Robinson v Woolworths Ltd

CATCHWORDS: EVIDENCE - s138 of the Evidence Act 1995 (NSW) - improperly obtained evidence - whether prosecuting authority acted 'improperly' in procuring minors to purchase cigarettes as part of 'compliance testing' - extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) - consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that 'prosecution is used by public health units and the department as a last resort' informed the propriety of the conduct of the Department of Health for the purposes of s138

Bill of Rights 1688 (Imp) Corruption and Crime Commission Act 2003 (WA) Crimes Act 1914 (Cth) Crimes (Amendment) Act 1924 (NSW) Crimes (Amendment) Act 1929 (NSW) Crimes (Amendment) Act 1951 (NSW) Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) LEGISLATION CITED: Imperial Acts Application Act 1969 (NSW) Justices Act 1902 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW) Magistrates (Summary Proceedings) Act 1975 (Vic) Parliamentary Privileges Act 1987 (Cth) Police Powers and Responsibilities Act 2000 (Qld) Public Health Act 1991 (NSW) Road Transport (Safety and Traffic Management) Act 1999 (NSW) The Criminal Law (Undercover Operations) Act 1995 (SA) Traffic Act 1909 (NSW)

Amann Aviation Pty Ltd v The Commonwealth (1988) 19 FCR 223 Cleland v The Queen (1982) 151 CLR 1 Clyne v Wrigley [1980] 1 NSWLR 599 Comptroller-General of Customs v D'Aquino Ross Pty Ltd (1996) 85 A Crim R 517 Director of Public Prosecutions v Carr (2001) 127 A Crim R 151 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Employment Advocate v Williamson [2001] FCA 1164 Hamsher v Swift (1992) 33 FCR 545 Latoudis v Casey (1990) 170 CLR 534 Mees v Roads Corporation (2003) 128 FCR 418 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Nottingham City Council v Amin [2000] 1 WLR 1071 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 Papakosmas v The Queen (1999) 196 CLR 297 Proust v Blake (1989) 17 NSWLR 267 R v C (1997) 97 A Crim R 81 R v Coulstock (1998) 99 A Crim R 143 R v Dalley (2002) 132 A Crim R 169 CASES CITED: R v Fraser [1977] 2 NSWLR 867 R v Hsing (1992) 25 NSWLR 685 R v Jackson (1987) 8 NSWLR 116 R v Ladocki [2004] NSWCCA 336 R v Looseley [2001] 1 WLR 2060 R v Mack (1988) 44 CCC (3d) 5132 R v Madden (1995) 85 A Crim R 367 R v Mehajer and Jacobs [2003] NSWSC 318 R v Moussa (2001) 125 A Crim R 505 R v Murphy (1986) 5 NSWLR 18 R v Sirocic [2000] NSWCCA 327 R v Sloane (1990) 49 A Crim R 270 R v Snow (1915) 20 CLR 315 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Van der Lubbe (1949) 49 SR 309 Rice v Tricouris (2000) 110 A Crim R 86 Ridgeway v The Queen (1994) 184 CLR 19 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Thompson v Mastertouch TV Service Pty Ltd (No. 3) (1978) 38 FLR 397 Young v Campbell (1948) 49 SR (NSW) 103

Dr Denise Robinson (Applicant) PARTIES: Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) (Respondent)

R. Cogswell SC (Applicant) COUNSEL: J. Galluzzo/J. Raine (Respondent)

I V Knight, Crown Solicitor (Applicant) SOLICITORS: John P. Goold (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2005/867 DC 04/12/1872

BASTEN JA BARR J HALL J

14 December 2005 DR DENISE ROBINSON v WOOLWORTHS LTD (T/as WOOLWORTHS PLUS PETROL WERRINGTON) This is an appeal by way of a stated case from the District Court under s5B of the Criminal Appeal Act 1912 (NSW).

The Department of Health procured minors to purchase cigarettes from retailers as part of its investigation into compliance with s59(1) of the Public Health Act 1991 (NSW) which prohibits the supply of cigarettes to minors. An employee of Woolworths sold cigarettes to a minor so procured by the departmental officers.

The issue for determination by the Court of Criminal Appeal was whether the conduct of the officers in obtaining the evidence of the minor purchasing the cigarettes was 'improper' for the purposes of s138 of the Evidence Act 1995 (NSW).

Notwithstanding that the clear intention of s138 is to replace the general law discretion to exclude improperly or illegally obtained evidence, since the Evidence Act does not define the concept impropriety, in the absence of any necessary intention on the part of the legislature to vary the principles collected in Ridgeway v the Queen, those principles should be applied: at [22] and [24].

Papakosmas v The Queen (1999) 196 CLR 297 referred to.

To establish impropriety it is necessary, first, to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: at [23].

The onus lay on the party resisting admission of the evidence, to establish impropriety: at [33].

In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety: at [36].

The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation.

The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no inappropriate harassment.

The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes.

In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.

Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependant on receipt of complaints.

A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.

The conduct of the Department was not capable of constituting impropriety for the purposes of s138 of the Evidence Act: at [46] - [47].

1. There was nothing about the conduct of the young women in the nature of enticement or inducement or persuasion. Accordingly an inference may readily be drawn that , on the probabilities, the cashier employed by the respondent would have sold to underage persons without checking for or requiring proof of age: at [105].

2. The conduct and circumstances of the sale of the cigarettes were consistent with the conduct which is to be expected of an ordinary customer and there was no conduct involving trickery or deceit practiced upon the cashier: at [105].

3. The whole purpose of the operation was the random checking by way of a compliance exercise. There is no evidence or suggestion of any extraneous purpose or of mal fides or lack of good faith by those relevantly involved in the operation: [at 105].

4. The onus lay upon the respondent to establish that there was improper conduct which was productive of or was the cause of the challenged evidence. R v Sloane (1990) 49 A Crim R 270, R v Coulstock (1998) 99 A Crim R 143, R v Dalley (2002) 132 A Crim R 169 and R v Ladocki [2004] NSWCCA 336 referred to.

IN THE COURT OF CRIMINAL APPEAL CCA 2005/867 DC 04/12/1872

BASTEN JA BARR J HALL J

14 December 2005 DR DENISE ROBINSON v WOOLWORTHS LTD (T/as WOOLWORTHS PLUS PETROL WERRINGTON) Judgment 1 BASTEN JA: Part 6 of the Public Health Act 1991 (NSW) creates a number of offences with respect to the supply of tobacco. In particular, Division 3 creates offences in relation to the supply of tobacco products to persons under the age of 18 years: Public Health Act, s 59(1). There is a statutory defence open in relation to a supply to a person over the age of 14, where the Court is satisfied that documentary evidence was produced to the defendant "that might reasonably be accepted as applying to the person … and as proving that the person was at least 18 years of age": s 59(2). 2 Both this case and a separate matter heard concurrently with this case indicate that the Department of Health undertakes a program of "compliance testing" designed to identify those who would sell cigarettes to persons under 18 years of age. Officers in the Department of Health invite young people aged 16 years and under, with their consent and the consent of their parents, to seek to purchase cigarettes from vendors. 3 Section 138 of the Evidence Act 1995 (NSW) provides that evidence which is "improperly" obtained is not to be admitted in a proceeding, "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained": s 138(1). In the present case, a judge of the District Court held that the evidence of the offence was improperly obtained because Woolworths Ltd ("the Respondent") had "in a real sense" brought about the commission of the offence the subject of the prosecution. The issue before this Court is whether his Honour was correct in holding that such conduct was "improper" for the purposes of s 138(1) of the Evidence Act.

