A Deep Dive Into 'Mr Big' Police Operations | Episode 125 | Justice Matters Podcast

Added: 2026-05-06

[00:00:04]Breaking and entering, drunk and disorderly law and order. A former prosecutor and a defense barrista, not your usual pairing. And the result, conversations about crime and punishment that are guaranteed to get you thinking.

[00:00:19]>> Welcome to Justice Matters, a weekly podcast with Lizzie Green and Jay Merchant. Our episodes are every Monday on Apple Podcast, Spotify, and YouTube.

[00:00:28]Follow us on Instagram at Justice Matters Pod for clips. Enjoy the episode. This episode deals with murder and other serious offenses. Discretion is advised.

[00:00:43]>> Good morning, Liz.

[00:00:43]>> Good morning, Jay.

[00:00:44]>> How are you?

[00:00:45]>> I am well. How are you?

[00:00:46]>> Yeah, I'm doing all right, thank you.

[00:00:47]>> Very good.

[00:00:48]>> Sun's shining.

[00:00:49]>> Well, I know we're coming into exams, which means we're coming into the marking time.

[00:00:55]>> There you go.

[00:00:55]>> That's all right.

[00:00:56]>> It's part of the job. I know.

[00:00:57]>> Yeah.

[00:00:58]>> Hey, look, before we get into our substantive episode on Mr. Big Sting operations.

[00:01:04]Yeah, that's right.

[00:01:06]>> Good one.

[00:01:06]>> It is a good one. I just want to take a moment because, you know, sometimes we get caught up in some of what we see in the news and in sentences and, you know, the judiciary is under the microscope.

[00:01:18]>> I do feel I've been a little bit critical of sentencing at times.

[00:01:21]>> Well, and I think, you know, it's worth a conversation, right? And so I just want to turn our attention to the 14th Court of Appeals in Texas because this gives me a lot of confidence in the bench here in Queensland and Australia.

[00:01:39]>> Oh, okay.

[00:01:40]>> And we're talking about a case that involves murder. So Eric Aguari is the appellant in this matter and he was charged with murder and convicted. He was sentenced to 50 years and what became apparent was this standard of proof that the trial judge agreed on.

[00:02:08]Now, we've got beyond reasonable doubt, right, in criminal matters and and we neglect to >> really define it on purpose, you know, to get into too much detail.

[00:02:20]>> Well, you're not allowed to.

[00:02:21]>> Yeah. The benchbooks and all of that.

[00:02:23]>> Yes.

[00:02:24]>> However, in this case, which again, murder >> in Texas, this judge, and I am going to name him because he's up for current reelection. Oh, >> is Judge Josh Hill from Texas. Okay. He lamented and commented on the fact that beyond reasonable doubt to some people is 99% and another person's beyond reasonable doubt is 60%.

[00:02:52]>> Oh no.

[00:02:53]>> Or a gut feeling or whatever else it is.

[00:02:57]>> And said that was okay.

[00:02:58]>> And that was okay.

[00:02:59]>> Oh dear. And so we've got a highly serious matter where this judge has strayed so far out the scope of what beyond reasonable doubt is.

[00:03:11]>> Well, and gosh, a gut feeling.

[00:03:13]>> Yeah.

[00:03:14]>> I don't know that that's uh the correct threshold.

[00:03:18]>> No. And what's surprising is that, you know, he's up for reelection. This is Judge Josh Hill, and he's up for the Texas 232nd District Court. They elect their judges down there and it's a current election. So this decision is going to play heavily in the favor of his opponents.

[00:03:37]>> Was that the ground of appeal?

[00:03:39]>> Yes, it was.

[00:03:40]>> And has it been decided?

[00:03:41]>> It has.

[00:03:42]>> And >> Yep. So appeal was granted and a retrial >> which Oh, that is frustrating, isn't it?

[00:03:49]>> Think about the resources that are wasted because some judge who I might add has 20 years experience exclusive to criminal law. He served as the assistant district attorney.

[00:04:00]>> What?

[00:04:01]>> Board certified. That's right. In criminal law for 11 years, tried 50 plus cases from misdemeanors to capital murder. And how do you make such a big mistake?

[00:04:13]>> That's that's beyond belief really because of the one thing that we are all super conscious of is that the burden of proof and the standard of proof is high. It is.

[00:04:28]>> And that is the way the system has been set up since its inception >> on purpose.

[00:04:34]>> Oh gosh. And to have all of that criminal law um experience and still make such a huge error.

[00:04:43]>> Yeah. I I've just never seen anything quite like it. So kudos to, you know, defense attorney Doug Gladen.

[00:04:50]>> That's crazy. It's decisions like this, Liz, that make me glad that I appear in Queensland and in Australia because >> this is a kangaroo court in Texas.

[00:05:08]>> Like, it is I I've never seen, >> you know, we might disagree with a sentence. we might, you know, look at some of the circumstances and not agree, but I've never seen anything quite like this. And that makes me proud.

[00:05:23]>> And even the the times where there's been some critique of um the handling of beyond reasonable doubt, it's never so blatantly wrong, >> a gut feeling.

[00:05:35]>> That's right. Or to allow it to be something like 60.

