Rodrick, Sharon --- "Open Justice and Suppressing Evidence of Police Methods: The Position in Canada and Australia (Part Two)" [2007] MelbULawRw 18; (2007) 31(2) Melbourne University Law Review 443
[∗] BA, LLB (Hons), LLM (Melb); Senior Lecturer, Faculty of Law, Monash University. I would like to thank my colleagues Dr Matthew Groves and Dr Greg Taylor and the referees for their helpful comments on this article. All errors and omissions remain my own.
[1] As explained in Part One of this article, Sharon Rodrick, ‘Open Justice and Suppressing Evidence of Police Methods: The Positions in Canada and Australia (Part One)’ [2007] MelbULawRw 7; (2007) 31 Melbourne University Law Review 171, the hallmarks of the police operational methods sought to be suppressed in Mentuck [2001] 3 SCR 442, 446–7 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ) were that Clayton Mentuck:
• was given the opportunity to join a criminal organisation that would provide him with the potential to earn large sums of money so long as he demonstrated his loyalty by confessing any past criminal activity;
• was told that the undercover operator was in trouble with the crime boss because it was believed that he had recruited a liar;
• was asked to pick up a parcel from a bus depot locker and turn the key over to the operator;
• was asked to pick up and deliver a vehicle on the instructions of the operator;
• was asked to stand guard whilst the undercover operator attended a meeting;
• was asked to help count large sums of money;
• was paid substantial sums of money for completing these tasks;
• met with the crime boss in a hotel room;
• was told he needed to provide details of his involvement in the death of the victim so that arrangements could be made for a terminally ill person to confess to the crime; and
• was told he would be assisted in suing the government for wrongful imprisonment and would be allowed to keep a minimum of $85 000 or 10 per cent of the settlement whichever was the larger.
[2] [2001] 3 SCR 442, 467 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ). The exact wording of the order sought from Menzies J was not reproduced in the Supreme Court of Canada’s decision. The decision recounts the material sought to be suppressed by the Crown’s motion, but not the forms of expression subject to it: at 448–9 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[3] [2001] 3 SCR 478, 484 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[4] Ibid 482 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[5] [2004] VSCA 3; (2004) 9 VR 275.
[6] See below nn 81–4 and accompanying text.
[7] [1994] 3 SCR 835. See Rodrick, above n 1, 178–83.
[8] [2001] 3 SCR 442, 466 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[9] Ibid 463 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[10] Ibid 468 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] [2001] 3 SCR 478, 484–5 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[15] Mentuck [2001] 3 SCR 442, 471 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[16] Ibid.
[17] Ibid 472 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[18] See below n 101 and accompanying text.
[19] Mentuck [2001] 3 SCR 442, 472 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[20] [2001] 3 SCR 478, 485 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ), also noting that this public perception was in fact found to have been created by media reports of the acquittal.
[21] See Rodrick, above n 1, 180–1.
[22] Mentuck [2001] 3 SCR 442, 470 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); ONE [2001] 3 SCR 478, 485–6 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[23] Mentuck [2001] 3 SCR 442, 470 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[24] Ibid 476 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ). The Court explained that it did not want to be perceived as creating a bright line rule as to a year; different cases will involve different considerations.
[25] Ibid 474 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); ONE [2001] 3 SCR 478, 486 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[26] Mentuck [2001] 3 SCR 442, 475 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); ONE [2001] 3 SCR 478, 486 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[27] Mentuck [2001] 3 SCR 442, 475 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); ONE [2001] 3 SCR 478, 486 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[28] Mentuck [2001] 3 SCR 442, 475 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); ONE [2001] 3 SCR 478, 485 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[29] Mentuck [2001] 3 SCR 442, 475 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ). In fact, in ONE [2001] 3 SCR 478, 486 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ), it was stated that a force of anonymous undercover police was not the sort of institution a court could legitimately create.
[30] [2004] VSCA 3; (2004) 9 VR 275, 289 (Winneke P, Ormiston and Vincent JJA).
[31] Rodrick, above n 1, 183–9.
[32] See Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 288 (Winneke P, Ormiston and Vincent JJA) where the Court also doubted, but refused to determine, whether it had an inherent power to make a non‑publication order suppressing the publication of anything said in open court.
[33] Ibid 287 (Winneke P, Ormiston and Vincent JJA).