PRELIMINARY ISSUES Parties 4 The original proceedings against the Respondent were commenced in the Local Court by the issue of a "court attendance notice" pursuant to s 173 of the Criminal Procedure Act 1986 (NSW). The matter came before a magistrate who found the offence proven, convicted the Respondent and imposed a fine. The proceedings in the District Court constituted an appeal by the Respondent against conviction pursuant to s 11 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). The respondent in the District Court was identified as "the Department of Health". That nomenclature was adopted by the Appellant in this Court. 5 Absent some statutory provision, creating the Department of Health with legal personality, the Department is merely an administratively identified part of the public service, which has no separate legal personality and hence cannot bring or defend proceedings. The respondent should properly have been the prosecutor identified in the original court attendance notice, in whose name the prosecution was commenced in the Local Court. We were advised that the informant was Dr Denise Robinson and, with the consent of the parties, directed that the appellant in this Court be identified as Dr Denise Robinson.

Jurisdiction 6 The matter came before this Court by way of a case stated under s 5B of the Criminal Appeal Act 1912 (NSW). That section provides that a judge of the District Court "may submit any question of law arising on any appeal to the District Court" for determination by the Court of Criminal Appeal. That power may be exercised after the proceedings have been disposed of: s 5B(2). 7 No objection is taken to the procedure adopted in this case, but the Respondent does assert that his Honour's finding that the conduct was improper was "a finding on the facts". The questions identified by the District Court were as follows:

(1) Did I err in holding that, for the purposes of s 138(1) of the Evidence Act 1995 (NSW), the prosecutor's conduct was improper?

(2) In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?

(3) In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in Ridgeway v The Queen (1994) 184 CLR 19? 8 The awkwardness of the procedure adopted is reflected in the formulation of these questions. For example, the first question asks whether his Honour erred in reaching a conclusion as to the appropriate characterisation of the conduct of the prosecutor. The reference to the prosecutor is imprecise because, as will appear below, there was no assertion that Dr Robinson acted improperly. Putting to one side difficulties with the use of the term "prosecutor" in this context, the conclusion reached would appear to be an inference drawn from the facts, although the reasoning process may involve mixed questions of fact and law. The principal question might better have been formulated: On the findings of fact [identified in the case stated] was the conduct capable of constituting "improper" conduct for the purposes of s 138(1) of the Evidence Act 1995 (NSW)? 9 There are also some difficulties with the formulation of the second and third questions. Questions 2 and 3 purport to identify factors not taken into account which ought to have been taken into account. Section 138(3) of the Evidence Act provides a number of mandatory considerations to be taken into account. However, it is clear from the structure of the section that these considerations govern the operation of the discretion, and not the anterior question as to whether the section is engaged. The questions for determination by this Court do not concern the exercise of the discretion. Accordingly, there will be no need to address the operation of subs 138(3). 10 The second and third questions suggest, somewhat obliquely, reasons why his Honour may have adopted a legally incorrect approach in determining the propriety of the conduct in question. This is at least an awkward way of seeking to identify a question of law. Further, the third question addresses the relevance of the reasoning and decision of the High Court in Ridgeway, rather than any failure to take matters into account. In the course of argument the Crown Advocate accepted that the first question raised the principal issue, the latter questions being directed to the reasoning by which the critical conclusion was reached. In answering the first question, the reasons will be addressed in any event.

Relevant factual findings 11 The factual findings made by his Honour fell within a short compass and were, for the most part, uncontroversial. 12 On 2 October 2003, a young woman identified as SA went into a service station operated by the Respondent and purchased a packet of cigarettes. She was accompanied by another young woman, RH. Both were 16 years of age. The cashier who sold the cigarettes did not ask for any proof of age from SA. Accordingly, no question would have arisen, had the cashier been prosecuted, of a defence under s 59(2). 13 The facts identified in the case stated including the following: "(f) Both of the young women were instructed by officers of the appellant to tell the truth at all times. They were told to tell the truth if they were asked their age, and to say that they did not have identification if they were asked for identification." 14 A further fact identified in the case stated was that at least one of the young women received a $10 voucher to spend at a shopping centre, apparently as a reward for her involvement in the compliance program. Nothing appears to have turned on that fact for the purposes of his Honour's reasoning, and it was not suggested in this Court that that matter was relevant. Although not included in the facts identified in the stated case, his Honour found, in considering the exercise of his discretion: "The impropriety was not deliberate. Ms Ptolemy [the Departmental officer] and the young women in question believed themselves to be acting perfectly properly in performing an important function designed to protect the health of children in our community. It was not suggested that Ms Ptolemy realised that she was playing some sort of underhand trick on the cashier or the appellant." 15 The final fact identified in the case stated was one which appears to have been of importance, possibly critical importance, in the reasoning of the District Court. "(h) The retailers approached are selected randomly. There was no suspicion held by the appellant or any of its officers that the respondent, or the casher who served the young person, were in the habit of selling cigarettes to underage purchasers."

The general law discretion 16 In Ridgeway v The Queen (1994-95) 184 CLR 1, at 30, the joint judgment noted: "At least since Bunning v Cross (1978) 141 CLR 54, it has been 'the settled law in this country' 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 ground that its reception would be unfair to the accused."

Thus the concept of "unfairness" to the particular accused may have a special relevance in relation to confessional evidence which does not arise in other circumstances. In Cleland v The Queen (1982) 151 CLR 1 at 16, Murphy J noted that the discretion to exclude a confession may be exercised "on grounds of unlawful or improper conduct or unfairness". In Ridgeway , where the Court was not dealing with confessional evidence, the language of "improper conduct", but not unfairness, was accepted as appropriate in relation to conduct which was not unlawful: 184 CLR at 37. Impropriety was to be understood as concerned with "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": 184 CLR at 36. Although there may be a fine line between the private interests of a particular defendant and the public interest in the fair and proper exercise of law enforcement powers, it is clear that the emphasis in the present context must be on the latter, and not on the question of unfairness to a particular defendant. Further, the differential treatment of confessional evidence under the general law suggests that little help can be derived from s 138(2) (dealing with improperly obtained admissions) in determining the scope of improperly obtained evidence generally for the purposes of s 138(1). 17 Ridgeway itself was not concerned with "improperly" obtained evidence, but rather with the fact that the offence committed in Australia resulted directly from an illegal importation of heroin arranged by the Australian Federal Police. Nevertheless, the joint judgment expressly addressed the question whether the discretion to exclude such material extended to "circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on the part of the authorities": at 36. The joint judgment of Mason CJ, Deane J and Dawson J held that it did. The judgment gives some guidance as to what, under the general law, might constitute such impropriety. Thus after referring to conduct "quite inconsistent with the minimum standards" the judgment continued: "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." 18 The judgment also adopted the language of the Canadian Supreme Court per Lamer J) in R v Mack [1988] 2 SCR 903 at [79] that "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". Further, at 37, the judgment noted that: "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."

Their Honours continued: "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 any imminent danger to the community." 19 In this last passage, it is implicit that the minimum standards of acceptable conduct must be understood to depend upon the circumstances of the case. It seems inevitable that factors which may become relevant to the exercise of the discretion to admit such evidence are also relevant to the anterior question of whether there was impropriety, triggering the exclusionary rule. It should also be noted that the passage is concerned with "criminal activity", not summary offences, and hypothesizes a "suspect". 20 Before leaving Ridgeway, it is helpful to note a distinction drawn in the joint judgment between two categories of offences procured by illegal conduct on the part of law enforcement officers. Thus, at 39, the joint judgment noted: "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. … In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect."