[00:05:38]>> We're going to go to 61%.

[00:05:40]>> Like, what is that?

[00:05:41]>> Yeah.

[00:05:43]So, Texas, sort your [ __ ] out for your own citizens.

[00:05:49]>> Um, we're now going to move on to the substantive episode for today and that is something that I'm excited to talk about with you and that is the Mr. Big Sting operations because most police interviews happen under the bright lights, you know, recorded cameras. Y >> and this one happens in restaurants, parking lots, hotel rooms, moving cars.

[00:06:13]It's a seduction. And by the time the suspect realizes, Liz, what's happening, there's already a confession.

[00:06:22]>> Okay. And so, let's just say at the outset, you don't agree with these. I I look, I think that in certain circumstances they are a valuable tool, but I think they are dangerous. And I think that the Canadian approach where they're inadmissible until proven admissible >> is the correct approach.

[00:06:44]>> All right, tell me tell me what you think and why.

[00:06:47]>> And so we'll get into that. And so I want to talk about what they are, when they're used, what the issues are, and then we're going to go through a couple of cases, two in Canada, and then we'll revert back to the Queensland Brett Peter Cowan case because in fact, he made an application for exclusion of that evidence. And we'll link it back to how Australia's approach in the matter of >> tophilo >> really has been coined as dated in my opinion and there's an academic that wrote a nice nice piece on it with the premise that you know it might be out of touch and and for the first time I can say in a long time that Justice Kirby and I agree on something.

[00:07:33]>> All right. Interesting. All right.

[00:07:34]>> So there you go. So, we're looking at admissions, confessions, and the Mr. Big Sting operations. And so, some people might not be aware of what they are. So, I'm going to talk about what they are.

[00:07:48]And it this is actually a guide from the University of British Columbia law review >> because I wanted to get to know it a little bit more than what I did know about it. And essentially what they are are undercover investigations where police pose as members of lucrative crime organizations and the purpose is to gain the suspect's trust and induce a confession or admission to a past crime.

[00:08:19]Okay.

[00:08:21]uh some of the tactics used to and I got to be a little bit careful cuz I want to say induce and I hope you don't object to that but it is a bit of an inducement.

[00:08:32]>> Well, I I do think induce is a tricky word to use because >> entice >> allow.

[00:08:43]>> Okay. but limited allowance based off of the limited knowledge of the suspect knowing that they're police.

[00:08:50]>> Okay. But I I like to say allow because these people primarily are providing this information, these confessions voluntarily.

[00:09:04]>> Well, but yeah, and we'll get into voluntarily because they're not aware that they're speaking with police. The police are aware and they're consciously deceptive of their tactics. Okay. We are not going to agree on this.

[00:09:14]>> No, we are. No.

[00:09:15]>> So, let me get back to and we'll come back to that because I really want to talk about the voluntariness because I I think you and I are going to disagree on that >> and I'm okay with that.

[00:09:26]But, so there's some steps involved. And keep in mind, you know, one thing that I've always said to people when I'm doing a talk or in lectures, etc. is loose lips sink ships. Keep your mouth shut. All right.

[00:09:41]As prosecution, I want them all to say whatever they feel like saying.

[00:09:44]>> Absolutely. The police the police are not your friends. All right. But anyhow, I digress. There are some less >> intelligently challenged people out there who like to talk. Yes.

[00:09:55]>> All right. So, I and I accept that.

[00:09:57]>> So, some of the steps you've got the initial and keep in mind these are people that are already under the radar of police. So, they're already known to police.

[00:10:07]>> Yes. But there's initial contact and recruitment. So there is an approach that is made >> by undercover >> by undercover police with that person of interest. Yes. All right.

[00:10:21]>> And you know there's this building of trust and dependency. And so it could be the case that you know money or they're hired and generosity to induce loyalty.

[00:10:36]Okay. there's an escalation and induction and so hey we're in this big organization we're going to give you the opportunity to meet Mr. Big okay or the top dog okay which is this oh wow this is awesome y >> type of feeling >> you know a reward or whatnot and then you have the confessional interview where the top dog says look we want to help you out as best we can but we need to know everything everything >> you have to prove yourself to prove yourself.

[00:11:07]>> Yes.

[00:11:07]>> And so some of the tactics involved in those steps include but are not limited to, you know, inducements, rewards, so money, status, belonging, the promise of protection. You know, there has been cases where there's been threats and intimidation, so aggressiveness, physical harm, threats at them or others around them. You know, um the suggestion by police to these individuals of false evidence, false narrative. So you'd be suggesting that you know what, police are swarming in on you. You don't have an option. Okay. So you might as well just come clean.

[00:11:45]>> Well, and also like I think these sting operations work though because they are modeled off actual operations. Like this is how things do work in other contexts outside of a sting operation. So people are out there offering these kinds of um rewards or threats or whatever it might be and people are telling these other organizations, well I should be part of this gang because I've done XY Z. I'm a good fit. You know, like they're tapping into an existing culture.

[00:12:24]The undercover operations work because it's based on reality. Well, and I'm I'm not with you on that because the other, you know, organizations aren't infiltrated with police officers that have a duty.

