When in August 2007 the High Court upheld the legality of using sting operations to get confessions out of people, Australian police forces and prosecutors thanked their lucky stars they had been taught the practice by their Canadian counterparts. But, as recent CBC expose showed, the technique is fundamentally flawed and too easily abused by desperate police.
The sting technique, as the High Court explained it, works like this. “Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder. They tell him that, if he does that, the boss can and will make any problems “go away”. The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals. Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang’s help is rejected.”
Justice’s Ian Callinan, Dyson Heydon and Sue Crennan said of this technique, that it has “been in use for a long time in Canada, and had been approved by the Canadian courts… It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime.”
But as the case of Andy Rose, a Canadian wrongfully convicted of murdering two German tourists in 1983 in British Columbia shows, the Canadian sting technique is fraught with danger.
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Someone Got Away with Murder, a CBC TV Fifth Estate program investigation shown earlier this year in Canada spelt out for the first time the appalling injustice meted out to Rose by Canadian police using the sting technique to obtain a confession. Rose was falsely accused by a former girlfriend, Madonna Kelly, of murdering two German tourists, in rural British Columbia in October 1983 when Rose and Kelly were working on a farm nearby the murder scene.
For six years investigators hunted for the killer, but get nowhere until 1989 when Kelly told a police informer that Rose killed the tourists. The police arranged for Kelly to ring Rose, who was now living in Manitoba, and they recorded the conversation. Rose denies to Kelly that he killed the tourists, but the police arrest him and he was convicted.
He won his appeal but was convicted again in 1994. Once again Rose wins an appeal and then the Canadian police, by now desperate, try the sting technique. Undercover police officers befriend Rose and promise to ‘help’ him win his forthcoming trial if he confesses to the murder to a Mr. Big.
Fortunately, the sting doesn’t work, because the courts decide in 2001 to stay, or adjourn permanently, the murder charge.
The lesson here is simple. Australian courts need to be very careful in approving Canadian style sting operations to extract confessions, despite the High Court’s approval of the practice in 2007. As Andy Rose’s case shows, such an operation is a recipe for dishonesty, manipulation and illegality on the part of a desperate investigation team looking for a result in a crime, and unable to get it by conventional means.
As Lindon McIntyre, the CBC journalist who put together the story on the Rose case, observes, “Police forces, especially the Mounties, are starting to use this as a substitute for old-fashioned investigation. They trick people into confessing, and make it easy for them.”