Relevance of general law principles 21 Section 138 has a broad scope. For example, it applies not merely to evidence obtained unlawfully, but also evidence obtained "improperly". It applies not only in criminal proceedings, but also in civil proceedings. It applies to all kinds of evidence, including admissions which, for the purposes of criminal proceedings, may also need to be considered under ss 84, 85 and 90. Finally, and significantly for the present case, the section covers, not merely impropriety or unlawful conduct in the acquisition of evidence following an offence, but also conduct which constitutes the offence. 22 It is clear that s 138 varies the common law in a number of respects: see Anderson, Hunter and Williams The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), p 510. Nevertheless, s 9 of the Act states: 9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

Thus, in relation to s 138, there is no doubt that the statutory rule involves exclusion of evidence, where its terms are engaged, subject to a discretion to admit. The general law rule was framed in terms of a discretion to exclude. Secondly, s 138 is not in terms limited to unlawful or improper conduct on the part of law enforcement authorities. Each of these considerations may be relevant in determining what constitutes "impropriety" for the purposes of s 138 and invite caution in considering whether to apply general law principles without qualification. On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in Ridgeway , derived from earlier Australian authority. Accordingly, those principles should be applied. 23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced. 24 On the other hand, the clear intention of s 138 is to replace the general law discretion to exclude such evidence; the two cannot sensibly coexist together: cf, eg, Papakosmas v The Queen (1999) 196 CLR 297 at [10] (Gleeson CJ and Hayne J). On the other hand it is clearly arguable that, consistently with s 11(2), there is no exclusion or variation of the power to stay proceedings as an abuse of process. 25 The concept of inducement was also addressed by this Court in R v Sloane (1990) 49 A Crim R 270 in the context of an application for a permanent stay of proceedings with respect to supply of cocaine, on the basis that the accused had been induced by police to commit the offence and that there had, therefore, been "entrapment". In Ridgeway, Gaudron J noted that such claims, prior to Ridgeway itself, had generally proceeded on the basis that the idea of "entrapment" engaged the principles with respect to the discretion to exclude illegally or improperly obtained evidence: 184 CLR at 70, an approach preferred by McHugh J, at 86-88. In that context, her Honour referred to the following reasoning of Gleeson CJ in Sloane at 272-3: "The authorities relied upon in support of the application for a stay of proceedings … established 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." 26 Gleeson CJ went on to refer to an on-going course of criminal activity such as dealing in drugs, before noting (at 273): "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." 27 In Ridgeway, Gaudron J adopted a similar distinction between the mere provision of an opportunity to commit a crime and inducement to commit a crime. Thus her Honour noted (at 77): "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."

Her Honour then distinguished a different category of case. "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 generally may well view prosecution as a serious injustice." 28 As will be noted below, the District Court concluded, without extensive justification, that the present case fell within the latter category identified by Gaudron J and did not involve a mere provision of an opportunity to commit an offence. However, before turning to the correctness or otherwise of that conclusion, it is convenient to note that these questions are by no means novel in relation to regulatory offences and have been the subject of consideration in various common law jurisdictions. 29 There are undoubtedly dangers in placing too much reliance upon overseas case law, because different considerations may arise in jurisdictions which treat entrapment as a defence or adopt a different test of what governs the discretion to exclude illegally obtained evidence. These variations were discussed in relation to the USA, Canada and the UK, in Ridgeway. Further, there are circumstances in which statutory provisions permit what is described as "compliance testing" as a basis for founding a prosecution. Nevertheless, the test identified by Lord Bingham of Cornhill CJ in Nottingham City Council v Amin [2000] 1 WLR 1071 at 1076-7 is in terms which bear a close similarity to the language found in Ridgeway. His Lordship stated: "It seems to me that the court has adopted a fairly consistent line. On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else." 30 On the facts of that case, the Chief Justice saw no basis for rejecting evidence where two police officers in plain clothes had hailed a taxicab, outside the area covered by its licence, even though the roof light was not at the time illuminated. The driver had stopped and taken the officers to the address requested, in return for a fare. Although the magistrate had excluded the evidence on the basis that the police officers were agents provocateurs, the Chief Justice rejected that characterisation as inappropriate because the facts "simply cannot lend themselves to the construction that this defendant was in any way prevailed upon or overborne or persuaded or pressured or instigated or incited to commit the offence": at 1081A. 31 R v Looseley [2001] 1 WLR 2060 involved a prosecution for supply of heroin, where the recipient had been a police officer who had been given the defendant's name and telephone number and identified as a potential source of drugs. Again, care must be taken in applying the principles adopted in the House of Lords, where Lord Nicholls of Birkenhead quoted with approval the reasoning of McHugh J in Ridgeway (at 92) in a passage consistent with his Honour's dissent and not fully in accord with the view of the majority: Looseley at [23]. The speech of Lord Hoffmann is, however, of direct relevance, because it draws a distinction between crimes and regulatory offences where effective administration of the law may require enforcement officers to have the power to make random tests: Looseley at [56]. Further, his Honour noted in relation to the passage cited above from Lord Bingham CJ in Amin, at [54]: "In referring to whether the defendant would have behaved in the same way if the opportunity had been offered by anyone else, Lord Bingham CJ obviously did not mean only that the defendant would have responded in the same way to someone who was not a policeman. Since the defendant in such cases ex hypothesi does not know that he is dealing with a policeman, such a condition would invariably be satisfied. What he meant was that the policemen behaved like ordinary members of the public in flagging the taxi down. They did not wave £50 notes or pretend to be in distress."

Lord Hoffmann continued at [55]: "The test of whether the law enforcement officer behaved like an ordinary member of the public works well and is likely [to] be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities …, selling videos to children under age … and operating a private hire vehicle without a licence … . But ordinary members of the public do not become involved in large-scale drug dealing, conspiracy to rob … or hiring assassins." 32 The operation of s 138, with respect to improper conduct, has been considered on a number of occasions, but usually in circumstances far removed from the present: see, eg, Director of Public Prosecutions v Carr (2001) 127 A Crim R 151 (Smart AJ) and R v Mehajer and Jacobs [2003] NSWSC 318 (Studdert J). It was also addressed by this Court in R v Ladocki [2004] NSWCCA 336. The decision in that case ultimately turned on the exercise of the discretion, but on the basis of a series of assumptions as to the nature of the improper or illegal conduct and its causal relationship to the obtaining of the evidence: see [44]-[60] (Mason P). See also R v Coulstock (1998) 99 A Crim R 143 at 147 (Hunt CJ at CL) and R v Dalley (2002) 132 A Crim R 169, the latter being a case dealing primarily with the exercise of the discretion, but noting the importance of attention to the causal relationship between any impropriety or unlawful behaviour and the obtaining of the challenged evidence (at [86] per Simpson J). 33 In the course of oral submissions, counsel for the Respondent said he did not accept that an onus lay on the party resisting admission of the evidence to establish impropriety. However, Coulstock is authority for that proposition. Prior to the Evidence Act, a defendant bore the onus of establishing illegality or impropriety as a basis for invoking the general law discretion to exclude evidence: see R v C (1997) 97 A Crim R 81 at 95 (Hunt CJ at CL). As his Honour remarked in a footnote, the Law Reform Commission report adopted the same approach in relation to its recommendation, being the pre-cursor to s 138: ALRC 26, Vol 1, par 964. Although R v C was concerned with the general law discretion, the onus of proof under s 138 was expressly addressed by this Court in Coulstock by Hunt CJ at CL, Ireland and Levine JJ agreeing, in the following terms at 147: "It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is placed upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted. The discretion is therefore to admit the evidence notwithstanding the impropriety or illegality."

Consistently with this line of authority, Howie J (Giles JA and Carruthers AJ agreeing) stated in R v Moussa (2001) 125 A Crim R 505 at [16]: "There are two things that can be said about the determination made by his Honour on the question of the admissibility of the evidence of the search and the finding of the tablets: first, the appellant bore the onus of proving on the balance of probabilities that the search was unlawful or improper within the terms of s 138 of the Evidence Act ; second, the findings made by his Honour were matters of fact."