[00:12:40]>> No, I understand that. But, but they haven't created these organizations like they've that whole culture already existed. They were like, "Well, there's an opportunity for us to tap into an existing culture of crime, which is >> all right, but the difference is is that these involve police officers, and police officers have duties to tell the truth. And and I'm still stuck on there not being a distinction between other cultures and a Mr. Big Sting operation." And that comes back to the role of police. Mhm.

[00:13:19]>> So, you know, we might disagree on that one.

[00:13:21]>> We might. We might.

[00:13:23]>> You know, there's this also this isolation and power imbalance. So, the suspect becomes dependent on the organization or fearful of losing those benefits or suffering the consequences.

[00:13:35]There's coercive scenario design. So, staged beatings, threatens to family and and organizational violence. I think where I was stuck already the way that that this is being >> well these are variables to consider.

[00:13:52]>> Yes.

[00:13:53]>> Yeah.

[00:13:53]>> Okay. But it's not as though the person who is being exposed to this is a a good citizen.

[00:14:05]>> Oh no. We look at Brett Peter Cowan. You know, these are people who are willingly involving themselves in this kind of world.

[00:14:15]>> Well, willingly, but not unknowingly.

[00:14:18]>> Okay. But then, okay.

[00:14:21]>> Unknowingly.

[00:14:23]>> All right. Yes, that's true. But they're not innocent people. I just want to make that clear at the start.

[00:14:27]>> No, but their their presumption is innocence until proven guilty beyond reasonable doubt. And the whole point of these Mr. ing operations is whether or not it is credible, reliable evidence to prove beyond reasonable doubt.

[00:14:39]>> Okay. But so I would never I would never go to an organization like that and agree to do a criminal act or confess to criminal acts to be part of that. Like the people we're talking about, they we are pursuing an investigation and they are, you know, clever and experienced in are in the criminal world. They know not to speak to police or whatever >> and they are suspected of committing serious crimes.

[00:15:11]>> And if this is an investigative tool that has been authorized, then why can't we utilize that tool?

[00:15:18]We're not targeting innocent people.

[00:15:22]We're trying to build a case to get justice for like if they have nothing to confess, then they go on their merry way.

[00:15:30]>> Yeah. I guess it's the way that the admission or confession is garnered that I struggle with because they are unknowingly in the presence of police.

[00:15:40]>> Okay. But so do you think that makes it less reliable?

[00:15:44]>> I think it can. Why? and we'll get to that because we've got to, you know, all right, we'll jump the gun to break the account.

[00:15:51]>> No, no, no. Go, go in your order. I'm >> um >> being a little bit difficult.

[00:15:56]>> So, the reasons, you know, there's there's arguments for the usage of Mr. Big Sting operations and that's partly because some of these cases go years without being solved.

[00:16:09]>> Yes. Um, so serious offenses that may otherwise not be solved. Um, and arguments that some of the confessions are reliable and voluntary. Okay.

[00:16:23]And that they help prevent dangerous offenders from remaining at large. Now some of the arguments against is that you know the tactics used can create powerful incentives to fabricate stories come up with that there is um intimidation, aggressive demands, threats, staged violence that elevates a level of coercion and oppression by the police towards the suspect.

[00:16:56]that there is this right to silence that has been abregated that there is a prejudice against the presumption of innocence.

[00:17:07]Okay. Uh and that the admissions are unreliable because they are hearsay.

[00:17:15]>> What?

[00:17:16]>> Yeah, that was the lesser of the weighted arguments.

[00:17:19]>> Okay, let's forget that one.

[00:17:20]>> Okay. And so, you know, is there a motive to lie? What is the level of coercion? the power imbalance and how does that tie into voluntariness?

[00:17:30]>> Okay. But all right, but so I mean in Queensland yes, >> we say that um police and people in authority cannot >> offer a inducement or a threat to obtain a confession. So, we're very clear that if you are someone in uniform or in a position of authority, you can't bribe, threat someone to confess. Okay, that's the legislation.

[00:18:00]>> And so, we've had cases where, you know, they've had a situation where an accused person has made confessional statements to like the um the prison doctor and something like that. And that's >> not a police officer.

[00:18:15]>> Not a police officer. And they've enlarged that to say a person in authority. You know, you can't allow a person in authority to use that kind of um method.

[00:18:28]>> Yeah.

[00:18:29]>> To obtain statements against interest.

[00:18:32]And so the big thing with these Mr. Big things is that they're not people in authority because they're playing a role. And so >> go ahead. So when someone goes to try and infiltrate one of these gangs or become a member or impress them or whatever it is they're trying to do in their head they are speaking to gang members members of the organization the Mr. big. They're not speaking to someone in authority. And so that precluded >> evidence of induced confessions doesn't apply because at no point are they saying these things because someone in a position of authority is asking them.

[00:19:17]>> Yeah. And I mean, I guess the definition of position and of authority needs to be, you know, clarified because they the police know that they're police. The suspects could be saying at previous times because these are protracted often and they're unsolved that they don't want to speak to police.

[00:19:37]And yet the police are still engaging and making inquiries in this Mr. big scheme knowing that there was a right to silence and knowing that they've exercised that.

