Cross-Examination: Mr Big – Entrapment in the Name of Evidence, or a Risk Not Worth the Reward?

By Hannah Yang

In June this year, Kamal Gyanendra Reddy was convicted of the murder of his ex-girlfriend and her three-year-old daughter, after being subject to an extensive undercover police operation, popularly known as “Mr Big”.[1] Although both victims were dead by the beginning of 2007, they were not reported as missing until 2013, by which time police were unable to find enough evidence to lay any charges.[2] A Mr Big operation was therefore undertaken by police to extract a confession from Mr Reddy, whom police suspected, but whose suspected guilt could not be proven. This was successful, with Mr Reddy ultimately admitting to the killings to an undercover police officer and identifying the place where the bodies were buried.[3]

Who or what is Mr Big?

The Mr Big technique, or, as referred to by New Zealand Police, the “Crime Scenario Undercover Technique”, is a technique designed to obtain confessions from suspects where there is insufficient evidence to lay a charge, and is often deployed in cold cases. The technique originated in Canada, and involves the formulation by police of a fictional criminal organisation, to which the suspect is exposed, and where supposed membership for the suspect is dependent on an honest interview with the supposed boss, “Mr Big”, relating to past criminal activity.[4] Mr Big operations contain most, if not all of the following features:

  • a supposed criminal organisation that demands honesty, trust and loyalty from members;
  • the recruitment of the suspect to perform what appear to be criminal activities;
  • the ability for the criminal organisation to resolve problems relating to prosecution; and
  • an interview with Mr Big at the end.[5]

In Canada, where the technique is used relatively liberally,[6] it is common for the demands for honesty and loyalty to be enforced by an “aura of violence”.[7] From the point of view of the suspect, success in the final interview with Mr Big is the key to full membership of the organisation and there is an expectation to be completely open about any previous offending.[8] The suspect may be told that Mr Big has evidence of their guilt, or that Mr Big knows through contacts in the police that there will be a new prosecution and that the organisation can protect the suspect if they confess.[9] Denial of the offence may be dismissed by Mr Big as lies, and the suspect is pressed for a confession.[10]

Criticisms

One of the greatest concerns regarding the Mr Big technique is the risk of obtaining false confessions and resulting in miscarriages of justice. William Young J, writing for the majority in the New Zealand Supreme Court decision in R v Wichman, noted that such a risk is inherent in the design of a Mr Big operation.[11] The more violent, intimidating, or threatening the organisation and Mr Big appear to be, and the more the organisation encourages boasting of previous offending, the more likely a suspect might produce a false confession.[12] This risk is likely to increase further if the suspect is living in trying circumstances and perceives life with membership to the organisation as much more desirable than their current situation.

It cannot be said that the risk of false confessions is unrealistic, for it has actualised in the past. One example is the case of Kyle Wayne Unger, who was convicted of murder in 1992 on the basis of hair found on the victim’s jumper that appeared to belong to Mr Unger, in conjunction with a confession made by Mr Unger during a Mr Big operation.[13] Subsequent DNA testing showed that the hair did not in fact belong to Mr Unger, and he was eventually released.[14]

Further criticisms of the technique relate to concerns about unfair prejudice, breach of constraints on police interrogation, and the general impropriety of using deceit in police operations.[15] It is said that Mr Big operations may unfairly prejudice a defendant at trial because to allow evidence from the operation it is necessary to reveal to the jury that the defendant is willing to take part in criminal activity; thereby colouring the jury’s view of the defendant.[16] Breaches of constraints on police interrogation are also a concern, as the purpose of applying rules to police questioning processes, among other things, is to guard against the abuse of criminal process and avoid wrongful conviction.[17] When questioning, police must adhere to the rules in the Practice Note on Police Questioning.[18] If these rules do not apply to police conduct during undercover operations, it would be possible for police, through the Mr Big technique, to circumvent the rights of suspects that would otherwise be protected.

In spite of these criticisms, it cannot be denied that Mr Big operations have led to successful resolutions in many cases.[19] There is no doubt as to the usefulness of the technique. It is therefore important to question whether the potential for conviction is worth the risks that are inherent to Mr Big operations, and if so, how the law ought to go about minimising them.