There is no reason to depart from these conclusions in relation to the onus of proof, as they are clearly correct. 34 Before leaving these authorities, it is convenient to note the decision of Beach J in the Victorian case Rice v Tricouris (2000) 110 A Crim R 86. That case bore a remarkable similarity to the present. A magistrate had dismissed a charge brought against the defendant for selling a tobacco product to a girl under the age of 18 years, in circumstances where the girl had been asked by the informant to attend a milk bar and make a "test purchase" of cigarettes. In considering the facts of the case, Beach J stated: "[21] It is clear from the evidence of the appellant and Amanda Smith that the respondent was not induced to sell the cigarettes. In all probability he would have been prepared to sell them to anyone who asked. … [24] And true it is that the council engaged a 15-year-old child to procure the commission of the offence. But that can hardly be said to be improper conduct. To successfully prosecute the respondent it was necessary that the council obtain evidence that the respondent was selling tobacco products to children under the age of 18 years. [25] Amanda Smith was not committing any offence by purchasing the cigarettes. The situation in this case can be contrasted with that in Ridgeway where the actual importation of heroin into Australia was performed by police. [26] Further there was no insidious use or manipulation of Amanda by the appellant. The child and her mother were comprehensively informed of the procedure and ramifications of the test purchase. Amanda was hardly induced to take part in the process. She was asked to and agreed to as did her mother." 35 His Honour also noted the failure of the magistrate to take account of the policy of the law, the damage done to the health of children who smoke, the need to deter the selling of cigarettes to children, the difficulty of obtaining evidence to prove the commission of the offence and the absence of viable or practical alternatives in relation to the successful prosecution of such offences. His Honour concluded at [31]: "I cannot accept that society would frown upon the use of a 15-year-old child to make a test purchase of cigarettes from a milk bar in the circumstances in which Amanda Smith did in the present case. Indeed I suspect that most reasonable members of the community would take the view that that was a most satisfactory way of attempting to stamp out the illegal sale of tobacco products to minors." 36 These principles should inform the determination of a court as to what constitutes "improperly" obtained evidence or "impropriety" for the purposes of s 138. In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety. 37 Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court's view of the 'entrapment' of Mr Ridgeway: see for example, the comments of McHugh J at 85. The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to 'community standards' will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts. 38 No doubt the circumstances of the particular case, including the nature of the offence, and, in the context of regulatory offences, the purpose underlying the prohibition, may give rise to different answers in different circumstances. For example, in the present case, the judge noted at [25]: "One can think of many analogies. I doubt that the community would accept the prosecution of taxi drivers who stop in no-stopping zones when hailed by undercover police officers."

This analogy helpfully demonstrates the dangers of seeking support in such reasoning. To describe a police officer as "undercover" in these circumstances tends to involve an emotive and misleading element. To compare the enforcement of "no-stopping zones", an element of a traffic law, with the protection of public health is also inapt. The conclusion suggested is, it may be noted, inconsistent with the approach of Queen's Bench Division in Amin . Accordingly, it is desirable to turn directly to the particular circumstances of the case and the reasoning adopted in the District Court in reaching the conclusion that the conduct of the law enforcement officer of the Department of Health was relevantly "improper".

Application of principles 39 It was clearly of central importance to the decision reached by the District Court, at [24], that the officer brought about the commission of the offence "in circumstances where no suspicion previously attached to either the appellant or the cashier". 40 His Honour distinguished the decision in Rice v Tricouris on the following basis at [29]: "It is not precisely stated in the Victorian decision but it seems reasonably certain that the tobacco retailer in that case was targeted because of suspicions which attached to him specifically, rather than tobacco retailers generally. As the judgment reveals the 15-year-old purchaser in that case was given only $2 to make her purchase. A packet of cigarettes costs much more than $2. What the purchaser bought was not a packet of cigarettes but five individual cigarettes at 35 cents each. This tends to suggest that the tobacco retailer in Rice v Tricouris was believed by the prosecuting authorities to be in the habit of selling individual cigarettes to underage children."

Assuming the inference to be correct, the absence of any reference to it in the judgment of Beach J demonstrates that reliance on it formed no part of his Honour's reasoning. Rice could not be distinguished on this basis. 41 The conduct of the law enforcement officer in the present case involved the procurement of a member of the public (and a friend) to enter a shop and seek to purchase an item which was legally and openly available for sale. That conduct on the part of the officer resulted in the commission of an offence by the Respondent, through its employee. The gist of the complaint made by the Respondent, accepted by his Honour at [24], was that the officer had "brought about the commission of the offence which it now prosecutes". There was no separate conduct involved in the obtaining of evidence and there is some artificiality in saying that the evidence, as such, was obtained "improperly". A more direct challenge might have been, as in Sloane, to seek a permanent stay of the prosecution: see R v Hsing (1991-1992) 25 NSWLR 685, 696F (Samuels JA, Gleeson CJ and Hunt J agreeing). Nevertheless, both Rice and Ridgeway support the view that a similar result may be obtained by seeking to exclude the relevant evidence. In terms of s 138(1), it may be more apt to describe the complaint as being that the evidence was obtained "in consequence of an impropriety" within the terms of par (b) of that subsection: see Ladocki at [47] (Mason P). However, nothing turns on this point as it was not suggested before this Court that there would be any different result from applying par (b), rather than par (a). 42 A second and separate complaint raised by counsel in the course of argument asserted that the impropriety was confirmed, or, in the alternative, separately established, by a statement of the Minister introducing the 1996 amendment to the Public Health Act. The key sentence in the Second Reading Speech was the Minister's statement that: "Prosecution is used by public health units and the department as a last resort." (Hansard, Legislative Assembly, 24 April 1996, Public Health Amendment (Tobacco) Bill , par 4.)

The inference to be drawn, so it was argued, was that compliance testing could be undertaken, but could not form the basis of prosecution, as opposed to a warning, unless it was based upon a well-founded suspicion that offences were being committed. 43 There are two problems with this approach. First, there may be a real doubt as to whether evidence of what was said in Parliament can be used, not for the purpose of construing legislation, but to establish impropriety by subsequent acts of a public officer. The second difficulty is to identify precisely how the statement by the Minister assists in this regard. 44 In relation to the first point, some, though limited, attention has been paid to the operation of parliamentary privilege and the ability of courts to resort to records of parliamentary proceedings, by reference to s 16 of the Parliamentary Privileges Act 1987 (Cth): see Amann Aviation Pty Ltd v The Commonwealth (1988) 19 FCR 223 (Beaumont J); Hamsher v Swift (1992) 33 FCR 545 at 562-565 (French J); Mees v Roads Corporation (2003) 128 FCR 418 at [71]-[86] (Gray J). In New South Wales, questions of admissibility of Hansard turn on the operation of Article 9 of the Bill of Rights 1688 (Imp) in force by virtue of the Imperial Acts Application Act 1969 (NSW): see R v Murphy (1986) 5 NSWLR 18 (Hunt J) and R v Jackson (1987) 8 NSWLR 116 (Carruthers J). To determine whether the use of Hansard in this case is permissible, it is necessary to identify the use to which the statement by the Minister is to be put. At its highest, the argument appears to be that it evidences a public statement of government policy, departure from which by a public officer would constitute an impropriety. So articulated, the proposition bears some similarity to the concept in administrative law of legitimate expectation arising from a public statement by a government officer: see, eg, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. However, the admissibility of this material for that purpose need not be determined in the present case, because the statement by the Minister is not capable of supporting the inference relied on by the Respondent. 45 Read in context, the statement does no more than assert the Government's commitment to a range of strategies. Thus, the relevant part of the Minister's statement noted that various strategies to combat illegal sale of tobacco to young people had already been adopted, with some success. "These have included education strategies for retailers, training of environmental health officers responsible for enforcement, joint police and health enforcement strategies, and the provision of funding to area health services for compliance monitoring and enforcement activities. Area health services have also implemented strategies to allow them to respond to community complaints and, by improving their monitoring of illegal sales, to identify those retailers who continue to sell to minors even after education and warnings. These strategies have been backed by an increase in the number of prosecutions. Prosecution is used by public health units and the Department as a last resort. Retailer education, community action, warning notices, prosecution and publicity about enforcement have proved effective in reducing illegal sales of tobacco to minors. Such strategies have improved compliance dramatically."

