Is it time to move on from ‘Mr Big’? Scenario evidence and the risk of unreliable confessions in Australia

Abstract

The ‘Mr Big’ method is a non-custodial investigative method used by police forces worldwide. A Mr Big operation involves an undercover operation in which a person suspected of involvement in an indictable offence, is unknowingly drawn into a fictitious criminal enterprise, in order to elicit a confession. There are ample concerns around the use of this method. Consequently, courts around the world have grappled with the admissibility of the confession evidence gathered through this approach. This article will first provide an outline of the Mr Big method. Following this, it will discuss the psychological explanation of associated potential coerced confessions which are unreliable. Additionally, various Australian cases and court rulings on confessions obtained using this approach will be described. This information will then be used, given the concerns indicated by psychological research and foreign court responses, in an attempt to address the question of whether the Mr Big method should have a place within the Australian legal system.

Cold cases are problematic for law enforcement. Crimes remain unsolved and the perpetrator is not punished. Moreover, the resulting decreased public confidence in law enforcement weakens trust in the criminal justice system. It becomes particularly frustrating when police suspect a person of having committed a crime, however, they do not have sufficient evidence to charge this person. In these cases, a confession is often the only type of evidence still obtainable, linking the suspect to the crime. Unsurprisingly, confessions generally do not occur without any further encouragement of the suspect(s).

To obtain a confession in (cold) cases of serious crimes, law enforcement officers around the world have adopted a Canadian-developed investigative process – the ‘Mr Big’ method. However, over the last decade use of this method has been scrutinised by a number of foreign courts. They determined that the use of this approach can result in unreliable confession evidence. ¹ Despite this development overseas, the Mr Big method is still used in Australia and has solved various high profile cases. ² When the High Court evaluated the use of this method, it held that Mr Big confessions do not need to be excluded due to deception, impropriety or illegality. ³ This article will examine the ‘Mr Big’ method by outlining what the method entails, followed by a discussion of the psychology behind ‘coerced’ confessions. It will further provide Australian case examples and court rulings and address a Canadian decision criticising the use of this method. The authors argue that confessions obtained through the Mr Big method can be considered coerced and sometimes false. The use of this method starkly contrasts with the legislative and procedural reforms designed to minimise the risk of unreliable and false confessions. Therefore, finally, the article will question the position of the Mr Big method within the Australian legal system.

The Mr Big method

The Canadian-developed ‘Mr Big’ method is a non-custodial investigative method used by police forces worldwide. The method, developed in the 1990s, aims to elicit confessions when there is insufficient evidence against a suspect. ⁴ A Mr Big operation involves an undercover operation where a person, suspected of committing an indictable offence, is unknowingly drawn into a fictitious criminal enterprise. ⁵ Although the application of the method varies internationally, consistent techniques are used. ⁶

The fictitious criminal enterprise

Mr Big operations regularly focus on a suspect’s specific economic or psychological vulnerabilities. ⁷ Generally, the undercover operation starts with an encounter between the suspect and an undercover police officer. In the first stage, the undercover officer establishes a friendship with the suspect, using gifts or other social niceties. ⁸ Subsequently, the suspect is offered a job to assist the undercover officer with concealed activities such as keeping a look out. ⁹ After these activities begin, the undercover officer informs the suspect that they are part of a (fictional) criminal enterprise. While grooming the suspect for potential membership, the officer emphasises trust, honesty and loyalty as vital to the ‘organisation’ and its operations. ¹⁰

Confess to win Mr Big’s trust

The next stage is arguably the most critical phase in a Mr Big operation, focusing on obtaining the suspect's confession, that being the primary objective of the entire endeavour. In previous stages, the aim is to demonstrate the benefits and reach of the fictitious criminal enterprise to the suspect. However, during this stage, the suspect must prove their worthiness to join the organisation, specifically to ‘Mr Big’, who assesses the risk of recruiting them. ¹¹

To do this, ‘Mr Big’ asks the suspect to reveal any prior criminal activities. One method involves ‘Mr Big’ suggesting that he has connections to ‘corrupt police officers’ who have advised him there is a potential investigation into the suspect's cold case. Simultaneously, Mr Big asserts the ability to resolve issues through these connections. ¹²

Unknown to the suspect, ‘Mr Big’ is, in fact, a trained criminal investigator specialising in interrogations. The ‘conversation' with ‘Mr Big’ is a meticulously planned interview aimed at extracting a confession that ideally includes details only a guilty person would know.