[00:19:50]>> So, do you also have an issue with um like if someone's put into a prison cell with an offender >> if it's a police officer? Yeah.

[00:20:00]>> What about an undercover operative who may not well or a police agent? Sorry.

[00:20:06]you know, um they can they can put a not a police officer but someone who they plant there to talk to them.

[00:20:14]>> Well, I guess it's still under the guise of I mean, if it's circumventing the right to silence and this presumption, then I would have a problem with it because it is a government agent, right?

[00:20:23]>> Yes. Uh, if it's not if it's just, you know, you're in a cell and I'm in a cell and I decide to spill my guts, then I don't have a problem with that because it's not a tactic used by the police. And I don't know if I'm, you know, coming across clear on that. I would have less of a problem with the Mr. Big if it wasn't police. I see it as a deceptive tactic that is eliciting, inducing, encouraging admissions.

[00:20:59]>> Mhm.

[00:21:01]>> But it's not fully voluntary.

[00:21:04]>> But so when you say if it wasn't the police, who who would be running the Mr. Big operation? Well, I'm saying it might be worth that they not run it in that certain way.

[00:21:18]You know, I I just as police officers, we're supposed to act impartially and I was never allowed to use any deceptive tactics.

[00:21:30]>> Not while you're acting as a police officer. They were police officers when they were acting.

[00:21:37]>> But they've been given the authority to act as >> Well, who gives them the authority?

[00:21:42]>> The police. Exactly.

[00:21:44]>> But it's legislated. It was created by >> Where is the Mr. Big Act?

[00:21:49]>> We We don't have a Mr. Big Act, but we've got controlled operations.

[00:21:53]>> And I And I take your point on, you know, the confessions being induced.

[00:21:59]They're if they're not voluntary, they're inadmissible.

[00:22:04]uh primacy.

[00:22:06]Um >> I just like I I've read a little bit of stuff about this because it is an interesting concept >> and it's about you know we talk about enttrapment in Queensland. So entrapment is not, you know, officially recognized anywhere, but it's in case law and y >> it talks about the fact was there improper target selection, was there an improper manner of inducement? Um the idea is if this sort of confessional statement >> was made um and it was made in a way that was not an overstepping by the person it was made to.

[00:22:56]>> But what is an overstepping? Well, that's so that's where they talk about improper target selection, like trying to induce someone who may not be >> otherwise likely to engage in criminal conduct, you know. So, you >> why would they be a target in the first place then?

[00:23:12]>> Well, that was one of the things that they talked about or improper manner of inducement, offering something that is too hard to resist and so you're going to over overbear their will, you know, like they'll give into it because of the manner of inducement. But if you've got someone who who is happy to engage with that kind of organization, who wants to big note themselves, who's desperate to earn the money that's on offer, then that is the type of target where it's not improper to accept their confessional statements and use them against them because they've put themselves in that situation.

[00:23:52]>> Yeah. And no and I take your point that in certain circumstances like I'm not anti Mr. Big but I'm cautious Mr. Big and part of it involves these tactics.

[00:24:02]So for instance the matter of James Kakamik you know the threats went beyond what you would consider hopefully as appropriate. You know they had a real criminal group the Hell's Angels were brought in to assist. Yeah. And so inducements were leveraged against >> this in Queensland. No, no, this is in this is in Canada.

[00:24:23]>> Okay.

[00:24:23]>> Yep.

[00:24:24]>> And so, you know, um false confessions and the >> because he was afraid.

[00:24:35]>> Yeah.

[00:24:36]>> Okay. Well, I'm not okay with that.

[00:24:37]>> No. And that's what I'm getting at. I think that there's variables to consider on both sides because I agree that they are useful. I just don't necessarily and I take the Canadian Supreme Court case that caution is required and we don't have much caution here in Australia because of >> tophilau.

[00:25:00]>> Yeah. And so let's get into a few cases that just illustrate some of what has transpired. So the matter of Burns is a Canadian case and in 1994 there was three members of the Rafé family, Tariq, Sultana and Basma who were found bludgeoned in their home. Now the violence was extreme. There was blood spatter covering the walls and it was horrible.

[00:25:28]>> Now the suspects in this matter were one of the sons. So atif Rafé and his friend Glenn Sebastian Burns, both of them were 18 Canadian citizens, close friends, and they were staying at the Rafé home, and they admitted to being present that night, but claimed that they went out and returned to discover the bodies.

[00:25:51]Now, there wasn't enough evidence, as in most cases that involve a Mr. Big Sting operation. and they lacked evidence to charge them. And so they launched an elaborate Mr. Sting, Mr. Big Sting operation. And you had an officer posing as a crime boss, you know, cultivating the suspect's confidence and uh it was it was actually caught on camera and you can YouTube it because it's it's pretty intense. Um the the crown's theory is that Burns killed all three with a bat and Rafé watched and the motive there was inheritance. Okay.

[00:26:31]>> Oh dear.

[00:26:32]>> And so Mr. Big Sting operation was successful in the sense that whilst they maintained their im innocence um they made confessions on camera.

