‘The investigation of crime is not a game governed by a sportsman’s code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.’[1]
This quote from the High Court dating back to 1998 makes plain that deception by police of suspects is an accepted part of investigating crime – and that being able to show that police have tricked or lied to a suspect will not, without more, be enough to exclude other wise admissible evidence.
The ‘right to silence’ is a concept which defence lawyers hold dear. It is however not an unqualified right which persists wherever an accused might be. Superior courts have repeatedly allowed evidence to be used against accused persons in circumstances where, on the face of it, that overarching right has been infringed upon. The scope and extent of the right is not as broad as those in the community would think and it arises only within specific contexts and legislative provisions.
The Court of Appeal recently considered these issues in the context of a case[2] in which defence had sought the exclusion of admissions made by a suspect in a murder investigation to undercover police during what is known as a ‘scenario’ operation also known as the ‘Canadian method’. This technique has been used on a number of occasions and has been approved of by both the High Court and the Court of Appeal.
Essentially the method involves undercover police befriending the suspect while posing as members of a criminal organisation. Usually, inducements are offered to join the criminal organisation including promises of financial reward and support. The method of finally extracting a confession or admissions varies - but has often involved the suspect being introduced to the ‘Mr Big’ of the organisation and then being questioned by them about anything they may need to confess prior to being brought fully into the fold.
It undoubtedly involves deception and subterfuge. It clearly is designed to elicit admissions to use to convict the suspect of a serious crime (usually murder). And, as determined by the superior courts, does not require the police to put the suspect on notice that they are suspected of the crime nor to inform them of their rights - be that to silence or legal advice.
In Tofilau,[3] a decision of the High Court which dealt with this technique, Gleeson CJ said:
‘the use by the police of deception in the hope of eliciting admissions is not new. The particular technique of deception adopted in the present cases seems to have been imported into Australia from Canada. ... The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something.’
Understandably this method has been subject to challenge by defence on multiple occasions. In the course of the recent appeal 19 previous instances of its use were referred to - not one of them led to the exclusion of the evidence. Importantly the Court of Appeal found that they regarded ‘the fact that he was not put on notice that he was under suspicion to be utterly irrelevant’.[4]
It is important to understand this aspect ofthe law and its application to the investigation and prosecution of criminaloffences. It is reflective of the difference between a formal police interview- which must be conducted in accordance with the provisions of the Crimes Actor risk exclusion - and other methods of gathering evidence. The ‘scenario’ method is but one techniqueused to garner admissions and confessions from people suspected of crimes.
It is a noteworthy technique due to itssophistication - which is reflective of the skill, resourcefulness and patienceof those investigating serious crime. It is not however the most common.
Unguarded admissions come frequently from suspects in settings outside the formal police interview. They include:
The latter is another form of evidence gathering which has been challenged by defence and approved of by our Court of Appeal. It is used most frequently in sex cases and involves a complainant calling the alleged offender while being recorded by police. They then ask questions of the alleged offender designed to elicit admissions or a confession. They can be an incredibly powerful tool in a prosecutors armoury.
While the use of various methods by police -including those that deploy deception - is not a new thing, it is important to note that such deception is not going to lead to exclusion of the evidence (unless it leads to unreliable admissions or there is some other aspect of the matter that gives rise to exclusion). It is also important to note that deployment of undercover police in cells, telephone intercepts, pretext calls and other methods of eliciting evidence is becoming more frequent and is an accepted part of the evidentiary landscape in criminal trials.
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[1] R v Swaffield; R v Pavic (1998) 192 CLR 159
[2] Alhassanv The King [2024]VSCA 233
[3] Tofilauv The Queen [2007]HCA 39
[4] Alhassanpara 71
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Doyle's Guide First Tier Criminal Law firm (2020, 2021 and 2022).
