Is Entrapment a Defence to Criminal Charges in Australia?

The Guardian Australia recently reported a shocking case whereby counter-terrorism police encouraged an autistic 13-year-old boy in Victoria to engage in terrorism offences he would unlikely have otherwise committed.

The revelations came to light in the wake of a Victorian Children’s Court decision to dismiss the charges brought against the boy, known only under the pseudonym ‘Thomas Carrick’ or ‘TC’.

The case highlights the fact that while entrapment is not a formal legal defence in Australia, actions by police which undermine the justice system may nevertheless result in criminal charges being dismissed in court.

Here’s an outline of the case itself, including the key legal issues at play such as the laws relating to ‘controlled operations’, why the case was dismissed, and the essential elements of the criminal offences of joining a terrorist organisation and advocating terrorism.

The facts of the case

TC was a significantly disabled 13-year old boy on the autism spectrum, estimated to have an IQ of just 71.

TC had, over a series of months in 2020 to 2021, become increasingly fixated with the actions of the Islamic State (or ISIS), including consuming online material related to their activities.

In late 2020, TC reportedly showed an ISIS beheading photo to another  student at his high school and had made further concerning comments to other students.

This raised concerns with the principal of the school who filed a report with the Victorian Department of Health and Human Services (DHHS) who, in turn, shared these concerns with the Australian Federal Police (AFP)

In April 2021, separate to issued raised by the school, TC’s parents approached Victoria Police noting concerns about their son’s online activities. They were particularly concerned he was looking up bomb-making ingredients.

In response to this, Victoria Police referred TC’s case to the Countering Violent Extremism Unit for a therapeutic intervention.

This therapeutic intervention included TC attending regular sessions with a psychologist, an Imam to discuss Islamic doctrines and greater assistance and support for TC at school. A psychologist involved in the intervention noted that TC’s behaviour seemed tied to his mental condition:

[TC]’s verbalisations need to be considered within the context of his ASD and possible cognitive impairment. One of the key diagnostic criteria for ASD is highly restricted, fixated interests that are abnormal in intensity or focus.

In July 2021, despite knowing rehabilitation efforts were in place at state-level,  the AFP chose, in response to the DHHS complaint, to initiate ‘Operation Bourglinster’ to investigate TC for terrorism-related offences. This was authorised as a ‘controlled operation’ in August 2021.

Operation Bourglinster involved a Federal police officer assuming two fake online personas, OCO1 and OCO2, and engaging TC in online discussions on Instagram and Telegram regarding ISIS. OCO1 was the ‘less extreme’ of the two personas, being a 24 year old Muslim man from NSW, interested in the Islamic State. The persona OCO2 was an active member of ISIS based overseas.

Chat logs seen by the Children’s Court noted a number of disturbing actions by the OCO1 and OCO2 personas, including:

• OCO1 encouraging TC to call ASIO members ‘dogs’ and to use encrypted messaging platforms like Telegram.
• OCO1 frequently trying to steer TC towards ISIS related topics, despite TC largely wishing to talk about food, girls, school, aviation and football.
• OCO2 telling TC that he would make a good sniper or suicide bomber.
• OCO2 encouraging TC to learn more about an ISIS-linked stabbing attack at a supermarket in New Zealand which occurred in September 2021.
• When TC raised the possibility of making a bomb or killing a member of the AFP, OCO2 told TC that was a “good plan”.

The covert operative behind both personas appeared to be concerned about the state of their conversations with TC, noting in a discussion with a consulting psychologist that:

I’m going to have to talk about food and Emirates Airlines as he always gravitates to those subjects. He’s mentioned military aircraft only once (wants to be a fighter pilot for ISIS) and never mentioned use of aircraft in 9/11 type attacks. I’ll let him be the subject matter expert and comment on his knowledge (which is pretty impressive I must say) and go from there. As for the jihad stuff, is it best to ignore or comment in the negative on? I have to be careful here as not to show approval and thus encourage, tho I sort of need to fit with my persona

The general consensus by both the covert operative, and an AFP psychologist monitoring the exchange, was that TC was “living a bit of a fantasy life online”. The AFP psychologist also noted in a number of reports her concerns that the covert AFP operation may end up undermining the therapeutic interventions organised by Victoria Police.

The existence of two different police interventions, one therapeutic and the other investigative, was known by high level authorities within both policing agencies. The entire operation was overseen by a Joint Counter Terrorism Team consisting of senior members within the AFP, Victoria Police and ASIO.

In October 2021, a member of TC’s therapeutic team, along with two members of Victoria Police, was tasked by the AFP to perform a search of TC’s address. During this search a knife was found in TC’s room and TC was arrested and charged with two terrorism offences:

• Being a member of a terrorist organisation contrary to section 102.3(1) of the Criminal Code (Cth); and
• Advocating terrorism, contrary to section 80.2C(1) of the Criminal Code (Cth).

The choice to wait till October to charge TC was noted as concerning by the Children’s Court as it appeared investigators deliberately chose to wait till TC turned 14 years old, in order to avoid the presumptions of doli incapax (discussed below).

Due to the nature of the police investigation, Children’s Court Magistrate Lesley Fleming thew out the case against TC on 24 October 2023, ordering a permanent stay of proceedings. Magistrate Fleming construed the chat logs between the covert operative and TC as a case of “grooming” for terrorist activities. TC spent three months in custody as a result of the charges following a breach of bail.

Covert and controlled operations in Australia

Covert or ‘undercover’ operations are commonly utilised by State and Federal police in the investigation of serious offences.

