|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT |
Last Updated: 9 March 2011
R v ALAN WINSTON PRIEST [2011] ACTSC 18 (11 February 2011)
CRIMINAL LAW – application for stay of proceedings or exclusion of evidence of online procuring of child – US police officer posing as child introduced accused to Australian police officer also posing as child – whether police operation was inappropriately targeted because police knew who they were dealing with and how he was likely to behave – whether police officer incited, encouraged or induced commission of offence – whether police officer aided, abetted, counselled or procured commission of offence – whether police operation breached AFP National Guidelines – whether a controlled operation authority or an assumed identity authority required for police operation.
EVIDENCE – policy considerations in determining whether to admit evidence obtained through impropriety or contravention of law relate to the public interest in convicting and punishing criminals and in protecting the integrity of the administration of criminal justice – fairness to an accused is generally of no more than peripheral importance – no requirement to give criminals a sporting chance to avoid conviction or punishment.
The Constitution, Chapter III
Crimes Act 1914 (Cth), Part IAB, IAC, ss 15GD(1), 15HA, 15KQ
Criminal Code Act 1995 (Cth), s 474.26, 11.2
Evidence Act 1995 (Cth), s 138(1)
Human Rights Act 2004 (ACT), s 21
Evidence Act 1995 (NSW), s 138(1)
DPP v Marshall [1988] 3 All ER 683
Nottingham City Council v Amin [2000] 2 All ER 946
R v Coulstock (1998) 99 A Crim R 143
R v Ladocki [2004] NSWCCA 336
R v Looseley; Attorney-General’s Reference (No 3 of 2000) [2001] UKHL 53
R v McGrath [2005] QCA 463; [2006] 2 Qd R 58
R v Sloane (1990) 49 A Crim R 270
R v Stubbs (2009) 3 ACTLR 144
R v Tyrell [1894] 1 QB 710
R v Whitehouse [1977] EWCA Crim 2; [1977] 1 QB 868
Re: Gaijar [2008] VSCA 268
Rice v Tricouris [2000] VSC 73; (2000) 110 A Crim R 86
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612
Sherman v United States [1958] USSC 87; 356 US 369
Explanatory Memorandum for the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004
AFP National Guideline on undercover operations, para 11
Macquarie Dictionary Online
No. SCC 468 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 11 February 2011
IN THE SUPREME COURT OF THE )
) No. SCC 468 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
v
ALAN WINSTON PRIEST
ORDER
Judge: Penfold J
Date: 11 February 2011
Place: Canberra
THE COURT ORDERS THAT:
1. The application is dismissed.
1. Alan Winston Priest was charged on 14 May 2008 with four offences, being:
(a) using a carriage service to procure a person under 16 years of age (the procuring offence);
(b) using a carriage service for child pornography material (the transmission offence);
(c) possessing child pornography; and
(d) using a carriage service to “groom” a person under 16 years of age (the grooming offence).
2. The procuring offence carries a maximum penalty of 15 years imprisonment and the grooming offence in this case carries a maximum penalty of 12 years imprisonment.
3. Mr Priest pleaded guilty to all the charges in the Magistrates Court and was committed to the Supreme Court for sentence. Sentencing was initially delayed because of the prosecutor’s need to obtain further information from police officers in New Hampshire in the United States. On 27 August 2009, Mr Priest withdrew his plea of guilty to the most serious charge, being the charge under s 474.26 of the Criminal Code Act 1995 (Cth) of using a carriage service to procure a person under 16 years of age to engage in sexual activity with the offender (the procuring charge). He was arraigned on that charge and pleaded not guilty, and in September 2009 he filed a pre-trial application in relation to the charge.
4. The pre-trial application sought the following relief in relation to the procuring charge:
(1) A declaration that the right to a fair trial pursuant to Chapter III of The Constitution applies to the prosecution of proceedings in the Australian Capital Territory and to the prosecution of the Applicant;
(2) A declaration that the right to a fair trial pursuant to s 21 of the Human Rights Act 2004 (ACT) applies to the prosecution of proceedings in the Australian Capital Territory and to the prosecution of the Applicant;
(3) That criminal proceedings against the Applicant on [the procuring charge] be permanently stayed as an abuse of process;
(4) That the following evidence be excluded from any trial against the Applicant on [the procuring charge]:
(a) Evidence of all communications between Detective James McLaughlin and the Applicant between 8 December 2008 and 13 May 2008;
(b) Evidence of all communications between Detective Richard Chin and the Applicant between 20 April 2008 and 13 May 2008; and
(c) All other evidence obtained in consequence of the communications outlined in paragraph (a) and (b) above.
(5) That the Respondent pay the Applicant’s costs of and incidental to making this application.
5. Because the operation of the Constitution (Cth) and the Human Rights Act 2004 (ACT) were to be raised, Mr Priest’s representatives notified both the Commonwealth and ACT Attorneys-General and also the ACT Human Rights Commissioner.
6. When the application came on for hearing I told counsel that my preliminary research suggested that this was not an appropriate case in which to make declarations of the kind sought by the applicant, but that I would hear argument about that proposition. Counsel for the applicant, without formally withdrawing the applications for declarations, said that he would not put arguments in support of them, and accordingly I do not propose to make either of the declarations.
7. The question left for the Court was, therefore, whether the police behaviour that led to the alleged commission of the procuring offence provided a basis for staying the prosecution as an abuse of process, or required the exclusion of the evidence under s 138(1) of the Evidence Act 1995 (Cth) (subject to the discretion to admit it following the balancing exercise required by s 138(1)).