[34] [2004] VSC 7 (Unreported, Teague J, 23 January 2004); revd [2006] VSCA 44 (Unreported, Callaway, Buchanan and Vincent JJA, 21 April 2006).
[35] [2003] VSC 188; (2003) 13 VR 1; affd [2007] HCA 39 (Unreported, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 30 August 2007).
[36] Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422, 425 (‘Re Application 2005’).
[37] Re Application 2005 [2004] HCATrans 286 (Hayne J and D R F Beach SC, 10 August 2004). They were those aspects of the order which prohibited the publication of ‘details of the sixteen scenarios comprising such methodology’ and of ‘the fact of the use of any of the sixteen scenarios as an investigative tool used by the Victoria Police’: Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 278–9 (Winneke P, Ormiston and Vincent JJA).
[38] Re Application 2005 [2004] HCATrans 286 (Gummow, Hayne and McHugh JJ, 10 August 2004).
[39] Ibid. See the earlier discussion in Rodrick, above n 1, 183–9.
[40] Re Application 2005 [2005] HCA 18; (2005) 214 ALR 422, 424 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
[41] [2001] 3 SCR 442, 462–3 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[42] Rodrick, above n 1, 190–2.
[43] [2001] 3 SCR 442, 463 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[44] [1992] HCA 25; (1991) 174 CLR 268.
[45] Ibid 276 (Mason CJ), 283 (Brennan and Toohey JJ), 293 (Deane J), 302 (McHugh J). It should be noted that the High Court was not dealing with a non‑publication order, but with whether an alleged agreement to fabricate evidence, which had as its object the frustration or diversion of a police investigation into the possible commission of a crime, could amount to a conspiracy to pervert the course of justice: at 275 (Mason CJ), 296–7 (McHugh J).
[46] Ibid 280 (Brennan and Toohey JJ).
[47] See R v Bailey [1956] NI 15, 26 (Lord MacDermott LCJ); R v Kane [1966] NZCA 24; [1967] NZLR 60, 64 (McCarthy J for North P, Turner and McCarthy JJ); R v Sharpe [1938] 1 All ER 48, 51 (Du Parcq J for Lord Hewart LCJ, Humphreys and Du Parcq JJ).
[48] Re Application 2005 [2004] HCATrans 286 (McHugh J and F X Costigan QC, 10 August 2004).
[49] Ibid.
[50] Ibid (McHugh J).
[51] Ibid.
[52] Ibid (F X Costigan QC).
[53] Ibid.
[54] Proceedings must be ‘pending’ before a publication can amount to a sub judice contempt of court. See generally A‑G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, 375 (Gleeson CJ, Kirby P and Priestley JA). Proceedings are ‘pending’ if curial procedures have been commenced and are not completed: at 377–8 (Gleeson CJ, Kirby P and Priestley JA). The fact that there is police activity in relation to a case is not sufficient to trigger the sub judice period: at 374 (Gleeson CJ, Kirby P and Priestley JA).
[55] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 293 (Winneke P, Ormiston and Vincent JJA).
[56] Ibid 287–8 (Winneke P, Ormiston and Vincent JJA). See also Jarvie v Magistrates’ Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 89 (Brooking J).
[57] [2003] VSC 188; (2003) 13 VR 1.
[58] [2004] VSC 7 (Unreported, Teague J, 23 January 2004).
[59] Re Application 2005 [2004] HCATrans 286 (D F R Beach SC, McHugh J, 10 August 2004).
[60] Ibid (D F R Beach SC).
[61] Ibid.
[62] [2001] 3 SCR 442, 471 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[63] Re Application 2005 [2004] HCATrans 286 (D F R Beach SC, 10 August 2004).
[64] Re Application 2005 [2005] HCA 18; (2005) 214 ALR 422, 424.
[65] Rodrick, above n 1, 183–9.
[66] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 287–8 (Winneke P, Ormiston and Vincent JJA).
[67] Ibid 286 (Winneke P, Ormiston and Vincent JJA), citing Mentuck [2001] 3 SCR 442.
[68] Ibid 285 (Winneke P, Ormiston and Vincent JJA).