[00:26:45]So, okay. So, my first question is like >> there was the sting operation. He acted as a crime boss. How did these two 18year-olds >> cross paths with the crime boss? Like >> what made them think what made the police think that these two boys men would be susceptible to a sting operation?

[00:27:12]>> Oh, I think they were hoping on their age. They were they were 18 years of age and there was some evidence but there wasn't enough to charge him. So they were clearly under the radar of the RCMP.

[00:27:23]>> Okay. So they they were dabbling perhaps in criminality.

[00:27:28]>> Oh yeah. Well I mean they did it in the end.

[00:27:30]>> Well I I know that but not you know but so that's where immediately I'm like well they don't do a sting operation for all suspects. So there was a reason they thought these boys men >> would be open to getting involved in that kind of crime organization. And that's where I think so fair game.

[00:27:53]>> Yeah.

[00:27:55]Uh and I and I'm I'm not disagreeing with you on that. I'm more I think where we differ is on the tactics used.

[00:28:02]>> Oh okay.

[00:28:04]>> Yeah. So I I you know I don't think that police should be using coercion, threats of violence to obtain admissions. I I just feel like that is fundamentally wrong.

[00:28:15]>> Yeah, I I see what you said.

[00:28:17]>> Knowingly, you know, they're knowing that they are police and the others might not know as in the suspects, but they are knowingly.

[00:28:27]>> But I I didn't know that they were like they're beating up the suspects.

[00:28:32]>> Yeah. In some of these cases, they are they're staging threats and they are creating elaborate scenarios that threaten harm.

[00:28:42]>> But when you say staging threats, like so it's not they're not carrying them out. No, they're not carrying them out, but they are engaging with hell's angels and elaborate plans to give no option in terms of pressure, fear, and that's the level of unreliability that I'm struggling with.

[00:29:08]>> Okay.

[00:29:09]>> So, with Burns and Rafé, they maintain their innocence. Uh, this is after the confessions. They said that they were play acting to impress the crime boss.

[00:29:19]And um that's what they maintained on that one.

[00:29:24]>> Were they convicted?

[00:29:26]>> Uh they were actually in the United States.

[00:29:29]>> Yeah.

[00:29:29]>> Yeah.

[00:29:30]>> Okay. Um, and so, you know, there was the argument that it was unreliable, that it could be a false confession, that, you know, there's a risk of abuse of and state overreach in terms of their conduct. So, they were they were convicted and they are serving out their sentence in the United States.

[00:29:56]And >> and was the confessional statements made? Was that the primary evidence against them?

[00:30:04]>> It was. And what was interesting about this one is because they were arrested in British Columbia, but the murders took place in the United States. And so there was an element of all right, you're going to be extradited for the death penalty.

[00:30:16]>> Oh.

[00:30:16]>> And so it became an argument over less on the Mr. Big because in the United States, anything goes.

[00:30:23]>> So they don't care.

[00:30:24]>> Okay.

[00:30:24]>> Right. So they were convicted on that.

[00:30:27]>> Yeah.

[00:30:28]>> Um a a gamecher in Canada and that's the matter of heart and that came down in 2014 because a number of matters made its way to the Supreme Court and to the the appellet jurisdictions across Canada because of the unreliability of the admissions. And so this one here involved the deaths in 2002 of three um three-year-old twins and Nelson Hart was at the top of the list in terms of a suspect. So three-year-old twin daughters Karen and Christa and they drowned in a lake adjacent to Gander, Newfoundland. Now Hart was the last to see them alive. First responders later found the twins floating several hundred meters apart. Okay. Now, the initial statement of Hart, he told police that one child fell off the dock. He panicked, said he couldn't swim. He drove home to get his wife and forgot the other child in the park.

[00:31:32]>> Oh, what?

[00:31:33]>> Yeah. Doesn't make sense. Boulderdash.

[00:31:36]Police questioned why he didn't call for help despite two mobile phones in the car or stop at nearby locations.

[00:31:43]Next, there's a change of story weeks later on where he volunteered a different account. He had a seizure in the park and came to and saw the child in the water and drove home. He said that he previously lied to avoid a driver's license repercussion due to his epilepsy.

[00:32:01]>> Oh, cuz that was the important fact on that day.

[00:32:04]>> Yeah.

[00:32:04]>> Yeah.

[00:32:05]>> And so difficult case. There was not enough sufficient evidence to commence proceedings. Okay. They suspected him clearly. I mean, his versions of events were garbage.

[00:32:17]>> Absolute rubbish.

[00:32:18]>> Um, but it went cold for over two years, that being the investigation. And so, this is where the Mr. Big Sting operation was set up. You know, they officers befriended Hart. They portrayed a criminal enterprise with a boss. Hart was socially isolated and on social assistance at the time. So, there was pressures as as you would if if you killed somebody. there would be pressures.

[00:32:43]>> The operation, you know, transformed his life, took over his life. There was 63 scenarios over 4 months that involved trying to get him to make admissions.

[00:32:55]Wow. All right.

[00:32:56]>> There was travel to multip multiple cities. He was winded and dine. There was hotels, fine dining. You know, he was given $15,720 in cash and the operation cost over $413,000.

[00:33:12]>> Was he doing anything for them to get the cash?