The earlier offences
8. The events leading to the conduct alleged to constitute the procuring offence were described as follows when I sentenced Mr Priest on 6 April 2010 on the three other charges mentioned at [1] above:
Mr Priest first came to police attention in December 2006 when AFP officers were advised by German police that his internet address had been used to download child pornography material.The grooming offence was committed between December 2006 and May 2008. A message was sent by a US undercover detective, Detective McLaughlin, to a mailing list known to circulate child pornography material. The message included the words “I am 14 from NH and love hot pics!” Mr Priest, who used the mailing list, responded, beginning a correspondence with a person he believed to be Brad, a 14-year-old boy from New Hampshire. Communications took place by email, real-time “chats” and other messages. In the course of their exchanges:
...In December 2006 and March 2007, Mr Priest discussed with Brad the possibility of meeting in the United States in 2007 when he travelled there to attend a conference. He first raised this possibility after having communicated with Brad for only about a fortnight. However, Mr Priest was wary of being caught and did not in fact seek to meet Brad when he went to America. The prosecution say that this meeting did not take place because Mr Priest “was extremely worried about getting caught”, not because of any insight into “the illegality or immorality of his conduct”, and that does seem to be borne out by the transcripts of the communication.
On his return to Australia, however, Mr Priest continued to chat with Brad and send him pornographic material, and also to entertain the possibility of a meeting when he returned to the US in 2009.
Initial AFP response
9. Evidence was given at the hearing of the application by several Australian Federal Police (AFP) officers, including Sergeant Elias Petropoulos and Federal Agent Richard Chin.
10. As a result of the referral from the German police force, AFP officers identified Mr Priest, and a file was opened in May 2007. In June 2007 a search warrant relating to Mr Priest’s home was prepared, but it was not executed and may not ever have been sworn.
11. In July 2007, Detective McLaughlin, who had by then been corresponding with Mr Priest for some months, emailed the AFP offering a referral “for a child porn case in Canberra, Australia”. This email was referred to Sgt Petropoulos, team leader of the Child Abuse Team, who contacted Det McLaughlin.
12. On 1 August 2007, Det McLaughlin emailed Sgt Petropoulos attaching a document called “Australia.doc”, an “affidavit” setting out the information that was eventually used as the basis for the charges on the grooming and transmission offences. Det McLaughlin indicated a preference for Mr Priest to be dealt with in Australia rather than via extradition to the United States, and Sgt Petropoulos advised an expectation that a warrant would be issued by mid-September 2007. On 7 September 2007 the Commonwealth Director of Public Prosecutions advised that the grooming offence could be tried in Australia, but noted that a statement from the undercover operative would be needed. The “Australia.doc” material received in August 2007 was not signed, and Sgt Petropoulos gave evidence that he did not wish to proceed against Mr Priest without a signed copy. Sgt Petropoulos does not appear to have been particularly energetic in his pursuit of a signed version, but on 28 January 2008 Det McLaughlin re-sent “Australia.doc” with a signature on the last page.
13. Sgt Petropoulos agreed in cross-examination that by January 2008 the AFP “had more than enough material” to proceed against Mr Priest. Given Sgt Petropoulos’s understandable view that he should have a signed copy of the “affidavit”, it is not clear that, as counsel for Mr Priest asserted, the material was sufficient in September 2007, but given the way the application developed I do not consider that whether it was September 2007 or January 2008 is significant.
Mr Priest is introduced to “Jamie”
14. On 14 April 2008 Agent Chin was assigned to the Priest investigation by Sgt Petropoulos. There was no evidence before me of any discussion or decision that might have explained this event. Agent Chin explained in evidence that, when Sgt Petropoulos brought him into the investigation, “our area is a support area so we were consulted as to how we could provide support for the investigation on that date”, but it seems that he was given no particular instructions except that he was to engage with Mr Priest as he saw fit.
15. By 18 April 2008 Agent Chin had emailed Det McLaughlin about the identity he intended to assume for the purpose of engaging with Mr Priest. Further information was provided to Det McLaughlin on 21 April 2008.
Communications between “Brad”, “Jamie” and Mr Priest
16. Det McLaughlin as “Brad” introduced Mr Priest to Agent Chin as “Jamie” in the following email exchange that took place over about 30 hours on the weekend of 19-20 April 2008. Mr Priest had been using the name John in his dealings with “Brad”.
Brad: Been chatting with a guy who is 12 almost 13 from Canberra. He seems to be like us :)Mr Priest: wow, do you have any more info? :) Don’t give him my id, but ask him if he wants to chat with me, and tell him my age so he knows. I am 57, in case you had forgotten. hahaha. :) Thanks. xx
Brad: he is kewl about a guy’s age, he told me older guys have the best pics (I already knew that). I didn’t tell him anything about u, but will ask if he wants an older guy to chat to and if he says yes I will let you know and you can email him if you want to. Just don’t forget me!!!!!!!! :)
Mr Priest: Hi Brad, Thanks and I will NEVER forget you. :):) Which chat line did you meet him on? Love you. xxx
Brad: He saw my hi5 and emailed me. you want his email addy? :)
Mr Priest: hi again, yes please. :) May I mention that i got it from you :) xx
Brad: Yea, that is kewl ...
Mr Priest (to “Jamie”): Hi, I got your email address from Brad who tells me you live in Canberra. :) I do too. :) He and I have been emailing each other for a while now. I send Brad some pics that he likes, and he told me you also like them.:) Do you want to do some swapping? John
17. “Jamie” responded on 22 April 2008.
Jamie: Hey there. Yeah brad tole me bout u. yeah i live in Canberra to im in high school. what part of canberra do you live in. i cant believe you know brad hes the kewllest guy. u on msn. Im on msn with the same email. JamieMr Priest: Hi Jamie. I live in Belconnen. where are you? :) And I have sent you my msn details ... I met Brad thru a mailing list for stuff. :) John
18. Mr Priest and “Jamie” then communicated mostly by Windows Live Messenger (MSN). They “chatted” for roughly 70 minutes on 22 April; 160 minutes on 28 April; 200 minutes on 29 April; 90 minutes on 1 May; 90 minutes on 5 May; briefly on 7 May; for roughly 145 minutes on 9 May; 155 minutes on 11 May; and 160 minutes on 12 May. As well, several emails were exchanged during the three-week period, including one attaching a photograph of Mr Priest.