[69] The challenges were duly made in each Victorian prosecution for murder arising out of a confession procured by the use of the technique, both at first instance before the trial judge and also on appeal, as discussed in Part One of this article: see Rodrick, above n 1, 174–7. Challenges to several of the cases were recently taken to the High Court: see, eg, Tofilau v The Queen [2007] HCA 39 (Unreported, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 30 August 2007). The cases are discussed in Rodrick, above n 1, 175.
[70] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 289 (Winneke P, Ormiston and Vincent JJA).
[71] Ibid 290 (Winneke P, Ormiston and Vincent JJA).
[72] Ibid. Presumably, even if orders had been made indefinitely, they would always be subject to an application for change.
[73] Ibid 291–2 (Winneke P, Ormiston and Vincent JJA).
[74] Ibid 290–1 (Winneke P, Ormiston and Vincent JJA). The Court did countenance that there may be circumstances in which a non‑publication order in relation to evidence might be made. For example, when accused persons give assistance to the police, it is common for the nature of that assistance to be made the subject of a non‑publication order for an indefinite period: at 290–1. The reward for the accused is a lesser sentence. However, the Court regarded a limited ban of this nature as being in the interests of the administration of justice in the particular criminal proceeding and as ‘not directed to some future and indefinite purpose’: at 291 (Winneke P, Ormiston and Vincent JJA).
[75] Ibid 291. For example, an appellate court might find that the nature of the inducements offered or the process of manipulation involved in the technique may have affected the evidentiary value and fairness of the resulting confession or admission, perhaps on the basis that the will of the individual had been overborne as a consequence of the psychological pressure exerted upon them.
[76] Ibid 291–2 (Winneke P, Ormiston and Vincent JJA).
[77] Ibid 292 (Winneke P, Ormiston and Vincent JJA).
[78] Ibid.
[79] Re Application 2005 [2004] HCATrans 286 (D F R Beach SC, 10 August 2004).
[80] A case in point is forensic evidence. For example, the discovery that each person’s fingerprints and DNA are unique has resulted in criminals wearing gloves in order to avoid detection.
[81] Re Application 2005 [2004] HCATrans 286 (F X Costigan QC, 10 August 2004).
[82] Tofilau [2003] VSC 188; (2003) 13 VR 1.
[83] Favata [2004] VSC 7 (Unreported, Teague J, 23 January 2004).
[85] The judgment of the Victorian Court of Appeal was unavailable to the public when the matter was argued before the High Court in August 2004. This greatly perturbed Kirby J, who asserted that not even in wartime had the High Court been asked to deal with a case on appeal from a judgment that was not available to the general public: Re Application 2005 [2004] HCATrans 286 (10 August 2004). His Honour organised for the judgment to be made available immediately, except for those paragraphs in which the methods under consideration were described: Re Application 2005 [2004] HCATrans 286 (10 August 2004).
[86] Andrew Palmer, ‘Applying Swaffield Part II: Fake Gangs and Induced Confessions’ (2005) 29 Criminal Law Journal 111.
[87] See Rodrick, above n 1, 197 fn 175.
[88] Mentuck [2001] 3 SCR 442, 464 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
[89] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 292–3 (Winneke P, Ormiston and Vincent JJA).
[90] Ibid 292 (Winneke P, Ormiston and Vincent JJA).
[91] Re Application 2005 [2004] HCATrans 286 (F X Costigan QC, 10 August 2004).
[92] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 289 (Winneke P, Ormiston and Vincent JJA).
[93] Ibid 293 (Winneke P, Ormiston and Vincent JJA). By analogy, the media, in the context of a report that a Victorian court had issued a non‑publication order and pointing out that the Canadian Supreme Court had refused to make similar orders, would be unable to publish, in Victoria, an outline of the facts of the Canadian cases.
[94] Ibid 292–3 (Winneke P, Ormiston and Vincent JJA).
[95] Ibid 293 (Winneke P, Ormiston and Vincent JJA).
[96] [1994] 3 SCR 835, 886 (Lamer CJ for Lamer CJ, Sopinka, Cory, Iacobucci and Major JJ).
[97] The majority of the High Court posed, but did not need to answer, this question: Re Application 2005 [2005] HCA 18; (2005) 214 ALR 422, 425 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). See Rodrick, above n 1, 193–4.
[98] The High Court has recently dismissed several appeals from decisions of the Victorian Court of Appeal. By a majority of 6:1, the Court held that the confessions that were the subject of the appeals were each made voluntarily and were admissible as evidence: Tofilau v The Queen [2007] HCA 39 (Unreported, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 30 August 2007).