[00:33:15]>> Oh, he was working with them >> as in criminal work.

[00:33:18]>> I don't have the details of what he actually did, >> but all in an effort to induce, entice, allow these um admissions, right? So there was this friendship, loyalty, uh an aura of violence because there was there was actual slappings and assaults between the members um and talking of you know we're going to deal with this rat the way that rats need to be dealt with. All right.

[00:33:43]>> And so that's not him being assaulted.

[00:33:45]No, that that is >> creating a realistic environment >> and yes, an environment knowing full well that they want to induce, entice, allow these confessions or admissions.

[00:34:01]>> Yeah.

[00:34:02]>> Um there was this, you know, stressing on working lucrative jobs, participated in participation in simulated crime. So moving contraband was staged. Um >> it's very clever.

[00:34:18]>> And so there are three alleged confessions. All right. So the first of which he made a bald statement to Mr. Big over dinner. He allegedly said that he had planned and carried out the killings. Not and that that alleged um statement was not recorded >> of his daughters. He's talking about >> not recorded. So police not recording the conversation that was later denied and 2 months later there was a meeting after the initial denial of you know including the seizure explanation he confessed under pressure saying that he pushed the girls shoulder and shoulder checked them into the water. Okay. now takes a little bit of a different scene and kind of links it back to how Cowan was captured. All right? Because he actually a month a few days after that second um admission, >> he demonstrated a knee nudge to show how he pushed them. All right. Okay. So at the trial, the confessions were admitted and he was found guilty of two counts of firstdegree murder. The court of appeal found that there was charter violations, so right to silence uh violations and excluded a couple of the recorded versions inadmissible because of that.

[00:35:47]All right. We hold our charter very seriously in Canada. It's not just a piece of legislation that the government can just willy-nilly.

[00:35:54]>> All right. So, a couple of things as I'm listening to this. Firstly, was their mother still alive?

[00:36:00]>> Oh, yeah.

[00:36:01]>> Like, imagine listening to that as the mother of those poor little girls and this was her husband like he's the dad.

[00:36:11]And then my second thought is, okay, why why would you admit to killing your babies for any reason if it wasn't true? How is that not a reliable statement?

[00:36:27]>> All right, but if you're pressured and forced to a level where you feel you don't have the ability to say anything but what the person wants to hear, that's the issue with this, Liz. But so I can I can accept that police officers have this power when they are interviewing someone. They >> the state has enormous power.

[00:36:48]>> Yes. And so I can appreciate that false confessions occur in that context. I accept that I you know they are in a position of vulnerability. This to me is so different Jay. They don't know it's a police officer. So that kind of pressure is not present in their mind. And that's the key.

[00:37:08]They're not talking to a police officer.

[00:37:10]So, >> well, they don't think they're talking to a police officer, but they are. It's It's the police that know that they're the police and they know what they're doing and they're consciously deceiving and using tactics that are dangerous.

[00:37:25]But the the likelihood of feeling pressured by a police officer in an interrogation room at a police station after you've been held and questioned and you're, you know, un unsure, scared, whatever it might be.

[00:37:43]That is the perfect storm for a false confession or for pressure or whatever it might be. But in this context where this guy is trying to impress these people, he wants to be part of their gang.

[00:37:57]>> Well, it might not just be impression. I take your point, but I mean there is a level of pressure and coercion when there is staged and acts of criminal.

[00:38:08]>> But so he's not thinking that his confession or his admission to something will lead to charges because in his mind he's talking to other criminals. So that idea of um the the the public authority having any say over his liberty or his you know none of that's playing on his mind. He's not thinking if I cooperate I'll get a better deal. If I do this it'll go better for me in court. He's not thinking about these people as authority figures at all >> because he hasn't been told that they're authority figures. But so the question is whether or not these confessional statements are reliable or have they been induced in a way that makes them unreliable. Is that >> and that's what the court has ultimately concluded that they were unreliable that they are presumptively inadmissible unless the crown proves on balance of probability that the probative value outweighs the prejuditial effect.

[00:39:11]>> And so what are they looking for then to be convinced?

[00:39:14]>> All right. Well, you know, and and we'll link it to Brett Peter Cowan's where Cowan actually they found remains >> they found clothing and so there was a level of corroboration and the court in Canada said where there's a level of corroboration the crown would be able to prove the probative value on balance outweighs the prejuditial effect. So, I think that's a little bit backwards really because let's say we had our Brett Peter Cowan scenario and he gives this information as to where he left Daniel Morham's body.

[00:39:52]>> Uh, but animals or weather or whatever had swept away the remains. They were no longer there. He misremembered the exact coordinates.

[00:40:04]>> And then on your or the >> Yeah, the Supreme Court would say that that's inadmissible. That's right.

[00:40:10]>> But it's just as truthful as the confession that led to a finding of property because the remains were found.

[00:40:21]>> That's right. There's corroboration.

[00:40:22]There's evidence of corroboration in one of the scenarios. So with remains there's corroboration and without there is no cor.

[00:40:28]>> What if you could never get corroboration because the remains >> presumption of innocence.

[00:40:33]>> And so you think that's a better outcome?