However, use of the Mr Big method raises concerns about the voluntariness of confessions, particularly regarding the use of deception and enticement. Additionally, as will be discussed in the next section, when examining the psychological literature, the reliability of these elicited confessions becomes even more uncertain.

Psychological explanation of unreliable, or false confessions

As discussed in the preceding sections, the Mr Big method relies heavily on inducing suggestibility. Moreover, the use of coercive techniques (whether social belonging or financial incentives) often leads to compliance by suspects to gain these rewards. ¹³ Psychological scholars have established a relationship between the decrease in reliability of confessions and an increase in suggestibility and compliance by the suspect. ¹⁴

While it is generally believed that people would never confess to crimes they did not commit, both anecdotal evidence and extensive psychological research have demonstrated that false confessions occur regularly and, moreover, are relatively easily elicited. ¹⁵ As such, unreliable confessions are a genuine threat to the integrity of criminal investigative and legal processes. Generally, psychological researchers make a distinction between two different types of ‘coerced’ false confessions. ¹⁶

The first is a coerced compliant false confession, where people are coerced and/or enticed into confessing to a crime they did not commit. This coercion can take different forms including physical torture techniques through to psychological manipulations (such as trickery, promising rewards, minimisation techniques and extended hours of questioning). The suspect, while knowing they are innocent, confesses to a crime they did not commit.

The second type is the coerced internalised false confession. This false confession often starts as a coerced compliant false confession, where the suspect knows they are innocent. However, over time they internalise this confession and come to believe they are guilty. ¹⁷

The role of questioning in false confessions

In Australia, identifying factually false confessions is challenging as courts do not evaluate the accuracy of confessions, leaving this to the jury. ¹⁸ Courts instead determine whether to exclude confession evidence on reliability, ¹⁹ fairness ²⁰ or public policy grounds. ²¹ Despite these protections in the law, false confessions have caused wrongful convictions in Australia. ²² The discretion to exclude unreliable confessions is an important protection against wrongful conviction. This is because confession evidence has a significant influence on jurors, regardless of its truthfulness. ²³

After various miscarriages of justice came to light, psychologists became interested in coerced false confessions and factors eliciting them. ²⁴ In the majority of these cases, it was the interrogation techniques used during police interviews that led to these false confessions. ²⁵ Specifically, it was shown that accusatorial techniques (ie, the so-called ‘bad cop-good cop techniques) increased the risk of eliciting false and/or unreliable confessions. ²⁶ These techniques all focus on ‘getting a suspect to speak’. As mentioned above, these techniques can range from physical abuse (bad cop), to downplaying responsibility (ie, minimisation techniques (good cop). Interestingly, the reason these accusatorial techniques gained so much traction was due to the assumption that suspects were inclined to stay silent during interviews. However, the assumption that interrogation techniques were needed to elicit information was based on misconceptions. ²⁷ Research indicated the opposite. Moreover, one of the only successful techniques to elicit true and reliable confessions, early on during the interrogation, is by building rapport. ²⁸ Overall, evidence overwhelmingly supports the use of rapport building and information gathering approaches when interviewing a suspect. It is therefore not surprising that various countries’ interrogation approaches have shifted from accusatorial to information-gathering. ²⁹

Efforts to reduce the risk of false or unreliable confessions

Australia has largely followed the reforms of police questioning methods in the UK and changed its police questioning methods leading to the implementation of an information-gathering interview model in most jurisdictions. ³⁰ In addition to moving away from accusatorial interrogation techniques, it became mandatory to record suspect interviews. ³¹ Failure to record could render confessions inadmissible unless a ‘reasonable excuse’ is provided. ³²

