Imagine this scenario:
You’re approached by a man claiming to be part of an organised criminal gang, who offers you a notable sum of money to do some dodgy deliveries. Strapped for cash, you do a couple of jobs for the gang when finally you’re asked to meet the head of the operation (the ‘Mr Big’).
When you meet the ‘Mr Big’ – in an isolated hotel room- he accuses you of committing a criminal offence 10 years ago, and promises that if you just confess to it he can ‘make it all go away’. Feeling under pressure from the situation, and wanting to keep in good company with the gang, you confess to the crime.
But it turns out that there is no gang. This whole scenario is an undercover police operation known as a ‘Mr Big’ operation. Under current Australian law, all of this is perfectly legal, and you can be convicted on the basis of your (potentially false and induced) confession.
Does this seem fair you? Probably not.
This is the argument myself and my colleague Dr Michele Ruyters make in our recently released paper: “Who’s watching Mr Big? Scenario operations and induced confessions” all about the use of Mr Big operations in Australia.
The following outlines what the Mr Big technique involves, why current legal safeguards in Australia are lacking and what should be done to ensure adequate protections are in place against false confessions.
What is a ‘Mr Big’ operation?
Introduced in Australia in the late 1990s, the Mr Big investigative technique is a complex undercover police operation structured around a fictional criminal gang, which is created to build rapport with the suspect of a serious crime.
Mr Big operations are typically used as a last resort where there is insufficient evidence to charge a suspect. The tactic involves undercover police posing as members of a fake criminal gang with the aim of eliciting a confession from a suspect as part of their recruitment into the group. Covert police officers assume all roles in the fake criminal gang, including the role of the organisation boss, Mr Big .
Over several weeks, the suspect becomes increasingly involved with the organisation through a series of elaborate scenarios, which also reveal the organisation’s apparent power and wealth. The operation culminates in a meeting with Mr Big who uses persuasive reasoning to press the suspect to confess to the crimes under investigation.
The suspect will be told they must satisfy Mr Big that they would not bring unwanted police attention to the organisation, and that the organisation can make problems such as police investigations ‘go away’ through its access to (fictional) corrupt police officers (Tofilau v The Queen (2007) 231 CLR 396, 410; Lauchlan v The State of Western Australia  WASCA 227, ).
The suspect may also be under the impression that they will lose the organisation’s camaraderie and access to wealth if they do not confess (e.g., R v Marks VSC 476; Lauchlan v The State of Western Australia  WASCA 227).
On confessing, the target is arrested and formally interviewed.
How is this legal?
Unlike in other jurisdictions, Australia does not have a formal defence of entrapment. Instead, the legality of Mr Big operations is largely governed by whether or not a resulting confession would be admissible in court.
Australian evidence laws screen Mr Big confessions through threshold admissibility requirements, and judicial discretions to exclude improperly or unlawfully obtained confessions or to limit or exclude the use of unfair or unfairly prejudicial evidence.
As we document in our paper, since the decision of the High Court majority in Tofilau, Australian courts have found that any prejudice flowing from the accused’s admissions and any apparent willingness to participate in criminal activities in scenario operations does not outweigh the probative value of the evidence (e.g., R v Weaven (No. 1)  VSC 442). The majority approach has also been influential in courts’ rejection of arguments to exclude Mr Big confessions based on unfairness (R v Kilincer (No. 2)  NSWSC 829,  (Johnson J); R v Rumsby  NSWSC 229,  (Hulme JA)).
Section 85(1)(b) of Uniform Evidence Act does outlines a comprehensive rule regarding inducement-based confessions as follows:
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
However, this comprehensive safeguard against unreliable confessions has been found by various court decisions in Australia to only apply to ‘investigating officials’ within the context of formal questioning, and not undercover operations (R v Kilincer (No. 2)  NSWSC 829 ( (Johnson J)) and R v Rumsby  NSWSC 229 ( (Hulme JA)).
Unlike Australia, the Supreme Court of Canada acknowledged in 2014 the potential unreliability and prejudicial effect of Mr Big confessions and introduced a new two-pronged approach to determine their admissibility (R v Hart  2 SCR 544, ). Under this approach, Mr Big confessions are presumptively inadmissible unless the probative value of the confession outweighs its prejudicial effect on the balance of probabilities. The second prong shifts the onus to the defence to establish an abuse of process (R v Hart  2 SCR 544, ).
When it comes to undercover policing, some accountability measures exist for so-called ‘controlled operations‘. A controlled operation is an undercover operation allowing police to do things that would otherwise be illegal. Because this is an unusual police technique, there are various monitoring and accountability mechanisms that apply to controlled operations to ensure they are done so fairly and ethically.
However, we’ve found that many Australian Mr Big operations don’t fall within the definition of ‘controlled operations’. The operations described in the cases in our study were most commonly simulated or ‘staged’ criminal activities rather than controlled activities (e.g., DPP v Ghiller  VSC 350, ; R v Rumsby  NSWSC 229, ). The courts in R v Taylor  QSC 116,  and R v Kilincer (No. 2)  NSWSC 829,  made a point of stating that police did not seek authorisation to run controlled operations in these cases because there was never an intention that the scenarios involve criminality.
As such, Mr Big operations operate with little scrutiny in Australia. This is despite the fact that they carry a very real risk of inducing false confessions.
What we are calling for
In our paper we document a number of reported criminal cases which involved the use of Mr Big operations. Some of these cases involved confessions that were not able to be independently verified by police, yet individuals were still convicted of some very serious crimes such as murder.
In our opinion, there is a real need for stronger safeguards outline when Mr Big operations should be used and the admissibility of any confession gained as a result of these operations. Specifically we call for:
- All Mr Big operations that do not involve controlled activities should be brought under controlled operations frameworks.
- Assessments about the reliability of Mr Big confessions should fall within the scope of evidentiary rules about inducement-based confessions, explicitly within the scope of s85(1)(b) Uniform Evidence Act ;
- That juries should receive appropriate direction addressing susceptibility to making false confessions.
Australia should look to the more cautious approach taken overseas in regard to Mr Big operations, ensuring the law provides procedural protections against coerced or otherwise false confessions to crimes.