[00:40:35]>> Absolutely. These have to be these have to be >> knowing he confessed to these actions against Daniel Morham.

[00:40:42]>> But how the confession came about the tactics used. All right. So um I just want to so the the position in Canada is that Mr. Big sting operations and admissions confessions as a result of them are primapacy and admissible.

[00:41:03]Now the crown can prove beyond uh on balance of probabilities that they are probative and it outweighs a prejuditial effect. That means that they can still use them in certain circumstances and I feel like that is a correct balance because in certain circumstances it might be deemed appropriate that that is the only course. However, where you've got the Hell's Angels in matters where there is extreme coercion and pressure, the reliability and prejuditial effect outweighs the probative value.

[00:41:39]>> Okay. And I accept that there are some methodologies that you've referred to that I do not agree with. Like I don't think there should be >> um utilization of actual criminals. I don't think there should be this. What's the difference between utilization of criminals and criminal conduct?

[00:42:00]>> Because police officers who are running these operations, they well certainly in Queensland there are parameters like it's legislated in the PPA for a controlled activity or a controlled operation that you can go this far or this far, but there are limits. You need authority, you need, you know, all of that stuff. So there are controls on the operation. If you bring in people who aren't police officers, well, they're not bound by any of that.

[00:42:27]>> I'm not worried about the police, the people that aren't police officers. I'm worried about those that have sworn an oath that are police officers conducting themselves in a misleading and deceptive conduct. Now, at the heart of this matter is this right to silence. So, he exercised his right to silence to police. All right? And they violated that. They knew they were the police.

[00:42:53]They're the only ones there that are police that know that he exercised his right to silence and yet they still proceeded with the Mr. Big Sting operation. The courts in Canada, the Supreme Court said that is not acceptable.

[00:43:07]>> Yeah, we we say the same here. We've got Swafffield and Pavich which talk about circumventing the right to silence and needing to consider whether it was active elicitation or whether it was natural course of conversation.

[00:43:22]>> But we also acknowledge that there are times if someone wants to say something, we can accept that it's reliable even if it's not, you know, exactly by the book.

[00:43:37]>> No. And I mean that's the position here in Australia, right? And so uh until the high court changes that or until legislation changes that, that is the position. So the statements were excluded and there was not enough evidence and so the appeal dismissed.

[00:43:56]All right.

[00:43:57]>> And and so those little girls deaths are now unresolved.

[00:44:02]>> Yep.

[00:44:05]I mean, there's a lot to digest with this, right?

[00:44:08]>> And so, if you look at the Morham matter where you've got, you know, and we've talked about this, yes, previously, the length of the investigation included 22,000 job logs, 10,000 people interviewed, hundreds of police officers, 33 to 35 persons of interest, and Brett Peter Cowan was one of those, right? And so, you've got the Mr. big sting operation that involved over 36 officers from Queensland, Western Australia, and Victoria. And it essentially started on a flight. Okay.

[00:44:43]>> Yeah.

[00:44:44]>> Major um you know, I don't want to say inducements, but you know, he could earn up to $100,000.

[00:44:52]Similar methodology behind what we've discussed previously.

[00:44:57]>> Well, okay. But well, there was no threats, was there?

[00:45:04]Um, well, he did have an application in the Supreme Court to exclude evidence.

[00:45:11]I'm >> sure he did.

[00:45:12]>> Yeah. And it was denied. So, the >> he would have had massive regret for telling them what he told them.

[00:45:19]>> Yeah. And part of the reason why I think this case is so different to some of the others and is this fact that there was corroboration from what he said.

[00:45:28]I don't think I I think we have to either authorize it or not authorize it on the nature of the operation rather than the fruit of that operation. Like >> what do you mean the nature of the operation?

[00:45:43]>> Well, you can't say okay well in this case it's not it's not admissible because we didn't actually find anything but exactly the same conduct here where it led to something. Oh, well that's okay cuz there's corroboration. Like I think a lot of these kinds of operations >> you may not get that corroboration because time has passed because evidence has lost you know like that shouldn't be the determining factor.

[00:46:11]>> No it isn't the determining factor but it is a factor >> with heart by the sounds >> and well that appeal was was was overturned. So, the crown's appeal was overturned, right? And so, you know, we have proof beyond reasonable doubt. The state, the prosecution have to prove that. And so, I don't see a problem with ruling them inadmissible. And if the crown can prove on balance, then so be it. At least there's a check there. Cuz right now, I'm not seeing too much check. But it seems a bit inconsistent, doesn't it, to say, "All right, well, it's going to be inadmissible because they're unlawful."

[00:46:51]>> Yeah, primmaacy.

[00:46:52]>> But oh, okay, we'll let it through because >> if the crown can prove a poison tree then, >> well, they take in all all of the circumstances. That's the same theory.

[00:47:05]Like if you unlawfully exercise a search of a place, there's this potential that what you learn from that and what evidence you find from that is fruit of the poison tree and therefore it's not admissible either. But so we're saying, okay, well these are unlawful, but if you find something, we'll we'll allow it. And that's >> well it's not just if you find something, you know, and and why shouldn't it be up to the crown to prove on balance? I mean, it's not beyond reasonable doubt on balance that they are more probitative than prejuditial. I I don't see a problem with that, especially when the defense don't have to prove a damn thing and the crown needs to prove everything.