This statement, read a whole, recognises an important role for prosecutions and imposes no conditions on the circumstances in which prosecutions will be pursued. Even if it is admissible, this material does not assist the Respondent. 46 In my view the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed above, but may be summarised as follows.

(a) The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation.

(b) The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment.

(c) The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes.

(d) In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.

(e) Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints.

(f) A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law. 47 In noting at (a) above that there was an absence of pressure or persuasion in the present case, it is not intended to suggest that the presence of pressure or persuasion would necessarily lead to a different result. These are matters of degree, and may need to be tested in accordance with the factor noted at (c), namely the likely behaviour of members of the public. If young people who are anxious to obtain tobacco products may be expected to apply some level of pressure or persuasion and seek to importune retailers, then the law will require retailers to resist such importuning and their willingness and ability to do so may also reasonably be tested. 48 The list of considerations does not contain explicit reference to fact that the purpose of the law is to promote public health. That was a factor emphasised by the Crown Advocate, who appeared for the prosecutor in the present case, and is referred to in Rice v Tricouris. It is no doubt a correct and pithy encapsulation of the purpose of the law in question, but it does not distinguish this law from many similar regulatory provisions, nor from the underlying purpose of outlawing some criminal activity, such as the prohibition on the importation and supply of certain drugs. The legislative purpose, and indeed the nature of the offence created, are undoubtedly relevant to the kinds of law enforcement conduct which would be seen as reasonable and appropriate with respect to that law. However, even where that test may be satisfied, other factors, such as the intrusive nature of compliance testing in particular circumstances, may suggest that statutory permission is required, as with random breath testing of drivers: see, eg, the Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 13. Albeit in a context in which law enforcement authorities were involved in unlawful (and not merely improper) conduct, Brennan J noted in Ridgeway (at 53-54): "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. … 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."

Legislative provision in relation to "controlled operations" now exists in several jurisdictions: see Hall P, Investigating Corruption and Misconduct in Public Office (2004) at [10.65]. Accordingly, the purpose of the legislation, broadly stated and taken in isolation, is unlikely to be a critical factor in this analysis. 49 Where a compliance program does not involve unlawful conduct on the part of the law enforcement agency and does not involve any intrusion on the human rights and freedoms of the person being tested, there is less likely to be concern as to the propriety of compliance testing procedures, so long as they satisfy the elements identified in paragraph [46] above. The purpose of the particular law to be enforced will have been assessed by the Parliament: caution should be applied in seeking to confer greater moral rectitude on some statutory purposes, as compared with others.

Conclusions 50 For the reasons set out above, I would answer the first question: (1) The conduct of the informant was not capable of constituting "an impropriety" for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a), of the Evidence Act 1995 (NSW). 51 The reasoning also suggests that a relevant consideration in assessing the propriety of the conduct was the absence of an element of criminal intention from the statutory offence. Nevertheless, I would not describe that as a "critical factor", being the terminology of question 2. As already noted, question 2, in its form, may sufficiently identify a possible error of law: nevertheless, it is not in terms formulated as a question of law, nor is it readily answered as a question of law. In my view question 2 should be answered: (2) Inappropriate to answer. 52 Question 3 is based on the hypothesis that his Honour applied Ridgeway in circumstances where it should properly have been distinguished, so as to result in an error of law. For the reasons set out above, his Honour would have been correct to apply the principles set out in Ridgeway, properly understood, but would not have reached the result he did. It may be possible to answer this question as if it were an appropriate question of law, but the answer would not fully encapsulate the reasoning set out above, and, as with question 2, question 3 is really a subsidiary question, designed to expose the basis upon which a particular answer may have been given to question 1. In the circumstances, this judgment exposes the whole, rather than an isolated aspect of that reasoning and accordingly I would answer question 3: (3) Inappropriate to answer.

Costs 53 The final questions concern the costs of the proceedings, both in this Court and the District Court. No order for costs was sought in this Court, by the prosecutor (Appellant) but an order was sought by the Respondent. However, the Appellant sought that, in the event that any of the questions were answered in the affirmative, the matter be remitted to the District Court for reconsideration of costs in that Court. 54 Each of these questions gives rise to an issue as to the scope of this Court's powers under s 5B of the Criminal Appeal Act. It is convenient to deal first with the question of the Court's power to award costs of the proceedings in this Court.

Costs in this Court 55 The Criminal Appeal Act makes no express provision for the award of costs in relation to proceedings under s 5B. Section 17, however, provides that no costs shall be allowed on either side on the hearing or determination "of an appeal, or any proceedings preliminary or incidental thereto under this Act". 56 According to Watson, Blackmore and Hosking Criminal Law (NSW), Vol 2 at [17.510], Young v Campbell (1948) 49 SR (NSW) 103 is authority for the proposition that costs may be awarded in proceedings under s 5B. That case contains a helpful exposition of the development of the general and statutory law with respect to criminal appeals from the District Court in the leading judgment of Jordan CJ. However, it is not authority for the proposition stated. In an earlier form, in place at the time of Young v Campbell, s 5B required that the Court dispose of a case stated under that provision "as if it were an appeal under this Act". Whilst those words were present, the prohibition on awards of costs under s 17 would have applied. 57 Since s 5B was amended in 1951 to remove those words, the power to award costs has been considered by this Court in Clyne v Wrigley [1980] 1 NSWLR 599 and resolved in favour of the view that the amendments removed the effective limitation imposed by s 17 on the exercise of power under s 5B and that the power conferred to "make any such order … as it thinks fit" was ample to permit an award of costs: at p 601E-G. The power was affirmed in Proust v Blake (1989) 17 NSWLR 267 at 271F (Samuels JA, Campbell J and Mathews J agreeing) and in Comptroller-General of Customs v D'Aquino Ross Pty Ltd (1996) 85 A Crim R 517 at 545 (Hunt CJ at CL, Ireland and Dowd JJ agreeing). 58 The existence of a power to award costs under s 5B does not, however, entail the conclusion that costs should necessarily follow the event. In Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [37]-[47] Sperling J (Meagher JA and James J agreeing) considered the circumstances in which costs had been awarded in cases stated to this Court since the power to award such costs was firmly established in 1980. His Honour noted that, although there was no express discussion of the relevant principles, there appeared to have been "special reasons" for awarding costs against unsuccessful parties in each case in which such an award was made. 59 The power to award costs is conferred in terms which give no indication as to the considerations which may be relevant to the exercise of the power, nor, since the section does not expressly refer to costs, does the provision create an expectation or presumption that the power will be exercised in one way rather than another. Accordingly, the reasoning in Latoudis v Casey (1990) 170 CLR 534 does not have direct application, given the form of s 97(a) and (b) of the Magistrates (Summary Proceedings) Act 1975 (Vic) at issue there, and set out at 547. On the other hand, the reasoning of the Court in Latoudis is inconsistent with an approach which would fetter the discretion by requiring "special reasons" or "special circumstances" before the power conferred by s 5B is exercised. Further, the discretion should only be exercised on grounds connected with the proceedings or the conduct of the parties in relation to the proceedings: 170 CLR at 569 (McHugh J). On the other hand, the fact that the proceedings involve matters of public importance may well constitute a circumstance which might be taken into account in the exercise of the discretion: see Oshlack v Richmond River Council (1998) 193 CLR 72. 60 In the present case, the prosecutor (the Appellant in this Court) was a law enforcement officer. These proceedings were brought, in effect, to remove a shadow which had been cast over the practice of "compliance testing" adopted by officers in the Department of Health. The issue so raised is one of general public importance. It may also have been one of importance to the Respondent, which no doubt operates numerous retail outlets at which tobacco products are sold. Nevertheless, the substantive orders made in favour of the Respondent in the Court below will remain unaffected by the judgment of this Court. Accordingly, this would not be an appropriate case to exercise the power either in favour of or against either party. No order should be made as to the costs of the proceedings in this Court.

