Police assuming false identities when investigating online child sexual offences

Online engagements with undercover police posing as children

In Australia, police officers frequently pose online as children to investigate various offences related to child sexual exploitation. These offences often involve the online engagement with children for sexual purposes, as well as the creation, possession, and/or distribution of child exploitation material (CEM). This conduct is prohibited under both State and Commonwealth legislation, which is briefly explained below:

Child Exploitation Material (CEM)

The creation, distribution and possession of CEM are discrete State offences under the Criminal Code Act 1899 (Qld). For the purposes of this article, the terms CEM and ‘child abuse material’ are interchangeable. It is important to note that these offences are not limited to online conduct. Meanwhile, the use of a “carriage service” to access, transmit or promote child abuse material is covered by a broad range of Commonwealth offences under the Criminal Code Act 1995 (Cth). In practice, the use of a “carriage service” often involves the internet, encompassing communications via:

• Social media
• Online forums and message platforms;
• Text messages
• Telephone calls
• Emails

“Grooming” and sexually engaging with children online

Using online communications to “groom” or procure a child under 16 to engage in a sexual act is illegal under several State and Commonwealth offences. The specific offences charged will depend on the factual circumstances. Importantly, it does not matter if the recipient is actually an adult posing as a child, as long as the accused believed the person to be under the age of 16.

Additionally, these offence provisions explicitly state that it is irrelevant if the “child” in question is fictitious. This was specifically intended to facilitate investigations involving police officers assuming the identity of a fictitious child to detect and arrest online predators.

How do undercover police investigate these offences?

In Queensland, police often conduct sting operations to investigate online child sexual exploitation offences. These operations typically involve police officers assuming the identity of a fictitious child to interact with potential suspects online. This investigatory technique aims to arrest offenders before they have an opportunity to groom or sexually abuse a real child. The Queensland Police and Queensland Crime and Corruption Commission (CCC) regularly engage in covert operations to detect adults using electronic means to obtain CEM and/or procure children for sexual activity.

However, this technique has been challenged in various jurisdictions as potentially illegal, improper, or constituting “entrapment” by facilitating offences that the suspect may not have otherwise committed.

Entrapment

“Entrapment” occurs when a police officer facilitates the commission of an offence by an individual who is then charged with that offence. The High Court’s decision in Ridgeway v R serves as longstanding authority that entrapment is not a criminal defence in Australia. The courts acknowledge that effective investigation of certain criminal activities may necessarily involve deceit or creating opportunities for the commission of a criminal offence by the suspect. However, in some circumstances, courts may exercise discretion to exclude evidence obtained from illegal or improper conduct.

Since this decision, State and Commonwealth legislation has been amended to explicitly allow undercover officers to commit otherwise criminal acts during controlled operations.

Is it illegal for a police officer to pretend they are a child on social media?

Since 2004, several Australian courts have implicitly approved operations involving police posing as fictitious children to prosecute online offenders. Some examples include:

• The Victorian Court of Appeal in R v Gajjar [2008] VSCA 268
• The Queensland Court of Appeal in R v McGrath [2005] QCA 463 and R v K [2004] QCA 162
• The Northern Territory Supreme Court in R v H [2004] NTSC 20322573

In these sentencing appeals, the legitimacy of police operations involving fictitious child identities was not challenged. However, in cases where the legitimacy of these operations was contested, the courts considered appropriate principles for investigating online grooming.

In R v Punter, the court confirmed that police posing as a child online is a legitimate investigative technique. In this case, police officers, posing as a 15-year-old named “Jack,” communicated with the accused via Facebook Messenger. The court acknowledged that the officers’ activities could have been improper if they had induced or encouraged the accused to commit offences they would not have otherwise committed. However, this was not the case, and no impropriety was demonstrated.

In R v Priest, the ACT Supreme Court affirmed that permissible police activity includes engaging with the suspect by responding to their communications, including agreeing with relevant suggestions and displaying an adequate level of enthusiasm. The Court found that the officer in this case did not cross the line into aiding or abetting the commission of a criminal offence.

In R v Stubbs, police corresponded with the accused under the fictitious persona “Roxanne.” Unlike in R v Priest, Higgins CJ found that “Roxanne’s” responses included elements of persuasion rather than merely passive acceptance of the accused's suggestions. Nonetheless, Higgins CJ determined that there was no breach of Australian law or impropriety. His Honour further stated that, even if the conduct had been illegal or improper, he would have exercised judicial discretion to admit the evidence regardless.

The courts recognise the significant public interest in these investigations. In R v Burdon, McMurdo P noted that the widespread use of the internet gives predators unprecedented access to potential victims. The authorities generally reflect strong support for covert operations that detect offenders without risking harm to real children.

Note: “Paedophile Hunters” and Vigilantes

A recent Tasmanian Supreme Court decision suggests a different approach is appropriate when investigations are conducted by people other than public officials.

In Tasmania v Wykes, the accused communicated with an amateur “paedophile hunter” posing as a 14-year-old boy. The vigilante witness arranged a meeting, attended, and recorded it, posting the footage on YouTube. The evidence came to the police’s attention when the public viewed the footage and contacted authorities. Subsequently, the accused was charged with communicating with a child to engage in an unlawful sexual act.

Here, the vigilante’s actions mirrored those that a police officer might have taken in an undercover role. However, the court found that the vigilante’s messages unlawfully encouraged and incited the crime charged. As a result, the court excluded the evidence primarily on the basis that it was obtained illegally.

The Court of Appeal also identified other factors weighing against admitting such evidence, including:

• The risk of inciting hatred or violence against the accused and their family
• The risk of property damage or exposure of incorrect identities
• The potential to disrupt ongoing police investigations

This case highlights the significant legal differences between a professional police investigation and vigilante actions, especially when the latter’s intent is to generate hatred.