The Law in Foreign Jurisdictions

Canada

The position in Canada on the admissibility of evidence obtained from Mr Big operations is set out R v Hart. In this case, the respondent was suspected of drowning his two daughters in 2002, however police lacked evidence to lay any charges.[20] The respondent was subsequently the target of a Mr Big operation two years later lasting four months, which ultimately resulted in the respondent confessing to drowning his daughters.[21]

The Canadian Supreme Court laid down a “two pronged” test, after considering the existing law to be insufficient to protect suspects who confess during Mr Big operations,[22] in light of concerns relating to unreliability, prejudicial effect, and police misconduct.[23] The test consists, firstly, of a new common law rule of evidence, and secondly, of a more “robust” conception of the doctrine of abuse. The new rule of evidence requires confessions from Mr Big operations to be presumed inadmissible, unless the Crown can prove on the balance of probabilities that its probative value outweighs its prejudicial effect,[24] where probative value depends on the confession’s reliability.[25] Under the new conception of the doctrine of abuse, evidence would be inadmissible if it was brought about by coercion, such as physical violence[26] or the preying on the suspect’s vulnerabilities.[27] The onus of proof therefore rests on the Crown to prove that the confession ought to be admissible.

Ultimately, on applying this test, the Supreme Court in Hart decided that the threshold had not been met and the confession was inadmissible, as the operation had transformed the defendant’s life[28] and there was an overwhelming incentive to confess regardless of truth.[29]

In contrast, in R v Johnston, decided earlier this year, it was held that the reliability test was satisfied and the Mr Big confession was admissible because: the defendant was not in the same social poverty as compared to Hart, the defendant was calm in the Mr Big interview, and the defendant knew specific details that only the killer could know.[30] As for coercion, the court held that the creation of scenarios involving threats of violence to others does not in itself constitute abuse; there must be something more in direct relation to the suspect themselves.[31]

Australia

In Australia, the law on the admissibility of Mr Big confessions is set out in Tofilau v The Queen. There, it was held that the voluntariness rule which governs confessions made to “persons in authority” applies only to those known by the suspect to have lawful authority to investigate, and does not extend to officers working undercover.[32] As a result, the admissibility of Mr Big confessions are to be considered under the issue of voluntariness in a more general sense, or as the court dubbed it, “basal voluntariness”. This question is informed by considerations of reliability, where the question is whether the circumstances would produce unreliable evidence in the eyes of the law.[33] Such circumstances include those in which the confession was made under compulsion, overriding the suspect’s free choice to speak or remain silent.[34] The High Court held, however, that the hope of obtaining some advantage, such as joining the fictitious criminal organisation in Mr Big operations, is not enough in itself to constitute compulsion.[35]

All appeals were dismissed in Tofilau, the court ruling that the confessions were admissible in each of the cases.[36]

The Law in New Zealand

The Evidence Act 2006

In New Zealand, matters pertaining to the admissibility of evidence are addressed by the Evidence Act 2006. Under the Act, statements must be excluded from evidence where:

  • the value of the statement is outweighed by the risk that it will unfairly prejudice proceedings;[37]
  • the Judge is not satisfied on the balance of probabilities that the confession was made in circumstances that were unlikely to affect its reliability;[38]
  • the Judge is not satisfied beyond reasonable doubt that the statement was not influenced by oppression;[39] or
  • the Judge finds on the balance of probabilities that the statement was improperly obtained and that excluding the statement is proportionate to the impropriety of obtaining it.[40]

In deciding question of impropriety in the final point above, the Judge must consider the relevant practice notes for police conduct issued by the Chief Justice.[41]

Applying the Act: R v Wichman

While the law on admissibility of evidence in New Zealand is clearly laid out in statute, its application to Mr Big operations is not such a simple exercise, and there is much room for disagreement. The leading authority on this matter is the case of R v Wichman where the Supreme Court ruled the Mr Big confession to be admissible by a 3-2 majority, with Elias CJ and (on some issues) Glazebrook J dissenting.

The majority firstly observed that “oppression” in s 29 of the Evidence Act includes threats of violence, whether actual or implicit.[42] This means that any Mr Big confession obtained through the use or threat of violence would be inadmissible.[43]

On the issue of reliability, the majority then observed that while the risk of false confessions certainly exist in Mr Big operations, such a risk is inherent in the criminal trial process and cannot be avoided; the task is instead to mitigate the risk through judicial safeguards and evidence rules, all of which apply to Mr Big confessions.[44] The reliability test in s 28(2) is to be aided by considerations of whether the defendant’s confession is probably true. Their Honours considered it inappropriate to interpret s 28(2) such that obviously true confessions could be excluded due to a theoretical likelihood its reliability may have been affected.[45] Other elements such as whether there were threats of violence, the focus on honesty, and whether the defendant had been intimidated are all relevant to the question of reliability.[46] The majority Judges considered the defendant’s confession admissible under s 28(2) after applying this test.