19. On 29 April Mr Priest first raised the possibility of a meeting; on 12 May a meeting was confirmed for 13 May at the Lyneham shops.
Communications between the police officers
20. During the period of communications between Mr Priest and “Jamie”, Det McLaughlin and Agent Chin were also in contact.
21. On 21 April 2008 Det McLaughlin emailed Agent Chin:
I kept things simple and he seems to have taken the bait.
22. In reply, Agent Chin emailed:
See attached for first MSN chat interaction with our friend this evening. Kept it pretty low key to feel him out, used you as leverage which worked well – he’s being a bit cautious but I’m sure will head in the right direction very soon.
23. On 12 May Agent Chin emailed Det McLaughlin to report progress:
... we are one day away from a meet and resolution to this job. He is very suspicious and has backed out once, but now seems to want to go ahead. We have our fingers crossed. Don’t think he’ll look to you for further vouching but you never know. If so, just reiterate that I’m pretty shy and you’ve been guiding me through things ...
The proposed meeting
24. On 13 May, Mr Priest went to the Lyneham shops at an appropriate time for the meeting that had been confirmed between him and “Jamie” on 12 May. He spent about an hour in and around the shops, including looking in the window of a pizza shop, and then went home. The AFP then visited his home and searched it pursuant to a search warrant. In reliance on his dealings with “Jamie”, Mr Priest was charged with the procuring offence.
25. The fundamental question arising in this application is whether there is anything objectionable in the conduct of the police officers in their engagement with Mr Priest, as a result of which he is alleged to have committed, in relation to “Jamie”, the offence with which he is now charged. I have deliberately used the non-specific word “objectionable” at this stage because the answer to this question may be relevant to several variously-expressed grounds for making the orders sought by the applicant.
26. The grounds on which the police conduct was said to be objectionable were, in summary:
(a) that the police operation in relation to “Jamie” was inappropriately targeted;
(b) that the police activity itself contravened the Criminal Code or AFP guidelines about police acting as agents provocateur.
Significance of different remedies
27. The general question of the kinds of police activity that may be objectionable (whether in the particular context they are described as entrapment, as infringing a person’s right to a fair trial, as an abuse of official power or simply as an impropriety or contravention of law that may justify or require the exclusion of relevant evidence) have been the subject of a number of Australian and foreign cases to which counsel referred me. Before considering those cases, I note that in different jurisdictions, different remedies are available if objectionable activities by the authorities are found; the objectionable activities may provide a complete defence to a prosecution, justify an indefinite stay of proceedings, or give rise to a discretion or obligation in the court to exclude evidence. The difference in remedies does not seem to me to affect at this stage the assessment of whether any of the official conduct in this case was in fact objectionable.
Was the police operation inappropriately targeted?
28. In the light of express or implied concessions made on behalf of Mr Priest both before and during the hearing, the nature of any objection to the targeting of the police conduct was narrowed down substantially.
No objection to police issuing invitation to unknown potential offenders
29. First, by maintaining his plea of guilty to the grooming offence arising out of his dealings with “Brad”, Mr Priest implicitly does not criticise the original police operation involving an “invitation” to all users of an email list by which child pornography was circulated. In the context of police activity aimed at paedophiles operating on-line, it has been accepted or assumed in a number of cases (see those mentioned at [79] to [81] below) that there is no impropriety in offering an “invitation” broadly to potential offenders who may at the time be completely unknown to the police. The implicit concession that I have attributed to Mr Priest is confirmed by his counsel’s reference to Det McLaughlin’s initial actions, quoted at [33] below.
No objection arising from delay in prosecution
30. Secondly, counsel for Mr Priest conceded that there is no principle of law requiring a prosecution to be commenced at the earliest possible opportunity. The delay in prosecuting Mr Priest for the two offences emerging from his dealings with “Brad”, even if the reason for that delay was a wish to be able to charge Mr Priest with an “Australian” offence, is not said to taint the procuring charge that emerged from the further police activity, even though the police activity could not have occurred but for that delay.
31. Nor does Mr Priest argue that if the police had charged him with the offences related to Brad as soon as they had the necessary evidence, he would not have been able to engage in the conduct said to constitute the procuring offence.
Nature of objection to police actions
32. Counsel for Mr Priest described the objectionable aspect of police behaviour in this case as:
... the deliberate and conscious incitement of a particular person to commit an offence which would otherwise not have been committed by the police officer offering himself up in a false identity to encourage that person to commit that offence.
33. This formulation had earlier been explained more graphically, and revealingly, in the following exchange:
HER HONOUR: And so the key to all of this in the “Jamie” case is the message that says, “I’ve been chatting to someone in Canberra, are you interested in contact...” ...MR GLISSAN: Well, it’s more than that, it’s the other emails that passed between the police officers saying, “He seems to have taken the bait.” The emails that say, “If he contacts you tell him I’m shy to get him to talk to me more.” That sort of flows through. Those things continue to encourage this person to commit the offence. “Do not let this fish off the hook.” That’s really what they’ve done.
HER HONOUR: Well they’re putting out some bait, that’s clear, and they think of it in those terms, but - - -
MR GLISSAN: But it’s not putting out bait generally into a big bowl like Detective McLaughlin did in the first instance. This is a fish - one fish - in a barrel.
Was there incitement or encouragement?
34. The first point to be made about counsel’s objection to the police conduct as quoted at [32] above is that there is a real question whether Agent Chin actually “incited” or “encouraged” Mr Priest to take the action he did. That question is dealt with at [83] to [86] below; for the moment it is sufficient to respond to counsel’s suggestion that incitement or encouragement can be found in the nature of the exchanges between the two police officers. It is apparent that the two officers were hoping to catch Mr Priest committing an offence; however, I consider that only their dealings with Mr Priest, and not their dealings with each other, can properly be examined for signs of “incitement” or “encouragement” of Mr Priest, because Mr Priest could only be incited or encouraged by actions he was aware of or material that was available to him.