Costs order - District Court 61 The Crown Advocate, appearing for the prosecutor, invited the Court to make an order remitting the matter to the District Court for reconsideration of the costs order made in that Court. This request gives rise to two questions, namely the power of the Court to take that step and, if it has the power, the appropriateness of adopting that course in all the circumstances. 62 The judgment contained in the case stated identified the orders made by the District Court, in accordance with [50] in the judgment, as: "The appeal is allowed; the conviction and sentence of the magistrate are quashed."

There is no reference to any order as to costs, but we were informed that a costs order had been made in favour of the Respondent. No question of law was raised as to the proper order as to costs. It is not suggested that any order be made in terms setting aside the orders made in the District Court, but merely that the matter be remitted to the District Court "for redetermination in accordance with this Court's reasons for judgment". 63 The answer to the question of law will not affect the outcome of the proceedings in the District Court, either in substance or in form. As a matter of form, that is because the Appellant did not seek to overturn the orders made below. As a matter of substance, the substantive orders made below would in any event remain standing because there was no challenge to the separate finding of the District Court that the Respondent had established the defence provided to an employer under s 59A(2), albeit in circumstances where it was conceded that the employee would have been liable, if prosecuted. 64 In written submissions filed, with leave, after the hearing was concluded, the Appellant submitted that this Court had power to remit the matter to the District Court for further consideration by that Court. In support of the power to take such a step, pursuant to s 5B, the Appellant relied upon two authorities, being Clyne v Wrigley, discussed above at [57] and Regina v Sirocic [2000] NSWCCA 327. 65 Clyne, as noted above, was concerned with the power of this Court to award costs of the proceedings before it. However, three further aspects need to be addressed in relation to it. First, Moffit P stated, at p 601B: "The primary function of this Court in respect of cases stated under s 5B, and in any stated case procedure, is to answer the questions of law raised by the case and to give direction to the judge who stated the case, for example, to determine the proceedings before him according to law, namely, as determined by the Court which answers the questions of law raised by the case."

This comment should be understood in its context, namely a case stated, as was the only procedure then available, prior to a final disposition of the proceedings in the District Court. 66 Secondly, the President expressed the view that "courts should be slow to read down powers conferred on them in wide and general terms, so as to deprive themselves of a power to exercise a discretion to do that which is fit or just": p 601C-D. The importance of this principle may be accepted - see, eg, Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 - but its application in the present context will require further consideration below. 67 Thirdly, the President noted, in reference to the 1951 amendment, that "the legislative intent was to place stated cases under s 5B in a different category from that of appeals; and was to permit the wide powers to make any order provided by the earlier amendment to s 5B to freed of the fetter of s 17 preventing the making of an order in relation to costs": p 601G. Again, the potential extent of the power must be conceded: the question for present purposes is whether it is sufficient to allow either this Court or the District Court to set aside some part, or all, of the orders made in the District Court, under the new regime provided by s 5B(2). 68 The importance of the inclusion, in 1998, of a new sub-s (2), was that it permitted a case to be stated after the District Court had disposed of the proceedings before it. This created a novel situation in the sense that merely providing an answer to questions of law could not affect the outcome of the proceedings which had already been completed, unless the Court had power to set aside the judgment below. If it had such a power in relation to a conviction or sentence, did it have such a power also in relation to an acquittal? As noted by this Court in Sirocic, the possible consequences in relation to an acquittal were raised by the Bar Association and discussed in the Parliament in the course of considering the proposed amendment but, as noted by Foster AJA at [21] in Sirocic, "[i]n the result with the Bar Association's concerns were not addressed". Those concerns had been the possible infringement of the double jeopardy principle, should an acquittal be at risk of reversal. 69 In Sirocic, the question arose because the District Court had failed to impose, as this Court held, the statutory minimum period of disqualification from driving, as required by the Traffic Act 1909 (NSW). The Court accepted that it had power to set aside the sentence imposed below and to remit the matter to the District Court for determination in accordance with this Court's reasons and orders. Priestley JA stated his conclusion at [15]: "The result is, in my opinion, that once the Court of Criminal Appeal has answered questions submitted to it under subsection (2), the court then 'may make any such order or give any such direction to the District Court as it thinks fit' in the same way as it can in regard to answers to questions submitted under subsection (1) by a judge of the District Court before decision of the appeal before that court." 70 Priestley JA also noted the contrary view at [13]: "It seems to me that there is quite a strong argument for the propositions that, first, the words of s 5B(2) do not make it clear that the provision is intended to enable the Crown, if it obtains a favourable answer to a question it has caused to be submitted the Court of Criminal Appeal, to go back to the District Court in which 'the appeal proceedings … have been disposed of' and ask that court to change its decision in the disposed-of proceedings by reason of the answer afterwards obtained, and, second, therefore they should not be read as if they had that effect."

His Honour did not, however, accept that result because the structure of sub-s (2) was to permit a case to be stated under sub-s (1) even though the proceedings in the District Court were no longer on foot. It followed, his Honour concluded, that the same powers operated in that circumstances as in the circumstance for which sub-s (1) itself provided, namely where the District Court proceedings were yet to be determined. The result was, in circumstances where the Parliament had failed to deal with the issue expressly, that the amendment was treated as conferring on the Crown a power to overturn an acquittal and, not insignificantly, power must also have been conferred on a defendant to overturn a conviction or sentence. 71 There are three factors which militate against the correctness of this conclusion. First, the conclusion based on statutory construction is by no means compelling. The powers conferred by sub-s (1) would not, in their original operation, allow any decision of the Court below to be set aside, because the case stated could, prior to the 1998 amendment, only be invoked prior to a final determination in the District Court. When the power to state a case was provided, after determination of the District Court proceedings, it by no means followed that the powers of this Court were consequentially expanded to do something which had simply not arisen before, namely to set aside a judgment in the District Court. The fact that the words in which the power was conferred are wide enough to have that result does not mean that they were intended, after a subsequent amendment, to have that expanded operation. The second and third factors noted below provide reasons why that result should be eschewed. 72 The second factor concerns the nature of the proceedings. The purpose of s 5B was not, prior to 1998, to confer a right of appeal on parties to the proceedings in the District Court. When enacted by s 33 of the Crimes (Amendment) Act 1924 (NSW) it read as follows: 5B A Court of Quarter Sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under this Act.

Section 17 of the Crimes (Amendment) Act 1929 (NSW) added at the end of that provision, "and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit". Pursuant to s 7 of the Crimes (Amendment) Act 1951 (NSW) the words "and such submission shall be dealt with as if it were an appeal under this Act" were omitted. 73 The nature of this procedure was well-established prior to the 1998 amendment introducing sub-s (2). In Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160, Kirby P (Priestley JA and Powell JA relevantly agreeing) stated at 165: "It is true that once an appeal [to the District Court] has been upheld or dismissed, or the appellant convicted or acquitted, a case may no longer be stated for the opinion of the Court of Criminal Appeal. This may variously be explained upon the footing that the appeal is no longer 'before' the judge of the District Court, or that the opinion of the Court of Criminal Appeal, stated pursuant to a submission under s 5B would have no further utility, the District Court having concluded its part in the appeal from the Local Court. The whole point of referring the question of law for determination by the Court of Criminal Appeal is to secure the order or direction of the Court of Criminal Appeal to the District Court which will govern the disposition of the proceedings in that Court." 74 In the same year, in R v Madden (1995) 85 A Crim R 367 at 370, Hunt CJ at CL (Allen and Dunford JJ agreeing) stated: "The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the district court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act . The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the district court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more [than] an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated."

