of government in this country are derived from the people who are the ultimate sovereign [234] . No government in a democratic state has an unlimited right to test the virtue of its citizens [235] . Testing the integrity of citizens can quickly become a tool of political oppression and an instrument for creating a police state mentality [236] . 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 [237] . 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 [238] . 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.
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
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.
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.
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.
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.
Ridgeway
The Queen
(1991) 25 NSWLR 685
(1993) 30 NSWLR 633
(1985) 40 SASR 489
(1986) 40 SASR 498
(1987) 45 SASR 212
(1984) 156 CLR 532
(1978) 141 CLR 54
(1948) 76 CLR 501
(1950) 82 CLR 133
(1982) 151 CLR 1
(1992) 176 CLR 177
(1993) 67 ALJR 550
(1970) 126 CLR 321
(1977) 137 CLR 517
(1981) 145 CLR 395
(1984) 152 CLR 528
(1990) 171 CLR 207
(1980) 147 CLR 75
(1989) 168 CLR 23
(1992) 174 CLR 509
(1992) 177 CLR 292
(1984) 2 NSWLR 554
(1963) 109 CLR 559
(1985) 157 CLR 523
(1904) 2 CLR 139
(1993) 60 SASR 207
(1993) 177 CLR 378
(1985) 62 ALR 460
(1987) 11 NSWLR 561
(1990) 171 CLR 1
(1988) 165 CLR 197
(1989) 166 CLR 486
(1987) 162 CLR 612
(1994) 68 ALJR 688
(1991) 171 CLR 506
(1992) 177 CLR 106