Whether offence “would otherwise have been committed”
35. The second point that should be made is that the challenge to police activity on the ground that the offence concerned “would otherwise not have been committed” cannot be sustained if it refers to the exact offence allegedly committed, in this case the procuring of “Jamie”.
36. In R v Sloane (1990) 49 A Crim R 270 (Sloane), Gleeson CJ said at 273:
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. Obviously the respondent and Rice would not have been involved in the supply of cocaine to Harris if Harris had never come onto the scene. A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. To use the language of an American case on the subject, ‘a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal’: Sherman v United States [1958] USSC 87; 356 US 369 at 372-373 (1958).
37. To the extent that the challenge refers to inciting a person to commit an offence of a kind that would otherwise not have been committed, it may be sustainable in some cases but it cannot be sustained in this case. This is because Mr Priest had earlier indicated a desire to perform various sex acts with “Brad” and a wish to meet “Brad” when he visited the US, and had apparently backed away from a meeting only out of caution (see the extract from my sentencing remarks set out at [8] above). Mr Priest has no basis for asserting that he had no disposition to pursue meetings with children for the purposes of sexual activity.
Significance of degree of targeting
38. Few of the cases to which I have been referred specifically address the significance of the degree of targeting, or the nature of the official suspicion of the person ultimately caught by the police or other official operation.
39. However, a number of propositions can be extracted from the cases, whether explicitly or by inference.
Ridgeway—unfairness to offender generally only of peripheral importance
40. In Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 (Ridgeway), the High Court was concerned with the scope for a trial court to exclude evidence of guilt “where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purposes of obtaining a conviction” (at 32). Mason CJ, Deane and Dawson JJ (at 36) applied the approach also to offences procured by impropriety (not requiring unlawfulness) by police officers. Although there was no express consideration of the issue that has now been raised on behalf of Mr Priest, members of the Court commented on the public policy considerations to be applied in exercising the discretion to exclude evidence; Mason CJ, Deane and Dawson JJ noted at 37-38 the public interest in the conviction and punishment of those guilty of crime, the sometimes conflicting public interest in deterring unacceptable behaviour by law enforcement officials, and the possibility of unfairness to a particular accused, or suspected or accused persons in general, concluding that “Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance”.
41. Of specific relevance to targeting, their Honours observed (at 36) that:
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 [of official behaviour that is inconsistent with society’s minimum standards].
42. The vulnerable but otherwise law-abiding citizens who, “so far as police are concerned”, might not otherwise have committed an offence of the relevant kind, are implicitly distinguished from persons who, so far as police are concerned, have already been identified as likely to commit the relevant kinds of offences. In the same case, Brennan J at 27 referred to the distinction drawn in American cases and mentioned by Gleeson CJ in Sloane between “the trap for the unwary innocent and the trap for the unwary criminal” (quoted at [36] above). It is apparent that the unwary criminal who is the subject of suspicion has far less claim to protection than the unwary innocent who falls into a wider trap.
Random compliance testing
43. Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612 (Woolworths) arose from random “testing” of retailers for their willingness to supply cigarettes to children. Woolworths was prosecuted in the Magistrates Court and convicted of supplying cigarettes to minors. Woolworths’ appeal was upheld in the District Court and there was a further appeal, in which one of the findings of fact considered (set out at [15]) was that:
The retailers approached are selected randomly. There was no suspicion held by the appellant or any of its officers that the respondent, or the cashier who served the young person, were in the habit of selling cigarettes to underage purchasers.
44. In the NSW Court of Criminal Appeal, Basten JA (with whom Barr and Hall JJ relevantly agreed) found that the official conduct that resulted in the prosecution (which involved sending under-age teenagers to try to buy cigarettes) was not capable of constituting an impropriety for the purposes of s 138(1) of the Evidence Act 1995 (NSW). It was implicit in Basten JA’s decision that his Honour took the view that compliance testing was not rendered improper by being applied to randomly-selected service providers where no preliminary suspicion was held about a particular provider. This approach is consistent with a number of English cases involving compliance testing in the absence of particular suspicion such as DPP v Marshall [1988] 3 All ER 683 and Nottingham City Council v Amin [2000] 2 All ER 946.
45. In the decision in Woolworths, references were made to a very similar Victorian case, Rice v Tricouris [2000] VSC 73; (2000) 110 A Crim R 86 (Rice). In that case an appeal against a Magistrate’s decision to exclude evidence of a supply of cigarettes to a 15-year-old girl was allowed by Beach J of the Victorian Supreme Court. Basten JA in Woolworths (at [40]) rejected the NSW District Court’s attempt to distinguish Rice on the basis of an inference drawn by the District Court that the tobacco retailer in Rice had been targeted because of “suspicions which attached to him specifically, rather than tobacco retailers generally”. Basten JA noted that this inference (even assuming it to be correct) was not mentioned, and did not seem to have been relied on, by Beach J, and that Rice could not be distinguished from Woolworths by reference to the degree of targeting of the offender.
46. Since it is not clear whether Rice did involve a pre-existing suspicion of the particular offender, it cannot be identified as authority for the proposition that there is no necessary impropriety in a police operation that targets a particular person based on pre-existing suspicion of that person. What can be said, however, is that neither in Rice nor in Woolworths was it suggested that a more specifically targeted operation would have been more likely to be considered improper.
47. Basten JA’s approach is also as a matter of principle consistent with the implicit concession in this case that “putting out bait generally into a big bowl” is not objectionable.
Provision of opportunity to commit crimes
48. The position in relation to criminal activity is sometimes distinguished from the position in relation to regulatory offending, and may raise slightly different issues; Basten JA in Woolworths at [31] referred to the distinction drawn in the English case of R v Looseley [2001] UKHL 53 (Looseley) by Lord Hoffman, who said at [56]:
In the case of some regulatory offences, the effective administration of the law may require enforcement officers to have the power to make random tests. But normally it is not considered a legitimate use of police power to provide people not suspected of being engaged in any criminal activity with the opportunity to commit crimes.