In contrast, the Chief Justice does not believe that Judges should consider the question of whether the confession was actually reliable at all; the question of fact is for the jury.[47] Instead, s 28(2) should require Judges to treat confessions as unreliable in law if the circumstances in which they were obtained raise the probability of unreliability, regardless of whether it is reliable in fact.[48] The risk of a miscarriage of justice produced by the possibility of an unreliable confession is sufficiently high to justify a presumption of inadmissibility, which should only be displaced where the Judge is satisfied there was “no tendency” for unreliability.[49] As a result, even if it appears a confession must in fact be true, the possibility of it being a false confession in the circumstances means it ought to be excluded. It could be said that the law ought to err on the side of failing to convict the guilty than wrongfully convicting the innocent. The Chief Justice would have considered the defendant’s confession inadmissible under this interpretation of s 28(2).[50]

On the issue of general impropriety and police rules, the majority held that the Practice Note on Police Questioning only governs police conduct carried out as police officers, not while undercover.[51] This is similar to the approach taken by the High Court of Australia in Tofilau. Their Honours (in Wichman) considered it unrealistic to expect undercover police officers to caution suspects before Mr Big interviews.[52] As a result, a breach of the Practice Note in Mr Big operations will not have the same weight in s 30 general impropriety considerations as a breach of the Practice Note in formal interrogations. General impropriety under s 30 will be considered largely with regard to elements such as undue pressure put on the defendant or threats and inducements,[53] however the element of deceit and simulation of offending that is part of all Mr Big operations cannot themselves make the operation improper.[54]

In contrast, Elias CJ would consider the Practice Note to be relevant to s 30 analysis even if the operation is undercover. Her Honour considered Mr Big interviews to be a functional equivalent of interrogation, and the operation is only made possible through state resources.[55] As a result, Rule 2 of the Practice Note was breached when officers failed to caution the defendant when he admitted to shaking his child, and it was unfair to interrogate the defendant by deception.[56] The Chief Justice would have ruled the confession inadmissible.

What does this mean?

As noted by Supreme Court Justice Susan Glazebrook, views on Mr Big operations range from a utilitarian approach on one end, where the success of the technique justifies the means; and an outright ban on the other, where the risk of false confessions and infringements on human rights is far too high a price for securing convictions.[57] New Zealand seems to sit somewhere in between the opinions expressed by Scylla and Charybdis on this matter, although the precise position will vary depending on how strictly the Evidence Act tests are construed, and each individual outcome will likely be highly sensitive to the fact situations in each case. It can be said for certain, however, that Reddy will not be the last Mr Big case to face the courts, and further developments in this area of law will be regarded with keen interest.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] See R v Reddy [2016] NZHC 1367.

[2] At [18].

[3] At [19].

[4] R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 at [16].

[5] At [16].

[6] R v Wichman, above n 4, at [17].

[7] R v Hart 2014 SCC 52, [2014] 2 SCR 544 at [59].

[8] R v Wichman, above n 4, at [16].

[9] R v Hart, above n 7, at [60].

[10] R v Hart, above n 7, at [60].

[11] At [20].

[12] At [20].

[13] R v Unger 2005 MBQB 238, (2005) 196 Man R (2d) 280 at [2].

[14] At [53].

[15] R v Wichman, above n 4, at [21].

[16] R v Hart, above n 7, at [106].

[17] R v Wichman, above n 4, at [190].

[18] Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

[19] R v Hart, above n 7, at [61].

[20] At [19]-[22].

[21] At [23]-[38].

[22] At [67].

[23] At [69]-[78].

[24] At [85].

[25] At [99].

[26] At [116].

[27] At [117].

[28] At [133].

[29] At [140].

[30] R v Johnston 2016 BCCA 3 [67]-[68].

[31] At [57].

[32] Tofilau v The Queen [2007] HCA 39, (2007) 231 CLR 396 at [45].

[33] At [54].

[34] At [60].

[35] At [62].

[36] At  [417].

[37] Evidence Act 2006, s 8.

[38] Section 28(2).

[39] Section 29(2).

[40] Section 30(4).

[41] Section 30(6).

[42] At [69] per William Young J.

[43] At [70] per William Young J.

[44] At [76] per William Young J.

[45] At [83] per William Young J.

[46] At [87]-[92] per William Young J.

[47] At [273] per Elias CJ.

[48] At [144] per Elias CJ.

[49] At [282] per Elias CJ.

[50] At [323] per Elias CJ.

[51] At [106] per William Young J.

[52] At [115] per William Young J.

[53] At [122] per William Young J.

[54] At [118] per William Young J.

[55] At [331]-[332] per Elias CJ.

[56] At [335]-[336] per Elias CJ.

[57] Dame Susan Glazebrook “Mr Big Operations: Innovative Investigative Technique of Threat to Justice?” (paper presented to the Judicial Colloquium 2015, Hong Kong, September 2015) at 27.