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.