49. Lord Nicholls of Birkenhead noted at [24] in Looseley:
The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale ‘virtue-testing’, without good reason.
50. That is, apart from the kinds of cases where more or less random testing can be justified on grounds such as the difficulty of detecting, and obtaining evidence of, consensual crimes such as drug trafficking, the general principle seems to be that a police operation is less likely to be objectionable the more carefully targeted it is. In Looseley, Lord Nicholls at [27] and [28] identified two qualifications to this general principle:
(a) that the targeting of individuals should not be malicious or otherwise done in bad faith;
(b) that the targeting of individuals should not involve significant inducement to commit an offence, and that the weight of the police inducement must be assessed by reference to the particular vulnerabilities of the individual who is targeted.
51. These principles are exemplified in the facts of several cases referred to in Looseley, but for present purposes Looseley and the case heard with it and dealt with in the same judgment, Attorney-General’s Reference (No 3 of 2000), provide an adequate articulation of the line between operations that are appropriately targeted and those in which the targeting is tainted by what can conveniently be referred to as bad faith or unfair inducement on the part of police or other officials.
52. Looseley itself involved an undercover operation by Guildford police concerned about the local drug trade. At a public house in the area, an undercover police officer was given the name and phone number of a person who might be able to supply drugs. The police officer contacted the person, who supplied him with heroin on three separate occasions. That is, the initial stages of the operation (aimed at whoever was in fact supplying drugs) produced a particular suspect, who was then given an opportunity to commit a relevant offence on not just one but three occasions. The House of Lords rejected the claim that the police officer’s evidence should have been excluded because he had not merely observed the actions of the suspect Mr Looseley but had asked Mr Looseley to supply heroin to him.
53. Attorney-General’s Reference (No 3 of 2000), in contrast, concerned a person engaged in other criminal activity who was induced to commit drug supply offences against his inclination. Lord Hutton at [92] quoted from the trial judge in describing the circumstances:
Police officers see a man called S and they ask him if he wants to buy — these are undercover officers — some [contraband] cigarettes and so on. He went with them to where the defendant . . . . is. S goes to the car where [the defendant] was. Cigarettes are handed over. There is a conversation about cigarettes and the conversation is to do with cigarettes. Thereafter the conversation with the defendant is: ‘Can you sort out any brown?’ Later on many, many conversations with the defendant, offering cigarettes and persuading him, within reason initially, to provide them with a class A drug. Eventually the defendant obtains drugs from another source. It is on record that he said at one stage: “I’m not really into heroin myself.”
54. That is, however the defendant came to police attention, it appears not to have been as a supplier of heroin; rather, having been identified as one kind of criminal, he was then induced to obtain and supply heroin to undercover officers by repeated requests, and arguably by playing on his vulnerability in feeling obliged to return a favour; the defendant (quoted at [92] in Looseley) said that the police officers were getting him cheap cigarettes, “so as far as I was concerned a favour for a favour”. The Law Lords found that the defendant was inappropriately targeted in the first place (in that he was not suspected of the relevant kinds of offences) and then he was inappropriately subjected to inducement rather than just opportunity to commit the offence. The trial judge had initially stayed the prosecution as an abuse of the court and the defendant was subsequently acquitted; the question of the effect of the European Convention on Human Rights on the power to stay proceedings was referred to the Court of Appeal and in due course to the House of Lords, who approved the trial judge’s decision to stay the prosecution.
55. The facts in Attorney-General’s Reference (No 3 of 2000) are easily distinguishable from the current case, whereas in Loosely the facts appear to raise effectively the same issue as that relied on in this case.
56. For the defendant in Loosely, the second and third requests for him to supply heroin might also have been described as “shooting fish in a barrel” (see [63] below), but there was no challenge to the convictions on that basis.
57. Both Looseley and the current case involve offences of a kind that are believed to be common but that are, in their nature, difficult to detect and unlikely to be reported by victims or anyone else, and for which, accordingly, evidence gathering is difficult. Both cases involved an initial operation targeted not at the world in general but at those who were more likely than most people to be involved with the relevant kind of offending. Both cases involved the resulting identification of particular individuals, the testing of those individuals through an initial, successful, approach, and the subsequent offering of further opportunities to commit the same or similar offences. The final offence allegedly committed by Mr Priest was in fact a more serious offence than the grooming offence charged in relation to “Brad”; the final offence in Looseley was also more serious in that it involved a larger quantity of heroin, although it does not seem to have been a different offence.
58. Targeted operations by police have been the subject of challenge in Australia on several occasions over at least 20 years. I am not aware of any Australian cases in which the challenge was based on the specific targeting of the offender, but all the following cases involved police operations initiated because of suspicion of the particular offender, and in all of them a challenge to the legitimacy of the police operation was rejected:
(a) Sloane: The NSW Court of Criminal Appeal upheld an appeal against a decision of the District Court staying proceedings because of what the District Court found was entrapment. The Court of Criminal Appeal found that there had been no entrapment and that the accused could not have established that she was not otherwise disposed to commit the offence concerned. Gleeson CJ noted (at 271) that “the genuineness of [the police] suspicion was not in question, and his Honour made no finding that it was not based on reasonable grounds”.
(b) R v Coulstock (1998) 99 A Crim R 143: The offender pleaded guilty to an offence of supplying methylamphetamine to an undercover police officer introduced to him by another man. He challenged his convictions on two further charges (relating to an agreement and an offer to supply) on the basis that the police officer had committed an offence by soliciting and inciting the offences. The NSW Court of Criminal Appeal said there was nothing improper in the police officer’s action in soliciting the commission of the offences.
(c) R v Ladocki [2004] NSWCCA 336: The Court dismissed an appeal against conviction for supplying heroin on the ground of wrongful admission of evidence, finding that the authority to conduct the controlled operation was not invalidated by a failure to mention certain matters in the application for the authority.