For these propositions, the Court in Madden cited Re Van der Lubbe (1949) 49 SR 309, in which Jordan CJ made comments as to the nature of the questions which should be formulated, but did not assert, contrary to the views he had expressed only months earlier in Young v Campbell , that s 5B had the purpose described above. Nevertheless, Madden is in conformity with recent authority in this Court, including Cassell and such earlier decisions as R v Fraser [1977] 2 NSWLR 867. 75 Thus, although there are suggestions to the contrary in the judgment of Jordan CJ in Young v Campbell (supra), it is clear that by 1995 s 5B was taken to have a more limited role and not as conferring a separate and independent power of appeal on questions of law from the District Court to this Court. The structure of appeals at that time provided for an appeal from the Local Court by way of statutory prohibition to the Supreme Court. Alternatively, under s 122 of the Justices Act 1902 (NSW), the defendant was accorded a right of appeal on any ground to the District Court, from the Local Court in a criminal matter. Subject to prerogative relief under the general law, the decision of the District Court following a s 122 appeal was not made the subject of any further right of appeal. The provision for a "case stated" was seen in that structure as not equivalent to an appeal on a question of law. The addition of new sub-s 5B(2) in 1998 was to be understood, in that context, not as changing the nature of the process available under s 5B, but merely as removing a technical difficulty which could arise where a judge appeared to be committing an error of law, but no question could be raised for this Court unless one party was sufficiently astute and impolite as to interrupt the judge prior to the pronouncement of the orders. 76 The third factor which needs to be taken into account is the principle of double jeopardy, which gives rise to a statutory presumption that Parliament does not intend to confer on a prosecutor a right of appeal from a verdict of acquittal, by general words: rather, that result must be expressed in the clearest language: see R v Snow (1915) 20 CLR 315 (albeit in relation to an acquittal by a jury) and, in relation to a summary offence, Thompson v Mastertouch TV Service Pty Ltd (No. 3) (1978) 38 FLR 397 (esp at 409-414 (Deane J, Smithers and Riley JJ agreeing)). 77 These considerations tend to cast doubt, in my view, upon the conclusion reached by this Court in Sirocic. However, this issue was not the subject of oral argument and its further consideration should await a case in which its determination is necessary. The present case can be dealt with upon a different basis. 78 Assuming that the Court had power to remit the matter to the District Court for further consideration of its order in relation to costs, attention must be given to the principle under which, prior to the inclusion of sub-s (2), the District Court had no power to state a case under s 5B, after reaching its decision, because the judge became 'functus officio': see R v Fraser [1977] 2 NSWLR 867 at 874F-G and Cassell (supra). Unless sub-s 5B(2) had the result of rendering the District Court no longer functus officio, not merely for the purposes of stating a case, but for revisiting its own prior judgment, there would be no purpose in remitting the matter unless the orders already made were, at least in the relevant part, set aside. We were not asked to take that step, but that omission may be remedied. However, the need to set aside the order with respect to costs focuses attention upon the question why that step should be taken. It is conceded by the Appellant that, for reasons which are not the subject of challenge, the Respondent is entitled to its acquittal. However, in accordance with Latoudis v Casey (supra) it is not clear what sort of error would justify setting aside the costs order in favour of the successful party and none was sufficiently identified by the Appellant. 79 Even if there were merit in the submission by the Appellant that it would be "costly and inefficient" if the costs order could only be corrected by stating a case to this Court identifying a specific question of law with respect to it, the point remains that unless some cogent basis is suggested for setting aside the existing costs order, that course cannot properly be taken and remittal becomes a futility. 80 No such basis was demonstrated. The relief sought should be refused.

Determination 81 Accordingly, the determination of this Court should be limited to answering the questions asked. I propose the following answers to the questions: Q1: Did I err in holding that, for the purposes of s 138(1) of the Evidence Act 1995 (NSW), the prosecutor's conduct was improper?

A: The conduct of the informant was not capable of constituting "an impropriety" for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a), of the Evidence Act 1995 (NSW).

Q2: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?

Q3: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in Ridgeway v The Queen (1994) 184 CLR 19? A: Inappropriate to answer. 82 BARR J: I agree, for the reasons given by Basten JA, that the first question should be answered "yes" and that the others need no answer. 83 The Court has power under s 5B Criminal Appeal Act to order costs: Clyne v Wrigley (1980) 1 NSWLR 599 at 601. However, no order should be made because the appellant, who won in this Court, does not ask for an order and the respondent, who does ask for an order, has lost. 84 This Court was told that the appellant had suffered a costs order against her in the District Court. The Crown Advocate, for the appellant, asked this Court to remit the matter to the District Court so that that Court could determine whether any consequential order should be made affecting costs already ordered. 85 No argument was put forward to suggest why Berman DCJ might make any consequential costs order. It seems quite possible that his Honour would make no change, since this Court's answering the first question has not affected the result in the District Court and since the appellant would have lost in that Court anyway because the respondent made out the statutory defence. The one certain thing is that if the matter is remitted to the District Court more costs will be run up. If there is power to remit the matter it should not be exercised. 86 HALL J: On 8 May 2005, a case was stated under s.5B of the Criminal Appeal Act 1912 (NSW) by his Honour Judge Peter Berman, SC. for determination by this Court of certain questions of law arising on appeal to the District Court, those proceedings involving the prosecution of the respondent which was charged with an offence under s.59A of the Public Health Act 1991. 87 On 26 November 2004, Mr. M. Pearce, Magistrate found the offence proven and convicted the respondent, Woolworths Pty Limited. He imposed a fine of $1,000 and ordered the respondent to pay court costs and professional costs. 88 On the same date, Woolworths Pty. Limited lodged a Notice of Appeal against Conviction. On 8 April 2005, his Honour Judge Berman, SC. delivered judgment on the appeal. He allowed the appeal and quashed the conviction and sentence of the magistrate. The learned judge observed in his judgment that it had been accepted that, subject to the admissibility of the relevant evidence, the cashier who sold certain cigarettes on 2 October 2003 committed an offence under s.59. If prosecuted, the cashier would have been unable to avail herself of the statutory defence in s.59. 89 Two issues were raised on appeal to the District Court. They were:-

(a) that the evidence relied upon by the prosecutor should be excluded by the Court under s.138 of the Evidence Act 1995 as being illegally or improperly obtained; and

(b) that the defence of due diligence provided for in s.59A(2) of the Public Health Act 1991 had been made out. 90 The question posed in the Stated Case to this Court relates only to the finding made in the District Court that the evidence was improperly obtained. No question was raised in respect of his Honour's finding that the due diligence had been made out.

