A recent landmark ruling of the Supreme Court of Canada in R v Hart (2014 SCC 52) has raised several concerns over a controversial undercover police tactic known as ‘Mr Big’ operations.
These elaborate undercover police operations target suspects in major unsolved crimes. Posing as gang members, undercover police recruit the suspect into their fake criminal gang, encouraging them to reveal past crimes to the gang boss, Mr Big.
Originating in Canada, the controversial technique, which is only used in the investigation of serious crimes, has secured confessions and convictions in hundreds of cases over the course of 20 years.
According to The Age, the technique has been applied regularly by Australian police forces in their investigations of ‘cold cases’ since 1999. Most recently, Queensland police used a ‘Mr Big in order to obtain Brett Peter Cowan’s confession to the murder of Brisbane schoolboy Daniel Morcombe.
However, lawyers have long argued that these elaborate stings are potentially abusive and prejudicial to the accused, increasing the risks of false confessions and wrongful convictions. They also raise questions about the legitimacy of police undercover tactics and compatibility with human rights.
The Supreme Court of Canada in R v Hart stated the majority of the court held that the current law provides insufficient protection to the accused who confess during ‘Mr Big’ operations”, proposing a two-pronged test to address the issue of reliability, prejudice and police misconduct raised by these operations.
“The first prong requires recognizing a new common law rule of evidence. Under this rule, where the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect.”
As well presuming inadmissibility, the Supreme Court also evaluated the propriety of police methods using ‘abuse of process ‘as the second prong:
“The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials. […] Operations that prey on an accused’s vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also be unacceptable.”
Professor of Law at The University of Queensland, Simon Bronitt, endorsed the aim of the new Canadian ruling to simplify the rules, believing it will help to “try and straighten out the mess” when it comes to balance the fairness and reliability of the Mr Big operations.
“If police do need to use these techniques, and can we trust the police to use them judiciously, then they need to be placed under a less complex legal regulatory framework that minimises the risk of abuse,” Professor Bronitt said.
“It’s very hard for police presently in applying their professional judgement to know when ‘enough is enough’ – to know when they have ‘crossed the line’ by placing too much undue psychological pressure on the suspect.”
“It would be much better to refer the issue to a law reform commission to develop a statutory framework governing the admissibility of this evidence, and that captures the best elements of all these tests. The threshold for admitting this evidence would be discretionary for the courts. But a statutory model would provide better guidance to police upfront before the operation commenced.”
Although Professor Bronitt admits the ‘Mr Big’ technique may be necessary in some cases, he asserts that the technique should only be used “as a measure of last resort”, due to the high costs of carrying out such an “elaborate ruse” for a protacted length of time.
However, Professor Bronitt points out that there is nothing illegitimate about using undercover techniques, though there is a public interest in ensuring that such operations do not lead to unreliability and police misconduct.
“Deception is an essential component in modern police investigation and undercover policing,” Professor Bronitt said.
“There is nothing inherently illegitimate about an undercover operation – the legal question is whether techniques have exploited the vulnerabilities of the suspect and, ultimately, whether or not that has had an impact on the reliability of the evidence or the integrity of the process.”
Although the legal community is divided over how far-reaching the ramifications could be in Australia following the Canadian ruling, Professor Bronitt believes the Canadian decision will be raised before Australian courts, and provides a model for common law development in the absence of any legislative reform.
“[Australia] doesn’t have a national bill of rights, unlike Canada. But what we do have is the common law that is highly protective of the right to a fair trial. Our courts also have a very strong commitment to ensuring that our police operate fairly and appropriately in an investigation. The courts are always looking very carefully to see whether the techniques used by the police ‘cross the line’ and damage our confidence in policing,” Professor Bronitt said.