59. By the time Det McLaughlin introduced Mr Priest to “Jamie”, he and Agent Chin knew exactly who they were dealing with and how he was likely to behave. By reference to the English and Australian decisions that I have mentioned, that fact appears to be, if anything, an indicator of a police operation that was appropriately targeted rather than inappropriately random (such that it ran the risk of inducing a person to commit an offence that would not otherwise have occurred to him or her).
60. There was no explicit submission made that the operation using “Jamie” was conducted maliciously or otherwise in bad faith (as distinct from the submission that it was too carefully targeted). Counsel’s suggestion, quoted at [33] above, that the exchange of emails between the two officers (set out at [21] to [23] above) was relevant to whether there was incitement or encouragement was rejected at [34] above, and I also reject any suggestion that might have been intended that the exchanges between the two officers went beyond discussing the operation they were conducting and somehow demonstrated malice or bad faith.
61. Nor was it submitted in this context that Mr Priest was subjected to “significant inducement” having regard to his particular vulnerabilities. The separate question whether he was inappropriately incited or encouraged to commit the alleged offence is considered at [83] to [86] below.
Shooting fish in a barrel
62. Counsel’s description of the actions of the police officers, in offering Mr Priest another opportunity to engage with a child, as treating Mr Priest as “a fish—one fish—in a barrel” in fact reveals the flaw in the argument put on behalf of Mr Priest.
63. The expression “shooting fish in a barrel”, alluded to by counsel in his reference to Mr Priest being “one fish—in a barrel”, is in the abstract generally understood as a description of something that is easy; for instance, the Macquarie Dictionary Online (viewed on 19 January 2011) contains the following definition:
19. be like shooting fish in a barrel, to be extremely easy to do.
64. To my understanding, the use of the expression as a criticism (as is implicit in counsel’s use in this case) implies a description of an unequal contest, in which the target of the exercise is not being given a sporting chance.
65. The problem for Mr Priest is that the criminal law and the criminal justice system are not a game with rules designed to ensure a challenge for all participants and an enjoyable spectacle for observers. Certainly the criminal justice system involves more rules based on fairness than any game or sport I can think of, but those rules are aimed at protecting “the integrity of the administration of criminal justice” (Ridgeway at 33), at ensuring that police officers and other officials do not abuse their powers, and at ensuring that innocent people are not wrongly convicted. In Ridgeway, Mason CJ, Deane and Dawson JJ, in describing the support provided by some American cases for the recognition of a judicial discretion to exclude evidence of an illegally procured offence, said at 33-34 that the cases concerned:
explain the doctrine of entrapment as resting not upon a perception of the innocence of, or unfairness to, the induced offender but upon the inherent powers of the courts to protect the integrity of their own processes.
66. If these propositions are correct, then police actions could justifiably be criticised, for instance, for inducing an initially innocent person to act in a criminal way (the “virtue-testing” rejected by Lord Nicholls, quoted at [49] above), or for involving abuse of official power, but they cannot be criticised for failing to give, to a person who commits an offence voluntarily and without inducement, a sporting chance of avoiding prosecution or conviction.
Conclusions
67. Accordingly, I can see no basis for finding that the actions of Det McLaughlin and Agent Chin in offering Mr Priest an opportunity to commit an offence in relation to an Australian “child” are objectionable in any respect. In particular they are not objectionable on the ground that when the opportunity was offered, the police officers had specific reason to expect that Mr Priest would take advantage of it; to the contrary, by reference to Looseley and Attorney-General’s Reference (No 3 of 2000), as well as Gleeson CJ’s comments in Sloane, that expectation would seem to be an indication of good faith on the part of the police officers.
68. Although the issue was not raised in argument, it is worth mentioning also that I can see no objection to the particular approach taken by Agent Chin in adopting as his fictitious identity a child living in Canberra as distinct from, say, a child who lived in Perth. Locating the fictitious child in Canberra probably increased the possibility that Mr Priest would go beyond “grooming” to the more serious offence of “procuring”, by attempting to arrange a meeting with the child for the purpose of sexual activity, but I cannot see that this taints the opportunity being offered with any kind of “inducement”. Nor is there any basis for finding, as in Attorney-General’s Reference (No 3 of 2000), that Mr Priest was being inappropriately steered towards an offence he was not otherwise disposed to commit; see [37] above.
69. I should however note that further issues might well arise if police officers, having obtained evidence of a modest number of offences, decided to continue accumulating more and more offences before apprehending the target and charging him or her. Those issues might include:
(a) whether such conduct was itself evidence of malice or other bad faith (for instance if it appeared that police had acted as described in order to satisfy pressure to demonstrate police “productivity”); and
(b) how the police approach should be accounted for in sentencing in such a case.
70. As to sentencing, even where the accumulation of multiple offences is not objectionable, there might be grounds for treating the several offences as arising out of the same set of circumstances and justifying a high degree of concurrency in sentences.
Contravention of law or relevant guidelines
71. Counsel for Mr Priest also asserted that the actions of the police officers contravened either or both of s 474.26 of the Criminal Code and the AFP National Guideline on undercover operations (the National Guideline) relating to agents provocateur because, as is conceded by the respondent, the police activity was not the subject of a controlled operation authority under Part IAB of the Crimes Act 1914 (Cth) and there was no authorisation under Part IAC of the Crimes Act for Agent Chin to assume a false identity.
72. The respondent says, however, that there was no requirement for either a controlled operation authority or an assumed identity authority in this case.
Contravention of Criminal Code?
73. Agent Chin’s contravention of s 474.26 of the Criminal Code as alleged on behalf of Mr Priest is said to have been constituted by aiding, abetting, counselling or procuring the alleged commission of Mr Priest’s offence against the same section. Under s 11.2 of the Code, a person who aids, abets, counsels or procures the commission of an offence under the Code is taken to commit that offence.
74. The respondent disputes the proposition that a police officer operating in the way Agent Chin did commits an offence.