Factual background 91 The factual background to the Stated Case is set out in paragraphs 1 to 5 under the heading "Facts" of the Stated Case. For convenience purposes, I reproduce the factual background as there set out:- "(a) On 2 October 2003, a young woman ('SA') who was then aged 16 years went into a service station operated by [Woolworths] and purchased cigarettes. At the time of the purchase, the young woman was accompanied by another young woman ('RH') who was also 16 years of age. (b) At the time of purchase, the cashier did not ask SA her age, nor did the cashier ask SA to provide identification. (c) The two young women were part of a program 'compliance testing' run by officers of the [Department] designed to identify those who would sell cigarettes to minors. (d) The compliance testing involved the recruitment of young people aged 16 years and under. These young people would attempt to purchase cigarettes from cigarette retailers in the Wentworth Area Health Service Area. (e) Both of the young women, and their parents had consented to being involved in the compliance testing. (f) Both of the young woman were instructed by officers of the Department to tell the truth at all times. They were told to tell the truth if they were asked their age, and to say that they did not have identification if they were asked for identification. (g) The compliance testing occurred during school holidays. (h) AT least one of the young women received a $10 voucher to spend at Westfields Shopping Centre as a result of her involvement in the compliance testing. (i) The retailers approached are selected randomly. There was no suspicion held by the [Department] or any of its officers that [Woolworths], or the cashier who served the young person, were in the habit of selling cigarettes to underage purchasers." 92 Section 138 of the Evidence Act 1995 is in the following terms:- (1) Evidence that was obtained:- (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:- (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:- (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 93 On the facts as set out in the case stated, there was no attempt to establish that the evidence was obtained in contravention of an Australian law. The sole question is whether the evidence was obtained improperly. That question in terms raises issues as to the meaning of the term "improperly" as employed in s.138(1) for there is no statutory definition in the Act by which its meaning is to be ascertained. 94 His Honour Judge Berman found that the common law discretion for excluding evidence set out by the High Court in its judgment in Ridgeway v. The Queen (1995) 184 CLR 19 did not survive the enactment of the Evidence Act 1995, but that Ridgeway "informed" the meaning of "improper" in s.138 of the Act. 95 His Honour placed significant reliance on the decision of the High Court in concluding that the prosecution evidence was improperly obtained. His Honour stated (at [24]):- "In a real sense the [Department] brought about the commission of the offence which it now prosecutes. In my view, it was improper for the [Department'] to have done this in circumstances where no suspicion previously attached to either (Woolworths) or the cashier." 96 On this basis, his Honour distinguished the decision of the Victorian Supreme Court in Rice v. Tricouris (2000) 110 A. Crim R. 86 which had held that there was no impropriety involved in compliance testing in a case involving some similarity to the present case. 97 In Employment Advocate v. Williamson [2001] FCA 1164, Branson, J. expressed her view that the words "improperly" and "impropriety" in s.138(1) were to be understood in the sense discussed by Mason, CJ., Deane and Dawson, JJ. in Ridgeway (supra) at 36-37. There, their Honours said:- "[T]he 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 Regina v. Ireland , 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 party of the authorities'. Their Honours did, however, indicate a preference for the phrase 'improper conduct' 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. 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 conductive 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. [citations omitted]." 98 Issues in the area of entrapment have occupied the attention of courts on many occasions in this country, and, in particular, in the United States and in Canada. In Australia since and in response to the Ridgeway decision, legislation for controlled operations has been enacted at the Federal level and in some States (in particular, New South Wales, Queensland, South Australia and Western Australia - see Part 1AB, Crimes Act 1914 (Cth); Law Enforcement (Controlled Operations) Act 1997 (NSW); Police Powers and Responsibilities Act 2000 (Qld); The Criminal Law (Undercover Operations) Act 1995 (SA) and the Corruption and Crime Commission Act 2003 (WA). 99 In Ridgeway in relation to the question of the judicial discretion to exclude illegally procured evidence of an offence, Mason, CJ., Deane and Dawson, JJ. cited with approval dicta of the Supreme Court of Canada in Regina v. Mack (1988) 44 CCC (3d) 513 (a landmark decision in the area of entrapment of the Supreme Court of Canada), which emphasised the inherent limits of the power of the State to manipulate people and events with the specific object of obtaining convictions (at p.36) - that is, that the State does not possess the power to test the virtue of individuals randomly. There must, in other words, always exist a sound basis to justify law enforcement authorities providing an opportunity for criminal activity. 100 The term "entrapment", as Gaudron, J. in Ridgeway observed at p.70, is not a term of art nor is it one with any precise meaning. Her Honour there observed that it has been used to cover a variety of situations in which law enforcement agents or persons who are authorised by them resort to undercover activity. This will often involve cases where the commission of an offence is incited by or there is active participation in the criminal enterprise by a covert operative that gives rise to the offence with which an accused is charged. The determination in such cases as to whether or not police conduct is properly characterised as "entrapment", may raise the issue as to whether the offence was in fact a result of the criminal acts of law enforcement agents or of those acting on their behalf. There is, in this sense, an element of causal significance involved in activity that constitutes entrapment. 101 Whether conduct in a particular case falls within the concept of entrapment may depend upon whether or not law enforcement agents have merely provided an opportunity for the commission of the offence or whether it can be said that they have in fact created the offence. Where "mere opportunity" has been provided by agents of the State, then the accused person is fairly regarded as responsible for his or her own actions: see Ridgeway per Gaudron, J. at 77. 102 Inherently the terms "improper" and "impropriety" suggest the existence of standards of conduct by which the actions of law enforcement agents or other investigating personnel is to be adjudged. In Ridgeway (at p.36), Mason, CJ., Deane and Dawson, JJ. stated:- "… 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 ..." 103 Clearly, then, cases involving the unfair enticement of vulnerable persons to commit an offence, will in many situations readily be seen to be improper conduct. On the other hand, an investigating officer, who has reasonable grounds for suspecting that a person who is the target of a controlled operation is engaged in unlawful activities, may be held to act properly where he or she merely provides the opportunity for that person to commit an offence consistent with the suspected illegal activity. There will be cases in between these examples wherein the conduct in question, undertaken to uncover or expose unlawful conduct or activity of others, will also be regarded as proper conduct.

Determination 104 On the facts as set out in the stated case, I consider the following matters to be of significance:-

(a) There was nothing about the conduct of the young women "SA" or RH" in the nature of enticement or inducement or persuasion. Accordingly an inference may readily be drawn that, on the probabilities, the cashier employed by the respondent would have sold to underage persons without checking for or requiring proof of age.

(b) The conduct and circumstances of the purchase of the cigarettes were consistent with conduct which is to be expected of an ordinary customer.

(c) There was, in particular, no conduct over and above the conduct referred to in (b) involving trickery or deceit practiced upon the cashier.

(d) The whole purpose of the operation was the random checking by way of a compliance exercise. There is no evidence or suggestion of any extraneous purpose or of mal fides or lack of good faith by those relevantly involved in the operation. 105 In relation to the matter in (a), I consider that it is relevant to have regard to the essential element involved in entrapment conduct as identified by Gleeson, CJ. in Regina v. Sloane (1990) 49 A. Crim R. 270 wherein, at 272, the Chief Justice stated:- "The authorities relied upon in support of the application for a stay of proceedings … which were accepted by his Honour, established 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: see, for example, Police v. Lavelle (1979) 1 NZLR 45. 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 …" 106 This observation is consistent with the principle that the onus lay upon the respondent to establish that there was improper conduct which was productive of or was the cause of the challenged evidence: Regina v. Coulstock (1998) 99 A. Crim R. 143; Regina v. Dalley (2002) 132 A. Crim. R. 169 and Regina v. Ladocki [2004] NSWCCA 336 at [50]. 107 The importance in the context of entrapment of identifying the causal relationship between improper or unlawful conduct of undercover operatives and the commission of an offence or in the obtaining of evidence, has been noted in a number of authorities: see, for example, Regina v. Hsing (1991) 25 NSWLR 685, 695 and more recently Regina v. Ladocki (supra), per Mason, P. at [50]. 108 Finally, I observe that Rice v. Tricouris (supra) was a case involving factual circumstances very similar to the present case on appeal from an order of a magistrate's court dismissing a charge in relation to an illegal tobacco product sale. The Supreme Court (Beach, J.) upheld the appeal. In the course of the judgment in that case, the court observed at [21]:- "It is clear from the evidence of the appellant and Amanda Smith that the respondent was not induced to sell the cigarettes. In all probability he would have been prepared to sell them to anyone who asked." 109 I consider the approach taken in that case, with respect, to be correct and consistent with the approach which I have outlined above. 110 I agree with the answers to the questions proposed by Basten, JA. **********

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