Police operations which involve some degree of subterfuge, including taking on an assumed identity, will generally require approval by a senior member of police. In response to the decision of Ridgeway v The Queen, more stringent standards are in place for cases of ‘controlled operations’.

A ‘controlled operation’ is any operation where members of police may incur some criminal or civil liability as a result of their actions. If a controlled operation is approved, activities that would otherwise be illegal to do (such as discussing terrorist activities with a minor online) will become otherwise legal.

For operation by the AFP, the Crimes Act 1914 (Cth) outlines a number of requirements for controlled operations, including ‘major controlled operations’.

Section 15GD of the Act defines a ‘controlled operation’ as that which:

• involves the participation of law enforcement officers; and
• is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
• may involve a law enforcement officer or other person in conduct that would, constitute a Commonwealth offence or an offence against a law of a State or Territory.

What is ‘doli incapax’?

Doli incapax is a Latin term denoting the notion that certain people are deemed incapable of forming the intent to commit criminal offences or torts.

It is a common law legal principle that has been adopted by state and territory legislation across Australia, which makes clear that children under the age of 10 years cannot be held responsible for criminal offences.

It has also be codified in federal legislation which states that youths aged at least 10 but less than 14 years can only be held criminally responsible if the prosecution is able to discharge its onus of proving beyond a reasonable doubt that the presumption of doli incapax does not apply.

Section 7.2 of the Criminal Code Act contains the common law presumption in relation to children aged at least 10 but less than 14 years of age, stipulating that:

(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

The decision to wait to charge TC until he turned 14 years old, was suspected by Magistrate Fleming to have been strategically done to avoid the doli incapax presumption, an allegation the AFP and prosecutors deny.

Understanding terrorism charges

The charges against TC were outlined in the indictment as follows:

1. Between 19/9/2021 and 6/10/2021 in the State of Victoria the accused was, contrary to section 102.3(1) of the Criminal Code (Cth), intentionally a member of an organisation, namely, Islamic State, knowing that the organisation was a terrorist organisation.
2.  Between 19/9/2021 and 6/10/2021, in the State of Victoria, the accused did engage in advocating terrorism, contrary to section 80.2C(1) of the Criminal Code (Cth).

Being a member of a terrorist organisation is an offence under section 102.3 of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

• A person was a member of an organisation,
• The organisation was a terrorist organisation, and
• The person knew the organisation was a terrorist organisation.

A ‘terrorist organisation’ is one that is prescribed as such by the Act or its regulations or one that is otherwise directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act. A ‘member’ of a terrorist organisation includes:

• An informal member of the organisation,
• A person who has taken steps to become a member of the organisation, and
• A director or officer of the organisation where it is a corporation.

A person will be found not guilty of the offence if they establish, ‘on the balance of probabilities’, that they took all reasonable steps to cease to be a member of the organisation as soon as practicable after they knew it was a terrorist organisation.

Advocating terrorism is an offence under section 80.2C of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 5 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

• A person advocated the doing of a terrorist act, or you advocated the commission of a terrorism offence, and
• They were reckless as to whether another person would engage in a terrorist act or commit a terrorism offence as a result.

To ‘advocate’ is to counsel, promote, encourage or urge.

A ‘terrorist act’ includes an action or threat of action that:

• Causes death, serious physical harm, serious property damage, serious risk to public health or safety, serious disruption or destruction to electronic systems, or endangers life,
• Is intended to advance a political, religious or ideological cause, and
• Is intended to coerce or influence a government by intimidation, or to intimidate the public or a section of the public.

‘Terrorism offences’ include:

• Providing or receiving training in connection with terrorist acts,
• Preparing for or planning terrorist acts,
• Possessing items in connection with terrorist acts, and
• Committing terrorist acts.

A person can be found guilty of this offence even if the act they were advocated for did not occur.

A person will be not guilty of this offence if their conduct was in ‘good faith’, which includes:

• Pointing out matters that produce, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters, or
• Publishing a report or commentary about a matter of public interest.

Why was the case thrown out?

There is no formal defence of entrapment in Australia.

Instead, defence lawyers for TC made the following applications to the Children’s Court regarding the activities of the AFP:

1. That a permanent stay of proceedings should be ordered in order to protect the integrity of the system of justice administered by the court;
2. That the evidence gathered as a result of the operation, should be excluded on the basis of being improperly or illegally obtained under section 138 of the Uniform Evidence Act;
3. That the evidence gathered as a result of the operation, should be excluded on the basis that it is unfair under section 90 of the Uniform Evidence Act.

The Children’s Court ultimately decided to issue a permanent stay of proceedings. In determining a permanent stay of proceedings, a Court must consider:

• the need to ensure that an accused receives a fair trial;
• the need to hear and determine charges for serious offences;
•  the need to maintain public confidence in the administration of justice and
• the seriousness and nature of the offences.

The test for granting a permanent stay is “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness” Walton v Gardiner (1993) 177 CLR 378.

In describing chats between the covert operative and TC, Magistrate Fleming noted that:

[They] were obtained in circumstances that do not meet the minimum standard that society expects of law enforcement officers.The community would not expect law enforcement officers to encourage a 13-14 year old child towards racial hatred, distrust of police and violent extremism, encouraging the child’s fixation on ISIS.The conduct engaged in by the JCTT and the AFP falls so profoundly short of the minimum standards expected of law enforcement offices that to refuse this application would be to condone and encourage further instances of such conduct.

In ordering the stay of proceedings, her Honour went on to conclude:

There is no other way to protect the integrity of the system of justice administered by the Court except to grant the application and order that the proceedings be permanently stayed.

Going to court?

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