75. First, although there is no express legislative provision to this effect, the provisions of the Criminal Code do not support the view that a police officer officially using an assumed identity as a child to provide an opportunity for the commission of an offence against s 474.26 is intended to be caught by s 11.2.
76. Section 474.26 itself expressly provides that the recipient of an offending communication may be actually under 16 years of age or may be a person “who the sender believes to be under 16 years of age” (s 474.26(1)(c)); the Explanatory Memorandum for the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (the Amendment Bill), which inserted s 474.26, says that this provision caters for a “standard investigatory technique”, as follows:
a typical investigation would involve an AFP officer, or investigator at the Australian High Tech Crime Centre, assuming the identity of a fictitious child, interacting with potential predatory adults over the internet, and arresting a predatory adult before they have an opportunity to sexually abuse a real child that they are also ‘grooming’.
77. Subsection 474.28, also inserted by the Amendment Bill, provides that, for the purpose of sections including s 474.26:
it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
78. The Explanatory Memorandum for the Amendment Bill notes that this provision is important because it “paves the way” for the use of the standard investigatory technique described at [76] above, and mentions that the technique “was recently upheld in a Queensland court” (although unfortunately without identifying the court or the particular decision).
79. Since 2004, a number of courts have implicitly approved operations of the kind described in the Explanatory Memorandum. These include the Victorian Court of Appeal in Re: Gaijar [2008] VSCA 268 and the Queensland Court of Appeal in R v McGrath [2005] QCA 463; [2006] 2 Qd R 58, although I note that both those cases concerned sentencing appeals in cases where the offender had pleaded guilty, and no challenge was made to the legitimacy of the police operation or the resulting conviction.
80. It is more difficult to find cases involving defended prosecutions in this area, but in R v Stubbs (2009) 3 ACTLR 144, Higgins CJ refused an application to have evidence excluded in a prosecution for procuring under s 474.26 of the Criminal Code that involved the offender communicating with a police officer whom he believed to be a 14-year-old girl. Higgins CJ said at [56]:
Although it is not entirely analogous, there is authority that protective provisions such as those in contention here do not involve criminal liability on the part of the underage person being procured, notwithstanding that the underage person aids, abets or even procures the offending behaviour on the part of the adult (see for example, R v Tyrell [1894] 1 QB 710; R v Whitehouse [1977] EWCA Crim 2; [1977] 1 QB 868). It is a moot point whether that immunity would extend to an adult pretending to be such a child but there seems to me to be no reason to suppose that criminal liability was intended to extend to such a circumstance.
81. His Honour rejected the argument that the police officer involved had himself contravened the law under which the accused was charged, and went on to note that even if the police officer’s conduct had been a contravention of the law, he would have admitted the evidence in the exercise of his discretion under s 138 of the Evidence Act.
82. Having regard to the apparent legislative intention and the authorities cited, I am satisfied that the Criminal Code does not operate to render an undercover police officer guilty of aiding, abetting, counselling or procuring an offence under s 474.26 merely by reason of offering an opportunity for a person to commit an offence under that section. I am also satisfied that, realistically, the scope of police activity that does not fall foul of s 474.26 must include engaging with the person by responding to his or her communications, including by agreeing with relevant suggestions, answering relevant questions, and evincing an adequate level of enthusiasm; the content of those responses will of course need to be carefully constructed if they are not to cross the line into actively encouraging or inciting actions constituting the offence or actively playing on a target’s vulnerabilities.
83. I have read the recorded exchanges between Mr Priest and Agent Chin as “Jamie” and I am satisfied that Agent Chin was careful to avoid anything that could be said to constitute active encouragement, incitement or inducement. As examples of his approach, I set out extracts from two MSN conversations, the first being the one in which Mr Priest first proposed the idea of a meeting, and the second being the last one before the planned meeting. Mr Priest’s contributions are shown in bold.
84. On 29 April, the following exchange occupied 15 minutes towards the end of a “chat” lasting over three hours:
but please do not tell anyone, not even a trusted friend
no i wudnt tell anyone not a chance
some things have to stay a secret
tks hug
do you like h ugs?
i love them
they feel so good
yeah theyr gr8
:)
well, if we ever meet, i will give you a big one hahaha
i wudnt tell anyone bout this stuff
yeah sure
k and k :)
would you like to meet one day?
yeh sure
k. we will see then :)
it would be in the open somewhere, so you would feel safe
i can understand yu would be nervous to meet me
a little bit but i trust u
but i wud be nervous yeh
thanks, i would not hrt you or do anything bad to you
of course you would be nervous, perfectly understandable
but always you must be careful of who you meet, or who offers to meet you
k
even me, altho i am ok and you trust me, but some ppl you never know
yep i kno
so i will leave it to you. if you want to meet somewhere, you think about it and let me knwo. ok?
and if you do not want to, or change your mnd, perfectly ok
i understand completely
coz i will be nervous too
yeh it wud be gr8 to meet
so your call for whenever. :)
I dont really know where
u mean u want to meet soon?
well, you said you live in lyneham, so maybe shops there, or dickson, or civic or bel mall
no, i only want to meet you if YOU decide you want to meet me. i want you to think about it for a while first
k
but wot wud we do then
coz i am old enough to be your granddad haha
just talk
k
i don’t think sex will happen
but your call for that too
wow okay
im not really scared
but you MUST be sure if you want to meet first
u wud want to have sex with me? but i don’t know anything!
that does not matter
you would prob blow as soon as i touched yu anyway
hahaha probably
excitement
BUT, you MUST be sure that it is what YOU want. absolutely and positively
I didnt think u wud wnt to be with someone who doesnt know anything
maybe it is too soon for you
it is ok
easy to learn what to do
85. On 12 May, the day before the arranged meeting, Mr Priest emailed “Jamie” calling off the meeting because “Jamie” had not sent him the photograph he had asked for as a way of confirming that “Jamie” was a young boy rather than a police officer. He then chatted at length through MSN, proposing alternative methods of confirming “Jamie’s” identity such as driving past a place where “Jamie” would be waiting. After nearly two hours of chat, the following exchange occurred:
i never want you to feel bad about anything we do
k
i would rather we just were interent friends that make you feel bad
k
i mean like u can see me now wit ure new plan
still thinking about that
like if im at the fone box or whateva
u mean u dont want to do that now
ok jamie. let’s go back to the original plan. i will decide at the time i see you if i feel comfortable, if my gut says yes. BUT, repeat, BUT, if i do not contact you, i was not comfortable with the arrangement, but i will still chat with you on msn after school
how about that?
