Police Deception and the Right to Silence
Overview
‘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 otherwise admissible evidence.
The Limits of the Right to Silence
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 ‘Scenario’ or ‘Mr Big’ Technique
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 referred to 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 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.
Deception as an Investigative Tool
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, it does not require 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 use of undercover police operatives always involves deception.’
Judicial Treatment of the Technique
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]
Formal Interviews vs Informal Admissions
It is important to understand this aspect of the law and its application to the investigation and prosecution of criminal offences. It reflects the difference between:
Formal police interviews – which must comply with legislative requirements or risk exclusion; and
Other investigative methods – where such constraints may not apply in the same way.
The ‘scenario’ method is but one technique used to garner admissions and confessions from people suspected of crimes. It is noteworthy for its sophistication, reflecting the skill, resourcefulness and patience of those investigating serious crime. It is not, however, the most common.
Other Common Methods of Eliciting Admissions
Unguarded admissions frequently arise outside formal interviews, including through:
Telephone intercepts
Recorded prison (‘Arunta’) calls
Pre-text calls
The latter is another form of evidence gathering which has been challenged by defence and approved of by the 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 designed to elicit admissions or a confession. These recordings can be an incredibly powerful tool in a prosecutor’s armoury.
Conclusion: An Accepted Evidentiary Landscape
While the use of various methods by police—including those that deploy deception—is not new, it is important to note that such deception will not generally lead to exclusion of the evidence (unless it results in unreliable admissions or there is some other basis for exclusion).
It is also important to recognise that the use of undercover operations, telephone intercepts, pre-text calls and similar techniques is becoming more frequent and is now an accepted part of the evidentiary landscape in criminal trials.
References
[1] R v Swaffield; R v Pavic (1998) 192 CLR 159
[2] Alhassan v The King [2024] VSCA 233
[3] Tofilau v The Queen [2007] HCA 39
[4] Alhassan v The King [2024] VSCA 233, [71]
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