There have also been reforms to regulate police conduct during custodial interviews. ³³ Fundamental protections, such as the right to silence and privilege against self-incrimination, are enshrined in common law and state/territorial criminal procedure and evidence statutes. Of significance for the confession evidence elicited via a Mr Big operation, are the evidentiary safeguards embodied in evidence laws nationwide. ³⁴ It is recognised that a confession should be a voluntary decision, reflecting a person’s free will to either speak or remain silent. ³⁵ The common law, which was later incorporated into statutes, was developed with the aim of reducing the risk of admitting involuntary confessions into evidence. ³⁶ It has been recognised by the judiciary that factors such as duress, intimidation, pressure or inducements, can negate the voluntariness of confessions. ³⁷ If such factors are proven to have been present during suspect interviews, the confession can be deemed unreliable and involuntary and thus inadmissible. ³⁸

Aside from safeguards to minimise the risk of unfairly induced confessions, the right to silence is also embodied in statutory and common law. A suspect needs to be informed about this right via the mandatory caution warning. ³⁹ Generally, the caution needs to be administered explicitly, and only in very limited circumstances are officers exempt from administering the caution. ⁴⁰ If a caution warning was not given, the confession or admission evidence can be regarded as improperly obtained and thus deemed inadmissible. ⁴¹ The suspect further needs to understand their right to silence. ⁴² Additional interview support for suspects ensuring fair procedures are found in states’ and territories’ procedure rules and policy documents.

These are all examples of how Australian law enforcement, legislatures and the judiciary have made significant efforts in implementing legislative and procedural changes to ensure fair, non-deceptive legal processes, and to protect suspects' rights as well as police officers from disciplinary action. However, the Mr Big method does not align with these advancements, and most of these protections do not apply to a suspect involved in a Mr Big operation.

Mr Big and unreliable confessions

The Mr Big method might appear at odds with this notion of fair, non-deceptive legal processes. The method is self-evidently an exercise in deception and enticement. ⁴³ First, suspects are promised (usually fictional) work, and other rewards if they confess, thereby calling into question how reliable their confessions would be. For example, the suspect might be merely talking along with Mr Big to gain the rewards offered. Enticement and deceit are in direct contrast to the rationale behind information-gathering interview approaches.

Unsettlingly, the Mr Big method relies heavily on rapport building – one of the most successful techniques to elicit true and reliable confessions, and a cornerstone of evidence-based information-gathering approaches. ⁴⁴ Specifically, during all the stages of the Mr Big method the emphasis is on building rapport with the suspect. Some of the techniques used are: expressing interest in the suspect; displaying mutual attention; and showing positivity towards the suspect. While in theory they are the base of the investigative-interviewing approach, when used in the wrong context or as part of a deception exercise (such as a Mr Big operation) these interviewing techniques are more like the ‘good cop’ techniques in interrogative approaches. That is, rapport in these situations is more akin to a minimising technique, rationalising and/or downplaying the involvement in, and consequences of a crime. While these techniques might increase the chances of obtaining a confession, they at the same time compromise the reliability of the confession. Suspects may say things merely to please Mr Big because of a rapport they feel with Mr Big.

Given these two notions, the Mr Big method could be considered unethical – using rapport building to elicit a confession, as part of an extensive exercise in deception. Moreover, as described above, in non-covert operations, offering inducements, coercing or deceiving suspects during custodial police interviews often leads to a confession being characterised as illegal or improperly obtained and thus can be excluded from evidence on public policy grounds. ⁴⁵ It has therefore been argued that the use of the Mr Big method interferes with the suspect’s right to silence and the voluntariness of confessions. ⁴⁶

Canada’s rejection of Mr Big-elicited confessions

The issues with the use of the Mr Big method are not restricted to Australia and have been subject to judicial review in foreign jurisdictions. ⁴⁷ However, unlike Australian courts, discussed in detail below, foreign courts have scrutinised the use of this method as it increases the risk of false confessions. ⁴⁸

In 2014, in the country that introduced the Mr Big method, the Canadian Supreme Court considered the confessions of a man who was convicted of murder. ⁴⁹ The suspect was of a low socio-economic background and was subject to 63 covertly staged scenarios. ⁵⁰ Police officers offered inducements and paid the accused over CAD 15,000 for work he did for their fictitious criminal enterprise. ⁵¹ When meeting ‘Mr Big’, he was interrogated about the death of his daughters. The appellant eventually confessed despite initially denying any involvement in their deaths. ⁵² The Supreme Court ruled that the common law should change. This would result in confessions elicited via Mr Big operations being presumed inadmissible unless the Crown proves, on the balance of probabilities, that the confession is sufficiently probative. It addressed its concerns about the method by noting that

the Mr Big technique comes at a price. Suspects confess to Mr Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats – and this raises the spectre of unreliable confessions.

Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction. In other contexts, they have been responsible for wrongful convictions – a fact we cannot ignore. ⁵³

Implications of judicial decisions on covert police operations in Australia

Covert police operations, such as Mr Big operations, have also been subject to judicial review in Australia. The High Court, traditionally, has favoured the suspect’s right to silence over improperly obtained confessions as a result of covert operations.

In R v Swaffield the High Court held that confessions elicited by an undercover police officer after a suspect had exercised their right to silence should be excluded from evidence. ⁵⁴ However, this attitude shifted when the High Court decided upon the use of the Mr Big method in four cases.

In Tofilau v The Queen, Marks v The Queen, Hill v The Queen and Clarke v the Queen (‘Tofilau v the Queen’), four individuals who had been targeted by separate Mr Big operations appealed the admission of their confessions, arguing that these confessions were improperly induced and involuntary. ⁵⁵ The Court held that confessions elicited due to Mr Big operations are not deemed involuntary because the defendants were unaware that they were confessing to undercover police officers.

Tofilau v The Queen has not been reversed by the High Court therefore Mr Big operations are allowed to continue in Australia. This implies that deceit, to a certain extent, can be used to elicit confessions. Courts have consequently followed this precedent and dismissed claims of impropriety in Mr Big operations. ⁵⁶ The assessment whether a confession as a result of a Mr Big operation ought to be excluded often involves an evaluation of the prejudicial effect in light of the probative value of that confession. ⁵⁷ As will be discussed below, due to the strong reliance on Tofilau precedent, individuals have unsuccessfully argued for exclusion of such confessions. Courts have determined that public policy or fairness arguments are not persuasive arguments for excluding this evidence. ⁵⁸

The Tofilau precedent has created an exception to receiving the mandatory caution warning and the prohibition of deceptive or improper conduct. That is, if the suspect did not explicitly exercise their right to silence, the confession is deemed voluntary. ⁵⁹ Due to the nature of Mr Big operations, suspects are not aware that they need to exercise this right. Therefore, a safeguard is that the deception used in Mr Big operations is often subject to an assessment of whether the probative value of the elicited confession outweighs the prejudicial effect when a court is asked to exercise its discretion to exclude the evidence. ⁶⁰ However, this assessment is most often in favour of the Crown, and thus protecting the community if the confession is potentially unreliable, meaning that the confession evidence is admissible. ⁶¹ Courts can also consider excluding the confession on public policy grounds where the breach of procedural rights, such as the right to silence, is considered in light of community expectations. However, as Bronitt observed, in such assessments the interest to resolve crimes is often favoured over considerations of impropriety in covert police operations. ⁶²

Recent Mr Big cases in Australia

Despite international developments and academic scrutiny of the increased risk of unreliable and false confessions, Mr Big operations continue to be conducted in Australia. Two types of Mr Big confessions can be distinguished. First, there are cases in which the suspect made admissions or a confession to Mr Big. ⁶³ On the other hand, there are cases in which the suspect made a full confession that led to the discovery of further crucial evidence which then implicates them in a crime. ⁶⁴ Although the decisions of foreign courts have been referred to by some Australian courts, the latter are bound by the Tofilau precedent. ⁶⁵

In R v Cowan, the accused was targeted by a Mr Big operation that involved 25 scenarios and 36 undercover officers. ⁶⁶ The operation was lengthy, involving an extended build-up of the accused’s belief that he could become part of the fictitious criminal gang. ⁶⁷ Over time the suspect became increasingly involved in criminal activities of the fictitious gang. ⁶⁸