[00:47:45]>> But so then what's the point of having legislation that allows for controlled activities and controlled operations >> because you've got police officers overextending what I consider their duties.

[00:47:56]>> Okay. So then what we're talking about perhaps is not that Mr. big operations are primapacy inadmissible.

[00:48:06]>> They are in Canada.

[00:48:07]>> Okay. But it seems to me that your issue really is with overzealous or over reaching officers performing those operations, not with the operations themselves. Because if you were against the operations themselves, then nothing that came about as a result of an operation should be admissible. It should all be tainted.

[00:48:31]>> Yeah. And I take your point. I guess I I don't have a problem with them being ruled inadmissible and then if the crown can successfully establish on balance that they're more probitative than prejuditial.

[00:48:46]>> Okay. But so doesn't that open the door on that thinking that okay look at how probitative this confession is because we've got corroborated evidence of XY Z.

[00:48:59]Oh yeah, they did use threats of violence, but look at the corroboration.

[00:49:03]Like it opens the door for a a operation that has been performed outside the bounds to still be admissible if there is corroboration >> if the court determines it.

[00:49:18]>> But so then your objection is purely on corroborated evidence or not. It's not about the operation. I object. No, my objection is definitely not on whether it's corroborated or not. It's on the tactics used to garner these admissions and confessions. Police know damn well what they're doing.

[00:49:39]>> So Jay, then it shouldn't come down to whether or not the evidence is corroborated. It should be about how the operation is executed.

[00:49:47]>> And we're focusing too much on corroboration. There's other factors that are variables and it's up to the court to decide. But until the court decides it is primifacy and admissible.

[00:49:58]Now that's not the case here >> in Australia.

[00:50:01]>> All right. And so we have the matter of tophilow.

[00:50:05]>> Are you getting cranky?

[00:50:06]>> Oh, >> yes you are.

[00:50:08]>> The matter of tophilow and the allegations involved him allegedly manually strangling his ex-girlfriend.

[00:50:18]Um, and there wasn't initially enough evidence to charge. There was no admissions in earlier interviews and he was later targeted in a Mr. Big Sting operation. This was around 1999 >> and we are close to time. So ultimately the high court allowed the >> it was a big operation. There was multiple offenders.

[00:50:41]>> Yep. There was multiple offenders because I think there was four appeals on that one point. And so I found myself reading uh a law journal that refers to Justice Kirby's descent and and I don't agree with him on a lot, but here he talks about, you know, the balance of the severity of the charges, but also the suspect's right to silence and other international human rights principles.

[00:51:08]the coercive psychological impact on a suspect, the deprivation of fundamental rights and liberties, the manipulations and fears, deception and trickery, all on part of the police. Mhm.

[00:51:20]>> Um so he was in the minority and then most recently in a u law journal at RMIT University by a lecture Lzanne Adam talks about how you know the 2007 decision in Topel might be out to date uh out of step with international developments uh coercion false confessions. it's out of step, inconsistently, uh, overly permissive, dangerous, uh, to the protections. And so her premise is is that the gap has been widening in Australia because the courts are not taking into consideration the psychological aspect to the tactics used.

[00:52:07]>> All right. So I I did not mean to upset you, but I >> No, you didn't upset me. I just I I didn't know if my point was getting across on the tactics. No, I and that is I think that is a good point that the tactics can't overstep, but I don't know that we should have a blanket rule or a blanket refusal to accept it. Like why can't it be that establish that it was an overstep or improper operation and make it inadmissible? Why do we have to start by saying none of them are admissible?

[00:52:43]>> Yeah. And I think you know Lisanne Adam in her article and follows the Supreme Court to say that you know it is the crown that has to prove beyond reasonable doubt and there are duties and rights and privileges and you know if they are going to stray away from exercising those in a way that is not deceptive then yeah it might be okay.

[00:53:06]But you know the tophal decision was 2007 and I guess the premise is that we are still in the past.

[00:53:18]>> We are still in the past in a way. But then you look at Cowan and you think if we didn't have that facility to run an operation like that then Bruce and Denise Moran would still be questioning.

[00:53:31]Daniel's brothers would still be questioning and Cowan would still not have been held accountable for his horrendous conduct. So, >> I can't help thinking there is a place for these operations for the types of people who will not otherwise be held to account.

[00:53:50]>> And I agree with you and in certainly in the Cowan case, I do believe the Supreme Court of Canada would have allowed it.

[00:53:57]And certainly in that case, you know, I would like to think that the Supreme Court would have allowed it.

[00:54:02]>> Um, and you know, it's a tough it's a tough one, right? And so I I guess my position is that until the crown proves on balance that they are more probitative than prejuditial and that the police acted in accordance with their oath of office um they are inadmissible until the probative value outweighs the prejuditial effect.

[00:54:27]>> Gosh, I thought Hockey Canada was tense for us. This is the uh the best.

[00:54:33]This takes the cake.

[00:54:35]>> But thanks Jay.

[00:54:36]>> You bet.

[00:54:40]Thank you for listening to the episode.

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