i dont get it
u mean u want me to go where u can see me
at the shops, at lunchtime, the original plan
oh
is that ok?
so u mean u will talk to me if u want to there
yes, and i want to for sure
k
but, I want to make sure yu are alone too
i think i kno wot u mean
ok, i hope so
oh i get it
u mean u can see its me an by myself an then u talk to me
yes
like you kno its me for real there
yes
k
yeh well i know its me so yeh
of course yu know it is you hahahahahahahaha
and i know it is me to hahahahaha
ye i kno hahahaha
but i need you to tell me what yuo will be wearing. a diff colur jacket or something
k
being there nude will cause comments hahahahaha
hahahaha
yeh
86. Counsel for Mr Priest did not point to any particular part or aspect of Agent Chin’s communications that he said went beyond offering an opportunity and crossed the line into encouraging or inciting the commission of the alleged offence. It is apparent that, although Agent Chin responded to Mr Priest’s suggestions, he was careful not to initiate any particular proposal, and careful not even to respond too enthusiastically to Mr Priest’s suggestions, preferring to emphasise his ignorance of sexual matters and his expectation that Mr Priest would prefer to engage with a person with more sexual experience. In particular I find that it was Mr Priest who initiated and pursued each development in the “relationship” between him and “Jamie”. I am accordingly satisfied that Agent Chin did not go beyond providing an opportunity for Mr Priest to commit an offence he intended to commit, as permitted by the common law, and did not commit an offence by aiding, abetting, counselling or procuring a contravention of s 474.26 of the Criminal Code.
Need for authority for controlled operation or use of assumed identity?
87. A “controlled operation” is defined in section 15GD(1) of the Crimes Act as an operation that, relevantly:
may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.
88. If a controlled operation authority is issued under Subdivision A of Division 2 of Part IAB of the Crimes Act, then under s 15HA, a participant in the controlled operation who engages in conduct in the course of, and for the purposes of, the controlled operation is (subject to compliance with a variety of other requirements) not criminally responsible for an offence constituted by that conduct. That is, the significance of the controlled operation authority is to remove criminal liability for offences committed in the course of the controlled operation. If there are no offences potentially involved in a police operation, there is no relevant purpose in obtaining a controlled operation authority.
89. Similarly, the effect of an authority to acquire or use an assumed identity issued under Division 2 of Part IAC of the Crimes Act is, relevantly, that under s 15KQ a person who has such an authority is (again subject to compliance with a variety of other requirements) not criminally responsible for an offence constituted by a thing done in the course of acquiring or using the assumed identity. Again, if there are no offences potentially involved in the use of an assumed identity, there is no need to obtain authority to use such an identity (an assumed identity authority also provides other benefits such as the ability to obtain official documentation supporting the identity, but these are irrelevant for present purposes).
90. Since I have found that Agent Chin did not commit an offence by aiding, abetting, counselling or procuring Mr Priest’s alleged offence, I am also satisfied that there was no need for Agent Chin to have authority either for a controlled operation or for the use of an assumed identity in order to legitimise his actions.
Contravention of National Guideline?
91. The National Guideline relevantly says:
11. Agent provocateurAFP appointees must not counsel, incite or procure the commission of a crime by acting as an agent provocateur.
Nothing prevents an undercover operative providing an opportunity for people to commit crimes that they intended to commit. However, they must not tempt or encourage anyone to commit crimes they might not otherwise commit.
92. The respondent says that this provision merely incorporates the common law, and on the basis of the authorities canvassed in this judgment, I see no reason to reject that submission. In this case, if Agent Chin’s actions were not objectionable at common law (and were not in contravention of the Criminal Code), they are not objectionable under paragraph 11 of the National Guideline.
No remedies available because no objectionable conduct
93. I have found:
(a) that Agent Chin did not commit any offence against s 476.26 of the Criminal Code and did not act in breach of the National Guideline; and
(b) that there was no other impropriety in his actions or those of Det McLaughlin of the kind identified on behalf of Mr Priest.
94. My conclusion that none of the challenges made by Mr Priest to the police activity in introducing him to, or in responding to him as, “Jamie” can be sustained means that I do not need to address any of the various ways in which a different finding might have been given effect.
95. While noting the respondent’s concession that there is in Australia generally and the ACT specifically a right to a fair trial, I need not consider whether that right now includes a right to a fair investigation or “a right not to be tried at all in circumstances in which this would amount to an abuse of State power” (Looseley at [45])).
96. While noting the respondent’s concession that the ACT Supreme Court has the power to stay a proceeding as an abuse of process, I need not to consider whether that power should be exercised here, because there is nothing that could be identified as an abuse of process.
97. Finally, there is no basis for saying that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of such a contravention, such that it would be inadmissible without an exercise of the discretion to admit it under s 138(1) of the Evidence Act. The evidence is not inadmissible under s 138(1) and the discretion to admit under that section need not be considered.
98. Accordingly, the application is dismissed. No declarations will be made, proceedings against Mr Priest on the procuring charge are not stayed, and I make no finding that any evidence relating to the procuring charge should be excluded from any trial of that charge.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 11 February 2011
Counsel for the applicant: Mr J Glissan QC with Mr S Whybrow
Solicitor for the appellant: Maurice Blackburn Lawyers
Counsel for the respondent: Mr P Hastings QC
Solicitor for the respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 28 January, 5 March 2010
Date of judgment: 11 February 2011
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2011/18.html