At some point, the suspect was told he could be involved in a ‘big job’ which would result in significant financial gains. ⁶⁹ However, he first had to meet the big boss, ‘Arnold’. ⁷⁰ When meeting the suspect, ‘Arnold’ asked the suspect about his involvement in previous crimes and implied that the suspect could only join if he was ‘honest’. Moreover, the undercover officers stressed to the suspect that trust, honesty and loyalty were of crucial importance to becoming part of their ‘gang’. ⁷¹

To demonstrate his ‘honesty’ and commitment, the suspect confessed to abducting, sexually assaulting and subsequently strangling to death Daniel Morcombe. ⁷² The accused later argued that he was induced and pressured to confess. ⁷³ He further argued that he had previously exercised his right to silence prior to the confessions elicited by ‘Arnold’. ⁷⁴ The Court determined that the accused did not confess due to threats; he confessed voluntarily because he wanted to be a member of the fictitious gang. ⁷⁵

In Deacon v The Queen, the applicant was tried for the murder of his partner. ⁷⁶ After interviewing the applicant shortly after his partner's disappearance in 2013, the Northern Territory (NT) police started a Mr Big operation. ⁷⁷ This operation involved 33 scenarios ⁷⁸ involving fictitious criminal activity. ⁷⁹ To build rapport with the undercover officers, the applicant was paid money for his contributions. ⁸⁰ When meeting the ‘boss’ in 2014, the applicant was asked about his partner’s disappearance but he firmly denied any involvement. ⁸¹ The ‘boss’ subsequently advised the applicant that he had ‘intel’ from a corrupt police informant in Darwin that the applicant ‘had a problem with the police’. ⁸² However, the ‘boss’ could get that ‘sorted’. ⁸³

The applicant suspiciously asked the ‘boss’ whether their meeting was set up by the police. The ‘boss’ ‘feigned anger’ and demanded the applicant show him where he had buried his partner’s body. ⁸⁴ The applicant later stated that he feared physical assault if he failed to comply, and therefore confessed to the murder. ⁸⁵ Considering his leave to appeal application, the Court of Criminal Appeal of the NT held that the applicant voluntarily engaged with the criminal organisation and did not exercise his right to silence. It further ruled that the applicant confessed to benefit financially and feared being dismissed from the organisation if he did not confess. ⁸⁶ The Court concluded that this was not oppressive conduct and dismissed the application for leave to appeal. ⁸⁷ The Court noted that the applicant was free to leave the conversation with the ‘boss’ at any time, and that the audio-visual recording of their conversation did not indicate that the applicant was fearful of physical harm. ⁸⁸ In Deacon v The Queen, the Court recognised that, should the Mr Big operation involve threats of physical violence, the evidence may be excluded if the prejudicial effect on the accused outweighs the probative value. ⁸⁹ However, when considering exercising this judicial discretion, the Court rejected claims that the confession was unreliable or false and noted:

As we observed at the outset, not only did the applicant make a confession, he also led the covert operatives to the site of the deceased’s remains and subsequently gave evidence at trial that he had killed her. ⁹⁰

This indicates that, if the confession leads to the discovery of further crucial evidence, the probative value of the confession evidence outweighs the prejudicial effect. Hence, claims of police impropriety, which does not involve physical violence, are outweighed if such a confession is made.

In R v Jelicic, the accused was the target of a Mr Big operation for three months. ⁹¹ The accused was subject to various scenarios in which he came to believe that the fictitious gang was committing crimes. ⁹² There was another set of scenarios that slowly introduced the accused to the ‘chance’ of meeting the ‘crime boss’. ⁹³ During all these scenarios, undercover officers used a variety of methods to induce a confession. Many were designed around winning the accused’s trust (ie, rapport building). ⁹⁴ In one scenario, the accused’s trust was tested by an incident in which the misconduct of a fictitious group member (such as ‘lying’ to fellow ‘gang’ members) was punished by another undercover officer shouting profanities, and kicking the ‘liar’ out of the gang. ⁹⁵ In another scenario, the undercover officer told the accused that, if he was successful in becoming a member of the ‘gang’, he would be given a share proceeds from the planned crime estimated at between $10,000 and $15,000. ⁹⁶ Following these interactions, the accused told the undercover agents that he was suspected of murder however he denied any involvement. ⁹⁷ The undercover agents continued the conversation with the accused the next day at which time the accused disclosed important facts about the alleged offence that matched the investigative findings. ⁹⁸ These admissions were not excluded.