[99] Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275.
[100] In fairness, in Re Applications 2004 [2004] VSCA 3; (2004) 9 VR 275, 291 (Winneke P, Ormiston and Vincent JJA), the Victorian Court of Appeal did point out that the situation would be equally problematic if a non‑publication order was made and the Court subsequently set aside a conviction on the basis that the confession was involuntary, unfair or contrary to public policy.
[101] See, eg, R v Mentuck [2000] MBQB 155 (Unreported, MacInnes J, 29 September 2000)
[121]–[123]; ONE [2001] 3 SCR 478, 483 (Iacobucci J for McLachlin CJ, L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ); R v ONE [2000] BCSC 1200 (Unreported, Edwards J, 8 August 2000) [69]–[71]; R v CKRS [2005] BCSC 1624 (Unreported, Morrison J, 28 November 2005) [113]–[115]; Unger v Minister of Justice (Canada) [2005] MBQB 238 (Unreported, Beard J, 4 November 2005) [48]; R v Ciancio [2006] BCSC 1673 (Unreported, Boyd J, 10 November 2006) [266]–[268], [272]–[274], [290].
[102] CBC News, Supreme Court Strikes Down Undercover Publication Bans (15 November 2001) Canadian Broadcasting Corporation <http://www.cbc.ca/story/canada/national/2001/11/15/
scoc011115.html>.
[103] Geoff Wilkinson and Simon Lavaring, ‘Undercover in the Open’, Herald Sun (Melbourne), 8 September 2004, 9.
[104] Covert RCMP Tactics under Fire in Australia (7 October 2004) Asian Pacific Post (Vancouver) <http://www.asianpacificpost.com/portal2/402881910674ebab010674f4ea99159f.do.html> .
[105] ABC Radio, ‘Undercover Police Tactic Causes Legal Row’, PM, 21 April 2006 <http://www.abc.net.au/pm/content/2006/s1621416.htm> .
[106] See, eg, Criminal Procedure Act 1986 (NSW) s 292; Law Enforcement and National Security (Assumed Identities) Act 1998 (NSW) s 14(1)(b), (2)(b); Mental Health Act 2000 (Qld) s 426; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 75.
[107] Human Rights Act 2004 (ACT) s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15.
[108] Re Application 2005 [2005] HCA 18; (2005) 214 ALR 422, 448 (Kirby J).
[109] Norrie Ross, ‘Court Suppression Orders on the Rise’, Herald Sun (Melbourne), 14 December 2005, 25. See also Chris Merritt, ‘Go Back to School, Judges Urged’, The Australian (Sydney), 18 August 2005, 15; Natasha Robinson, ‘Victoria Courts Greater Openness’, The Australian (Sydney), 9 September 2005, 27. Precise information regarding the actual number of non‑publication orders made by Australian courts is notoriously difficult to obtain. One reason is that many courts do not keep registers of non‑publication orders, or have systems in place for notifying the media that such orders have been made. Moreover, in some cases, the fact that such an order has been made is itself the subject of a non‑publication order. The Australian Press Council described the increased incidence of non‑publication orders as an ‘impression’ shared by observers: Australian Press Council, Report on Free Speech Issues 2005–2006 (8 November 2006) Australian Press Council <http://www.presscouncil.org.au/pcsite/fop/fop_ar/ar06.html> . The dearth of empirical studies on non‑publication orders has prompted calls for greater empirical research: Andrew T Kenyon, ‘Justice Seen to Be Done: Suppression Orders in Law and Practice’ (Speech delivered at the Judicial Conference of Australia, Canberra, 6–8 October 2006).
[110] Kenyon, above n 109, 15; Justice Geoffrey Eames, ‘The Media and the Judiciary’ (Speech delivered at the Melbourne Press Club Annual Conference, Melbourne, 25 August 2006). The large number of complex and interrelated non‑publication orders made in the gangland murder and police corruption cases is attributable to the fact that there were often sequential trials involving the same persons and a wish not to prejudice the respective juries. In some cases, orders were made to protect personal safety, something Victorian judges are entitled to do under their statutory powers.
[111] The workshop is described in Judicial College of Victoria, Annual Report 2005–2006 (2006) 17.