(a) The offence must be instigated, originated or brought about by the police; and
(b) the accused must be ensnared into the commission of the offence by the police conduct.
The purpose of the scheme must be to gain evidence for the prosecution of the accused for the very crime which has been so instigated.
The inducement may include, among other things, deceit, fraud, trickery or reward and will usually, although not necessarily, consist of calculated inveigling and persistent importuning.
The character of the initiative taken by the police is unaffected by the fact that the law enforcement agency is represented by a member of a police force or an undercover or other agent, paid or unpaid, but operating under the control of the police.
In the result the scheme must be considered, in all the circumstances, so shocking and outrageous as to bring the administration of justice into disrepute.
In examining the character in law of the police conduct‑‑for example, persistent importuning ‑‑, the existence of reasonable suspicion on behalf of the police that the accused would commit the offence without inducement is relevant.
By itself and without more the predisposition in fact of the accused is not relevant to the availability of the defence.
Footnotes
- [1] * Estey and Le Dain JJ. took no part in the judgment.