The accused argued that the admissions were involuntary and his defence counsel argued that the accused came from a low socio-economic background and lacked social ties. Becoming part of the criminal organisation was driven by financial incentives and a desire for social belonging. ⁹⁹

The Supreme Court of South Australia considered the argument as to whether the persistent questioning used by the undercover officers could have resulted in pressure to make involuntary admissions. ¹⁰⁰ However, the Court rejected this because the accused was always free to leave. ¹⁰¹ Following Tofilau, the Court further refused to exercise its discretion to exclude the admissions due to unfairness or public policy considerations.

In Standage v Tasmania, the Tasmanian Court of Criminal Appeal upheld two murder convictions that involved a confession elicited as a result of a Mr Big operation. ¹⁰² The appellant was subject to a Mr Big operation, conducted by Tasmanian and Victorian police officers. ¹⁰³ During the Mr Big operation, the appellant was involved in a staged drug trafficking scenario and was offered an illegal weapon by undercover agents. ¹⁰⁴ A fictitious crime boss in Melbourne then warned him about a prospective arrest and offered ‘help’ in exchange for a confession. ¹⁰⁵ The appellant subsequently admitted to his involvement in the deaths of the two victims. ¹⁰⁶ On appeal, the appellant argued that he was influenced by undercover police officers and that learning of his ‘prospective arrest’ led to involuntary and unreliable admissions. ¹⁰⁷ His appeal was dismissed and it was held that the probative value of the admissions outweighed the prejudicial effect on the accused. ¹⁰⁸

This decision indicates that any statement by a suspect in the course of a Mr Big operation can be used against them in evidence if its content is sufficiently probative. Unlike in R v Cowan and R v Deacon, the appellant in Standage v Tasmania did not make a full confession and did not lead the undercover officers to the remains of the victim. ¹⁰⁹ The appellant in Standage v Tasmania and the applicant in R v Jelicic made mere statements that were construed as informing other pieces of evidence. The decisions in Standage v Tasmania and R v Jelicic demonstrate that these statements by the appellant were sufficiently probative admissions that outweighed the prejudicial effect.

Conclusion

A confession elicited as a result of a Mr Big operation entails trickery, deception and inducements. The use of this method exposes the suspect to interrogation techniques that have reportedly been abolished in Australia. ¹¹⁰ Australian police forces have shifted towards evidence-based methods in questioning suspects to ensure fair procedures, and to maximise the chances of eliciting reliable information in an appropriate manner. These police procedures are supported by safeguards in criminal procedure rules and evidence laws nationwide. The current Australian framework provides many protections for suspects, such as the right to silence, mandatory caution warning, the privilege against self-incrimination, and the prohibition of inducements offered by police officers. These developments demonstrate a great effort by all actors in the criminal justice system to minimise the risk of involuntary, unreliable and potentially false confessions.

Keeping these efforts and developments in mind, perhaps we should ask ourselves whether the use of the Mr Big method fits the ideal of a fair, transparent and just criminal justice system. If the use of deception, trickery and inducement are prohibited in custodial interviews, why should they be permitted during a Mr Big operation? Surely, all suspects deserve the same safeguards and protections which includes a protection of their right to silence. Consequently, the conundrum that the Mr Big method creates for the judicial system is reflected in rulings from the courts when the admissibility of confession evidence is at issue. Courts struggle to balance their justifications to admit evidence in light of the existing rights of suspects, and laws around evidence gathering. Considering that Mr Big operations have led to the resolution of high-profile homicide investigations, it may not be time to move on from ‘Mr Big’ entirely. ¹¹¹ However, Mr Big operations are creating moral dilemmas that require reflection on our common law principles. These covert operations lead to confessions made by, at times, vulnerable individuals. These vulnerabilities are used to create a targeted strategy to induce a confession. ¹¹² The probative value of admissions, as opposed to full confessions that led to the discovery of further crucial evidence, should treated as distinct categories. The probative value that courts attach to admissions made to Mr Big, without the discovery of further new highly probative evidence, should not outweigh the unfair prejudice on the accused.