Confessions to Mr Big

AuthorBrendon Murphy,John Anderson
Date01 January 2016
DOI10.1177/1365712715613485
Published date01 January 2016
Subject MatterArticles
Article
Confessions to Mr Big:
A new rule of evidence?
Brendon Murphy
University of the Sunshine Coast, Australia
John Anderson
University of Newcastle, Australia
Abstract
In Queen vHart, the Supreme Court of Canada recognised what was described as a ‘new rule of
evidence’ concerning confessions obtained during ‘Mr Big’ operations. This undercover poli-
cing technique is known to be a time-intensive but effective strategy in the investigation of cases
in which suspects are highly secretive. In Hart, the Canadian Supreme Court recognised the
value of this form of investigation, but emphasised that such strategies require careful scrutiny
by the judiciary because of the potential for unethical policing and the unreliability of confes-
sions in cases where this evidence is obtained in association with ‘entrapment’ strategies. This
article examines the ‘novel’ jurisprudence in Hart, and considers its utility in the context of
other common law countries, particularly Australia where uniform evidence legislation applies
in the majority of jurisdictions. Ultimately it is contended that the ‘new rule of evidence’ in Hart
is effectively a specific adaptation of well-known rules of evidence in the extant common law
and legislation of Australia, England and New Zealand and, therefore, of limited utility outside
Canada.
Keywords
Undercover policing, ‘Mr Big’ technique, confessions, admissibility, reliability
Introduction
It is not every day that a new rule of evidence is added to the common law. In Queen vHart,
1
the
Supreme Court of Canada purported to do just that. The rule evolved from the particular issues that arise
out of undercover police investigations where a fictitious criminal gang and ‘Mr Big’ figure are created
Corresponding author:
John Anderson, Newcastle Law School, University of Newcastle, University Dr., Callaghan, NSW 2308, Australia.
E-mail: John.Anderson@newcastle.edu.au
1. [2014] SCC 52 (Hart).
The International Journalof
Evidence & Proof
2016, Vol. 20(1) 29–48
ªThe Author(s) 2015
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DOI: 10.1177/1365712715613485
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to provide a convincing environment to solicit confessionsfrom a suspect about their involvement, or sus-
pected involvement, in unsolved,or anticipated, serious crimes.Those issues are numerous, but includethe
reliability of information, the potential for coercion, the shadow of entrapment and, ultimately, the weight
to be given to any evidence obtained in the process. The matter for critical evaluation in this article is
whether the‘new rule of evidence’ devisedin Canada has application andutility, particularly in thescheme
of Australian evidence law and more broadly in other common law jurisdictions, including England and
New Zealand. The essential argument made is that the ‘new rule’ is, in fact, a species of well-entrenched
exclusionary rules of evidence that already operate in other common law jurisdictions, including those
Australian jurisdictions which now operate under the statutory uniform evidence law.
Queen vHart
The material facts
The ‘Mr Big Rule’ emerged out of the Canadian Supreme Court decision in Hart in July 2014, involving
a Crown appeal against a decision of the Supreme Court of Newfoundland and Labrador excluding evi-
dence of an alleged confession made by the accused in relation to charges of murder. The appeal was
dismissed. The effect was that critical evidence was not available to the Crown to sustain the prosecu-
tion, so it was ultimately discontinued (CBC News, 2014).
Hart is a tragic case. Following a trial by jury in March 2007, Nelson Hart was convicted of the 2002
drowning murders of Krista and Karen Hart, his three-year-old twin daughters. When police initially
questioned Hart about the deaths,he reported that Krista had fallen off a wharf into the lake. He panicked,
as he could not swim, and fled the scene, leaving Karen behind,so that he could find his wife. When Hart
and his wife returned, both girls were found dead floating in the lake. Further inquiries confirmed that
Hart had a working mobile phone at the time, had driven11 kilometres from the lake to his home, bypass-
ing local businesses and a hospital. When pressed further by police about his statement, Hart conceded
that he had lied in order to cover up the fact that he had an epilepticseizure when he had gone to the lake,
indicating that after the seizure he was ‘dopey’ and could not see very well—all he could see was one of
his daughters lying still in the lake. It was at that point thathe panickedand fled the scene. He lied, in part,
because of what had happened to his daughter, and also to avoid losing his driver’s licence, which had
been suspended previously because of his epilepsy.
2
During the course of the trial, it became clear that
Hart had been ‘prone to serious epileptic seizuresfrom his early childhood’.
3
He was unemployed, reliant
on social security, impoverished and had been intermittently homeless. He had an acrimonious relation-
ship with his brother, who had apparently threatened to have the children removed by Child Protection
Services. This government welfare agency was seemingly aware of the children’s vulnerability but had
not intervened.
4
The ‘Mr Big’ operation
5
The police investigating the deaths of Krista and Karen Hart had very little information available with
which to advance their enquiries. There were no witnesses, and no other evidence beyond the
2. RvHart [2012] NLCA 61 [1].
3. Ibid. at [4].
4. Ibid. at [12].
5. Details of the operation are evident in three of the Hart cases. See RvHart [2007] NLTD 74; RvHart, above n. 2; and RvHart
[2014] SCC 52. The 2007 case provides the clearest details of the undercover operation. There is a significant amount of
academic commentary about ‘Mr Big’ operations as an investigative technique and confessions obtained during such opera-
tions, which is beyond the scope of this article. See, for example, Smith et al. (2009, 2010); Moore et al. (2009); Moore (2010);
Kassin et al. (2010); Gudjonsson (2011); Stinson and Patry (2012); Moore and Keenan (2014); and Sakkau and Brockman
(2015).
30 The International Journal of Evidence & Proof 20(1)

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